INDRA DEVI versus STATE OF RAJASTHAN & ANR. on 23 July 2021

1. Indra Devi, the appellant, is the complainant in FIR No.80 dated23.02.2011 registered under Sections 420/467/468/471/120B of the IPCand Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & ScheduledTribe (Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. Itwas alleged that she and her husband Bhanwar Lal purchased two plotsin Khasra No. 1179/03 located in Distt. Barmer. Out of these two plots,one plot was sold to one Megharam while another plot was sold to oneChetan Choudhary. In the plot purchased in the name of her husband, aresidential house and shops are stated to have been made. Megharam is GH

Aalleged to have tampered with and fabricated the agreement with theintention to defraud. This was allegedly done in collusion with the thenexecutive officer of the Municipality, one Surender Kumar Mathur and“the concerned clerk and others”, by enlarging the dimensions of theplot which have been sold to him with the intention to grab the land andhouse occupied by the complainant and her husband. The Khasra numberBis also alleged to have been changed from 1179/03 to 1143/04. This factis stated to have come to the notice of the complainant only when theywere served with a court notice when they were in physical possessionof the plot with the house and the shop. Her husband is stated to havegone to Jaipur for treatment of cancer. The accused persons are, thus,Calleged to have committed the offences of fraudulently making a scheduledcaste women, her cancer diagnosed husband and other family membershomeless. It may be noted that Respondent No.2 herein, Yogesh Acharyawas not named in the FIR but, apparently, he is stated to be “the concernedclerk”.

D2. In pursuance of the investigation, a chargesheet was filed andcharges were framed vide order dated 10.04.2012 against Megharam.Once again Respondent No.2 was not named in the chargesheet but areference was made to Megharam acting in collusion with “co-accusedpersons”.E3. The records placed before us do not reflect how RespondentNo.2 was exactly roped in, but suffice to say, Respondent No.2 movedan application under Section 197 of the CrPC before the trial court statingthat he was a public servant and what he did in respect of allotment oflease, that was executed in favour of Megharam, was done during thecourse of his official duty and thus he was entitled to protection underFthe aforementioned provision. He also sought to assail the chargesheetas the same had been filed without obtaining sanction of the competentauthority under Section 197 of the CrPC.

4. The trial court dismissed the application vide order dated10.08.2017, while noticing that Respondent No.2 had not been mentionedGin the FIR. It was opined that it was the duty of Respondent No.2 tobring irregularities to the knowledge of the competent officers,i.e.Megharam had mentioned the wrong Khasra number in the lease butno documents of ownership of the land were produced. The trial courtwas of the view that had the discrepancies been brought to the knowledgeHof the competent officers by Respondent No.2, the disputed lease would not have been issued. The result of the failure to do so caused the forgedlease to be prepared. Respondent No.2 had also drafted the disputedlease in which he failed to mention necessary details. It was, thus, opinedthat Respondent No.2 was liable to be prosecuted against for havingcommitted criminal offence to procure a forged lease. What RespondentNo.2 did was held not to be done by the public servant in discharge ofhis official duty and thus protection under Section 197 of the CrPC wouldnot come to his aid.

5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017 under Section 482 of the CrPC before the High Court of Judicatureat Jodhpur assailing the said order of the trial court. The High Court,vide impugned order dated 03.10.2017, allowed the petition. It was opinedthat the case was similar to the one of Devi Danv. State of Rajasthan[1].The High Court had opined therein that sanction under Section 197 ofthe CrPC was required before triggering any prosecution against theStation House Officer for filing/failing to file an FIR and for other criminalacts committed during the discharge of his duties. The complainant,aggrieved by the said judgment, has approached this court by filing aspecial leave petition. The State has also filed an SLP. Leave was grantedin both the matters.

6. The appellant contended before us that the involvement ofRespondent No.2 only came to light during investigation. He had failedto bring the irregularities to the knowledge of his superiors which wasinstrumental in issuing the forged lease. Thus, he had conspired with hissuperiors in dishonestly concealing the forgery, and intentionally omittingmentioning the date of the proceedings on the order sheet. Such actionof forging documents would not be considered as an act conducted inthe course of his official duties and, thus Section 197 of the CrPC wouldnot give protection to Respondent No.2.

7. On the other hand, Respondent No.2 endeavoured to supportthe impugned judgment of the High Court by emphasising that in FIRonly Megharam alongwith some unnamed officials were mentioned.Surender Kumar Mathur, the Executive Officer of the Nagar Palika,had filed a petition under Section 482 of the CrPC relating to the sametransaction and the High Court had granted him protection under Section197 of the CrPC vide order dated 22.02.2018. The conduct of putting his AB

C

D

EF

G

H

Ainitials was held to be an act done in discharge of his duties. Similarly,Sandeep Mathur, a Junior Engineer, who was part of the sametransaction, was granted protection by the Sessions Court vide orderdated 19.03.2020, once again under the same provision, i.e., Section 197of the CrPC. Both the orders remained unchallenged by the complainantand the State. Further, it has been argued that Respondent No.2 wasBsimply carrying out his official duty which is apparent from the workallotted to him that pertained to allotment, regularisation, conversion ofagricultural land and all kinds of work relating to land and conversion.The application of Megharam was routed through the office, and theproceedings show that the file was initially put up before the ExecutiveCOfficer, who directed inspection, which was carried out by the JuniorEngineer. Thereafter, file was placed before the Executive Officer againand only then was it signed by the Municipal Commissioner. The twokey people involved in the process had already been granted protectionand thus Respondent No.2 herein, who was merely a Lower DivisionClerk, could not be denied similar protection.D

8. Learned counsel for Respondent relied upon the judgments ofthis Court in B. Saha & Ors. Vs. M.S. Kochar[2] and State ofMaharashtra Vs. Dr.Budhikota Subbarao[3]to contend that Section197 of the CrPC ought to be read in a liberal sense for grant of protectionto the public servant with respect to actions, which though constitute anEoffence, are “directly and reasonably” connected with their official duties.

9. We have given our thought to the submissions of learned counselfor the parties. Section 197 of the CrPC seeks to protect an officer fromunnecessary harassment, who is accused of an offence committed whileacting or purporting to act in the discharge of his official duties and, thus,Fprohibits the court from taking cognisance of such offence except withthe previous sanction of the competent authority. Public servants havebeen treated as a special category in order to protectthem from maliciousor vexatious prosecution. At the same time, the shield cannot protectcorrupt officers and the provisions must be construed in such a mannerGas to advance the cause of honesty, justice and good governance. [SeeSubramanian Swamy Vs. Manmohan Singh[4]]. The alleged indulgenceof the officers in cheating, fabrication of records or misappropriation 2 (1979) 4 SCC 1773 (1993) 3 SCC 339H4 (2012) 3 SCC 64

cannot be said to be in discharge of their official duty. However, suchsanction is necessary if the offence alleged against the public servant iscommitted by him “while acting or purporting to act in the discharge ofhis official duty” and in order to find out whether the alleged offence iscommitted “while acting or purporting to act in the discharge of his officialduty”, the yardstick to be followed is to form a prima facie view whetherthe act of omission for which the accused was charged had a reasonableconnection with the discharge of his duties. [See State of MaharashtraVs. Dr.Budhikota Subbarao][5]. The real question, therefore, is whetherthe act committed is directly concerned with the official duty.

10. We have to apply the aforesaid test to the facts of the presentcase. In that behalf, the factum of Respondent No.2 not being named inthe FIR is not of much significance as the alleged role came to light lateron. However, what is of significance is the role assigned to him in thealleged infraction, i.e. conspiring with his superiors. What emergestherefrom is that insofar as the processing of the papers was concerned,Surendra Kumar Mathur, the Executive Officer, had put his initials tothe relevant papers which was held in discharge of his official duties.Not only that, Sandeep Mathur, who was part of the alleged transaction,was also similarly granted protection. The work which was assigned toRespondent No.2 pertained to the subject matter of allotment,regularisation, conversion of agricultural land and fell within his domainof work. In the processing of application of Megharam, the file wasinitially put up to the Executive Officer who directed the inspection andthe inspection was carried out by the Junior Engineer and only thereafterthe Municipal Commissioner signed the file. The result is that the superiorofficers, who have dealt with the file, have been granted protection whilethe clerk, who did the paper work, i.e. Respondent No.2, has been deniedsimilar protection by the trial court even though the allegation is of reallyconspiring with his superior officers. Neither the State nor the complainantappealed against the protection granted under Section 197 of the CrPCqua these two other officers.

11. We are, thus, not able to appreciate why a similar protectionought not to be granted to Respondent No.2 as was done in the case ofthe other two officials by the Trial Court and High Court respectively.The sanction from competent authority would be required to takecognisance and no sanction had been obtained in respect of any of the 5 supra AB

C

D

E

F

G

H

Aofficers. It is in view thereof that in respect of the other two officers, theproceedings were quashed and that is what the High Court has directedin the present case as well.

12. In view of the aforesaid, the appeals are dismissed leaving the parties to bear their own costs.

B

Devika Gujral

Appeals dismissed.

C

D

E

F

G

H