Ran Singh vs S.S. Mannon Etc.
1990 Latest Caselaw 75 Del

JUDGMENT

Santosh Duggal, J.

(1) [ED. facts : On 29.4.87, petitioner an S.I. (security) with wife, children and 2 relatives was after taking dinner at Hotel Satkar, Green Park, standing near the road while wife with children had gone to Pan Vendor for taking Pan Petitioner noticing some quarrel between his wife and one of the 3 boys standing at the Pan shop, went near and a brawl started. Respdt. Manan, who was on Patrol duty in a Police Jeep happened to pass that way. Seeing the commotion he took the petitioner and the boys to Police station and there asked the Duty Officer (S.I. Brijpal) to get petitioner medically examined as he was smelling liquor. After doing this and after making entries in the record, petitioner and the boys were allowed to go. Before this petitioner's wife had lodged a complaint with Duty Officer for misbehavior against the 3 boys. Petitioner claiming that he informed these facts to his boss, Additional D.C.P.(s) and finding no action he filed criminal complaint u/Ss. 323, 365, 217, 218 Indian Penal Code against the Acp & S.I. Brij Pal and against the 3 boys u/s 354, 365/34 IPC. The Met. Mgte. after preliminary evidence held that no case was made out u/Ss. 365, 354 & 217, 218 Indian Penal Code and considered if fit to proceed u/S 323/34 against the 5 and u/S. 342 against Police Officers in addition. Mm was told that beating or illegal confinement was no part of Official duty of Police Officers and hence sanction u/s 197, Cr. P.C. was not necessary. Order summoning them was passed on 5 6.87. Respds. 1 & 2 challenged this in revision and Additional Sessions Judge allowed same. Petitioner questioned this in High Court] After detailing above, Judgment is :

(2) The petitioner reiterated his contention that the Acp had directed in a very highhanded manner to beat him up on the road without even caring to find out as to what was the basis of the altercation which he was having with one of those boys and later on arrested the complainant and forcibly put him in the jeep with the assistance of those three boys and brought him and his family members to the police station for which there was no justification. He has also repeated his allegations that even at the police station he was given a beating and locked up in a room till sent for medical exam. and that this again was not in discharge of official duties of a police officer and there has been a further dereliction of duty on their part in not taking any action against the three boys against whom his wife had lodged a complaint at the police station making out a case of molestation which is evidenced by daily diary entry No. 24 A recorded at the police station at 11.20 p.m. He therefore contended that no sanction for prosecution u/S. 197, Criminal Procedure Code . was required for these acts and that the learned Additional Sessions Judge has erred in accepting the pleas of the accused persons that they had acted in the discharge of official duties. He placed reliance on , Bhagwan Prasad vs. N.P. Mishra; 1979 Cr.A.R. 261 (S.C), B. Saha vs. M.S. Kochar ; , Balbir Singh vs. D.N, Kadian ; 1963 Cri. LJ. 397, Chandra Deo vs. Prakash Chandra; , Pyarelal vs. Sita Ram ; 1978 Crl. L.J. 522, (Ker.) Lakshmana vs. C.R. Salochana and 1989 Crl. L.J. 624 (On.) Jagannath vs. Smt. Sambari.

(3) Mr. J.R. Piryani appearing for the respondents (ACP Mannon and S.I. Brij Lal) submitted at the outset that certain duties are enjoined upon the officers of Delhi Police by virtue of various provisions of The Delhi Police Act, 1978 ('the Act') and that u/S. 60 thereof, vide clauses (c), (f) and (h) it is laid down that it shall be the duty of every police officer- --.

(C)to prevent to the best of his ability the commission of public nuisances ;----

(F)to prevent the breach of the public peace : - - -

(H)to take charge of intoxicated persons and of lunatics at large, who appear dangerous or incapable of taking care of themselves."

(4) He submitted that there are certain facts established from a reading of the complaint itself that the complainant Ran Singh was having an altercation with one of the boys, whom he alleges to have seen molesting his wife while she was standing at the shop of the Pan vendor. He further pointed out that the complainant himself has mentioned in the complaint, that he had consumed liquor and thus on his admission he comes under the category of 'intoxicated persons', as contemplated in clause (h) of the Act, which fact is also supported by the medical certificate on record, while on medical exam of the petitioner at 10.40 p.m., the finding was recorded as under: "ALLEGEDH/o consuming alcohol & assault 0/e smell of alcohol present. Loud & blurred speech. Coordination inadequate."

(5) Mr. Piryani argued that the incident took place some time around 9 p.m. and that when the Acp reached the spot and found the petitioner under influence of liquor, having quarrel with another person at a public place, and because the medical certificate recorded at 10.40 pm. reveals that he was incoherent of speech and lacked coordination of movements ; it can reasonably be presumed that at 9 p.m., he must have been unable to stand himself and appearing intoxicated, involved. in an altercation with one of the boys; and thus the Acp could legitimately treat it to be a case of commission of public nuisance, and breach of public peace by an intoxicated person, and he only performed his duties u/Cl. (c), (f) and (h) of S. 60 of the Act in taking charge of him and bringing him to the police station.

(6) The learned counsel further pointed out that it is evidenced by daily diary entry No. 22-A that he had brought not only the complainant but also the other three boys which shows that apparently he did not act in an arbitrary manner and brought all the persons involved in the disturbance of public peace and commission of public nuisance to the police station in discharge of his duties and took charge of the complainant as an intoxicated person in the same process. Mr. Piryani also referred to S. 65 of the Act, whereunder all persons arc under obligation to comply with the reasonable directions given by a police officer in discharge of his duties under this Act, and that u/S 65(2) the police officer in the event of resistance, refusal or failure to comply with his direction, without prejudice to any other action that may be taken under any other provision of the Act or any other law, remove that person and either produce him subsequently before the M.M. or in trivial cases release him when the occasion which necessitated removal has ceased to exist the only restriction being that either production before the M.M. or release shall take place within 24 hours of the arrest.

(7) According to Mr. Piryani it can further be reasonably inferred from the fact situation that the complainant being a S.I. of Police and also under influence of liquor must have resisted or refused to comply with the directions of the Acp to accompany him to the police station and in face of that, the Acp was entitled to remove him to the police station and thus even if the allegations in the complaint are taken to be true at this stage, all that the Acp did was as per complainant's allegations, to put him into the jeep and bring him to the police station. He further pointed out that the complainant's own case is that his son and daughter had got into the jeep of their own and thus it is not a case where any family member of the complainant bad been brought to the police station forcibly or against their wishes.

(8) The whole case thus as per contention of Mr. Piryani is that of discharge of official duties by Acp Mannon and that afterwards handing over the complainant to S.I. Brij Lal who was the duty officer at that time at the police station, and latter taking charge of him, and keeping him in custody till his medical exam. was also a function in discharge of official duty of the duty officer and that after medical exam both the police officers did not feel any necessity for his further detention and allowed him to go home as also the other three boys, which action they took in terms of S. 65(2) of the Act because they must have thought it to be a trivial matter and otherwise also, none of the offences for which the case had been found to be prima facie existing, namely S. 323 or S. 354 Indian Penal Code are cognizable offences and accordingly police officers were not required to take any further action, and there is no violation or dereliction of duty on their part when the three boys were allowed to go home.

(9) The learned counsel has placed reliance on 1987 Cri.LJ. 872, Pritam Singh vs. Delhi Admin. which was a case of a police officer on traffic duty, stopping a scooters for driving in contravention of the provisions of Motor Vehicles Act, who incidentally happened to be an Advocate. The alleged acts of illegally detaining the scooters, even after challanging him for the purpose of recovering the composition money and further assaulting and insulting him were held to be in discharge of their official duties as there was reasonable connection between the alleged acts and discharge of the official duty and hence sanction for the prosecution was held necessary u/S. 197, Cr. P.C. Reliance was placed in this case on 1956 Crl. L.J. (S.C.) Matajog Dubey vs. H.C. Bhari. Mr. Piryani has also relied upon 1988 Crl. L.J. 100 (Guj.) Karnal Singh vs. State of Gujarat where while checking trucks and organising anti-evasion activities, the Sales-tax Officers had stopped a truck and allegedly abused and slapped the driver who lodged the complaint. It was held that the latter act of the officers was directly concerned or reasonably connected with the official duties as to be inseparable from them, and the action was in discharge of their official duties or at least in the purported discharge of their official duties and thus the official concerned was entitled to protection u/S. 197, Cr. P.C.

(10) Mr. Piryani submitted that the accused persons in the present case were far better placed because in the two reported cases mentioned above, there was alleged abusing or slapping or illegal detention whereas in the present case the acts alleged are removal to the police station, or detention there or failure to take action against the erring boys, and that even though the allegations of beating as contained in the complaint were to be taken into consideration at this stage, on the authority of the two judgments, including that of this Court, it is certainly a case where the alleged act of beating was also in the discharge or at least purported therewith, though the plea of the accused persons is that of denial. He contended that the medical certificate can bo taken into consideration to lend support to their defense, because the petitioner was found to be lacking in coordination of movements and their plea as indicated in the revision petition filed before the Sessions Judge is that as he was not able to balance himself because of being intoxicated, he hurt himself which fact explains the minor injuries as noted in the medical certificate. He therefore summed up his arguments that it is a case where sanction for prosecutions u/S. 197, Cr. P.C. was definitely required and there is no error in the finding of the learned Additional Sessions Judge in that respect.

(11) Mr. K.K. Bakshi, appearing for the State, also came forth with the same arguments placing reliance on the judgment of this Court in the case of Pritam Singh (supra). He further argued that the police officers clearly acted in discharge of their duties as enjoined u/Ss. 60 and 65 of the Act. He also placed reliance on a Supreme Court judgment in the case reported as 1979 Criminal Appeals Reporter 261, B. Saha vs. M.S. Kochar, to the effect that the Court can take into account all material on record and in this case since the Magistrate had called for report of the Sho of the police station u/S. 202, Cr. P.C., that can also be taken into consideration. being part of the record where as a result of the inquiry the Sho has given full sequence of events and also enclosed the daily diary entries No. 22-A as also 23-A regarding the fact of petitioner having been brought back to police station along with the three boys, and after medical examination, and also daily diary entry No. 24-A containing complaint of petitioner's wife. Statements of the three boys recorded by the police have also been forwarded with the report besides those of two public witnesses, named, B.N. Vashisht and Shanker, who were present near the Pan shop and also the Pan vendor Sumati Chand recorded on 29/30.4.87 which statements reveal that the petitioner was in the act of assaulting one of the three boys when the police arrived at the spot and that all this material forwarded by the Sho with his report u/S. 202, Cr. P.C. establishes that the petitioner had created a row with one of the three boys and the police arrived just at that time and finding him in that process and also under influence of liquor, took him to police station and thus the action of the Acp was in discharge of his official duties. Mr. Bakshi therefore also justified the order passed by the Addl. S.J. in revision holding the proceedings in the complaint case liable to be dropped against the police officers arrayed as accused No. 1 and 5 for want of sanction u/S. 197, Cr. P.C.

(12) The petitioner reiterated his contentions in a short rejoinder, that on the allegations made by him in the complaint including that of beating, forcibly pushing him into the jeep as also illegal detention at the police station, it could not be argued on behalf of these accused persons that they acted in discharge of their official duties because assaulting or illegally detaining a person was no part of a police officer's duty.

(13) At the outset, it is to be noted that there is no dispute on the question that the provisions of S. 197, Cr. P.C. have been extended to all serving police officials of all ranks of Delhi Police force charged with the maintenance of public order by means of a Notification issued u/S. 197(3) by the Lt. Governor of Delhi, and as such in case these two police officers arc taken to have acted in discharge of their official duties or even purported discharge thereof, or are accused of such acts which are inter-connected with the performance of their official duties, then protection of S. 197, Cr. Pc shall be available to them, and their prosecution without sanction of the State Govt would not be sustainable.

(14) A resume of the aforesaid facts reveals that the complainant (petitioner herein) had admittedly consumed liquor and had been found on medical exam. even after two hours of the alleged occurrence, as of 'loud and blurred' speech and lacking coordination of movements, and it can legitimately be urged on behalf of the Acp that he could treat him to be an 'intoxicated person.' Further admittedly there was some row between the complainant and one of the boys, as even on complainant's version he was questioning that boy about molestation of his wife, and it can again reasonably be presumed that such questioning could not be quiet and peaceful in the nature of the allegations particularly when the complainant was under influence of liquor and also happened to be a S.I. of Police. There was thus apparently a situation which could be treated to be amounting to 'public nuisence' or 'breach of public peace'. Removal of all these persons including the complainant, to the police station was on face of it, in discharge of duties, as enjoined upon the Acp by S. 60(c), (f) and (h) of the Act. There is justification in Mr. Bakshi's plea that the facts revealed in more details in report of the Sho, sent u/s 202, Cr. P.C. on Magistrate's direction, could also be taken into consideration for the purpose, which is accompanied by statements of persons who could be witnesses. As held by the Supreme Court in the case of M.S. Kochar (supra), the question of sanction u/S. 197, Cr. P.C. can be considered at any stage of proceedings, and court can take into account all material on record at the time of consideration of such question, and not to confine itself only to the allegations in the complaint. The same proposition was outlined in an earlier judgment of the Supreme Court in the case of Matajog Dubey (supra) where it was categorically held that: "ITwas not always necessary that the need for sanction under S. 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any state of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty ; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction."

Thus the question whether the sanction was necessary or not, may have to be determined from stage to stage and the necessity may reveal itself in the course of progress of the case. This is also the view expressed by the Orissa High Court in the case of Jagannath Sadangi (supra) where also the statements of witnesses and the report u/S. 202, Cr. P.C. were taken into consideration.

(15) It is pertinent to note that the petitioner has himself placed reliance on a Supreme Court judgment in the case of M.S. Kochar (supra) to support his contention that certain acts do not come in the category of 'official duties'. The facts of that case were entirely different as it was a case of misappropriation of goods, and tampering with seals by the custom officers. It was in that context obviously that it was held that misappropriation of goods entrusted to a public servant was not an act committed in the discharge of official duties. This judgment can be of no assistance to the petitioner but provides clear guidelines on the point, as to whether the report u/S. 202, Cr. P.C. can be taken into consideration for determining the plea that the acts complained of were committed by these two police officers in the discharge of (heir official duties. As urged by Mr. Bakshi this judgment certainly enunciates the proposition that the determination of this point cannot be confined to the allegations in the complaint, but the Court can take into account all material that might come on record by the time when this question is being considered.

(16) This Court, in the case of Pritam Singh (supra) where a traffic police officer had gone to the extent of manhandling and insulting the scooters who, as subsequently turned out, was an advocate held, on the authority of the Supreme Court in the case of Matajog Dubey (supra), that acts which arc inter-connected with the discharge of official duties shall also be within the purview of S. 197, Cr. P.C. In the Supreme Court judgment it was unequovocally laid down that where a power is conferred or a duty is imposed by a statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, and where in the exercise of the power or the performance of the official duty, improper or unlawful obstruction is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. Same view was propounded by the Gujarat High Court in the case of Karnal Singh (supra).

(17) It would be in the fitness of things to take note of the judgments, relied upon by the petitioner. On going through the same, I find that the facts in each of those cases are distinguishable, and in none of them, it can be even urged that the alleged acts were in discharge or purported discharge of official duties or in any manner inter-connected therewith. For instance, in the case of Pyarelal (supra) two persons-father and sou, had been removed from home without any provocation, and taken to the police station, illegally detained, manhandled, stripped and beaten to the extent of causing fracture to one of them, and it was on such facts that it was held that such type of acts could not be deemed to be in discharge of official duties. It was recognised even in that judgment that once a person is shown to be acting within the course of his official duty, then any excess committed also entitles him to claim protection u/S. 197.Cr.PC.

(18) Similarly in the case before Kerala High Court (Lakshmana Kunjhan (supra) ), on facts the allegations were that of torture by the police officer who was Superintendent of Police, and the complainant who was a woman had alleged that she was taken to the police station under direction of the said police officer, kept there under confinement and taken to different police stations and subjected to torture by some persons. It was in face of those allegations that it was held that such acts could not be said to have direct relation to the discharge of official duties, and thus no sanction u/S. 197, Cr. PC. was held to be necessary.

(19) Likewise in the case of Balbir Singh (supra), there were allegations of tampering of search memos, while the same were in the custody of Court, by a Sub Inspector and Constable of Delhi police, and on these allegations it was held that these accused were not acting in discharge of their official duties; and thus no previous sanction of the Lt Governor for their prosecution was necessary.

(20) In the case of Bhagwan Prasad (supra) the complaint was by an Assistant Civil Surgeon, against the Civil Surgeon that during operation the Civil Surgeon had abused the complainant before patients and hospital staff, and ordered the hospital cook to turn out this *badmash* meaning the complainant, and the cook actually pushed out the complainant and it was on these facts that the Supreme Court held that there was nothing to show that this act was a part of official duty of Civil Surgeon, and thus no sanction was required u/S. 197, Cr. P.C. for his prosecution. This judgment, however, provides guidelines, as to where sanction for prosecution would be necessary. The proposition enunciated is that there must be a reasonable connection between the act complained of, and the discharge of official duties, and once those acts do not fall within the scope and range of official duties of the public servant concerned then protection of S. 197 cannot be claimable by such public servants.

(21) None of these judgments apparently applies to the facts of the present case as it has been noticed in detail that the acts attributed to the two police officers in this case, cannot be said to be out of purview or scope of their official duties, and it is a case where they can certainly be treated to have acted in discharge of their official duties as enjoined upon them by various provisions of the Delhi Police Act or related thereto. Thus it has been rightly held by the Additional Sessions Judge vide impugned order that the sanction for prosecution was necessary u/s 197, Cr. P.C. and that the order of summoning passed against them was liable to be quashed.