Lakh Singh and Others vs Jai Singh

R.L. Anand, J.—Sarvshri Lakhi Singh, Ishwar Singh, Tara Chand, Wazir Singh, Sultan Singh and Ishwar Singh have filed the present petition u/s 482 of the Code of Criminal Procedure against Shri Jai Singh son of Ranjit Singh, resident of village Bhagpur, Tehsil Jhajjar, District Rohtak, for the quashment of complaint dated 18-9-T989 (Annexure P6) filed by the respondent (Jai Singh) under Sections 323/341/342/343/500/506, Indian Penal Code, pending in the Court of Judicial Magistrate, 1st Class, Jhajjar, and he charges Annexures P7 to P11, framed against the petitioners, and the order dated 20th March, 1996 (Annexure P12), contending that the complaint, charges and the order, referred to above, are in the nature of an abuse of the process of the Court.

It has been alleged by the petitioners that on the night of 21 st/22nd July, 1988 one Chottu Ram resident of village Bhagpur died, and on the basis of that FIR No. 83 dated 22-7-1988 u/s 302, Indian Penal Code, was registered at Police Station Beri, District Rohtak. Investigation of the case was entrusted to the S.H.O. but no progress was made in the said case. Due to lack of progress the case was eventually transferred to the Inspector, Criminal Investigation Department (C.I.D.) by the D.I.G. (C.I.D.) Haryana, on 26-10-1988 (P1). The said case was investigated by the said unit and eventually due to representations etc. on the lack of progress the case diary was sent to the Inspector (C.I.D.) Crime, Madhuban, on 31-3-1989 (P2). In pursuance of the case being transferred to the C.I.D. (Crime Branch), Madhuban, the same was entrusted to petitioner No. 1 Lakhi Singh, Inspector. While investigating that matter he visited village Bhagpur several times in the month of April/May, 1989 and met the Panchayat and the family members of the deceased. During the course of investigation the needle of suspicion centred on Prem Singh and Sahaj Ram, son and nephew of the deceased, respectively, and those persons never made themselves available before the Investigating Officer. On 12-9-1989 the petitioners again proceeded to the place of occurrence for investigation, but Prem Singh and Sahaj Ram could not become available. Jai Singh respondent was directed to arrange the presence of the aforesaid persons before petitioner No. 1 on the next date. On 14-9-1989 those two suspects namely Prem Singh and Sahaj Ram appeared before the Investigating Officer along with respondent Jai Singh and they were interrogated about the death of Chottu. Since the needle of suspicion was being focussed upon Prem Singh and Sahaj Ram, a false complaint was lodged against the petitioner on 18-9-1989 by respondent Jai Singh in the Court of Judicial Magistrate 1st Class, Jhajjar, under Sections 323/341/342/343/500/506, Indian Penal Code, in order to put pressure upon the petitioners on the basis of the complaint, statements of Sahaj Ram, Raja Ram and Jai Singh were recorded on 24-5-1990 and 2-7-1990, and the petitioners were summoned by the trial Magistrate. In the meanwhile the petitioners were transferred from Madhuban to various places and they were not aware of the fact that the Magistrate had issued the summons against them. Since the petitioners could not be summoned on account of their transfers, the learned Magistrate issued non-bailable warrants against the petitioners and they appeared on different dates as mentioned in para No. 9 of the writ petition and were released on bail except petitioner No. 6, who was already in custody in some other case. On 20th March, 1996 the trial Magistrate framed charges against the petitioners under Sections 323/342, Indian Penal Code (P7 to P11). The petitioners protested to the framing of the charges by the learned Magistrate but their objections were dismissed.

The challenge in the present writ petition has been given to the complaint dated 18-9-1989 filed by the respondent, to the charges framed on 20th March, 1996 and the order of the even date vide which the objections of the petitioners were rejected. The main ground taken by the petitioners in the present petition is that they could not be prosecuted without prior sanction u/s 197, Cr.P.C.; that they were not given an opportunity to show that the alleged acts were committed in exercise of their official duties and they could not be personally held liable; that the complaint did not lead any pre-charge evidence; that the criminal complaint is a counter-blast to the act of investigation done on the part of the petitioners when a suspicion was placed upon Prem Singh and Sahaj Ram.

Notice of the petition was given to the respondent, who filed the reply and denied the allegations. A preliminary objection was taken by the respondent that the petitioners have already been charged by the learned Magistrate, and, therefore, the petitioners cannot invoke the provisions of Section 482, Cr.P.C. On merits, the stand of the respondent is that Chottu Ram was the brother of the answering respondent and he was murdered and in this connection F.I.R. dated 22-7-1981 registered u/s 302, I.P.C. at Police Station Beri, District Rohtak. Prem Singh and Sahaj Ram were always available in the village and there was no question of any suspicion on Prem Singh and Sahaj Ram regarding the death of Chottu Ram. According to the respondent, on 12-9-1989 at about 11 a.m. all the petitioners came to village Bhagpur in a car bearing registration No. CHE-46. They reached the house of the respondent and asked about Prem Singh son of Chhotu. The respondent led the petitioners to the house of Prem Singh where Prem Singh and his mother were found present. On reaching there the petitioners abused and started insulting Prem Singh. They started beating him mercilessly. On the same day at about 12'' O Clock Sahaj Ram son of the respondent was taken from Civil Hospital Beri and threatened him to kill. From 12-9-1989 to 15-9-1989 Prem Singh and Sahaj Ram were kept in the illegal custody and were beaten. A.S.I. Tara Chand petitioner took Rs. 1740/- from the pocket of Sahaj Ram. The doctor incharge of Beri Hospital had also informed about this incident to C.M.O. Rohtak. Both Prem Singh and Sahaj Ram were released on 15-9-1989 at 5 p.m. As they were having injuries on their persons, therefore, they were medically examined on 16-9-1989, vide the two M.L.Rs., which were produced before the Magistrate by way of preliminary evidence. The respondent submits that Prem Singh and Sahaj Ram were kept in illegal custody from 12-9-1989 to 15 -9-1989 and as such the question of their going before petitioner No. 1 along with the answering respondent at Madhuban did not arise. The daily diary report on which the petitioners were building reliance has been fabricated. While supporting the order of the Magistrate, the respondent has prayed for the dismissal of the petition.

The record of this case would show that Jai Singh respondent filed a criminal complaint under Sections 323/341/342/343/500/506, I.P.C., in the Court of Judicial Magistrate 1st Class, Jhajjar, against the present petitioner, alleging that the petitioners were responsible for the wrongful confinement of Sarvshri Prem Singh and Sahaj Ram and they gave merciless beatings to them; so much so A.S.I. Tara Chand took away Rs. 1740/- from the pocket of Sahaj Ram. On the basis of this cumplaint the learned Magistrate, after deciding the objection of the petitioners, came to the conclusion that the petitioners are prima facie liable for the commission of an offence punishable under Sections 323/342, Indian Penal Code, and they were served with a notice of allegations accordingly. Not satisfied with the complaint, the framing of the charges and the order of the Magistrate (Annexure P12), the present petition has been filed which is being disposed of with the assistance of Shri A. K. Mittal, learned counsel appearing on behalf of the petitioners, and Shri S. S. Narula, Advocate, who appeared on behalf of the respondent.

The first contention which was raised by the learned counsel for the petitioners is that the complaint of Jai Singh respondent was bad in view of the provisions of Section 197, Cr.P.C. which lays down as follows : --

Prosecution of Judges and Public Servants

(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:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.

The contention raised by Shri A. K. Mittal is without any merit. A perusal of the above provision would show that these provisions have been introduced by the Legislature to guard against, the vexatious proceedings against a public servant and to secure the well considered opinion of a superior authority before a prosecution is launched against such public servants. In other words, the inclusion of these provisions affords an adequate protection to ensure that the public servants mentioned above are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause. But at the same time if the act complained by the complainant falls outside the scope of the discharge of the official duty of such public servant, no sanction as envisaged u/s 197, Cr.P.C. is required.

Shri A. K. Mittal submitted that a perusal of the complaint (Annexure P6) would show that the complained act was allegedly performed by the petitioners in the discharge of their official duties and accordingly the permission, as contemplated u/s 197, Cr.P.C., must be obtained by the respondent before he could file the complaint. The argument is not acceptable to the Court because this Court at this stage is to see the allegations of the complaint and not to go into detailed scrutiny of the defence which might be taken by the present petitioners. If the allegations of the complaint are taken, it is specifically alleged by the respondent that the petitioners were responsible for illegal confinement of Prem Singh and Sahaj Ram. The petitioners gave them merciless beatings. The role attributed to the petitioners is corroborated by the medical evidence. There are witnesses to the alleged incident of beating and wrongful confinement. The injured would also support the averments of the complaint. All the above would tend to show that the act complkined of did not form part of the discharge of the official duties of the petitioners. In these circumstances, in the opinion of this Court, the permission was not required to be taken by the respondent u/s 197, Cr.P.C. In Jodh Singh v. Chandi Ram, 1988 Chand Cri C 73, it was held that one has to see the allegations made and not to go into the detailed scrutiny at the initial stage. The findings of the said judgment can be reproduced as follows: --

...It has been repeatedly laid down that at the initial stages of the case to settle the controversy as to whether the sanction u/s 197 of the Code of Criminal Procedure is required in a particular case, all that has to be seen is to examine the assertions made in the complaint and not to weigh or evaluate them in order to find out their veracity. Equally not in dispute is the proposition that the Court is entitled to come to such a conclusion if at any stage of the trial it finds material justifying that.

Similar view was also taken by the Orissa High Court in a case reported as Dhulamani Behera Vs. State of Orissa, in which it was held that it initiation of the criminal proceedings is challenged, then the necessity of sanction has to be determined on the basis of the allegations made without any investigation as to whether such allegations are true or false. Similar are the observations contained in B. Saha and Others Vs. M.S. Kochar, , wherein it was held as follows (Para 18):

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 the prosecution 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.

Confronted with the above position, it was urged by Shri Mittal that the complaint act was performed by the petitioners in the discharge of their official duties and as such sanction to prosecute them in any event would be necessary. The argument is not again acceptable to this Court in view of the citation reported as Baijnath Gupta and Others Vs. The State of Madhya Pradesh, , wherein it was held as follows : --

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 and 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.

Reliance can also be placed to arrive at the above conclusion upon State (Delhi Administration) Vs. Sube Singh, a Division Bench judgment of the Delhi High Court. If the allegations of the complaint filed by Jai Singh respondent are examined on the touch stone of the above ratio given by the various High Courts and the Hon''ble Supreme Court there is no doubt in the mind of this Court that the act complained of does not fall within the scope and ambit of the official duties of the petitioners and they had no authority under the law which permits them to beat the persons and to confine them illegally. This Court is also not in a position to formulate an opinion that the complaint filed by Jai Singh was an act of counter-blast in order to put pressure upon the petitioners. It is a common case of the parties that one Chhotu Ram died under unnatural circumstances. An F.I.R. was registered regarding his murder. The case was handed over to the C.I.D. (Crime Branch). During the course of investigation Prem Singh and Sahaj Ram must have been picked up by, the petitioners. If they were maltreated against the law and the provisions of the Police Act, the respondent had every right to file a complaint against the petitioners. In the pre-charge evidence the allegations of the respondent were substantiated and for that reason the learned Magistrate summoned the petitioners to face the trial.

Learned counsel for the petitioner has relied upon State of Maharashtra v. Dr. Budhikota Subharao 1993 (2) RCR 482 a judgment of the Hon''ble Supreme Court - and submitted that even if it is assumed for the sake of arguments that the petitioners used force while discharging official duties, in such like cases prior sanction for prosecution was required. I have the occasion to go through this authority. In my opinion, this authority is not applicable to the facts in hand. Rather it has been laid down in this very authority that if the officer committed an offence in the course of service but not in the discharge of his duty, then sanction u/s 197, Cr. P.C., was not required. As I have submitted above, the averments of the complaints are to be seen at the initial stage. Learned counsel for the petitioners has not been able to convince that the acts complained were integral part of the duties of the petitioners and while discharging the same they had exceeded in the same, and, therefore, the petitioners should not be prosecuted without the sanction. On the other hand, learned counsel appearing on behalf of the respondent has invited my attention to Harinder Singh v. Mohinder Singh 1994 (3) RCR 309 wherein the same set of circumstances this Court was pleased to hold that when a criminal complaint has been filed on the allegations that the Police Officer had kept the complainant in illegal custody for three days and gave him beatings and that the Magistrate summoned those culprits, sanction for prosecution was not required. It was observed by this Court that commission of an illegal act while on duty could not be taken to be in discharge of the official duty, and, therefore, the protection of Section 197, Cr.P.C., was not available to such public servants. Similar was the view taken by the Delhi High Court in the case reported as Pyare Lal v. Sita Ram Mamgoi 1987 (1) RCR 488. My attention has been invited by the learned counsel for the respondent to the citation reported as Preetam Singh and Another Vs. State of U.P., . In this authority the Hon''ble Judges after taking note of the entire case law came to the conclusion that when a complaint against the Police Officer for the alleged torture under his orders during investigation was filed and that there is noevidence that the act complained of was done by the accused in purported discharge of his official duty, such officer is not entitled to take protection u/s 197, Cr.P.C.

In the light of the above discussion, this Court holds that the complaint of the respondent was not an abuse of the process of the Court and that it could not be dismissed for want of sanction u/s 197, Cr.P.C., and the Magistrate rightly rejected the objections and proceeded to frame the charges against the petitioners. There is no illegality in the order of the Magistrate, which might warrant an interference from this Court u/s 482, Code of Criminal Procedure.

Resultantly, this petition is hereby dismissed with no order as to costs.