Gujarat High Court
Prabhudas Badaji Pandav vs Faridmiya Huseinmiya Kadari And Anr. on 7 May, 1991
Equivalent citations: (1991)2GLR876
JUDGMENT
S.D. Dave J.
1. In this Criminal Revision Application the petitioner P.I,S. Prabhudas Pandav, who at all the material times was working as the P.I.S., Mehlav Police Station, challenges the orders pronounced by the learned J.M.F.C., Petlad below application Ex. 33 in Criminal Case No. 1672 of 197(1)(b) of the Criminal Procedure is not a condition precedent for the prosecution against him for the alleged commission of the offences punishable under Sections 325, 323, 342, 504 and 506 read with Section 34 of the Indian Penal Code.
2. The facts and circumstances under which the present Criminal Revision Application arises may be noticed thus:
One Faidmiya Kadari, a practising Advocate stationed at Nadiad, had filed the above said private complaint against P.S.I. Pandav and other four Police Constables for the alleged commission of the above said offences. The case of the complainant Advocate in brief is that he had filed Special Civil Suit No. 176 of 1981 before the learned Civil Judge, Senior Division, Nadiad for the plaintiff-Lallubhai Solanki and certain ad interim orders were contained therein. According to the complainant, the Clerk of the Court was appointed as a Commissioner for preparing the panchnama of the standing Paddy crop on the land under dispute. The plaintiff had realised that the defendant was trying to take away the standing Paddy crop on or about 4-11-1981 and therefore the plaintiff had gone to Mehlav Police Station but his complaint was not recorded. Later on, with the help of one Sureshbhai Patel the D.S.P., Kheda, was intimated and thereafter the plaintiff, in company of the complainant Advocate, had gone to Petlad and later on had reached Mehlav Police Station at about 6-45 p.m. The case of the complainant Advocate further, is that when he had approached the accused persons, including the present petitioner, he was abused and assaulted and was chased out of the Police Station and was again assaulted, and later on was put in the lock-up and could be released only after mid-night at the intervention of a leading Advocate of Nadiad. It appears that before the above said private complaint could be decided and disposed of on merits, the application at Ex. 33 was submitted, on behalf of the present petitioner, saying that the above said offences are alleged to have been committed while he was discharging his official duty as a Police Officer and that, therefore the sanction of the State Government would be necessary under Section 197(1)(b) of the Code of Cri. Pro., 1973. After hearing both the sides the learned J.M.F.C., Petlad had reached the conclusion that, looking to the facts and circumstances of the case, the sanction was not necessary. The above said orders dated 3-1-1984 are being challenged by the petitioner by filing the present Cri. Revision Application.
3. Mr. D.D. Vyas the learned Advocate appears on behalf of the petitioner while the opponent No. 1 the original complainant has been represented by the learned Advocate Mr. K.J. Sethna. The opponent No. 2y the State have been represented by the learned A.P.P. Mr. K.C. Shah.
4. Mr. Vyas the learned Advocate who appears on behalf of the petitioner-accused, has urged that the alleged offences are said to have been committed by the petitioner-accused while he was discharging his duty as a public servant and therefore the sanction of the State Government under Section 197(1)(b) of the Code of Cri. Procedure, 1973 would be a condition precedent and that the learned trial Magistrate has erred in not recognising this position. But Mr. Sethna the learned Advocate who appears on behalf of the opponent No. 1 the original complainant has urged that, the facts and circumstances would go to show very clearly that it cannot be said that the accused-petitioner was acting in discharge of his official duty and therefore no sanction would be necessary. Mr. Shah the learned A.P.P. who appears on behalf of the opponent No. 2-State has urged that the sanction would be necessary and at any rate the said question can be raised and decided at any stage of the proceedings. He therefore has urged that at the most it can be said that the petitioner-accused shall be allowed to raise such condition even at a later stage, if not at this juncture.
4A. Section 197 of the Code of Criminal Procedure, 1973 says that the sanction of the State Government would be necessary "when any 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". The moot question therefore which arises, for the appreciation of the rival contentions in the present Cri. Revision Application, is as to whether the offences alleged to have been committed by the petitioner-accused while acting or purporting to act in the discharge of his official duty. By this time it has been settled that the above said words employed in Section 197(1) of the Cri. Pro. Code are capable of narrow as well as a very wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official's 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 purported to be performed. It is also therefore pointed out that the right approach to the import of these words lies between these two extremes. It is therefore clear that it is the quality of the act that is important, and if it falls within the sope and range of the official duties, the protection contemplated by Section 197 of the Code of Cri. Procedure will be attracted.
5. this Court is duly supported in the above said observations by the decision pronounced by a learned single Judge of this Court in Sardar Karanalsingh Gill and Anr. v. State of Gujarat and Anr. 1987 (2) XXVIII (2) GLR 853. In this decision it has been pointed out that the above said two constructions of the terminology employed under Section 197(1) of the Code of Cri. Procedure are possible and right approach to the import of these words would always lie between the two extreme possibilities. It is also pointed out that the quality of the act is important and the Court shall have to try to find out, from the quality of the act, as to whether it would fall within the scope and range of the official duties.
6. In Pritam Singh v. Delhi Admn. and Anr. 1987 Cri. LJ 872 when an accused who was driving the two-wheeler without a helmet, in contravention of the provisions of the Motor Vehicles Act and the Rules framed thereunder, was stopped by the police officials in uniform on traffic duty, and when after preparing the challan the officials had refused to let the scooterist to go and had detained him for the purpose of recovering the compensation money and when it was also alleged that the scooterist was manhandled and insulted by the police officials, the learned single Judge of the Delhi High Court had reached the conclusion that, in the above said facts and circumstances of the case, the sanction was necessary. Any how in this decision also it has been pointed out that the sanction was necessary according to the learned single Judge of the Delhi High Court, because there was a reasonable connection between the alleged acts and discharge of the official duty. In S.B. Saha and Ors. v. M.S. Kochar while examining the provisions contained under Section 197 of the Code of Cri. Procedure (1974) the Supreme Court has made it abundantly clear that the sine qua non for the applicability of the Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. It is also pointed out that 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 Code would be attracted. In Akhilesh Prasad v. Union Territory of Mizoram , it has been pointed out that the question of the necessity of the sanction has to be determined from stage to stage as the case progresses. This question can be considered at any stage of the proceedings and while considering this question it is not necessary for the Court to confine itself to the allegations only in the complaint and that the Court can take into consideration all other materials on record at the time when the question is raised. This decision therefore rendered by the Supreme Court of India says that the question regarding the necessity of sanction can be determined from stage to stage and when such a question is raised and it falls for the consideration of the Court, all the materils on the record at the time when the question is raised can be taken into consideration. Practically the same view has been taken by the Supreme Court of India in Bakshish Singh Brar v. Smt. Gurmej Kaur and Anr. . In that case it was alleged that the grievous injuries were inflicted upon the complainant alongwith others and as a result of the injuries one of the victim had died. The trial Court had taken the view that after gathering the materials and some evidence it would be possible to determine whether the accused was acting in the discharge of his duties. The High Court had declined to interfere with the orders of the trial Court and that the view taken by the High Court came to be confirmed by the Supreme Court. It is therefore clear that, in that case, it has been laid down that the question regarding the necessity of the sanction can be considered at a later juncture after gathering the materials and some evidence. Incidentally it requires to be appreciated that in the above said case before the Supreme Court of India the police party headed by the petitioner, including 13 other subordinate Police Officers had gone to the house or Haveli of one Jit Singh and had raided the same on secret information to the effect that Jit Singh was indulging in illicit liquor and unlicensed arms. There were two FIRs in this respect and therefore the police party had raided the house of Jit Singh. There were rival versions involved in the case, but it was alleged that when the raid was being effected, something had happened during which the police officials had allegedly inflicted grievous injuries on the person of the complainant party, as a result of which one of the offenders had died. But in fact remains that the Police Officers were raiding the house of Jit Singh on secret information to the effect that he was indulging in illicit liquor and unlicensed arms.
7. It therefore becomes clear, from the reference of the above said case law that it is the "quality of the act" which would be material and if the quality of the act is such that it falls within the scope and range of the official duties the protection contemplated under Section 197 of the Code of Cri. Procedure would be attracted. The question therefore is as to in the present case also the quality of the acts alleged to have been committed by P.S.I. Pandav would fall within the scope and range of his official duties. The complaint, Advocate Mr. Kadari has narrated in his complaint the facts and circumstances under which he was obliged to file the complaint. When a reference is made to Para 4 of the complaint filed by Mr. Kadari the following eloquent facts emerge:
(a) Advocate Mr. Kadari and requested the accused P.S.I. Pandav for recording the complaint and at that time the P.S.I. Pandav was enraged;
(b) That, P.S.I. Pandav had extended filthy abuses involving the mother of the complainant Advocate;
(c) That, the petitioner-accused Pandav had caught hold of Advocate Mr. Kadari and had exorted other Police Officers working under him and assaulted upon Mr. Kadari;
(d) That, apprehending a grave danger, complainant Mr. Kadari had left the Police Station but the petioner and other accused persons had chased him and later on he was caught hold of from the compound of the Police Station.
(e) That, the petitioner-accused had caught hold of the hair of the complainant, Advocate Mr. Kadari and he was taken inside the Police Station while beating him;
(f) That, the petitioner-accused had also exorted and instigated other accused persons to assault upon complainant Mr. Kadari;
(g) That, as a result of the above said instigation, the remaining accused persons had inflicted stick blows on the person of the complainant;
(h) That, even after complainant Mr. Kadari was taken inside the Police Station, the assault had continued and the petitioner-accused P.S.I, had subjected him to filthy abuse which were again extending to his mother and sister;
(i) That, though the complainant Advocate had implored the accused petitioner No. 1 to allow him to go, it was not so done and that he was threatened to be locked-up;
(j) That, the lock-up was found not to be vacant and therefore the accused who was found to be occupying the lock-up was taken out and the complainant Advocate was put behind the bars in the lock-up and he could be released only after late night at the intervention of a leading Advocate Shri Chitranjan Brahmbhatt of Nadiad.
8. The tell-tale story emerging from the above said circumstances would definitely show that it cannot be said that the acts alleged against the Police Officers are of such a quality that they would fall within the scope of the official duty to be performed by the Police Officers. Naturally therefore the protection contemplated by Section 197 of the Cri. Procedure Code could never have been attracted or made available to the accused.
Therefore studying the facts of the instant case and examining the "quality of the acts" alleged to have been done by the accused-petitioner it cannot be said that the sanction under Section 197(1) of the Code of Cri. Procedure was necessary and that the protection contemplated under the above said provisions of the Code was attracted. It, therefore, becomes clear that the learned Magistrate was perfectly justified in coming to the conclusion that the sanction was not a condition precedent.
9. The Supreme Court decision, i.e. Bakshish Singh Brat v. Smt. Gurmej Kaur to which the reference has been made earlier, would go to show that the question regarding the sanction can be considered at any time and the facts and circumstances and the record and the material available at that juncture could be looked into. Probably it is on the basis of this Supreme Court decision that Mr. Shah has urged that this question should be left at this juncture and the accused-petitioner should be allowed to raise such a contention at a subsequent stage of trial. But as noticed the above said circumstances are so unequivocally clear that the alleged acts and deeds of the Police Officer would not fall within the purview of Section 197 of the Code of Criminal Procedure. The conclusion therefore would be that the present Criminal Revision Application fails and the same requires to be dismissed and the same is hereby accordingly dismissed. Rules discharged.