Madhya Pradesh High Court
Rajendra vs Central Bureau Of Investigation on 13 April, 2018
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
Cr.R. No.2703/2017
(Rajendra Vs. Central Bureau of Investigation)
Indore, dated 13.04.2018
Shri Avinash Sirpurkar, learned senior counsel with
Shri Yogesh Kumar Gupta, learned counsel for the
petitioners.
Shri Dharmendra Chelawat, learned counsel for the
respondent.
The petitioners before this Court, who are employees of the Police Department of State of Maharashtra have filed the present petition under Section 397 r/w 401 of Code of Criminal Procedure for quashment of order dated 31.07.2017 passed by 6th Additional Sessions Judge, Indore in RC 04 (S)/210-SCU.V/S.C.-II.CBI.
The facts of the case reveal that as per the prosecution case on 10.11.2008, certain police personnels from Maharashra Police (Special Task force) went to the Police Station Khajrana (Indore) and after reporting their arrival at Khajrana police station, they went to the house of one-Dilip Patidar. Dilip Patidar was allegedly taken by Maharashtra police to Maharashtra and as later on he was missing, a report was lodged by the wife of Dilip Patidar.
Shri Shirpurkar, learned senior counsel for the petitioners has argued before this Court that as per the allegations, the officers of the ATS including the present petitioners took Dilip Patidar to Mumbai and he was produced before the superior officer on 11.11.2008 at Kalachowkey Unit Mumbai. His statement was recorded on 12.11.2008 and 13.11.2008 as a prosecution witness and he also gave his consent for giving statement under Section 164 of Cr.P.C. An application was preferred before the Chief Metropolitan Magistrate, Mumbai on 19.11.2008 by the investigating officer ACP Kulkari.
Learned senior counsel has further informed that as Dilip Patidar is not having any proof of identity, he was permitted to go back and the allegation is that he has been eliminated and in those circumstances the writ petition has been preferred before this Court and the same was registered as WP No.7346/2008. The habeas corpus writ petition was finally decided, and thereafter, a crime has been registered against the present petitioners and another persons for offences under Section 342, 343, 344, 365, 367, 193 and 218 of IPC.
The matter was investigated by Central Bureau of Investigation and after investigating the matter, the Central Bureau of Investigation has submitted a closer report under Section 173 of Code of Criminal Procedure. The learned judge has not accepted the closer report and after further investigation, the Central Bureau of Investigation again submitted a report under Section 173 of Cr.P.C. on 26.05.2016, the same was again not accepted by the learned Judge and in those circumstances, an application was preferred under Section 197 of Cr.P.C. before the trial Court and the same has been dismissed by the impugned order dated 31.07.2017.
Learned senior counsel has further argued before this Court that Dilip Patidar was taken as a witness by ATS, Mumbai in connection of some crime and the petitioners in their official capacity, took him to Mumbai with due intimation to the local police and it was not a case where they have done any act in their personal capacity. A crime was being investigated and Dilip Patidar was permitted to go back to Indore and only because he was missing, it cannot be said that the present petitioners have committed any offence. He has further contended that the prosecution is certainly free to obtain necessary sanction from the competent authority under Section 197 of Cr.P.C.. He has placed heavy reliance upon a judgment delivered by the Apex Court in the case of Manorama Tiwari & ors. Vs. Surendr Nath Rai reported in (2016) 1 SCC 594 and reliance has also been placed upon a judgment delivered by this Court in the case of Dr. Smt. Beena Yadu Vs. State of M.P. reported in 2004(II) MPJR
63. On the other hand, Shri Dharmendra Chelwat, learned counsel appearing on behalf of the Central Bureau of Investigation has vehemently opposed the prayer made by the learned counsel for the petitioners and his contention is that the present petitioners took one-Dililp Patidar to Mumbai and the allegation is that he is no more. He has stated that the act of the petitioners was in fact not an act committed as police officers in their official capacity and they have exceeded their powers hence the question of sanction under Section 197 of Code of Criminal Procedure does not arise. He has placed reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of Pukhraj Vs. State of Rajasthan reported in Laws(SC) 19738 37, T.M. Somarajan Vs. P. Jayakumar reported in Laws(KER) 1983 79, D.T.Virupakshappa Vs. C.Subhash reported in 2015(4) Crimes 214(SC) and Matajog Dobey Nand Ram Agrawal Vs. H.C.Bhari reproted in Laws(SC) 1955 10 15.
This Court has carefully gone through the aforesaid judgments delivered by Hon'ble the Apex Court. Learned senior counsel for the petitioners has argued before this Court that the present case is not a case where the officer of ATS, Mumbai secretly took away a person from Indore, and thereafter, he has been eliminated. It is true that the officers of ATS came down to Indore and the local police station was informed about their arrival and alongwith local police personnel, they went to the house of Dilip Patidar. He was certainly taken to Mumbai, as reflected from the record and he was permitted to go back. The present petitioners who were part of ATS team, came down to Indore on account of permission granted by the seniors to investigate the crime and they did the act in discharge of their official duty. It is nobody's case that some people came and took away a person from Indore, without the knowledge of local police or without the knowledge of their senior at Mumbai. He has further stated that it is unfortunate that a person is missing but at the same time, this Court has to see whether the police officers who have acted in good faith and in discharge of their official duty, can be prosecuted in absence of sanction or not.
The record also reveals that the Central Bureau of Investigation on 21.5.2014 has filed a closer report in the matter under Section 173 of Code of Criminal Procedure. The matter was reinvestigated on the directions of the Court and again second time the Central Bureau of Investigation has filed a closer report under Section 173 of Code of Criminal Procedure on 26.05.2016, meaning thereby, no sanction was accorded in the matter for prosecuting the present petitioners and on two earlier occasions the Central Bureau of Investigation has filed closer report and now the Central Bureau of Investigation is opposing the prayer in the matter. This Court cannot comment upon the summersault taken by the Central Bureau of Investigation in the matter, however, the fact remains that on two occasions the Central Bureau of Investigation has filed a closer report.
In the case decided by the Hon'ble Supreme Court i.e. Matajog Dobey Nand Ram Agarwal (supra), certain police personnel have entered into the house of the complainant. He was assaulted by them in his own house. In that backdrop, keeping in view Section 6 (7) and (9) of the Taxation of Income (Investigation Commission) Act, 1947, which was in respect of search warrant, as there was no power conferred upon the officer to assault or use force in exrcise of their duty, the Apex Court has held that Section 197 of Code of Criminal Procedure is not required and can be obtained at any stage.
In the case of T.M. Somarajan (supra), there was an attempt on part of the officers to obtain a false confession by force/intimidation and in those circumstances, the Apex Court has held that Section 197 of Cr.P.C. is not attracted.
In the case of Pukhraj (supra), an employee of postal department was assaulted by senior officers when he was protesting against his transfer and in those circumstances, it was held that as the offence has been registered under Section 323 and 504 of IPC against the superior officer, sanction under Section 197 of Cr.P.C. is not necessary.
On the other hand the Apex Court in the case of D.T. Virupakshappa (supra) in pragraph 7, 8, 9 and 10 has held as under:-
"7. In the case before us, the allegation is that the appellant exceeded in exercising his power during investigatin of a criminla case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 of Cr.P.C., in case, the Government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary.
8. The issue of 'police excess' during investigation and requirement of sanction for prosecution in that regard, was also the subject matter of State of Orissa Trhough Kumar Raghvendra Singh and others Vs. Ganesh Chandra Jew, wherein, at paragraph-7, it has been held as follows:
"7. The protection given under Section 197 is 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 reasonable connected with the discharge of 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 official duty as well as in dereliction of it. The act must fall within the scope and range of the 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....."(emphasis supplied)
9. In Om prakash (supra), this Court, after referring to various decisions, particularly pertaining to the police excess, summed-up the guidelines at paragraph-32, which reads as follows:
"32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code 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 (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this Case as cloak for killing the deceased in cold blood." (emphasis supplied)"
Keeping in view the aforesaid judgment, as present petitioners have committed the alleged act while discharging their official duty. In the considered opinion of this Court Sanction under Section 197 of Cr.P.C. is certainly necessary.
In the case of Dr. Smt. Beena Yadu Vs. State of M.P. reported in 2004 (II) MPJR 63, in paragraph 9 has held as under:-
"9. As regards point of sanction under Section 197 Cr.P.C., the applicant took objection after filing of charge-sheet and at the time of taking cognizance there of. Thus in view of a judgment of Hon'ble Apex court reported as AIR 2000 (8) SCC 498 (Birendra K.Singh Vs. State of Bihar) plea of the applicant for sanction under Section 197 of Cr.P.C. ought to have been considered. The applicant was said to be on duty as an emergency Medical Officer on call and thus, the allegation being connected with acts of discharge of official duties of the applicant, could not have been taken cognizance of, without a previous sanction in terms of Section 197 of Cr.P.C. and more so in view of the judgment of Hon'ble Apex Court reported as Air 1996 SCC (criminal ) 128 (R.Balakrishnan Pillai Vs. State of Kerala and another)."
In the aforesaid case of a government servant again it was held that sanction under Section 197 of Code of Criminal Procedure is mandatory. The Apex Court the recent judgment delivered in the case of Manoram Tiwari and others Vs. Surendra Nath Rai (supra) in paragraph 8, 9, 10 and 11 has held as under:-
"8. It is argued before us on behalf of the appellants that the appellants were discharging their public duties and have committed no negligence on their part. It is further argued that assuming but not admitting there was negligence in discharging the public duties, in view of the provisions of section 197 crpc, the prosecution against the appellants is not maintainable without sanction from the Government.
9. Relevant provision relating to sanction in Section 197 CrPC reads as under:
"197. 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 save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(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:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of article 356 of the constitution was in force in a State, clause (b) will apply as if for the expression 'State Government' occurring therein, the expression 'Central Government' were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166- A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal Code (45 of 1860).
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held."
10. A three-Judge Bench of this Court in Jacob Mathew v. State of Punjab 2005 6 SCC 1, has laid down guidelines for prosecution of medical professionals as under: (SCC pp. 34-35, paras 50-
52) "50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by the police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to a rash or negligent act within the domain of criminal law under Section 304-A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered to his reputation cannot be compensated by any standards.
51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam3 test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
11. In Matajog Dobey v. H. C. Bhari AIR 1956 SC 44, a Constitution Bench of this Court in the matters of prosecution of public servants has held as under: (AIR p. 48, para 15) "15. ... 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 of the 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."
In the considered opinion of this Court, it can safely be gathered from the record available that the present petitioners came down to Indore on the instructions of their senior officer. The local police was informed accordingly and they went to the house of the complainant alongwith local police and took one person alongwith them to Mumbai. He was produced before the senior officers at Mumbai, and thereafter, he was permitted to go back. All this was done on the instructions of the senior officer and the local police was also informed.
In light of the aforesaid, this Court is of the opinion that the petitioner have done all the aforesaid acts while discharging their official duty, and therefore, sanction under Section 197 of Cr.P.C. is certainly required in the matter. As there was no sanction granted in the matter, the proceedings to the extent the present petitioners are concerned, the order dated 31.07.2017 passed in Session trial No.82/17, deserves to be quashed and is accordingly hereby quashed. However the prosecution shall always be free to obtain necessary sanction and to proceed ahead in accordance with law and in case sanction is granted.
With the aforesaid, the present criminal revision stands allowed.
Certified copy as per rules.
(S. C. Sharma) Judge vibha Digitally signed by Vibha Pachori Date: 2018.04.18 17:39:34 +05'30'