In re Gulam Muhammed Sharif-ud-Daulah, I.L.R.9 Mad.439.

M.M. Punchhi, J.

The complainantpetitioner filed a criminal complaint against for police officers under Sections 325/323/34 and 102, Indian Penal Code, before a Judicial Magistrate Ist Class, Barnala. One of the accused arraigned therein is Ajhar Alam, the then Assistant Superintendent of Police Barnala (Now Superintendent of Police besides member of Indian Police Service) In the said complaint, all the four accused were summoned. While the matter was pending before the Court, the respondent moved an application that he be discharged, for under section 197, the Criminal Procedure Code, the complaint could not proceed against him as the offence attributed to him had been committed while he was acting in the discharge of his official duties and that sanction of the Central Government was an essential prerequisite. The learned trial Magistrate vide his order dated 15.12.1981 dismissed the application observing as the follows :

"At this stage, there is no material on the file from which it could be held that accused Ajhar Alam was conducting investigation against the complaint and his brother Parkash Chand in a murder case. The question whether the complaint can proceed without requisite sanction can be considered as and when some material comes on the file. As there is no evidence on the file at this stage to hold hat accused Ajhar Alam was conducting investigation of a murder case against the complainant and his brother, or that the accused had committed the alleged act in the discharge of his official duty, so the question whether sanction for the prosecution of the accused is required in this case cannot be considered at this stage. As and when some material will come on the record to effect that the accused was acting or purporting to act in the discharge of his official duty, the question of sanction will be considered thereafter."

Aggrieved against the said order, the respondent filed a revision petition before Shri M.S. Gill, Additional Sessions Judge Barnala. He allowed the petition, set aside the order of the learned Judicial Magistrate Ist Class, Barnala and dismissed the complaint against Ajhar Alam as premature and discharged him. He took the view that in the context, the learned Magistrate was hardly justified in taking cognizance of the offence without sanction of competent authorities under section 197 of the Code of Criminal Procedure. The complaintpetitioner has challenged that view in this Court.

Whether a police officer, inflicting or get inflicted under his orders, torture on a person during the course of investigation, is entitled to protection of sanction under section 197, Criminal Procedure Code, when prosecuted for the offence, is the significant question which has been raised in this petition. To answer that question, one has to discuss, analyse and differentiate the different strains of thought which prevail in judicial annals. It seems to me, there is a thin line of division earmarking the sources from which those strains have developed though they conclude at the same point, i.e. to confer immunity on public officers and judges from prosecution for offences committed while acting or purporting to act in the discharge of there official duties. I may broadly note those strains.

There are a set of cases which can broadly be called cases relating to offences against property (inclusive of bribery cases). The first in line is Dr. Hori Ram Singh v. Emperor, AIR 1939 Federal Court 43. The view taken therein was that section 197, Criminal Procedure Code, was intended to apply to those acts which must have been ostensibly done by an officer in his official capacity in execution of his duty. Then is the case of Lieutenant Hector Thomas Huntely v. Emperor, AIR (31) 1944 Federal Court 66 (a bribe case). It was ruled that it must be established that the act complained of was an official act but the act of receiving illegal gratification by a public servant could not be regarded as an act done or purporting to be done in execution of duty (this was a case under section 270 of the Government of India Act, 1925). Later in H.H.B. Gill and another v. The King, AIR (35) 1948 Privy Council 128 Lord, Simonds ruled that 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 and 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. (In this case, it was also held that there was no difference between section 197, Criminal Procedure Code, and section 270 of the Government of India Act). "In virtue of his office" principle was adopted by the Supreme Court in Amrik Singh v. The State of Pepsu., AIR 1955 S.C. 309 and it was held that if the act complained of was directly concerned with the official duties of the public servant so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. The Supreme Court also in Shreekantiah Ramayya Munipalli and another v. State of Bombay, AIR 1955 S.C. 287, ruled that section 197, Criminal Procedure Code, is not to be construed too narrowly, and in the context of section 409 Indian Penal Code, ruled that if the act was innocent, it was an official act, if dishonest, it was the dishonest doing of an official act, but in either event, the act was official because the accused could not dispose of the goods, save by the doing of an official act, namely, official permitting there disposal. In Baijnath and another v. State of Madhya Pradesh, AIR 1966 Supreme Court 220, the Court ruled that what was important was the quality of the act, and the protection contemplated by section 197 of the Code of Criminal Procedure would be attracted where the acts falls within the scope and range of the official duties of the public servant. Lastly, in S.B. Saha and other v. M.S. Kochar, AIR 1979 Supreme Court 1841, the Court has ruled :

"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."

The second strain of cases are offences affecting decency and morals as also of defamation. To begin with, there is In re Gulam Muhammad SharifudDaulah I.L.R. 9 Madras 439. In that case, defamatory words used by a Judge in the course of the trial of a suit were taken to have been uttered by him, while acting in his official capacity. Section 197, Criminal Procedure Code, as it then stood providing "is accused as such Judge or public servant of any offence" rendered that protection. That view was adopted by the Chief Court of Punjab, Lahore in Amar Singh v. Emperor, 1905 Criminal Law Journal 119. The words "as such" were highlighted on a strength of the aforesaid Madras case. But the words "as such" were given a go bye by amending Section 197, Criminal Procedure Code, in the year 1923. Since then the expression now is "is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duties". Thus, the aforesaid two old cases have, to my mind, obviously lost their value in the existing context. In Bhagwan Prasad Srivastava v. N.P. Mishra, AIR 1970 S.C. 1661, where in an operation theatre, the Civil Surgeon abused the complainant before patients and hospital staff, the Court ruled that there must be a reasonable connection between the act and the discharge of official duty and the act must fall within the scope and range of official duties of the public servant concerned. In that case, it was held that there was nothing to show that the act complained or was a part of the official duty of the Civil Surgeon. Recently, in B.S. Sambhu v. S.K. Krishnaswamy, [AIR 1983 S.C. 64 : 1983(1) CLR 501] the act of a District Judge describing an Advocate in uncomplimentary terms during comments offered in a transfer application was held by the Court to be having no connection with the discharge of official duty of the District Judge. Section 197 Criminal Procedure Code, was not allowed to be attracted.

The third streak of cases are cases which may broadly by called affecting or relating to human body. In Sarjoo Prasad v. Emperor AIR (33) 1946 Federal Court 25, where a Station Master assaulted the complainant and his brother, it was held that the act complained of was not one purporting to have been done by the accused in the execution of his duty. Here, the emphasised phrase was picked up from Dr. Hori Ram Singh''s case (supra). The Constitution Bench of the Supreme Court in Matajog Dubey v. H.C. Bhari, AIR 1965 S.C. 44, had before them a case of an income tax raiding party which was required to execute a search warrant and which on obstruction had, while removing obstruction committed the alleged offence of hurt. Their Lordships in that context observed as follows :

"Where a power is conferred or a duty imposed by statute of otherwise, and there is nothing said expressly inhibiting the exercise of the power of the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution.

If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with common sense and does not seem contrary to any principle of law.

The true position is neatly stated thus in Broom''s Legal Maxims, 10th Ed. at page 312, `It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command''."

They also restated the principles thus :

"............in the matter of grant of sanction under section 197, 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 his duty."

In Pukhraj v. State of Rajasthan and another, AIR 1973 Supreme Court 2591, where the Post Master General gave a kick to Clerk, it was held that the act of the public servant so alleged could not be said to have been done in purposed exercise of his duty and to such a case, section 197 of the Code of Criminal Procedure per se could not be attracted. However, it was reaffirmed that fact subsequently coming to light during the course of the trial may establish the necessity for sanction and whether or not the sanction is necessary will depend from stage to stage.

Now the present case with which I am dealing is the case of grievous hurt in which a man''s leg was allegedly broken by Police officers conducting investigation in the presence and direction of Ajhar Alam accused respondent. Thus, the various expressions used and gathered in the category of cases in which offences affecting or relating to human body were concerned need to culled out prominence. These are "in virtue of office", "in virtue of his official duty", "in execution of duty", "purported exercise of duty", "directly and reasonably connected with official duty" and "within the scope and range of official duty". All these expressions lead to a common asix which is that the act complained of must be, and if I may say so, in fulfilment of and in excellence of official duty, an accomplishment which the concerned Government in a Welfare State might in public interest condone and extend the immunity to the public servant. There seems to me no purpose than this for having Section 197, Criminal Procedure Code, which is in the nature of an exception to the general rule of accountability re a crime. It seems to me that idea underlying is that the end would justifying condone the means, converse to the principle that means must justify ends. On that touchstone, it seems to me, that the infliction of torture by a police officer on a defenceless and unobstructive man can hardly be called an act in the excellence of his office or towards fulfilment of his official duty. Rather, to my mind, it would be in derogation thereof, a step retrograde. As I have been able to decipher, the judicial thought pointedly projected in that regard is only focussed on the innate positives in the act complained of on the touchstone of public interest and not on negatives which tend to erode it. Thus, I have not the least hesitation in answering the aforeposted question in the negative.

To be fair to the learned counsel for the respondent, I need notice a few decisions of this Court as well in which hurts inflicted by public servants were involved. In particular, I must make reference to the case of N.P. Sahni and another v. Sumand Singh, 1975 Chandigarh Law Reporter 8, decided by D.S. Tewatia J. which has extensively been quoted and relied upon by the learned Additional Sessions Judge. In that case, D.S. Tewatia, J. distinguished Bhagwan prasad Srivastava''s case (supra) and Pukhraj''s (supra) on facts and, on the other hand, drew support from the two old decisions aforequoted in Gulam Muhammad SharifudDaulah''s case (supra) and Amrik Singh''s case (supra). It is noticeable that these were rendered prior to the amendment of 1923 and could hardly have any persuasive value in present state of the Code of Criminal Procedure. Mata Jog Dubey''s case (supra) was taken aid of to come to the view that the accused was on manhandling and confining the complainant entitled to the protection of section 197 of the Code of Criminal Procedure since at the time he was performing his duty. That decision, to my mind, is distinguishable from the facts of the present case for here the act complained of is not in virtue of office but rather in derogation of it. The other decision of Brijinder Singh Sidhu v. Hazura Singh, 1981 Chandigarh Lal Reporter 154, in which Kulwant Singh, Tiwana J. detecting material on the record which was supportive of the plea of the accused took the view that section 197 of the Code was attractable. That case too is a case on its own facts. Here no such material is available for the present to come to conclusion that sanction under section 197 of the Code has become attracted.

As observed before, the case is at the precharge stage. The observations of the learned Magistrate have been quoted in the beginning of this judgment. It may well be that if there is no material on the file from which it could be held that accused Ajhar Alam had participated in the crime he may well discharge him. But to say at this stage that bar of section 197 of the Code of Criminal Procedure is attracted is to erect one where none, for the present exists. Thus, I am of the considered view that the learned Additional Sessions Judge committed a grave error in allowing the revision petition. Therefore, upsetting that order, I restore that of the Judicial Magistrate, Ist Class, Barnala, dated 15.12.1981. However, it is made clear that if at any stage, material comes on the record and it becomes necessary, the bar of section 197 of the Code of criminal Procedure may successfully be pleaded.

For the foregoing reasons, this petition is allowed. The order of the learned Additional Sessions Judge is set aside restoring that of the Judicial Magistrate Ist Class, Barnala. It is, however, directed that the learned Magistrate shall expedite the proceedings timebound. And since the matter is at the precharge stage so far as the accusedpersondent is concerned, he may, if so approached, consider granting exemption from appearance to the accusedrespondent in view of his office and public duties and permit a lawyer appear in his stead, till the culmination of precharge stage at least. JUDGMENTed accordingly.

JUDGMENT accordingly.