Ramakrishna vs State Of Ap.,
2022 Latest Caselaw 7402 AP

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THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
          CRIMINAL PETITION NO.3940 OF 2018
ORDER :

This Criminal Petition, under Section 482 of the

Code of Criminal Procedure, 1973 (for short "Cr.P.C."), is

filed quash the proceedings in C.C. No.24 of 2017 on the

file of the IV Additional Judicial Magistrate of First Class,

Chittoor.

2. 2nd respondent herein/complainant filed a

private complaint against the petitioners/A.1 to A.3 and

another, for the offences punishable under Sections 166,

166A, 218, 219, 330, 342, 348, 352, 355, 357, 500, 506

read with 120 and 34 of the Indian Penal Code, 1860

before the learned Magistrate, and by an Order dated

18.01.2017, the learned Magistrate had taken

cognizance of the same for the aforesaid offences.

3. The brief facts are as under:

2nd respondent/complainant lodged a private

complaint against A.4 and 3 others vide C.F. No.2132 of

2016 on the file of the learned Magistrate for the offences

punishable under Sections 420, 506, 386 read with

120B and 34 IPC, and the same was posted to

11.04.2016 for recording sworn statement. In the mean

while, A.4, in order to intimidate and harass the

complainant with a view to compel him to withdraw the

private complaint filed by him, got an FIR in crime No.44

of 2016 of Chittoor I Town police station registered

against him and others for the alleged offences under

Sections 420, 506 and 448 read with 34 IPC on

03.04.2016.

The accused conspired together and called him to

Chittoor I Town police station and Chittoor Crime police

station by sending constables at night to the house of

complainant. On 03.04.2016 at about 8.30 PM, the

complainant along with his Advocate A.Giridharan

Sharma went to police station, where A.1 and A.2 abused

him filthy language and threatened with dire

consequences if he fails to withdraw the private

complaint filed by him, and kept him in police station till

11.30 PM and then took him to Chittoor I Town police

station and kept him in police station till 7.00 AM on

04.04.2016 inspite of objections by his advocate. At

about 7.00 AM, A.2 and A.3 came and abused and

assaulted him and thereby dishonoured him and again

threatened to withdraw the private complaint filed by

him. A.1 came and threatened him by pointing a fire

arm at him and took his signature on two blank stamp

papers and also took signatures in a paper from his

brothers-in-law R.V. Nuthan Babu and K.Deepak Kumar

with a view to use them for their own purposes.

On 16.04.2016, the complainant filed Writ Petition

No.12932 of 2016 before this Court for a direction to A.1

to A.3 not to harass him by calling him and his family

members to police station in connection with crime

No.44 of 2016. Office of the Government Pleader of High

Court informed about filing of the Writ Petition to A.1 to

A.3. Enraged by the same, A.2 came to Hyderabad and

arrested the complainant on 17.04.2016 at about 11.00

AM at Sapthagiri Hotel, Abids, Hyderabad by flouting the

mandatory provisions under Sections 41B, 41C, 46, 50,

55 and 58 CrPC and in utter violations of the guidelines

laid by the Hon'ble Supreme Court. A.2 was not wearing

uniform at the time of arrest. The entire incident of

apprehending the complainant by A.2 was recorded in

closed circuit camera installed at Sapthagiri Hotel. In

the mean while, he also filed O.S. No.28 of 2016 on the

file of the IX Additional District Judge, Chittoor against

the accused in private complaint CF No.2132 of 2016 for

recovery of Rs.1.00 crore with interest. All the accused

conspired together to defame the complainant and

arranged a press meet on 18.04.2016 and produced him

before media and branded him as a cheater, though they

have no such authority and no such offence is disclosed

in crime No.44 of 2016. On 19.04.2016, news papers

published statements made by police and the same is per

se defamatory.

At 1.00 PM on 18.04.2016, the complainant was

brought to Chittoor I Town police station, A.3 assaulted

him and forced him to remove his clothes and put him in

cell by chaining his legs, and his hands were hand-

cuffed and he was chained to a trunk box in the cell and

dishonoured him by use of force. A.2 and A.3 abused

him in filthy language and treated him inhumanly and

threatened him saying that they would show what police

power is and no authority could do anything to them and

challenged that they would see what the High Court

would do in the Writ Petition, and threatened him to

withdraw the private complaint otherwise threatened to

teach a lesson even to Advocates appearing for him. At

about 10.30 AM, he was taken to Crime police station

from Chittoor I Town police station by walk along with

two constables and presented before A.1, who abused

him in a language which is highly inhuman and dragged

names of his family members and advocates, and

threatened him to withdraw the private complaint and

the Writ Petition. Later, he was produced before the III

Additional JMFC, Chittoor at 3.00 PM. The statement in

the remand report that he was arrested by one

J.Hemasundar, HC 2874 at about 11.00 AM along with

PC No.4146, is not correct. After remand to judicial

custody, he was taken to Tirupati Sub Jail and was

again brought to Chittoor on the ground that there was

no space in the jail and kept for the night in cell again

with chains and handcuffs, and on the next day at about

9.30 AM, he was taken to Madanapalli Sub Jail.

Writ Petition No.12932 of 2016 was allowed by the

High Court with direction to police not to use force and

third degree methods and not to record any confessions

at night and allowed presence of Advocate of

complainant during interrogation.

Pursuant to the order of the Court, he was taken to

police custody on 24.04.2016 at about 1.30 PM by A.3

from Sub Jail, Madanapalle. After completion of medical

examination, he was brought to Chittoor I Town police

station. A.3 assaulted and threatened him that he

should withdraw the private complaint and confess.

His Advocate came to police station at about 5.00 PM as

per directions of the Court, but A.3 informed the

Advocate that they were not going to examine the

complainant. But, at about 8.00 PM, A.3 assaulted the

complainant and forced him to remove his clothes and

he was kept with underwear and threatened him to

withdraw the complaint and Writ Petition. He was put

in cell with chains and handcuffs in utter violation of the

directions of the High Court in the aforesaid Writ

Petition.

On 25.04.2016 at about 11.00 AM, he was taken in

auto accompanied by A.3 and two constables to Crime

police station where A.3 forced him to remove his clothes

and took him to chamber of A.1 with underwear. A.1

suddenly came upon him in a menacing manner,

assaulted him and beat him with hands and legs. A.1

sat in his chair and asked the complainant to sit on floor

touching his legs and started abusing him and

threatened him to withdraw private complaint and Writ

Petition and also to confess that the bank account was

opened by him. A.1 took one of his shoes and started

beating the complainant on his left shoulder, thigh, head

and all over body. A.1 beat the complainant with shoe

for atleast 30 times and caused contusions. Due to the

beating, the complainant fell unconscious and suffered

from loose motions. He was provided treatment in

Government Hospital and brought to Chittoor I Town

police station. At about 8.00 PM, A.1 came there,

abused him and slapped him several times on his face

and asked A.3 to take his signatures on a white paper.

They took his signatures on a white paper by force. A.2

came on the next day morning and abused and

assaulted him.

Even though police custody was granted till

29.04.2016, as health of complainant was deteriorating,

A.1 to A.3 were forced to produce him before the Court

on 28.04.2016 at about 2.30 PM, where he informed

about the ill-treatment, beating and taking signatures on

white papers, and showed them injuries on his body, to

his counsels, who advised to tell the same to the

Magistrate. Sensing trouble, he was again taken to

police station. Then, his counsels approached the

District Judge, Chittoor to apprise the situation.

Knowing about it, police again brought him to Court and

produced before the Magistrate at 4.30 PM. He made a

statement before the learned IV Additional JMFC,

Chittoor about the ill-treatment and third degree

treatment given by police. The Magistrate recorded the

same, and pursuant to the directions of the Magistrate,

he was taken to Government Area Hospital, Madanapalli,

where Doctor examined him and noted the injuries and

issued wound certificate. Hence, the complaint.

4. Learned counsel for the petitioners contended

that there are absolutely no ingredients so as to attract

the alleged offences, but the learned Magistrate had

taken the case on file erroneously. He further submitted

that the acts that are alleged against the petitioners, are

integral part of discharge of their duties; that there is no

valid sanction so as to prosecute the petitioners as they

are the Government officials. He further submitted that

there are number of crimes registered as against the

respondent No.2/complainant, and in view of the same,

continuation of the impugned proceedings is nothing but

abuse of process of Court.

5. On the contrary, learned senior counsel Sri

P.Veera Reddy, appearing for respondent No.2,

contended that these are disputed questions of fact and

the same have to be adjudicated during the course of

trial; that the accusations contained in the complaint

would certainly not come within the purview of discharge

of official duties of the accused; that petitioners-police

have behaved high-handedly and their actions alleged

would not in any way form integral part of discharge of

their official duties, and hence, he prayed to dismiss the

Criminal Petition.

6. Perused the record.

7. Complainant examined himself as P.W.1 and

gave his sworn statement. He reiterated the factual

aspects mentioned in the complaint. On 03.04.2016, A.1

to A.3 called the complainant to police station on the

pretext of investigation relating to crime No.44 of 2016 of

Chittoor I Town police station and kept him in custody

till 04.04.2016 without formally arresting him. The

complainant was abused in filthy language and

threatened to confess insofar as the allegations crime

No.44 of 2016 against him and he was threatened to

withdraw the private complaint in C.F. No.2132 of 2016.

A.2 to went to Hyderabad and arrested the complainant

on 17.04.2016 without following the mandatory

provisions of arrest and conspired with other accused,

and conducted a press meet and named him cheater.

All the accused conspired and obtained police

custody of the complainant on 24.04.2016 at about 1.30

PM and thereafter violated the conditions imposed by the

Court. During the police custody, the complainant was

subjected to physical cruelty by beating him and treating

him inhumanly and threatening him to withdraw the

complaint. He was abused in filthy language.

The complainant filed a Writ Petition in the High

Court W.P. No.12932 of 2016 seeking a mandamus

declaring the action of A.1 to A.3 as illegal and arbitrary

and consequently sought a direction not to harass the

complainant and his family members in connection with

crime No.44 of 2016 of Chittoor I Town police station.

A.1 to A.3 were informed about filing of the Writ Petition.

Enraged by the said fact, A.2 went to Hyderabad and

arrested the complainant on 17.04.2016 at about 11.00

AM at Sapthagiri Hotel, Abids, Hyderabad without

following the mandatory procedure contemplated under

the CrPC and in utter contravention of the guidelines

framed by the Hon'ble Supreme Court. Thereafter, the

accused conspired together with a view to defame the

complainant and arranged a press meet on 18.04.2016.

8. A reading of the private complaint and the

sworn statements recorded by the learned Magistrate

would go to show that on 18.04.2016, the complainant

was kept in the custody of police. A.3 assaulted the

complainant, forced him to remove his clothes and put

him in cell by chaining his legs and hand-cuffing his

hands, and he was chained to a trunk box in the cell and

dishonoured him by use of force. A.2 and A.3 abused

him in filthy language and treated him inhumanly and

threatened him by saying that they would show what

police power is and no authority can do anything to

them, and challenged him that they would see what the

High Court would do in the Writ Petition and also

threatened him to withdraw the Writ Petition and the

private complaint filed by him. Thereafter, he was taken

to Chittoor I Town police station by walk along with two

Constables and was produced before A.1. A.1 abused

him in filthy language and even dragged names of his

family members and advocates and threatened him to

withdraw the Writ Petition and the private complaint or

else he would see end of the complainant.

9. The complainant was remanded to judicial

custody. He was taken to Tirupati Sub Jail and as there

was no space in the jail, he was again kept in cell in the

night with chains and hand-cuffs. The complainant was

threatened to confess that the account in Andhra Bank,

Labbipet branch, Vijayawada was opened by him. The

purpose mentioned in the petition for police custody is to

the extent that police intended to investigate with regard

to maintenance of secret account by the complainant.

The complainant categorically refused to admit the same

and stated that it was opened by A.4 with the active

connivance of the bank officials. Inspite of the same,

police did not conduct any investigation with regard to

opening of the bank account in Andhra Bank, Labbipeta

branch, Vijayawada since the accused were well aware

that it was a fake account opened by A.4 with the aid of

bank officials.

10. Learned counsel for petitioners relied on a

decision of the Hon'ble Supreme Court in Sankaran

Moitra v. Sadhana Das and another1, wherein it is held

thus : (paragraph 70)

"Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We

AIR 2006 SC 1599

cannot therefore accede to the request to postpone a decision on this question."

In another decision in Sanjeeb Kumar Marik v. Bal

Bopal Mishra2, relied on by the learned counsel for the

petitioners, it is held thus: (paragraphs 7, 8 and 9).

"The object of section 197, Cr. P. C. is to guard against vexatious proceedings against servants and to secure the well-considered opinion of the superior authority 'before a prosecution is launched against them. To find out as to what is the true and correct meaning of the phrase "acting or purporting to act in the discharge of his official duty". Courts have considered different situations and no hard and fast rule has been laid down. It would essentially depend upon the facts and circumstances of each case. But there has been a unanimity of judicial authorities to the effect that if there is a coherent nexus between the act complained of as an offence and the duty of the public servant, sanction becomes necessary even if such act is in excess of his exact duty. In the decision reported in the case of Kremjit Mohananda v. Mohanpani Kama and another, (1995 (II) O. L. R. 284), this Court held that the principle embodied under section 197, Cr. P. C. well established. Before the "provision of section 197, Cr. P. C. is invoked, two conditions must be first fulfilled (i) the public servant is not removable from his office except by or with the sanction of the State Government or the Central Government, as the case may be, and (ii) he is accused of any offence alleged to have been committed by him.

After these two pre-conditions are satisfied, a further enquiry is necessary to be made as to whether the alleged offence was committed by the

2000 Law Suit (Ori) 402

public servant while acting or purporting to act in the discharge of his official duty. It is in this connection that the expression "purporting to act in the discharge of official duty" assumes importance. This expression is neither to be too narrowly interpreted nor too widely, Ultimately this Court held that what comes under the protective umbrella is an act constituting an offence, which directly or reasonably connects with his official duty. Protection of section 197 does not extend to acts done purely in a private capacity by public servant. This Court in Kartikeswar Nayak v. Satyabadi Mallik, reported in (1994) 7 O. C R 326, while dealing with a case where a police officer was alleged to have, taken the complainant into custody and thereafter the complainant was alleged to have been assaulted, tortured, and detained in the lock-up by the concerned officer, held that the acts complained of against the police officer was undoubtedly committed in course of discharge of: his official duty in arresting the complainant and producing him before the Court and even if any excess was committed in discharge of his duty, that excess was plainly in relation to his official duty in the sense that it was professed to be so and it was meant to convey to the mind of the complainant that he was acting under the authority of his office. Even if an excess was committed while effecting or continuing such arrest, it cannot be said that it was completely divorced from his duties. Accordingly, it was held that prior sanction under section 197, Cr. P. C was necessary.

8. A bare perusal of the complaint petition indicates that the petitioner was on official duty when the incident took place and he was acting while discharging his official duty. Hence, in my view, no cognizance of the alleged offence can be taken against the petitioner without prior sanction of the Government That apart, the learned Magistrate has not made any effort to see whether

the act complained of was committed while the petitioner was discharging his official duty or not. In my opinion, the learned Magistrate has passed the impugned order taking cognizance against the petitioner in a mechanical manner at a belated stage and without application of mind properly. What had been done by the police officer appears to have been done while discharging or purporting to discharge his official duties.

9. Accordingly, the impugned order taking cognizance against the petitioner in I. C. C, Case No. 16 of 1993 on the file of the learned S. D. J. M., Bolangir, cannot be sustained in the eye of law and the same is hereby quashed."

11. Now, the question that falls for consideration

in this Criminal Petition is whether the acts alleged

against the petitioners-police officials would form integral

part of discharge of their official duties.

12. A perusal of the material on record would go

to show that the harassment meted out to 2nd

respondent/ complainant would not in any way come

within the purview of discharge of the official duties of

petitioners. There is far so excess on the part of the

police officials in discharging their official duties. It is

pertinent to mention here that despite the fact that an

Order has been passed by this Court in Writ Petition

No.12932 of 2016 directing the authorities to be mindful

of their jurisdictions and strictly abide by the procedure

laid down by law in investigating the subject crime and

take necessary action thereafter, the petitioners behaved

excessively in discharge of their duties. Viewed from any

angle, this Court feels that the alleged acts of the

petitioners-police officials would not form integral part of

their official duties. The judgments relied upon by the

learned counsel for the petitioners would not in any way

render any assistance to the petitioners.

13. Learned counsel for 2nd respondent relied on a

decision in Choudhury Paraveen Sultana v. State of W.B.

and another 3 , wherein it is held thus: (paragraphs 14

and 17)

"14. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 CrPC. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a

AIR 2009 SC 1404

part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] the underlying object of Section 197 CrPC is to enable the authorities to scrutinise the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 CrPC and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. Xx

17. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be part of the duties of the investigating officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 CrPC each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 CrPC could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as Respondent 2 is concerned. The complaint prima facie makes out offences alleged to have been committed by Respondent 2 which were not part of his official duties."

In the case on hand, it is not the duty of the

investigating officers to behave high-handedly despite the

fact that an Order has been passed by this Court. The

acts alleged would no way form part of their official

duties. The Criminal Petition is devoid of merits and is

liable to be dismissed.

14. The Criminal Petition is, accordingly,

dismissed.

Consequently, miscellaneous applications pending,

if any, shall stand closed.

________________________________ K.SREENIVASA REDDY, J .09.2022 DRK

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

CRIMINAL PETITION NO.3940 OF 2018

.09.2022

DRK