Dilbag Singh vs State of U.T., Chandigarh

A.S. Nehra, J.

Petitioners have filed this petition under Section 482, Criminal Procedure Code (hereinafter called the ''Code'') for quashing criminal complaint dated February 19, 1985, filed by Smt. Surinder Kaur alias Gurdeep Kaur, respondent No. 2, under Sections 302, 342 and 364 read with Sections 120B and 149 of the Indian Penal Code (hereinafter called the ''Penal Code'') summoning order dated January 25, 1986 passed by Judicial Magistrate Ist Class, Gurdaspur, order of the Additional Sessions Judge, Chandigarh, dated February 2, 1994, dismissing the application filed by the petitioners for dropping the proceedings in the complaint case against them and order dated February 3, 1994, passed by the Additional Sessions Judge, Chandigarh, by which charges under Sections 364 read with Sections 149 and 302 read with Section 149 of the Penal Code have been framed against them.

Briefly stated, the facts of the case are as under :

Smt. Surinder Kaur alias Gurdeep Kaur filed a complaint under Sections 302, 342 and 364 read with Sections 120B of 149 of the Penal Code against the petitioners and five others on February 19, 1985. The petitioners were ordered to be summoned to stand trial under Section 302 read with Sections 149/364 of the Penal Code. Petitioner filed an application for dropping the proceedings against them stating that since the act complained of by respondent No. 2 was done by them in the discharge of their official duties being members of the Police or the ParaMilitary Force, they could not be prosecuted without obtaining the prior sanction of the Government as envisaged by Section 197 of the Code. The application filed by the petitioners was opposed by respondent No. 2 and in her reply she had stated that since the act of criminality i.e. killing of her husband, attributed to the petitioners had absolutely no connection with the performance of their official duties, the protection of Section 197 of the Code was not available to them and that the request made by them could not, therefore, be acceded to.

For the correct appreciation of the matter, as also for right adjudication thereof it is necessary to refer to the facts of the case as mentioned in the complaint and the same, briefly stated, are as under :

"On 2.10.84, Suba Singh deceased, who was husband of the complainant, had gone to a room wherein Muktiar Singh Constable (now an accused) was living and saw one Jaspal Singh son of Joginder Singh being beaten and tortured thereby some police officials, including the accused persons. He (Suba Singh) then came back to his house in his village Talwandi, but since the accused persons suspected that he could disclose whatever he had seen them doing to Jaspal Singh to some other persons and even to their superiors, he was called back from his house through Muktiar Singh Constable on the same day and was detained by them along with said Jaspal Singh. When Suba Singh did not come back home for quite some time, his wife, i.e. the complainant, set out to find out his whereabouts and when they were going towards the room of the said Muktiar Singh Constable and were at the turning of the street at G.T. Road, Dina Nagar, they saw a police jeep standing there and Suba Singh and Jaspal Singh in handcuffs and Jaimal Singh Sub Inspector, Muktiar Singh Constable, Kuldip Singh, Driver of the jeep, and two other police men were putting forcibly Suba Singh and Jaspal Singh in the jeep. At that time, Suba Singh was shouting that he would not divulge, what he had seen, to anybody and that he should be set free. Jaimal Singh accused was, however, heard saying to him, Toon Sadiyan Jaran Wich Kal Noon Baithenga.'' Then Jaimal Singh and the other accused persons drove them away towards Pathankot side. Thereafter on 3.10.84, the complainant and some other members of her family, including her son, went to the Police Station Sadar, Pathankot, with a view to meet Mukhtiar Singh and to find out as to where Suba Singh was and at about 5.00 p.m. when they were waiting to meet the Commandant of the Border Security Force at Gurdaspur, the same police Jeep was also seen standing near the Officers'' Mess along with the accused persons sitting therein. They, i.e. Suba Singh and Jaspal Singh, were shifted to a Matador which was taken towards the border side and sometime later they came to know that Suba Singh had been killed in a fake encounter and this was done after he had been tortured and his bones broken with a view to concealing their misdeeds."

I have heard the learned counsel for both the parties and have come to the conclusion that the request of the petitioners for dropping the proceedings in the complaint case has been rightly declined by the learned Additional Sessions Judge, Chandigarh.

The scope and ambit of the applicability of the provisions of Section 197 of the Code were examined by the apex Court in S.B. Saha and others v. M.S. Kochar, AIR 1979 S.C. 1841, wherein it was observed by their Lordships thus :

"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 wider sense, these words will take 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 protection of Section 197(1), an 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 Baijnath v. State of Madhya Pradesh, AIR 1966 Supreme Court 220 at page 222, ''it is the quality of the act that is important and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.''

In sum, 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.

The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the servant, if challenged, can reasonably claim that what he does, he does in virtue of his office."

It has been contended by Mr. Ashok Aggarwal, Senior Advocate, counsel for the petitioners, that Suba Singh (deceased) was killed in the course of an encounter after he had been intercepted, while he was in possession of arms and ammunition near IndoPak border on the night intervening 3rd and 4th October, 1984, by a police party of which the petitioners were also members and, thus, whatever they did on that day is to be taken to have been done while performing their official duties and the petitioners cannot be prosecuted therefore without obtaining the requisite sanction of the appropriate Government.

After hearing the learned counsel for the parties, I do not agree with the submission of the petitioners'' counsel. The complainant has alleged that her husband Suba Singh was kept in illegal detention by the petitioners for days together, was tortured and then done to death in a fake encounter. In view of this allegation the act of criminality of the accused, for which they have been summoned to face a trial, cannot certainly, by any stretch of imagination, be taken as having been committed in the course of discharge of their official duties, or even under the colour of any such thing and this being so, there can absolutely be no justification for the proceedings initiated against them being dropped for want of sanction under the above mentioned provisions of law. A perusal of the report and statement of Dr. Chandan Singh (P.W. 4), who had conducted the postmortem examination on the dead body of Suba Singh reveals that he had seven injuries on his person, including a fracture of his right up joint which, according to him, was ante mortem and could have been caused only by the use of force or violence on him and not as a result of any firearm being used, and this generates a feeling that this physical damage was done to him much prior to the alleged encounter and that too deliberately meaning thereby that the possibility of the allegations of the complainant that Suba Singh was beaten and tortured being true cannot straightaway be precluded.

In view of the above discussion, there is no merit in this petition and the same is dismissed.

The complaint against the petitioners and five others was filed on February 19, 1985 and the summoning orders was passed by the Judicial Magistrate Ist Class, Gurdaspur, on January 25, 1986. Since 1985, the complaint is pending in the Courts. The petitioners filed this petition under Section 482 of the Code of proceedings before the trial Court were stayed and due to the stay order granted by this Court, the trial of the petitioners has been delayed. The trial Court is directed to complete the trial within one year from the date of receipt of a copy of this order. The Additional Registrar (Judicial) of this Court is directed to send a copy for this order to the trial Court by September 12, 1994, through a special messenger. The trial Court is further directed to send its report to this Court after every two months about the progress of the trial in the case.