Criminal Appeal No. 29 of 2012

25th February, 2014.

Petitioner Counsel: Ms. M. PINTO
Respondent Counsel: Shri ROHIT BRAS DE SA

JUDGMENT

JUDGMENT :- 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.

Appeal allowed.