M.M.S. Bedi, J.@mdashThe petitioner has questioned the legality and propriety of order dated 17.4.2006 passed by the learned Chief Judicial Magistrate, Rewari dismissing the application filed by him for discharge in the criminal complaint (Suresh Kumar v. Partap Singh and others).
2. The petitioner, admittedly is a retired Secretary of the Municipal Committee, Rewari. He was working as a Secretary in Municipal Committee, Bhiwani on 27.5.1992. The petitioner along with two others had been summoned to face trial vide summoning order dated 17.1.2004 for offences under Sections 420/467/468/471/120-B IPC.
3. Respondent No. 1 Suresh Kumar had filed a complaint alleging that he was a tenant of Municipal Committee, Rewari in a shop. On the basis of a mutual agreement between Suresh Kumar and Partap Singh dated 27.5.1992 a compromise was sought to hand over the possession of the shop to Partap Singh. The petitioner was working as a Secretary of the Municipal Committee, Bhiwani up to 30.6.1992. He was transferred to Municipal Committee, Rewari on 1.7.1992. The agreement was allegedly counter signed by the petitioner without any other remarks by him. Suresh Kumar had, in his complaint, alleged that the petitioner had fraudulently prepared a false document and cheated him while working as a Secretary of the Municipal Committee, Bhiwani on 27.5.1992. The petitioner had moved an application for discharge on the ground that no sanction had been obtained u/s 197 Cr.P.C. to prosecute him and that he had joined as a secretary in Municipal Committee, Rewari on 1.7.1992 and under Rule 43 of the Haryana Municipal Business Bye-Laws, he had counter signed the agreement of Partap Singh and the complainant, during the course of performance of official duties. The complainant had voluntarily surrendered the possession of shop No. 154 to Partap Singh on or about 27.5.1992 and had not paid the rent of the shop after March 1992. He had filed the complaint after the expiry of 10 years without obtaining the sanction u/s 197 Cr.P.C.
4. Learned counsel for the petitioner has submitted that the petitioner is more than 71 years of age and at present he is a retired person. In view of State of Maharashtra v. Dr. Budhikota Subbarao, 1993 (3) RCR (Cr.) 539, even a retired person is entitled to protection. He has also placed reliance on Rakesh Kumar Mishra v. State of Bihar and others 2006 (1) RCR (Criminal) 456: 2006 (1) AC 175 : 2006 (1) RCC 630 to contend that it is necessary to protect the public servants in discharge of their official duties and as per Section 197 Cr.P.C. no cognizance can be taken against the public servant regarding any act, which was done in discharge of official duties.
5. On the other hand learned State counsel contended that as per the law laid down in State of H.P. v. M.P. Gupta, 2004 (1) RCR(Criminal) 197: 2004 (2) Apex Criminal 112 : 2004 (2) RCC 297, Section 197 Cr.P.C. does not extend its protective cover to every act or omission done by the public servant in service but restricts its scope of operation to only these acts or omissions which are done by a public servant in discharge of official duty and under the colour of office and it is not a part of a duty of public servant while discharging his official duties to commit a forgery.
6. I have heard learned counsel for the parties and gone through the facts of present case. It is not disputed that the acts attributed to the petitioner are the acts, which are alleged to have been committed by him during his posting as a Secretary of the Municipal Committee. It is not also disputed that the Secretary of the Municipal Committee is a public servant within the meaning of Section 21 of the IPC. It is also not disputed that the status of the Secretary of the Municipal Committee would attract the provisions of Section 197 Cr.P.C. in case prosecution is to be launched against him. The petitioner is alleged to have counter-signed an agreement between the complainant and Partap Singh in the capacity as Secretary of the Municipal Committee. Counter signing of such agreement before accepting an agreement is a part of official duty. So far as the expression of "official duty" as used in Section 197 Cr.P.C. is concerned, it implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty.
7. Whether protection afforded to a public servant would be extended to a retired public servant came up for consideration before the Hon''ble Supreme Court in
"We may mention that the Law Commission in its 41st Report in paragraph 12.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant." It was in pursuance of this observation that the expression "was" come to be employed after the expression "is" to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted."
8. The application filed by the petitioner was dismissed by the learned Chief Judicial Magistrate, Rewari vide order dated 17.4.2006 by holding that as the petitioner has already retired, therefore, there was no need to obtain sanction u/s 197 Cr.P.C. The observation of the learned Chief Judicial Magistrate runs contrary to the judgment of the Hon''ble Supreme Court in Ganesh Chandra Jew''s case (supra) where it has been observed that sanction u/s 197 Cr.P.C. would be necessary for prosecuting a public servant and the requirement of sanction would be applicable even in cases where a retired public servant is sought to be prosecuted. The act of the petitioner is reasonably connected with the discharge of his duties, as such his prosecution without sanction appears to be not justified. The petitioner is a retired person, aged more than 71 years of age. Removing the umbrella of protection of Section 197 Cr.P.C. for the official acts, alleged to have been performed by him in the year 1993, would defeat the objectives of Section 197 Cr.P.C.
9. It is pertinent to refer to Section 17 of the Haryana Municipal Act, 1973, which lays down that every person employed by the Committee and every member of the Committee shall be deemed to be a public servant within the meaning of Section 21 IPC. Counter signing a document and agreement is one of the duties of the Secretary of the Municipal Committee u/s 43 of the Haryana Municipal Business Bye-Laws 1981.
10. In view of the above, the petition is allowed and the impugned order dated 17.4.2006 passed by the trial Court is hereby set aside.
Nothing said in this order will affect the merits of the complaint qua the other co-accused of the petitioner.
