N K OGLE Vs. SANWALDAS ALIAS SANWALMAL AHUJA

JUDGEMENT

(1.) The appellant was Tehsildar in Damoh. The District Collector had ordered by sending a Revenue Collection Certificate to collect lease money amounting to Rs. 4,653/- from Sanwaldas, respondent herein. The Tehsildar on receipt of the information from the office of the Collector registered the matter and passed an order for issuance of Demand Letter. Under the said Demand Letter the initial date had been fixed as 14-11-1989 which was, however, changed later on to 28-11-1989. The Tehsildar in his order-sheet Exhibit D mentioned that the Demand Letter has been received back after being duly served on the respondent Sanwaldas. On 4-12-1989 an order of attachment warrant was passed. On 21-12-1989 respondent Sanwaldas came to the office of Tehsildar and objected to the legality of the order of issuing the Demand Letter. This fact was immediately intimated by the Tehsildar to the District Magistrate on the same day. Respondent Sanwaldas then filed a complaint alleging that while he had gone to the Tehsil Office on his scooter the Tehsildar forcibly kept the Scooter, and as such, has committed an offence under Section 379 of the Indian Penal Code. It may be stated that after the seizure of the scooter the Tehsildar directed for auctioning of the same and the scooter was ultimately auctioned on 22-1-1990. On the basis of the complaint filed by respondent Sanwaldas the learned Judicial Magistrate First Class, Damoh, took cognizance of the offence and directed issuance of process against Tehsildar. Tehsildar appeared before the Magistrate on 2-3-1990 and filed an application raising objection to the order taking cognizance of the offence on the ground that the acts complained of was in discharge of the official duty of the Tehsildar and, therefore, in the absence of the sanction under Section 197 of the Code of Criminal Procedure the Court will have no jurisdiction to entertain the complaint. The learned Magistrate, however, rejected the said application filed by the Tehsildar by its order dated 7th March, 1990 on a finding that the acts complained of have no rational nexus with the discharge of official duty of the Tehsildar and, therefore, immunity under Section 197, Cr. P.C. will not be attracted. This order of the Magistrate was assailed in Revision by the Tehsildar in the Court of Sessions Judge, Damoh which was registered as Criminal Revision No. 17/90. By judgment dated 24-4-1990 the learned. Sessions Judge came to the conclusion that the alleged act of the Tehsildar is directly connected with the performance of his official duties and therefore the claim of the applicant regarding immunity under Section 197, Cr. P. C. can neither be said to be pretended nor fanciful. The Sessions Judge came to the conclusion that the Tehsildar cannot be prosecuted for the acts complained of without prior sanction of the Government as required under Section 197 of the Code of Criminal Procedure Accordingly, the order of the Magistrate was set aside and the complaint was held to be not maintainable. Against the aforesaid order of the learned Sessions Judge the complainant moved the High Court invoking the jurisdiction of the Court under Section 482 of the Code of Criminal Procedure. The High Court by the impugned judgment dated 3-12-1991 being of the opinion that the acts complained of in fact do not appear to relate with the responsibility of the post of Tehsildar and Tehsildar has misused his powers, interfered with the order of Sessions Judge and held that the provisions of Section 197 of the Criminal Procedure has no application to the case in hand. In coming to the aforesaid conclusion the High Court examined the provisions of the M.P. Land Revenue Act and came to hold that the order of attachment of the Collector was not in accordance with law, and therefore, any purported action taken by Tehsildar on the basis of such invalid order will not give him protection of Section 197 of the Code of Criminal Procedure. According to the High Court the Tehsildar must be held to have misused his post or the rights associated with the post and, therefore, question of taking sanction from the Government before initiating any criminal proceeding does not arise. It is this order of the High Court which is being assailed in the present appeal.

(2.) Mr. Bachawat, learned senior counsel appearing for the appellant contended that the Court while examining the question of applicability of Section 197, Cr. P.C. in a given case is required to find out whether the acts complained of constituting the alleged offence can be said to have been done in exercise of the powers of the public officer or in purported exercise of the power of the said officer and if the answer is in the affirmative then the provisions of Section 197, Cr. P.C. would get attracted. According to Mr. Bachawat, if it is found that the concerned public officer has acted bona fide in exercise of or in purported exercise of power conferred upon him and not on the basis of a pretended plea, then the provisions of Sub-section (1) of Section 197 of the Code of Criminal Procedure would apply, even if such officer has done something in excess than what is provided for. According to Mr. Bachawat on the findings of the High Court the acts complained of having been done in exercise of the powers under the provisions of M.P. Land Revenue Act which order of the Tehsildar in turn was issued pursuant to the order of the District Magistrate, Damoh for recovering the lease money from the respondent, the High Court committed error in examining the legality of such order and then coming to a conclusion on the question about the applicability of Section 197, Cr. P.C. In support of this contention reliance was placed on the Constitution Bench decision of this Court in the case of, Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925 and a recent decision of this Court in the case of, Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, (1998) 1 SCC 205 .

(3.) Mr. Upadhyay, learned counsel appearing for the respondent on the other hand contended, that the acts of the Tehsildar which was the subject matter of the complaint filed by the respondent cannot be said to have reasonable nexus with the duties of the Tehsildar, and therefore, for such illegal acts the protection provided under Section 197, Cr. P.C. will not apply. According to Mr. Upadhyay, the plea of the Tehsildar that he forcibly retained the scooter in exercise of his power under the provisions of M.P. Land Revenue Act is nothing but a pretended and fanciful plea and consequently the High Court was fully justified in recording the findings that the provisions of Section 197 will have no application to the case in hand. In support of this contention reliance was placed on the decision of this Court in the case of, S. B. Saha v. M. S. Kochar, (1979) 4 SCC 177 and in the case of, B. S. Sambhu v. T. S. Krishnaswamy, (1983) 1 SCC 11 and in the case of, Pukhraj v. State of Rajasthan, (1973) 2 SCC 701 . According to Mr. Upadhyay the legislative intent engrafted behind Section 197 of the Code of Criminal Procedure is to prevent a public servant from being unnecessarily harassed. But if an authority misuses his power as found by the High Court in the present case and such protection is given then the very purpose for which Section 197 was engrafted on the Statute Book would get frustrated.