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8. We have heard Sh. Anup Chitkara, learned Counsel for the accused. Sh. S. D. Vasudeva, learned Additional Advocate General, for the State-respondent No. 1 and Sh. G.R. Palsra, learned Counsel for respondent No. 2.

9. The prosecutrix has appeared as P.W. 1 and stated that Khem Chand husband of her sister Rita Devi died after consuming poison on 27-8-1994. The police implicated her sister Rita, Premu husband of prosecutrix in the case falsely on the ground that Premu and Rita Devi gave poison to Khem Chand. The said case was investigated by the accused. In the course of investigation of that case, the prosecutrix and her mother were called in the Police Station, Mandi on 30-8-1994 and accordingly they reached there at about .12.00 noon. On 30-8-1994, the accused called the prosecutrix and her mother to the upper storey of the Police Station and when they entered the room, accused bolted the door of main gate leading to stairs from inside. The mother of the prosecutrix was made to sit in a room. The accused took the prosecutrix in another room and bolted the said room from inside. The accused told the prosecutrix that if she would not have sexual intercourse with him, he would also implicate the prosecutrix, her mother and other family members in the case. The accused then committed forcible sexual intercourse with the prosecutrix against her wish. She did not raise any alarm as she got frightened and accused also threatened her not to raise any alarm. The accused told the prosecutrix not to tell the incident to anybody otherwise she would face dire consequences. Thereafter the accused opened the bolt of the door. The prosecutrix told the incident to her mother and non-else, who told her to remain silent as the accused is a police officer. On 19-9-1994, a constable came to the house of the prosecutrix carrying with him some papers and obtained their signatures on those papers and asked them to present at Police Station as the accused had called them. The prosecutrix, her sister and mother in compliance to the direction reported at Police Station on 19-9-1994 at 11-00 or 11-30 a.m. The accused again had forcible sexual intercourse with the prosecutrix against her wish in the second storey of the Police Station. The accused threatened the prosecutrix that he would arrest the prosecutrix, her mother and sister in case she would raise any alarm. The accused asked her not to disclose the incidents to any person. The prosecutrix told the incident to her mother and sister that the accused had forcibly committed sexual intercourse with her against her wish. The statement of the sister of the prosecutrix was recorded, but not the statement of the mother of the prosecutrix on that date.

12. P.W. 3 Soma Devi has corroborated the statement of prosecutrix regarding the incident dated 30-8-1994 and 19-9-1994. P.W. 4 Chandermani has stated that on 19-9-1994, prosecutrix, her mother and sister Rita Devi came to his shop at 1.15 p.m. The prosecutrix told him that accused had subjected her to sexual intercourse in the upper storey of the Police Station on that day and also on one day previously. They approached the Superintendent of Police, Mandi and prosecutrix narrated the entire incident to him. At 5.00 p.m. the Superintendent of Police asked them to go to the Police Post City. They then approached G. P. Guleria, Advocate, who drafted a complaint and presented it to Additional Chief Judicial Magistrate. It was already more than 5.00 p.m. They took the orders from the Court and went to the Police Post City. City police sent them to hospital but the prosecutrix was not medically examined there on that date. The prosecutrix, her mother and Rita Devi stayed in his house during the night. The prosecutrix was medically examined on next day.

16. P.W. 8 LHC Inder Dev has stated that accused had given him Hukamnama Talhi for calling prosecutrix, Soma Devi and Rita Devi. They were served and were called for 19-9-1994. D.W. 1 Chaman Lal HC has stated that that he was posted as Reader to SHO, Police Station, Sadar from 17-9-1994 till 1996. On 19-9- 1994, he along with accused came back to Police Station at 12.45 p.m. Many persons were present outside the Police Station. The SHO went to his room. One lady constable Daya Devi was sent to call Ritu Devi for interrogation. In the presence of said lady constable the SHO got recorded the statement of Ritu Devi, which was written by him. Thereafter, the prosecutrix was also interrogated orally. At 2.00 p.m. the mother of the prosecutrix came and asked the SHO that they had not taken their meals and so they be permitted to take their meals. At that time, it was 2.00 p.m. They were called to come back at 3.00 p.m. but they never returned back.

23. The learned Counsel for the accused has contended that allegations against the accused are that he committed rape on prosecutrix as Police Officer when he was conducting investigation in a case in which husband of the prosecutrix and her sister Rita Devi were involved regarding the death of Khem Chand husband of Rita Devi. He has submitted that without previous sanction of the State Government, no cognizance could be taken against the accused, under Section 376, IPC or he could be tried for that offence. The perusal of Section 197 of the Code of Criminal Procedure would show that this Section would apply in those cases where the public servant is removable with the sanction of the State Government. In the present case, it is not the case of the accused that at the time of commission of the offence, he was removable by the State Government. Moreover, it was not part of the duty of the accused while acting as Police Officer to commit offence of the nature for which he was tried and hence for prosecuting accused for the offence under Section 376, IPC no sanction is required under Section 197, Cr. P.C. The act for which the appellant was tried and stands convicted has no relation, even the remotest, with his duties and functions as a public servant. Section 197, Cr. P.C. conies into play when the offence is committed while acting or purporting to act in the discharge of one's official duty. Here the appellant committed the act of gratifying his sexual lust, which had no link with the discharge of his duties as Investigating Officer. In this view of the matter, we are supported by a judgment of the Apex Court in Parkash Singh Badal v. State of Punjab . In any case, the objection of want of sanction under Section 197, Cr. P.C. is for the benefit of the accused, which he was required to take at an early stage. In the preset case he never took this objection during trial, therefore, in appeal this objection is not available to him. Hence, this submission of the learned Counsel for the accused is rejected.