Sunday, 27 March 2016

Whether prosecution U/S 354 of IPC can be stopped U/S 258 of CRPC for want of sanction U/S 197 of CRPC?

The learned Sessions Judge has also considered factual aspect
on merit. The complainant has made allegations that while snatching a
muster roll from her hand the accused intentionally touched her breast
and her right hand. I do not want to go into the merits and I restrain
myself to assessing the deposition of the complainant and
contradictions therein, if any, as the matter is still pending before the
learned Magistrate. I only hold that act alleged cannot be considered as
the act done in the discharge of the official duty. The allegations made
are unconnected with the function or the job or the duty of the
respondent/accused. A view taken by the learned Sessions Judge is
therefore not correct, but the findings given by the learned Magistrate
while rejecting the application under Section 258 on the ground that
sanction under Section 197 is required are correct and therefore I am
inclined to set aside the order passed by he learned Sessions Judge
and uphold the order passed by the learned Magistrate. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.29 OF 2012
State through Public Prosecutor

V/s
Shri Ulhas Kadam,

 CORAM : MRS.MRIDULA BHATKAR, J.
 DATE: 25th FEBRUARY, 2014
Citation;2016 CRLJ(NOC)68 Bom

In this appeal, the appellant/State has challenged the judgment
and order dated 29/06/2010 passed by the learned Sessions Judge,
Panaji thereby setting aside the order dated 9/12/2009 passed by the
Judicial Magistrate First Class, Panaji, dismissing the application for an
acquittal under Section 258 of the Criminal Procedure Code filed by the
respondent.
2. It is the case of the prosecution that a complaint was lodged by
the complainant/victim for sexual assault under Section 354 of the
Indian Penal Code against her superior. The alleged act of sexual
harassment has taken place at the work place. Pursuant to the
complaint offence was registered against the respondent/accused. Plea
was recorded, he pleaded not guilty, trial commenced and the
complainant/victim tendered evidence and also was cross-examined by
the accused. After completion of her evidence, an application under
Section 258 of the Criminal Procedure Code praying stoppage of
proceedings was moved on 11/11/2009 by the respondent. The reason
given in the said application was that the alleged act has been
committed by the accused while acting or purporting to act in the
discharge of his official duty as Registrar of Administrative Tribunal and
of Cooperative Tribunal. Therefore, previous sanction under section
197 of the Criminal Procedure Code was necessary for the prosecution
and therefore prayer was made to stop the proceedings under Section
258 of the Criminal Procedure Code as no previous sanction under
Section 197 has been obtained to prosecute the accused who is a
public servant, in the government employment. The said application
was rejected by the learned Magistrate. The learned Magistrate held
that the act of the accused does not fall within the ambit and scope of
expression 'Official Duty'. The said order was challenged by the
appellant/accused before the learned Sessions Court in the revision.
The learned Sessions Judge allowed the revision petition, set aside the
order passed by the learned Magistrate and passed the order that
without prejudice to the rights of the respondent/State to seek prior
sanction for the prosecution of the accused if deemed fit in the
circumstances of the case. Being aggrieved by the said order, the State
has filed this appeal.
3. The learned Prosecutor has submitted that the order passed by
the learned Magistrate was correct and the view taken by the learned
Judge of the Sessions Court is erroneous and her order is to be set
aside. She submitted that it is a case of sexual assault under Section
354 of the Indian Penal Code and the alleged act done by the
accused/respondent has no concern with the discharge of his official
duty and therefore no sanction under Section 197 of the Criminal
Procedure Code is required to prosecute the respondent/accused.
4. The learned Counsel for the respondent/accused, at the outset,
challenged the maintainability of this Criminal Appeal. He pointed out
that earlier the appellant/State has filed revision application challenging
the same order by the Additional Sessions Judge and the said revision
application was withdrawn. Thereafter, this appeal is filed. It was
argued that the learned Sessions Judge by the impugned order has
neither discharged nor acquitted the accused and has only allowed the
revision and stopped the proceedings with liberty to obtain necessary
sanction and against such order appeal does not lie.
5. Before going to the other aspects and the merit of the appeal on
the point of sanction under Section 197 of the Criminal Procedure Code
it is necessary to consider whether the order passed under Section 258
is appealable or not. The impugned application which is marked as
Exhibit B/17 dated 11/11/2009 was made under Section 258 of the
Criminal Procedure Code. A prayer was made that the proceedings be
stopped under Section 258 of the Criminal Procedure Code. In the
revision which was preferred by him before the learned Sessions Judge
in prayer clause A he had mentioned that the application filed under
Section 258 of the Criminal Procedure Code be allowed. Section 258 of
the Criminal Procedure Code falls under Chapter 20 in respect of the
trial of summons cases by a Magistrate. Section 354 of the Indian
Penal Code prior to amendment was a summons case as the
punishment was given up to two years (prior to amendment). Section
258 empowers the Court to stop the proceedings in certain cases and
reads thus:
258 : Power to stop proceedings in certain cases
– In any summons-case instituted otherwise than
upon complaint, a Magistrate of the first class or, with
the previous sanction of the Chief Judicial Magistrate,
any other Judicial Magistrate, may, for reasons to be
recorded by him, stop the proceedings at any stage
without pronouncing any judgment and where such
stoppage of proceedings is made after the evidence
of the principal witnesses has been recorded,
pronounce a judgment of acquittal, and in any other
case, release the accused, and such release shall
have the effect of discharge.
6. The learned Magistrate can stop the proceedings at any stage
without pronouncing any judgment for the reasons recorded by him. If
at all he is empowered to stop the proceedings even after the evidence
of the principal witnesses has been recorded than to pronounce a
judgment of acquittal and in any other cases to release all the accused
shall have the effect of the discharge. In the case in hand, the principal
witness i.e. the victim was examined by the prosecution and crossexamined
by the defence. Thereafter, an application under Section 258
was moved. Thus, the respondent/accused has requested the Court to
stop the proceedings and pronounce the judgment of acquittal as
necessary sanction under Section 197 of the Criminal Procedure Code
was not obtained. After receiving such application under Section 258,
the learned Magistrate has to decide the said application either by
rejecting it on the grounds given or has power to stop the proceedings
in the midst of the trial and after considering the evidence of the
principal witness which is vital but inadequate to prove the guilt of the
accused then to acquit the accused by pronouncing the judgment.
Thus, it empowers the Court to dispose of the matter without recording
the evidence of the other witnesses. The Court may opine that
evidence of other witnesses has no bearing while deciding the matter
and the evidence of the principal witness is sufficient to decide the case
and therefore judgment of acquittal. Thus, after receiving application
under Section 258 of the Criminal Procedure Code the Court can
dispense with the evidence of the other witnesses or Court may reject
the application, record evidence fully and convict the accused, but this
is an enabling provision for a Judge to pronounce the judgment of the
acquittal with a view to curtail a period of trial and also it may save the
accused to undergo a trouble and humiliation of the entire trial. Thus,
once the application is made under Section 258 and if the accused is
acquitted then that order is appealable. In the present case, the learned
Magistrate has rejected the application and therefore that being an
interim order a revision was filed before the Sessions Court by the
accused. However, the Sessions Judge has entertained that revision
petition and has considered how the application made under Section
258 of the Criminal Procedure Code on the point of absence of requisite
sanction was legal and considering the evidence the order passed by
the learned Magistrate was quashed and set aside and revision was
allowed. In the said order, the learned Sessions Judge has not used
the words 'accused is acquitted'. However, she has set aside the order
passed by the learned Magistrate on the application made under
Section 258 of the Criminal Procedure code. The learned Sessions
Judge has formulated the point in respect of act done in official capacity
and gave finding in affirmative. In the application under Section 258 of
the Criminal Procedure Code the ground was made only of the absence
of requisite sanction. Thus, by setting aside the said order, relief that
the prayer made in application under Section 258 is granted. Thus, by
setting aside the order passed by the learned Magistrate, the learned
Sessions Judge has in fact passed the order of acquittal by allowing the
application under Section 258 of the Criminal Procedure Code.
However, the learned Sessions Judge has directed that without
prejudice to the rights of the State, the State can obtain sanction against
the respondent/accused if deemed fit. The directions given by the
learned Sessions Judge are contradictory and confusing.
7. Under Section 258, the Judge has power to stop the proceedings
at any stage. However, the Court cannot just stop the proceedings.
The power to stop the proceedings is to enable the Judge to pronounce
the judgment of acquittal or release. In the section, the conjunctive
'and' is used in Section 258. It attributes two actions to the learned
Magistrate i.e. (i) to stop the proceedings and, (ii) to pass the order of
discharge and where the evidence of the principal witness is recorded
then to declare the judgment of acquittal. The Court cannot only stop
the proceedings and not to take further action, but stoppage of
proceedings without any reason will be contrary to the provisions of
Section 309 of the Criminal Procedure Code which directs the Trial
Court that the proceedings shall continue day to day until all the
witnesses have been examined. The learned Sessions Judge did not
take into account that Section 258 is to be invoked to its entirety and
once the Section is invoked under Section 258 by the learned
Magistrate, then it should give only result i.e. either acquittal or
discharge. If such application under Section 258 is made requesting
the Court to invoke the section and use powers under Section 258 and
if further evidence is material and is required to assess the evidence to
establish the case of the prosecution then the Court may refuse to use
the powers under Section 258. In the present case, the learned JMFC
has declined to use the power under Section 258. However, the
learned Sessions Judge has set aside the order passed by the learned
Magistrate and has allowed the application under Section 258 and has
allowed the revision where the prayer was made that the application of
the accused moved under Section 258 is to be allowed. Therefore, the
learned Sessions Judge has committed an error in passing the
operative order on one hand allowing the application under Section 258
and on the other hand directing the prosecution to obtain the sanction if
it is necessary. If at all the application under Section 258 is allowed
then necessarily it should result into either discharge or the acquittal.
The Judge cannot travel half way and just stop the proceedings and
give further directions under the said Section. Therefore, if the
application is allowed under Section 258 then as it should result into
acquittal, then if the directions obtaining sanction under Section 197 of
Criminal Procedure Code if followed by the prosecution then the case
cannot be reopened afresh because that will be putting the accused on
trial again. Principle of double jeopardy strictly does not allow to do so.
Therefore, the orders passed by the learned Sessions Judge are not in
consonance with the purport of Section 258 of the Criminal Procedure
Code. The Judge has passed an ambiguous order and therefore the
order needs to be set aside. If by this order, relief is granted under
Section 258 of the Criminal Procedure Code then there should be order
of acquittal or discharge in unequivocal words and no further directions
can be given to the prosecution.
8. The learned Sessions Judge has also considered factual aspect
on merit. The complainant has made allegations that while snatching a
muster roll from her hand the accused intentionally touched her breast
and her right hand. I do not want to go into the merits and I restrain
myself to assessing the deposition of the complainant and
contradictions therein, if any, as the matter is still pending before the
learned Magistrate. I only hold that act alleged cannot be considered as
the act done in the discharge of the official duty. The allegations made
are unconnected with the function or the job or the duty of the
respondent/accused. A view taken by the learned Sessions Judge is
therefore not correct, but the findings given by the learned Magistrate
while rejecting the application under Section 258 on the ground that
sanction under Section 197 is required are correct and therefore I am
inclined to set aside the order passed by he learned Sessions Judge
and uphold the order passed by the learned Magistrate. It is made
clear that this Court has not expressed any view in respect of the merits
of the matter. The learned Magistrate is expected to assess the
evidence properly and decide the matter on merits. Further, it is
clarified that this application under Section 258 made by the
applicant/accused only on the ground that sanction under Section 197
of the Criminal Procedure Code is required and no other ground in
respect of the quality or adequacy of the evidence of the complainant
was taken. The learned Counsel for the respondent/accused at this
stage submits that as earlier application under Section 258 of Criminal
Procedure Code was made solely on the ground of absence of requisite
sanction under Section 197 of the Criminal Procedure Code,
respondent/accused may be given liberty to make another application
under Section 258 of the Criminal Procedure Code on the ground of the
quality and inadequacy of the evidence of the complainant/victim as it is
not found sufficient to prove the ingredients under Section 254 of the
Indian Penal Code. Such liberty can be granted. Hence, I pass the
following order:
(a) The order passed by the learned Sessions Judge dated
29/06/2010 is set aside.
(b) The order passed by the learned Magistrate, Panaji is
maintained.
(c) Liberty to move the application under Section 258 of the
Criminal Procedure Code on any other ground if
respondent/accused thinks fit.
(d) The Criminal Appeal stands disposed of.
(MRS.MRIDULA BHATKAR, J.)
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