Gujarat High Court
State Of Gujarat vs Jaysinh Ajitsinh on 25 June, 2013
Author: R.D.Kothari
Bench: R.D.Kothari
STATE OF GUJARAT....Applicant(s)V/SJAYSINH AJITSINH CHAUHAN....Respondent(s) R/CR.RA/73/2006 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 73 of 2006 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ STATE OF GUJARAT....Applicant(s) Versus JAYSINH AJITSINH CHAUHAN....Respondent(s) ================================================================ Appearance:
MR NJ SHAH, ADDL. PUBLIC PROSECUTOR for the Applicant(s) No. 1 MR MM TIRMIZI, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE R.D.KOTHARI Date :25/06/2013 CAV JUDGEMNT
1. Pabjibhai, prisoner in Sub-Jail, set himself on fire on 28.3.1999. In that condition, he ran towards gate of the Sub-Jail. Police guards, jail inmates and other tried to save him by throwing quilt, using water and sand etc. All their attempt to save him failed. Pabjibhai fell down on the road and died. Pabjibhai & others about half dozen prisoners were arrested on 3.3.1999 in connection with an offence registered as I-C.R.No.14 of 1999 before Sami Police Station for offence under Sections 302 and 114 of IPC. Since 4.3.1999 they were in judicial custody. The present case for offence under Section 306 of IPC arose as under :
1.1 Brother of the father-in-law of the deceased had lodged the criminal complaint from which the present Revision Application arises. It was lodged on 6.4.1999 before the Sami Court. The said complaint was registered as Inquiry Case No.1 of 1999 and later on, it was numbered as Case No.488 of 1999. The principal say of the complainant in the complaint is that accused herein, who is the I.O. in the above referred case registered as I-C.R.No.14 of 1999, was repeatedly making (monetary) demand by saying to the deceased that other accused have settled their account and account of deceased is yet not settled. It is alleged that PSI was abusing and threatening the deceased. In other words and in substance, grievance is of extortion by PSI. It is further say of the complainant that deceased was disturbed and frightened on account of this and he has committed suicide.
2. Criminal Case No.488 of 1999 was committed by the Sami Court and same was registered as Sessions Case No.426 of 2002. PSI accused has filed an application for discharge (Exh.5). Learned Addl. Sessions Judge, after hearing the State and the accused, was pleased to allow the application. The principal ground, inter alia, is that sanction for prosecution as contemplated under Section 197 of the Cr.P.C. is not obtained by the complainant. Hence, the accused deserves to be discharged.
3. Before referring to the finding of the learned Addl. Sessions Judge and submissions of learned advocates for the parties, a reference may be made to the case law on the point.
4. Three question would be important to appreciate the case of applicability of Section 197 of Cr.P.C.;
a) Object and purpose of Section 197;
b) Stage at which it is to be invoked or applies; and
c) Duties;
whether the act is in discharge of official duty or in purported exercise of official duty or not.
Object and purpose of Section 197 4.1 In the case of Choudhury Parveen Sultana v. State of West Bengal & Anr., (2009) 3 SCC 398, the accused was a police officer. Referring to the object of Section 197, it was held that underlying object of Section 197 is to protect the public officer from frivolous, vexatious and false prosecution. It is intended to protect the official from causing harassment and embarrassment. The plea for protection under Section 197 was rejected in that case.
4.2 In the case of Center for Public Interest Litigation and Anr. v. Union of India and Anr., reported in AIR 2005 SC 4413, the Supreme Court has held in Para.9 as under :
9. 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 from the prosecution. ....
4.3 In the case of State of Himachal Pradesh v. M.P.Gupta, AIR 2004 SC 730, the Supreme Court had pointed out that facts of a given case determines that interpretation to be placed on Section 197 should be narrow and constrict or liberal and broad. It was held that want of sanction is not a bar for prosecution. Allowing the State s appeal, it was held that public servant is not entitled to indulge in criminal activities, in that sense and to that extent, section is required to be considered narrowly and strictly. In such cases, if it is established that act or omission was done by the public servant while discharging his duty, then scope of its being official should be construed so as to advance the objective of the said section and in favour of public servant. It also held that if prima facie there is a reasonable connection with discharge of his duty, then applicability of Section 197 cannot be disputed. Plea of the public servant as to bar of Section 197 was rejected.
Stage at which it is to be invoked or applied.
4.4 In the case of Bakhshish Singh Brar v. Smt. Gurmej Kaur & Anr., AIR 1988 SC 257, dismissing appeal of the accused, it was held that both the courts have rightly rejected the application of the accused. In that case, during the course of investigation, the complainant and others had received the injuries and on account of such injuries, one of the person had died. Relying on decision in the case of Pukhraj v. State of Rajasthan and Anr., AIR 1973 SC 2591, it was held that let the trial be proceeded. It was held in Para.6 as under :
6. In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. It is 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, that is the rationale behind S. 196 and S. 197 Cr. P.C. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has, become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced 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. It is true that section 196 states that no cognizance can be taken and even after cognizance having-been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.
4.4A In the case of Bholu Ram v. State of Punjab & Anr., (2008) 9 SCC 140, the clerk of high school had alleged to have forged the sign of head-master and alleged to have misappropriated Rs.1 lac by said act. The High Court had allowed the petition filed by the accused. Allowing the appeal, the Supreme Court had held that plea of sanction can be considered at any stage of the proceeding, during the course of trial. The interference at the stage of issuance of process / summons is not proper. It also held that offence under Sections 405, 420 and 467 etc. are not such that it can be said that accused has done in exercise of his duty or purported exercise of his duty.
In the case of Pukhraj v. State of Rajasthan and Anr., AIR 1973 SC 2591, an employee of Postal Department has filed a complaint against the superior alleging that superior had kicked him in abdomen and has abused him. On behalf of the accused, Section 197 was invoked. There, the accused had invoked Section 197 at earliest stage, i.e. upon lodging of the complaint. The learned JMFC was pleased to reject the plea, however, the High Court had allowed the same. The Supreme Court allowing the appeal in fairly short judgment has held and concluded in Para.3 as under :
3.
We must also make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad v. King Emperor, 1945 FCR 227 = (AIR 1946 FC 25) referring to the observations of Sulaiman, J. in Hori Ram Singh's case (supra) the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in (1955) 2 SCR 925 = (AIR 1956 SC 44) (supra).) In (1971) 1 SCR 317 = (AIR 1970 SC 1661) (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197 Cr.P.C. (emphasis original) 4.6 In the case of Rakesh Kumar Mishra v. State of Bihar, AIR 2006 SC 820, it was held that concept of Section 197 does not get attracted immediately on institution of the criminal complaint. The Court has also considered how to ascertain that the act complained of has protection of Section 197 or not. It was laid down that one safe and sure testis to consider whether 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.
4.7 In Bakhshish Singh s case (supra) in Para.5, it was held as under :
5. This Court in the aforesaid decision had occasion to consider this aspect. The case is instructive and illustrative how a balance has to be struck between the need for speedier trial of criminal offenders and at the same time protecting public servants or police officials in the discharge of their duties without obstructions. There the appellant had filed a complaint against his superior officer, in the Postal Department under Ss. 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the said respondent kicked him in his abdomen and abused him by saying "Sale, gunde, badmash......" The said respondent filed an application under S. 197 Cr. P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by S. 197 Cr. P.C. It was further contended that the alleged acts, if at all done by the accused were done while discharging his duties as a public servant. The trial Magistrate dismissed the application. The High Court allowed the revision application of the said respondent. This Court on appeal held that at that stage, the Court was concerned only with one point, viz., whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his. duties. Applying the test laid down in the decisions of the Federal Court and this Court to acts complained of, viz., kicking the complainant and abusing, could not be said to have been done in the course of the performance of the duty by the said respondent. The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial might establish the necessity for sanction, it was observed. This Court noted that it might be possible for the said respondent to place materials on record during the course of the trial for showing what his duties were and also that the acts complained of were so inter-related with his official duty, so as to attract the protection afforded by S. 197 Cr. P.C. This Court reiterated that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case. This Court allowed the appeal and allowed the trial to proceed without the sanction.
4.8 In the case of S.K.Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004 SC 4174, the appellants before the Supreme Court were accused, members of Boarder Security Force (BSF). The allegation was, they had demanded Rs.10,000/- as a bribe from the respondent and on refusal to pay by the respondent, they have caused damage and looted the shop of the respondent. It was held that if there exists reasonable connection with act complained of and duty as a public servant, then even if the public servant has acted in excess of his duty, the excess will not deprive him of the protection. However, in that case, it was held that sanction is not necessary.
4.9 Shri Tirmizi has drawn attention to the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., AIR 1998 SC 1524, it was held, thus :
Criminal P.C. (2 of 1974), S.197(1) Sanction for prosecution Issuance of process by Magistrate for appearance of accused on being satisfied that there is sufficient ground for proceeding Plea by accused before Magistrate that offence was committed by him in discharge of official duty and that Court had no power to take cognizance in absence of previous sanction of Government Accused can produce relevant material to establish necessary ingredients for invoking S.197(1).
(emphasis supplied) 4.9.1 In that case, it was held that sanction is necessary. The Collector, S.P. and others were accused.
4.10 The decision in the case of Sankaran Moitra v. Sadhna Das & Anr., (2006) 4 SCC 584 is important as the Court was divided in its opinion. In that case, the incident had occurred on 10.5.2001. On 12.5.2001, a complaint was filed. On the day of incident, there was Assembly election in Calcutta. The deceased was active party worker. It was alleged that he was distributing the food packets. His wife after casting her vote, when returned at home, was informed that her husband is beaten by the police and he is in hospital. Her husband had died by drowning. It was alleged that police had forced him to jump in lake although the deceased had requested the police not to beat and also said to have requested that he does not know how to swim. However, he was forced to jump in the lake. On the complaint being filed before the Court, the PI accused had filed an application under Section 482 of Cr.P.C. before the High Court invoking Section 197. The High Court had rejected the petition holding that to kill the person cannot be considered to be a part of his official duty. In appeal, majority was pleased to allow the appeal referring and relying on the earlier case law on the point.
Thakker,J. In his elaborate dissenting judgment, however, had agreed with the High Court and held that sanction is not necessary.
5. At the time of hearing, learned APP has submitted that learned Addl. Sessions Judge has seriously erred in allowing the application of the respondent and therefore, the present Revision of the State should be allowed. During the hearing, R & P was called for. The learned APP has drawn attention to relevant material from R & P.
6. Learned advocate Shri Tirmizi for the respondent has strongly opposed the submissions made by learned APP. It was submitted that learned Addl. Sessions Judge has given cogent and sufficient reasons in an order under challenge and therefore, no interference is called for. It was also submitted that State has not successfully established the reason for interference in the order under challenge. Shri Tirmizi has also submitted that complainant before the Court in the present case is an accused and while appreciating the say of the complainant, this fact should be bear in mind. It was also submitted that respondent herein was investigating the same case wherein deceased and other prisoners were accused and therefore, they have all the more reason to advance unacceptable exaggeration. Shri Tirmizi has also drawn attention to Sureshkumar B. Jain s case (supra).
7. The learned Addl. Sessions Judge in an order under challenge, after briefly referring to facts and submissions of learned advocate for the parties, concluded, thus :
(i) That it cannot be denied that complainant had given the complaint only on the basis of presumption.
That the police and the jail both are separate departments. If any one wants to visit jail, then as per Jail Manual, time, name and reason for the visit etc. is required to be recorded in the register.
(iii)Accused / deceased at the relevant time was in judicial custody.
Accused in the present case is responsible police officer. It is not possible to believe that he would go to jail and publicly make demand for money.
(v) There is no evidence on record to show that on the day of incident, PSI had given any threat or intimidation to the accused. That being so, PSI being a public officer, no prosecution can be initiated against him without prior sanction under Section 197.
8. Prima facie, reasons given by the learned Addl. Sessions Judge appear as persuasive. However, on re-reading the same, it would appear that reasons given by the learned Addl. Sessions Judge are not acceptable. Apparently, the learned Addl. Sessions Judge has no benefit of views of the Supreme Court on the point in issue. It hardly needs to be said that the approach of the Court and formation of the opinion by the Court in any given case should be guided by the binding precedent. Further, the learned Addl. Sessions Judge has not properly appreciated the material on record. How the complaint came to be filed and other material may be briefly referred to.
9. The complainant alleges that upon receiving of the news of deceased committing suicide, he rushed to the Sub-Jail. It is the say of the complainant that at that time, respondent (PSI) was present and they were preparing Inquest Panchnama. The complainant alleges that at that time, he had objected against the false narration made in the Inquest Panchnama, namely, mentioning that death has occurred due to receiving of electric shock. The complainant alleges that his objection was ignored. He also alleges that he had asked the PSI to sign the Inquest Panchnama which was also rejected by PSI. Then complainant had requested to allow him to meet other jail inmates and this request was also rejected by the authority. The prisoners of the I.C.R.No.14/1999 case wherein deceased and other accused were facing trial were transferred to Harij Sub-Jail. The complainant had given written application on 1.4.1999 to permit him to visit jail inmates which was granted and it was at this time while talking with other prisoners, the complainant came to know about the alleged cause of suicide.
10. Thereafter the present complaint was filed on 6.4.1999. It was duly verified before the learned Magistrate. The Court itself has conducted inquiry in the said case and during the inquiry, as many as 7 persons have deposed more or less on the same line. It is their say that PSI was pressing for settling the account and the deceased Pabjibhai has committed suicide on account of this.
11. In P.M.Note, the cause of death recorded as death due to excessive burns caused by kerosene.
12. There is a report of Deputy Inspector of Electricity on record. He was acting on behalf of the Commissioner, Electricity (Inspection Department), Gandhinagar. In the said report, possibility of occurrence of incident on account of deceased coming into contact with electric current is negatived. The reasons given are (i) if the deceased had received electric shock, there would be entry and exit mark on the body. No such mark found in the body of the deceased (ii) In the jail, spill over of oily substance in radius of 2 ft. - does not found any mention in the Panchnama prepared by the police (iii) The switch board in question found to contain 230 voltage electricity. If any person came into contact with such a voltage then he would have died then and there only i.e. on the spot and (iv) On inspecting electric wiring, no sign appears of electricity short-circuit. Thus, prima facie cause of death due to deceased coming into contact with electricity is ruled out.
13. The FSL report also does not help the defence / respondent.
14. The statement of wife of the deceased etc. taken during the course of inquiry by the police does not show that there was any kind of family disturbance or dispute in the family of the deceased.
15. Lastly, Dy. Superintendent of Police in his report to the DSP refers to unsatisfactory method of working of PSI (respondent).
16. The learned Addl. Sessions Judge has committed serious error by not taking into consideration at all any of the above referred material, namely, the circumstances in which the complaint came to be filed, statement of witnesses recored before the Court, P.M.report, report of Dy. Inspector, Electricity, FSL report and other materials on record.
17. It is true that jail and police departments both are distinct. It is also true that as per rule / statutory requirement , necessary entry required to be made in jail register in order to have entry / access in jial. But the cases like the present one on hand arise mainly because Jail Manual etc. are observed in breach. It would be childish to believe that PI or PSI would have no access to the jail except by duly making entry in the relevant register. By the way, what is qualification of Jailer ? One Shri Raval, who was Jailer in Sami Jail at the relevant time, was a Junior Clerk in Mamlatdar office and was temporarily placed as a Jailer of Sami Sub-Jail. At the time of incident, being Sunday, he was at his residence. It would be ignoring the reality to say that unless the necessary entry made in the jail register, no one would have access to the jail inmates.
18. Points to be considered while considering applicability of Section 197 may be summarized, thus;
Its object is to prevent vexatious, obnoxious and frivolous prosecution against public servant. (Chaudhary Parvin Sultana s case (2009) 3 SCC 398.
It may be construed narrowly or liberally, depending upon facts of the case. Its construction would acquire colour mainly from facts of the case. (M.P.Gupta s case AIR 2004 SC 730) Plea of sanction can be considered at any stage of proceeding in the sense that during the trial also. (Bholu Ram s case (2008) 9 SCC 140. Further, as laid down in Center for PIL s case (AIR 2005 SC 4413), Section 197 does not get attracted immediately on lodging of complaint.
Act would be covered under protection, if neglect or omission on the part of public servant to commit the act complained of would have made him answerable to charge of dereliction of duty (Rakeshkumar Mishra s case AIR 2006 SC 820) Public Servant may also claim protection by showing that act complained of is so inter-linked with his duties that it would attract Section
197. (Pukhraj s case AIR 1973 SC 2591) Applicability of bar u/s. 197 depends on facts and circumstances of each case. Facts and circumstances of the case play substantial part in determining applicability of Section 197.
19. In view of above discussion and in the circumstances of the case, it would be erroneous to stall the prosecution. Let the trial be proceeded against the respondent. It is clarified that during the course of trial, if relevant material came on record, then it would be open for the respondent to urge that in absence of sanction for prosecution under Section 197, the case against him cannot be proceeded. It is further clarified that trial court would consider the case independently of the observations made by this Court in this order.
20. The petition is allowed. Rule is made absolute. R & P be sent back immediately to the trial court concerned so that trial can proceed in accordance with law.
(R.D.KOTHARI, J.) vipul Page 22 of 22