MANU/KE/2139/2019

Equivalent Citation: 2019(204)AIC 422, ILR2019(3)Kerala59, 2019 (3) KHC 424, 2019(3)KLJ318, 2019(3)KLT780

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 1141 of 2014
Decided On: 06.06.2019
Appellants: P.U. Sarala
Vs.
Respondent: Gopi and Ors.
Hon'ble Judges/Coram:
Raja Vijayaraghavan V., J.
Counsels:
For Appellant/Petitioner/Plaintiff: T.V. Neema, Adv.
For Respondents/Defendant: R. Rajitha, Santhosh P. Poduval, Advs. and M.S. Breez, Sr.
Public Prosecutor
* CaseNote:
Penal Code, 1860 (Central Act 45 of 1860) - Section 166--Mere breach of
departmental rules will not bring a public servant within the purview of the
section--There must be materials to show that the accused had willfully
departed from the direction of law with intent to cause injury to any person.
The Crl.M.C. was filed by the petitioner, who is a retired Sub Registrar,
seeking to quash the proceedings against her alleging the commission of the
offence punishable under Sections 166 and 167 of the Indian Penal Code. The
case of the prosecution is that the petitioner while working as the Sub
Registrar of the Kodaly Sub Registrar's Office, refused to register a settlement
deed executed by the de facto complainant in favour of his son for trivial
reasons. The petitioner would contend that when the document was
presented for registration, she directed the de facto complainant to produce
the Patta, which was referred to in the prior documents, and she was duty
bound to ascertain whether the de facto complainant has any right over the
property.
Held:
Disobedience by a person who was or is a public servant along with intention
to cause injury is essential to attract the offence under Section 167 of the
IPC. Mere breach of departmental rules will not bring a public servant within
the purview of this section, but there must be materials to show that the
accused had willfully departed from the direction of law with intent to cause
injury to any person. [10]
Penal Code, 1860 (Central Act 45 of 1860)--Section 167--The demand made
by the Sub Registrar requiring the production of the original prior documents
in order to register a settlement deed would not make him liable for a
prosecution under Section 167 I.P.C.

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Held:
For Section 167 of the IPC to apply, the public servant should have the charge
of the preparation or translation of a document in his capacity as a public
servant and he must frame or translate it incorrectly and knowing or believing
that he was incorrectly doing so and with intent or knowledge that it was
likely to cause injury to any person. [13]
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)--Section 197--For a
prosecution of a public servant under Section 166 and Section 167 I.P.C. if he
is not removable from his office except for with the sanction of the
Government, sanction under Section 197 of Cr.P.C. is required--Penal Code,
1860 (Central Act 45 of 1860)--Sections 166 and 167.
Held:
There is yet another matter. An offence under Section 166 or 167 of the IPC
contemplates an act or omission done or purported to be done in exercise of
official duty by a public servant. Therefore, for a prosecution of a public
servant under this Section, if he is not removable from his office except for
with the sanction of the Government, requires sanction under Section 197 of
the Cr.P.C. No such sanction has been obtained in the instant case. [15]
Code of Criminal Procedure, 1973 (Central Act 2 of 1974)--Section 482--
Where in the opinion of the court, chances of an ultimate conviction are bleak
and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into consideration the
special facts of the case also, quash the proceedings even though it may be at
the preliminary stage.
Held:
The legal position is well-settled that when a prosecution at the initial stage
is asked to be quashed, the test to be applied by the court is as to whether
the uncontroverted allegations as made prima facie establish the offence. It is
also for the court to take into consideration any special features which appear
in a particular case to consider whether it is expedient and in the interest of
justice to permit a prosecution to continue. This is so on the basis that the
court cannot be utilised for any oblique purpose and where, in the opinion of
the court, chances of an ultimate conviction are bleak and, therefore, no
useful purpose is likely to be served by allowing a criminal prosecution to
continue, the court may, while taking into consideration the special facts of a
case also, quash the proceeding even though it may be at a preliminary stage.
[16]
ORDER
Raja Vijayaraghavan V., J.
1 . The petitioner, a retired Sub Registrar, is before this Court seeking to quash the
criminal proceedings pending against her in C.C. No. 4352 of 2013 on the file of the
Judicial First Class Magistrate Court, Chalakkudy. In the aforesaid case, she was called

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upon to answer a charge for the offence punishable under Sections 166 and 167 of the
IPC.
2. The facts indispensable for adjudicating the issue involved in this petition depict that
an item of property having an extent of 27 cents was owned by the grandfather of the
petitioner. The property devolved on his mother and after her death, on the de facto
complainant. According to him, on 29.05.2013, he approached the petitioner, who was
then working as the Sub Registrar at the Kodaly Sub Registrar's Office, and sought for
registering a settlement deed in favour of his son. For trivial reasons, the registration
was refused. According to the de facto complainant, the petitioner had disobeyed the
law by which, he was to carry out the registration and thus, caused injury to him. On
these allegations, a complaint was lodged, consequent to which, Crime No. 660 of 2013
was registered at the Vellikulangara Police Station under Sections 166 and 167 of the
IPC. After investigation, final report was laid before the jurisdictional court.
3. The learned counsel appearing for the petitioner would contend that the allegations
in the final report, even if it is admitted as true in its entirety; will not make out an
offence against the petitioner. It is submitted that the petitioner was, during the
relevant time, working as a Sub Registrar and the allegations are intricately connected
with discharge of her official duty. All that the petitioner did when the document was
presented for registration was to direct the de facto complainant to produce the Patta
No. B536413/1957, the reference to which, was made mention of in the previous
documents. According to the learned counsel, the petitioner was bound to ascertain as
to whether the de facto complainant had acquired any right whatsoever over the
property. She was mandated to do so in terms of the Act and Rules and also the Circular
issued by the Inspector General (Registration). It is further submitted by the learned
counsel that the petitioner had not disobeyed any legal direction concerning the way
she should have conducted herself as a public servant. Neither the offence under
Section 166 of the IPC nor Section 167 of the IPC was made out, submits the learned
counsel.
4. Per contra, the learned counsel appearing for the 1st respondent would contend that
the petitioner had clearly abused her position as a public servant and had failed to
adopt the procedure stipulated in the Act and Rules. It is submitted that gross injury
was caused to the de facto complainant by the callous act of disobedience committed by
the petitioner.
5. Heard the Senior learned Public Prosecutor as well.
6 . I have perused the final report, the note issued by the petitioner to the de facto
complainant and the Circular issued by the Inspector General (Registration), on
13.9.2012, and have anxiously considered the submissions made across the bar.
7 . From the final report, it appears that the specific allegation against the petitioner
herein is that she had acted against the Rules and guidelines and had refused to register
the settlement deed. Annexure-4 produced by the petitioner would show that the
Inspector General (Registration) had issued a Circular on 13.09.2012 detailing the
procedure to be followed and the safeguards to be adopted prior to registering deeds.
The petitioner was duty bound to follow the procedure. Annexure-3 would reveal that
the petitioner had issued a note to the de facto complainant demanding that he should
produce certain records to go forward with the registration. Now the question is
whether, in the facts and circumstances, the offence under Sections 166 and 167 of the
IPC would be made out.

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8. Section 166 of the IPC reads as follows:
"Whoever, being a public servant, knowingly disobeys any direction of the law
as to the way in which he is to conduct himself as such public servant,
intending to cause, or knowing it to be likely that he will, by such disobedience,
cause injury to any person, shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both."
9. The essential ingredients of the offence under Sections 166 of the IPC are:
a) That the accused is or was the public servant, at the time of commission of
offence;
b) That he knowingly disobeyed any direction of law; and
c) That he knew or intended that by so disobeying, he will cause injury to any
person.
10. Disobedience by a person who was or is a public servant along with intention to
cause injury is essential to attract the offence under Section 167 of the IPC. Mere breach
of departmental rules will not bring a public servant within the purview of this section,
but there must be materials to show that the accused had willfully departed from the
direction of law with intent to cause injury to any person.
11. Now, turning to Section 167 of the IPC, the said provision reads as follows:
"Whoever, being a public servant, and being, as such public servant, charged
with the preparation or translation of any document or electronic record,
frames, prepares or translates that document or electronic record in a manner
which he knows or believes to be incorrect, intending thereby to cause or
knowing it to be likely that he may thereby cause injury to any person, shall be
punished with imprisonment of either description for a term which may extend
to three years, or with fine, or with both."
12. Insofar as the offence under Section 167 of the IPC is concerned, the essential
ingredients are the following:
"a) The accused must be a public servant;
b) He must be charged with the preparation or translation of any document qua
such public servant;
c) He has framed or translated the document incorrectly knowing and believing
that it is incorrect; and
d) He must intend thereby to cause or knowing it to be likely that in the process
some injury will be caused to any person."
13. For Section 167 of the IPC to apply, the public servant should have the charge of
the preparation or translation of a document in his capacity as a public servant and he
must frame or translate it incorrectly and knowing or believing that he was incorrectly
doing so and with intent or knowledge that it was likely to cause injury to any person.
1 4 . On perusing the final report and the materials contained thereunder, I have no
doubt in my mind that the ingredients of Section 166 or 167 of the IPC are not made

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out in the instant case. All that the petitioner herein had done was request the de facto
complainant to produce the original of the patta obtained by his predecessors in terms
of the Circular issued by the higher authorities.
1 5 . There is yet another matter. An offence under Section 166 or 167 of the IPC
contemplates an act or omission done or purported to be done in exercise of official
duty by a public servant. Therefore, for a prosecution of a public servant under this
Section, if he is not removable from his office except for with the sanction of the
Government, requires sanction under Section 197 of the Cr.P.C. No such sanction has
been obtained in the instant case.
16. The legal position is well settled that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by the court is as to whether the un-
controverted allegations as made prima facie establish the offence. It is also for the
court to take into consideration any special features which appear in a particular case to
consider whether it is expedient and in the interest of justice to permit a prosecution to
continue. This is so on the basis that the court cannot be utilised for any oblique
purpose and where, in the opinion of the court, chances of an ultimate conviction are
bleak and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may, while taking into consideration the special facts
of a case also, quash the proceeding even though it may be at a preliminary stage. (See
Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chadrojirao Angre and Ors.
[MANU/SC/0261/1988 : AIR 1988 SC 709]; CBI Vs. K.M. Sharan [MANU/SC/1072/2008
: 2008 (2) SCC (Cri) 430].
17. Having considered the entire facts and in the light of the above precedent, I am of
the view that the continuance of the prosecution proceedings against the petitioner
would result in abuse of process. This is an eminently fit case justifying the termination
of the criminal proceedings by invoking the powers under Section 482 of the Code.
In the result, this petition is allowed. Annexure-I final report and all further proceedings
pursuant thereto against the petitioner now pending as C.C. No. 4352 of 2013 on the
file of the Judicial First Class Magistrate Court, Chalakkudy are quashed.

*A reproduction from ILR (Kerala Series)

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