Jagdish Chander S.I. and others vs Kirat Singh

S.S. Dewan, J.—In this petition under S. 482 of the Code of Criminal Procedure, 1973 (for short, the Code), the petitioners have sought quashing of the order dated 6th September, 1982 passed by the Chief Judicial Magistrate Gurgaon, whereby he rejected the application moved by the petitioners under S. 197 of the Code.

Without going into the details of the application, in substance allegations amount to these: That Kirat Singh complainant-respondent filed an application against some bad characters of his Mohalla to the Station House Officer of Police Station City Gurgaon. Jagdish Chander Sub-Inspector colluded with the bad characters. On the night intervening 20/21.3.1978, the complainant was called to the police station and hand-cuffed. His wrist watch, golden ring and some cash were removed from his person. He was also beaten with a danda and abused in filthy language. It it further alleged that the accused-petitioners got the signatures of the complainant on a blank paper under duress and coercion and produced him in the court only on 22.3.1978 when applications were submitted in the Court regarding the illegal confinement of the complainant. The complainant filed a complaint under Ss. 220, 323, 330, 341, 342 and 384, I.P.C. on 30.3.1978.

After recording the preliminary evidence, the accused-petitioners were summoned by the Chief Judicial Magistrate, Gurgaon, under Ss. 323, 343 and 342 Indian Penal Code, for 6.2.1980. When some evidence on behalf of the complainant was recorded, the petitioners moved an application under S. 197 of the Code, alleging that the complaint could not proceed against them as the offences attributed to them had been committed while they were acting in the discharge of their official duty and that the sanction of the Government was a pre-requisite. The learned trial Magistrate vide his order dated September 6, 1982, dismissed the application with the following observations :--

Learned counsel for the applicants has produced Notification No. 41/29/79 HGI dated 25 25.7.1980 published on 12.8.1980 in. Haryana Government Gazette which is to the effect that-- In exercise of the powers conferred by sub-section 3 of the Section 197 Criminal Procedure Code, 1973 (Centrol Act 2 of 1974) Governor of Haryana hereby directs that the provisions of sub-section (2) of the said section shall apply to serving police officials of all ranks of the Haryana Police force charged with the maintenance of public orders. ''Now in this case, case of the accused is that as a complaint had been made against Kirat Singh complaint so he was called in the police station and interrogated and searched. Certainly it is the duty of the police to call a person in the police station against whom a complaint has been received by them, but it is not their duty to beat such a person and to illegally confine such a person in police custody i.e. without producing him in Court after 24 hours and to take out Jama Talashi without showing the same in papers. The notification can help them only while they are acting in the discharge of their duty and not when they are committing offences. Commission of offences can by no stretch of imagination be held to have reasonable connection with the official duty of the police officials.

By means of the present petition, the aforesaid order is sought to be quashed by invoking the provisions of S. 482 of the Code.

The question which falls for decision by this court in this petition is, ''whether the complainant''s case is covered by S. 197 of the Code and previous sanction of the superior authority is necessary before the court can take cognizance of the complaint?

The learned counsel for the petitioners has urged with little persistence that the facts of the complaint clearly show that the petitioners were acting in the discharge of their official duty and, therefore, the trial Court could not take cognizance without the previous saction of the superior authority. In support of this contention, reliance is placed on decisions in cases N. P. Sahni and another v. Samund Singh 1975 Ch. L.R. 8, and Brijinder Singh Sidhu v. Hazura Singh 1981 Ch. L.R. 154. It is not possible to accept this contention, for in my view, there is no reasonable nexus between the act complained of and the discharge of duty by the petitioners. The allegations in the complaint filed by the respondent clearly show that the petitioners had hand cuffed the complainant-respondent removed his wrist watch and other articles from his person and also gave him beating which cannot even remotely be said to be connected with the discharge of official duty. In N.P. Sahni''s case, (supra), D.S. Tewatia, J., distinguished the cases Bhagwan Prasad Srivastava Vs. N.P. Mishra, , and Pukhraj Vs. State of Rajasthan and Another, , on facts and, on the otherhand, drew support from two old decisionsIn re Gulam Muhammad Sharif-ud Daulah ILR 9 Mad. 439, and Amrik Singh Vs. The State of Pepsu, and aid was taken from a decision in Matajog Dobey Vs. H.C. Bhari, , to come to the view that the accused on manhandling and confining the complainant, entitled to the protection of S. 197 of the Code since at that time he was perofrming his duty. That deicision to my mind is distinguishable from the facts of the present case. In Brijinder Singh Sidhu''s case, (supra), K.S. Tiwana, J., while detecting material on the record which was supportive of the plea of the accused took the view that S. 197 of the Code was attractable. That case is a case on its own facts. There is no such material available for the present to come to the conclusion that S. 197 of the Code has become attracted.

In Matajog Dobey''s case, (supra), the Supreme Court laid down the test in these terms :--

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.

Applying this test, I am unable to hold that on the allegations in the complaint which I have set out above, the act complained of can be regarded even as one "purporting to be done" by the petitioners in execution of their duty.

I may refer to the decision in Pukhraj''s case (supra), where the facts were similar to the facts in the instant case. Phkhraj filed a complaint against the Post Master General, his superior officer in the Postal Department, under Ss. 323 and 504, Indian Penal Code, alleging that when he went with his certain complaint to the Post Master General, the latter kicked him in his abdomen and abused him by saying "Sale Goonda, Badmash" The accused-respondent raised the contention that the court could not take cognizance of the offence without the sanction of the Government under S. 197 of the Code. That contention was negatived and the Supreme Court posed the question, whether the acts complained of were done by the accused-respondent in purported exercise of his duty and applying the test laid down in Matajog Dobey''s case, (supra), held that the acts complained of, namely, kicking the complainant and abusing him, could not be said to have been done in the course of the performance of the duty by the accused-respondent.

For the reasons indicated above, I am satisfied that there seems to be no nexus between the official duties assigned to the petitioners and the alleged acts purported to have been done by them and the trial Court was right in coming to the conclusion that S. 197 of the Code was not attracted.

This petition is accordingly dismissed. It is, however, directed that the trial Magistrate shall expedite the proceedings time bound. The parties through their counsel are directed to appear on 15.6.1983 before the trial Magistrate, who shall proceed in accordance with law. The observations made by me in this order will not, however, effect the merits of the case.