Gauhati High Court
Tulumoni Duarah vs The State Of Assam And 2 Ors on 26 March, 2021
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/59
GAHC010116552016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./607/2016
TULUMONI DUARAH
S/O HEMA DUARAH R/O NAMTI LI P.S. HALOWATING DIST. SIVASAGAR,
ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY PUBLIC PROSECUTOR, ASSAM.
2:THE SECRETARY
TO THE GOVT. OF ASSAM
HOME DEPARTMENT
SACHIVALAYA
DISPUR
GUWAHATI-6.
3:TAJUDDIN
S/OLT. JAHUR UDDIN R/O VILL- MOURIPAM P.S. BAGHBOR DIST.
BARPETA
ASSAM
Advocate for the Petitioner : MR.S BORTHAKUR
Advocate for the Respondent : GA, ASSAMR2
Page No.# 2/59
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 26-03-2021 The Hon'ble Supreme Court in the celebrated case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. , reported in 1992 Supp (1) SCC 335, after discussing various interpretation of the relevant provisions of the Code of Criminal Procedure, 1973 (Cr.P.C) under Chapter-XIV and the principles of law laid down in a catena of decisions qua the exercise of the inherent powers under Section 482 of the Cr.P.C as well as Article 226 of the Constitution of India had laid down certain categories of cases by way of illustrations with a caveat that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised. The said illustrations are extracted hereinbelow:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and Page No.# 3/59 accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
Page No.# 4/59
7. Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
2. What is to be noted that immediately after the said paragraph, the Hon'ble Supreme Court had also put a note of caution regarding sparring exercise of such powers in the following manner:
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
3. In the backdrop of the aforesaid guidelines which have also been reiterated in a number of subsequent decisions, the facts of the case as well as the issue which require consideration from this Court are narrated below.
4. The present petition has been filed invoking the inherent jurisdiction of this Court conferred by Section 482 of the Cr.P.C for quashing of the CR Case No.528 / 2012 under Section 302 of the Indian Penal Code (hereinafter IPC), pending before the Addl. Chief Judicial Magistrate, Barpeta. The petitioner herein is a Police Officer and at the relevant time, he was posted at the Kayakuchi Police Out-Post under the Barpeta Police Station. The projected case of the petitioner is that on 03.06.2012, while he was on duty in the said Out-
Page No.# 5/59 Post, at about 08.10 pm, he got a tip-off that a group of criminals were travelling in a white Ford Figo car from Bhabanipur towards Kayakuchi. The petitioner had immediately asked a police party to come to the road and within a short time such a car had reached the place which the petitioner had somehow could stop. Soon thereafter the police party had reached the spot and on finding the behaviour of the occupants of the vehicle to be suspicious, they were taken to the Out-Post. When the vehicle was searched, one blood stained shirt was found inside the same and blood stains were also found on the cloths of the suspects. In course of interrogation, one of the suspects had confessed that the vehicle in question was stolen after murdering the driver and thereafter thrown his body in an open field near the Pathsala Railway Gate.
5. The further case of the petitioner is that the matter being reported to higher officials and as per directions from such officials, the petitioner along with other police personnel had gone to the spot as one of the suspects Jahangir Alom had agreed to take the party to the spot. On reaching the area, the same was searched by a dragon light as it was in the mid of the night and also drizzling. After search for about 4 kms., the body of the driver could not be found. The suspect, Jahangir Alom then requested to allow him to go to pass urine and accordingly, one of his handcuff was loosened and the petitioner had held him from back side. At that moment, suddenly the said Jahangir Alom gave a strong jerk, as a result of which, the petitioner fell down in the muddy soil when the said Jahangir Alom tried to snatch the pistol from the petitioner when he had raised a hue and cry and shouted 'pistol is taken away'. As the said Jahangir Alom had started to run, the police personnel who were nearby had opened fire in which the said Jahangir Alom was shot, as a result of which he died. The matter was reported to other senior officers who had reached there with additional police force and the entire area was searched again taking the lead given by the four other suspects and finally, the body of the murdered driver of the vehicle was also found about 2 kms. away. Accordingly, an FIR dated 04.06.2012 was lodged and registered as Barpeta PS Case No.739/2012 under Sections 382 / 302 / 120 (B) / 224 / 34 of the IPC. After investigation, charge-sheet has been submitted and the matter is at the stage of trial which is undergoing.
Page No.# 6/59
6. It is the case of the petitioner that after about six months from the date of incident, on 01.12.2012, the father of the deceased, Jahangir Alom, filed CR Case No.528 / 2012 before the learned Chief Judicial Magistrate, Barpeta. It was alleged that the deceased Jahangir Alom was a car driver and on 03.06.2012, the petitioner had arrested his son along with other persons and detained them in the lock-up where they were badly assaulted. It has been alleged in the complaint that as a result of unbearable torture, the arrested persons had admitted that the driver of the vehicle was murdered and accordingly, his son was taken outside by putting handcuff to show the dead body of the Ford Figo car. Though his son was reluctant to go, he was forced to go by assaulting him. In the subsequent morning, the other witnesses shown the dead body of Jahangir, which was under handcuff and they had also witnessed the bullet injury mark. It is alleged that the deceased was a weak person and had become seriously ill due to the atrocities and he was murdered and thereafter a gun was kept beside the dead body and thereafter a false Ejahar was lodged. In the Nota Bene (NB), it was stated that since the witnesses were in custody and due to illness, the filing was delayed.
7. Upon the receipt of such complaint, the learned CJM, Barpeta recorded the statement of the complainant on 30.01.2013 and those of other four witnesses were recorded, who were all the accused persons of Barpeta PS Case No.739/2012, in which charge-sheet was also submitted. It is the case of the petitioner that the statements of the witnesses were contradictory in nature. The petitioner's further case is that vide order dated 01.09.2015, the learned Addl. Chief Judicial Magistrate, Barpeta took cognizance of the case under Section 302 of the IPC and accordingly, summons were issued to him. It is the specific case of the petitioner that no sanction was taken from the Government prior to taking cognizance by the learned Magistrate. It has also been pleaded that on an earlier occasion, the petitioner had to approach this Court for conversion of a non-bailable warrant of arrest to a bailable one, as in spite of his application, such a step was taken.
8. The specific case of the petitioner is that sanction under Section 197 of the Cr.P.C is mandatory, in absence of which, cognizance could not have been taken in the present case. The petitioner has also relied upon a notification of the Government of Assam dated Page No.# 7/59 29.05.1990, whereby all members of the Assam Police Force were brought into the ambit of Section 197(3) of the Cr.P.C. The petitioner has also pleaded that even otherwise, except some bald statements, there was no material before the learned court to arrive at a finding of a prima facie case against the petitioner under Section 302 of the IPC. Under those circumstances, the present petition has been filed for quashing the Complaint Case No.528/2012 along with the impugned order dated 01.09.2015 by which cognizance had been taken.
9. I have heard Shri N Dutta, learned Senior Counsel for the petitioner via remote video conference, who is assisted by Shri S Borthakur, learned counsel. I have also heard Shri Z Kamar, learned Senior Counsel for the complainant-respondent no. 2 assisted by Shri J Ahmed, learned counsel as well as Shri H Sarma, learned Addl. Public Prosecutor, Assam is present for the respondent-State.
10. Shri Dutta, learned Senior Counsel for the petitioner has formulated his arguments broadly on two legs. His first leg of argument is on the materials or the lack of it to come to a prima facie finding which is the basis of taking cognizance. His second leg of argument is in connection with the legal embargo laid down by Section 197 of the Cr.P.C.
11. Elaborating on his first leg of argument, the learned Senior Counsel for the petitioner has painstakingly drawn the attention of this Court to all the materials which were the basis for taking cognizance, the foremost being the complaint itself which was filed on 01.12.2012. The said complaint being with regard to an incident of 03.06.2012, the delay itself in filing the same without any acceptable and reasonable grounds would raise considerable amount of doubt on the veracity of the complaint itself. The only explanation given is that the witnesses were in custody and 'due to illness', is absolutely vague. It is contended that at the stage of filing a complaint, witnesses are not necessary. Further, it is not stated as to who was ill. Under those circumstances, the learned court should have taken extra caution with regard to the contents and bona fide of the complaint.
Page No.# 8/59
12. Shri Dutta, learned counsel for the petitioner thereafter has made a serious exercise to bring home the point of apparent inconsistencies in the contents of the complaint, vis-a-vis, the statements of the five numbers of witnesses. The complainant (Tajuddin), who has deposed as CW 1, has clarified that he came to know about the incident from the witnesses. Therefore, the version of the remaining witnesses attains immense significance.
13. CW 2-Nurjamal had deposed to have been confessed before the police regarding commission of the offence of killing the driver of the Ford Figo vehicle. It was, however, added that same confession was made on the fear of beating. CW 3-Hafizul Hoque stated that the deceased Jahangir had become senseless and that the said Jahangir had stated that the driver of the vehicle was killed. CW 4-Sanidul Islam had deposed that they were coming in a Ford Figo vehicle driven by the deceased Jahangir when the vehicle was stopped in front of Kayakuchi Police Out-Post. He further stated that Jahangir was taken out of the lock-up by the police by putting handcuff. He further deposed that he had heard that Jahangir was killed by the police by beating. CW 5-Shri Anowar Hussain had deposed that the police took him and Sahidul inside the police station and were interrogated. Later, the present petitioner had beaten up Jahangir who was not put behind the lock-up. Later, Jahangir was taken out from the lock-up and in the next morning at about 5/6 am, he was taken to the National Highway along with two others where he saw the dead body of Jahangir with a pistol nearby his hand.
14. Shri Dutta, learned Senior Counsel accordingly submitted that on the basis of the statements made by the five witnesses, the prime witness being a hearsay one, the inconsistencies in the versions of the remaining four witnesses could not have led a reasonable person to arrive at a conclusion of taking cognizance vide the impugned order dated 01.09.2015. It is further contended that even assuming that the trial commences, it would be only these materials before the learned court and which are wholly inadequate to come to a finding of guilt. Therefore, the entire exercise of holding a trial would be a futile one in which the petitioner would be put to unnecessary harassment.
15. To buttress the aforesaid submission, Shri Dutta, learned Senior Counsel has drawn Page No.# 9/59 the attention of this Court to the case of Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre, reported in (1998) 1 SCC 692, which has also been approved in the subsequent decision of Bhajan Lal & Ors. (supra), the relevant paragraph being quoted hereinbelow:
"98. Speaking for the Bench, Ranganath Mishra, J. as he then was in Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692: (AIR 1988 SC 709) has expounded the law as follows: (at p.711 of AIR) "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 proceedings even though it may be at a preliminary stage."
16. The learned Senior Counsel submits that the contents of the complaint and the statements of the five numbers of witnesses, even at a stage of not being controverted, do not prima facie establish the offence and it would only be an instance of utilizing the court for an oblique purpose even when the chances of an ultimate conviction is bleak.
17. Elaborating the second leg of argument, Shri Dutta, learned Senior Counsel submits that admittedly, the petitioner, who is the accused, is a Government servant and the alleged Page No.# 10/59 offence had occurred in discharge of his official duties, the legal bar of Section 197 of the Cr.P.C would come into play and without taking the sanction from the appropriate authority, no cognizance could have been taken. Shri Dutta, the learned Senior Counsel has drawn the attention of this Court to the provision of Section 197 of the Cr.P.C along with sub-sections (1) (2) and (3). Under Section 197(3), the State Government has been empowered to issue a notification directing that the provisions of sub-section (2) shall apply to all such class or category of the members of the Forces charged with maintenance of public order and for the expression Central Government appearing in sub-section (2), State Government be substituted. He has also referred to the notification dated 29.05.1990 issued by the State Government under Section 197(3) of the Cr.P.C. Since the said notification was an old one, it appears that its validity was enquired into through this Court. In response to the same, the Home Department, Government of Assam has issued a communication dated 12.12.2018 whereby it has been informed that the notification dated 29.05.1990 has not been cancelled and was still in force. It is the submission of the learned Senior Counsel that there being no dispute regarding the official status of the petitioner coming within the ambit of Section 197 of the Cr.P.C, coupled with the fact that the alleged offence was committed in discharge of his official duty, the legal bar would be applicable to the petitioner. Therefore, the order by which cognizance has been taken without the prior sanction of the appropriate authority is non est in law.
18. In support of the above, the learned Senior Counsel for the petitioner by referring the case of Bhajan Lal (supra), has submitted that in paragraph 102(6) of the said judgment, one of the exceptions as way of illustration carved out by the Hon'ble Supreme Court is that the extra-ordinary powers under Section 482 of the Cr.P.C can be exercised where there is an express legal bar and drafted in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceedings. The learned Senior Counsel accordingly contends that in view of such clear illustrations laid down by the Hon'ble Supreme Court, there should be no manner of doubt to arrive at a finding that the impugned order dated 01.09.2015 is absolutely illegal.
Page No.# 11/59
19. Shri Dutta, learned Senior Counsel for the petitioner accordingly submits that the present is a fit case for exercise of the extra-ordinary jurisdiction conferred by Section 482 of the Cr.P.C and accordingly, the impugned order of taking cognizance is liable to be quashed and consequently, the criminal complaint as such is liable to be quashed.
20. Shri Z Kamar, learned Senior Counsel for the complainant on the other hand disputes the contentions and submissions made on behalf of the petitioner. He submits that whether the version of the complainant in the complaint accompanied by the statements made before the learned Magistrate constitutes a prima facie case to take cognizance are matters of facts which are to be examined by the learned Trial Court. It is submitted that such matters being exclusively in the domain of the learned Trial Court before whom the statements have been made, the High Court is required to look into that aspect with great circumspection as a subjective satisfaction has been arrived at by the learned Trial Court on the basis of materials before it. It is submitted that in view of availability of materials to come to a conclusion of prima facie satisfaction, this Court should be loath in substituting such findings which are based on facts. The learned Senior Counsel submits that coming to a finding of existence of a prima facie case to go for trial does not mean that a finding of guilt has been arrived at and therefore, it would be wholly premature at this stage to interfere with such proceedings and rather, it would amount to pre-empt the learned Trial Court while discharging its functions in accordance with law.
21. Shri Kamar, learned Senior Counsel has drawn the attention of this Court to the provisions of Section 202 of the Cr.P.C. It is submitted that the offence being exclusively triable by a Court of Sessions, the learned Magistrate has duly followed the provisions of Section 202 (2) Proviso which lays down that under such circumstances the learned Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. In the instant case, the rigours of Section 202 (2) of the Cr.P.C have been duly met and there is no procedural irregularity or illegality in the order by which cognizance has been taken.
Page No.# 12/59
22. The learned Senior Counsel for the complainant accordingly submits that the first leg of argument made on behalf of the petitioner is wholly unsustainable and accordingly, not liable for any consideration.
23. Shri Kamar has also submitted that the FIR lodged by the petitioner does not correspond to any GD Entry and therefore, it appears that the FIR was itself lodged as a cover-up.
24. As regards the issue of delay of about six months from the date of occurrence in filing the complaint is concerned, Shri Kamar, learned Senior Counsel submits that the complaint has been lodged within the prescribed period of limitation. Drawing the attention of this Court to Section 468 of the Cr.P.C, the learned Senior Counsel submits that for an offence under Section 302 of the IPC, there is no limitation for filing a complaint. On the other hand, it is submitted that it is the police consisting of the petitioner who are not following the guidelines in case of custodial detention. The learned Senior Counsel for the complainant further submits that the entire narration of the events in the FIR appears to be a concocted one. He submits that it is absolutely impossible for a person in handcuff to snatch away a pistol, that too, from a Police Officer. He has also submitted that the petitioner himself had violated the law by trying to flee away from the dock and therefore, he is not entitled to any relief.
25. Dealing with the second leg of argument made on behalf of the petitioner, Shri Kamar, learned Senior Counsel for the complainant submits that application of the provisions of Section 197(3) of the Cr.P.C is dependent upon the language incorporated in the statute. It is submitted that the protection would come into play only when the Officer is in charge of maintenance of public order, which is distinct and different from maintenance of law and order. The learned Senior Counsel submits that notwithstanding the notification dated 29.05.1990, which has been clarified to be still in force, the essential pre-requisite for such notification to bring an Officer within its ambit is that the Officer should be in charge of maintenance of public order and in the instant case, the offence was committed not in discharge of duties for maintenance of public order. It is submitted that the provision of Page No.# 13/59 Section 197 Cr.P.C is a kind of shield and not a sword. In other words, the same can be used as a protection and not as a weapon.
26. Shri Kamar, learned Senior Counsel submits that to come within the ambit of protection of Section 197, the offence alleged to have been committed should be while acting or purporting to act in discharge of his official duties. He submits that the offence committed cannot be termed to be one which has been committed while acting or purported to act in discharge of his official duties. He contends that official duties do not authorise killing of a person by shooting him when he could have been easily apprehended. At this stage, the learned Senior Counsel for the complainant reiterates that the projected case in the FIR is wholly and unbelievable one when the deceased could attempt to flee away from a group of police men. Since the offence alleged has not been committed while in discharge of official duties, the petitioner is otherwise also not be entitled to the protective umbrella of Section 197 of the Cr.P.C.
27. To bring home his above contentions, Shir Kamar, learned Senior Counsel has drawn an analogy of Section 197 of the Cr.P.C with Section 19 (1) of the Prevention of Corruption Act, 1988. It is contended that while Section 19 (1) of the PC Act does not have any pre- requirement that the public servant to be acting in his official duty, the protection under Section 197 of the Cr.P.C is a restrictive one which envisages that the offence is committed while the incumbent is in discharge of official duties.
28. Reiterating his submissions, Shri Kamar has contended that the present offence involving Section 302 of the IPC cannot be said to have been committed by the petitioner in discharge of his official duties or even in purported discharge of his official duties. It is submitted that law does not authorise a police personnel to cause death to anybody and in the instant case, such causing of death being an admitted position, the offence cannot be deemed to have been committed in discharge of duties. It is thus contended that when the basic pre-condition of Section 197 of the Cr.P.C is not met of the offence being committed in discharge of official duties, the said Section shall not come into operation.
Page No.# 14/59
29. The learned Senior Counsel for the complainant accordingly submits that from all corners, the present petition cannot succeed and therefore, the same be dismissed and the trial be allowed to continue by vacating the interim order.
30. In support of his submissions, the learned Senior Counsel for the complainant places reliance upon the following case laws:
1) Rohtash Kumar Vs. State of Haryana and Ors., (2013) 14 SCC 290;
2) Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh and Ors. , (2012) 8 SCC 1;
3) Dineshbhai Chandubhai Patel Vs. State of Gujarat , (2018) 3 SCC 104;
4) Varala Bharath Kumar Vs. State of Telangana , (2017) 9 SCC 413;
5) Judgment dated 11.02.2021 of the Hon'ble Supreme Court in Crl. Appl.
No.125 / 2011 (Pravat Chandra Mohanty Vs. The State of Odisha and Anr.);
6) Narayan Tamuli Vs. Pradip Kr. Talukdar & Ors., 1996 (1) GLT 597;
7) Devinder Singh and Ors. Vs. State of Punjab, (2016) 12 SCC 87;
8) Devendra Prasad Singh Vs. State of Bihar and Anr., (2019) 4 SCC 351
9) Shambhoo Nath Misra Vs. State of UP and Ors. , (1997) 5 SCC 326;
10) PK Pradhan Vs. The State of Sikkim, (2001) 6 SCC 704;
11) Sushil Kumar Barua Vs. Golok Ch. Kalita, 2008 (1) GLT 714;
12) Amitava Sinha Vs. State of Assam and Anr., 2015 (3) GLT 1;
13) Binod Kumar Singh Vs. State of Bihar, 1985 Cri.LJ 1878;
14) Dilip K. Basu Vs. State of West Bengal and Ors. , 2015 Cri.LJ 4170 Page No.# 15/59 (SC);
15) PP Unnikrishnan and Anr. Vs. Puttiyottil Alikutty and Anr. , 2000 Cri.LJ 4041;
31. The case of Rohtash Kumar (supra) has been cited to highlight the duties of the police to follow the guidelines dated 02.12.2003 of the National Human Rights Commission which reads as follows:
"12. What disturbs us is the fact that the police have refused to follow the guidelines dated 2/12/2003 issued by the National Human Rights Commission. The two crucial guidelines which have been completely ignored by the police are that the investigation into the encounter death must be done by an independent investigation agency and that whenever a complaint is made against the police making out a case of culpable homicide, an FIR must be registered. In the instant case, the police have refused to even register the FIR on the complaint made by the appellant alleging that his son Sunil was killed by the police. Section 154 of the Code mandates that whenever a complaint discloses a cognizable offence, an FIR must be registered. This Court has, in a catena of judgments, laid down that the police must register an FIR if a cognizable offence is disclosed in the complaint. [See: State of Haryana v. Bhajan Lal [1992(supp)1 SCC 335]]. Ignoring the mandate of Section 154 of the Code and the law laid down by this Court, the police have merely conducted inquiries which appear to be an eyewash. It is distressing to note that till date, no FIR has been registered on the complaint made by the appellant. The only FIR which was registered is against Umesh under Sections 332, 353, 307 read with Section 34 of the IPC at the instance of ASI Ram Sarup. As already noted, in that case, Umesh has been acquitted ."
Page No.# 16/59
32. The case of Dr. Mehmood Nayyar Azam (supra) has been cited to buttress the argument on the role which is required to be played by a police, which includes the sacrosanct duty to protect the fundamental right under Article 21 of the Constitution of India. The relevant paragraphs are quoted hereinbelow:
"36. From the aforesaid discussion, there is no shadow of doubt that any treatment meted to an accused while he is in custody which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the Welfare State is governed by rule of law which has paramountcy. It has been said by Edward Biggon "the laws of a nation form the most instructive portion of its history." The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under Article 21 of the Constitution of India. When citizenry rights are sometimes dashed against and pushed back by the members of City Halls, there has to be a rebound and when the rebound takes place, Article 21 of the Constitution springs up to action as a protector. That is why, an investigator to a crime is required to possess the qualities of patience and perseverance as has been stated in Nandini Sathpaty v. P. L. Dani [AIR 1978 SC 1025].
37. In Delhi Judicial Services Association v. State of Gujarat [(1991) 4 SCC 406], while dealing with the role of police, this Court condemned the excessive use of force by the police and observed as follows:-
"The main objectives of police is to apprehend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure Page No.# 17/59 law and order to protect citizens' life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution. Aberrations of police officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power to arrest a person even without obtaining a warrant of arrest from a court. The amplitude of this power casts an obligation on the police and it must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated."
38. It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities. We may hasten to add that a balance has to be struck and, in this context, we may fruitfully quote a passage from D. K. Basu (supra): -
"There can be no gainsaying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been Page No.# 18/59 upheld by the Courts. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. .......... The action of the State, however, must be "right, just and fair".
Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime- suspect must be interrogated-indeed subjected to sustain and scientific interrogation-determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplishes, weapons etc. His constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal.""
33. Dineshbhai Chandubhai Patel (supra) and Varala Bharath Kumar (supra) have been cited in support of the submission that for discharging powers by a High Court either under Article 226 of the Constitution of India or Section 482 of the Cr.P.C, the necessary caution should be taken and further that at the initial stage, the High Court would not be in a position to appreciate the evidence or draw its own inferences from the contents of the FIR. The relevant paragraphs of Dineshbhai Chandubhai Patel (supra) are extracted hereinbelow:
"26. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such Page No.# 19/59 question is fairly well settled.
31. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
34. The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here.
40. Though learned senior counsel appearing for the parties argued the issues touching the merits of the case by referring to hundreds of documents but, in our view, it is wholly unnecessary to enter into the factual arena once we record a finding that a prima facie case is made out on reading the FIR including the documents enclosed therein. We, therefore, do not consider it necessary to go in detail of their submissions. Needless to say, all these submissions and unproved and disputed documents on which reliance was placed by the parties would be dealt with at a later stage as and when the occasion arises ."
So far as the case of Varala Bharath Kumar (supra) is concerned, the relevant paragraph is 7, which is quoted hereinbelow:
Page No.# 20/59 "7. It is by now well settled that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court, either to prevent abuse of process of the court or otherwise to secure the ends of justice.
Where allegations made in the First Information Report/the complaint or the outcome of investigation as found in the Charge Sheet, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out the case against the accused; where the allegations do not disclose the ingredients of the offence alleged; where the uncontroverted allegations made in the First Information Report or complaint and the material collected in support of the same do not disclose the commission of offence alleged and make out a case against the accused; where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the power under Article 226 of the Constitution of India or under Section 482 of Code of Criminal Procedure may be exercised.
While exercising power under Section 482 or under Article 226 in such matters, the court does not function as a Court of Appeal or Revision. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. The court must be careful and see that its decision in exercise of its power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court Page No.# 21/59 will exercise its extra ordinary jurisdiction of quashing the proceedings at any stage."
34. The case of Pravat Chandra Mohanty (supra) has again been cited to highlight the role of police and as to whether an offence under Section 324 of the IPC would be compoundable. For ready reference, the relevant paragraphs are quoted hereinbelow:
"36. Present is a case where the offence was committed by the in-charge of the Police Station, Purighat, as well as the Senior Inspector, posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society.
37. We may refer to the judgment of this Court in Yashwant and others vs. State of Maharashtra, (2019) 18 SCC 571, where this Court laid down that when the police is violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instil confidence in the society. Following was laid down in paragraph 34: -
"34. As the police in this case are the violators of law, who had the primary responsibility to protect and uphold law, thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Page No.# 22/59 Maharashtra State Police is "Sadrakshnaya Khalanighrahanaya"
(Sanskrit : "To protect good and to punish evil"), which needs to be respected. Those, who are called upon to administer the criminal law, must bear, in mind, that they have a duty not merely to the individual accused before them, but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment on the accused herein"
38. The observations as quoted above are fully attracted in the facts of the present case. We, thus, are of the considered opinion that present is a case where this Court is not to grant leave for compounding the offences under Section 324 IPC as prayed by the counsel for the appellants. The present is a case where the accused who were police officers, one of them being in- charge of Station and other Senior Inspector have themselves brutally beaten the deceased, who died the same night. Their offences cannot be compounded by the Court in exercise of Section 320(2) read with sub- section (5). We, thus, reject the prayer of the appellants to compound the offence."
35. The case of Narayan Tamuli (supra) has been cited for the purpose of distinguishing the expression of 'maintenance of public order' and 'maintenance of law and order' and also for explaining what would constitute discharge of official duty. Paragraphs 5 and 7 of the said judgment have been pressed into service, which read as follows:
"(5) Mr. Bhattacharyya, learned counsel on the other hand has submitted that since the opposite parties/accused happened to be police personnel, before issuing process in such circumstance learned court below was justified in directing the complainant as to obtain sanction. By referring to the counter Page No.# 23/59 affidavit so filed on behalf of the opposite parties particularly annexure-C Notification it is painted out that the State Government under the provisions of Section 197 (3), Cr. P. C, notified that all members of the Assam police Forces deployed for maintenance of law and order in the State of Assam shall have all the protection as provided u/s 197 (2) Cr. P. C and the said Notification being of dated the 29. 5. 90 is still in force. Sanction before the cognizance thus was a must and therefore the impugned order does not suffer from any infirmity. Secondly, it is pointed out by referring to some of the reported cases detailed below that in course of exercising official duty if the circumstance so warrants, police personnel are very much within their limits even as to use forces and in the present circumstance by referring annexures-A and B of the counter affidavit so filed Mr. Bhattacharyya, learned counsel averred that in course of the complainant attempted to escape after insulting the police personnel, the accused/opposite parties had no alternative but to chase the complainant and in that course because of his falling down on the ground, he sustained injuries. That being the position there is no merit in this criminal revision petition and the same be dismissed.
In support of this contention on behalf of the opposite parties some of the reported cases so cited are - (1988) 1 GLR 235 (Abedur Rahman-Vs-Banamali Choudhury), AIR 1956 SC 44 (Matajog Dobey-Vs-H. C. Bhari)- paragraphs 17 and 23. Basing on these two judgments referred to above Mr. Bhattacharyya, learned counsel submits that if in performing of the official duty, police personnel used force that can well be said to be within the scope of an act coming under the purview of official duty. Mr. Bhattacharyya has also referred to some of the other reported cases and they are 1988 CRI. L. J. 100 (Karnalsingh Gill-Vs-State of Gujarat). In the background of this reported case it is further argued that the act so done by a government servant while engaged in the performance of his official duties requires sanction if it is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office and thus the act so done is in proper discharge of his duties. In the instant case the opposite Page No.# 24/59 parties/accused it is pointed out had to take the complainant petitioner to the police station because of his misbehaving as mentioned in annexure-A of the counter affidavit and it was because of the complainant's falling down on the ground as submitted by the learned counsel for the other side that he sustained injuries.
(7) The act thus alleged to have been committed by the accused/ opposite parties particularly detailed above as shown in paragraphs 2 and 3 of the complaint petition cannot be said to be done in discharge of their official dudes and no sanction is required if the allegations is of using third degree method of the police personnel when the situation did not warrant as to use force for compliance of some duties entrusted upon them Abuse of official position cannot be slid to be on act done in discharge of official duty. Non-use of helmet while: driving gives right 19 the police on traffic duty particularly as to stop him and to take action against him for the contravention of the provisions of Motor Vehicle laws, but as alleged over acts said to have been committed by opposite parties as detailed in the complaint petition (paras 2 and 3) does not seem at all to come under the purview of the act committed in discharge of the official duty in the instant case. Thus the sanction u/s 97 Cr. P. C in the present circumstance was not required. As regards the point so raised by the opposite parties that the accused/opposite party members are protected by Annexure-C Notification under the provisions of Section 19 (2) Cr. P. C, I find that even in that circumstance it has to be seen as to whether the opposite parties/accused were at that moment and at that place deputed or deployed for the maintenance of law and order. Because as per the very Govt. notification marked as Annexure-C much baked upon by the accused/opposite parties; notification of the Govt. of Assam dated 29. 5. 90 No. HMA 280/88/41 gives protection of the provisions of Sec. 197 (2) Cr. P. C to the Assam Police Forces when deployed for the maintenance of law and order and on this score too the accused/opposite parties have failed to show any order with regard to their (accused/opposite party members)deployment Page No.# 25/59 for maintaining tow and order at that point and on that date the opposite parties were as per their own case near the Circuit House at that time controlling traffic in Mangaldoi town as detailed in their Annexure-A. The second part of the act thus with regard to them an alleged for manhandling the complainant had nothing to do with the discharge of their official duty and sanction U/s 197 Cr. P. C in such circumstance is not required. Taking that view the impugned order to the extent of directing the complainant to procure sanction is set aside. The learned Court below, because of its finding prima facie material against the accused persons/opposite parties relating to the allegations so made in the complaint petition as detailed in the impugned order dated the 29th of My, 1995, may pass appropriate order under Chapter xvi of the Cr. P. C."
36. Devinder Singh (supra) and Devendra Prasad Singh (supra) have been similarly cited in support of the contention that the official duty performed has to have some nexus with the offence alleged. The relevant paragraphs of Devinder Singh (supra) being paragraphs 4, 39 and 40 are quoted hereinbelow:
"4. It is further averred that on 22.7.1993 four persons were killed in an encounter with the police. The prosecution alleged that they were killed in a fake encounter. On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused as at the relevant time, under section 6 of the 1983 Act, sanction from Central Government was required. However, on the basis of sanction obtained from the State Government, the CBI filed charge-sheet against the accused persons in the Court of Special Judge, Patiala. The appellants filed application under section 227 of the Cr.P.C. for discharge on the ground that they had acted in the incident in the course of their duty and sanction granted by the State Government was without jurisdiction, illegal and void.
Page No.# 26/59
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 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 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is 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 the same Page No.# 27/59 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 appellate Court. It may arise at inception itself. There is no requirement that 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 afresh 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 accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
39.9. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence.
Question of good faith or bad faith may be decided on conclusion of trial.
40. In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused persons to adduce Page No.# 28/59 the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law. The trial to proceed on the aforesaid basis ."
So far as Devendra Prasad Singh (supra) is concerned, the relevant paragraphs are paragraphs 11 and 12, which are as follows:
"11. In our view, in order to attract the rigor of section 197 of the Cr.P.C., 1973 it is necessary that the offence alleged against a Government Officer must have some nexus or/and relation with the discharge of his official duties as a Government Officer. In this case, we do not find it to be so.
12. So far as the second ground is concerned, we are of the view that the High Court while hearing the application under section 482 of the Cr.P.C., 1973 had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C., 1973 proceedings."
Page No.# 29/59
37. Shambhoo Nath Misra (supra) is again in connection with the expression 'official duties' and the relevant paragraphs, being 4, are extracted hereinbelow:
"4. Section 197(1) postulates that "when any person who is 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 of the appropriate Government/authority". The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr. P. C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform him public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected ."
Page No.# 30/59
38. In the case of PK Pradhan (supra), the emphasis is on the nature of the dues performed which has to be official duties so as to enable a public servant to get the benefit of Section 197 of the Cr.P.C. The relevant paragraph is extracted hereinbelow:
"5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation.
15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained Page No.# 31/59 of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main Judgment which may be delivered upon conclusion of the trial ."
39. The judgments of this High Court in the case of Sushil Kumar Barua (supra) and Amitava Sinha (supra) have been cited in support of the submissions that it is only in discharge of official duties that the protection under Section 197 Cr.P.C would be available. For ready reference, the relevant paragraphs of the aforesaid two referred cases are quoted herein below:
Sushil Kumar Barua (supra).
"(13) A close analysis of the provisions of Section 161 and 163 Cr. P. C. read with Section 24 of the Evidence Act clearly indicates that a police officer is Page No.# 32/59 prohibited from beating or confining any person with a view to, inter alia, induce and threaten such a person to make statement or confession. In fact Section 330 IPC makes the act of causing hurt, aimed at extorting confession, an offence punishable with imprisonment for a term, which may be extended to seven years. In view of such statutory prohibition, it cannot be argued that the acts complained of, in the present case, are acts done 'by the accused-
petitioner under the colour of his duty or authority. There is no legitimate and perceptible connection between the acts, which the accused-petitioner has allegedly done, and the duties and obligations cast upon him by law. When the law has prohibited an officer from doing what he has done, he cannot be heard to say that what he had done was in exercise of his duties or even purported exercise of his duties. It is no part of a duty of a Police Officer to beat a person at the Police Station to extort confession from him nor is it a part of the duty of a Police Officer to confine a person at the Police Station without having arrested him, for in the case at hand, the complaint discloses that the complainant was allegedly taken into custody as early as on 15. 07. 1994, but was produced before the chief Judicial Magistrate as late as on 19.
07. 1994 and that too, when a report was called for, in this regard, by the Chief Judicial Magistrate on the basis of a complaint made by the complaint's brother-in-law to the effect that the complainant and the said thelawalla had been kept detained illegally and were being tortured at the said Police Station."
Amitava Sinha (supra).
"66. As discussed above, in the present case, it has been clearly alleged, in the complaint, that the petitioner, besides assaulting the complainant in custody, poured petrol into his private parts. The above discussed medical reports support the said allegations of torture in custody. Hence, the said alleged acts have nothing to do with official duty. Such inhuman act cannot be remotely connected with official duty. Therefore, the protection under Section 197 Cr.P.C. is not applicable in the present case.
Page No.# 33/59
69. In view of what has been discussed above and findings regarding existence of a prima-facie case under Sections 325 and 331 IPC involving custodial torture, I don t find it to be a fit case for quashing the proceeding in exercise of jurisdiction under Section 482 Cr.P.C. Hence, I find no merit in this petition."
40. The case of Binod Kumar Singh (supra) has been relied upon again to reiterate the requirement of being in official duty. The following has been stated in that case:
"14. On behalf of the State it has been contended that the allegations levelled against the petitioner in the instant case had nothing to do with his official act or purported discharge of his official act. It was not a part of his duty to visit the shop of the informant on the date of the occurrence in the guise of the Magistrate in charge of patrolling party and it was never his duty to extort a sum of Rs. 5,000/- from the informant by representing that he had a warrant of arrest against the son of the informant. Learned counsel has further contended that there was no warrant of arrest against the son of the informant and it was a novel method adopted by the petitioner for extorting money from innocent persons. Learned State counsel has further contended that the petitioner had not only made attempt to extort money but also ordered the Havildar and the constables to put the son of the informant into the jeep, which was protested and thereafter the petitioner ordered for firing. According to the learned State Counsel there was no reasonable connection between the acts alleged and the official duty of the petitioner.
It was never a part of his duty to do criminal act and kill innocent persons. According to him due to illegal order of the petitioner, firing was resorted to as a result of which life of two innocent persons have been lost. He has further contended that the written report alleged to have been filed by the petitioner is his defence and it cannot be accepted before the trial. No Page No.# 34/59 information was given to the officer-in-charge of Nawadih police station nor any station diary entry was made about the apprehension of the breach of peace in village Tarnari. The petitioner after the alleged occurrence had tried to cover his mischief by giving it a colour of discharge of his official duty in which he has miserably failed. He has further contended that it is not that every offence committed by a public servant which required sanction for prosecution under S. 197(1) of the Code nor even every act done by him while he was actually engaged in the performance of his official duties. According to him the acts complained must have direct link with his official duties then only he is entitled to protection under S. 197(1) of the Code. In support of this contention learned State Counsel has referred to a decision in the case of Prabhakar V. Sinari v. Shanker Anant Verlekar. reported in AIR 1969 SC 686 : ( 1969 Cri LJ 10571. He has further contended that it was not a case for discharge under S. 227 of the Code as sufficient materials had been collected in course of investigation against the petitioner and thereafter charge-sheet was submitted. According to him the Sessions Judge has rightly rejected the prayer for discharge.
16. It is further to be noted that the petitioner after filing the written report to the officer-in-charge did not even care to know as to what action was taken on his application. He had not clearly stated in the said written report that he ordered for firing. There is nothing on the record to show that he brought this matter to the knowledge of the higher authorities. The attitude of the State in the instant case also indicates that the acts done by the petitioner were not in discharge of his official duties. It is never the spirit of S. 197(1) of the Code to protect every offence committed by a public servant while he was actually engaged in the performance of his official duties. The acts concerned must have direct connection with his official duties so that, if questioned, it could be claimed to have been done by virtue of official duties and then only sanction would be necessary."
Page No.# 35/59
41. The case of PP Unnikrishnan and Anr. (supra) has been relied upon to buttress the same proposition of the pre-requirement to be in discharge of official duties, the relevant paragraph being para 22, is extracted hereinbelow:
"22. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of S. 197 of the Code as well as S. 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a Court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock- up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority."
42. Shri Kamar, learned Senior Counsel for the respondent no. 2 submits that the trial will bring out everything and since causing of custodial death is not a part of the official duties, no sanctioned is required. He accordingly sums up his arguments by submitting that neither on facts nor in law the petitioner has been able to make out any case for interference by this Court and the present is not a fit case for exercising the extra-ordinary jurisdiction under Section 482 of the Cr.P.C.
43. Shri H Sarma, learned Addl. Public Prosecutor submits that it may be too early in the day to comment on the respective merits of the rival parties and therefore, the impugned order dated 01.09.2015 by which cognizance has been taken may not be faulted with. He, however, submits that whether the legal bar under Section 197 of the Cr.P.C would be applicable has to be decided on the facts of the case.
Page No.# 36/59
44. Shri N Dutta, learned Senior Counsel for the petitioner, in his rejoinder submits that though a distinction has been sought to be introduced by the respondent no. 2 regarding the 2 expressions 'law & order' and 'public order' qua Section 197 (3) of the Cr.P.C., such distinction will not have much of a relevance in view of the interpretation given by the Hon'ble Supreme Court in the case of Rizwan Ahmed Javed Shaikh and Ors. vs. Jammal Patel and Ors., reported in (2001) 5 SCC 7. The Hon'ble Supreme Court has held as follows:
"4. It is submitted by the learned counsel for the appellants that in order to claim protection under the notification it is necessary that the accused must be a police officer as defined in the Bombay Police Act, 1951 and must be charged with the maintenance of public order at the relevant time. In other words, if a police officer is discharging a duty referable to law and order only as distinguished from the maintenance of public order he cannot claim protection under the notification. In the case at hand the police officers had arrested the appellants, kept them in confinement and assaulted them which are acts referable at the most to the duty of a police officer related to maintenance of law and order but not the maintenance of public order and therefore the benefit of the notification is not available to the respondents. The learned counsel submitted that the orders of the learned Magistrate as also of the High Court deserve to be set aside and the learned Magistrate directed to proceed ahead with hearing of the complaint made against the accused persons.
9. We find ourselves in agreement with the view taken by the Division Bench of the Gujarat High Court in the case of Bhikhaji Vaghaji and therefore, also with the view taken by Division Bench of Bombay High Court in the order under appeal. The submission made by the learned counsel for the appellants confuses the issue as to applicability of notification with the span of protective umbrella or the purview or compass of such sub-section (2) of Page No.# 37/59 Section 197 of the Code. The person on whom the protection is sought to be conferred by the State Government notification is to be determined by reading the notification and once it is found that the State Government notification applies to the member of the force which the accused is, the scope, purview or compass of the protection has to be determined by reading sub-section (2) of Section 197 of the Code, i.e., by asking a question whether the act alleged to be an offence was done or purports to have been done in the discharge of the official duty of the accused. Such official duty need not necessarily by one related to the maintenance of public order."
45. Shri Dutta, the learned Senior Counsel submits that most of the decisions cited by the respondent no. 2 in fact support the petitioner. So far as the case of Devinder Singh (supra) is concerned, while para 40 was urged by the respondent no. 2, Shri Dutta submits that the aforesaid paragraph involves factual matrix. However, the general proposition of law is laid down in paragraph 39.6 of the said Judgment which is extracted herein below:
"39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and 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 appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed."
That apart, Shri Dutta also relies upon paragraphs 29 and 31 of the said Judgment which is quoted herein below:
"29. In Sankaran Moitra v. Sadhna Das & Anr. 2006 (4) SCC 584 it was considered that sanction under section 197 Cr.P.C. is a condition precedent though the question as to applicability of section 197 may arise not necessarily at the inception but even at a subsequent stage. Request to postpone the decision on the said question in the instant case, it was held, in Page No.# 38/59 the facts of the case was not accepted. The complaint disclosed that the deceased was a supporter of a political party beaten to death by the police at the instance of appellant police officer near a polling booth on an election day. On the facts it was held that the appellant committed the act in question during the course of performance of his duty and sanction under section 197(1) was necessary for his prosecution. This Court has observed thus :
"25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of Page No.# 39/59 sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction."
31. Learned counsel for appellants has also relied upon the decision of this Court in General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation & Anr. 2012 (6) SCC 228 in which this Court has observed that it is for the competent authority to decide the question of sanction whether it is necessary or not and not by the court as sanction has to be issued only on the basis of sound objective assessment and not otherwise. Prior sanction is a condition precedent. This Court has laid down thus :
"82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab Page No.# 40/59 initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.""
46. So far as the case of PK Pradhan (supra) is concerned, Shri Dutta, submits that in para 15 of the said Judgment, the Hon'ble Supreme Court has clearly laid down that the question of requirement of sanction can be raised any time after the cognizance. For ready reference, paragraph 15 is extracted herein below:
"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after Page No.# 41/59 cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main Judgment which may be delivered upon conclusion of the trial ."
47. By drawing the attention of this Court to Section 46 of the Cr.P.C, law empowers the police officer to make use all means necessary to affect the arrest when a person forcefully resist. For ready reference, Section 46 (2) of the Cr.P.C. is extracted herein below:
"46 (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest."
48. The mechanical approach of the learned Magistrate has also been severely criticized inasmuch as the impugned order dated 01.09.2015 by which cognizance has been taken does not even reflect that there was any consideration on the aspect of the requirement of sanction under Section 197 of the Cr.P.C. as admittedly the accused (the present petitioner) is a Government servant. The gravity of the situation in which the dead body of the driver of the Ford Figo vehicle was also found nearby requiring extra ordinary alertness and swift action appears to have been wholly overlooked by the learned Magistrate.
49. Shri Dutta has also relied upon a decision of the Hon'ble Supreme Court in case of Pepsi Foods Limited vs. Special Judicial Magistrate reported in (1998) 5 SCC 749. In the said case the Hon'ble Supreme Court has held that merely because an accused can take Page No.# 42/59 recourse to the provision of discharge under Section 245 of the Cr.P.C., the extra ordinary powers of Section 482 would still be available. It was also held that criminal law cannot be set into motion as a matter of course. For ready reference, the relevant extracts are quoted herein below:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under S. 482 of the Code or Art. 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the Page No.# 43/59 appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under S. 245 of the Code. The High Court says that the appellants could very well appear before the Court and move an application under S. 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under S. 7 of the Act and also that there is no basis for the complainant to make such allegations. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi." The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A. K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under S. 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not Page No.# 44/59 disputed that the beverage in the question is a "fruit product" within the meaning of Cl. (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (Clause (8)(1)(b)). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (WAKF), Delhi v. Union of India, AIR 1965 SC 1167 : (1965) 2 SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof."
50. Shri Dutta has also relied upon the case of Sankaran Moitro Vs. Sadhna Das, reported in (2006) 4 SCC 548. To appreciate the law laid down, the learned Senior Counsel has also referred to the facts of the case which are narrated in paragraph 2 of the judgment. The accused in that case had also taken up the ground of Section 197 of the Cr.P.C which was rejected by the Hon'ble Calcutta High Court in the following terms:
Page No.# 45/59 "6. The High Court by order dated 11.7.2003 dismissed the application. It overruled the contention of the accused based on Section 197 of the Code of Criminal Procedure thus:
"In its considered view Section 197 Cr.P.C. has got no manner of application in the present case. Under Section 197 Cr. P.C. sanction is required only if the public servant was, at the time of commission of offence, 'employed in connection with the affairs of the Union or of a State' and he was 'not removable from his office save by or with the sanction of the Government.' The bar under Section 197 Cr.P.C. cannot be raised by a public servant if he is removable by some authority without the sanction of the Government.
Committing an offence can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, section 197 Cr.P.C. will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties."
7. After referring to the some of the decisions cited, the Court further stated:
"Committing of an offence of murder can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 of the Code will not be attracted. Merciless beating by a police officer causing death of a person can never be said to be an act in discharge of his official duty."
The Court stated that since from the statement of the doctor who conducted the post-mortem examination it appeared that the victim had suffered as many as six serious injuries and in the opinion of the doctor, the death was Page No.# 46/59 due to the injuries to the head inflicted on the deceased, it was justified in the view it had taken. The learned Judge wound up by stating that it was not a fit case for interference by the High Court and if the Court interferes with the proceedings on any of the grounds urged by the accused, people will lose their confidence in the administration of justice. The High Court directed the Magistrate to proceed with the matter with utmost expedition and in accordance with law."
In appeal, the Hon'ble Supreme Court reversed the finding of the Hon'ble Calcutta High Court by holding as follows:
"23. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant traveled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197 (1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officer-in-charge who was stationed at the spot and thereafter a lathi charge took place or there was an Page No.# 47/59 attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in- charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey (supra), it has to be held that a sanction under Section 197 (1) of the Code of Criminal Procedure is necessary in this case.
24. We may in this context notice the decision in Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors. [(2001) 5 SCC 7). This Court was dealing with officers who were brought within the protective umbrella of Section 197 of the Code by a notification issued under Section 197(3) thereof. Cognizance had been taken of an offence under Sections 220 and 342 of the Indian Penal Code and Sections 147 and 148 of the Bombay Police Act. The gravamen of the charge was the failure on the part of the accused police officers to produce the complainants before a magistrate within 24 hrs. of their arrest for alleged offences under the Indian Penal Code. The police officers having claimed the protection of Section 197(1) of the Code, this Court after referring to the earlier decisions held"
Page No.# 48/59 "The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected."
Going by the above test it has to be held that Section 197(1) of the Code is attracted to this case."
51. Learned Senior Counsel for the petitioner has also cited the case of Matajog Dobey Vs. HC Hari, reported in AIR 1956 SC 44. A Constitutional Bench while dealing with the vires of Section 197 of the CrPC held as follows:
"15. The minor contentions may be disposed of at the outset. Even if there was anything sound and substantial in the constitutional point about the 'vires of S. 5 (1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal. Article 14 does not render S. 197, Criminal P. C. 'ultra vires' as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that S. 197, Criminal P. C., vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the Legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion.
Page No.# 49/59 There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. It the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possible complain of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant.
It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the government and not in a minor official. Further, we are not now concerned with any such question. We have merely to see whether the Court could take cognizance of the case without pervious sanction and for this purpose the Court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out.
Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction and foreign to the duty cast one the Court, which is the ascertainment of the true nature of the act."
52. The aforesaid decision of the Constitutional Bench in the case of Matajog Dobey (supra) has been consistently followed. The Hon'ble Supreme Court in the case of General Officer Commanding, Rashtriya Rifles Vs. CBI , reported in (2012) 6 SCC 228 has laid down as follows:
Page No.# 50/59 "50. In Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, the Constitution Bench of this Court held that requirement of sanction may arise at any stage of the proceedings as the complaint may not disclose all the facts to decide the question of immunity, but facts subsequently coming either to notice of the police or in judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction. The necessity for sanction may surface during the course of trial and it would be open to the accused to place the material on record for showing what his duty was and also the acts complained of were so inter-related or inseparably connected with his official duty so as to attract the protection accorded by law. The court further observed that difference between "acting or purporting to act" in the discharge of his official duty is merely of a language and not of substance."
53. Even our High Court in a recent decision dated 17.06.2020 rendered in the case of Bhabesh Chandra Biswas Vs. State of Assam , reported in (2021) 1 GLT 564 has held as follows:
"12. At this stage, it is apt to refer to some of the decisions rendered in respect of Section197 of the Code. A Constitution Bench of the Supreme Court in the case of Matajog Dobey vs. H.C. Bhari, reported in AIR 1956 SC 44, had considered the scope and ambit of Section197, Cr.P.C. The Constitution Bench has observed that public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. The arguments that firstly, Section 197, Cr.P.C has vested an absolutely arbitrary power in the Government to grant or withhold sanction at their sweet will and pleasure, and secondly, the legislature has not laid down or even indicated any guiding principles to control the exercise of discretion, have been repelled. It has been observed that there is no question of any discrimination between one person and another in the matter of taking proceeding against a public servant for an act done or purporting to be done by Page No.# 51/59 the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. It is also observed that Section 197 of the Code is not violative of the fundamental rights of a citizen conferred under Article 14 of the Constitution of India. The Constitution Bench has further observed as under :
"17.Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.""
54. The learned Senior Counsel for the petitioner accordingly summed up his arguments by contending that no case for initiation of a trial is made out by the side of the complainant and therefore, no cognizance could have been taken on the basis of the existing materials before the Court below. In any case, there being no dispute regarding the status of the petitioner to be a police officer and the fact that the offence was committed while discharging his official Page No.# 52/59 duties, the requirement of Section 197 Cr.P.C would come into operation and in absence of sanction to be taken from the competent authority, no cognizance otherwise would have also been taken.
55 The rival contentions of the learned counsel for the parties have been duly considered and the records of the case have been carefully examined.
56. The issue which calls for determination in the instant case can be divided into two folds
-
i) Whether the materials before the learned CJM, Barpeta justifies passing of the order dated 01.09.2015 by which cognizance has taken under Section 302 of the IPC in CR Case No.528/2012.
ii) Whether the statutory embargo laid down in Section 197 of the Cr.P.C would come into play in the present case.
57. With a view to persuade this Court to come to a finding that the materials before the learned Magistrate, even unrebutted, would not make out a prima facie case against the petitioner, Shri Dutta, learned Senior Counsel for the petitioner has strenuously taken this Court to each and every statement of the five numbers of complaint witnesses, including the complainant himself. It is submitted that the inconsistencies appearing in the respective versions of the five CWs, including the version in the complaint would make it clear that the allegations are absolutely concocted, malicious and has been lodged with a view to deter a public servant from discharging his duties sincerely. The inordinate delay of almost six months in lodging a complaint involving an offence, as serious as murder, under Section 302 of the IPC, would be a relevant factor to examine the veracity of the case projected by the complainant.
58. This Court has carefully gone through the materials, including the complaint and the Page No.# 53/59 statements of the five CWs. This Court is also conscious of the fact that the complaint has been lodged after an inordinate delay of about six months and the so called explanation in the NB cannot be construed to be an explanation at all. It is true that for an offence involving Section 302 of the IPC, no limitation, as such, is prescribed under Section 468 of the Cr.P.C, the inordinate delay, that too, without any reasonable explanation raises serious doubt on the veracity of the case projected by the complainant. Further, cognizance has been taken by the impugned order dated 01.09.2015 on the basis of the complaint and the statements of five nos. of CWs where inconsistencies and discrepancies are apparent. Moreover, the said statements are unrebutted statements which have not been baptised by the fire of cross- examination. Having said that, this Court would not like to interfere with the impugned order dated 01.09.2015 by holding the instant case to fall within the exception carved out in the case of Bhajan Lal (supra) that the materials available, even unrebutted, do not make out a case. Since the case is at the nascent stage, this Court would like to give the benefit of doubt to the complainant as it cannot be said that there were no materials whatsoever, to come to a prima facie finding to take cognizance. Further, this Court has noted that since the present is a Sessions Triable Case, the procedures laid down in Section 202 of the Cr.P.C. have been duly followed.
59. The second point of determination is the aspect of Section 197 of the Cr.P.C. Though in common parlance the expression 'bar' is used, there is no absolute bar as such for prosecution of Judges and public servants. Section 197 Cr.P.C. only lays down a special procedure to be adopted for such prosecution. The procedure, as laid down is to obtain a previous sanction of the competent authority. Such requirement in law is with the objective to give certain safeguards to such category of persons so that they can discharge their official duties sincerely and without any fear.
60. The petitioner in the instant case being a police officer, the relevant provisions are Section 197(2) and 197(3) of the Cr.P.C. For ready reference, the aforesaid provisions are extracted herein below:
Page No.# 54/59 "197..........
(2) 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.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted ."
61. There is no dispute to the fact that vide notification dated 29.05.1990 issued by the Home Department of the State of Assam, all members of the Assam Police Force have been brought within the ambit of Section 197 of the Cr.P.C. and the fact that the said notification is still in force was reiterated by a communication dated 12.12.2018 issued to the High Court in the course of the present proceeding. Though the notification dated 29.05.2019 states that deployment has to be for maintenance law and order, the Hon'ble Supreme Court in the case of Rizwan Ahmed (supra) has clarified that discharge of duties for maintenance of law and order and for public order would not make any difference. In the said case of Rizwan, a pari materia notification dated 02.06.1979 of the Home Department of the State of Maharashtra was the subject matter of interpretation which also contain the expression " charged with the maintenance of public order ". As has been observed above, the Hon'ble Supreme Court had categorically laid down that "such official duties did not necessarily be one related to the maintenance of public order". Therefore, this Court is left with no other option but to hold that the notification dated 29.05.1990 of the Home Department would be applicable in the instant case.
62. What is now required to be seen is whether the offence alleged to have been Page No.# 55/59 committed was in discharge of official duties. The offence alleged is murder of the deceased Jahangir while he was in custody. The incident had occurred while the said Jahangir was taken to the spot in the mid of the night to locate the body of the driver of the Ford Figo vehicle who was killed by the said Jahangir and the other accomplices. It was under the circumstances when the deceased tried to flee by snatching the pistol from the petitioner that he was shot by another member of the police team. Discovery of the dead body of the driver of the Ford Figo vehicle also gives credence to the case projected by the petitioner.
63. Though Shri Kamar, the learned Senior Counsel for the respondent no. 2 may be right in pointing out that the protection under Section 197 of the Cr.P.C. is not an absolute one unlike Section 19(1) of the Prevention of the Corruption Act, 1988, what is required to be seen is that whether the offence alleged to have been committed was in discharge or purported discharge of his official duties. For illustration, there can be many offences which are not connected with discharge of official duties like those under Sections 376, 498(A), 500 IPC etc. Even in a given case, offence under Section 300 of the IPC may not be in connection with discharge of official duties when a police officer may be accused of causing death to a person which is not at all in connection with his duties. However, in the instant case, it would be difficult for this Court to come to a finding that the offence alleged to have been committed was not done while in discharge of official duties. Admittedly, the incident had occurred when a team of police personnel headed by the petitioner had gone out to the place of occurrence led by the deceased Jahangir to find out the dead body of the driver of the Ford Figo vehicle and as a matter of fact the body was indeed found.
64. Though Shri Kamar, the learned Senior Counsel had forcefully argued that discharging of duties by a police officer does not authorise him to kill a person, this Court, though on principle agrees to such proposition, it is only with a purpose to deal with situation like the present one that Section 197 of the Cr.P.C. was incorporated. At the same time, as has been pointed out, one cannot be oblivious of the fact that the Code authorises a police officer or other person to use all means necessary to affect the arrest when a person forcefully resist or attempts to evade the arrest.
Page No.# 56/59
65. The protective umbrella given under Section 197 of the Code is to protect responsible public servants against institution of vexatious criminal proceedings for alleged offences committed by them in acting or purported to act as public servant. The said protection, as has been observed above is to give a sense of security to discharge their function without any fear or favour. The legislative intent for such enactment is to afford adequate protection to the public servants to ensure that they are not prosecuted for actions taken as part of official duties without reasonable cause. As the statute itself prescribes, certain limits are attached to such protection and only when the allegation is in connection with discharge of official duties and not merely a cloak for doing objectionable acts. The Hon'ble Supreme Court has gone to the extent of holding that if in doing the official duty, the public servant acted in excess of its duty but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The Section however does not extend its protective cover to each and every act or omission done by the public servant in service but restricts its scope of operation to only those acts or omission done by the said public servant in discharge or purported discharge of official duties.
66. In the opinion of this Court, gravity or seriousness of the offence has got no manner of connection with the law requiring procurement of sanction under Section 197 of the Cr.P.C. The only requirement is that the offence alleged has to be committed in discharge or purported discharge of official duties by a public servant who falls within the definition of the said Section.
67. The Constitution Bench of the Hon'ble Supreme Court in the case of Matajog Dobey having upheld the vires of Section 197 of the Cr.P.C., the only duty left to this Court is to see whether a case for applying the rigors of the said Section are duly complied with or not. As stated above, the status of the petitioner as a police officer is not disputed. There is also no dispute regarding the notification dated 29.05.1990 issued by the Home Department, Government of Assam in accordance with Section 197(3) of the Cr.P.C. to bring in a police officer within its ambit. The applicability of the said notification regarding in charge of Page No.# 57/59 maintenance of public order or maintenance of law and order would not be relevant as the thin distinction has been done away with by the Hon'ble Supreme Court in the case of Rizwan Ahmed (supra). This Court has already held above that the offence alleged was committed in discharge of official duties when the petitioner along with its team were led to the place of occurrence by the deceased and when the deceased had tried to flee by snatching the pistol, he was shot. Whether, the said commission constitutes an offence is for the prosecution to establish but in accordance with the law and by overcoming the hurdle of Section 197 of the Cr.P.C. At this juncture, it would be beneficial to refer to the case of Nazir Ahmed vs. King Emperor, reported in AIR 1936 PC 253 (II) wherein it has been laid down when a particular procedure is prescribed by the statute, that procedure must be followed and all other modes are necessarily forbidden. For ready reference, the relevant part is extracted herein below:
"The rule which applies is a different and not less well recognized rule-- namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
68. One may also gainfully refer to a recent judgment of the Hon'ble Supreme Court dated 18.06.2020 passed in Criminal Appeal No. 458 of 2020 (D. Devaraja VS. Owais Sabeer Hussain), which is on a similar situation. For ready reference, the relevant paragraphs of the said judgment are extracted hereinbelow:
"73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a 33 policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.
Page No.# 58/59
74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act . ...
...
...
77. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.
78. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty. "
69. In view of the aforesaid facts and circumstances, while this Court would be reluctant to interfere with the impugned order dated 01.09.2015 on the ground of lack of materials to come to a prima facie satisfaction to take cognizance, the same is however interfered with on the second ground, namely, failure to obtain sanction under Section 197 of the Cr.P.C. Accordingly the criminal proceeding in CR Case No. 528 / 2012 under Section 302 IPC before Page No.# 59/59 the Addl. Chief Judicial Magistrate, Barpeta and the impugned order dated 01.09.2015 passed in the said proceedings by which cognizance has been taken are set aside and quashed. It is however needless to mention that since the interference is on the ground of lack of prior sanction, the complainant would be at liberty to apply for such sanction from the competent authority and thereafter take subsequent steps in accordance with law.
70. The present petition stands accordingly allowed to the extent indicated above.
JUDGE Comparing Assistant