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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)