Jammu & Kashmir High Court
Ravi Kumar And Another vs State Of J&K on 9 August, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No. 114
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No.29/2010
IA No.50/2010
Reserved on: 18.07.2023
Pronounced on: 09.08.2023
Ravi Kumar and another .....Appellant(s)
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate
Ms. Deekhsa Handoo, Advocate
Vs
State of J&K ..... Respondent(s)
Through: Mr. Dewakar Sharma, Dy. AG
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. This appeal has been filed against judgment and sentence passed by the learned Principal Sessions Judge, Kathua, (for brevity 'trial Court') vide order dated 24.11.2010 and 30.11.2010, whereby the appellants have been convicted for offences punishable under Sections 307/109 RPC and have been sentenced to undergo rigorous imprisonment for a period of 10 years and also fine of Rs.25,000/.
2. The brief facts of the case are that a written complaint was filed by Balwinder Kour stating therein that at about 10.30 am she was standing at Dayala Chak waiting for Matador to proceed to Sherpur to get medicine and Kewal Singh of her village came near her and she requested him for lift and they proceeded towards Sherpur and when they reached crossing 2 CRA No.29/2010 the police personnel standing therein about 5-6 signaled to stop and asked them as to where they are going and they told them that they are going to Sherpur to purchase medicines but they refused to listen. In the meantime one constable on duty tried to force her to get down. Kewal Singh got down and he talked something with them and sat in the car and started driving and told the constables that if they want to enquire anything more they are proceeding to Chadwal police post and they can come there. As they started driving two constables followed them and when they reached near Hiranagar they fire upon them and their scooter collided with a pole and they fell down. One constable took another scooter, which was being driven by a civilian and again started chasing them. When the car reached on the bridge near Dayala Chak, the constable again fired at them and Kewal Singh was hit in the abdomen and he collapsed.
3. The order of conviction and sentence passed by the trial Court has been challenged by the appellants, precisely on the following grounds:-
(i) that the impugned judgment is the result of mis-appreciation of facts and mis-application of law;
(ii) there was no evidence which connected the accused/appellants to any such incident or occurrence in question and by complete mis-
appreciation of the evidence have been sentenced held guilty by the trial Court and sentenced and they have been convicted and sentenced under the impugned judgment with respect to an incident which the evidence would suggest never occurred or at least was put up in such a way by the complainant as to carve out a 3 CRA No.29/2010 story for which, there was no factual background, thus, the impugned judgment and order of sentence are liable to be set aside;
(iii) that the appellants have been charged under Sections 307/34 RPC and have been convicted under Section 109 of the RPC in the impugned judgment there is no finding of convicting the accused/appellants under Section 307 and that the very fact that accused were charged for having committed offences under Sections 307/34 RPC and having been convicted for Section 109 RPC, would indicate the wholly illegal character of the impugned judgment and order of sentence and that the prosecution evidence itself would show that there was no such occurrence attributable to the accused as had been manufactured by the complainant and his other witness Balvinder Kour for which there was no any evidence in existence even at the stage of investigation;
(iv) that the Investigating Officer of the case has not been examined, which itself as the facts would show to this Court was such a fact that had resulted in such prejudice to the appellants and they were entitled to acquittal only by reference to the said fact of the Investigating Officer not having been examined in the case;
(v) that the independent witnesses including that the father of the alleged injured had been declared hostile, as they according to prosecution story had not supported the prosecution version;
(vi) that the trial Court has infact proceeded in the matter by using the statements recorded of the appellants under Section 342 as substantive 4 CRA No.29/2010 evidence against them, which has been done when the basic story of the prosecution was not supported by any evidence at the trial nor was any proof lead in support thereof. The trial Court has also proceeded in the matter by presuming the appellants to be guilty and has shifted the burden which in a criminal trial always lies on the prosecution;
(vii) that there had been no effort at the stage of investigation to unravel truth, lead whereof could be at least taken by the investigating agency from the statement of Rajinder Singh. During the trial also the appreciation of evidence in position of law, was made in such a way as to bury the statement of Rajinder Singh in darkness of mis-appreciation of both facts and law. In fact there could have been no cognizance taken against the appellants of any offence as there was a bar for the same in law".
4. I have heard the learned counsel appearing for the appellants as well as learned counsel Mr. Dewakar Sharma, Dy. AG appearing on behalf of respondent and have also gone through the record as well as impugned judgment rendered by the trial Court.
5. The first ground on which the judgment impugned has been challenged by the appellants is that no sanction was obtained under Section 197 of the Cr.P.C., therefore, cognizance taken and trial thereupon was bad, thus, the conviction recorded against the appellants cannot sustain.
5 CRA No.29/2010
Section 197 of Cr.P.C. reads as under:-
(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. (1) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."
6. The said Section falls in the Chapter XIV of Cr.P.C. dealing with conditions requisite for initiation of the proceedings, and if the conditions mentioned therein are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. The jurisdiction of a 6 CRA No.29/2010 Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
7 CRA No.29/2010
7. The Hon'ble Supreme Court in case title State of Maharashtra Vs. Dr. Budhikota Subbaro reported in (1993) 3 SCC 339 in para 6 observed as under:-
"6.Such being the nature of the provision the question is how should the expression, „any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty‟, be understood? What does it mean? „Official‟ according to dictionary, means pertaining to an office. And official act or official duty means an act or duty done by an officer in his official capacity. In S.B. Saha v. M.S. Kochar it was held: (SCC pp. 184-85, para 17) "The words „any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty‟ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, „it is no part of an official duty to commit an offence, and never can be‟. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will 8 CRA No.29/2010 require sanction for prosecution under the said provision. Use of the expression, "official duty‟ implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
8. In P. Arulswami v. State of Madras AIR 1967 SC 776 the Hon'ble Supreme Court after reviewing the authorities right from the days of Federal Court and Privy Council held:
".......It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."9 CRA No.29/2010
9. In case title State of Maharashtra Vs. Dr. Budhikota Subbarao (1993) 3 SCC 339 it was observed as under:-
"It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted".10 CRA No.29/2010
To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dubey v. H. C. Bhari thus:
"[T]he offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty..... there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
"If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed".
10. In case title Devinder Singh and others Vs. State of Punjab reported in (2016) 12 SCC 87 the Supreme Court in para 39 observed as under:-
39. The principles emerging from the aforesaid decisions are summarized hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal 11 CRA No.29/2010 and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim.
The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and 12 CRA No.29/2010 the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it fresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merit.
11. The aforesaid principles have also been laid down by the Hon'ble Supreme Court in case title A. SRINIVASULU Vs. The State REP. BY THE INSPECTOR OF POLICE, reported in 2023 Live Law (SC) 485. 13 CRA No.29/2010
12. Reverting back to the facts of the instant case, the trial Court held the appellants guilty of offences punishable under Sections 307/109 RPC and sentenced them to undergo and suffer rigorous imprisonment for a period of 10 years and also fine of Rs.25000/-.
13. Question of sanction was raised by the appellants before the trial Court by stating that in view of the bar created under Section 197 Cr.P.C. in the absence of such sanction, they cannot be held guilty given and the cognizance taken in the absence of such sanction was bad.
14. While dealing with this issue the trial Court has observed as under:-
"the evidence available on record of Balwinder Kour and Kewal Singh corroborated by Dr. N. R. Gupta who tendered medical opinion, does not give a protection to the accused under Section 197 Cr.P.C. From the appraisal of the entire evidence I am in not prepared to accept the suggestion of the defence that the act of the accused is covered under the umbrella of protection available to them. The accused were not under the orders to open fire on the un- armed civilians. The accused firstly frisked the injured complainant and the PW-Balwinder Kour having satisfied that they were not armed. Even if they had run away from the spot up to the chasing of the PWs was sufficient but opening a fire have exceeded their powers. The accused have also not shown any ground that they had the orders from their superiors to shoot at site in the circumstances prevailing in Jammu and Kashmir. The Hon‟ble Supreme Court and various High Courts of the Country have numerously held that in case the persons have exceeded the protection available to them, no sanction for their prosecution is required as envisaged under Section 197 Cr.P.C."14 CRA No.29/2010
15. Now, the question arises as to whether the appellants at the time when the alleged occurrence is said to have taken place were on official duty and whether the incident in question took place while performing the official duties. The fact that the accused were performing their duties at Naka is not in dispute to that extent, even Balwinder Kour, Rajinder Singh as well as Kewal Singh who are the prosecution witnessed have stated that the appellants were present at Naka and were wearing uniform. PW-Rajinder Singh Head Constable was also present on the spot. He has been produced by the prosecution in support of the charge which has been framed against the accused.
PW-Balwinder Kour and Kewal Singh stated that they were stopped at Naka by Police where appellants were present in uniform. Kewal Singh stated that he was driving the car and he was caught hold by hair by them, however, he freed himself from them. He asked the police to come to the Chadwal police post were he would be available with the Dy.S.P. This is what has been stated by Kewal Singh about the occurrence. Rajinder Singh who is one of the prosecution witness produce in support of prosecution version stated that on the day of occurrence appellants were on Naka duty for checking vehicle and they were ordered to chase the offending Maruti Car in which PW-1 & 2 fled from Naka. He has categorically stated that in August 2000, he was in-charge police post, Sherpur where appellants were posted and were performing their official duties. He has further deposed that on the day of occurrence, they were ordered to check vehicles at Sherpur, and at around 7/8 am in the 15 CRA No.29/2010 morning, a Maruti Car came on spot, which was signaled to stop, but the vehicle did not stop and fled from the spot. He ordered the appellants to chase the Maruti car on a scooter. The statement of this witness has not been challenged by the prosecution. His statement makes it clear that the accused were on official duty which they were performing at the Naka and they chased the accused who were driving the car on the direction of the in-charge police post. The fact that the appellants-accused were performing their official duties at the Naka in uniform is established from the statement of PW-1 & 2 and that they chased the vehicle on the direction of the in-charge police post when vehicle in question did not stop. Thus, there is no doubt about the fact that they were discharging their duties. While discharging the duties they chased the accused when they did not stop.
16. Thus, the finding of the trial Court that protection under Section 197 Cr.P.C. was not available is bad, and the sentence recorded by the trial Court is liable to be set aside. It is alleged that the accused fired upon the complainant due to which he was injured.
17. The accused were charged for having committed offences punishable under Sections 307/34 RPC. The trial Court has, however, convicted the accused for offence punishable under Sections 307/109 of the RPC. The trial Court while holding them guilty for offence under Section 109 of the RPC has failed to notice that there were no charges framed under Section 109 RPC.
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18. In Joseph Kurian v. State of Kerala, (1994) 6 SCC 535, the Hon'ble Supreme Court has held that:
"13. The emphasized findings show that the High Court in the same breath has irreconcilably been inconsistent with regard to the participation of A-4 in the mixing of ethyl alcohol with methyl alcohol. Going by the High Court findings, Section 109 IPC could in no case be attracted and more so without a charge to that effect put to A-4 to plead at the trial. Section 109 IPC is by itself an offence though punishable in the context of other offences. A-4 suffered a trial for substantive offences under the Penal Code, 1860 and Abkari Act. When his direct involvement in these crimes could not established, it is difficult to uphold the view of the High Court that he could lopsidedly be taken to have answered the charge of abetment and convicted on that basis. There would, as is plain, be serious miscarriage of justice to the accused in causing great prejudice to his defence. The roles of the perpetrator and abettor of the crime are distinct, standing apart from each other. The High Court was thus in error in employing Section 109 IPC to hold A-4 guilty. We thus set aside the conviction of A-4 and order his acquittal on all charges."
19. In Sohan Lal v. State of Punjab, (2003) 11 SCC 534, the Hon'ble Supreme Court has held that:
"7. Section 211 of the Code of Criminal Procedure requires that the charge against the accused be precisely stated. Sub-section (4) of Section 211 of the Code of Criminal Procedure specifically requires that the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. The learned counsel for the respondent State, relying on Section 464 of the Code of Criminal Procedure, urged that failure to specify Section 109 in the charge-sheet against Sohan Lal was a mere 17 CRA No.29/2010 irregularity which would not vitiate the trial without proof of prejudice to the accused. We cannot agree. The learned counsel for the accused is fully justified in his submission that failure to frame a charge with regard to the substantive offence of Section 109 IPC has certainly prejudiced the accused in the trial court. The accused Sohan Lal @ Sohan Singh was called upon to face trial only for the charge under Section 304-B IPC. Neither a charge under Section 302 IPC nor under Section 109 IPC, was leveled against him in the charge-sheet. In the absence of a charge being framed against the accused Sohan Lal under Section 302 or 109 IPC, it would certainly cause prejudice to him, if he is convicted under either of these offences at the end of the trial. In our view, it was not permissible for the trial court to convict the first accused Sohan Lal for the offence under Section 302 read with Section 109 IPC. His conviction under Section 302 read with Section 109 IPC is, therefore, illegal and is liable to be set aside. The High Court erred in upholding the conviction of Sohan Lal @ Sohan Singh under Section 302 read with Section 109 IPC and dismissing his appeal."
The allegations alleged by the prosecution is that the accused fired upon the injured due to which he suffered injuries, but the record would show that there had been no evidence at all with regard to the use of fire arm nor has the prosecution produced or seized any cartridge or bullet, and even the alleged place of occurrence has not been proved by the prosecution. The prosecution has not produced the Investigating Officer nor has the site plan been proved. There is no evidence to show that the gun alleged to have been used was issued to any of the appellants. Instead, PW-Chaman Lal examined by the prosecution on this point in cross examination has 18 CRA No.29/2010 accepted that he at the time of production of rifle before Dy.S.P. 18 live rounds were also there. The live rounds had been taken out by the said witness and kept at the Police Station. The ballistic expert has also not been examined. These infirmities in the prosecution evidence and the failure of the prosecution to produce the Investigating Officer and the evidence mentioned above were fatal to the prosecution's case.
20. On the basis of the discussions made above, it is held that the judgment of the trial Court has been passed without properly appreciating or taking note of the provisions of Section 197 Cr.P.C. and the same is liable to be set aside.
There is another infirmity in the judgment i.e., the trial Court had held the appellants guilty for commission of offences punishable under Section 109 RPC also, whereas challan was framed under Sections 307/34 RPC. The findings of the trial Court holding the accused/appellants guilty under Section 307 read with Section 109 is thus, bad because there was no charge framed against the appellant for the aforesaid offence.
21. Therefore, for the reasons stated hereinabove, the appeal is allowed and the conviction and sentence recorded by the trial Court vide order dated 24.11.2010 and 30.11.2010 is set aside. Appellants are, accordingly, acquitted.
( Vinod Chatterji Koul ) Judge Jammu 09.08.2023 Shammi Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No