Nandu Zambauliker vs Shrikant Naik and Another

J.A. Patil, J.—By this application u/s 482, Criminal Procedure Code, the applicant has challenged the Order dated 21st March 1998 passed by the Sessions Judge, South Goa, Margao, in Criminal Revision Application No. 41 of 1997 setting aside the Order dated 8th July 1997 passed by the Judicial Magistrate, First Class, Margao, in Criminal Case No. 134/P/87/I. The learned Magistrate rejected the application of respondent No. 1 for dismissing the complaint on the ground of want of sanction u/s 197 of the Criminal Procedure Code. In revision, the learned Sessions Judge set aside that Order holding that sanction u/s 197 of the Criminal Procedure Code was necessary for prosecuting respondent No. 1. The relevant facts necessary for the decision of this application may be stated in brief as under:

The applicant, who is a press photographer, is the original complainant whereas the respondent No. 1, who is a Head Constable, is the original accused in Criminal Case No. 134/P/87/I. The said case was initiated against respondent No. 1 on the basis of a private complaint dated 21st March 1987 filed by the applicant. It was alleged by the applicant that on 20th December 1986 some people had gathered near Gandhi Market at Margao to make an agitation. A police party including respondent No. I was posted at Gandhi Market for the purpose of bandobust. According to the applicant, the agitation was going on peacefully and that, being a press photographer attached to a local daily, he had gone there to take the photographs of the agitators. The applicant further alleged in his complaint that some antisocial elements tried to disrupt the agitation which was going on peacefully and at that time he tried to snap some shots by means of the camera, which he was carrying with him. He alleged that at that time respondent No. 1 rushed towards him and snatched the camera. Thereafter, respondent No. 1 pulled out the film from it and forcibly threw the camera on the ground and trampled on it. According to the applicant, his camera was of the value of more than Rs. 1800/- and respondent No. 1 was responsible for causing destruction thereof. The applicant lodged a complaint with the Margao Police Station but the Police did not take any action. Hence, the applicant filed his private complaint in the Court of Judicial Magistrate, First Class, Margao.

The learned Magistrate recorded the statement of the applicant u/s 200 of the Criminal Procedure Code and also conducted "an inquiry u/s 202 of the Criminal Procedure Code during which he recorded statements of two witnesses of the applicant, namely, Narendra Shirodkar ''and Chanda Karim. After finding that there we''re sufficient grounds to proceed against respondent No. 1, the learned Magistrate issued process against him. Thereafter, on 20th June 1996 respondent No. 1 appeared before the Court and submitted an application stating that he was a public servant and the applicant had not obtained requisite sanction to prosecute him. He, therefore, prayed for dismissal of the complaint. The learned Magistrate, however, held that the act complained of had ho correlation to the official duties of respondent No. 1 and that the said act could not be considered as part of or in excess of the official duty of the respondent No. 1. He, therefore, held that no sanction u/s 197 of the Criminal Procedure Code was necessary to prosecute respondent No. 1. In revision, the learned Sessions Judge took a different view and held that respondent No. 1 was certainly acting or at least purporting to act in the discharge of his official duty. He further held that the alleged act of respondent No. 1 was in excess of his duty and the said excess was committed by him while he was exercising his duty of dispersing the persons who were throwing stones. In this view of the matter, the learned Sessions Judge held that respondent No. 1 could not be prosecuted for want of sanction u/s 197(3) of the Criminal Procedure-Code. He, therefore, discharged respondent No. 1. It is this order which is the subject-manner of this application.

Shri Jayant Prabhu, the learned advocate for the applicant, submitted that the official duty of respondent No. 1 was to maintain peace and order and to prevent the agitators from luring unruly. Shri Prabhu further submitted that the act of respondent No. ! of snatching the applicant''s camera and beating him was not at all connected with his official duty. According to him, it was an intentional and not an accidental act. Shri Prabhu further urged that as a press photographer, the applicant was entitled to take photographs of the agitators and publish them in the newspaper. Shri S. G. Bhobe, the learned advocate for respondent No. 1, on the other hand, submitted that the acts attributed to respondent No. 1 has a correlation with his official duty. He pointed out that respondent No. 1 was a member of the police party which was posted for bandobust duty and as such he was discharging his duties to maintain law and order. Shri Bhohe further submitted that the question involved is not whether respondent No. 1 committed the alleged offence but whether sanction is required to prosecute him on that count. Shri Lawande, the learned Public Prosecutor for the State, supported the impugned Order and submitted that at the relevant time respondent No. 1 was acting under the colour of his office. Therefore, according to him, sanction for prosecution was necessary.

The relevant part of Section 197 of the Criminal Procedure Code reads as under :-

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)

(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 .

(2)...

(3) The State Government may, by notification, direct that the provisions of Sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.

(3-A) and (3-B)...

(4)...

It may be pointed out that the then Administrator of Goa by his notification dated 9th February 1982 directed that all the provisions of Sub-section (2) of Section 197 shall apply to all classes and categories of the members of the Police Force charged with the maintenance of public order and serving in connection with the affairs of the Union Territory of Goa, Daman and Din. It is not disputed before me that the said notification still holds good and is in force.

The provisions of Section 197 of the Criminal Procedure Code do not give any immunity to the public servant from being prosecuted. They are not in the nature of General Exceptions as contemplated by Chapter IV of the Indian Penal Code, They do not say nor purport to suggest that nothing is an offence which is committed by a public servant during the course of the discharge of his official duties. Act which amounts to an offence will still be seven if it is done by a public servant. The cover of public servant is not a licence to commit an offence. Law does not make any distinction between the acts done by a private person and the done by a public servant so far as criminality of the same is concerned. Section 197 only creates a condition precedent for initiation of prosecution of public servants. It. requires grant of sanction of the Government and prohibits Courts from taking cognizance of alleged offences attributed to public servants if there is no requisite sanction. The only object of the said requirement of sanction is to give protection to the public servant from false and frivolous prosecutions.

In order to show whether the alleged acts of respondent No. ! amount to offences or not, both the parties cited before me several rulings. On perusal of the same, it is found that there is a common trend in all those decisions and it is to the effect that in order to get the protection of Section 197 the alleged act and the official duty of the public servant should be so interrelated that one can reasonably say that the act was done in performance of official duty though possibly in excess of the needs of situation. Relying upon the decision in Ashok v. Pralhad 1988 Cri LJ 78, Shri Prabhu submitted before me that in the instant case the acts of respondent No. 1 had absolutely no correlation with his duty and as such the protection given by Section 197 would not be available to him. In order to appreciate the submission of Shri Prabhu, it is necessary to have a look to the peculiar facts of the said case. In that case the complainant was standing on the ota of his house and making some talk with his tenant in connection with the payment of rent. At that time, two police constables in uniform happened to pass by. They were in the official uniform and on their usual rounds. It was alleged by the complainant that the two constables dragged him, without any reason, and assaulted him by giving kicks and blows. They also took him to the police station. The complainant later on filed a private complaint against the two constables for the offences punishable under Sections 323 and 504 read with Section 34 of the Indian -Penal Code. The Judicial Magistrate after perusing the police report of inquiry u/s 202, Criminal Procedure Code issued process against both the constables. On trial both the constables were convicted and sentenced to pay a fine of Rupees 100A each for the offence u/s 323 of the Indian Penal Code. The revision application filed by the two constables against the order of conviction and sentence was dismissed by the Sessions Court. The applications filed by the two constables u/s 482 of the Criminal Procedure Code were dismissed by the High Court on the ground that there was no correlation or nexus between the act complained of and duties enjoined by law to be performed by the two constables. It was pointed out that there was nothing to show whether the constables wanted to arrest the complainant or that the complainant ever resisted the so-called arrest. In the instant case the facts are, however, materially different in the sense that at the relevant time respondent No. 1 was performing his duty of maintaining law and order. The alleged act of snatching the petitioner''s camera and causing damage to it was in She course of the duty which respondent No. 1 was performing. Therefore, in my opinion, reliance by Shri Prabhu on the above-mentioned ruling is not proper and correct.

In Rizwan Ahmed Javed Shaikh and Others Vs. Jammal Patel, S.I. and Others, , which was relied upon by Shri Bhobe, it was held that the protection u/s 197 would be available if the initial act of the public servant was in the discharge of his official duty even if there was some subsequent irregularity. In that case the facts were that pursuant to the complaint filed by one Faijuddin Jainuddin against Rizwan Ahmed and others respondent No. 1, a P.S.I, attached to Chembur Police Station alongwith other policemen went to the house of Rizwan Ahmed and apprehended him and other people and took them to the police station for further investigation. It was alleged by Rizwan Ahmed that respondent No. I had unlawfully detained him in police, custody and also assaulted him. On these facts, the High Court held that respondent No. 1, who properly arrested the petitioners could not be prosecuted for some subsequent breach of legal provisions of Section 57 of the Criminal Procedure Code unless proper sanction was obtained.

In Narayan Yetale v. Luiza Vaz 1995 (2) GLT 131, the facts were that the petitioner Assistant Sub-Inspector Yetale along with oilier policemen went to the house of respondent Luiza Vaz to arrest her son, who was found in the neighbour''s house. It was alleged that A.S.I. Yetale assaulted the said boy and instructed respondent No. 2, a constable of Gujarat State Reserve Police, to fire at the boy. Accordingly, respondent No. 2 fired at the said boy, who succumbed to the bullet injury. Subsequently Luiza Vaz filed a private complaint against A.S.I. Yetale and others for the offences under Sections 302 and 294 read with Section 34 of the Indian Penal Code in the Court of the Chief Judicial Magistrate, Margao. A.S.I. Yetale raised an objection to the taking of cognizance of the alleged offences by the Court on the ground that no sanction u/s 197 of the Criminal Procedure Code was obtained. The Chief Judicial Magistrate, however, rejected that contention and committed the case for trial to the Sessions Court. A.S.I. Yetale raised the same objection in the Sessions Court also but the same was rejected. The High Court, however, upheld the objection and pointed out from the evidence of the witnesses that there was law and order situation on account of a violent mob and that police force had to be deployed to avoid the situation. In the light of these facts it was held that the alleged act on the part of A.S.I. Yetale had sufficient nexus with the discharge of his official duty and, as such, he was entitled to the protection of Section 197, Criminal Procedure Code before he was prosecuted.

A similar view was taken by our High Court in the case of Devu Benaulekar v. Menino Rodrigues 1995 (1) G LT 52 wherein on facts it was held that the initial act of locating the alleged culprit was within the powers of the Officer and when the Officer in-fact had done so, the subsequent excess in use of force could hardly take his act out of the four corners of Section 197(2) and (3), because the said provisions are meant for protecting Officers of the category specified in the Section "while acting or purporting to act in the discharge of his official duty".

In Abdul Hamid Ismail v. State of Maharashtra 1993 MLJ 139, the facts were that a police constable had mis-used his position while he was attached to the office of the Police Commissionerate and had obtained a sum of Rs. 600/- from a person by cheating him and getting him to believe that he would receive a call for interview/appointment. It appears that the said constable was prosecuted u/s 163 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act without any sanction. The Special Judge even convicted and sentenced him. However, in appeal, the High Court set aside the order of conviction and sentence on the ground of want of requisite sanction. The following observations made by Saldanha, J., are relevant:-

...the law is now well settled that undoubtedly, it is not the function of a public servant to commit illegalities or to perform criminal acts since a public servant is paid to perform his legal duties of the job to which he is assigned. However, the Courts have held that as long as the status of the accused was that of a public servant and as long as the acts that are attributed to him are performed by him at or around his duty station, that the bar u/s 197, Criminal Procedure Code would apply.

In State of Maharashtra Vs. Dr. Budhikota Subbarao, , it was held that two conditions were required to be satisfied for applicability of Section 197 of the Criminal Procedure Code. (1)The act or omission must have been done by the public servant in the course of his service, and (2) it should have been in discharge of his duty. It was observed :-

The section has, thus, to be construed strictly while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated.

Taking into consideration the weight of the authorities discussed above, it is clear that the act complained of may not be a part of the duty of the public servant but, if it is done while in the discharge of the official duty, then the same is protected by Section 197 and without there being requisite sanction for prosecution, the Court cannot take cognizance of the alleged act as being an offence. Having regard to the facts and circumstances of the instant case coupled with the statements of the two witnesses, namely, Narendra Shirodkarand Chanda Karim, that at the relevant time respondent No. I was attending bandobust duty and as such discharging his official duty. It is seen that some people suddenly started throwing stones as a result of which the police had to resort to lathi charge. If in the course of dispersing the mob, respondent No. I had snatched the camera of the petitioner and caused damage to it. it cannot be said that there was no nexus between the said act and the official duty. Strictly speaking the alleged act attributed to respondent No. 1 may not be justified and may even amount to an offence. However, since the same was committed during the discharge of his official duty, the same is protected u/s 197 of the Criminal Procedure Code requiring sanction before prosecuting him.

In the result, the learned Sessions Judge was, therefore, right in allowing the revision application filed by the present respondent No. I. No interference in the said order is, therefore, called for. There is no merit in this application and as such, the same is hereby dismissed.