Month: January 2017

Sanction For Prosecution Of Public Servants: Law Revisited In The Light Of The Judgment “Inspector Of Police And Ors Vs Battenapatka Venkata Ratnam And Ors”

The Hon’ble Supreme court of India in the case titled as Inspector of Police and ors vs Battenapatka venkata Ratnam and ors [2015(5)SCALE253] have dealt with the question that whether sanction under section 197 of Cr.pc is required to initiate criminal proceedings against the public servant and can a public servant take shield to protect themselves when the criminal proceeding is initiated against the public servant for fraud, criminal conspiracy. The brief facts of the case are as under:-

  1. Whether sanction Under Section 197 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code of Criminal Procedure’) is required to initiate criminal proceedings in respect of offences Under Sections 420, 468, 477A, 120B read with 109 of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘Indian Penal Code’), is the question arising for consideration in these cases.
  2. The District Registrar, Vijayawada lodged a complaint with the Inspector of Police, CBCID Vijayawada on 07.07.1999. The main allegation against the Respondents was that while they were working as Sub-Registrars in various offices in the State of Andhra Pradesh, they conspired with stamp vendors and document writers and other staff to gain monetary benefit and resorted to manipulation of registers and got the registration of the documents with old value of the properties, resulting in wrongful gain to themselves and loss to the Government, and thereby cheated the public and the Government.
  3. On the basis of the complaint, F.I.R. No. 35/1999 was registered by the Appellant, and after investigation, report Under Section 173(2) Code of Criminal Procedure against 41 persons including the Respondents herein, was submitted before the III Additional Chief Metropolitan Magistrate, Vijayawada. The Respondents raised the objection that there was no sanction Under Section 197 Code of Criminal Procedure and hence the proceedings could not be initiated.
  4. Learned Magistrate on 03.07.2007 passed an order holding that:Whether the sanction is required Under Section 197 Code of Criminal Procedure or not to be considered during the trial and it is the burden on the complainant to prove that the accused acted beyond in discharge of their official duties and there is no nexus between the acts committed and their official duties and at this stage the question that the accused acted within their duties cannot be decided. Aggrieved, Respondents moved the High Court Under Section 482 Code of Criminal Procedure leading to the impugned order whereby the criminal proceedings were quashed on the sole ground that there was no sanction Under Section 197 Code of Criminal Procedure, and hence the appeals. After perusal of the arguments of both the sides; the Hon’ble Supreme Court was of the view that:
  5. No doubt, while the Respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them “while acting or purporting to act in discharge of their official duty” and that question is no more res integra. In Shambhoo Nath Misra v. State of U.P. and Ors. (1997) 5 SCC 326, at paragraph-5, this Court held that:The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.
  6. In Parkash Singh Badal v. State of Punjab and Ors. (2007) 1 SCC 1, at paragraph-20, this Court held that:20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant’s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.

    38. The question relating to the need of sanction Under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

  7. In a recent decision in Rajib Ranjan and Ors. v. R. Vijaykumar (2015) 1 SCC 513, at paragraph-18, this Court has taken the view that…“even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted”.
  8. Public servants have, in fact, been treated as special category Under Section 197 Code of Criminal Procedure, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. In Subramanian Swamy v. Manmohan Singh and Anr.(2012) 3 SCC 64, at paragraph-74, it has been held that the provisions dealing with Section 197 Code of Criminal Procedure must be construed in such a manner as to advance the cause of honesty, justice and good governance. To quote:74. …Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.
  9. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only.

CONCLUSION

The Hon’ble Supreme Court of India has rightly decided the question relating to the need of sanction Under Section 197 of the Code of Criminal Procedure, 1973 is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

20 misused English words that make smart people look silly

20 misused English words that make smart people look silly

Have a look to see which of these commonly confused words throw you off.

Accept vs. Except

These two words sound similar but have very different meanings. Accept means to receive something willingly: “His mom accepted his explanation” or “She accepted the gift graciously.” Except signifies exclusion: “I can attend every meeting except the one next week.” To help you remember, note that both except and exclusion begin with ex.

Affect vs. Effect

To make these words even more confusing than they already are, both can be used as either a noun or a verb. Let’s start with the verbs. Affect means to influence something or someone; effect means to accomplish something. “Your job was affected by the organizational restructuring” but “These changes will be effected on Monday.” As a noun, an effect is the result of something: “The sunny weather had a huge effect on sales.” It’s almost always the right choice because the noun affect refers to an emotional state and is rarely used outside of psychological circles: “The patient’s affect was flat.”

Lie vs. Lay

We’re all pretty clear on the lie that means an untruth. It’s the other usage that trips us up. Lie also means to recline: “Why don’t you lie down and rest?” Lay requires an object: “Lay the book on the table.” Lie is something you can do by yourself, but you need an object to lay. It’s more confusing in the past tense. The past tense of lie is—you guessed it—lay: “I lay down for an hour last night.” And the past tense of lay is laid: “I laid the book on the table.”

Bring vs. Take

Bring and take both describe transporting something or someone from one place to another, but the correct usage depends on the speaker’s point of view. Somebody brings something to you, but you take it to somewhere else: “Bring me the mail, then take your shoes to your room.” Just remember, if the movement is toward you, use bring; if the movement is away from you, use take.

Ironic vs. Coincidental

A lot of people get this wrong. If you break your leg the day before a ski trip, that’s not ironic—it’s coincidental (and bad luck). Ironic has several meanings, all of which include some type of reversal of what was expected. Verbal irony is when a person says one thing but clearly means another. Situational irony is when a result is the opposite of what was expected. O. Henry was a master of situational irony. In his famous short story The Gift of the Magi, Jim sells his watch to buy combs for his wife’s hair, and she sells her hair to buy a chain for Jim’s watch. Each character sold something precious to buy a gift for the other, but those gifts were intended for what the other person sold. That is true irony. If you break your leg the day before a ski trip, that’s coincidental. If you drive up to the mountains to ski, and there was more snow back at your house, that’s ironic.

Imply vs. Infer

To imply means to suggest something without saying it outright. To infer means to draw a conclusion from what someone else implies. As a general rule, the speaker/writer implies, and the listener/reader infers.

Nauseous vs. Nauseated

Nauseous has been misused so often that the incorrect usage is accepted in some circles. Still, it’s important to note the difference. Nauseous means causing nausea; nauseated means experiencing nausea. So, if your circle includes ultra-particular grammar sticklers, never say “I’m nauseous” unless you want them to be snickering behind your back.

Comprise vs. Compose

These are two of the most commonly misused words in the English language.Comprise means to include; compose means to make up. It all comes down to parts versus the whole. When you use comprise, you put the whole first: “A soccer game comprises (includes) two halves.” When you use compose, you put the pieces first: “Fifty states compose (make up) the United States of America.”

Farther vs. Further

Farther refers to physical distance, while further describes the degree or extent of an action or situation. “I can’t run any farther,” but “I have nothing further to say.” If you can substitute “more” or “additional,” use further.

Fewer vs. Less

Use fewer when you’re referring to separate items that can be counted; use less when referring to a whole: “You have fewer dollars, but less money.”

Bringing it all together

English grammar can be tricky, and, a lot of times, the words that sound right are actually wrong. With words such as those listed above, you just have to memorize the rules so that when you are about to use them, you’ll catch yourself in the act and know for certain that you’ve written or said the right one.

Cognizance of offences by Magistrates-section-190 of Cr.pc

i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.