Niranjan Kumar vs S. Narayanappa <BR> Sri N.S. Nandeesh Reddy Vs State of Karnataka and K.S. Narayanappa

H.N. Nagamohan Das, J.—In these petitions the petitioners have prayed for quashing the proceedings in Spl. C.C. No. 99/2010 arising out of PCR No. 1/2009 on the file of the II Addl. City Civil and Sessions Judge, Bangalore. Second respondent filed a private complaint before the Special Judge in PCR No. 1/2009 interalia contending that he and his family members are residing in a house constructed in Sy. No. 165, Vibhutipura village. In this land there are also commercial buildings and two temples. It is alleged that accused 1 to 45 with the support and assistance of accused 46 to 54 came near the property of the complainant on 23.1.2009, assaulted the complainant and his family members, abused in filthy language by naming their caste and illegally demolished fee structures in Sy. No. 165 by taking law into their own hands. Therefore, the respondent filed a private complaint against 54 persons. The Special Judge recorded sworn statement of P.W. 1 to P.W. 4, took cognizance of the offence punishable u/s 3(1)(v)(x)(xi) and 32(vii) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 and u/s 323, 324, 142, 143, 144, 145, 146, 147, 148 and 149 IPC and issued summons to all the 54 accused by his order dated 31.05.2010. Petitioners are accused No. 46, 47, 48, 49 and 53. Petitioners being aggrieved by the initiation of proceedings are before this court seeking quashing of the proceedings against them.

Heard arguments on both the side and perused the entire petition papers.

The Material on record discloses that an organization called Kamadhenu Seva Samithi filed a civil suit against the respondent in O.S. No. 5666/2008 and obtained an interim order of injunction on 03.12.2008. This organization requested the Commissioner of Police, Bangalore city in writing requesting the police to protect their possession on the basis of the order of temporary injunction granted by the civil court. On this representation, the Commissioner of Police gave a direction to the Inspector of police, HAL Police station by his communication dated 09.01.2009 to take suitable action in the matter and to enforce the order of the civil court. As per the directions of the Commissioner of Police, accused 47 has taken his staff to the spot to give effect to the order of the civil court.

Petitioner in Crl. P. No. 4503/2012 (accused-46) was the sitting MLA on the date of incident. Petitioners in Crl. P. No. 2960/2012 are the sub-inspector of police (accused No. 49) and women constable (accused No. 53). Petitioner in Crl. P. No. 4256/2010 was the police inspector (accused No. 47) and petitioner in Crl. P. No. 5196/2011 police sub-inspector (accused No. 48). According to accused Nos. 47, 48, 49 and 53 they went to the spot in discharge of their official duty.

The main contention of learned counsel for the petitioners is that all the petitioners in these petitions are public servants as on the date of the incident on 23.01.2009, on the date of filing of the complaint 9.10.2009 and as on the date of taking cognizance by the Spl. Judge on 31.03.2010. Without prior sanction as required u/s 197 Cr.P.C. the Special Judge committed an illegality in taking cognizance of the offence against the petitioners. On the other hand, learned counsel for the respondent contends that the acts alleged against the petitioners are not in relation to the discharge of their official duty but they are illegal, unauthorized and do not fall under the head official duty as such no sanction is required as specified u/s 197 Cr.P.C. to prosecute the petitioners. In order to appreciate this rival contention, it is necessary to notice the law laid down by the Apex court on the question of sanction. The Supreme Court in State of U.P. Vs. Paras Nath Singh, held as under:

Such being the nature of the provision, the question is how should the expression, ''any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'', be understood? What does it mean? ''Official'' according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha v. M.S. Kochar it was held: (SCC pp. 184-85, para 17)

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 pubic servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require, sanction for prosecution and the said provision.

Use of the expression ''official duty'' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

It has been widened further by extending protecting to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further, must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the 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 it 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 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. For instance, a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar u/s 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official, was explained by this Court in Matajog Dobey Vs. H.C. Bhari, .

It is seen from the record that as per the directions issued by the Commissioner of Police in his communication dated 9.1.2009, accused-47, 48, 49 and 53 went to the spot to discharge their official duty. Further it is seen that on 23.01.2009 the HAL police registered a case against the respondent and his family members in Cr. No. 46/2009 for the offences punishable under Sections 341, 353 read with Section 34 IPC for causing obstruction for discharge of official duty. On the very same day Kamadhenu Seva Samithi also lodged a complaint against the respondent and his family members and the same came to be registered in Cr. No. 47/2009 for the offences punishable u/s 341, 323, 506B r/w 34 IPC. Even from the allegations made in the complaint it is seen that petitioners came in police jeep, in police dress, assaulted the complainant and his family members etc., and took them in jeep to the police station. This material on record manifestly establishes that the acts alleged against the petitioners are directly and reasonably connected with their official duty. In view of the law declared by the Apex court in Parasnath singh case sanction to prosecute the petitioners is mandatory. In the instant case, admittedly no sanction is obtained. Therefore, the Special Judge committed an illegality in taking cognizance of the offence against these petitioners and issuing summons without there being an order of sanction. Therefore, the impugned order passed by the Special Judge is void ab initio liable to be set-aside.

Petitioner in Crl. P. No. 4503/2012 is accused-46 before the Special Judge and he was a MLA as on the date of incident, date of filing the complaint and on the date of taking cognizance against him by the Sessions Judge. In the complaint it is alleged that some persons claiming to be the office bearers of Kamadhenu Seva Samithi and its members threatened the complainant and his family to vacate the house in their occupation and not to collect the rent from the shops failing which they will forcibly evict them by killing them as per the instructions of accused-46. Except this vague allegation there are no other allegations against accused-46. Even otherwise accused-46, the sitting MLA is a public servant and no sanction is obtained to prosecute him. Without noticing this aspect of the matter the Special Judge committed an illegality in taking cognizance of the offence against accused-46. For the reasons stated above, the following:

ORDER

i) Petitions are hereby allowed.

ii) The proceedings only against petitioners/accused-46, 47, 48, 49 and 53 in PCR No. 1/2009 registered as Spl. C.C. No. 99/2010 pending on the file of II Addl. City Civil and Sessions Judge, Bangalore city are hereby quashed.

iii) Ordered accordingly.