Kanshi Ram vs O.P. Chopra And Ors.
1995 Latest Caselaw 264 Del

JUDGMENT

Vijender Jain, J.

(1) This matter has been on board, nobody has been appearing on behalf of the parties. In the circumstances, I had appointed Mr.R P Luthra, Advocate, as amices curiae in the matter.

(2) This is a revision petition filed by the petitioner aggrieved by the order of the learned Additional Chief Metropolitan Magistrate dated 18.8.1980. Mr.Luthra, learned counsel for the petitioner has contended that on 3.3.1977 respondent No.1, O P Chopra, Inspector Customs (Preventive), produced the petitioner in custody before the learned Metropolitan Magistrate and applied for his remand for four days on the ground that certain smuggled gold was recovered from one Kailash Nath on 2.3.1977, who has disclosed that he had obtained the same from the petitioner. Petitioner was arrested on 2.3.1977 when he was allegedly beaten between 12.30 a.m. to 4.00 a.m during the intervening night of 2nd and 3rd March, 1977 and produced before the Magistrate on 3.3.1977. Petitioner opposed the application for remand on the ground that the petitioner had been given sever beating while he was in custody of the customs officer. The Metropolitan Magistrate observed that |- "THERE are a number of abrasions and the skin of the accused on the back has turned blue and red as a result of alleged beating."

(3) The learned Metropolitan Magistrate rejected the application of the customs for remand of the petitioner to their custody and remanded the petitioner to the judicial custody. The petitioner at that time was having injuries. Mr.Luthra has contended that it was the case of the petitioner that O.P.Chopra, respondent No.1, with other customs officers had given him beating and he desired to make a complaint against the offenders in the Court. After statement of the petitioner was recorded in the Court on the same day, the learned Metropolitan Magistrate passed the following order |- "STATEMENT of complainant in custody recorded. From the statement recorded on oath that he was caused injuries while in the custody of Customs Department, which injuries I have myself verified. I find that there is a prima facie case under Section 323/34 Indian Penal Code . against O.P.Chopra, Mr.Sobti and Mr.Gangoli, Customs Officers. I therefore take cognizance under section 190 Cr.P.C. against all the three accused. They be summoned. Accused O.P.Chopra is present in Cour today. He is required to furnish personal bond and surety bond in the sum of Rs.2000.00 each, failing which he shall be remanded to judicial custody till 17.3.1977. Other accused persons be summoned on P.F."

(4) Thereafter it appeared that the respondents, O.P.Chopra, M.L.Sobti and P.K.Gangoli filed application before the Court for their discharge on account of bar of jurisdiction in view of Section 155(2) of the Customs Act and Section 197 of the Code of Criminal Procedure. The Additional Chief Metropolitan Magistrate allowed the application of the respondents and discharged them vide his order dated 18.8.1980. Aggrieved by the said discharge the petitioner filed the present revision petition.

(5) MR.LUTHRA has argued that power to interrogate does not encompass in its fold physical torture and beating by the respondents, more so, when nothing was recovered from the petitioner. Learned counsel has further contended that catena of case law decided by the Supreme Court as well as by this Court, sanction as postulated under Section 197 of the Cr.P.C. is not required in cases where the Act of the Officers/public servants are not in their purported official duty or the act is not in exercise of the colour of their official duty. Therefore, no protection can be claimed under Section 197 of the Cr.P.C. as has been held in the impugned order as it would tantamount to holding as to whatever be the nature of the offence committed by a public servant, he cannot be prosecuted for want of sanction under Section 197 of the Code.

(6) MS.MUKTA Gupta, learned counsel for the respondents, has controverted the arguments of the learned counsel for the petitioner and has argued that it was the obligation of the customs officers to interrogate and she denied that any physical harm or beating was given to the petitioner. She further contended that, however, any act done in furtherance to their official duty, would be protected under Section 197 of the Cr.P.C. and no prosecution can be lodged or maintained until and unless a valid sanction as contemplated under Section 197 of the Cr.P.C. has been obtained. Section 197 of the Cr.P.C. is as follows |- "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. (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, whatever 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. (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.'

Supreme Court in Balbir Singh v. Delhi Admn., Delhi 1986 Cr.L.J.314 held as follows |- "IN that case the Post Master General of Rajasthan abused and kicked a clerk of the Head Post Office when a clerk of the Head Post Officer of Jodhpur went to make some oral representations to the Post Master General. The clerk filed a complaint against the Post Master General under Sections 323 and 504 Indian Penal Code . before the Additional Munsif Magistrate of Jodhpur city. An application was filed praying that no cognizance of the offence would be taken without the sanction of the Government under Sec.197 of Criminal Procedure Code. It was held that the acts alleged were not done in due discharge of his official duty and so no prior sanction of the Government was necessary under Section 197 of the Code."

In S.B.Saha & ors. V.M.S.Kochar the Supreme Court held |- "INsum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J.of the Federal Court in Hori Ram v.Emperor, 1939 Fcr 159 is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.B.Gill v.The King tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."

(7) After hearing learned counsel for both the parties and law laid down by the Supreme Court on this aspect, I have to determine as to whether the impugned order of the Additional Chief Metropolitan Magistrate can be sustained in the eyes of law. Learned Metropolitan Magistrate has recorded a judicial order on 3.3.1977 to the effect that injuries were caused to the petitioner in the custody of the Customs Department which injuries the learned Metropolitan Magistrate has recorded that he himself verified and has proceeded under Sections 323/34 of the Indian Penal Code against O.P.Chopra, Mr.M.L.Sobti and P.K.Gangoli, Customs Officers. There was a medical report in respect of the petitioner from one Dr.B.Bhattacharjee of Central Jail which has detailed the injuries sustained by the petitioner which was as follows |- "LOCAL(a)Multiple Contusions on back. (i)4" x 8" (2) 8" x 2" Transverse in position.(3) 1"X4" vertical in position. (b)Multiple diffused contusions present on external aspect of left fore-arm. (c)One abrasion 1-1/2"X1/2" on right buttock. (d)Diffused contusions on lateral aspect of left thigh and front of left thigh - three in number. (e)Contusion-base of right thumb. Nature of injuries - simple.

(8) The simple question is under what law a public servant be it a Custom officer or a Police officer or any other officer can claim that beating can be inflicted or torture is permitted during investigation. Physical torture not only affects the body but also affects the dignity and conscience of an accused, an accused does not cease to be a human being. No civilized law or society can recognise this power in the hands of public servants to claim that a sanction is pre-requisite for prosecution where physical torture is manifested by a judicial order. This dehumanized behavior on the part of accused permeates from colonial past, same cannot be permitted in Republican India. Ours is a country governed by rule of law. Public servants are also governed under same norms and rules. Nobody can claim any immunity from actions which violate the body of the accused on the ground that said action was in furtherance of their power to interrogate. Physical torture, inhuman treatment to accused has been described as violation of human rights. Therefore, the present case is one where the uncivilized approach leading to illegal physical torture by these public servants has manifested in degradation of human dignity of the petitioner. These actions will fall outside the purview of purported discharge of their official duties and act done in the colour of exercise of their official duty. If an accused prays the Court that he has been beaten, tortured and if Court comes to a prima facie opinion that such an act has been done by public servant, as was the case in the instant case, the Additional Chief Metropolitan Magistrate committed a grave irregularity in assuming that Section 197 of the Cr.P.C. can be invoked in aid of such an act, divorced from their official duty. It is the Court and Court alone which has to decide after taking into consideration the relevant material, evidence and having the matter investigated as to what would be in the interest of justice and in such cases Section 197 of the Code cannot come to the aid of such erring public servant.

(9) Nothing said above will be an expression of opinion on the merit of the case of either party. For the reasons recorded above, the impugned order is mis-conceived and untenable in law. I allow the petition and set aside the impugned order and direct the Magistrate to proceed in the matter in accordance with law.

(10) Petition stands disposed of accordingly.

(11) Trial Court record along with copy of this order be sent back to the Trial Court forthwith.