OM KR. DHANKARversusSTATE OF HARYANA & ANR.

                        [2012] 1 S.C.R. 1160


A                        OM KR. DHANKAR
                                  v.
                  STATE OF HARYANA & ANR.
                (Criminal Appeal No. 464 of 2012)
                        FEBRUARY 28, 2012
B
            [R.M. LODHA AND H. L. GOKHALE, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

c        s.397 - Revision - Order of Magistrate directing issuance
    of summons - Held: Is open to challenge under the revisional
    jurisdiction.

       s.197 - Prosecution of public servant - Requirement of
  previous sanction - Held: offence of cheating u/s 420 /PC
D cannot be regarded as having been committed by any public
  servant while acting or purporling to act in discharge of official
  duty - Therefore, sanction of competent authority uls 197
  CrPC was not required - Trial courl shall proceed as per the
  summoning order - Penal Code, 1860 - ss.420, 406 and 161.
E
       The appellant, a transporter, filed a criminal complaint
  against respondent no. 2 alleging that the latter with mala
  fide intention issued directions to the Inspector not to
  accept passengers tax at tax collection points; that when
F three of the buses of the appellant were impounded and
  he visited the office of respondent no. 2, the latter told him
  that he had not paid Rs. 2 lakhs which was due towards
  the passengers tax and asked him to deposit the amount
  at his residence. The appellant paid the amount to
G respondent no. 2 at his residence and the buses were
  released. The appellant alleged that respondent no. 2
  cheated him, embezzled the public money and also
  received illegal gratification. The trial court held that
  sufficient grounds existed to proceed against respondent
H                                1160
OM KR. DHANKAR v. STATE OF HARYANA & ANR.1161


no. 2 to be summoned to stand trial for offences             A
punishable u/ss 420, 406 and 161 IPC. Respondent no.
2 challenged the summoning order by filing a criminal
revision which was allowed by the Addi. Sessions Judge
holding that in the absence of sanction by competent
authority the summoning order could not have been            B
issued. The High Court dismissed the criminal revision
filed by the appellant.

     In the instant appeal filed by the complainant, the
questions for considerations before the Court were: (i)
whether the criminal revision petition against the order     C
of summoning is maintainable, and (ii) whether in the
facts and circumstances of the case, the sanction u/s
197 of the Code of Criminal Procedure was required.

      Allowing the appeal, the Court                         D
     HELD: 1. The revisional jurisdiction u/s 397 Cr.P.C.
was available to respondent No. 2 in challenging the order
of the Magistrate directing issuance of summons. [para
1OJ [1166-A]
                                                             E
     Rajendra Kumar Sitaram Pande and Others Vs. Uttam
                              =
and Another 1999 (1) SCR 580 1999 (3) SCC 134 ; Madhu
                                                   =
Limaye Vs. State of Maharashtra 1978 (1) SCR 749 1977
                                                   =
(4) SCC 551; V.C. Shukla Vs. State 1980 SCR 380 1980
Suppl. SCC 92; Amar Nath Vs. State of Haryana 1978 (1)       F
           =
SCR 222 1977 (4) SCC 137; K.M. Mathew Vs. State of
Kera/a 1991 (2) Suppl. SCR 364 = 1992 (1) SCC 217 - relied
on.

      Rakesh Kumar Mishra Vs. State of Bihar 2006 (1) SCR    G
124   =   2006 (1) sec 557 - held inapplicable.

     2. In the case of Prakash Singh Badal, this Court has
held that the offence of cheating u/s 420 IPC or for
that matter offences relateable to ss. 467, 468, 471 and
                                                             H
    1162   SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A 120-B IPC 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 view of the legal position, the
  Additional Sessions Judge and the High Court were not
B right in holding that for prosecuting respondent No. 2 for
  the offences for which the summoning order has been
  issued, the sanction of the competent authority u/s 197
  Cr.P.C. was required. [para 13-14] [1166-E-F; 1167-D-E]

C         Prakash Singh Badal and Another Vs. State of Punjab
                                               =
    and Others 2006 (10) Suppl. SCR 197 2007 (1) sec 1
    - relied on.

      2.2 The orders of the High Court and the Additional
  Sessions Judge are set aside. The order passed by the
D Judicial Magistrate in the criminal compfa'int is restored.
  The trial court shall proceed against respondent No. 2 as
  per the summoning order. [para 15] [1167-F-G]

                        Case Law Reference:
E    1999 (1) SCR 580              relied on              para 9
     1978 (1) SCR 749              relied on              para 9
     1980 SCR 380                  relied on              para 9
     1978 (1) SCR 222              relied on              para 9
F
     1991 (2) Suppl. SCR 364       relied on              para 9
     2006 (1) SCR 124              held inapplicable para 10
     2006 (10 ) Suppl. SCR 197 relied on                  para 13
G
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 464 of 2012.

      From the Judgment & Order dated 17.05.2007 of the High
  Court of Judicature of Punjab & Haryana at Chandigarh in
H Criminal Revision Petition No. 1583 of 2002.
 OM KR. DHANKAR v. STATE OF HARYANA & ANR.1163


      Dr. Sushil Balwada for the Appellant.                            A

     Anis Ahmed Khan, Shoaib Ahmad Khan, S.P. Singh,
 Chowdhari, Ramesh Kumar, Kamal Mohan Gupta for the
 Respondent.

      The Judgment of the Court was delivered by                       B

      R.M. LODHA, J. 1. Leave granted.

     2. The complainant is in appeal, by special leave,
 aggrieved by the order dated May 17, 2007 of the High Court           C
 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         D
 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             E
   complainant') filed a criminal complaint against the 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         F
   Nos. DL-1 P-7077 and DL-1 PA-3927 were impounded. On that
   date, the third bus bearing registration No. DL-1 PA-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          G
.. 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          H
    1164    SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A 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,
B 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
c of the respondent No. 2. The complainant paid' Rs. 50,000/- at
  about 9.30 p.m. at the 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
0
  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.
E
        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.

G      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
H by the competent authority, the summoning order could not
OM KR. DHANKAR v. STATE OF HARYANA & ANR.1165
              [R.M. LODHA, J.]

have been issued. The Additioral Sessions Judge, accordingly,          A
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
                                                                       8
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           C
(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   0
by a later decision of this Court in the case of Rajendra Kumar
Sitaram Pande and Others Vs. Uttam and Another'. In
Rajendra Kumar Sitaram Pande case (supra) this Court
considered earlier decisions of this Court in the cases of
Madhu Limaye Vs. State of Maharashtra 2, V.C. Shukla Vs.               E
State3 , Amar Nath Vs. State of Haryana 4 and K.M. Mathew
Vs. State of Kera/a 5 and it was held as under :-

      "6 ... This being the position of law, it would not be
      appropriate to hold that an order directing issuance of
      process is purely interlocutory and, therefore, the bar under    F
      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 ... ."
                                                                       G
1.   (1999) 3 sec 134.
2.   (1977) 4 sec 551.
3.   1980 supp. sec 92.
4.   (1977) 4 sec 137.
5.   (1992) 1 sec .                                                    H
     1166      SUPREME COURT REPORTS                [2012] 1 S.C.R.

A        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.
B
         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.
c
         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.
D
        13. In our view, tne controv&rsy 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 Others 7.
    Rakesh Kumar Mishra case (supra) was considered in
    Prakash Singh Badal case (supra) in para 49 vf the report.
E This Court thus held that the offence of cheating under Section
  420 or for that matter offences relateable to ~actions 467, 468,
  471 and 120-B can by 110 stretch of imagination by their very
  nature be regarded as having been committed by any p:iblic
  servant while acting or purporting to act in discharge of official
F 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
G         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
    s.   c2006) 1 sec 557.
H   7.   c2007) 1 sec 1.
OM KR. DHANKAR v. STATE OF HARYANA & ANR.1167
              [R.M. LODHA, J.]

       has held that the absence of search warrant was intricately     A
       (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. Refere·nce to a particular        B·
       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       C
     be regarded as having been ccmmitte:d by any public
   . servant while acting or purporting to act in discharge of
     official duty. lri such cases, official status only provides an
     opportunity for commission of the offence."
                                                                       D
     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 s•Jmmoning order has been issued, the sanction of
the competent authority under Section 197 Cr.P.C. is required.         E
The view of the Additional Sessions Judge and the High Court
is bad in law bi:iing co.1trary to the law laid down by this Court
in Prakash Singh Badal ~ase (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            F
allowed. The order dated May 17, 2007 of the Punjab and
Har1ana High Court and t~.e 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 Clc.ss, Gurgaon in the criminal complaint filed by the           G
present appellant is rtlstored. Trial court shall now proceed
against the respondent No. 2 as per the summoning order.

R.P.                                             Appeal allowed.
                                                                       H