Kulwant Singh vs Omi Kabaria and Others

S. Ravindra Bhat, J.—The Present revision petition is directed against the order of discharge dated 22.03.2002 made the Ld. Additional

Sessions Judge (ASJ). The petitioner was complainant in the proceedings filed before the Metropolitan Magistrate.

The brief facts necessary to decide this present petition are as follows. The Petitioner and the accused had a scuffle relating to a shop property

which resulted in exchange of words. The petitioner alleged that the accused snatched Rs. 5,000/-from him. Therefore, on the same day i.e.

26.04.1991 he approached the police (hereafter referred as the respondents) to register a complaint, as the accused persons had beaten him up.

The respondents refused to register the complaint. The respondent Sh. Mahender Singh, the then SHO allegedly started threatening the petitioner

and said ""Ki Sale Ke 500 Lathi Maroonga Agar Dobara Thane Aya To"". It was alleged that ASI Ishwar Singh slapped the petitioner and said that

if he ever visited the police station again he would be implicated in a false criminal case.

The Petitioner approached the Deputy Commissioner of Police, who directed him to the ACP and a FIR was lodged on 29.4.1991; however,

allegedly no action was taken in the matter. It is alleged that on 21.5.1991 the Respondents threatened the petitioner to settle the matter with the

accused for a sum of Rs. 55,000/-. The petitioner was given Rs. 50,000/- and forcibly made to write that he had received a sum of Rs. 55,000/-

from the accused towards settlement. The respondents allegedly took away the remaining Rs. 5,000/-. The Petitioner asked for the balance

amount of Rs. 5,000/- from the SHO who again threatened the Petitioner that he would implicate the Petitioner in a false criminal case and that he

would also be killed

It was alleged that on 29.6.1991 the accused were called by the police. The petitioner was accompanied by one Constable Mohd. Iqbal. The

accused beat up the petitioner in the presence of the Constable. The Respondents refused to record the statement of constable Mohd. Iqbal in

whose presence the accused persons had beaten up the petitioner. The Respondents did not lodge any report concerning the incident, nor was the

Injured Petitioner medically examined.

The Petitioner on 1.7.1991 approached the DCP who directed the ACP to get the report lodged. The report was thereafter lodged and the

Petitioner was medically examined. The Petitioner submitted that due to injuries, his condition worsened and he was admitted in the J.P.N. hospital

on 25.7.1991 where he was operated upon but yet still no action was taken by the police. Since the Respondents failed to perform their duty the

Petitioner approached the Metropolitan court with his complaint. The trial court took cognizance of the matter and summoned all the accused

persons under Sections 383, 506 and, 323 of the Indian Penal Code (IPC).

The Respondents preferred a revision before the ASJ seeking discharge on the ground that they were public servants and prior sanction was

necessary for prosecuting them. The ASJ allowed the revision and discharged the Respondents by his order dated 22.3.2002. The extracts of the

order are as follows;

I am of the view that the Ld. M.M. mis-directed himself by not considering the protective umbrella provided to such police officials in right

perspective who while acting in discharge of official duty and commit certain un-called for action which may amount to the offence while purporting

to act in their official duty, cannot be prosecuted for such offences and no cognizance of such offences can be taken except with the previous

sanction of the state government for taking cognizance of the offences allegedly committed by the petitioners, the impugned orders of the

summoning as well as the impugned orders of the Ld. M.M. whereby he rejected the application of the Petitioner need to be set aside.

The Learned Counsel for the Petitioner contended that the protection u/s 197 Cr.P.C. is available only when the act is done pursuant to official

duty and under the colour of office. The duty of a police officer is to register the FIR whenever a person approaches with a complaint about

commission of a cognizable offence. He submitted that threatening the complainant to involve him in some false and frivolous criminal case, causing

bodily harm, compelling him to enter into a compromise with accused persons and not giving him the complete amounts as per the compromise do

not come within the ambit of the phrase ""colour of office"". The protection u/s 197 Cr.P.C. should therefore not be extended to such officials.

The respondent accused, on the other hand, supported the impugned order. Learned Counsel submitted that each of the allegations levelled

against the accused were admittedly committed by them in the capacity of police officers; it was the case of the complainant that the accused

committed those acts in the course of their job. Therefore, the trial court could not have proceeded further in the absence of a sanction u/s 197,

read with Section 140 of the Delhi Police Act.

The issue of applicability of Section 197 is a vexed one; it has arisen for consideration in numerous decisions. Indeed it would appear that the

courts have had occasion to visit and revisit the question and re-state the law on many occasions. The latest in the series is Prakash Singh Badal

and Anr. v. State of Punjab and Ors. reported as 2007 (1) JCC 236 ; the Supreme Court held that before Section 197 can be invoked, it must be

shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the

discharge of his official duties. It is the duty which requires examination so much as the act, because the act can be performed both in the discharge

of the official duty as well as in the dereliction of it. The act must fall within the scope and range of the official duties of the public servant

concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of

his official duty. Court had held in Raj Kishor Roy Vs. Kamleshwar Pandey and Another, as follows:

The law on the subject is well settled. It has been held by this Court in the case of PP Unnikrishnan and Another Vs. Puttiyottil Alikutty Anr

Another, that u/s 197 of the Criminal Procedure Code no protection has been granted to the public servant if the act complained of is not in

connection with the discharge of his duty or in excuse of his duty. In the case of P.K. Pradhan Vs. The State of Sikkim represented by the Central

Bureau of Investigation, it has been held that the legislative mandate engrafted in Sub-section (1) of Section 197 is a prohibition imposed by the

statute from taking cognizance. It has been held that the offence alleged to have been committed must have something to do, or must be related in

some manner, with the discharge of official duty. It has been held that the only point for determination is whether the act was committed in

discharge of official duty. It has been held that there must be a reasonable connection between the act and the official duty. It has been held that for

invoking protection u/s 197 of the Code, the acts of the accused, complained of, must be such that the same cannot be separated from the

discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status

furnishes only the occasion or opportunity for the acts, then no sanction would be required. It has been held that if the case as put forth by the

prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is

held that the question of sanction u/s 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing

of charge or even at the time of conclusion of trial and after conviction as well. It is held that there can be cases when it may not be possible to

decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. It has been

held that the claim of the accused, that the act that he did was in course of the performance of his duty, was a reasonable one and neither

pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it.

Fortunately for me, further analysis on the issue is unnecessary, in view of a judgment of this Court, reported as Inspector Bal Krishan Vs.

State of Delhi, In that case, the petitioner, a policeman was alleged to have pushed the complainant from the roof of the house which resulted in

fracture in the left leg. The court held that such action cannot lie within the scope of his official duties as there is no reasonable nexus between that

act and the duties attached to his office. Here too, the allegations of misbehaviour of the respondent accused, in slapping, and abusing the petitioner

and compelling him to accept a compromise cannot be said to have reasonable connection with the performance of duties, of the said public

servants. The official status furnished them the occasion or opportunity for the alleged acts.

For the reasons discussed above, the revisional court fell into error in proceeding to hold that sanction was necessary to prosecute the

respondent. The impugned order is therefore in error; it is hereby set aside. The matter is remitted to the concerned Metropolitan Magistrate, who

shall proceed further upon the complaint, in accordance with law.

The revision petition is allowed, in the above terms. No costs.