Francisco Xavier @ Mickky Pacheco Vs. State of Goa, by the Public Prosecutor and Others - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 197 - indian penal code, 1860 - section 323, sections 342, section 353, section 504 -  probation of offenders act, 1958 - section 3 - incident of slapping – order of conviction – alteration of order of conviction and release on admonition challenged -fir was lodged by an complainant/employee of government, against the then minister for offences punishable under sections 342, 353 and 504 of ipc, on account of incident of slapping said employee in the chamber of respondent/accused - statements of various witnesses were recorded and charge sheet was filed and magistrate convicted respondent/accused only for offence punishable under section 353 of ipc – said judgment and order of conviction was challenged in criminal appeal by respondent/accused before sessions judge, who partly allowed appeal – so, respondent preferred criminal revision application, which was also partly allowed and conviction of respondent for offence punishable under section 353 of ipc was brought down to section 323 of ipc and instead of sentencing accused, he was released on 'admonition' under section 3 of the act, 1958 – hence instant petition issue is – whether order passed by sessions judge convicting respondent for offence punishable under section 353 of ipc to section 323 of ipc and instead of sentencing him, releasing on 'admonition' under section 3 of the act, 1958 is maintainable and whether additional sessions judge has jurisdiction to entertain revision on order of assistant sessions judge court held - courts have distinguished between official duty of a minister and act done in exceeding such duty - though it is accepted that calling any government official, not under direct control of said minister, may be official duty and equally so reprimanding him for his alleged misconduct while doing government service, may also come under official duty of minister, assaulting said public servant would be covered under official duty of a minister - distinction is required to be made as to actions of an accused public servant directly falling within his official duty and then attracting penal provisions and actions of such public servant which are not within domain of his official duties - latter actions would definitely be such act of a public servant which still take away protection granted under section 197 of cr pc to a public servant - so, definitely act done by accused which is cogently established beyond reasonable doubt by way of substantive evidence of pw1 himself and supported by evidence of pw3 and pw5, is of such a nature which constitute an offence punishable under section 353 of ipc and take away protection given under section 197 of cr pc – therefore, revisional court had definitely fallen in an error in concluding that offence punishable under section 353 of ipc is not established and section 323 of ipc is only established - under suo motu writ, this error committed by revisional court is required to be undone and conviction of accused for offence punishable under section 353 of ipc is required to be restored - there is every reason to interfere with impugned judgment and order of revisional court and order of appellate court is required to be maintained - rule in suo motu writ petition is made absolute and impugned judgment and order of revisional court in criminal revision application is quashed and set aside and order of appellate court in criminal appeal is maintained – petition allowed. para 20, 23, 25 cases referred; air 1935 all 563 in the case of emperor v/s. bandhoo ahir and ors. criminal appeal no.1252 of 2010 in the case of state of a.p. v/s. gourishetty mahesh and ors. air 1957 sc 637 in the case of sarwan singh rattan singh v/s. state of punjab. 2014 (2) g.l.r. 54 in the case of mr. alizar pereira v/s. state of goa rakesh kumar mishra v/s. state of bihar and ors. reported in (2006) 1 scc 557 romesh lal jain v/s. naginder singh rana and ors. reported in (2006) 1 scc 294. 1. rule. rule made returnable forthwith. by consent of the parties both the writ petitions are taken for final hearing and disposed at the admission stage itself. 2. heard learned amicus curiae senior counsel shri s.d. lotlikar, appointed by this court to assist the court in suo motu writ petition no.1/2013. also heard learned senior counsel shri s.g. dessai in writ petition no.101/2013, representing the writ petitioner, the original accused. also heard prosecutors representing the state in both the writ petitions. 3. at the threshold, it must be mentioned that the writ petition no.1/2013 is a suo motu writ petition taken up by this court by giving suitable directions vide order dated 24/01/2013 (coram : f.m. reis, j.). said directions were given in two proceedings filed before this court, one being criminal revision application no.49/2012 and another one being criminal writ petition no.9/2013. in both these proceedings filed by the private individuals, not concerned with the matter, prayer was made to this court to suo motu take up the cognizance of the judgment passed by the learned additional sessions judge, south goa, margao in criminal revision application no.78/2011. when initially these proceedings were filed before this court, both the petitioners tried to persuade the court to interfere in the judgment passed by the additional sessions judge as mentioned above. however, apparently, both the petitioners had no locus standi and were not in any way concerned with the judgment which they wanted to challenge. therefore, they requested that this court should take suo motu cognizance and remedy the irregularities/illegalities committed while passing said judgment and order in criminal revision application no.78/2011. on those submissions, this court appointed learned senior counsel shri s.d. lotlikar as amicus curiae to address the court so also the learned public prosecutor was permitted to make the submissions. by detailed order dated 24/01/2013, this court entertained the request of the petitioner and passed appropriate orders. last three paragraphs read thus: “10. considering the said aspect, i find that both the above petitions are to be disposed of with direction to the learned registrar of this court to register a suo moto writ petition to consider the correctness, legality or propriety of the said judgment in the context of the matters referred to herein above in the said judgment dated 13.12.2012 passed by the learned additional sessions judge. the learned registrar is also directed to annex all the annexures of both the above petitions to the said suo moto writ petition. the respondents herein above mentioned shall be respondents to such petition. 11. rule. 12. shri lotlikar, learned senior counsel is appointed as amicus curiae in the said suo moto writ petition.” 4. certain factual position finally leading to the passing of the impugned judgment and order in the criminal revision application no.78/2011, is narrated hereunder with advantage so as to have proper perspective of the matter and in order to ascertain as to how the case was initiated against the present respondent no.1 in the suo motu writ petition no.1/2013 and who is also the writ petitioner in criminal writ petition no.101/2013. 5. on 15/07/2006, fir no.56/2006 was lodged by one kapil natekar, employee from government electrical department against then minister, shri fransciso xavier @ mickky pacheco. the said fir was lodged for the offences punishable under sections 342, 353 and 504 of indian penal code. said fir was lodged on account of the incident of slapping said kapil natekar in the chamber of the respondent/accused on 15/07/2006. kapil natekar was called to the office of the respondent/accused on account of the episode which occurred on the earlier day in the office of the electrical department of said complainant kapil natekar. on that earlier day, a telephone call was made by personal assistant of the respondent/accused, the call was not attended by anybody and, as such, the personal assistant of the respondent/accused became infuriated and, as such, the directions were given that the concerned officer on duty on that day not taking the telephone call, was to attend the office of the respondent/accused on 15/07/2006. accordingly, on 15/07/2006, said kapil natekar along with his one office colleague, pw-3 attended the office of respondent/accused. he arrived at the office in office car of the electrical department. the colleague of the complainant kapil natekar remained outside and complainant only entered the cabin of the respondent/accused. in the said cabin according to the complainant, the episode of abusing the complainant, manhandling him, throwing the desk calendar towards him and ultimately slapping him on his right cheek, happened and all this was done by the respondent/accused in presence of his personal assistant and one another lady who was unknown to the complainant. after the said incident of slapping, the complainant immediately left the chamber of the respondent/accused and came out and met his colleague, pw3 and they both went to the nearby office of the electrical department and met the higher officials and then decided to lodge a complaint and, accordingly, a complaint was lodged. during investigations statements of various witnesses were recorded and the charge sheet was filed being cr.no.117/s/2009/iii. the case was heard and learned judicial magistrate first class, margao convicted the respondent/accused only for the offence punishable under section 353 of indian penal code and sentenced him to suffer imprisonment of one year and pay fine of rs.5,000/-. this order was passed on 27/04/2011. 6. the above judgment and order of conviction was challenged in criminal appeal no.36/2011 by the present respondent/accused. it was taken before the assistant sessions judge–2 and the said appeal was partly allowed on 5/10/2011 and the sentence of one year was reduced to 6 months and the fine was reduced from rs.5,000/- to rs.1,500/-. 7. again being aggrieved by the order passed by the said appellate court, criminal revision application no.78/2011/ftc-i was preferred by the respondent/accused before sessions court, margao. said criminal revision was finally heard and disposed of by judgment and order dated 13/12/2012 by additional sessions judge, south goa, margao and was partly allowed. the conviction of the present respondent/accused for the offence punishable under section 353 of indian penal code was brought down to the conviction under section 323 of indian penal code and instead of sentencing the accused, he was released on 'admonition' under section 3 of probation of offenders act. this order passed by the additional sessions judge was challenged by independent persons, private citizens, not connected with the matter, in criminal revision and criminal writ petition as mentioned at the threshold of this order. consequently, both the said proceedings were taken up by this court and directions were given for initiating suo motu action for ascertaining the correctness, legality and propriety of the impugned judgment and order passed in said criminal revision. 8. now coming to the arguments advanced on behalf of the rival parties, firstly, the arguments advanced by amicus curiae, learned senior counsel shri lotlikar are discussed. his arguments are four fold. (a) firstly, whether the additional sessions judge has jurisdiction to entertain the revision on order of the assistant sessions judge. (b) secondly, when there are two consecutive orders passed by the earlier courts convicting the respondent/accused for the offence punishable under section 353 of indian penal code and maintaining the same, whether it was within the authority of the revisional court which has passed the impugned order, to bring down the conviction under section 353 to section 323 of indian penal code. (c) thirdly, that from the evidence brought before the trial court, the penal provisions of section 353 of indian penal code are spelt out and conviction under this section has been upheld by the first appellate court and, as such, the same is required to be maintained by interfering with the impugned order of the revisional court and, (d) fourthly, that the benefit of probation under section 3 of the probation of offenders act is unwarranted and in fact misplaced, more so when the offence punishable under section 353 of indian penal code is clearly spelt out from the factual position. 9. while elaborating the above four main points of the arguments learned amicus curiae further argued that there could not be repeated scanning of the evidence, even not at this stage before this court under the writ jurisdiction when the said evidence has been discussed before earlier courts and the conviction of the respondent/accused for the offence under section 353 of indian penal code has been maintained till the first appeal stage and then it is erroneously diluted to section 323 of indian penal code by the revisional court. it is further submitted that such repeated scanning and marshelling of the evidence is unwarranted and mainly when the writ petition preferred by the accused, i.e. criminal writ petition no.101/2013 is under the provisions of section 482 of criminal procedure code. it is further argued that the same arguments which were advanced before the three earlier courts are also advanced in the present matters on behalf of the respondent/accused and, as such, there cannot be a different view taken when the factual position has been accepted by all the earlier courts that the incident of slapping the original complainant at the hands of the present respondent/accused, in his chamber on the relevant day had in fact occurred. it is further pointed out that pw3 and pw5 have corroborated the latter part of the story inasmuch as the original complainant coming out from the chamber of respondent/accused in a disturbed condition, having tears in his eyes and having red face. it is further submitted that there is a ring of truth in the substantive evidence of complainant/pw1 on the actual factum of incident in the cabin of respondent/accused and this itself is rightly accepted by the trial court and the first appellate court and also even by the revisional court. now there is very little scope for this court under the provisions of section 482 of criminal procedure code to interfere in the factual position established i.e. the respondent/accused did slap complainant in his cabin. it is also argued by learned amicus curiae that this is in fact a second revision in disguise before this court by way of filing a criminal writ petition no.101/2013, though a colour is given as the writ petition, purported to be under section 482 of criminal procedure code, without there being any such specific mention in the petition anywhere. lastly, it is argued that section 197 of criminal procedure code is not applicable in the matter inasmuch as there was no requirement for taking sanction to prosecute the respondent/accused. 10. now, at this stage, the facts rather in detail giving rise to the filing of the complaint against the respondent/accused are narrated. pw1 complainant kapil natekar was working as a junior engineer at verna sub-division iii as on 14/07/2006. on that day, at about 11.30 a.m., this division office received a telephone call. one line staff received the call. the caller asked for the person dealing with the office files of that subdivision. the line staff who received the call informed that the concerned person was on enumeration duty and he will be available only on monday. on this the caller asked for another person to come on line. on this the line staff came to the complainant and asked him to speak on phone. on this the complainant asked the line staff for the identity but the caller did not disclose his identity. in the meanwhile, another line staff came and asked the caller. he also inquired about the identity of the caller. on this, the caller threatened the said line staff that he would slap him and still did not disclose the identity. on this said another line staff disconnected the phone. after 5 minutes another telephone call was received and this time, the caller disclosed his identity as one lyndon monteiro, then being personal assistant of present respondent/accused. on knowing this identity the complainant attended the caller. on that call, the complainant was made aware of his job requirements and duties, being a pubic servant. that time, the personal assistant of the accused directed the complainant to remain present in the office of the accused at betalbatim at 10.00 a.m. on the next date. even on the same day evening assistant engineer of that division also received a call from the office of the accused reiterating the directions given to the complainant to attend the office of the accused on 15/07/2006 at 10.00 a.m. as per these directions, the complainant attended the office of the accused on the next day along with his colleague, another junior engineer vithal barbosa (pw-3). they used the office jeep with driver pw-5 to reach the office of the accused. complainant/pw1 and his colleague pw-3 were made to sit in the waiting room. two persons who were earlier present in the cabin of the accused came out and then the complainant was called inside. pw-3 remained outside in the waiting room. that time the personal assistant of the accused and one lady entered the cabin. when the complainant sat on the chair accused started abusing him in konkani language in filthy words and threatened him and also represented that being government servant he should receive the telephone call irrespective of who is the caller. accused also threatened him to hit. by this time, accused lifted a desk calendar from his table and threw it on the person of the complainant. but the complainant avoided the hit and the calendar fell down. by this time, accused got up from his chair and closed the door of the cabin without locking or bolting and then came behind the complainant and slapped him on his right side face. also after this, the accused threatened the complainant and also used filthy language. complainant became frightened and seeing that he may be assaulted more, got up from his chair and left the office by opening the door of the cabin and thereafter the incident was narrated to his colleague who was waiting outside and they both left the office and went to the junior engineer. thereafter, complaint was lodged with colva police station. after lodging of the complaint, the complainant was referred to hospicio hospital for medical examination and after he returned back his supplementary statement was recorded. initially, the complainant gave a short and concise handwritten statement and it was treated as complaint and it is at exhibit 11c marked during the trial. 11. pw-2 is a pancha witness regarding scene of offence panchanama conducted on 17/06/2006. pw3 is the colleague of complainant and he deposed regarding latter part of the incident, after the complainant came out of the chamber of the accused. he also deposed regarding attending the office of the accused and waiting in the waiting room when the complainant had entered the chamber. according to this witness he also noticed that one women entered the cabin after the complainant entered. thereafter he heard sound of shouting from the cabin of the accused and after sometime he noticed that the complainant came out. he also found that the complainant was in tears which were coming out from the right eye of the complainant and there was some red mark near his right eye. pw4 is assistant engineer working in sub-division no.iii in verna. he confirmed as to receiving a call from the office of the accused on his mobile to attend the office of the accused on 15/07/2006 at 10.00 a.m. accordingly, he informed the complainant. also he granted permission to the complainant to attend the office of the accused on 15/07/2006. thereafter, this witness received a phone call from another junior engineer at 11.30 a.m. on 15/07/2006, that the accused had abused the complainant in filthy language and also slapped the complainant and as such this witness immediately informed the chief electrical engineer about the incident. this witness has produced the attendance role on 15/07/2006 to show that the complainant was on duty on that day and he also identified the log book entry of the motor jeep which was used by the complainant in reaching the office of the accused. pw5 is the driver, john d'costa who drove the complainant and pw3 in the office jeep on the day of the incident to the office of the accused. he also corroborated the story as to the complainant attending the office of the accused and thereafter coming back and that time he noticed some reddish marks near right side eye of the complainant and tears were coming from said eye. thereafter, this witness had dropped complainant and pw3 to colva police station and thereafter noticed that both these persons proceeding in police jeep and again returning back to the police station. pw6 is doctor, medical officer from hospicio hospital, margao. according to him, the complainant gave alleged history of assault at 10.55 on 15/07/2006. he found the complainant conscious and co-operative and there were no injuries and, as such, he did not give any treatment but he gave the injury certificate which is exhibit 32 taken on record during the trial. last prosecution witness is investigating officer. he recorded the complaint and sent the complainant to hospicio hospital, margao for medical examination and obtained injury certificate. he also recorded supplementary statement of the complainant on the evening of 15/07/2006. he conducted scene of offence panchanama and drew sketch. he recorded the statements of the witnesses. 12. now, coming back to the arguments advanced by learned amicus, firstly, it must be mentioned that though the first point was argued before this court as to whether learned additional sessions judge has jurisdiction to entertain the revision on the order of the assistant sessions judge, this aspect was rather conceded by him. though this first point was raised, it was further submitted that considering the judicial hierarchy of the criminal courts assistant sessions judge is inferior to the additional sessions judge and, as such, undoubtedly there are revisional powers to the additional sessions judge, who is equivalent to the sessions judge to revise the orders of the assistant sessions judge. as such, due to conceding of this first argument, it need not be discussed elaborately and it can be accepted that there was no illegality committed by the additional sessions judge in entertaining the revision against the order of assistant sessions judge. 13. so far as other two heads of the argument (b) and (c), are concerned it is strongly argued by learned amicus that there was nothing before the additional sessions judge to come to the conclusion as to non-establishment of the offence punishable under section 353 of indian penal code. this is more so when both the earlier courts have categorically come to this conclusion based on the material on record and mainly on the substantive evidence of pw-1 complainant, pw-3 his friend and pw-5 the driver. it is also submitted by learned amicus that the learned additional sessions judge had erred in coming to the conclusion that offence punishable under section 353 of indian penal code has not been spelt out. on this aspect, this court has gone through the substantive evidence of pw-2 complainant and also the evidence of pw3 and pw5. definitely, pw1 was public servant when the incident happened, being junior engineer working at verna, sub-division iii and the phone call was made by the personal assistant of the accused asking for certain information regarding the working of the electrical department. even the calling of pw-1 to the office of the accused on the next day was on account of the employment of pw1 as a government servant and, as such, in that capacity he attended the office of the accused. it can definitely be said that any mishandling or assault on a government servant while he is on duty and working under the colour of his office, as in the present case, attending the office of the accused being a junior engineer in the electrical department, is required to be viewed as the interference in the official duty of a public servant, thus attracting the penal provisions of section 353 of indian penal code. section 353 is reproduced hereunder with advantage: 353. assault or criminal force to deter public servant from discharge of his duty—whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. by pointing out the above definition and mainly placing much emphasis on the words “or in consequence of anything done” learned amicus submitted that whatever alleged conduct of the pw1 on the earlier day of the actual incident of assault was the cause for which he was called at the office by the accused and for same purpose he was manhandled and assaulted. in any event, further argued, there was use of criminal force by the accused against pw1. again on this aspect the definition of voluntarily causing hurt to deter public servant from his duty as contained in section 332 of indian penal code is of much relevance. said definition is produced hereunder: 332. voluntarily causing hurt to deter public servant from his duty—whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. this is important as the additional sessions judge though came to the conclusion of bringing the offence punishable under section 353 of indian penal code to section 323 of indian penal code, he ignored the provisions of this section 332 of indian penal code. when the additional sessions judge came to the conclusion of establishment of offence under section 323 of indian penal code which gives the punishment for voluntarily causing hurt, he ought to have considered that pw1 was a public servant and causing of hurt to him occurred only because of his conduct of the earlier date being such public servant. on this aspect following authority is cited by learned amicus: air 1935 all 563 in the case of emperor v/s. bandhoo ahir and ors. this authority is cited while canvassing the proposition that when any assault or hurt is caused to a public servant, when even the public servant was not discharging his duty, can also come under the clutches of section 353 of indian penal code when the assault was in consequence of anything done by public servant. 14. so far as last argument (d) as to benefit of probation given to the accused and releasing him on admonition, it is strongly submitted by amicus that definitely the fact situation did not warrant firstly lowering of the offence from section 353 to 323 of indian penal code and, secondly, taking away the substantive sentence of imprisonment and simply releasing the accused on admonition, even not taking any bond for good behaviour as contemplated by section 3 of probation of offenders act. 15. so far as recourse to section 482 of criminal procedure code to be taken by this court, following authority is cited by learned amicus: criminal appeal no.1252 of 2010 in the case of state of a.p. v/s. gourishetty mahesh and ors. this authority is cited on the scope of the court under section 482 of the criminal procedure code. contents of para no.12 of the said authority which were taken shelter of by the amicus are reproduced hereunder with advantage : “12. while exercising jurisdiction under section 482 of the code, the high court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. that is the function of the trial judge/court. it is true that court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, other wise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. at the same time, section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry. though high court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. for example, where the allegations made in the fir or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the fir do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the high court may step in. though the powers possessed by the high court under section 482 are wide, however, such power requires care/caution in its exercise. the interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. we make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the magistrate, it is open to the high court to quash the same in exercise of inherent powers under section 482.” 16. now coming to the arguments advanced on behalf of the accused, it must be said that the main thrust of the arguments advanced by learned counsel for the accused was on non-examination of the personal assistant of the accused and non-examination of one more lady who was admittedly present in the cabin of the accused during the alleged incident. it is brought to the notice of this court that both these witnesses were cited as prosecution witnesses in the charge sheet but they were not brought before the court for giving their evidence. by pointing out this it is submitted that the adverse inference is required to be drawn against the case of prosecution. to further this argument it is submitted that the prosecution should not have kept back these witnesses as prosecution is duty bound to bring all the available material before the court in order to bring forth the truth in the matter. during the arguments, learned senior counsel shri s.g. dessai for the accused placed reliance on the following authority: air 1957 sc 637 in the case of sarwan singh rattan singh v/s. state of punjab. by taking shelter of the ratio propounded by the above authority, it is strongly submitted on behalf of the accused that the prosecution is duty bound to establish its case positively and the evidence produced by the prosecution must be legal, reliable and unimpeachable. in furthering his arguments, it is brought to the notice of this court that the prosecution has not examined the personal assistant of the accused and also one more lady present during alleged incident and, as such, for want of their evidence the case of the prosecution is doubtful and the only evidence of pw1, the injured cannot be considered as a trustworthy. by pointing out the authority cited above, it is strongly argued on behalf of the accused that the story of the prosecution must be substantiated by the evidence so as to come to the conclusion that 'it must be true' and not that 'it may be true'. it is submitted that there is inevitably a long distance to travel between 'may be true' and 'must be true' and the whole of its distance must be covered by legal, reliable and unimpeachable evidence. 17. on the above aspect, it must be said that all the 3 earlier courts have discussed this aspect in detail and repudiated these arguments mentioning that prosecution can choose the witnesses to be examined and if it is found that the witnesses examined are supporting the case of the prosecution then non-examination of said other witnesses may not vitiate the case of prosecution, if the same is otherwise established. 18. another argument on behalf of the accused is that when there is an acquittal of the accused for the offences punishable under section 342 and 504 of indian penal code, there could not have been conviction even for the offence punishable under section 323 of indian penal code, for the reason that the acquittal for the offences under section 342 and 504 of indian penal code was on the marshelling of some circumstances. on this aspect following authority is cited on behalf of learned senior counsel for the accused: 2014 (2) g.l.r. 54 in the case of mr. alizar pereira v/s. state of goa. the shelter of the above authority was taken for canvassing the proposition on behalf of the accused that the conviction of the accused under section 323 of indian penal code must fail for want of any specific charge framed under such section. it is further submitted that admittedly the charge was only for section 353 of indian penal code and at no stage the specific charge under section 323 of indian penal code was framed. this argument cannot sustain in law inasmuch as requirement of the establishment of section 342 and 504 is different than establishment of the offence under section 353 and 323. so far as section 342 of indian penal code is concerned, it requires wrongful confinement of a person and so far as section 504 is concerned it requires intentional insult thereby giving provocation to a person to break the public peace or to commit any other offence. at this juncture it must be mentioned that though there is acquittal under section 342 and 504 to indian penal code, this acquittal has not been challenged by the state. moreover, considering special circumstances under which pw1 was in the cabin of accused who was then minister, in the considered opinion of this court there was nothing to reagitate this issue regarding acquittal under section 342 and section 504 of indian penal code. 19. lastly, it is argued that sanction under section 197 of criminal procedure code was must, prior to prosecuting the accused in this matter. prior to adverting to the arguments advanced by learned senior counsel shri dessai for the accused, the provisions of section 197 of criminal procedure code relevant for the present matter, are reproduced hereunder: 197. prosecution of judges and public servants. (1) when any person who is or was a judge or magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the union, of the central government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a state, of the state government: what is important from the above definition is that in order to attract the provisions of section 197 of criminal procedure code, the act which constitutes offence must be reasonably connected to the official duties of a public servant or on the said act which constitutes that an offence was done in discharge of his official duty. protection available under section 197 of criminal procedure code is available only when the alleged act done by public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing an objectionable act. therefore, the concept of section 197 does not get immediately attracted on the institution of a complained case. these are the observations of the hon'ble apex court in rakesh kumar mishra v/s. state of bihar and ors. reported in (2006) 1 scc 557. in other words, it must be mentioned that the sanction is required to be obtained when the offence complained of is attributable to the discharge of the public duty of the accused or has attracted nexus there with. the sanction is not necessary when the offence complained of has nothing to do with discharge of his duty. these are the observations of the hon'ble apex court in romesh lal jain v/s. naginder singh rana and ors. reported in (2006) 1 scc 294. 20. on the above aspect, now coming to the arguments advanced on behalf of the accused, it is strongly submitted that the accused had called the complainant to his chamber and had reprimanded him and in fact the accused was authorised to do so being a minister and the complainant being a government servant working in electrical department. it is also argued that under this official capacity the accused had called the public servant/complainant in his chamber and questioned him. during this process, apparently, the incident of slapping the complainant is alleged against the accused. by pointing out this, it is further argued that the said alleged act of slapping the complainant was the follow up action of the official duty of the accused being a minister. it is further argued that slapping of a person being an offence, this part of the incident attracts penal consequence, if it is established by cogent evidence and in that event it being an offence done during official duty of the accused, sanction under section 197 of criminal procedure code is must. on this aspect, the reasoning given by the earlier courts is gone through. the courts have distinguished between the official duty of a minister and the act done in exceeding such duty. in the considered opinion of this court, though for the sake of argument it is accepted that calling any government official, though not under direct control of the said minister, may be the official duty and equally so reprimanding him for his alleged misconduct while doing the government service, may also come under the official duty of the minister, it would be farfetched to say that assaulting said public servant would be covered under the official duty of a minister. definitely, the distinction is required to be made as to the actions of an accused public servant directly falling within his official duty and then attracting the penal provisions and the actions of such public servant which are not within the domain of his official duties. the latter actions would definitely be such act of a public servant which still take away the protection granted under section 197 of criminal procedure code to a public servant. in the considered opinion of this court, definitely the act done by the accused and which is cogently established beyond reasonable doubt by way of substantive evidence of pw1 himself and supported by the evidence of pw3 and pw5, is of such a nature which constitute an offence punishable under section 353 of indian penal code and take away the protection given under section 197 of criminal procedure code. again on this aspect, it must be said that the revisional court had definitely fallen in an error in coming to the conclusion that offence punishable under section 353 of indian penal code is not established and what is established is only the offence punishable under section 323 of indian penal code. under the suo motu writ this error committed by the revisional court is required to be undone and the conviction of the accused for the offence punishable under section 353 of indian penal code is required to be restored. 21. now coming to another aspect as to whether it was just and proper and appropriate under the established facts and circumstances, for the revisional court to take away the substantive sentence imposed on the accused by the first appellate court and then to release him only on admonition under section 3 of the probation of offenders act, 1958. 22. on this aspect, learned amicus curiae has vehemently submitted that considering the standing of the accused being a minister and considering the establishment of the offence punishable under section 353 of indian penal code and still for that matter, if the said offence was diluted to section 323 of indian penal code, it was not in the fitness of the situation for the revisional court to release the accused on simple admonition without even there being any bond to be taken under section 4 of the probation of offenders act. alternatively, it is argued and this argument was emphasized by learned amicus that it was definitely not warranted by the revisional court to dilute the offence from section 353 of the indian penal code to section 323 of indian penal code and then again to release the accused on admonition. 23. counter to the above arguments learned senior counsel for the accused submitted that even for the conviction under section 353 of indian penal code the relief under the probation of offenders act can be given mainly when the maximum punishment awarded for section 353 is up to two years imprisonment. there is no dispute on the said quantum of punishment awardable under section 353 of indian penal code and applicability of provisions of probation of offenders act. only the question is that whether the propriety demands for taking recourse of such course of action for awarding only admonition. it must not be lost site of that if a person is found guilty of an offence punishable with imprisonment for not more than two years under the indian penal code or any other law and when there is no previous conviction proved against him, the court can release the accused on probation of good conduct, under section 4 or instead, release him after due admonition, but for that purpose there must be a regard to the circumstances of the case and the nature of offence and the character of the offender and it must be expedient to do so under those special circumstances. looking to the present matter at hand and considering the evidence adduced by the prosecution and considering the circumstances under which the complainant was called at the office of the accused and was manhandled and slapped when the accused was holding a very high position of dignity, it was not warranted by the original court to take recourse to the provisions of probation of offenders act. in any event, under the suo motu writ jurisdiction and in disposing of the writ petition filed by the accused purportedly by taking shelter of provisions of section 482 of criminal procedure code, there is every reason to interfere with the impugned judgment and order of the revisional court dated 13/12/2012 and that the order of the first appellate court dated 5/10/2011 is required to be maintained. 24. before parting with this judgment this court expresses word of appreciation for the assistance given by learned senior counsel shri s.d. lotlikar, appointed as amicus and he has ably assisted the court on various legal issues involved in the matter. 25. as such, both the present matters are disposed of with following order: order (i) rule in suo motu writ petition no.1/2013 is made absolute and, consequently, the impugned judgment and order of the revisional court in criminal revision application no.78/2011 dated 13/12/2012 is quashed and set aside and the order of the first appellate court in criminal appeal no.36/2011 dated 5/10/2011 is hereby maintained. (ii) rule in criminal writ petition no.101/2013 is discharged. (iii) time is given to the respondent no.2 in suo motu writ petition no.1/2013 to surrender before the appropriate court within two weeks.

Judgment:

1. Rule. Rule made returnable forthwith. By consent of the parties both the writ petitions are taken for final hearing and disposed at the admission stage itself.

2. Heard learned Amicus Curiae Senior Counsel Shri S.D. Lotlikar, appointed by this Court to assist the Court in Suo Motu Writ Petition No.1/2013. Also heard learned Senior Counsel Shri S.G. Dessai in Writ Petition No.101/2013, representing the writ petitioner, the original accused. Also heard Prosecutors representing the State in both the writ petitions.

3. At the threshold, it must be mentioned that the Writ Petition No.1/2013 is a Suo Motu Writ Petition taken up by this Court by giving suitable directions vide order dated 24/01/2013 (Coram : F.M. Reis, J.). Said directions were given in two proceedings filed before this Court, one being Criminal Revision Application No.49/2012 and another one being Criminal Writ Petition No.9/2013. In both these proceedings filed by the private individuals, not concerned with the matter, prayer was made to this Court to Suo Motu take up the cognizance of the judgment passed by the learned Additional Sessions Judge, South Goa, Margao in Criminal Revision Application No.78/2011. When initially these proceedings were filed before this Court, both the petitioners tried to persuade the Court to interfere in the judgment passed by the Additional Sessions Judge as mentioned above. However, apparently, both the petitioners had no locus standi and were not in any way concerned with the judgment which they wanted to challenge. Therefore, they requested that this Court should take suo motu cognizance and remedy the irregularities/illegalities committed while passing said judgment and order in Criminal Revision Application no.78/2011. On those submissions, this Court appointed learned Senior Counsel Shri S.D. Lotlikar as amicus curiae to address the Court so also the learned Public Prosecutor was permitted to make the submissions. By detailed order dated 24/01/2013, this Court entertained the request of the petitioner and passed appropriate orders. Last three paragraphs read thus:

“10. Considering the said aspect, I find that both the above petitions are to be disposed of with direction to the learned Registrar of this Court to register a Suo Moto Writ Petition to consider the correctness, legality or propriety of the said judgment in the context of the matters referred to herein above in the said judgment dated 13.12.2012 passed by the learned Additional Sessions Judge. The learned Registrar is also directed to annex all the annexures of both the above petitions to the said Suo Moto Writ Petition. The respondents herein above mentioned shall be respondents to such petition.

11. Rule.

12. Shri Lotlikar, learned Senior Counsel is appointed as Amicus Curiae in the said Suo Moto Writ Petition.”

4. Certain factual position finally leading to the passing of the impugned judgment and order in the Criminal Revision Application no.78/2011, is narrated hereunder with advantage so as to have proper perspective of the matter and in order to ascertain as to how the case was initiated against the present respondent no.1 in the Suo Motu Writ Petition No.1/2013 and who is also the writ petitioner in Criminal Writ Petition No.101/2013.

5. On 15/07/2006, FIR No.56/2006 was lodged by one Kapil Natekar, employee from Government Electrical Department against then minister, Shri Fransciso Xavier @ Mickky Pacheco. The said FIR was lodged for the offences punishable under Sections 342, 353 and 504 of Indian Penal Code. Said FIR was lodged on account of the incident of slapping said Kapil Natekar in the chamber of the respondent/accused on 15/07/2006. Kapil Natekar was called to the office of the respondent/accused on account of the episode which occurred on the earlier day in the office of the electrical department of said complainant Kapil Natekar. On that earlier day, a telephone call was made by Personal Assistant of the respondent/accused, the call was not attended by anybody and, as such, the Personal Assistant of the respondent/accused became infuriated and, as such, the directions were given that the concerned officer on duty on that day not taking the telephone call, was to attend the office of the respondent/accused on 15/07/2006. Accordingly, on 15/07/2006, said Kapil Natekar along with his one office colleague, PW-3 attended the office of respondent/accused. He arrived at the office in office car of the electrical department. The colleague of the complainant Kapil Natekar remained outside and complainant only entered the cabin of the respondent/accused. In the said cabin according to the complainant, the episode of abusing the complainant, manhandling him, throwing the desk calendar towards him and ultimately slapping him on his right cheek, happened and all this was done by the respondent/accused in presence of his Personal Assistant and one another lady who was unknown to the complainant. After the said incident of slapping, the complainant immediately left the chamber of the respondent/accused and came out and met his colleague, PW3 and they both went to the nearby office of the electrical department and met the higher officials and then decided to lodge a complaint and, accordingly, a complaint was lodged. During investigations statements of various witnesses were recorded and the charge sheet was filed being Cr.No.117/S/2009/III. The case was heard and learned Judicial Magistrate First Class, Margao convicted the respondent/accused only for the offence punishable under Section 353 of Indian Penal Code and sentenced him to suffer imprisonment of one year and pay fine of Rs.5,000/-. This order was passed on 27/04/2011.

6. The above judgment and order of conviction was challenged in Criminal Appeal No.36/2011 by the present respondent/accused. It was taken before the Assistant Sessions Judge–2 and the said appeal was partly allowed on 5/10/2011 and the sentence of one year was reduced to 6 months and the fine was reduced from Rs.5,000/- to Rs.1,500/-.

7. Again being aggrieved by the order passed by the said appellate Court, Criminal Revision Application No.78/2011/FTC-I was preferred by the respondent/accused before Sessions Court, Margao. Said criminal revision was finally heard and disposed of by judgment and order dated 13/12/2012 by Additional Sessions Judge, South Goa, Margao and was partly allowed. The conviction of the present respondent/accused for the offence punishable under Section 353 of Indian Penal Code was brought down to the conviction under Section 323 of Indian Penal Code and instead of sentencing the accused, he was released on 'admonition' under Section 3 of Probation of Offenders Act. This order passed by the Additional Sessions Judge was challenged by independent persons, private citizens, not connected with the matter, in criminal revision and criminal writ petition as mentioned at the threshold of this order. Consequently, both the said proceedings were taken up by this Court and directions were given for initiating suo motu action for ascertaining the correctness, legality and propriety of the impugned judgment and order passed in said criminal revision.

8. Now coming to the arguments advanced on behalf of the rival parties, firstly, the arguments advanced by amicus curiae, learned Senior Counsel Shri Lotlikar are discussed. His arguments are four fold.

(a) Firstly, whether the Additional Sessions Judge has jurisdiction to entertain the revision on order of the Assistant Sessions Judge.

(b) Secondly, when there are two consecutive orders passed by the earlier Courts convicting the respondent/accused for the offence punishable under Section 353 of Indian Penal Code and maintaining the same, whether it was within the authority of the revisional Court which has passed the impugned order, to bring down the conviction under Section 353 to Section 323 of Indian Penal Code.

(c) Thirdly, that from the evidence brought before the trial Court, the penal provisions of Section 353 of Indian Penal Code are spelt out and conviction under this Section has been upheld by the first appellate Court and, as such, the same is required to be maintained by interfering with the impugned order of the revisional Court and,

(d) Fourthly, that the benefit of probation under Section 3 of the Probation of Offenders Act is unwarranted and in fact misplaced, more so when the offence punishable under Section 353 of Indian Penal Code is clearly spelt out from the factual position.

9. While elaborating the above four main points of the arguments learned amicus curiae further argued that there could not be repeated scanning of the evidence, even not at this stage before this Court under the writ jurisdiction when the said evidence has been discussed before earlier Courts and the conviction of the respondent/accused for the offence under Section 353 of Indian Penal Code has been maintained till the first appeal stage and then it is erroneously diluted to Section 323 of Indian Penal Code by the revisional Court. It is further submitted that such repeated scanning and marshelling of the evidence is unwarranted and mainly when the writ petition preferred by the accused, i.e. Criminal Writ Petition No.101/2013 is under the provisions of Section 482 of Criminal Procedure code. It is further argued that the same arguments which were advanced before the three earlier Courts are also advanced in the present matters on behalf of the respondent/accused and, as such, there cannot be a different view taken when the factual position has been accepted by all the earlier Courts that the incident of slapping the original complainant at the hands of the present respondent/accused, in his chamber on the relevant day had in fact occurred. It is further pointed out that PW3 and PW5 have corroborated the latter part of the story inasmuch as the original complainant coming out from the chamber of respondent/accused in a disturbed condition, having tears in his eyes and having red face. It is further submitted that there is a ring of truth in the substantive evidence of complainant/PW1 on the actual factum of incident in the cabin of respondent/accused and this itself is rightly accepted by the trial Court and the first appellate Court and also even by the revisional Court. Now there is very little scope for this Court under the provisions of Section 482 of Criminal Procedure Code to interfere in the factual position established i.e. the respondent/accused did slap complainant in his cabin. It is also argued by learned amicus curiae that this is in fact a second revision in disguise before this Court by way of filing a Criminal Writ Petition No.101/2013, though a colour is given as the writ petition, purported to be under Section 482 of Criminal Procedure Code, without there being any such specific mention in the petition anywhere. Lastly, it is argued that Section 197 of Criminal Procedure Code is not applicable in the matter inasmuch as there was no requirement for taking sanction to prosecute the respondent/accused.

10. Now, at this stage, the facts rather in detail giving rise to the filing of the complaint against the respondent/accused are narrated. PW1 complainant Kapil Natekar was working as a Junior Engineer at Verna sub-division III as on 14/07/2006. On that day, at about 11.30 a.m., this division office received a telephone call. One line staff received the call. The caller asked for the person dealing with the office files of that subdivision. The line staff who received the call informed that the concerned person was on enumeration duty and he will be available only on Monday. On this the caller asked for another person to come on line. On this the line staff came to the complainant and asked him to speak on phone. On this the complainant asked the line staff for the identity but the caller did not disclose his identity. In the meanwhile, another line staff came and asked the caller. He also inquired about the identity of the caller. On this, the caller threatened the said line staff that he would slap him and still did not disclose the identity. On this said another line staff disconnected the phone. After 5 minutes another telephone call was received and this time, the caller disclosed his identity as one Lyndon Monteiro, then being Personal Assistant of present respondent/accused. On knowing this identity the complainant attended the caller. On that call, the complainant was made aware of his job requirements and duties, being a pubic servant. That time, the Personal Assistant of the accused directed the complainant to remain present in the office of the accused at Betalbatim at 10.00 a.m. on the next date. Even on the same day evening Assistant Engineer of that division also received a call from the office of the accused reiterating the directions given to the complainant to attend the office of the accused on 15/07/2006 at 10.00 a.m. As per these directions, the complainant attended the office of the accused on the next day along with his colleague, another junior engineer Vithal Barbosa (PW-3). They used the office jeep with driver PW-5 to reach the office of the accused. Complainant/PW1 and his colleague PW-3 were made to sit in the waiting room. Two persons who were earlier present in the cabin of the accused came out and then the complainant was called inside. PW-3 remained outside in the waiting room. That time the Personal Assistant of the accused and one lady entered the cabin. When the complainant sat on the chair accused started abusing him in Konkani language in filthy words and threatened him and also represented that being Government servant he should receive the telephone call irrespective of who is the caller. Accused also threatened him to hit. By this time, accused lifted a desk calendar from his table and threw it on the person of the complainant. But the complainant avoided the hit and the calendar fell down. By this time, accused got up from his chair and closed the door of the cabin without locking or bolting and then came behind the complainant and slapped him on his right side face. Also after this, the accused threatened the complainant and also used filthy language. Complainant became frightened and seeing that he may be assaulted more, got up from his chair and left the office by opening the door of the cabin and thereafter the incident was narrated to his colleague who was waiting outside and they both left the office and went to the junior engineer. Thereafter, complaint was lodged with Colva Police Station. After lodging of the complaint, the complainant was referred to Hospicio hospital for medical examination and after he returned back his supplementary statement was recorded. Initially, the complainant gave a short and concise handwritten statement and it was treated as complaint and it is at exhibit 11C marked during the trial.

11. PW-2 is a pancha witness regarding scene of offence panchanama conducted on 17/06/2006. PW3 is the colleague of complainant and he deposed regarding latter part of the incident, after the complainant came out of the chamber of the accused. He also deposed regarding attending the office of the accused and waiting in the waiting room when the complainant had entered the chamber. According to this witness he also noticed that one women entered the cabin after the complainant entered. Thereafter he heard sound of shouting from the cabin of the accused and after sometime he noticed that the complainant came out. He also found that the complainant was in tears which were coming out from the right eye of the complainant and there was some red mark near his right eye. PW4 is Assistant Engineer working in sub-division No.III in Verna. He confirmed as to receiving a call from the office of the accused on his mobile to attend the office of the accused on 15/07/2006 at 10.00 a.m. Accordingly, he informed the complainant. Also he granted permission to the complainant to attend the office of the accused on 15/07/2006. Thereafter, this witness received a phone call from another Junior Engineer at 11.30 a.m. on 15/07/2006, that the accused had abused the complainant in filthy language and also slapped the complainant and as such this witness immediately informed the Chief Electrical Engineer about the incident. This witness has produced the attendance role on 15/07/2006 to show that the complainant was on duty on that day and he also identified the log book entry of the motor jeep which was used by the complainant in reaching the office of the accused. PW5 is the driver, John D'Costa who drove the complainant and PW3 in the office jeep on the day of the incident to the office of the accused. He also corroborated the story as to the complainant attending the office of the accused and thereafter coming back and that time he noticed some reddish marks near right side eye of the complainant and tears were coming from said eye. Thereafter, this witness had dropped complainant and PW3 to Colva Police Station and thereafter noticed that both these persons proceeding in police jeep and again returning back to the police station. PW6 is Doctor, Medical Officer from Hospicio hospital, Margao. According to him, the complainant gave alleged history of assault at 10.55 on 15/07/2006. He found the complainant conscious and co-operative and there were no injuries and, as such, he did not give any treatment but he gave the injury certificate which is Exhibit 32 taken on record during the trial. Last prosecution witness is Investigating Officer. He recorded the complaint and sent the complainant to Hospicio hospital, Margao for medical examination and obtained injury certificate. He also recorded supplementary statement of the complainant on the evening of 15/07/2006. He conducted scene of offence panchanama and drew sketch. He recorded the statements of the witnesses.

12. Now, coming back to the arguments advanced by learned amicus, firstly, it must be mentioned that though the first point was argued before this Court as to whether learned Additional Sessions Judge has jurisdiction to entertain the revision on the order of the Assistant Sessions Judge, this aspect was rather conceded by him. Though this first point was raised, it was further submitted that considering the judicial hierarchy of the criminal courts Assistant Sessions Judge is inferior to the Additional Sessions Judge and, as such, undoubtedly there are revisional powers to the Additional Sessions Judge, who is equivalent to the Sessions Judge to revise the orders of the Assistant Sessions Judge. As such, due to conceding of this first argument, it need not be discussed elaborately and it can be accepted that there was no illegality committed by the Additional Sessions Judge in entertaining the revision against the order of Assistant Sessions Judge.

13. So far as other two heads of the argument (b) and (c), are concerned it is strongly argued by learned amicus that there was nothing before the Additional Sessions Judge to come to the conclusion as to non-establishment of the offence punishable under Section 353 of Indian Penal Code. This is more so when both the earlier Courts have categorically come to this conclusion based on the material on record and mainly on the substantive evidence of PW-1 complainant, PW-3 his friend and PW-5 the driver. It is also submitted by learned amicus that the learned Additional Sessions Judge had erred in coming to the conclusion that offence punishable under Section 353 of Indian Penal Code has not been spelt out. On this aspect, this Court has gone through the substantive evidence of PW-2 complainant and also the evidence of PW3 and PW5. Definitely, PW1 was public servant when the incident happened, being Junior Engineer working at Verna, Sub-division III and the phone call was made by the Personal Assistant of the accused asking for certain information regarding the working of the electrical department. Even the calling of PW-1 to the office of the accused on the next day was on account of the employment of PW1 as a Government servant and, as such, in that capacity he attended the office of the accused. It can definitely be said that any mishandling or assault on a Government servant while he is on duty and working under the colour of his office, as in the present case, attending the office of the accused being a junior engineer in the electrical department, is required to be viewed as the interference in the official duty of a public servant, thus attracting the penal provisions of Section 353 of Indian Penal Code. Section 353 is reproduced hereunder with advantage:

353. Assault or criminal force to deter public servant from discharge of his duty—Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

By pointing out the above definition and mainly placing much emphasis on the words “or in consequence of anything done” learned amicus submitted that whatever alleged conduct of the PW1 on the earlier day of the actual incident of assault was the cause for which he was called at the office by the accused and for same purpose he was manhandled and assaulted. In any event, further argued, there was use of criminal force by the accused against PW1. Again on this aspect the definition of voluntarily causing hurt to deter public servant from his duty as contained in Section 332 of Indian Penal Code is of much relevance. Said definition is produced hereunder:

332. Voluntarily causing hurt to deter public servant from his duty—Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

This is important as the Additional Sessions Judge though came to the conclusion of bringing the offence punishable under Section 353 of Indian Penal Code to Section 323 of Indian Penal Code, he ignored the provisions of this Section 332 of Indian Penal Code. When the Additional Sessions Judge came to the conclusion of establishment of offence under Section 323 of Indian Penal Code which gives the punishment for voluntarily causing hurt, he ought to have considered that PW1 was a public servant and causing of hurt to him occurred only because of his conduct of the earlier date being such public servant. On this aspect following authority is cited by learned amicus:

AIR 1935 ALL 563 in the case of Emperor V/s. Bandhoo Ahir and Ors. This authority is cited while canvassing the proposition that when any assault or hurt is caused to a public servant, when even the public servant was not discharging his duty, can also come under the clutches of Section 353 of Indian Penal Code when the assault was in consequence of anything done by public servant.

14. So far as last argument (d) as to benefit of probation given to the accused and releasing him on admonition, it is strongly submitted by amicus that definitely the fact situation did not warrant firstly lowering of the offence from Section 353 to 323 of Indian Penal Code and, secondly, taking away the substantive sentence of imprisonment and simply releasing the accused on admonition, even not taking any bond for good behaviour as contemplated by Section 3 of Probation of Offenders Act.

15. So far as recourse to Section 482 of Criminal Procedure Code to be taken by this Court, following authority is cited by learned amicus: Criminal Appeal No.1252 of 2010 in the case of State of A.P. V/s. Gourishetty Mahesh and Ors.

This authority is cited on the scope of the Court under Section 482 of the Criminal Procedure Code. Contents of para no.12 of the said authority which were taken shelter of by the amicus are reproduced hereunder with advantage :

“12. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, other wise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry. Though High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482.”

16. Now coming to the arguments advanced on behalf of the accused, it must be said that the main thrust of the arguments advanced by learned Counsel for the accused was on non-examination of the Personal Assistant of the accused and non-examination of one more lady who was admittedly present in the cabin of the accused during the alleged incident. It is brought to the notice of this Court that both these witnesses were cited as prosecution witnesses in the charge sheet but they were not brought before the Court for giving their evidence. By pointing out this it is submitted that the adverse inference is required to be drawn against the case of prosecution. To further this argument it is submitted that the prosecution should not have kept back these witnesses as prosecution is duty bound to bring all the available material before the Court in order to bring forth the truth in the matter. During the arguments, learned Senior Counsel Shri S.G. Dessai for the accused placed reliance on the following authority:

AIR 1957 SC 637 in the case of Sarwan Singh Rattan Singh V/s. State of Punjab.

By taking shelter of the ratio propounded by the above authority, it is strongly submitted on behalf of the accused that the prosecution is duty bound to establish its case positively and the evidence produced by the prosecution must be legal, reliable and unimpeachable. In furthering his arguments, it is brought to the notice of this Court that the prosecution has not examined the Personal Assistant of the accused and also one more lady present during alleged incident and, as such, for want of their evidence the case of the prosecution is doubtful and the only evidence of PW1, the injured cannot be considered as a trustworthy. By pointing out the authority cited above, it is strongly argued on behalf of the accused that the story of the prosecution must be substantiated by the evidence so as to come to the conclusion that 'it must be true' and not that 'it may be true'. It is submitted that there is inevitably a long distance to travel between 'may be true' and 'must be true' and the whole of its distance must be covered by legal, reliable and unimpeachable evidence.

17. On the above aspect, it must be said that all the 3 earlier Courts have discussed this aspect in detail and repudiated these arguments mentioning that prosecution can choose the witnesses to be examined and if it is found that the witnesses examined are supporting the case of the prosecution then non-examination of said other witnesses may not vitiate the case of prosecution, if the same is otherwise established.

18. Another argument on behalf of the accused is that when there is an acquittal of the accused for the offences punishable under Section 342 and 504 of Indian Penal Code, there could not have been conviction even for the offence punishable under Section 323 of Indian Penal Code, for the reason that the acquittal for the offences under Section 342 and 504 of Indian Penal Code was on the marshelling of some circumstances. On this aspect following authority is cited on behalf of learned Senior Counsel for the accused:

2014 (2) G.L.R. 54 in the case of Mr. Alizar Pereira V/s. State of Goa.

The shelter of the above authority was taken for canvassing the proposition on behalf of the accused that the conviction of the accused under Section 323 of Indian Penal Code must fail for want of any specific charge framed under such section. It is further submitted that admittedly the charge was only for Section 353 of Indian Penal Code and at no stage the specific charge under Section 323 of Indian Penal Code was framed. This argument cannot sustain in law inasmuch as requirement of the establishment of Section 342 and 504 is different than establishment of the offence under Section 353 and 323. So far as Section 342 of Indian Penal Code is concerned, it requires wrongful confinement of a person and so far as Section 504 is concerned it requires intentional insult thereby giving provocation to a person to break the public peace or to commit any other offence. At this juncture it must be mentioned that though there is acquittal under Section 342 and 504 to Indian Penal Code, this acquittal has not been challenged by the State. Moreover, considering special circumstances under which PW1 was in the cabin of accused who was then minister, in the considered opinion of this Court there was nothing to reagitate this issue regarding acquittal under Section 342 and Section 504 of Indian Penal Code.

19. Lastly, it is argued that sanction under Section 197 of Criminal Procedure Code was must, prior to prosecuting the accused in this matter. Prior to adverting to the arguments advanced by learned Senior Counsel Shri Dessai for the accused, the provisions of Section 197 of Criminal Procedure Code relevant for the present matter, are reproduced hereunder:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

What is important from the above definition is that in order to attract the provisions of Section 197 of Criminal Procedure Code, the act which constitutes offence must be reasonably connected to the official duties of a public servant or on the said Act which constitutes that an offence was done in discharge of his official duty. Protection available under Section 197 of Criminal Procedure Code is available only when the alleged act done by public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing an objectionable act. Therefore, the concept of Section 197 does not get immediately attracted on the institution of a complained case. These are the observations of the Hon'ble Apex Court in Rakesh Kumar Mishra V/s. State of Bihar and Ors. reported in (2006) 1 SCC 557. In other words, it must be mentioned that the sanction is required to be obtained when the offence complained of is attributable to the discharge of the public duty of the accused or has attracted nexus there with. The sanction is not necessary when the offence complained of has nothing to do with discharge of his duty. These are the observations of the Hon'ble Apex Court in Romesh Lal Jain V/s. Naginder Singh Rana and Ors. reported in (2006) 1 SCC 294.

20. On the above aspect, now coming to the arguments advanced on behalf of the accused, it is strongly submitted that the accused had called the complainant to his chamber and had reprimanded him and in fact the accused was authorised to do so being a minister and the complainant being a Government servant working in electrical department. It is also argued that under this official capacity the accused had called the public servant/complainant in his chamber and questioned him. During this process, apparently, the incident of slapping the complainant is alleged against the accused. By pointing out this, it is further argued that the said alleged act of slapping the complainant was the follow up action of the official duty of the accused being a minister. It is further argued that slapping of a person being an offence, this part of the incident attracts penal consequence, if it is established by cogent evidence and in that event it being an offence done during official duty of the accused, sanction under Section 197 of Criminal Procedure Code is must. On this aspect, the reasoning given by the earlier Courts is gone through. The Courts have distinguished between the official duty of a minister and the act done in exceeding such duty. In the considered opinion of this Court, though for the sake of argument it is accepted that calling any Government official, though not under direct control of the said minister, may be the official duty and equally so reprimanding him for his alleged misconduct while doing the Government service, may also come under the official duty of the minister, it would be farfetched to say that assaulting said public servant would be covered under the official duty of a minister. Definitely, the distinction is required to be made as to the actions of an accused public servant directly falling within his official duty and then attracting the penal provisions and the actions of such public servant which are not within the domain of his official duties. The latter actions would definitely be such act of a public servant which still take away the protection granted under Section 197 of Criminal Procedure Code to a public servant. In the considered opinion of this Court, definitely the act done by the accused and which is cogently established beyond reasonable doubt by way of substantive evidence of PW1 himself and supported by the evidence of PW3 and PW5, is of such a nature which constitute an offence punishable under Section 353 of Indian Penal Code and take away the protection given under Section 197 of Criminal Procedure Code. Again on this aspect, it must be said that the revisional Court had definitely fallen in an error in coming to the conclusion that offence punishable under Section 353 of Indian Penal Code is not established and what is established is only the offence punishable under Section 323 of Indian Penal Code. Under the suo motu writ this error committed by the revisional Court is required to be undone and the conviction of the accused for the offence punishable under Section 353 of Indian Penal Code is required to be restored.

21. Now coming to another aspect as to whether it was just and proper and appropriate under the established facts and circumstances, for the revisional Court to take away the substantive sentence imposed on the accused by the first appellate Court and then to release him only on admonition under Section 3 of the Probation of Offenders Act, 1958.

22. On this aspect, learned amicus curiae has vehemently submitted that considering the standing of the accused being a minister and considering the establishment of the offence punishable under Section 353 of Indian Penal Code and still for that matter, if the said offence was diluted to Section 323 of Indian Penal Code, it was not in the fitness of the situation for the revisional Court to release the accused on simple admonition without even there being any bond to be taken under Section 4 of the Probation of Offenders Act. Alternatively, it is argued and this argument was emphasized by learned amicus that it was definitely not warranted by the revisional Court to dilute the offence from Section 353 of the Indian Penal Code to Section 323 of Indian Penal Code and then again to release the accused on admonition.

23. Counter to the above arguments learned Senior Counsel for the accused submitted that even for the conviction under Section 353 of Indian Penal Code the relief under the Probation of Offenders Act can be given mainly when the maximum punishment awarded for Section 353 is up to two years imprisonment. There is no dispute on the said quantum of punishment awardable under Section 353 of Indian Penal Code and applicability of provisions of Probation of Offenders Act. Only the question is that whether the propriety demands for taking recourse of such course of action for awarding only admonition. It must not be lost site of that if a person is found guilty of an offence punishable with imprisonment for not more than two years under the Indian Penal Code or any other law and when there is no previous conviction proved against him, the Court can release the accused on probation of good conduct, under Section 4 or instead, release him after due admonition, but for that purpose there must be a regard to the circumstances of the case and the nature of offence and the character of the offender and it must be expedient to do so under those special circumstances. Looking to the present matter at hand and considering the evidence adduced by the prosecution and considering the circumstances under which the complainant was called at the office of the accused and was manhandled and slapped when the accused was holding a very high position of dignity, it was not warranted by the original Court to take recourse to the provisions of Probation of Offenders Act. In any event, under the suo motu writ jurisdiction and in disposing of the writ petition filed by the accused purportedly by taking shelter of provisions of Section 482 of Criminal Procedure Code, there is every reason to interfere with the impugned judgment and order of the revisional Court dated 13/12/2012 and that the order of the first appellate Court dated 5/10/2011 is required to be maintained.

24. Before parting with this judgment this Court expresses word of appreciation for the assistance given by learned Senior Counsel Shri S.D. Lotlikar, appointed as amicus and he has ably assisted the Court on various legal issues involved in the matter.

25. As such, both the present matters are disposed of with following order:

ORDER

(i) Rule in Suo Motu Writ Petition No.1/2013 is made absolute and, consequently, the impugned judgment and order of the revisional Court in Criminal Revision Application No.78/2011 dated 13/12/2012 is quashed and set aside and the order of the first appellate Court in Criminal Appeal No.36/2011 dated 5/10/2011 is hereby maintained.

(ii) Rule in Criminal Writ Petition No.101/2013 is discharged.

(iii) Time is given to the respondent no.2 in Suo Motu Writ petition No.1/2013 to surrender before the appropriate Court within two weeks.