Andhra HC (Pre-Telangana)
S.A. Azeez vs Pasam Hari Babu And Anr. on 20 March, 2003
Equivalent citations: 2003(1)ALD(CRI)595, 2003(2)ALT(CRI)107, 2003CRILJ2462
Author: K.C. Bhanu
Bench: K.C. Bhanu
ORDER K.C. Bhanu, J.
1. Accused No. 1 in C.C. No. 286/1998 on the file of the learned VI Additional Munsif Magistrate, Guntur, filed this petition under Section 482 of the Code of Criminal Procedure, to quash the proceedings therein against him.
2. 1st respondent lodged a private complaint against the petitioner and others, numbered as C.C. No. 286/1998, on the file of the learned VI Additional Munsif Magistrate, alleging that when the petitioner was working as Sub-Inspector of Police, Chebrolu Police Station, he arrested the 1st respondent in execution of non-bailable warrant issued by the learned VI Additional Munsif Magistrate, Guntur, in C.C. No. 196/1995, on 1-7-1997, but detained the 1st respondent illegally and beat him in the police station and produced him in the Court on 7-7-1997. The learned Magistrate took cognizance of the offence under Sections 343 and 324 of the Indian Penal Code. Later, petitioner filed Crl. M.P. No. 1161/2000 before the lower Court to discharge him on the ground that there was no previous sanction from the State Government. The learned Magistrate dismissed the petition on 21-7-2000 holding that the illegal detention of and the assault made against the 1st respondent was not part of the official duty of the petitioner and as such there was no necessity to obtain prior sanction under Section 197, Cr. P.C.
3. Aggrieved by the dismissal of his petition, A1 filed the present petition to quash the proceedings against him on the ground that no sanction order, as required under Section 197, Cr. P.C., was obtained to prosecute him and that the allegations, at best, may amount to excess discharge of public duty.
4. Learned counsel for the petitioner contended that it is the case of the 1st respondent that the petitioner arrested him on 1-7-1997 but produced before the learned Magistrate only on 7-7-1997 and this allegation may at best amount to excess discharge of public duty by the petitioner and hence sanction as required by Section 197 Cr. P.C. is necessary to prosecute the petitioner.
5. There is no dispute that when a public servant is to be prosecuted in respect of the official acts of such public servant, sanction to prosecute him is necessary. The object of Section 197, Cr. P.C. is to protect public servants against irresponsible, frivolous or vexatious proceedings for acts done in discharge of official duty, and to see that no prosecution is started unless there is some foundation for the charge brought. The immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or to purport to be done in such discharge, but an offence arising out of abuse of official position by an act not purporting to be official does not require any sanction.
6. Learned counsel for the petitioner relied upon a decision in Rizwan Ahmed Javed Shaikh v. Jammal Patel, wherein it is held as under :
"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 the 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 purports to be performed, the public officer would be protected."
7. The learned counsel for the petitioner also placed reliance upon another decision of the Apex Court in P.K. Pradhan v. State of Sikkim, wherein their Lordships have held as follows :
"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."
8. From the above two decisions it is clear that the sine qua non for the applicability of Section 197, Cr. P.C. is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant in his official capacity or under colour of the office held by him. The act complained of is an offence and it must be shown that it was committed in discharge of his official duty.
9. On the basis of the above two decisions, the learned counsel for the petitioner contended that the offence complained of against the petitioner can at best be said to be excess discharge of the official duty by him and/therefore, sanction under Section 197, Cr P.C., squarely attracts the case. On the other hand, learned counsel for the 1st respondent and the learned Additional Public Prosecutor contended that it was not the duty of the petitioner to detain the 1st respondent for one week and such detention amounted to illegal detention. It was not part of the discharge of the official duty of the petitioner, though he was acting under the process of the Court in arresting the 1st respondent in a criminal case, to beat the 1st respondent or detain him for more than 24 hours, and, therefore, there was no nexus between the discharge of official duty by the petitioner and the act complained of against him.
10. It is not in dispute that the 1st respondent was an accused in C.C. No. 196/ 1995 on the file of the learned VI Additional Munsif Magistrate, Guntur and the said Court issued non-bailable warrant against him. In pursuance of the execution of the warrant, petitioner arrested the 1st respondent on 1-7-1997 and beat him at the instance of the other accused who had a civil dispute with him, and produced him before the learned Magistrate only on 7-7-1997. Therefore, 1st respondent lodged the complaint against the petitioner and others in C.C. No. 287/1998, which was taken on file under Sections 343 and 324, IPC. The question to be decided is whether there was any reasonable nexus between the act of the petitioner and his official duty, and whether the act complained of was in discharge of his official duty.
11. Under Section 324, IPC it must be shown that the accused caused voluntarily hurt and such a hurt was caused by means of any instrument referred to in that Section. Insofar as Section 343, IPC is concerned, whoever wrongfully confines any person for three days or more shall be punished. Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said 'wrongfully to confine' that person, as defined under Section 340, IPC. Use of physical force is not necessary for the offence of wrongful confinement. A mere detention of a person against law would attract Section 343, IPC.
12. Under Section 76, Cr. P.C. the police officer or other person executing a warrant of arrest shall subject to the provisions of Section 71 as to security without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person, provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. This provision mandates that the arrested person should be produced within twenty-four hours exclusive of the time taken for journey before the Court which issued the warrant. When such is the law, petitioner should not have detained the 1st respondent beyond twenty-four hours in any case. Petitioner detained the 1st respondent illegally for nearly one week in the police station. It was not a part of the discharge of the official duty of the petitioner to detain the 1st respondent in the police station beyond twenty-four hours from the time of his arrest. This can never be a case of excess of discharge of public duty. It is clearly a violation of mandatory provisions provided under law. So also it was not the duty of the petitioner to beat the 1st respondent. Though the arrest of the 1st respondent made by the petitioner was lawful, because the arrest was made in pursuance of execution of the non-bailable warrant issued by the learned Magistrate, the detention of the 1st respondent beyond twenty-four hours from the time of this arrest for a week is clearly an utter violation of law and there was no nexus between the discharge of the duty by the petitioner and the acts complained against him.
13. Even assuming for a moment that the contention of the learned counsel for the petitioner that the act complained of against the petitioner exceeds the discharge of duty can be accepted, that question would arise at a later stage when the trial proceeds. In P.K. Pradhan (2001 Cri LJ 3505) (supra), the Supreme Court has held that there must be a reasonable connection between the act and the official duty and it does not matter even if the act exceeds what is strictly necessary for the discharge of duty as this question will arise only at a later stage when the trial proceeds on merits. Therefore, the question whether the act complained of against the petitioner is in excess of the discharge of his public duty is a question of fact to be determined at the time of trial only. So, merely on the ground of want of sanction, the proceedings cannot be quashed against the petitioner.
14. After elaborate discussion, the lower Court found that illegal detention of and the assault made against the 1st respondent by the petitioner did not form part of the official duty of the petitioner and therefore there was no necessity to obtain prior sanction under Section 197, Cr. P.C. The impugned order of the trial Court is not shown to be perverse or to have been passed without considering the points involved. The reasons assigned in the impugned order are in consonance with the law and as such do not warrant interference by this Court. There are absolutely no grounds to quash the impugned order.
In the result, the Petition is dismissed. Petition dismissed.