Pratap Singh vs The State of Rajasthan

B.R. Arora, J.—This miscellaneous petition is directed against the order dated July 30, 1987, passed by the Munsif and Judicial Magistrate, First Class, Rajsamand, by which the learned Magistrate dismissed the application filed by the petitioner.

The learned Munsif and Judicial Magistrate, Rajsamand, filed a complaint against the petitioner u/s 29 of the Police Act and Section 187 of the Indian Penal Code in the Court of the Additional Chief Judicial Magistrate, Rajsamand, with the allegation that in the criminal case No. 81 of 1981 The State of Rajasthan v. Kalu, the warrants of recovery against Kalu and Lacchi Ram were sent to the accused on November 15,1983 and the accused was directed to return the warrants of recovery served or unserved, before January 10, 1984. The accused did not return the warrants of recovery on or before January 10, 1984. Again, the warrants of recovery were sent to the accused on January 1, 1984, and the next date in the case for return of the warrants served or unserved was fixed as April 13, 1984. The accused did not return those warrants either served or unserved. Again, the warrants of recovery were sent to the accused on February 21, 1984 and the next date fixed in the case was March 28, 1984. The accused did not return those warrants of recovery served or unserved this time also. Thereafter, a notice was given to the accused-petitioner on February 22, 1984 as to why the warrants of Recovery, which were sent to him thrice, have not been returned to the Court either served or unserved and as unnecessary delay is being caused in the case, therefore, why proper action may not be taken against him. The accused did not file any reply to this notice. Even after this, the warrants of recovery were again sent to the accused on March 31, 1984 and the next date fixed in the case was April 23, 1984. The accused did not return those warrants, also, either served or unserved. It was, therefore, prayed that the accused has, thus, committed an offence u/s 29 of the Police Act as well as u/s 187 of the Indian Penal Code and he may therefore, be prosecuted and punished to these offences. On the basis of this complaint, the learned Additional Chief Judicial Magistrate, by his order dated May 2, 1984, took cognizance against the petitioner and issued process. The petitioner after putting-up his appearance, filed an application u/s 42 of the Police Act, mentioning therein that the accused is a public servant and, therefore, before filing the complaint against him u/s 29 of the Police Act, prior sanction of the Superintendent of Police or the Collector of the respective district is necessary, as required under Rule 97(kh) of the Police Rules. It was, also, prayed that no prosecution against the petitioner can be taken u/s 187 IPC unless and until previous sanction, as required u/s 197(2) of the Code of Criminal Procedure is obtained against the petitioner. The learned Magistrate, by his order dated July 30, 1987, rejected the application filed by the petitioner. It is against this order that the petitioner has filed this miscellaneous petition u/s 482 of the Code of Criminal Procedure.

Heard learned Counsel for the petitioner and the learned Public Prosecutor.

It is contended on behalf of the petitioner that no prosecution against the petitioner can be launched u/s 29 of the Police Act unless and until a previous sanction from the Superintendent of Police or the District Collector is obtained, as required under rule 97 (Kh) of the Police Rules. As no previous sanction was taken in this case, therefore, the prosecution against the petitioner u/s 29 of the Police Act deserves to be quashed. It has further been mentioned that no prosecution against the petitioner u/s 187 IPC is obtained from the competent authority. As no previous sanction was obtained before launching the prosecution, the prosecution of the petitioner, therefore deserves to be quashed. The learned Public Prosecutor, on the other hand, has submitted that the act of the petitioner was not done in the official discharge or purported discharge of the official duties and, therefore, no previous sanction was necessary in the present case before filing a complaint or launching prosecution against the petitioner. I have considered the rival submissions made by the parties.

In the present case, the duty of the petitioner was to maintain the law and order. The warrants of recovery were sent to the petitioner as the Incharge of the Police Station for getting them served on the accused Kalu and Lacchi Ram. According to the complaint, he did not return the warrants of recovery either served or unserved. Whether he did get the warrants of recovery served or not, is not known. The allegation against the accused-petitioner is that he did not return the warrants of recovery either served or unserved. To get the summons/warrants of recovery served is an official act in the same way omission or negligance would constitute an omission or neglect in the purported discharge of his duties. According to Section 32 IPC. the act done includes illegal omission also. But not doing a thing, which was his duty to do, means that he neglected in discharge of his official duties and did not comply with the order made by the authority.

It is no, doubt, true that Rule 97(Kh) of the Police Rules and Section 197 Cr.P.C. do not provide blanket protection to the police officials entrusted with the maintenance of public order wherever they may be serving, for every of their offence. The object of these provisions is to protect the responsible police officials against the institution of possibly vaxacious criminal proceedings for offences alleged to have been committed by them while acting or purported to act as a police official. The purpose of sanction is to secure the opinion of the superior authority before the public servant is actually prosecuted before the Court. The test in such cases is whether the act complained of is so intrinsically connected with the duties attached to the office as to be inseparatable from that of there may be no necessary connection between the alleged act and the performance of the duties the official status merely furnishes an action and opportunity for their action. If the illegal omission of the public servant arises out of the official duties, which he was performing then the protection under rule 97 (Kh) of the Police Rules as well as u/s 197 Cr.P.C. is applicable to the petitioner and, therefore, the prosecution of the petitioner in the present case, without the previous sanction from the appropriate authorities, is incompetent. An official act can be performed in the discharge of the official duties as well as in the dereliction of the same. In Shreekantiah Ramayya Munipalli Vs. The State of Bombay, , Hon''ble the Supreme Court observed as under:

Now, it is obvious that if Section 197 Cr.P.C. is construed too narrowly it can never be applied, for of course it is no part of an official''s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.

In Som Chand Sanghvi Vs. Bibhuti Bhusan Chakravarty, the Hon''ble Supreme Court observed as under:

It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discertion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason, the sanction of the appropriate authority for the respondent''s prosecution was necessary u/s 197 Cr.P.C.

The action of the petitioner in not getting the accused Kalu and Lacchi Ram served or not returning the warrants of recovery after due service to the Court and whether this negligence of the petitioner makes an offence, there is no doubt that either in doing so or in neglecting to do so the work as directed by the Court, the petitioner was purporting to act in the discharge of the duties as the Station House Officer, Police Station, Rajasmand, and it is not in dispute that the Police officials of all ranks, charged with the maintenance of public order wherever they are serving, have been given the protection u/s 197 Cr.P.C. from prosecution as well as for prosecution under the Police Act by way of Rule 97 of the Police Rules. The Notification, issued by the State Government giving protection u/s 197 Cr.P.C. to the police officials, published in Rajasthan Gazette (Extraordinary) No. 4-G.A. dated August 2, 1974, reads as under:

In exercise of the powers conferred upon it u/s 197 of the Code of Criminal Procedure, the State Government hereby direct that the provisions of Sub-section (2) of the said Section shall apply to police officials of all ranks charged with the maintenance of public order wherever they may be serving.

It is not in dispute that the petitioner was employed as the Station House Officer, Police Station, Rajsamand, and was entrusted with the work of maintenance of public order in the area where he was posted. In this view of the matter, he was entitled for the protection under rule 97 of the Police Rules as well as u/s 197 Cr.P.C. The learned Magistrate was, thus, not justified in rejecting the application filed by the petitioner.

In the result, this miscellaneous petition, filed by the petitioner, is allowed. The proceedings initiated against the petitioner in Criminal Case No. 81 of 1981, without a previous sanction, pending in the court of the Additional Chief Judicial Magistrate, Rajsamand are quashed.