Om Kr. Dhankar vs State Of Haryana & Anr

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 464 OF 2012 (arising out of S.L.P. (Crl) No). 6908 of 2008)

OM KR. DHANKAR Appellant (s)

VERSUS

STATE OF HARYANA & ANR. Respondent(s)

J U D G M E N T

R.M. LODHA, J.

Leave granted.

2. The complainant is in appeal, by special leave,

aggrieved by the order dated May 17, 2007 of the High Court

of Punjab and Haryana whereby the single Judge of that Court

dismissed the Criminal Revision Petition filed by the

appellant and affirmed the order dated February 1, 2002

passed by the Additional Sessions Judge, Gurgaon. The

Additional Sessions Judge by his order allowed the Criminal

Revision filed by the present respondent No. 2 and quashed

the order dated June 2, 2001 passed by the Judicial

Magistrate, First Class, Gurgaon, summoning him to face

trial under Sections 420, 406 and 161 of the Indian Penal

Code (IPC).

3. The appellant (hereinafter referred to as 'the

complainant') filed a criminal complaint against the

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respondent No. 2 in the court of duty Magistrate, Gurgaon.

In his complaint, the complainant stated that he was a

transporter and operating buses on the contract basis in the

name of M/s Chaudhary Bus Service. On May 1, 2000, his two

buses bearing registration Nos. DL-1P-7077 and DL-1PA-3927

were impounded. On that date, the third bus bearing

registration No. DL-1PA-4007 belonging to the complainant

was also impounded. The respondent No. 2 at the relevant

time was working as Deputy Excise and Taxation Commissioner,

Gurgaon. The complainant visited his office and enquired

about the impounding of his three buses. He was told that he

(complainant) had not paid the passenger taxes in respect of

these three buses. The respondent No. 2 told the complainant

that Rs. 2 Lakhs were due towards the passenger taxes in

relation to these three buses and asked the complainant to

deposit that amount at his residence if he wanted the buses

to be released. The complainant arranged Rs. 1,50,000/- and

paid this amount to respondent No. 2 at his residence at

about 1.45 p.m. on May 1, 2000. The respondent No. 2,

according to the complainant, promised him to issue receipts

from the office. The complainant visited the office of the

accused at about 4 p.m., but there was no one in the office

except one office clerk who told him that two buses have

been released and the third bus would be released on payment

of Rs. 50,000/- at the residence of the respondent No. 2.

The complainant paid Rs. 50,000/- at about 9.30 p.m. at the

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residence of the respondent No. 2 and the third bus was also

released. In the complaint, the complainant alleged that the

respondent No. 2 had cheated him and the public money has

been embezzled and the accused also received illegal

gratification; the intention of the respondent No. 2 was

malafide while issuing directions to Inspector posted at

different tax collection points not to accept passengers tax

at tax collection points. It was thus alleged that the

accused had committed offences under Sections 420, 409 and

427 IPC and Section 13(1)(d) of the Prevention of Corruption

Act, 1988.

4. The complainant appeared before the Magistrate in

support of his complaint and examined himself. Two other

witnesses were also examined on his behalf. Certain

documents were also placed before the Magistrate.

5. The Magistrate vide order dated June 2, 2001 found

that sufficient grounds existed to proceed against

respondent No. 2 to be summoned to stand trial under

Sections 420, 406 and 161 IPC.

6. The respondent No. 2 challenged the summoning

order in Criminal Revision before the Sessions Judge,

Gurgaon which was finally heard and disposed of by the

Additional Sessions Judge, Gurgaon on February 1, 2002. The

Additional Sessions Judge, inter alia, held that in the

absence of sanction by the competent authority, the

summoning order could not have been issued. The Additional

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Sessions Judge, accordingly, vide order dated February 1,

2002 set aside the summoning order.

7. As noted above, the complainant challenged the

order of the Additional Sessions Judge before the High

Court but was not successful there.

8. The counsel for the appellant is not present.

However, from the special leave petition, it transpires that

two questions have been raised, namely, (one) whether

Criminal Revision Petition against the order of summoning is

maintainable, and (two) whether in the facts and

circumstances of the present case, the sanction under

Section 197 of the Code of Criminal Procedure (Cr.P.C.) is

required.

9. Insofar as the first question is concerned, it is

concluded by a later decision of this Court in the case of

Rajendra Kumar Sitaram Pande and Others Vs. Uttam and

Another1. In Rajendra Kumar Sitaram Pande case (supra) this

Court considered earlier decisions of this Court in the

cases of Madhu Limaye Vs. State of Maharashtra2, V.C.

Shukla Vs. State3, Amar Nath Vs. State of Haryana4 and

K.M. Mathew Vs. State of Kerala5 and it was held as

under :-

"6... This being the position of law, it would not

1 (1999) 3 SCC 134

2 (1977) 4 SCC 551

3 1980 Supp. SCC 92

4 (1977) 4 SCC 137

5 (1992) 1 SCC 217

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be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same...."

10. In view of the above legal position, we hold, as

it must be, that revisional jurisdiction under Section 397

Cr.P.C. was available to the respondent No. 2 in challenging

the order of the Magistrate directing issuance of summons.

The first question is answered against the appellant

accordingly.

11. The second question, is whether sanction under

Section 197 Cr.P.C. is mandatorily required for the

prosecution of respondent No. 2 for the offences under

Sections 420, 406 and 161 IPC as he happened to be Deputy

Excise and Taxation Commissioner at the time of incident.

12. Mr. Anis Ahmed Khan, learned counsel for the

respondent No. 2, heavily relied upon the decision of this

Court in Rakesh Kumar Mishra Vs. State of Bihar6 while

supporting the view of the High Court.

13. In our view, the controversy with regard to the

second question is concluded by the decision of this Court

in Prakash Singh Badal and Another Vs. State of Punjab

and Others7. Rakesh Kumar Mishra case (supra) was

6 (2006) 1 SCC 557

7 (2007) 1 SCC 1

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considered in Prakash Singh Badal case (supra) in para 49

of the report. This Court thus held that the offence of

cheating under Section 420 or for that matter offences

relateable to Sections 467, 468, 471 and 120-B can by no

stretch of imagination by their very nature be regarded as

having been committed by any public servant while acting or

purporting to act in discharge of official duty. This Court

stated in paragraphs 49 and 50 of the report thus:

"49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."

14. In view of the above legal position, the

Additional Sessions Judge and the High Court were not right

in holding that for prosecuting the respondent No. 2 for the

offences for which the summoning order has been issued, the

sanction of the competent authority under Section 197 7

Cr.P.C. is required. The view of the Additional Sessions

Judge and the High Court is bad in law being contrary to the

law laid down by this Court in Prakash Singh Badal case

(supra). The second question is answered in the negative and

in favour of the appellant.

15. As a result of the above discussion, the Appeal is

allowed. The order dated May 17, 2007 of the Punjab and

Haryana High Court and the order dated February 1, 2002 of

the Additional Sessions Judge, Gurgaon are set aside. The

order dated June 2, 2001 passed by the Judicial Magistrate,

First Class, Gurgaon in the criminal complaint filed by the

present appellant is restored. Trial court shall now proceed

against the respondent No. 2 as per the summoning order.

........................J. (R.M. LODHA)

NEW DELHI; ........................J. FEBRUARY 28, 2012 (H.L. GOKHALE)