ASI Balbir Singh vs State of Punjab

B.S. Nehra, J.

This is a petition under Section 482 of the Code of Criminal Procedure for quashing report under Section 173 of the Code of Criminal Procedure in a case bearing FIR No. 127, dated 18.8.1989, registered in Police Station Lehragaga under Sections 343, 342, 166, 193 and 120B of the Indian Penal Code and the order dated 25.4.1992 passed by the Judicial Magistrate Ist Class, Sunam.

Petitioners No. 1 and 2 were posted as Investigating Officer and Station House Officers respectively in Police Station Lehragaga, district Sangrur, in June, 1989. One Lachhman Singh, resident of Khanal Kalan, lodged a report with petitioner No. 1 Balbir Singh Assistant Sub Inspector, on 16.6.1989. It was alleged in this first information report that his (complainant) VIP Attache case has been stolen by accused Joginder Singh and Alamjit Singh accused on the night intervening 15/16.6.1989. Petitioner No. 2 being Station House Officer of the Polic Station received intimation and got first information report No. 92 dateed 16.6.1989 registered under Section 380 of the Indian Penal Code. Joginder Singh accused was arrested in that case on 19.6.1989. The latter also implicated Alamjit Singh, who had allegedly shared the booty with him. It is alleged that petitioner No. 2 had no concern whatsoever with the investigation of the theft case against Joginder Singh and Alamjit Singh. The respondents'' allegation, on the other hand, is that Sub Inspector Kamal Ram, petitioner No. 2, had personal enmity with Alamjit Singh accused and in order to harass him, he implicated him in the theft case falsely by using his (Sub Inspector Kamal Ram, petitioner No. 2) official position as a Police Officer and got him Alamjit Singh) arrested through Assistant Sub Inspector Balbir Singh, petitioner No. 1, and tortured him by keeping him in the police lock up. A representation was made to the higher authorities by representatives of the public alleging that the petitioners had maltreated Joginder Singh and Alamjit Singh and as a result of the enquiry held against the petitioners by the Senior Police Officers, first information report No. 127, dated 18.8.1989, was registered in Police Station, Lehragaga under Sections 323, 342, 166, 193 and 120B of the Indian Penal Code and as a consequence thereof final report under Section 173 of the Code of Criminal Procedure was filed against the petitioners in the Court.

The petitioners have sought the quashing of the impugned first information report and the final report under Section 173 of the Code of Criminal Procedure on diverse grounds. Briefly summarised, they have contended that the compliance of rule 16.38 of the Punjab Police Rules, Volume II, has not been made before launching the prosecution against them; that valid sanction under Section 197(2) of the Code of Criminal Procedure for their prosecution has not been obtained by the respondents; that the proceedings against them constitute abuse of process of the Court inasmuch as no offence is made out against them and that in any case, the implication of Sub Inspector Kamal Ram, petitioner No. 2, in this case is uncalled for because no part was played by him in the investigation of the case.

In the reply filed the respondents, it has been pleaded that the provisions of rule 16.38 of the Punjab Police Rules, Volume II, are not attracted in this case, that valid sanction under Section 197 of the Code of Criminal Procedure was accorded by respondent No. 2, who was the appointing authority of the petitioners, before launching prosecution against the letters and that there is no ground whatsoever to urge that the prosecution against the petitioners constitutes an abuse of the process of the Court.

At the outset, it is necessary to deal with the contention of the learned Counsel for the petitioner with regard to the alleged contravention of Rule 18.38 of the Punjab Police Rules, Volume II. The relevant part of this rule reads as under :

"16.38 (1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having Ist Class powers.

(2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in Rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.

(3) ...................to (7) ............"

The contention of the learned Counsel for the petitioners is that when the representation was made by the public man against the petitioners to the higher police authorities about their (petitioners) having maltreated Joginder Singh and Alamjit Singh in police custody, information was required to be given to the District Magistrate of the complaint against the petitioners by the Superintendent of Police and it was for him (District Magistrate) to decide whether the investigation of the complaint shall be conducted by a Police Officer or was to be made over to a selected Magistrate having Ist Class powers. Since, according to the learned Counsel for the petitioners, the compliance of this rule was not made before launching the prosecution against the petitioners the first information report registered against them and the final report under Section 173 of the Code of Criminal procedure filed in the Court against them are liable to be quashed. In support of his contention, the learned Counsel relied on Raj Kumar, ASI v. The State of Punjab, 1976 Chandigarh Law Reporter (sic), in which a Full Bench of the Punjab and Haryana High Court had ruled that Rule 16.38 of Rules ibid is mandatory in character and the evidence collected in an investigation held in derogation of this rule cannot be used against a police officer in a criminal prosecution. While taking this view, their Lordships had relied upon the Supreme Court judgment in H.N. Rishbud and another v. State of Delhi, AIR 1955 Supreme Court 196, wherein it was held that where the breach of a mandatory provision is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and the extent of the violation and pass appropriate orders for such reinvestigation as may be called for. In view of this authoritative pronouncement of law by the Supreme Court, their Lordships of this High Court in Raj Kumar''s case (supra) held that the Special Judge should not have proceeded to frame the charge against the petitioners in that case on the basis of the report submitted by the Investigating Officer under Section 173 of the Code of Criminal Procedure and accordingly allowed the petitioner under Section 482 of the Code of Criminal Procedure and quashed the report under Section 173 of the Code of Criminal Procedure before the Special Judge. At the same time, their Lordships observed that it shall, however, be open to the prosecution to present a fresh report under Section 173 of the Code of Criminal Procedure before the learned Special Judge based on an investigation contemplated by Rule 16.38(1) of Rules ibid.

Needless to observe that the Full Bench decision of this Court in Raj Kumar''s case (supra) has a direct bearing on this case. The contention of the learned Counsel for the respondents that the provisions of Rule 16.38 of the Rules ibid are not attracted in this case is untestable for it was mandatory that the information against the petitioners should have gone to the District Magistrate regarding the commission of a criminal offence by them in connection with their official relations. It was thereupon for the District Magistrate to decide whether the investigation of the complaint shall be conducted by a Police Officer or made over to a selected Magistrate having Ist Class powers. Relying on the ratio of Full Bench judgment of this High Court in Raj Kumar''s case (supra) I hold that since the respondents have failed to comply with the mandatory provisions of Rule 16.38 of the Punjab Police Rules. Volume II, the final report under Section 173 of the Code of Criminal Procedure in this case has necessarily to be quashed but this conclusion will not preclude the respondents from launching fresh prosecution against the petitioners on the basis of the investigation conducted by complying with Rule 16.38 of the rules referred to above.

The next contention raised by the learned Counsel for the petitioners relates to the violation of the provisions of Section 197(2) of the Code of Criminal Procedure inasmuch as valid sanction has not been accorded by the respondents before launching prosecution against the petitioners Section 197 of the Code of Criminal Procedure, insofar as it is relevant for the consideration of the point at issue reads as under :

"197. Prosecution of Judges and public servants :

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction :

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

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

(4) ..............".

Subsection (2) of Section 197 of the Code of Criminal Procedure provides that the Court has to take cognizance of any offence committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty only with the previous sanction of the Central Government. The contention of the learned Counsel for the petitioners is that the police cadre in Punjab has been declared by the State Government as Armed Forces for the purpose of this provision and, therefore, it was necessary that the sanction of the State Government for the prosecution of the petitioners, should have been obtained instead of the sanction granted in this case by respondent No. 2. It was conceded by the learned Counsel for the petitioners that the appointing authority of the petitioners is respondent No. 2 viz., Senior Superintendent of Police. Even so, according to the learned Counsel for the petitioners, it was necessary that sanction for the prosecution of the petitioners should have been accorded by the State Government and not the Superintendent of Police. The learned Counsel invited the attention of this Court to Notification No. 3124/2H(1), 83/7/73, dated 5.1.1983 issued by the State Government which reads as under :

"In exercise of the powers conferred by subsection (3) of Section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Punjab is pleased to direct that the provisions of subsection (2) of the said section shall apply to serving police officials of all ranks of the Punjab Police force charged with maintenance of Public order."

It is thus apparent that the State Government in exercise of powers under subsection (3) of Section 197 of the Code of Criminal Procedure has issued this notification directing that the provisions of subsection (2) ibid shall apply to serving police officials. In other words, before launching prosecution under Section 197 of the Code of Criminal Procedure against serving police officials, the sanction of the State Government (and not merely of the Superintendent of Police as in the instant case) was required with effect from 5.5.1983, viz., the date of this notification. The learned Counsel for the petitioners, therefore argued that the prosecution against the petitioners is liable to be quashed for want of a valid sanction to be accorded by the respondent No. 1, in accordance with the above referred Notification. The learned Assistant Advocate General was unable to show that any valid sanction had been accorded by the State Government for the prosecution of the petitioners under Section 197(2) of the Code of Criminal Procedure having regard to the Notification of the Punjab Government dated 5.5.1983 referred to above. The contention of the learned Counsel for the petitioners appears to be well founded that the sanction for the prosecution of the petitioners in this case should have been accorded by the State Government and not by respondent No. 2, even though the latter is their appointing authority. The final report under Section 173 of the Code of Criminal Procedure filed against the petitioners is, therefore, also liable to be quashed because of the noncompliance of the provisions of Section 197(2) of the Code of Criminal Procedure. However, the State Government is not precluded from launching prosecution against the petitioners afresh after valid sanction has been accorded for the prosecution of the petitioners under Section 197(2) of the Code of Criminal Procedure keeping in view the Notification issued by the State Government on 5.5.1983.

Having found above that the prosecution of the petitioners is violative of the provisions of Rule 16.38 of the Punjab Police Rules, Volume II, and Section 197(2) of the Code of Criminal Procedure, it is not necessary to deal with the last contention advanced by the learned Counsel for the petitioners.

For the reasons recorded above, the petition is allowed and the report under Section 173 of the Code of Criminal Procedure filed as a result of the first information report No. 127, dated 18.8.1989 registered in Police Station Lehragaga under Sections 323, 342, 166, 193 and 120B of the Indian Penal Code against the petitioners and the order dated 25.4.1992 passed by the Judicial Magistrate Ist Class, Sunam, are hereby quashed. It shall, however, be open to the prosecution to present a fresh report under Section 173 of the Code of Criminal Procedure before the learned trial Court, which may be based on an investigation held by complying with the provision of Rule 16.38(1) of the Punjab Police Rules Volume II, and further by according valid sanction under Section 197(2) of the Code of Criminal Procedure, keeping in view the Notification issued by the State Government on 5.5.1983.