Bombay High Court
Manabai W/O Kashirao Tondle vs Jagannath Ganpat Girhe on 10 June, 2013
Author: M.L. Tahaliyani
Bench: M.L. Tahaliyani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.3970 OF 2006
Manabai w/o Kashirao Tondle,
Aged about 75 years,
Occupation - Household work,
R/o Village Anbhora, Tq. Murtizapur,
District Akola. .... APPLICANT
VERSUS
1) Jagannath Ganpat Girhe,
Aged Adult, Head Constable,
B.No.1578, Police Station Akot,
Tq. Akot, District Akola.
2) Ramesh Shriram Rawade,
Aged Adult, Police Constable,
B.No.263, Police Station Akot,
Tq. Akot, District Akola
3) The State of Maharashtra,
through PSO, Murtizapur,
District Akola. .... NON-APPLICANTS
___________________________________________________________________
Shri Rahul Dhande, Advocate for the applicant,
Shri A.S. Mardikar, Advocate for non-applicant Nos.1 and 2,
Shri N.R. Rode, Addl.P.P. for non-applicant No.3.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATE OF RESERVING THE JUDGMENT : 18-10-2012
DATE OF PRONOUNCING THE JUDGMENT : 10-06-2013
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ORAL JUDGMENT :
1. Heard learned Counsel Shri Rahul Dhande for the applicant, learned Counsel Shri A.S. Mardikar for non-applicant Nos.1 and 2 and learned Additional Public Prosecutor Shri N.R. Rode for non-applicant No.3.
2. Non-applicant Nos.1 and 2 were facing trial before the learned Ad hoc Additional Sessions Judge, Akola for the offences punishable under Sections 302, 304, 324, 325, 364, 365 read with Section 109 and Sections 448, 294 and 201 read with Section 34 of the Indian Penal Code. Both the non-applicant Nos.1 and 2 were working as Police Constables attached to Akot Police Station, District Akola at the time of the alleged incident. They had allegedly committed murder of deceased Bhagwan Tondle. It is alleged that deceased Bhagwan Tondle was in police custody on 26-10-1989 and that non-applicant Nos.1 and 2 had assaulted the deceased. He sustained severe injuries at the hands of non-applicant Nos.1 and 2 and had succumbed to the injuries. It appears from the record and proceedings that there was a private complaint as well as a charge-sheet and both the cases were amalgamated and the case had been committed to the Court of Session.
3. The application under Section 227 of the Criminal Procedure Code was made for discharge on the ground that the alleged incident had occurred in the month of October 1989, complaint case was filed on ::: Downloaded on - 06/01/2014 03:40:46 ::: 3 appln3970.06.odt 21-2-1994 and charge-sheet was filed on 4-5-1993. In brief, it can be stated here that the protection was sought by non-applicant Nos.1 and 2 of the provisions of Section 161 of the Bombay Police Act. Before I proceed further, it will be convenient to reproduce the said section here, which runs as under :-
"161. Suits or prosecution in respect of acts done under colour of duty as aforesaid not to be entertained, or to be dismissed if not instituted (within the prescribed period) (1) In any case of alleged offence by (the Revenue Commissioner, the Commissioner), a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by (such Revenue Commissioner, Commissioner), Magistrate, Police Officer or other person, by any act done under colour or in excess of any such, duty or authority as aforesaid, 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, or shall be dismissed, if instituted, more than six months after the date of the act complained of:
(Provided that, any such prosecution against a Police Officer may be entertained by the Court, if instituted with the previous sanction of the State Government within two years from the date of the offence.)
4. It is admitted position that the complaint case and charge-sheet were filed in the court of law after expiry of six months period stated in Section 161 of the Bombay Police Act. The protection was also sought under Section 197 of the Criminal Procedure Code inasmuch as it was contended before the learned trial Judge that a sanction of the Government under ::: Downloaded on - 06/01/2014 03:40:46 ::: 4 appln3970.06.odt Section 197 of the Criminal Procedure Code was required for prosecuting non-applicant Nos.1 and 2 for the offences stated hereinabove. The learned trial Judge accepted the submissions made on behalf of non-applicant Nos.1 and 2 and passed the impugned order thereby discharging non-applicant Nos.1 and 2 of all the charges leveled against them in a complaint case and the police charge-sheet. It is how Sessions Case No.54/2003 came to an end.
5. This order is challenged in the present proceedings under Section 482 of the Criminal Procedure Code by the applicant who is mother of the deceased. Learned Counsel Shri Rahul Dhande has submitted that a protection of Section 161 of the Bombay Police Act was not available to non-applicant Nos.1 and 2. It was further submitted that Section 197 of the Criminal Procedure Code also does not extend any protection to non-applicant Nos.1 and 2.
6. As far as Section 161 of the Bombay Police Act is concerned, learned Counsel Shri Rahul Dhande has submitted that the alleged act committed by non-applicant Nos.1 and 2 was not done under the colour or in excess of any duty or authority. It was submitted that assaulting the person in custody was not part of the duty of non-applicant Nos.1 and 2.
Therefore, it cannot be said that while assaulting the deceased, non-applicant Nos.1 and 2 had exceeded their power or authority or had acted under the ::: Downloaded on - 06/01/2014 03:40:46 ::: 5 appln3970.06.odt colour of their office.
7. Learned Counsel Shri Rahul Dhande has relied upon the judgment of the Supreme Court in the case of State of Maharashtra .vs. Narhar Rao reported at 1964 AIR (SC) 1783. My attention was invited to Para 5 of the said judgment, which runs as under :-
"5.
BUT unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the colour of his office. Applying this test to the present case, we are of the opinion that the alleged acceptance of bribe by the respondent was not an act which could be said to have been done under the colour of his office or done in excess of his duty or authority within the meaning of S.161(1) of the Bombay Police Act. It follows, therefore, that the High Court was in error in holding that the prosecution of the respondent was barred because of the period of limitation prescribed under S. 161(1) of the Bombay Police Act.........."
8. My attention was also invited to Para 3 of the judgment in the case of State of Maharashtra .vs. Atma Ram reported at 1966 AIR (SC) 1786. The relevant portion of the said paragraph is as under :-
"THE provisions of Ss. 161 and 163 of the Criminal Procedure Code emphasize the fact that a police officer is prohibited from beating or confining persons with a view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts complained of, in this case, are acts done by the respondents under the colour of their duty or authority. In our opinion, there is no connection, in this case between the acts ::: Downloaded on - 06/01/2014 03:40:46 ::: 6 appln3970.06.odt complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by S. 161(1) of the Bombay Police Act. This view is borne out by the decision of this court in State of Andhra Pradesh V.N. Venugopal, AIR 1964 SC 33, in which the effect of S.53 of the Madras District Police Act was construed by this court and it was held that the protection of that section cannot be extended to police officers accused of beating a person suspected of a crime or confining him in the course of investigation. ........."
9. Learned Counsel Shri A.S. Mardikar, on the other hand, has relied upon the judgment in the case of K.K. Patel & another .vs. State of Gujarat & another reported at 2000 Bom.CR (Cri.) 505 and has submitted that the offence allegedly committed by non-applicant Nos.1 and 2 was during the course of their duty and it was under the colour of their office. It was submitted that non-applicant Nos.1 and 2 might have exceeded their authority and therefore, the prosecution beyond the limitation period stated in Section 161 of the Bombay Police Act cannot be maintained. At the same time, it was also submitted that since the alleged offences were committed while non-applicant Nos.1 and 2 were in the employment of State of Maharashtra, the cognizance of the offences could not have been taken without previous sanction of the State Government. It was further submitted that the act alleged to have been committed by non-applicant Nos.1 and 2 was allegedly committed by them while acting in discharge of their official ::: Downloaded on - 06/01/2014 03:40:46 ::: 7 appln3970.06.odt duty.
10. Without going into the merits of the issue whether non-applicant Nos.1 and 2 were not removable from their office save by or with the sanction of the Government, what is important to examine is that as to whether the act allegedly committed by non-applicant Nos.1 and 2 was done while acting or purporting to act in discharging of their official duty.
Shri Rahul Dhande has submitted that to beat the accused is not the official duty of any police official and that therefore, if the person dies in police custody allegedly due to assault or beating by the police officer, it cannot be said that the police officer is acting or purporting to act in discharge of his duty. It was submitted that beating or assaulting or using 'third degree' is not the part of official duty. Shri A.S. Mardikar has submitted that the protection is available to the public servants for the alleged offences committed by them while discharging their duty and while they were acting or purporting to act in discharge of their duty. It was submitted that if this protection is not available to the public servant, the public servant will not able to act and work fearlessly and that the very purpose of introduction of Section 197 of the Criminal Procedure Code and Section 161 of the Bombay Police Act will be frustrated.
11. I have anxiously considered the arguments submitted by both ::: Downloaded on - 06/01/2014 03:40:46 ::: 8 appln3970.06.odt the learned Counsel. I have gone through the judgment cited by learned Counsel Shri A.S. Mardikar reported at 2000 Bom.CR (Cri.) 505. In the said case, it was alleged that the police officers had wrongfully arrested the complainant and had initiated wrongful enquiry against him. In this regard, it may be noted here that the police officers are empowered to arrest and enquire into the allegations. If there is unlawful arrest or unlawful enquiry, the prosecution against such police officers not lodged within the limitation mentioned in Section 161 of the Bombay Police Act probably may not be maintainable. However, as stated by learned Counsel Shri Rahul Dhande, assaulting or beating is not part of the duty and any assault or injury caused by the police officer while on duty cannot be said to be done during the course of his duty or while discharging his duty. The limit and extent of protection available to the public servant under Section 197 of the Criminal Procedure Code has been explained by this Court at para 9 in the case of Mary Kutty Thomas & others .vs. State of Maharashtra reported at 1983(2) Bom.CR 73 as under.
"9. The said provision contained in section 197 of the Code when properly dissected in split up into different clauses; the first being with reference to such person as placed in one of the categories of being a public servant who is not removable from his office without the sanction of the Government; the second clause pertains to the nature of the accusation vis-a-vis the offence charged, and the third which is integrated with the second clause indicates that the said offence should have been committed by him while acting or purporting to act in the discharge of his official duty. It is ::: Downloaded on - 06/01/2014 03:40:46 ::: 9 appln3970.06.odt only when all the three clauses co-exist that the requirements of section 197 of the Code are fulfilled under which the ban imposed on the court from taking cognizance without a valid sanction from the concerned appointing or dismissing authority comes into operation. This provision has been incorporated with an obvious object to afford protection to public servants from unjustified and unnecessary harassment on the basis of frivolous allegations so that there would be pre-screening by the superior authority and ultimately it would be discretion after examining all aspects to consider whether there is any substance in the allegations and if so, whether it is expedient to prosecute the public servant in a Court of law or to deal with him departmentally and if in his opinion the allegations have absolutely no substance then at this level itself the public servant can be protected from the prospective harassment so that launching of a complaint itself is barred. This object no doubt is quite laudable, still under the scrutiny of the nature of allegations in each case, the foundation of the requirements of the said provisions must be properly established. What has been emphasised persistently pertains to the correct interpretation of the last clause viz. as, "........ offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty....."
In the said judgment, this Court has said at Para No.13 as under :
"13. Applying these tests, though ostensibly containing different shades, have practically the common foundation. The facts of the case at hand would hardly require any comments to arrive at a firm and rational conclusion that the acts complained of as alleged in the complaint can hardly be covered under the said clause of section 197 of the Code. To put it in other form, it is inconceivable even inferentially that the acts alleged have any relation or nexus with the official duty of the said Police Officer or has some thing to do with his office as a public servant or that if he is ::: Downloaded on - 06/01/2014 03:40:46 :::
10 appln3970.06.odt apprehended and questioned while indulging in such act he could satisfy the people at large that what he was really doing was nothing but an official act. It was neither the discharge of is official duty nor was it a purported discharge of the same, as for both these items the undercurrent is always about existence of a right to do certain act in the official capacity and it is only thereafter that it would have to be considered whether it is done honestly or dishonestly, when in the former case it is in the discharge of the duty while in the latter, it is the purported discharge.
Nonetheless basically there would be a right or the authority to do the said act. Further elaboration, in my opinion, is unnecessary. Suffice it to observe that the gravamen of the allegations which are reproduced in detail at the threshold as reflected in the complaint, unmistakably take the case out of the purview of the provisions of section 197 of the Code since one will proceed only on the basis of the recitals of the allegations in the complaint. Even the said public servant can never dare even to suggest that causing voluntary hurt or levelling serous threat to the life of a citizen form part of his duty. This would be notwithstanding that the person concerned, who accuses the public servant, might have been arrested by the said public servant in his official capacity. ......"
12. In another judgment of this Court in the case of Nandkumar S. Kale .vs. Bhaurao Chandrabhanji Tidke & anr. reported at 2008(S) Bom.CR 161, it is said at para 5 as under;
"5. ......
Obviously therefore if there is a reasonable connection of act done with discharge of his duty it must be held to be official duty. In the present case what is alleged against the applicant is that although witness Deepak never gave a statement to the police a statement said to be given by him in his name was made part of investigation. Obviously Deepak had not appeared before the investigating officer and he had not recorded any statement of Deepak. The ::: Downloaded on - 06/01/2014 03:40:46 ::: 11 appln3970.06.odt statement said to be that of Deepak is therefore, not a statement and therefore the said statement which is on record can in no case be said to be recorded in discharge of the official duty. In fact this is therefore a case of preparation of false record of investigation and preparation of false record of investigation cannot be a part of the duty and it cannot be said to be done in discharge of the duty. If that is so treated then perhaps a police officer can show the investigation having been carried out even sitting at home."
13. This Court in another judgment in the case of State of Maharashtra .vs. Mahadeo Narayan Giri & Ors. reported at 2007 All MR (CRI) 2330, while dealing with the provisions of Section 161 of the Bombay Police Act has said at Para Nos.7 & 8 as under :
"7. From the bare perusal of Section 161 of the Act it is crystal clear that protection is available to a police officer in respect of an offence alleged by him by an act done under colour or in excess of such duty or authority. Proviso to the said section stipulates that the prosecution against a police officer may be entertained by the court if instituted with previous sanction of the State Government within two years from the date of the offence.
8. In view of Section 161 of the Act quoted above, in a case where prosecution has been launched after two years from the date of the offence and protection is claimed under the proviso to Section 161 of the Act it would be first necessary to find out if the offence alleged against the police officer was committed pursuant to an act done under the colour or in excess of any such duty or authority. In my opinion, commission of murder by a police officer of an accused in lock up and that too by merciless beating cannot be said to be referable to an act done under colour or in excess of duty or authority. Therefore, prima facie I am of the opinion that sanction in terms of proviso to Section 161 of the Act is not required to prosecute a police officer who is ::: Downloaded on - 06/01/2014 03:40:46 ::: 12 appln3970.06.odt accused of an offence committed by him pursuant to an act which cannot be said to have been done under colour or in excess of duty or authority. The charge-sheet discloses that the respondents herein committed murder of Vinayak Gangaram Sable by brutally beating him with the help of kicks, blows, sticks and by butt of rifle. Although the prosecution has chosen to obtain sanction from the State Government which has been granted almost after a period of six years that by itself is not sufficient to hold that at this stage sanction in terms of Section 161 of the Act is required in the present case. ....."
14. It is thus clear that the act alleged must have some nexus with the duty of police officer to have protection of Section 161 of the Bombay Police Act. Unless some nexus or connection between the duty of the police officer and the alleged act is shown, the protection under Section 161 of the Bombay Police Act will not be available. To put it in other words or by way of example it can be said that if the police officer who is empowered to prepare panchanama and while acting as such police officer introduced something wrong in the panchanama, it can probably be argued that the act was committed under the colour of office. However, if a police officer while arresting accused assaults him or beats him without there being any reason for the same, it cannot be said that the offence of assault or causing hurt or grievous hurt, as the case may be, was committed under the colour of office.
Similarly if the person dies in police custody due to assault on the part of police officer, it cannot be said that the accused was being interrogated in a police custody and he died during the course of interrogation and therefore, ::: Downloaded on - 06/01/2014 03:40:46 ::: 13 appln3970.06.odt the protection was available to the police officer. As such no straight-jacket formula can be laid down in respect of the provisions of Section 161 of the Bombay Police Act. Suffice it to say that some nexus or connection between the alleged act and the duty of the police officer is to be established to see the protection under Section 161 of the Bombay Police Act. Similar is the position with regard to the protection claimed by virtue of Section 197 of the Criminal Procedure Code.
15. In the present case, non-applicant Nos.1 and 2 had allegedly assaulted the son of the applicant who was in police custody. Assaulting the accused in police custody is not part of the duty of police officer. Therefore, it cannot be said that there was any nexus or connection between the assault and the authority of non-applicant Nos.1 and 2. In my considered opinion, the learned Ad hoc Additional Sessions Judge has grossly erred in taking the view that the protection under Section 161 of the Bombay Police Act was available to non-applicant Nos.1 and 2. Similarly the act done or purported to be done by non-applicant Nos.1 and 2 was not in discharge of their duty.
The non-applicant Nos.1 and 2 cannot claim benefit of Section 197 of Criminal procedure Code simply because they were on duty at the time of alleged assault on their part which resulted into death of son of the applicant. Therefore, in my opinion, this is not a case where the prior sanction for prosecution was needed. The order passed by the sessions court ::: Downloaded on - 06/01/2014 03:40:46 ::: 14 appln3970.06.odt is absolutely wrong and needs to be set aside. Hence, I pass the following order.
The application is allowed.
The order passed by the learned Ad hoc Additional Sessions Judge, Akola on 1-8-2006 in Sessions Trial No.54/2003 below Exh.4 is set aside. The trial to proceed according to law.
Since this application was pending in this Court for more than seven years, it will be just and proper to direct the trial court to hear the matter as expeditiously as possible and to decide the same within a period of seven months from the date of receipt of this order. order accordingly.
JUDGE.
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