OM KR. DHANKAR Vs STATE OF HARYANA
Bench: R.M. LODHA,H.L. GOKHALE
Case number: Crl.A. No.-000464-000464 / 2012
Diary number: 26612 / 2007
Advocates: SUSHIL BALWADA Vs
ANIS AHMED KHAN
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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
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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)