Rajasthan High Court
Dharamveer Singh vs State Of Rajasthan And Another on 8 May, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:20226]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2146/2011
Dharamveer Singh S/o Shri Bhawani Singh R/o D-3, Dwarkapuri,
R.P.A. Road, Jaipur
----Petitioner
Versus
1. State Of Rajasthan
2. Anda S/o Kishan Singh r/o Kanpura Surel Ka Badiya, Police
Station Masooda, District Ajmer
----Respondents
For Petitioner(s) : Mr. A.K. Gupta, Sr. Adv. assisted by
Mr. Saurabh Pratap Singh,
Mr. Gaurav
For Respondent(s) : Mr. S.S. Mahla, PP
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
RESERVED ON April 22th 2024
PRONOUNCED ON May, 08 ,2024
BY THE COURT
REPORTABLE
1. In the present petition filed under Section 482 Cr.PC, the
issue falls for consideration is, as to whether the cognizance for
offences under Sections 323 and 504 IPC, taken by the Judicial
Magistrate against the petitioner, a public servant, posted as
Station House Officer (SHO), Police Station Masooda, is
sustainable in law, for want of prior sanction, which is a statutory
requirement in view of Section 197 Cr.PC, for initiating criminal
prosecution of a public servant?
2. Petitioner has prayed for following relief:-
"It is, therefore, humbly prayed that your lordships may
very graciously be pleased to allow/accept this Misc. Petition
and the order dated 31.05.2011 (Annexure-4) passed by
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learned Additional District and Sessions Judge Beawar,
District Ajmer dismissing the revision No.24/2009 and the
order dated 30/1/2009 (Annexure-3) passed by the learned
Additional Civil Judge (Jr. Div.) and Judicial Magistrate First
Class, No.2, Beawar, District Ajmer (Raj.) in complaint
No.7/2009 taking cognizance Under Sections 323 and 504
I.P.C. against the petitioner may kindly be quashed and set
aside and complaint (Annexure-1), filed by the complainant
and all subsequent proceedings against the petitioner, may
also kindly be quashed and set aside."
3. The seminal facts of the case as culled out from the record,
briefly stated, are that:-
3.1 During the posting of petitioner, as SHO, Police Station
Masooda, District Ajmer, a criminal complaint was filed against
him by respondent No.2-complainant on 27.05.2003, to criminally
prosecute the petitioner for offences under Sections 323, 342, 365
and 504 IPC stating inter alia that three persons namely Anda
(complainant-respondent No.2 herein), Mohan Singh and Narendra
Singh, were arrested by the Police at about 8 PM on 22.05.2003
and were locked up in the Police Station Masooda. Thereafter, on
the next day i.e. 23.05.2003, all three persons, including
complainant-respondent No.2, were produced before the Court of
Sub-Divisional Magistrate (SDM), and they were ordered to be
released from the custody on furnishing bail bonds as directed by
the SDM.
3.2 In the criminal complaint, allegations have been leveled
against the petitioner that all three persons were illegally detained
for one day in the Police Station, without any just reason and only
in misuse of powers by the petitioner as much as in the night of
22.05.2003, the complainant-Anda and Mohan Singh were badly
treated by the petitioner. Allegations have been leveled that both
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were abused, misbehaved and beaten up with a rubber belt by the
petitioner, in utter misuse of his powers as SHO. It was alleged
that complainant-Anda and Mohan Singh received multiple
physical injuries on their body parts, however, without undertaking
their medical check-up, they were produced next day on
23.05.2003 in the Court of SDM. It was further alleged that after
their release from the custody, a written complaint was made on
24.05.2003 to the Assistant Superintendent of Police, Beawar,
complaining about arbitrary and illegal acts of petitioner, done by
him with complainant-Anda and Mohan Singh, however, no action
was taken on this complaint.
3.3 It is further stated that on 24.05.2003, one application
was filed before the SDM, praying for allowing medical check-up of
complainant-Anda and Mohan Singh, whereupon, on their request,
medical check-up was allowed to be done at Community Health
Center, Masooda on 24.05.2003 at about 4 PM.
3.4 It is noteworthy that thereafter, respondent No.2-Anda,
has filed the present criminal complaint against the petitioner on
27.05.2003 before the Court of Additional Judicial Magistrate No.2,
Beawar, to prosecute the petitioner for alleged offences u/s. 323,
342, 365 and 504 IPC. It may be noted that another person
Mohan Singh has not filed any complaint.
3.5 On receiving criminal complaint of respondent No.2-
Anda, the Judicial Magistrate proceeded to record statements of
complainant u/s. 200 Cr.PC and witnesses Narendra Singh, Mohan
Singh and Anna, u/s. 202 Cr.PC and thereafter, vide order dated
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07.03.2006, the complaint was sent for further investigation, to be
made by the Police.
3.6 The Police, after thorough investigation, submitted
negative final report before the Judicial Magistrate on 15.01.2007.
3.7 After investigation by the Police on the criminal
complaint filed by complainant-respondent No.2, the real facts
unfolded, as per record and true picture came to light that indeed
complainant and other two persons namely Mohan Singh and
Narendra Singh were arrested by the Police in the night of
22.05.2003 under Section 151 Cr.PC in order to prevent
commission of any cognizable offence by them, as they were
found causing breach of peace and about to assault on the family
of one Bhanwar Singh as also they attempted to assault on the
Police party, who reached at the spot, Surel ka Badiya, Manpura,
Ajmer, to control the situation of law & order. Thus, as per record,
the correct scenario revealed, after the investigation by the Police
that indeed all three persons, including complainant-respondent
No.2, were arrested by the Police, after preparing a report in
Rojnamcha, in exercise of powers u/s. 151 Cr.PC. Further, it also
revealed that a complaint under Sections 107/116(3) read with
151 Cr.PC was filed by the Police in the Court of SDM on next day
i.e. 23.05.2003, against all three accused persons, including the
complainant-respondent No.2, when they were produced before
the SDM. In this complaint, complete facts with reason of their
arrest and about the apprehension of breach of peace or
commission of cognizable offence by them, were detailed out. This
complaint was registered on record in the Court of SDM as
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Criminal Case No.95/2003: State Vs. Narendra Singh & Ors., and
after making compliance of Sections 111 and 112 Cr.PC, reading
over the charge and order before the accused persons, all three
accepted their guilt and agreed to furnish bail bonds to maintain
peace and tranquility for a period of six months. Accordingly, the
SDM passed the order dated 23.05.2003, allowing to release all
three accused persons, including the complainant-respondent
No.2, on furnishing bail bonds to maintain peace and tranquility
for a period of six months and in this view, the criminal case was
disposed of, on the file of SDM.
3.8 It is noteworthy that in the inquiry report, it was
observed that allegations made by complainant-respondent No.2
herein, in his criminal complaint that he was abused, misbehaved
and beaten up in the Police Station by the petitioner due to rivalry
and under the influence of one Bhanwara S/o Roopa, are totally
false. It was also observed in the inquiry report that the
complainant and other accused persons did not make any
complaint, nor asked for their medical check-up, when they were
produced on 23.05.2003 before the SDM, and as per statements
of complainant and witnesses, allegations leveled against the
petitioner in the criminal complaint, were found to be
afterthoughts/fictitious and made just to harass the petitioner and
to tarnish his image and position. It was also noted in the report
that accused persons, including complainant-respondent No.2
herein, were arrested on 22.05.2003 and were produced on next
day on 23.05.2003 before the SDM as also the criminal complaint
for offences under Sections 107/116(3) read with 151 Cr.PC, was
[2024:RJ-JP:20226] (6 of 26) [CRLMP-2146/2011]
filed by SHO against them, and all such acts were done by the
petitioner in discharging of his official duties as SHO, hence no
offence as alleged in the criminal complaint against the petitioner
is made out.
3.9 After receiving the inquiry report, the Judicial
Magistrate heard the complainant on his criminal complaint and
passed the order dated 30.01.2009, taking cognizance for
offences under Sections 323 and 504 IPC and issued process
against the petitioner, to prosecute him.
A perusal of the order dated 30.01.2009 indicates that
the Magistrate declined to take cognizance for offences under
Sections 365 and 342 IPC, taking into consideration that the
detention of complainant and other two accused persons at Police
Station Masooda in the night of 22.05.2003 was not illegal. The
Magistrate accepted that there were valid reasons to detain the
complainant in order to prevent breach of peace or commission of
cognizable offences and such acts were done by the petitioner in
discharging of his official duty as SHO. Nevertheless, cognizance
for offences under Sections 323 and 504 IPC has been taken
against the petitioner, drawing a presumption that injuries of
abrasions and bruises, found on the body parts of complainant-
respondent No.2-Anda and Mohan Singh, as observed in their
injury report dated 24.05.2003, occurred due to beatings allegedly
given by the petitioner and only such act of petitioner was not
treated to be done in discharging of his official duty. Accordingly,
cognizance was taken without insisting for sanction u/s. 197 Cr.PC
[2024:RJ-JP:20226] (7 of 26) [CRLMP-2146/2011]
and after taking cognizance, process was ordered to be issued
against the petitioner.
3.10 The order of cognizance dated 30.01.2009 was
challenged by the petitioner by way of criminal revision petition,
on various grounds, including the ground that cognizance stands
bad in law, being taken without insisting for sanction as required
under Section 197 Cr.PC. The revision petition came to be
dismissed by the Additional District & Sessions Judge, Beawar,
Ajmer vide order dated 31.05.2011.
3.11 In the backdrop of such factual matrix, referred
hereinabove, this petition has been filed by petitioner invoking
jurisdiction of the High Court under Section 482 Cr.PC, questioning
the legality of the cognizance order as also his criminal
prosecution for offences under Sections 323 and 504 IPC, taking
resort of protection as provided to public servants by virtue of
Section 197 Cr.PC.
The petition has been admitted for hearing and vide
order dated 19.08.2011, criminal prosecution of petitioner
pursuant to the impugned order of cognizance has been stayed.
4. The contention of learned Senior Counsel appearing for
petitioner, is that even if entire gamut of facts of the present case
are taken on their face value as-it-is, alleged acts of petitioner
were done in discharging of his official duty as SHO of Police
Station Masooda, hence the order of cognizance passed against
the petitioner without prior sanction by the concerned Authorities
of the State Government stands ex-facie illegal and in outright
breach of provision of Section 197 Cr.PC. In addition, learned
[2024:RJ-JP:20226] (8 of 26) [CRLMP-2146/2011]
Senior Counsel contends that the complainant-respondent No.2
has not disputed allegations made by the Police in the complaint
filed under Sections 107/116(3) read with 151 Cr.PC against
complainant and other two persons, for which they were detained
in custody at Police Station for one day, rather complainant and
other two persons accepted such allegations and consented to
submit bail bonds for maintaining peace and tranquility abiding
themselves by the order passed by the learned SDM. Learned
Senior Counsel contended that complainant, neither chose to
contest the complaint filed against him under Sections 107/116(3)
read with 151 Cr.PC, nor challenged the order of SDM. In such
circumstances, the whole action of the Police, right from taking
the peace brokers in custody and producing them before the SDM,
is the act done by the Police in discharge of official duty to
maintain law and order in the society, therefore, petitioner may
not be allowed to be prosecuted, merely by separating action of
abusing or beating, which is part and parcel to the chain of events
of the action as a whole. Learned Senior Counsel submits that the
investigation carried out against complainant-respondent No.2 and
other two persons, who were inclined to commit a cognizable
offence as also breach the peace in society in the night on
22.05.2003, was done and thereafter, the complaint under
Sections 107/116(3) read with 151 Cr.PC was filed against them
before the Court of SDM on the next day i.e. on 23.05.2003. Such
action, even if taken on its face value, was done by the petitioner
as SHO of Police Station Masooda bonafidely and in discharge of
his official duty as SHO. Learned Senior Counsel submits that
[2024:RJ-JP:20226] (9 of 26) [CRLMP-2146/2011]
firstly, the allegation of abusing and beating the complainant, is
wholly false and afterthought as much as petitioner cannot be
allowed to be prosecuted and cognizance for such offences cannot
be taken, without insisting for grant of previous sanction by the
State Government, which is essential and mandatory requirement
of law as envisaged under Section 197 Cr.PC to prosecute a public
servant. Learned Senior Counsel vehemently argued that if for
such a legal action done by the Police, a prosecution of a Police
Officer is permitted, the same would result into miscarriage of
justice, because Police Officer would be able to discharge his/her
official duties fearlessly and the interest of society at large, would
suffer; rather a situation may arise that Police Officer, would deter
to take lawful action against culprits. Hence, his submission is that
the entire incident is a sequence of events in continuity to each
other and may not be segregated in parts, therefore, in the
backdrop of admitted facts that the detention of complainant and
other two persons was made by petitioner for lawful and valid
reasons, cognizance taken against the petitioner for offences u/s.
323 and 504 IPC, be held ex-facie illegal, perverse and in clear
breach to statutory provision of Section 197 Cr.PC and
consequently, criminal complaint filed against the petitioner be
also quashed.
5. Learned Senior Counsel, to buttress his contentions, has
placed reliance on the following case law:-
(I) Shreekantiah Ramayya Munipalli Vs. The State of
Bombay [AIR (1955) SC 287];
[2024:RJ-JP:20226] (10 of 26) [CRLMP-2146/2011]
(II) Pukhraj Vs. State of Rajasthan [(1973) 2 SCC
701];
(III) Harish Chandra Vs. Central Bureau of
Investigation [(1998) Cr.LR (Raj.) 136] &
(IV) State of Orissa Vs. Ganesh Chandra Jew [(2004)
8 SCC 40].
6. Per contra, learned Public Prosecutor has supported the
impugned orders and argued that protection of Section 197 Cr.PC
has rightly been dispensed with and petitioner has rightly been
deprived from such statutory protection in the given facts and
therefore, impugned order of cognizance does not warrant any
interference and petitioner is liable to be prosecuted.
Learned Public Prosecutor has placed reliance on a recent
judgment of the Apex Court delivered on 17.01.2024 in Criminal
Appeal No.256/2024: Shadakshari Vs. State of Karnataka
[2024 LiveLaw (SC) 42].
7. On behalf of complaint-respondent No.2, despite service of
notices for hearing of this petition, as reported by the Office, no
one has put in appearance to oppose the petition, therefore,
arguments made by the learned Public Prosecutor, to justify
impugned orders, have been accepted for and on behalf of
complainant-respondent No.2 as well.
8. Heard learned counsel for both parties at length and perused
the record as a whole.
9. In the beginning, this Court deems it just and proper to
observe that it is apparent from the record that order of
cognizance was challenged by the petitioner before the sessions
[2024:RJ-JP:20226] (11 of 26) [CRLMP-2146/2011]
Court by way of filing criminal revision petition u/s. 397(1) Cr.PC,
which petition has been dismissed on merits, therefore from that
view, a prohibition for High Court to entertain a second criminal
revision petition as envisaged under Section 397(3) Cr.PC, comes
in operation. Nevertheless, the present petition has been filed by
petitioner invoking inherent jurisdiction of the High Court u/s. 482
Cr.PC and it is well established proposition of law, as has been
settled by way of judicial precedents that though revision before
the High Court u/s. 397(1) Cr.PC is prohibited, by virtue of Sub-
section (3) thereof, even though powers of the High Court under
Section 482 read with Section 483 Cr.PC, may be exercised
provided that on examination of facts and circumstances of any
peculiar case, there appears to be a failure of justice or
sustenance of impugned orders would result into injustice, hence
it can be held that in such exceptional cases, in order to prevent
abuse of process of Courts or to otherwise render ex-debito
justitiae to the aggrieved party, inherent jurisdiction by the High
Court u/s. 482 Cr.PC, can be exercised despite prohibition of
Section 397(3) Cr.PC. It is no more res integra that powers by the
High Court u/s. 482 Cr.PC can be exercised to set aside the
order(s) passed by the Courts subordinate to the High Court, if
order(s) impugned was/were passed in clear breach of statutory
provision of law or suffer from patent defect or manifest illegality
of jurisdiction or law. Similarly, by virtue of Section 483 Cr.PC, the
High Court is bestowed with powers of superintendence over the
Courts of Magistrates and all other Courts, which may be
exercised in appropriate cases wheresoever, it is noticed by the
[2024:RJ-JP:20226] (12 of 26) [CRLMP-2146/2011]
High Court on examination of facts of case that action or order
passed by the Magistrate is in absolute contravention to the
provision of law or contrary to the settled proposition of law as
much as interference is needed with the order, to prevent failure
of justice or otherwise to secure ends of justice.
Keeping in mind such settled proposition of law about
jurisdiction of the High Court and after adverting to facts of the
present case and hearing learned counsel, this petition is being
considered on merits.
10. Coming to facts of the present case, it is clear from the
record that captioned criminal complaint was filed by complainant-
respondent No.2 against the petitioner on 27.05.2003 and a
cumulative allegations have been leveled that petitioner misused
his power and position, being SHO of Police Station Masooda and
kept the complainant as well as other two persons, namely
Narendra Singh and Mohan Singh, captive in the Police Station
Masooda, in the night of 22.05.2003, and abused, misbehaved
and gave beatings to the complainant and Mohan Singh. Such
allegations made by the complainant in the criminal complaint, are
combined, having nexus/connection with each other, being in
sequence of events. According to the complainant, all such alleged
actions of the petitioner were, arbitrary and illegal and were done
because of rivalry and under the influence of one Bhanwara S/o
Roopa. Other two persons have not filed any complaint, though
have deposed their statements in support of the complaint filed by
the respondent No.2. It may be noted that neither the
complainant nor other two persons, made any complaint at the
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first instance on 23.05.2003 when they were produced by the
petitioner before the Court of SDM. On the contrary, before the
SDM, all three accepted their guilt and expressed their willingness
to abide by the order of SDM to furnish bail bonds to maintain
peace and tranquility in the society for a period of six months. It is
matter of concern and needs to be noted that if complainant and
Mohan Singh had suffered simple injuries of bruises, abrasions,
swelling etc. on their body parts, they could complain before the
SDM at the first instance on 23.05.2003 itself, but it was not done.
It is only on the basis of subsequent injury report dated
24.05.2003, complaint has been filed by the complainant on
27.05.2003, before the Judicial Magistrate.
11. It is noteworthy that on the record of Judicial Magistrate, a
clear and correct scenario had come on record that arrest and
detention of complaint-respondent No.2 with other two persons at
Police Station Masooda in the night of 22.05.2003, was made by
the Police in lawful exercise of powers under Section 151 Cr.PC in
order to prevent commission of a cognizable offence and to
prevent breach of peace and tranquility in the society by the
culprits. The Judicial Magistrate clearly observed and held that the
detention of complainant-respondent No.2 in the Police Station
Masooda was not illegal detention. Thus, as far as allegation of
complainant for his illegal detention is concerned, the same has
been found to be false and contrary to record and no cognizance
for offence under Sections 365 and 342 IPC has been taken by the
Judicial Magistrate. However, the Judicial Magistrate draw a
presumption that abrasions, bruises and swelling on the body
[2024:RJ-JP:20226] (14 of 26) [CRLMP-2146/2011]
parts of complainant and Mohan Singh, are result of beatings
allegedly given to them by the petitioner in the night of
22.05.2003 during their detention in the police station, whereas
the Magistrate himself has accepted that their detention was
lawful and for valid reasons as much as a criminal complaint under
Sections 107/116(3) read with 151 Cr.PC was filed by the Police
against them on 23.05.2003 before the Court of SDM, after
completing the investigation.
12. It is no doubt true that cognizance of offence can be taken
on the basis of presumption or suspicion about occurrence of an
offence, but in the present case, presumption of truthfulness of
the allegations made by the complainant, may not be presumed
because, the complainant did not produce correct and complete
facts on record before the Judicial Magistrate. It was only after the
investigation by the Police, complete facts came on record that a
criminal complaint under Sections 107/116(3) read with 151 Cr.PC
was filed by the Police against the complainant and other two
persons, when they were produced before the Court of SDM on
23.05.2003. The complainant deliberately and knowingly
concealed the facts that he accepted his guilt and the allegations
leveled against him by the Police in the criminal complaint filed
under Sections 107/116(3) read with 151 Cr.PC. This
uncontroverted factual matrix came on record only, after
investigation by the Police. This is not in dispute that complainant
neither controverted nor countered the allegations leveled against
him and other two persons, in respect of committing breach of
peace and they were inclined to commit a cognizable offence, due
[2024:RJ-JP:20226] (15 of 26) [CRLMP-2146/2011]
to which they were arrested. Rather, on the contrary, complainant
and other two persons, accepted allegations and furnished bail
bonds without any demeanor on 23.05.2003 before the Court of
SDM. As far as such proceedings are concerned and the order
dated 23.05.2003 passed by the Court of SDM is concerned, the
same have not been questioned by the complainant-respondent
No.2 at any point of time. Yet, the complainant never disclosed
these facts in his criminal complaint. Looking to the such conduct
of complainant and considering totality of facts and circumstances,
where the criminal complaint has been filed after 4-5 days from
the incident on the basis of post injury report dated 24.05.2003,
more over making out a false story of his illegal detention,
possibility of involving the petitioner in the criminal litigation just
to wreck vengeance, may not be ruled out.
13. Considering the entirety of facts and taking them
cumulatively, the acts done by the petitioner, have been
purportedly done in discharge of his duties as SHO. It is not only
the arrest of complainant-respondent No.2 with other two
persons, was made, but the investigation from them was also
carried out and thereafter, criminal complaint for offences under
Sections 107/116(3) read with 151 Cr.PC was filed against them.
Although, allegations of abusing, misbehaving and beating the
complainant by the petitioner, do not inspire confidence, even on
the basis of presumption yet even if for the sake of arguments,
such allegations are taken on their face value, and considered with
other allegations, the true position transpires that the entire series
of events have nexus with each other and the action of petitioner
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was done in discharge of his official duties. For the sake of
arguments, if any part of act of petitioner, is treated to be in
excess of his duty in mistaken belief, then also in the backdrop of
admitted fact that petitioner did acts being posted as SHO of
Police Station, he should not be deprived from the protection of
law as available to a public servant against his criminal
prosecution by virtue of Section 197 Cr.PC.
14. It is not that case where complainant and Mohan Singh, have
been beaten up brutally and had suffered grave or serious injuries
or a case of encountered deaths. It is a simple case where the
complainant alleges to suffer some simple injuries of abrasion and
bruises on his body parts during course of his detention in the
Police Station. As has been noted hereinabove that the
complainant and other two persons were found guilty for
committing breach of peace and inclined to commit a cognizable
offence, therefore, they were taken in custody by the Police and
after interrogation, a complaint against them was filed for offences
under Sections 107/116(3) read with 151 Cr.PC and allegations
leveled against the complainant was accepted by him. Looking to
the nature of injuries, which are simple abrasion, bruises, it is
difficult to connect such injuries to be caused by the petitioner, as
possibility of suffering from such simple injuries by the
complainant and Mohan Singh, prior to their arrest on 22.05.2003
and after their release on 23.05.2003 may not be ruled out and
merely on the basis of remote presumption, the Judicial Magistrate
erred in taking cognizance for offences under Sections 323 and
504 IPC against the petitioner that too without insisting for
[2024:RJ-JP:20226] (17 of 26) [CRLMP-2146/2011]
previous sanction in view of Section 197 Cr.PC, more particularly
when the Judicial Magistrate himself agreed that the action of
petitioner to arrest the complainant-respondent No.2 along with
other two persons, was done in discharge of his official duty.
15. Therefore, considering the entire stock of events
cumulatively and holistically, this Court finds that the action of
Police including the petitioner, is nothing but the action, as a
whole, falls within purview of words "while acting or purporting to
act in the discharge of his official duty" and therefore, petitioner
should be held entitled for statutory protection against the
criminal prosecution as envisaged u/s. 197 Cr.PC.
16. The ambit, scope and effect of Section 197 Cr.PC and in what
circumstances, the protection of this section is available to a
public servant against his/her criminal prosecution, has been a
point of discussion since long and huge case law is available on
this point. It would be appropriate to advert attention on few of
judgments to take gist of judicial precedents in this regard.
17. The Co-ordinate Bench of this High Court in case of Harish
Chandra (Supra), extended protection of Section 197 Cr.PC to
petitioners, who were working on the post of S.P. and Additional
S.P. and against whom, cognizance was taken by the Judicial
Magistrate for the acts done by them in discharge of their official
duty of interrogation of a crime despite of negative final report
and having no sanction for prosecution. The Coordinate Bench,
after dilating umpteen number of judgments, observed in Para
No.10 to 13 as under:-
[2024:RJ-JP:20226] (18 of 26) [CRLMP-2146/2011]
"10. On a study of the cases relied upon by the learned
counsel for the parties before me it is gathered that the
words "acting or purporting to act in the discharge of his
official duty" occuring in the language of Sec. 197(1) Cr.P.C.
have arrested the attention of the Courts time and again.
Way back in Hari Ram Singh's case AIR 1939 FC 43
Sulaiman J. of the Fedral Court observed that-
"The section cannot be confined to only such acts as are
done by a public servant directly in pursuance of his
public office, though in excess of the duty under a
mistaken belief as to the existence of such duty. Nor is it
necessary to go to the length of saying that the act
constituting the offence should be so inseperably
connected with the official duty as to form part and
parcel of the same transaction."
In the same case Varadachariar, J. also observed that-
"There must be something in the nature of the act
complained of that attaches it to the official character of
the person doing it."
11. The views expressed by the learned Judges of the Fedral
Court were affirmed by the Judicial Committee of the Privy
Council in Gill's case AIR 1948 PC 128 in the following word
--
"A public servant can only be said to act or purport to act
in the discharge of his official duty, if his act is such as to
lie within the scope of his official duty... 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."
12. The correctness of the view expressed by their Lordships
of the Privy Council in Gill's case appears to have fallen for
consideration of their Lordships of the Supreme Court in the
case of Matajog Dubey vs. H.C. Bhari, AIR 1956 SC 44 and
their Lordships felt that the test laid down that it must be
esteblished that the act complained of was an official act
unduly narrowed down the scope of the protection afforded
to the public servant by Sec. 197. After examining earlier
decisions their Lordships observed that--
"There must be a reasonable connection between the act
and the discharge of the official duty, the act must bear
such relation to the duty, that the accused would lay a
reasonable, but not a pretended or fanciful claim, that he
did it in the course of performance of his duty."
13. Applying the above test in the case of Pukh Raj Vs State
of Rajasthan [(1973) 2 SCC 701] the acts of kicking the
[2024:RJ-JP:20226] (19 of 26) [CRLMP-2146/2011]
complainant and of abusing him were considered as having
been done in the course of performance of his duty by the
public servant. But in the case of S.P. Venthianathan Vs
Shanmuganathan [JT 1994 (2) SC 689], dealing with the
scope of protection provided by Sec. 53 of the Tamil Nadu
District Police Act, 1869 the Apex Court observed that
"merely because the appellant was called through a
summons issued under law, the conduct of beating and
torturing the appellant on the latter appearing in obedience
to the summons cannot establish any nexus between the
official act of issuance of summons and the action of the
respondents on the appearance of the appellant. Unless a
relationship is established between the provisions of law
'under' which the respondant purports to act and the
misdemeanour complained of the provisions of Sec. 53 will
not be attracted." It was, therefore, em-phasised in
Bakhshish Singh's case that:
"It is necessary to protect the public servants in the
discharge of their duties. They must be made immune
from being harassed in criminal proceedings and
prosecutions, that is the rationale behind Sec. 196 and
Sec. 197. Cr.P.C But it is equally important to emphasise
that the rights of the citizens should be protected and no
excesses should be permitted. "Encounter deaths" has
become too common. In the facts and circumstances of
each case protection of public officers and public
servants functioning in discharge of official duties and
protection of private citizens have to be balanced by
finding out as to what extent and how far is a public
servant working in discharge of his duties or purported
discharge of his duties and whether the public servant
has exceeded his limit.."
(Emphasis Supplied)
The Coordinate Bench finally held that it is not disputed that
both petitioners had been working at the relevant time in their
capacities of SP & ASP. It is prima facie evident that the act of
petitioners was quite reasonably connected with the discharge of
their official duties. It was part of their official duties to have
interrogated Rameshwar Lal in relation with his alleged complicity
in the crime. There act, was, therefore, not un-connected with the
discharge of official duties by them. In such backdrop of facts,
protection under Section 197 Cr.PC was extended and the
[2024:RJ-JP:20226] (20 of 26) [CRLMP-2146/2011]
cognizance order as well as prosecution of petitioners without
procuring sanction under Section 197 Cr.PC, was quashed.
18. The Apex Court in case of Ganesh Chandra Jew (Supra),
while considering the issue of protection of Section 197 Cr.PC to
the public servant, observed that use of expression "official duty"
implies that the act or omission must have been done by the
public servant in the course of his service and that it should have
been in discharge of his duty. The scope of extending protection
was widen in respect of even those acts or omission, which are
done by a public servant in purported exercise of his official duty.
It was held that once any act or omission has been found to have
been committed by a public servant in discharge of his duty, then
it must be given liberal and wide construction so far as its official
nature is concerned. For ready reference, portion of findings as
noted in Para Nos.11 and 12 of the judgment, are being extracted
hereunder:-
"11. It has been widened further by extending protection to
even those acts or omissions which are done in purported
exercise of official duty. That is under the colour of office.
Official duty therefore implies that the act or omission must
have been done by the public servant in course of his service
and such act or omission must have been performed as part
of duty which further must have been official in nature. The
Section has, thus, to be construed strictly, while determining
its applicability to any act or omission in course of service.
Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission
has been found to have been committed by a public servant
in discharge of his duty then it must be given liberal and
wide construction so far its official nature is concerned. For
instance a public servant is not entitled to indulge in criminal
activities. To that extent the Section has to be construed
narrowly and in a restricted manner. But once it is
established that act or omission was done by the public
servant while discharging his duty then the scope of its being
official should be construed so as to advance the objective of
the Section in favour of the public servant. Otherwise the
[2024:RJ-JP:20226] (21 of 26) [CRLMP-2146/2011]
entire purpose of affording protection to a public servant
without sanction shall stand frustrated. For instance a police
officer in discharge of duty may have to use force which may
be an offence for the prosecution of which the sanction may
be necessary. But if the same officer commits an act in
course of service but not in discharge of his duty and without
any justification therefor then the bar under Section 197 of
the Code is not attracted. To what extent an act or omission
performed by a public servant in discharge of his duty can be
deemed to be official was explained by this Court in Matajog
Dobey v. H.C. Bihari (AIR 1956 SC 44) thus:
"The offence alleged to have been committed (by the
accused) must have something to do, or must be related in
some manner with the discharge of official duty...
There must be a reasonable connection between the act
and the discharge of official duty; the act must bear such
relation to the duty that the accused could lay a
reasonable (claim) but not a pretended or fanciful claim,
that he did it in the course of the performance of his duty."
12. If on facts, therefore, it is prima facie found that the act
or omission for which the accused was charged had
reasonable connection with discharge of his duty then it
must be held to official to which applicability of Section 197
of the Code cannot be disputed."
19. On the point as to on what stage, the issue of insisting of
sanction under Section 197 Cr.PC may arise, the Apex Court in
case of Om Prakash Vs. State of Jharkhand [(2012) 12 SCC
72], observed and held that it may arise even at the stage of
inception. It was observed that there may be unassailable and
unimpeachable circumstances on record, which may establish at
the outset that the Police Officer or public servant was acting in
performance of his official duty and is entitled to protection given
under Section 197 Cr.PC. It was observed that unless
unimpeachable evidence is come on record to establish that the
action of Police is indefensible, mala fide and vindictive, the Police
[2024:RJ-JP:20226] (22 of 26) [CRLMP-2146/2011]
cannot be subjected to prosecution and sanction must be a
precondition of their prosecution.
20. The Hon'ble Supreme Court recently in case of D. Devaraja
Vs. Owais Sabeer Hussain [(2020) 7 SCC 694], discussed the
object of sanction for prosecution under Section u/s. 197 Cr.PC in
detail as also expounded test to decide the same. The provision of
Section 170 of the Karnataka Police Act, 1963 was also taken into
consideration as applicable in the State. The Apex Court held that
the object of sanction for prosecution, whether under Section 197
Cr.PC or under Section 170 of the Karnataka Police Act, 1963, is to
protect a public servant /police officer discharging official duties
and functions from harassment by initiation of frivolous retaliatory
criminal proceedings. For ready reference, relevant portion of the
judgment i.e. Para Nos.65 to 71 are being extracted hereunder:-
"65. The law relating to the requirement of sanction to
entertain and/or take cognizance of an offence, allegedly
committed by a police officer under Section 197 of the Code
of Criminal Procedure read with Section 170 of the Karnataka
Police Act, is well settled by this Court, inter alia by its
decisions referred to above.
66. 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 197of 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.
67. 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 Criminal Procedure Code read
with Section 170 of the Karnataka Police Act has its
[2024:RJ-JP:20226] (23 of 26) [CRLMP-2146/2011]
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. 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.
68. 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.
69. 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.
70. 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.
71. 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 Sectioin 197 of the Code of Criminal Procedure and/or
Section 170 of the Karnataka Police Act."
21. In case of Shadakshari (Supra), referred by learned Public
Prosecutor, the Apex Court has also relied upon the exposition of
law, as propounded in case of D. Devaraja (Supra), however,
protection of Section 197 Cr.PC was declined for the reason,
because that was a case where the public servant (respondent
[2024:RJ-JP:20226] (24 of 26) [CRLMP-2146/2011]
No.2 therein) was found involved in fabricating official documents
by misusing his official capacity, therefore, in such peculiar
circumstances, protection under Section 197 Cr.PC was declined.
22. In the opinion of this Court, considering the entirety of facts
and allegations leveled against the petitioner in the present case,
analogy followed by the Apex court in case of Shadakshari
(Supra), does not apply to the present case, rather the case is
covered by the ratio of law as expounded by the Apex Court in
case of D. Devaraja (Supra).
23. Having enlightened with the proposition of law, as referred
hereinabove, and testing the present case on that anvil, as also
keeping in mind the uncontroverted facts that arrest & detention
of complainant-respondent No.2, was made by petitioner in due
discharge of his official duties as SHO and after completing
investigation, the criminal complaint under Sections 107/116(3)
read with 151 Cr.PC was filed against him on next day before the
Court of SDM, whereupon, he accepted his guilt and furnished bail
bonds to maintain peace and tranquility as much as no complaint
was made on the first day about any maltreatment or beatings
given to him by the petitioner in the Police Station, rather
allegations have been made after four days of his release by way
of filing present complaint on 27.05.2003, this Court finds that
entire acts have connection and nexus to each other and were
done in discharge of official duties by the petitioner, therefore,
dispensing with the mandatory requirement of provision of
sanction as envisaged u/s. 197 Cr.PC against the petitioner, would
lead to failure of justice. Admittedly, the complainant-respondent
[2024:RJ-JP:20226] (25 of 26) [CRLMP-2146/2011]
No.2 and other two persons never questioned the proceedings
commenced and concluded against them under Sections
107/116(3) read with 151 Cr.PC and they abide themselves with
the order of SDM. In such facts and circumstances, taking
cognizance for offence under Sections 323 and 504 IPC against
the petitioner, without insisting for sanction, which is statutorily
required in view of Section 197 Cr.PC, may not be countenanced
and without sanction, the prosecution of petitioner may not be
permitted. The Apex Court in case of D. Devaraja (Supra), while
dealing with the issue in respect of sanction under Section 197
Cr.PC, has already held and observed that petition under Section
482 Cr.PC is maintainable to quash criminal proceedings, which
are ex-facie bad, for want of prosecution. Indisputably, in the
present case, sanction has not been granted.
24. In view of above discussions, this Court comes to the
conclusion that prosecution of the petitioner is not liable to
proceed further in absence of sanction u/s. 197 Cr.PC and
therefore, impugned order of cognizance as also the order of
revisional Court, are liable to be set aside. This Court finds that in
facts and circumstances of the present case, there exists
satisfactory grounds to exercise inherent powers u/s. 482 Cr.PC in
order to prevent abuse of process of law.
25. As a result, the present criminal misc. petition is allowed and
the impugned order of cognizance dated 30.01.2009 as also the
order of revisional Court dated 31.05.2011, are hereby quashed,
for want of sanction under Section 197 Cr.PC against the petitioner
and for the same reason, proceedings against the petitioner in
[2024:RJ-JP:20226] (26 of 26) [CRLMP-2146/2011]
criminal complaint bearing No.7/2009, are hereby quashed.
However, it is hereby observed that in case, sanction to prosecute
the petitioner is granted as per provision of Section 197 Cr.PC,
within a period of 90 days, the present criminal complaint along
with the order of cognizance would stand revive.
26. All pending application(s), if any, stand(s) disposed of.
27. Record of courts below be sent back and a copy of this
Judgment be sent to the trial Court for compliance.
(SUDESH BANSAL),J
Sachin
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