Deepak Kumar vs State Of U.P. And Another
2023 Latest Caselaw 11435 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR		 
 
Reserved 
 

 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 32791 of 2022
 
Applicant :- Deepak Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Mukesh Kumar
 
Counsel for Opposite Party :- G.A.,Shailendra Kumar Sharma
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Sri R.K. Saxena, advocate holding brief of Sri Mukesh Kumar, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned AGA for the State and Sri Surendra Kumar, learned counsel for opposite party no.2.

2. This application has been filed to quash the entire proceedings of Misc. Case No.817 of 2020 (State Vs. Mahesh Kumar) arising out of Case Crime No.595 of 2018, under Sections 147, 323, 504, 452, 342, 420, 467, 468, 471 IPC, Police Station Fatehgarh Kotwali, District Farrukhabad pending in the Court of Chief Judicial Magistrate, Farrukhabad as well as the impugned summoning order dated 07.08.2022.

3. In brief, facts of the case are that Constable 1107 CP Mahesh Kumar posted at the residence of District Judge, Fatehgarh, Farrukhabad lodged an FIR on 23.07.2018 at 10:10 a.m. about the offence committed on 22/23.07.2018 between 10:00 p.m. and 02:00 a.m. in the night at Crime No.595 of 2018, under Sections 147, 323, 504, 452, 342 IPC that he was deputed duty as guard in the night of 22.07.2018 from 10:00 p.m. to 02:00 a.m. Chaukidar Sudhis Kumar and Pankaj Yadav were also on duty. At about 11:15 p.m. a person in simple dress came with 6-7 persons in police uniform crossing the main gate of the residence of District Judge as it was locked. He ran towards the gate and saw that two constables were cutting the sandal wood already lying on the earth and some constables and SSI Deepak Kumar was keeping the chaukidars in police jeep in drunken condition. When he forbidden, leaving the wood, carried the guards, abused them and ran away. Guard and commander informed R.I. at once at about 01:00 am. Both the chaukidars returned and informed that SSI Deepak Kumar and other constables had abused and beaten them by sticks in which they have received injuries. During the course of investigation informant Mahesh Kumar filed an affidavit to S.P. Fatehgarh denying the contents of his FIR. Chaukidars Sudhis Kumar and Pankaj Yadav stated in support of the prosecution in their statement under Section 161 CrPC.

4. After investigation, the investigating officer submitted final report to the effect that no independent and corroborative piece of evidence was available. Injured opposite party no.2, Pankaj Yadav filed protest petition which was accepted and the final report was rejected on 07.08.2022 and cognizance has been taken against the applicant under Sections 147, 323, 504, 452, 342, 420, 467, 468, 471 IPC. It has also been directed that the case would run as State case.

5. The injury report of opposite party no.2, Pankaj Yadav is on record which discloses four injuries, two as contusion and two injuries as complaint of pain.

6. Before the aforesaid FIR, an FIR under Section 379 IPC had been lodged by Sri Mohammad Ibrahim, Central Nazir, Civil Court, Farrukhabad regarding cutting of two sandal trees against the unknown thieves.

7. The applicant has taken ground that as per affidavit of Constable Mahesh Kumar (informant), the applicant was not seen at the place of occurrence. Though the injured Pankaj Yadav has supported the prosecution version. The investigating officer has submitted the final report as he found no offence against the applicant and he exonerated him from the aforesaid offence. The applicant is a government servant and police officer. Hence, prior sanction for initiating the prosecution against him was required under Section 197 CrPC which has not been taken from the concerned department. Opposite party no.2, Pankaj Yadav himself managed the injury report in his favour which are simple in nature. The applicant never made any forged signature of opposite party no.2 and his companion Shudhis Kumar but without calling a report from expert, the Magistrate summoned the applicant under Sections 420. 467. 468, 471 IPC in summary manner which is not permissible in law.

8. After submission of the final report, a right to defend his case was accrued to the applicant but without issuing any notice and without giving opportunity of hearing to him the impugned order has been passed which is not permissible in law. The impugned order is illegal. arbitrary and contrary to the evidence and is liable to be quashed. The applicant never beaten opposite party no.2 and his companion at any point of time as he was not present at the place of occurrence and only to hide the illegal theft of sandal wood, opposite party no.2 had falsely implicated him. Learned Magistrate had taken cognizance without applying his judicial mind which is not sustainable in the eye of law. The applicant has no criminal history. If he is put behind the bar, he will suffer irreparable loss. Hence, the application be allowed and the entire proceedings of the aforesaid case be quashed.

9. The applicant has filed supplementary affidavit by which the applicant has annexed the copy of G.D. as annexure-SA-2 and supplementary medical report of the injured Pankaj Yadav, Opposite party no.2.

10. Since the applicant claims protection under Section 197 CrPC, hence it is produced 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-

(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: I 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.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(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."

11. There are difference of opinions between the parties about the applicability of Section 197 CrPC. According to the learned counsel for the applicant before proceeding against the applicant, a prior sanction under Section 197 CrPC was required whereas learned AGA and learned counsel for opposite party no.2 are of the view that the alleged commission of crime is a separate act from the act of discharge of official duty. In this regard both the parties have relied on some judgments which are as under:-

(i) Mahendra Pal Singh Lekhpal and another Vs. State of UP and another, 2022 0 Supreme (All) 15. In this case applicant nos.1 and 2 were the public servant in consolidation department. During consolidation proceeding a joint plot was allotted to them. Opposite party no.2 filed an application before the SOC for making measurement of plot no.372. SOC directed consolidation officer for measurement. The question arose as to whether Section 197 CrPC is available here to protect the public servant discharging official duties and functions from harassment by initiation of frivolous criminal proceedings. The Court observed that if on the face of complaint, act alleged appears to have a reasonable relationship with official duty, power under Section 482 CrPC would have to be exercised to quash proceedings to prevent the abuse of process of Court. The Court further observed that the Magistrate has illegally taken cognizance of the offence summoning the applicants under Section 427 IPC which is ex facie bad for want of sanction.

(ii) Anil Kumar Yadav Vs. State of UP and another, 2022 (4) JIC 223 (SC). In this case appellants were working in railway department. They removed illegal constructions of respondent no.2 under the judicial order passed under Section 133 CrPC. The complainant/respondent no.2 filed an application under Section 156(3) CrPC against the appellant for registration of FIR. Police submitted report that accused/appellant had removed the illegal constructions acting in his official capacity as a public servant. Ignoring the police report, the Magistrate summoned the appellant under Section 204 CrPC. The High Court refused to quash the criminal proceedings as well as the summoning order. The Apex Court held that issuance of process under Section 204 CrPC in ignorance of police report was unjust. The appellant had taken bona fide action in discharging his duty. Hence, no offence is made out. Accordingly, the complaint was quashed and the order of the High Court was set aside.

(iii) Ajit Shukla and others Vs. State of UP through Principal Secretary Home Civil Sectt. and others, Application U/S 482 No.5776 of 2017, decided on 10.08.2022. The relevant portion of the judgment is reproduced as under:-

"9. On behalf of the applicants, it has been submitted that the applicants were discharging official/public duty when the alleged incident took place for which two complaints came to be filed and the applicants had been summoned as accused; mandatory provision of sanction by the competent authority under Section 197 Criminal Procedure Code, 1973 (for short 'CrPC) could not have been ignored by the learned Chief Judicial Magistrate before taking cognizance and summoning the applicants as accused; the information received on Dial-100 through Mr. Anvar Khan, Advocate was recorded in the G.D. dated 21.05.2014. In the G.D. dated 22.05.2014 the extract of incident was also recorded. The police personnel, after receiving information. which got recorded in the G.D., reached to the District Court to control the situation in discharge of their official/public duty.

14. Section 197 in The Code of Criminal Procedure, 1973 is extracted herein below for convenience:-

"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-

(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,"

Notification No. 1841 (3)/V1-538-71 dated 30th January 1975 reads as under:-

"Grth Vibhag (Police), Anubhag-9, Notification No. 1841 (3)/N1-538-71, dated January 30, 1975-

In exercise of the powers conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), the Governor is pleased to direct that the provisions of sub-section (2) of the aforesaid section shall apply to all members of the following forces of the State, charged with the maintenance of public order wherever they may be serving, namely:

(i) UP Police Force

(ii) U.P Pradeshik Armed Constabulary"

(iv) In D. Devaraja Vs. Owais Sabeer Hussain, 2020 0 Supreme (SC) 413, the matter was in respect of the Karnataka Police Act, 1963 and Section 197 CrPC. It was held that Section 170 of the Karnataka Police Act read with Section 197 CrPC has its limitations. Protection is available only when alleged act done by the public servant is reasonably connected with discharge of his official duty and is not merely a cloak for objectionable act. An offence committed entirely outside scope of duty of police officer, would certainly not require sanction. If there is a reasonable connection between the act and the performance of official duty, fact that the alleged act is in excess of duty will not be ground enough to deprive policeman of protection of government sanction for initiation of criminal action against him. It is further held that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. The act of a policeman or any other public servant unconnected with official duty, there can be no question of sanction. For ready reference relevant parts of the aforesaid judgment are reproduced herein below:-

"59. In the context of aforesaid, this Court held that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done "under" a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law. It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Code of Criminal Procedure or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Code of Criminal Procedure authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement.

64. In Pukhraj Vs. State of Rajasthan and another, (1973) 2 SCC 701 the Accused Post Master General, Rajasthan had allegedly kicked and abused a union leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court however left it open to the Accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Code of Criminal Procedure.

68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected Under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained Under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

76. While this Court has, in D.T. Virupakshappa Vs. C. Subash, (2015) 12 SCC 231 held that the High Court had erred in not setting aside an order of the Trial Court taking cognizance of a complaint, in exercise of the power Under Section 482 of Code of Criminal Procedure, in Matajog Dobey Vs. H.C. Bhari, AIR 1956 SC 44 this Court held it is not always necessary that the need for sanction Under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings."

12. In the cited case, the appellant was the police officer of rank of S.P. It was held that on face of complaint, if act alleged appears to have a reasonable relationship with official duty, where criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 CrPC would have to be exercised to quash proceedings, to prevent abuse of process of Court.

13. Records of the instant case clearly reveal that that complainant alleged that the police exceeded while respondent was in custody, in course of investigation In connection.

14. Learned counsel for opposite party no.2 and learned AGA have argued that the applicant is denying his presence at the time and place of occurrence, hence he cannot claim protection under Section 197 CrPC. The applicant's counsel has argued necessity of previous sanction before initiation of the impugned criminal proceeding without accepting the presence of the applicant as officer on duty on the alleged date, time and place of occurrence. It has also been argued by the learned counsel for opposite party no.2 that there is no GD entry that the applicant had visited the place of occurrence that time to record the evidence in connection of investigation of the prior case. The applicant has also not admitted that he had visited the District Judge, residence for inspection in connection of the FIR dated 21.07.2018, under Section 379 IPC lodged earlier with regard to theft of sandal tree.

15. Thus it is concluded that since there is complete denial by the applicant from the commission of the alleged crime, therefore, the present case is a separate and distinct crime from the previously lodged FIR under Section 379 IPC and also from the official discharge of duty of the applicant for which no prior sanction was required.

16. In the above judicial precedents it has been held that if the accused was discharging official duty when the alleged incident took place or the alleged incident was reasonably connected with the discharge of official duty, the previous sanction for prosecution of a public servant under Section 197 CrPC would be mandatory but if the offence ought to have been committed by the accused is entirely outside of the scope of the duty of a police official, there would not be any requirement of prior sanction. Here the applicant is denying the commission of the alleged crime in which opposite party no.2 has received injuries and FIR had also been lodged in due course and only on the basis of submission of two affidavits, one of Mahesh Kumar and another by Chaukidar, Sudhish Kumar, final report was produced ignoring the statement and injuries sustained by Pankaj Yadav, opposite party no.2. Whether the alleged offence had been committed by the applicant or not, can be decided only after taking evidence and during the trial. Only on the basis of status of the applicant that he is a police officer, he can not claim exemption under Section 197 CrPC. The protection under Section 197 CrPC is available only when the alleged offence had been committed in connection of discharge of official duty in due course. If such alleged offence has no connection with the discharge of official duty there would not be any need of prior sanction under Section 197 CrPC. It is not the case of the applicant that acting as I.O. he exceeded his duty and that is why the alleged occurrence has been committed. This Court is of the view that there is no nexus or connection between the official discharge of duty by the applicant and the alleged commission of crime, hence, there was no need for taking prior sanction under Section 197 CrPC.

17. In some of the judgments, it has been held that no cognizance can be taken if prior sanction is pending consideration but contrary to that in State through CBI Vs. BL Verma and others, (1997) 10 SCC 772; Shantaben Bhurabhai Bhuriya Vs. Anand Athabhai Chaudhari and others, 2021 SCC OnLine 974, it has been held that the order of the High Court to drop the proceeding for want of sanction under Section 197(1) CrPC is bad. It will be perfectly valid and open to the petitioner to activate the prosecution against the respondent.

18. In Shantaben Bhurabhai Bhuriya (supra) it was held that absence of sanction can not be a ground to quash the criminal proceeding in exercise of power under Section 482 CrPC is rather impermissible and if there is need of sanction under Section 197 CrPC, the Court may direct the authority to take sanction and then proceed in stead of quashing the entire proceeding. The same view has been taken in Fertico Marketing Vs. Central Bureau of Investigation CBI (2021) 2SCC 525.

19. In para 11 of Inspector of Police and others Vs. Battenaptala Venkata Ratnam, AIR 2015 (SC) 2403, it has been held that the alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only.

20. Here the learned Trial Court has not opined that the alleged commission of crime by the applicant is in connection or nexus with his official discharge of duty, hence, he proceeded with the case in absence of prior sanction under Section 197 CrPC.

21. This Court is also in conformity with the conclusion of the learned Trial Court. This Court does not find the alleged occurrence having any connection with the discharge of official duty entrusted to the applicant. Hence, there would be no need of prior sanction before taking cognizance and passing the impugned summoning order.

22. On the basis of above discussion, this Court is of the considered view that this application under Section 482 CrPC is not maintainable and is liable to be dismissed.

23. This application under Section 482 CrPC is dismissed accordingly.

Order Date :- 18.4.2023

Shahroz

(Umesh Chandra Sharma,J.)