Daya Nand vs Kashmir Singh

V.S. Aggarwal, J.

This is a petition filed by Daya Nand for quashing the complaint filed by respondent Kashmir Singh with respect to offences punishable under Sections 343/323/365 and 504 IPC and the order passed by the learned Chief Judicial Magistrate, Narnaul summoning the petitioner as an accused besides that of the learned Additional Sessions Judge, Narnaul.

The relevant facts are that respondent Kashmir Singh filed the complaint against the petitioner and others. He alleged that respondent was related to Smt. Sarwan widow of Jai Narain. F.I.R. No.143 dated 26.6.1981 was recorded at the behest of one Malha Ram. In that report Chandgi Ram, Des Raj, Vijay Pal, Zora and Yad Ram were recorded as killers of Smt. Sarwan. It was further alleged that in order to grab the property of Smt. Sarwan, Malha Ram in collusion with accused Daya Nand and Umrao wanted to implicate the persons in the murder case who otherwise were entitled to inherit the property of Smt. Sarwan. It had further been alleged that on 27.6.1981 at 1.00 P.M. Daya Nand along with 23 constables reached village Mohammadpur. He searched the houses of the persons who were wanted in connection with the murder of Smt. Sarwan. The accused were not found there. Daya Nand, Mala Ram and Umrao entered into a conspiracy to forcibly take the ladies and the children of the persons involved in the murder case to the police station. Daya Nand asked Mala Ram, Umrao and the police constables to take the ladies and the children of the persons wanted in the murder of Smt. Sarwan. Inspector Daya Nand and others in presence of Tara Chand and Ram Narain dragged the respondent and Smt. Phuli and Patasi out of their houses and forcibly placed them in the jeep. After this the respondent and others were taken to the house of Ram Chander. Petitioner hurled filthy abuses on them, his mother and aunt. They were locked illegally at the police station. A petition for habeas corpus was filed by one Chhajju Ram for production of the respondent and others. This Court had appointed a warrant officer. The respondent and others were found in the police station. The respondent, therefore, filed the complaint against the petitioner and others referred to above.

The learned Judicial Magistrate, Narnaul after recording the preliminary evidence summoned the petitioner and others with respect to offences punishable under Sections 343/323/365 and 504 IPC. The petitioner had filed an application for quashing of the order passed by the learned Judicial Magistrate. The same was dismissed as withdrawn. Thereafter the petitioner filed an application with the trial court for dropping the proceedings against him. The main argument advanced before the learned trial court was that he was acting in discharge of his official duties. Sanction to prosecute under Section 397 Cr.P.C. (197 Cr.P.C.) was necessary. The learned Judicial Magistrate dismissed the application on 1.5.1990 holding that in the facts of the case, no sanction was required. The petitioner filed a revision petition in the Court of Sessions. It was dismissed by the learned Additional Sessions Judge, Narnaul on 16.7.1990. The present petition invoking Section 482 Code of Criminal Procedure has been filed for quashing all such orders as well as the complaint. The plea raised is the same as already mentioned above.

The first and foremost question that comes up for consideration is as to whether the present petition is maintainable or not. This objection had been raised in wake of the fact that the petitioner''s revision petition had earlier been dismissed while subsection (3) of Section 397 Cr.P.C. bars a second revision petition by the same person.

In such like matters it has repeatedly been held that the Court would be slow in exercising its inherent powers when the second revision petition is barred. Under Section 482 of the Code of Criminal Procedure, the High Court would only interfere in exercise of its inherent powers if it is necessary to give effect to any order under the Code or to prevent abuse of the process of the Court or secure the ends of justice.

The Supreme Court in the case of Dharampal and others v. Ramshri (Smt.) and others, 1993 SCC (Cri) 333 dealt with the same question. The Court held that High Court should not have exercised the inherent powers when the second revision petition was barred under subsection (3) of Section 397 Cr.P.C. The findings recorded were :

"The question that falls of our consideration now is whether the High Court could have utilised the powers under Sections 482 of the Code and entertained a second revision application at the instance of respondent 1. Admittedly respondent 1 had preferred a Criminal Application being Cr.R. No. 180 of 1978 to the Sessions Court against the order passed by the Magistrate on October 17, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on May 14, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."

Same was the view of the Supreme Court in the case of Deepti alias Arati Rai v. Akhil Rai and others, 1995 SCC (Cri) 1020.

Can in the facts of the present case it be said that inherent powers of the Court should be utilized ? As already mentioned above, the same could be pressed into service only to prevent abuse of the process of the Court or to secure the ends of justice. The Courts have arrived at certain conclusions. It will not be in the interest of justice to interfere merely because certain facts have been disputed and dispute pertaining to prior sanction to prosecute are being raised. Be that as it may, as far present, the Court has to see the assertions made in the complaint and the preliminary evidence that has been produced.

Subsection (1) of Section 197 Cr.P.C. reads as under :

"197(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."

Perusal of the above said provision shows that sanction to prosecution is necessary, if the accused is a public servant i.e. he is a Judge or a Magistrate or a public servant not removable from his office save with the sanction of the State Government and most important that offence must be committed by the accused by acting or purporting to act in discharge of his official duty. The object of Section 197 Cr.P.C. is well known. It is to guard against vexatious prosecutions and to secure a well considered opinion of a superior authority before prosecution is launched against such public servant. In other words, it is to afford adequate protection to ensure that public servants mentioned are not prosecuted for anything done by them in discharge of their official duty without reasonable cause. In normal circumstances there should be a nexus with the alleged act and the official duty.

In the present case the petitioner is alleged to have dragged the respondent and others, abused them and illegally detained them. This is as per the allegations of the respondent. The correctness of the allegations will be looked into subsequently but at this stage the said act can hardly be described to be in discharge of his official duties. The Supreme Court in the case of Bhagwan Prasad Srivastava v. N.P. Mishra, AIR 1970 SC 1661 considered the scope of Section 197 Cr.P.C. It was held that there must be a reasonable connection between the act and the discharge of official duties. The act must fall within the scope and the range of the official duties of the public servants. The emphasis is on act and not duty. The Court observed :

"The narrow and pedantic construction may render it otiose for it is no part of an official dutyand never can be to commit an offence. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional setup the idea of legal equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition, is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing Section 197, Cr.P.C., therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties."

This Court in the case of Budhi Parkash Yadav v. K.C. Sharma and another, 1981 Cri.L.J. 993 considered the same question. Herein the Deputy Commissioner and the Deputy Superintendent of Police had beaten, assaulted and abused certain advocates. The question under consideration was that sanction under Section 197 Cr.P.C. was required. Keeping in view the nature of assertion, the answer provided was in the negative. Reference with advantage may also be made to the decision in the case of S.B. Saha and others v. M.S. Kochar, AIR 1979 SC 1841. While dealing with the same question it was held :

"The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wide sense, these words will pay under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), and act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijanath v. State of Madhya Pradesh, AI.R. 1966 Supreme Court 220 at p. 222: "It is the quality of the act that is important, and if it falls within the scope and range of his official duty, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted." The decision in the case of S.B. Saha was again followed in the subsequent decision of the Supreme Court in the case of State of Maharashtra v. Dr. Budhikota Subbarao, reported as 1993(2) RCR 482, it was concluded that if the offence is committed in the course of service but in the discharge of his official duty, then sanction under Section 197 of the Act is not required. In face of the aforesaid, the conclusions are clear that firstly at the initial stage, only the allegations made have to be taken into account, the detailed scrutiny will not be admissible and secondly, the alleged act should be connected with the discharge of the duty of the government servant. It should not be an act which is not remotely connected with the duty of the said servant."

In other words, the settled law is that there should be close connection between the official duty and the alleged act. In the present case in hand, the petitioner is alleged to have abused, wrongfully detained, dragged and abused the respondent. As per the allegations made it cannot be termed that this was in discharge of his official duties. It can only be looked into and decided after the trial proceeds. There is no ground thus to interfere in the orders passed by the Courts below.

Confronted with that position, the learned counsel urged that incident pertains to many years ago that no proper trial at this stage can take place. He had drawn the attention of this Court to the decision in the case of S.G. Nair v. Union of India, 1992(3) RCR (Crl.) 175. Herein the matter was pending in the Supreme Court for many years. Even considering the same, the Supreme Court quashed the proceedings holding that at this stage, a proper trial may not be possible.

Can we say so in the present case ? The peculiar facts would prompt the Court to give the answer in the negative. This is for the reason that after the petitioner was summoned, he was praying for quashing of the complaint. Subsequently, he had withdrawn the same with permission to raise the pleas before the learned Judicial Magistrate. After the application under Section 245(2) of the Code of Criminal Procedure was dismissed, he filed a revision petition in the Court of Sessions and thereafter approached this Court. Once a litigant is determined to delay the proceedings, surely he cannot play the orchestra of delayed trial. He will not reap the fruit of his own acts and doing. Therefore, the decision in the case of S.G. Nain (supra) will not come to his rescue..

No other argument was raised.

For these reasons, the petition being without merit must fail and is dismissed.