Delhi District Court
S.I. Amit Kumar Yadav vs Rajender Pawar on 6 August, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-5, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
REVISION PETITION NO. 29 of 2020
IN THE MATTER OF:
S.I. Amit Kumar Yadav,
Sub Inspector, Delhi Police,
P.S. Badarpur, New Delhi,
Presently posted at PS Connaught Place
.......Revisionist
Versus
Rajender Pawar,
S/o Sh Balram Singh Pawar,
R/o H. No. M-107A, Sourabh Vihar,
Hari Nagar Extn., Jaitpur, Badarpur, New Delhi
........Respondent
Instituted on : 15.01.2020
Reserved on : not reserved
Pronounced on : 06.08.2021
JUDGMENT
1. Revisionist takes exception to order dated 28.06.2017 whereby and whereunder learned Additional Chief Metropolitan Magistrate, South East District, Saket Court, New Delhi summoned him to face trial for the offence punishable under section 409, IPC in case bearing CT Case No. 625591/2016, PS Badarpur titled 'Rajender Pawar v. SI Amit Kumar Yadav'.
Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 1 of 18
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.06
13:53:14 +0530
2. Brief facts may be taken note of: Respondent instituted a complaint under section 200 Cr.P.C. alleging commission of offence punishable under section 409 IPC on the allegation that revisionist, being an official of Delhi Police, committed criminal breach of trust by not returning his personal search articles. He averred in his complaint that revisionist herein being Investigating Officer in FIR No. 426/2008 under sections 420/120B, IPC PS Badarpur had issued him a notice under section 160 Cr.P.C. Respondent was granted interim bail (anticipatory) vide order dated 30.04.2012 which was later made absolute vide order dated 10.07.2012 of learned Sessions Court.
3. On 03.05.2012, revisionist came at respondent's house, arrested him and brought him to police station and conducted his personal search. In personal search, a gold chain weighing 15 grams, a gold ring weighing 6 grams, cash of Rs. 8,500/- and a purse was seized. Revisionist obtained his signature as also that of a witness, namely, Vinod on the personal search memo. He asserts that the revisionist told him that his personal search articles would be returned to him after confirmation of his anticipatory bail. According to him, his neighbour Mr. Dharambir had furnished the surety bond and thereupon he was released on bail. The allegation is that revisionist never returned his personal search articles and he submitted a false reply in response to his application for release of such articles stating that neither any personal search was conducted nor any item was seized.
4. As per respondent, when police took no action on his complaint, he instituted a criminal complaint before the concerned court. In pre-summoning evidence, respondent examined himself as CW1 and Sh. Vinod Kumar as CW2. Learned Trial Court then summoned the revisionist Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 2 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:53:25 +0530 vide the impugned order.
5. The relevant observations of learned Trial Court are being reproduced as under for the sake of convenience:
"To prove his case, complainant has examined himself before the court as CW1 thereby reiterating contents of his complaint. His surety Vinod Kumar has also deposed before the Court as CW2 thereby deposing that accused had taken personal search of Rajender and has seized the gold chain, rings and case of Rs.8,500/-. He further deposed that he had also signed on personal search along with complainant. Further, as accused is also a police official, but act of criminal breach of trust cannot be said to be under the color of duty. Hence, permission under section 197 Cr.P.C. is not required.
On the basis of above, prima facie there is sufficient evidence to summon accused ie SI Amit Kumar Yadav and he is hereby summon for the offence under section 409 IPC."
6. Revisionist is aggrieved with the impugned order and has assailed the same on various grounds which can be summarized as under:
i) That the impugned order is wholly illegal, unlawful and has been passed sans application of judicial mind;
ii) That learned Trial Court failed to appreciate the fact that revisionist is a Sub-Inspector in Delhi Police and sanction u/s 197 is mandatorily required before prosecuting;
iii) That learned Trial Court failed to appreciate the fact that revisionist was working under the colour of his duty when he made the formal arrest of respondent;
iv) That learned Trial Court failed to appreciate the fact that respondent being an accused in the FIR No.426/08 PS Badarpur has falsely implicated the revisionist who was Investigating Officer in the said FIR so as to harass him;
v) That learned Trial Court failed to appreciate the fact that chargesheet in case FIR No.426/08, PS Badarpur has already been filed and the allegations levied by respondent in his complaint are contrary to said chargesheet.
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7. Learned Counsel for revisionist has argued on similar lines as set out in the instant revision petition. He vehemently argued that learned Trial Court erred in law by summoning the revisionist. It is urged that revisionist committed no such act as alleged by respondent and that respondent has falsely implicated him. It is further urged that for want of prior sanction, the very cognizance against the revisionist is barred as he committed the alleged act, if any, in official discharge of his duty. It is also argued that the prosecution in the instant case is also barred under section 140 Delhi Police Act (hereinafter referred to as DP Act). On the strength of said arguments, revisionist seeks setting aside of impugned order.
8. Per contra, learned counsel for respondent has vehemently argued that there is no infirmity in the impugned order and learned Trial Court has rightly summoned the revisionist. He that the act of criminal breach of trust, by no stretch of imagination, can said to have been committed in official discharge of duty and therefore, no prior sanction was required for prosecution of the revisionist. It is submitted that the present revision petition is misconceived and therefore, liable to be dismissed. Ld counsel for respondent has relied upon following judgments in support of his contentions :-
a) Punjab State Ware Housing Corporation Vs Bhushan Chander & Anr, Crl Appeal No 159/2016 @ SLP (Crl) 3906/2012, dated 29.06.2016;
b) State of UP Vs Parasnath Singh, Crl Appeal No 499/2004, CM Case No 1074/2000 dated 05.05.2019;
c) Bholu Ram Vs State of Punjab & Anr, Crl Appeal No 1366/2008, dated 29.08.2008 and
d) G S Rahi Vs State of Chattisgarh, WP Crl. No 56/2013, dated 17.12.2014.
9. Arguments heard. Record perused.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.06
13:54:00 +0530
10. On the basis of material available on record, following facts are not in dispute:
a) that respondent is an accused in case FIR No.426/08, PS Badarpur under sections 420/120B/34 IPC and has been chargesheeted;
b) that revisionist is the Investigating Officer in the said FIR and he had affected respondent's arrest;
c) that respondent moved an application seeking release of personal search articles before concerned court which stood dismissed vide order dated 18.07.2012 in view of report of revisionist/Investigating Officer who reported that neither any personal search of respondent was conducted nor any item was seized by him during his arrest;
d) that on 31.10.2012 respondent instituted a criminal complaint under section 200, Cr.P.C. against the revisionist alleging commission of offence punishable under section 409, IPC.
11. Before proceeding, it would apt to recall the note of caution that was voiced by the Hon'ble Apex Court in M/s. Pespi Foods & Anr Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128. The Apex Court held that summoning of an accused in a criminal case is a serious matter. The relevant observations at paragraph 26 of the judgment is reproduced hereunder:
"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 that would 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 Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 5 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:07 +0530 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".
12. For appreciating the rival contentions and for just adjudication, the statutory provisions of section 140 of Delhi Police Act as also section 197 of Cr.P.C., which have important bearings in the instant matter, are being reproduced as under:
"140. Bar to suits and prosecutions.--(1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) .................
(3) .............."
Section 197 Cr.P.C. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: ... (2) .........
(3) .........
(3A) .......
(3B) .........
(4) .......
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13. Apex Court in Sankaran Moitra Vs. Sadhna Das & Anr., (2006) 4 SCC 584, observed as under :-
"12 We may first try and understand the scope of Section 197 and the object of it. This Court in Shreekantiah Ramayya Munipalli v. State of Bombay [1955 (1) SCR 1177) explained the scope of Section 197 thus:
Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is--
'When any public servant ... 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....'We have therefore first to concentrate on the word offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an entrustment' and/or dominion'; second, that the entrustment and/or dominion was in his capacity as a public servant'; third, that there was a disposal'; and fourth, that the disposal was dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 7 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:23 +0530 was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
This Court therefore held in that case that Section 197 of the Code of Criminal Procedure applied and sanction was necessary and since there was none, the trial was vitiated from the start.
13. Again in Amrik Singh v. State of Pepsu [1955 (1) SCR 1302] this Court after referring to the decisions of the Federal Court and the Privy Council referred to earlier and some other decisions summed up the position thus:
"The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
14. After noticing the facts of that case, Their Lordships stated:
"In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
15. Their Lordships then quoted with approval the observations in the decision in Shreekantiah Ramayya Munipalli v. State of Bombay (supra).
16. A Constitution Bench of this Court had occasion to consider the scope of Section 197 of the Code of Criminal Procedure in Matajog Dobey v. H.C. Bhari [1955 (2) SCR 925], after holding that Section 197 of the Code of Criminal Procedure was not Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 8 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:31 +0530 violative of the fundamental rights conferred on a citizen under Article 14 of the Constitution, this Court observed:
"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 Section 197, Criminal Procedure Code 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. 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."
17. On the test to be adopted for finding out whether Section 197 of the Code was attracted or not and to ascertain the scope and meaning of that section, Their Lordships stated:
"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 Section 197, 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."
18. After referring to the earlier decisions of the Federal Court, the Privy Council and that of this Court, Their Lordships summed up the position thus:
"The result of the foregoing discussion is this:
There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 9 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:38 +0530 but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
Their Lordships then proceeded to consider the stage at which the need for sanction under Section 197(1) of the Code had to be considered. Their Lordships stated:
"The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
19. In the light of the above decision it does not appear to be necessary to multiply authorities. But we may notice some of them briefly. In Pukhraj v. State of Rajasthan & Anr. [(1973) 2 SCC 701] this Court held:
"While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 10 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:46 +0530 private capacity by a public servant.
Expressions such as the capacity in which the act is performed', cloak of office' and professed exercise of the office' may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
20. In B. Saha v. M.S. Kochar [(1979) 4 SCC 177] this Court held:
"18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
21. In Bakhshish Singh Brar v.Gurmej Kaur & Anr. [(1987) 4 SCC 663], this Court stated that it was necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, and that is the rationale behind Section 196 and Section 197 of the Code. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. Protection of public officers and public servants functioning in discharge of their official duties and protection of private citizens have to be balanced in each case by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. In the recent decision in Rakesh Kumar Mishra v. State of Bihar & Ors. [2(2006) 1 SCC 557] this Court after referring to the earlier decisions on the question stated:
The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned.
22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 11 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:52 +0530 cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question.
14. Further, while dealing with the case wherein the accused, an official of Delhi Police, was being prosecuted for offence punishable under section 304A of IPC, Hon'ble High Court of Delhi in case titled Rakesh Kumar No. 1912/T Vs. State (NCT of Delhi), 2009 SCC OnLine Del 533 :
(2010) 116 DRJ 484 (Del) dealt with the similar issue. The facts of said case as noted by Hon'ble High Court at paragraph 8 are as under:
"8. I have heard learned counsel for the parties who have taken me through the record of the case. The petitioner, admittedly was deployed on deputation in the traffic department of the Delhi Police and was working as a constable. On 3.1.2002, the date of the incident, he was driving the crane bearing No.DL- 1L-E0611. When he reached Raisina Road, Delhi he found a vehicle bearing No.DLIV-6092 parked illegally near Kendriya Bhandar, Raisina Road, Delhi. Finding that the vehicle was parked illegally and in a no parking area', the petitioner on the directions of his superior, put the hook of the said traffic crane into the bumper of the parked vehicle so that the vehicle could be lifted and removed from the no parking place. However, at the request of the driver of the vehicle that the vehicle in question was a government vehicle, the petitioner was directed by his superior to loosen the iron rope so as to free the hook from the parked vehicle. It is, at this stage that the iron nub struck on the head of one Deepak, who was part of the vehicle lifting squad, standing nearby and on account of the head injury suffered by him, he was declared brought dead at the hospital."
15. The relevant observations of Hon'ble High Court are as under:
"12. I find that the learned Metropolitan Magistrate as well as the learned ASJ have failed to apply their mind and dismissed the application/revision of the petitioner only on the ground that sanction under section 140 of the Delhi Police Act was not necessary. In view of the decision rendered in the case of S.I. Manoj Pant (Supra), I find that in the facts of this case, the sanction was not obtained within the period of limitation, as per the provisions of Section 140 of the Delhi Police Act. The offence Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 12 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:54:59 +0530 herein was admittedly committed on 3.1.2002, thus limitation for obtaining the previous sanction of the administrator for institution of the criminal prosecution under Section 140 of the Delhi Police Act, expired on 2.1.2003. The challan in this case was filed in the court by the prosecution on 12-13.5.2003 without obtaining the previous sanction from the administrator. The sanction for institution of criminal proceedings was obtained on 23.9.2003. Thus it is crystal clear that the sanction for prosecution was obtained well after the period of limitation was over. It has been held by the Apex Court in the case of Manjula Sinha Vs. State of UP & Ors., 2007 [3] JCC 2054, that if the Court comes to the conclusion that continuance of proceedings would amount to an abuse of the process of the Court and quashing all the proceedings would serve the ends of justice, the proceedings should not be continued.
13. Having considered the fact that on account of the basic lacunae, the complaint is not likely to succeed, there would be no useful purpose in keeping the same pending. In the facts and circumstances of this case and having regard to the provisions of section 140 of the Delhi Police Act; taking into consideration that the mandatory requirement of sanction was not fulfilled; and also the fact that respondents had filed the sanction but beyond the period of limitation, hence there exists no sanction in the eyes of law, accordingly, this petition deserves to be allowed. Consequently, order dated 13.7.2004 passed by the learned Metropolitan Magistrate and order dated 30.10.2004 passed by the learned Additional Sessions Judge, Delhi, in case FIR No.3/2002 under Section 304A IPC, are set aside and proceedings quashed against the petitioner."
16. Further, in The State of NCT of Delhi Vs. Samunder Singh, {Crl M. C. No. 1234/2011 decision dated 31.03.2014 of Delhi High Court}, summoning order passed by learned Magistrate against two Delhi Police officials for commission of offences punishable under sections 193/341/364A/506/34 IPC was under challenge. It was observed:
"5. After having heard both the sides and on perusal of impugned order, pre-summoning evidence, material on record and the decisions cited, I find that truthfulness of the allegations levelled cannot be gone into while exercising inherent powers under Section 482 of Cr.P.C. but what stares in the face is that instant complaint prime facie appears to be a counterblast to FIR No.199/2003 registered against Rajesh Rathi, son of respondent- complainant, who is a dismissed police official and is said to be Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 13 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:55:06 +0530 also involved in other criminal cases including FIR case No.186/03 under Section 392/397/34 of IPC registered at P.S. Naraina, Delhi. It is pertinent to note that respondent- complainant's version of his son Rajesh Rathi being abducted get clouded by the fact that he was apprehended in FIR No.199/2003 under Sections 399/402 of IPC read with Section 25/27 of the Arms Act by SI Raj Kumar and his staff. In any case, merits of instant complaint cannot be pre-judged at this stage. It would suffice to note that in a complaint case like instant one, requirement of prior sanction for prosecution of SI Raj Kumar and ASI Charan Singh cannot be undermined. It cannot be said that the alleged offence is not reasonably connected with the performance of official duties by these two police officials. On this aspect, pertinent observations made by Apex Court in Anjani Kumar (supra) are as under:
"The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his 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 question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it.
The act must fall within the scope and range of the Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 14 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:55:14 +0530 official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant."
6. Afore-noted dictum stands reiterated by Apex Court in Anil Kumar & Ors. v. M.K. Aiyappa & Ors. (2013) 10 SCC 705 in these words:
"Thus, in view of the above, the law on the issue of sanction can be summarized 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.....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 initio."
7. In the considered opinion of this Court the afore-noted dictum aptly applies to the facts of the instant case, as I find that SI Raj Kumar and ASI Charan Singh had acted in the course of their official duties and so, impugned order summoning them as an accused without prior sanction under Section 140 of Delhi Police Act renders impugned summoning order unsustainable and it is accordingly quashed. However, liberty is granted to respondent-complainant to obtain statutory sanction under Section 140 of Delhi Police Act within four weeks and if statutory sanction under Section 140 of Delhi Police Act is not granted, then, proceedings in the complaint in question shall come to an end. It is expected that this exercise would be completed within a reasonable time i.e. within a period of three months."
Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 15 of 18
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2021.08.06
13:55:22 +0530
17. Now turning to facts of present case. Revisionist committed the alleged act of criminal breach of trust, if any, under color of / official discharge of his duty. This is because respondent's very case is that revisionist, while conducting his personal search in his capacity as Investigating Officer, misappropriated his personal search articles, i.e. one gold chain of 15 grams, one gold ring of 6 grams, cash of Rs. 8,500/- and the purse. Therefore, revisionist's alleged act is inextricably linked with his official act of conducting the personal search which was and which could have only been conducted by him whilst being the Investigating Officer in FIR No. 426/2008, PS Badarpur, under sections 420/120B/34 IPC. Therefore, the act of entrustment, if any, was conducting of personal search (by revisionist) of respondent and seizing of articles / cash (as claimed by respondent). Further, the alleged act of subsequent misappropriation was revisionist's report wherein he had shown the personal search articles as 'NIL', which again, to my mind, was an act that he allegedly committed in official discharge of his duty being Investigating Officer of FIR No. 426/2008 PS Badarpur.
18. Therefore, once it is held that revisionist's alleged act was done by him in official discharge of his duty, the bar of section 197 Cr.P.C. comes into picture as very cognizance of the alleged offence was barred without requisite prior sanction of Competent Authority.
19. Further, if the present case is tested upon statutory provisions of section of 140 Delhi Police Act also, which is wider in nature than section 197 of Cr.P.C., then too, in my view, the impugned order suffers from impropriety having been passed in ignorance of said provisions. In terms of statutory provisions of section 140 (1) of Delhi Police Act, the maximum Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 16 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:55:29 +0530 time limit within which, the prosecution can be initiated is three months from the date of offence. Record reveals that the concerned learned Metropolitan Magistrate had dismissed respondent's application for release of his personal search articles on 18.07.2012 in his very presence; meaning thereby that he was in the knowledge of the alleged misappropriation on 18.07.2012 itself. Counting therefrom, the period of three months expired on 18.10.2012; whereas admittedly the respondent instituted the criminal complaint under section 200 Cr.P.C. against the revisionist alleging commission of offence punishable under section 409 IPC on 31.10.2012, i.e. beyond the statutory period of three months.
20. Though, the proviso to section 140 (1) of Delhi Police Act gives discretion to the Court to entertain a prosecution against a police official for an offence or for any wrongful act committed under color of the duty beyond the statutory period of three months and within extended period of one year, yet for that, prior sanction of Administrator is a must. Admittedly, in the present case, respondent herein did not obtain any prior sanction of concerned Administrator so as to entitle him to initiate prosecution against the revisionist beyond statutory period of three months and within extended period of one year from the date of knowledge of alleged offence.
21. Therefore, in view of the statutory provisions of section 140 of Delhi Police Act and section 197 of Cr.P.C. and in view of the settled legal position as laid down in Sankaran Moitra (supra), Rakesh Kumar (supra) and Samunder Singh (supra), I am of the view that prosecution of revisionist by the respondent sans requite prior sanction in terms of section 197 of CrPC, is bad in law. Further, it, being beyond the statutory period of three months and sans any prior sanction of Administrator entitling him to the extended period Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 17 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:55:37 +0530 of one year as per proviso to 140 (1) of Delhi Police Act, is again bad in law. Mere serving of notice by respondent to revisionist under Delhi Police Act, would not tantamount to statutory compliance of section 140 of DP Act.
22. Resultantly, the impugned order of summoning having been passed in ignorance of salutary provisions of section 140 of Delhi Police Act and section 197 of CrPC cannot be sustained in the eyes of law and is liable to be set aside. None of the judgments relied upon by Ld counsel for respondent comes to his aid in the factual matrix of present case.
23. To summarize, in view of the statutory bar of section 197 of Cr.P.C. as well as section 140 of Delhi Police Act, the very cognizance in the instant case was barred sans prior sanction of competent authority. Therefore, the impugned order cannot be sustained in eyes of law. It accordingly stands reversed. The instant revision petition stands allowed in terms of aforesaid observations.
24. TCR be sent back to learned Trial Court with copy of this judgment.
25. Revision file be consigned to Record Room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2021.08.06 13:55:45 +0530 Announced in the open (ANUJ AGRAWAL) Court on 6th August '2021 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 29 of 2020 S.I. Amit Kumar Yadav Vs Rajender Pawar Page No. 18 of 18