Kerala High Court
P.Prakash I.P.S vs State Of Kerala on 18 March, 2011
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2847 of 2006()
1. P.PRAKASH I.P.S.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. VINU ABRAHAM, S/O.ABRAHAM,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.VARGHESE PREM
The Hon'ble MRS. Justice K.HEMA
Dated :18/03/2011
O R D E R
K.HEMA, J.
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Crl.M.C.No. 2847 of 2006
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Dated this the 18th day of March, 2011.
ORDER
If a police officer, in the course of investigation, allegedly inflicts custodial violence on a person, who is called to police station for questioning, is he entitled to protection under Section 197 of the Code of Criminal Procedure ('the Code', for short)? Is it enough, if a police officer establishes that offences were allegedly committed by him, "in the course of investigation", to get protection under Section 197 of the Code? What is meant by the expression, "while acting or purporting to act in the discharge of his official duty", referred to in section 197 of the Code? Is there any difference between the expressions "in the course of discharge of"
and "in the discharge of" official duty? Mainly, these few questions arise for consideration in this case.
2. Facts briefly: A private complaint was filed by second respondent(complainant) before Additional Chief Judicial Magistrate court inter alia, stating that he is [Crl.M.C.2847/06] 2 an Engineer working in a reputed automobile body construction company and on 11.5.2006, he was called to the police station, stating that petitioner wanted some enquiry to be made about some case which was under investigation. Petitioner is an IPS officer. He was working as Station House Officer in a police station, as part of the training.
3. The complainant appeared before petitioner on 11.5.2006 by about 11 a.m., when he was told by the latter that during investigation into a chain-snatching case (Crime No.191/2006) against one Biju, it was revealed that complainant's motor cycle was used for committing the offence. The complainant was also asked to furnish the address and details of the said Biju. The complainant-respondent did not know any such person and he expressed his helplessness to furnish details.
4. Petitioner grew furious and he assaulted complainant. He also took help of other police constables (who are the co-accused) to assault him. Thereafter, complainant was denuded, except for an [Crl.M.C.2847/06] 3 underwear and he was detained in the lock-up. During the odd ours of that night, co-accused entered lock-up and manhandled complainant again, and after about 6 hours of continuous torture, complainant was made to sign three blank white papers given by accused.
5. On the next day morning ie., on 12. 5. 2006, complainant was released by petitioner, with a direction to gather information and details regarding Biju and report the details to him. His motor cycle was detained at the police station, as a security to ensure compliance of the direction. The complainant straight away went to Government Hospital and got him examined there. He also got a discharge on request and on 14.05.2006, he filed a private complaint (CMP 2257/2006) before the Magistrate Court against petitioner and co-accused others, alleging various offences, in respect of the incidents which took place on 11.5.2006 and 12.5.2006.
6. While the matter was pending in court, on 15.5.2006, complainant was again called to police [Crl.M.C.2847/06] 4 station, stating that it was to release his vehicle. When he went to the police station, petitioner along with some police constables again attacked him brutally with iron rods, lathis, stick etc., and threatened him that he would be implicated in many offences, if he did not withdraw the private complaint filed against petitioner. The complainant was also wrongfully detained in the police lock-up along with Biju, who was arraigned as 1st accused in the theft case (Crime No.191/2006). He was manhandled for two days in police lock-up and he was not even given any food or water on the 15th.
7. The complaint which was filed by complainant on the 14th had been posted for recording sworn statement to 18.05. 2006.On knowing that complainant was under illegal detention, complainant's counsel sought for issuance of search warrant and search warrant was issued production of complainant in court. The court staff went to the police station with search warrant and police produced complainant before learned Magistrate, on 16.5.2006 at about 6 p.m. [Crl.M.C.2847/06] 5
8. At the time of his production, he was falsely implicated in the theft case, as a co-accused, alleging "criminal conspiracy". He was remanded by the Magistrate. But, learned Magistrate directed medical examination of complainant before General Hospital and when he was produced before the doctor, police officials who were accompanying complainant told the doctor that he was a habitual offender. Hence, he was released without any examination, after giving an injection. Complainant was granted bail after two days judicial custody.
9. When complainant appeared in CMP 2257/2006 on 18.05.2006, for recording sworn statement, he also filed a complaint relating to what transpired at the police station on 15.5.2006 and 16.05.2006. The complaint was numbered as CMP No.2289/2006. CWs.1 to 5 were examined on oath and Exts.C1 to C6 were marked in the complaint. When complainant and witnesses were examined, they spoke about the incidents which took place at police station on both occasions viz., 11.5.2006, 12.5.2006, 15.5.2006 and [Crl.M.C.2847/06] 6 16.5.2006. The case was taken on file as C.C.No.844/2006 under Sections 342, 324, 348 and 34 IPC against accused 1 to 4. This petition is filed under Section 482 of the Code for quashing the proceedings initiated against petitioner.
Contentions raised:
10. Heard both sides. Perused available records.
Sri.S. Sreekumar, learned counsel for petitioner argued that from the allegations made in the complaint themselves, it would be clear that the offences were committed by petitioner, in the course of investigation into a theft case and hence, petitioner is entitled to protection under Section 197 of the Code. Admittedly, petitioner is a public servant but, no sanction was obtained for launching criminal prosecution against him. Hence, proceedings initiated against petitioner has to be quashed, for want of sanction, it is argued.
11. Reliance was placed upon the decision of the Supreme Court in Sankaran Moitra v. Sadhna Das & anr. (2006) 2 SCC Crl 358, and various other decisions [Crl.M.C.2847/06] 7 referred to therein to argue that even if a police officer allegedly commits murder, he would be well protected, under section 197 of the Code, if such offence is committed in the course of discharge of his duty. Hence, petitioner who is alleged to have committed the offences in the course of investigation cannot be proceeded against, for want of sanction, it is argued.
12. Sri. Varghese Prem, learned counsel for respondent/complainant, strongly contented that a public servant will not get any protection under Section 197 of the Code for all the acts committed by him. It is only if alleged the act done by the public servant is reasonably connected to the discharge of his official duty, protection under Section 197 of the Code will be available, as held in various decisions of the supreme Court, it is argued (vide Centre for Public Interest Litigation & Anr. v. Union of India & Anr. (2005) 8 SCC
202), K.Kalimuthu v. State by DSP (2005) 4 SCC 512), Choudhury Parveen Sultana v. State of West Bengal (2009) 3 SCC 398), and Sankara Moitra v. Sadhana Das & Anr. ( 2006) 2 SCC (Cri.) 358). In this case, offences [Crl.M.C.2847/06] 8 committed by petitioner have no connection with the official acts and hence, petitioner cannot be extended any benefit of Section 197 of the Code, it is further argued.
13. It was also submitted that custodial torture is not a part of a police officer's duty and it is condemned by the supreme Court time and again. In cases in which police officers are found guilty of custodial torture, even compensation was ordered by the Supreme Court,as seen from the decisions of the Supreme Court, it is pointed out (vide Sube Singh v. State of Hariyana & Ors. (2006) 3 SCC 178).
14. Learned counsel for respondent/complainant has also drawn by attention to the decision of the Supreme Court in Centre for Public Interest Litigation & anr. v. Union of India & anr. [(2005)8 SCC 202)] and argued that as per the said test laid down therein, only if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, he would get the protection. This is a [Crl.M.C.2847/06] 9 sure and safe test, it is argued.
15. According to respondent's counsel, if the above test is applied to the facts of this case, petitioner will not be entitled for protection under Section 197 of the Code and the proceedings initiated against petitioner cannot be quashed. It was further argued that petitioner can raise his contention relating to sanction at any stage of trial and hence, it is unnecessary to quash complaint. Decisions were also cited in support of these contentions (vide Bakshish Singh Brar v. Gurmej Kavur & Anr. [(1987) 4 SCC 663)], State of Maharashtra v. Devahari Deva Singh Pawar & Ors. (2008) 2 SCC 540), Bholu Ram v. State of Punjab & Anr. (2008) 9 SCC 140) and Padmarajan C.V. v. Govt. of Kerala & Ors. (2009 (1) KHC 65).
16. On hearing both sides and on going through available records in this case, I find that the crucial issue arising in this case is on the application and scope of section 197(1) of the Code. Section 197 of the Code reads as follows (only the portion which is necessary to dispose of this case is extracted): [Crl.M.C.2847/06] 10
"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) xxxxxx
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: (2) xxxxxxxxxxxxxxx (3) xxxxxx [(3A) xxxxxxxxxxx [(3B) xxxxxxxxx (4)xxxxxxxxx"
Basic requirements of Section 197(1):
17. A reading of Section 197(1) of the Code shows that there is a bar for the court to take cognizance of an offence allegedly committed by a public servant, under certain circumstances. The bar under Section 197(1) of the Code will apply, only if court is satisfied of the following facts: i) that the accused is or was a public servant, at the time of [Crl.M.C.2847/06] 11 alleged commission of offence; ii) that he can be removed from his office only by or with the sanction of the Government concerned; and iii) that such offence was allegedly committed, while acting or purporting to act in the discharge of his official duty.
18. Admittedly, petitioner is and was a public servant, at the time of alleged commission of the offences. He can be removed from his office, only with sanction of the Government. The only dispute is on the question whether offences involved were allegedly committed by petitioner, "while acting or purporting to act in the discharge of his official duty" or not. What is meant by the expression, "while acting or purporting to act in discharge of his official duty"?
19. The challenging task in this case is in answering the above question. Though it may appear to be a simple one on a first blush, a survey through the various decisions of the High Courts and Supreme Court reveals that courts have differed on their opinion, on this crucial point, depending on the facts of each case. [Crl.M.C.2847/06] 12
20. A browse through the various decisions of the Supreme Courts and High courts reveal that very often bar and bench were using the expression, 'in the course of discharge of official duty', 'in the course of investigation' etc., while dealing with scope of application of Section 197(1) of the Code. In my view, this usage seems to have led to a lot of confusion in identifying the actual issue involved in Section 197 of the Code.
21. In this case also, the contention raised by petitioner is that alleged offences were committed "in the course of investigation" into theft case and hence, petitioner is protected under section 197 of the code. Going by the language in Section 197(1), it will be evident that what is to be looked into, for resolving the issue under the said provision is not whether offence was committed in the course of investigation or "in the course of" discharge of his official duty.
22. The relevant expression used in Section 197 (1) of the Code is, "in the discharge of" and it is not, "in the course of discharge of" official duty. There is a [Crl.M.C.2847/06] 13 lot of difference between the two expressions. As per Oxford Advanced Learner's Dictionary, New 7th Edition, "In the course of", means "during". Therefore, the expression "in the course of" when used with the term, discharge of duty, would mean, 'during discharge of duty' or `while discharging duty' or `the time at which, the official duty is discharged'. The expression, "in the course of discharge of" official duty signifies the period or time during which, duty is or was being performed.
23. But, the expression, "in the discharge of" in Section 197(1) of the Code refers to totally different thing. As per Oxford Advanced Learner's Dictionary- New 7th Edition, the expression, "discharge", in respect of duty, means, "to do everything that is necessary to perform and complete a particular duty". Therefore, the expression "in the discharge of his official duty" in Section 197 of the Code has reference to the actual act or acts which are necessary to perform and complete a particular official duty. The emphasis is not on the period or time during which, the [Crl.M.C.2847/06] 14 duty is discharged, but it is on the actual act or acts, which are to be done by public servant to perform and complete a particular official duty.
24. Therefore, if a police officer is conducting investigation into an offence and he is alleged to have committed an offence, strictly speaking, the question to be decided under Section 197(1) of the Code is not whether offence was committed "in the course of investigation" or "during investigation". Going by the plain language of Section 197(1) of the Code, what is to be looked into is whether in doing any of the acts which are necessary to perform and complete a particular duty, the offence was committed.
25. Investigation into a crime consists of various duties such as questioning witnesses, inspecting place of occurrence, effecting body search, search of building or vehicle, seizing material objects, arresting accused, preparing various documents etc. Each such duty will have to be executed in the course of investigation, depending on the facts of each case. To execute and complete each such particular duty, [Crl.M.C.2847/06] 15 different acts have to be performed by a police officer.
26. The acts which are necessary to be performed "in the discharge of" a particular duty may not be the same or similar to those which are to be performed "in discharge of" another particular duty. For example, to arrest a person, a police officer may have to perform the various acts referred to in Section 46 of the Code, whereas, to examine a person during investigation, he may have to perform various other acts, referred to in Section 161 of the Code. While "arrest" involves physical touch etc. of the body of the arrestee, "examination" under Section 161 of the Code does not involve body of the person who is being examined.
27. So, to decide the question whether the offences were committed by a public servant while acting in the discharge of his official duty, the court has to identify first, what was the particular duty which was being discharged by the public servant, at the time when he is alleged to have committed the offence. Thereafter, it must ascertain, what act or acts are involved in performing such particular duty. Then, it [Crl.M.C.2847/06] 16 must be found out whether the offending acts were committed in doing any of the acts which are necessary to perform and complete the particular duty.
28. Thus, what is relevant in Section 197(1) of the Code is what the officer did "in discharge of" his official duty, and is not what the officer did "in the course of"
discharge of his duty or "in the course of investigation".
An officer may do many acts in the course of investigation, but he will not get protection for all such acts committed. It is only such act or acts which have reasonable connection or relationship to the acts which are necessary to perform and complete a particular duty will be protected under Section 197(1).
29. If the offending acts committed by a public servant have no reasonable connection or nexus with the acts which are necessary to be performed by a public servant for execution of a particular duty, such acts cannot be treated as acts committed by him, while acting "in the discharge of" his official duty, as [Crl.M.C.2847/06] 17 referred to in Section 197(1) of the Code. Section 197 (1) of the Code protects a police officer/public servant, only if offences were allegedly committed while acting or purporting to act "in the discharge of" his official duty.
30. A general or vague statement made by a public servant that the offences were allegedly committed "in the course of investigation" or "in the course of discharge of" his official duty, will be too far- fetched a defence and it is not sufficient to extend any benefit under Section 197 of the Code to a public servant. A public servant will be entitled for the protection under Section 197(1) of the Code only if the materials placed before court satisfy the court that the alleged offences were committed while acting or purporting to act "in the discharge of" his official duty. The three relevant questions:
31. From the above discussion and on a close study on the scope of the relevant expression used in Section 197 of the Code in the light of various decisions on the relevant issue, I am of view that the court can [Crl.M.C.2847/06] 18 easily solve the crucial issue under Section 197(1) of the Code, if three questions are answered, on the basis of the materials available in court. Those relevant questions are as follows :-
i) What was the particular official duty which was being discharged or purported to be discharged by the public servant, at the time of alleged commission of offence?
ii) What act or acts are to be done by the public servant to perform and complete such particular official duty?
iii) Is there any reasonable connection or relationship between the offending act/acts allegedly committed by the public servant and, the act or acts which is/are to be done to perform and complete such particular duty?
32. If the above three questions are answered, and the third question is answered in the affirmative, it can be concluded that alleged offence was committed by public servant, while acting or purporting to act "in the discharge of" his official duty. If the answer to the third question is in the negative, protection under Section 197(1) of the Code [Crl.M.C.2847/06] 19 shall not be extended to a public servant. No sanction will also be necessary under Section 197(1) of the Code to prosecute such a public servant.
33. In my view, the above test may be an easy and practical test under Section 197(1) of the Code, for resolving the issue under discussion, which may arise in almost all cases involving Section 197. (However, I make it clear that the above test applies only to the "acts" involved in official duty and I have not dealt with the "omissions"). Now, I shall proceed to apply the above test to the facts of this case and answer the above three questions.
What was the particular official duty which was being discharged or purported to be discharged by the public servant, at the time of alleged commission of offence?
34. The respondent was called to the police station stating that petitioner wanted to make some [Crl.M.C.2847/06] 20 enquiry with him in connection with investigation into a theft case. A reading of Section 160 of the Code shows that any police officer, making an investigation under Chapter XII may, by order in writing, require the attendance before himself of any person who, appears to be acquainted with the facts and circumstances of the case. But, nobody has a case that any notice was issued to respondent, as required under Section 160 of the Code.
35. However, for arguments sake, it may be assumed that complainant was called to police station on the 11th while purporting to act under Section 160 of the Code. Still, it cannot be said that on the 15th or 16th also petitioner was purporting to act under Section 160 of the Code. Respondent was called to police station on the 15th stating that it was to release his motor cycle which was detained in police station. Respondent was detained in police station on 15th and 16th also. Petitioner has no case that he was discharging any particular duty relating to respondent on 15th and 16th.
[Crl.M.C.2847/06] 21
36. Section 161 of the Code lays down what a police officer can do if a person responds to the notice under Section 160 of the Code and appears in police station. As per Section 161, a police officer making an investigation under Chapter XII, may examine "orally" any person supposed to be acquainted with the facts and circumstances of the case. On examination of such person, the police officer may also reduce into writing, any statement made to him in the course of an examination under this section. If he does so, he shall also make a separate and true record of the statement of each such person whose statement he records.
37. Therefore, the particular duty which was purportedly being discharged by petitioner, at the relevant time of commission of the various offences alleged against petitioner at the police station on the 11th and on 12th may at best be said to be the one falling under Section 161 of the code. Though on 15th also, complainant was called to police station and he was detained there on 16th, it was for releasing his [Crl.M.C.2847/06] 22 motor cycle to him that he was summoned. Petitioner had no particular duty to be discharged on that day, except to release the vehicle to complainant.
38. Petitioner's contentions are based only on the allegations made in the complaint and according to learned counsel for petitioner, petitioner is entitled to get protection under Section 197 of the Code, going by the allegations in the complaint themselves. In such circumstances, on the basis of allegations made in the complaint, it may be said that on 11th and 12th petitioner was purporting to act under Section 161 of the Code. The particular duty which was purportedly being discharged by petitioner on 11th and 12th at the time of alleged commission of offence at the police station may be under Section 161 of the Code. However, it cannot be said that petitioner was discharging any particular duty involving petitioner at the police station on 15th or 16th.
What act or acts are to be done by the public servant to perform and complete such particular duty?
[Crl.M.C.2847/06] 23
39. I have already found, in the light of the allegations made in the complaint that the particular duty which was purportedly being discharged by petitioner, at the relevant time of alleged commission of the offences, on 11th and 12th, may fall under Section 161 of the code. The act or acts which petitioner can perform to execute his duty under section 161 of the Code are referred to in the said section itself.
40. As per Section 161 of the Code the acts to be done by the public servant to preform and complete his particular official duty under Section 161 are: i) make an "oral" examination of the person any person supposed to be acquainted with the facts and circumstances of the case; ii) reduce into writing any statement made to him in the course of an examination under this section; and iii) make a separate and true record of the statement of each such person whose statement he records.
41. Thus, the acts to be done by petitioner to preform and complete his official duty under section [Crl.M.C.2847/06] 24 161 of the Code are: i) orally examine complainant; ii) write down his statement; and iii) make a true record of such statement. Thus, second question is also answered accordingly.
Is there any reasonable connection or relationship between the offending act/acts allegedly committed by the public servant and the act/acts which is/are to be done to perform and complete his particular official duty. 42. I have come to a conclusion that the acts which are necessary to be done by petitioner to perform and complete his official duty under section 161 of the Code are: i) oral examination of complainant; ii) writing down the statement during examination and; iii) making a record of the statement. As a police officer, petitioner ought to have performed only such acts to execute his particular official duty under section 161 of the Code.
43. A police officer who discharges his duty under Section 161 of the Code can examine the person only "orally". No physical touch is permitted during [Crl.M.C.2847/06] 25 examination of a person under Section 161 of the Code. The legislature has cautiously used the expression, "orally" in Section 161 to prevent any physical advances being made on the person who attends police station, in response to a notice, under Section 160 of the Code. A reading of Section 161(2) of the Code also reveals that a person is exempted under Section 161(2) from answering any such question which may have a tendency to expose him to criminal liability etc.
44. Section 162 also prohibits a police officer from obtaining signature of the person from whom he recorded the statement. In such circumstances, if a police officer complies with the requirements under provisions of the Code, while discharging his duty under Section 161 of the Code, there will be no occasion for him to exert any pressure on a person who is being examined under section 161 of the Code. No situation may arise, wherein a police officer may have to use physical force an individual who attends the police station, for questioning, in the course of [Crl.M.C.2847/06] 26 investigation.
45. Article 21 provides, "no person shall be deprived of his life or personal liberty except according to procedure established by law". Personal liberty is a sacred and cherished right guaranteed by Indian Constitution to its citizen. The expression "life or personal liberty" includes the right to live with human dignity and it necessarily affords sufficient guarantee against torture and assault by the State or its functionaries. It is in tune with the constitutional guarantee that the safeguards in Section 161 and 162 of the Code are laid down. Those safeguards are intended to protect personal liberty, dignity and basic human rights of the citizens.
46. In the light of the provision contained in Section 161 and 162 of the Code, a person is exempted form giving self-incriminating answers against his own interest and a police officer is prohibited from obtaining his signature, while acting under Section 161 of the Code. Therefore, there can be no occasion for a police officer to use third degree [Crl.M.C.2847/06] 27 method, while questioning a person, under Section 161 of the Code. It is only when a person is unwilling to disclose any self-incriminating information to a police officer or when he is reluctant to sign any document, on instruction from a police officer, an occasion may arise for compulsion or use of physical force.
47. Legislature has taken all efforts by providing adequate provisions in the Code and the Constitution itself, in clear and explicit terms, to save a citizen of this country from any possible harm being caused to him at the police station. Still, there is always a cry that a person who is called to police station for the purpose of investigation is being subjected to custodial violence and third degree methods. The protection guaranteed to a citizen is very often thrown to wind by the law enforcers. The police station still, remains a place where an ordinary citizen dreads to usher.
48. If a police officer smashes down all the legislative protection guaranteed to a citizen under the statute and, subjects him to physical and mental torture at the police station, that too in violation of the [Crl.M.C.2847/06] 28 specific provisions contained in the Code, the court need not show any concern or anxiety to protect such officer, giving benefit of Section 197(1) of the Code. The benefit of Section 197(1) of the Code is not intended to be extended to a public servant who by himself breaks the law, and cracks the protection given to another citizen, by the law. If a police officer inflicts custodial violence on a person who is called to the police station for questioning, in the course of investigation, he is not entitled to protection under Section 197(1) of the Code.
49. Now, coming to the facts, I find that after having called respondent to police station, petitioner is alleged to have committed various offences against him from within the four walls of the police station, while acting or purported to be acting in the discharge of the duty under Section 160 and Section 161 of the Code. Such offending acts allegedly committed by petitioner include i) infliction of physical violence and mental torture on complainant ii) obtaining his signature on blank papers and iii) wrongfully confining [Crl.M.C.2847/06] 29 complainant in police lock-up. Those acts have absolutely no reasonable connection or relationship to the act or acts which are to be done by petitioner, as a police officer, to perform and complete his duty, under Section 161 of the Code.
Conclusion:
50. I have, thus, answered the three relevant questions and the answer to the third question is in the negative. Hence, petitioner is not entitled to any protection under Section 197(1) of the Code from being prosecuted on the allegations made in the compliant. I shall also refer to the test laid down in Centre for Public Interest Litigation & anr. v. Union of India & anr. [(2005)8 SCC 202) which was cited by learned counsel for respondent. It is held in the said decision as follows:
l"One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the [Crl.M.C.2847/06] 30 public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant".
51. Applying the above test also, it is clear that the omission or neglect to do the offending acts allegedly committed by petitioner, will not make him answerable for dereliction of any duty. Hence, on this ground also I hold that petitioner is not entitled for protection under Section 197 of the Code. Petitioner could not substantiate that if he had omitted or neglected to assault respondent, torture him, confine in the lock up or get his signature in certain papers, as alleged in the complaint, it could have made him answerable for dereliction of any official duty.
52. Before concluding, I would also say that whatever I have stated in this order on facts of this case are based solely on the allegations made in the complaint. I have tested the applicability of Section 197(1) of the Code, only on the basis of uncontroverted allegations in the complaint, in the light of the arguments advanced on behalf of petitioner. Hence, I [Crl.M.C.2847/06] 31 make it clear that petitioner will be at liberty to raise all contentions again, during trial on the applicability of section 197 of the Code, on the basis of the evidence to be adduced in this case.
53. Before summing up, it is also pertinent to state that arguments in this case stood over to more than a day and on the close of arguments, when I was about to dictate this order in open court, learned counsel for petitioner requested that he may be permitted to withdraw this petition. No petition was filed for withdrawing this petition. No specific reason is stated for making such an oral request, except that he was instructed by party to do so.
54. A memo is filed thus: "The above Crl.M.C. is not pressed and may be dismissed as not pressed without any order as to the costs". Learned counsel for respondent opposed this move. He submitted that the move is made only to avoid an adverse order, which may be passed by this court. After having spent a lot of time of this court, on hearing the detailed arguments advance by both sides, the present [Crl.M.C.2847/06] 32 request may not be allowed, it is submitted. He also stated that petitioner is dragged from court to court by petitioner, and pendency of this petition has caused considerable delay in disposal of the complaint filed by him. Lot of hardship is already suffered by respondent and hence, the present prayer may not be allowed, it is submitted.
55. On hearing both sides, I am of view that a petition filed under Section 482 may not be allowed to be withdrawn, on the mere request being made, as a matter of routine. The hardship which may be caused to the opposite side also has to be looked into. The respondent was forced to appear in this case and delay was caused in disposal of the complaint filed by respondent, only because of filing of this petition. Respondent was diligently defending this case, over a period of three years, by engaging a lawyer. All these would have caused lot of hardship to respondent.
56. This court also spent a lot of time for hearing the matter. Both sides spent their valuable time for their arguments. In such circumstances, having [Crl.M.C.2847/06] 33 invited this court's indulgence in the mater and after having completed the arguments, if petitioner is allowed to withdraw this petition, I am of view that it will result in miscarriage of justice. This court cannot give preference to the convenience of the party who approached this court and ignore the hardship which may be caused to the other. Section 482 of the Code cannot be invoked to to thwart justice. The said provision is intended to securing ends of justice.
Therefore, I am not inclined to heed to the request of petitioner to withdraw this petition, under section 482 of the Code. There is no ground to quash the proceedings initiated against petitioner.
Petition is dismissed.
Sd/-
K.HEMA, JUDGE krs.