Sukhminder Singh, ASI vs State of Punjab

G.S. Chahal, J.

Sukhminder Singh, ASI, by means of this petition under Section 482 Cr.P.C. seeks quashing of complaint No. 56 dated April 15, 1986, filed by Gautam K. Handa respondent No. 2 (hereinafter referred to as the complainant).

The petitioner is being prosecuted along with Sh. Chand Ahuja and Lalit Ahuja for offence under Sections 385, 392 and 504 Indian PC. The facts on the basis of which the petition is being prosecuted may be briefly summarised :

"Chand Ahuja who is a partner with M/s. Mikh Raj Madan Mohan Commission Agents, Bank Street Bhatinda lodged a false report with the police leading to the registration of case FIR No. 262 for offence under Sections 406/420 Indian Penal Code Police Station Kotwali Bhatinda and is dated October 31, 1985 S/Sh. G.R. Handa, Anil Hada, R.K. Sharma and R.K. Gupta were named as the accused. On December 9, 1985, a police party headed by the petitioner and accompanied by Chand Ahuja, Lalit Ahuja and others visited the premises of M/s. Rama Fibres Limited, New Delhi. The petitioner arrested Anil Handa and R.K. Gupta and tried to trace G.R. Handa and R.K. Sharma and a number of other persons on the plea that there were warrants of arrest against them. Chand Ahuja in the presence of his coaccused made a demand for Rs. 5.35 lacs for settling the case and gave out a threat that in the alternative the police will take Anil Hada and R.K. Gupta to Punjab. The accused persons also threatened the complainant and asked him to pay the demanded money on the allegation that the complainant was also responsible for the control of the affairs of the company. The petitioner directed the complainant to pay the required amount otherwise he would arrest all of them against nonbailable warrants. Under the threat of arrest all of them against nonbailable warrants. Under the threat of arrest and humiliation, the complainant arranged a draft of Rs. 3.5 lacs from the account of M/s. Handa Leasing and Industries Limited in favour of M/s. Milkh Raj Madan Mohan. The police in the meantime obtained a transit remand of Anil Handa and R.K. Gupta for produceing them in the Court at Bhatinda. Chand Ahuja made demand for handing over draft and gave the promise that no police remand shall be sought and Anil Hadda and R.K. Gupta shall be released on reaching Bhatinda. That since the complainant did not deliver the draft he and Sh. AB Shashtri were not allowed to company arrested persons to Bhatinda, while Chand Ahuja continued giving threats that if the complainant did not give the draft then G.R. Handa and R.K. Sharma would be brought to Bhatinda in the same way and the petitioner continued advising and threatening them to be sensible and to pay the amount. On December 10, 1985, while the complainant and others were present outside the Kotwali, Bhatinda, Chand Ahuja and Lalit Ahuja accompanied by some other persons asked them to hand over the draft otherwise Anil Handa and R.K. Gupta will not be bailed out, and they will be remanded to police custody and will be paraded through the main bazar in handcuffs. On the refusal of the complainant to deliver the draft, the petitioner made Anil Handa and R.K. Gupta to walk on foot in handcuffs from P.S. Kotwali, Bhatinda. On reaching the Courts, Chand Ahuja and Lalit Ahuja, with the aid and connivance of the police headed by the petitioner threw open challenge to them that in case the draft was not delivered, Anil Hada and R.K.Gupta will be remanded to police custody for 10 days and the complainant and others will also not be able to go to Delhi. Apprehending injury to himself, G.R. Handa and A.B. Shastri and other executives and in order to avoid harassment to Anil Handa and R.K. Gupta the complainant handed over the draft for Rs. 3.5. lacs to Chand Ahuja. They were then assured that no police remand shall be obtained. ASI Sukhminder Singh then asked for only judicial remand and Anil Handa and R.K. Gupta were released on bail on December 11, 1985. It was subsequently found that no amount was payable to M/s. Mulkh Raj Madam Mohan by M/s. Rama fibers Limited and a false report had been lodged to cause harassment, insult and humiliation to the complainant and others. That the draft had been obtained by way of extortion and the police had illegally obtained nonbailable warrants from the Court of CJM Bhatinda in order to help and facilitate in the commisison of the offence.

Cr. M. 618M/86 was brought by Anil Handa and other from quashing of the FIR and the same was allowed vide order dated May 6, 1986. After the petitioner and his coaccused were summoned on the basis of the complaint, the petitioner and his coaccused came to this Court in Cr. M. 3375M/86 for quashing of the proceedings, which was, however, dismissed vide order dated February 19, 1987. The SLP against that order was also dismissed by the Supreme Court. After recording the evidence, the trial Court framed charges against the petitioner and his coaccused and this order was challenged by Chand Ahuja in Cr. R. 485 of 1989 and the order framing charge was set aside and the case was remanded for reconsideration. On April 25, 1990, the Magistrate again framed charge against the petitioner and his coaccused against which order a Cr. R. 491/90 was filed and vide judgment dated December 6, 1990, this petition was allowed and it was directed that the case was triable as summons case and a direction was also issued that the question of requirement of sanction under Section 197 Cr.P.C. be also considered vide order Annexure P6 dated April, 2, 1991, the CJM Bhatinda ordered the issuance of a notice constituting the offence. The petitioner challenges the complaint Annexure P2 as well as the order Annexure P.6.

Since the quashing of the complaint had been considered in the earlier criminal misc. petition filed in this Court, this matter cannot be reopened and the learned counsel has also confined his argument to the question of only bar under Section 197 Cr.P.C. The question of operation of bar under Section 197 Cr.P.C. was raised by the petitioner before the Magistrate and after considering the allegations and the evidence brought forth the learned CJM held as follows :

"The next result of the aforesaid discussion is that in the present case the unlawful act said to have been committed by Sukhminder Singh, ASI, was altogether different and not at all required to be done in the discharge of his official allegedly committed by him was done while acting in the discharge of his official duties. The provisions of Section 197 Cr.P.C. thus are not attracted in this case."

The scope of Section Cr. 197 P.C. was considered in S.A. Saha and others v. M.S. Kochar, AIR 1979 SC 1841. The proposition that the question of sanction under Section 197 Cr.P.C. can be raised and considered at any stage of the proceedings was accepted. It was also accepted that while considering the question whether or not sanction for prosecution was required, it was not necessary for the Court to confine itself to the allegations of the complainant and it can take into account all the material on record at the time when the question is raised and falls for consideration.

Their Lordships held :

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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 protection of Section 197(1), an act constituting an act directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J. in Baijnath v. State of Madhaya Pradesh, AIR 1966 Supreme Court 220 at page 222 "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted".

In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.

While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced in Varadachariar, J. of the Federal Court in Hori Ram v. Emperor, 1989 FCR 159 is generally applied with advantage. After referring with approval to those observations of Varadachariar, J. Lord Simonds in H.R. Gill v. The King, AIR 1984 PC 128 tersely reiterated that the "test may well be whether the public servant, if challenged can reasonably claim, that what he does, he does in virtue of his office.

Speaking for the Constitution Bench of this Court, Chandrasekhar Iyer J., restated the same principle, thus :

"........In the matter of grant of sanction under Section 197, 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, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fearful claim that he did not in the course of the performance of his duty. Emphasis supplied"

The petitioner had been entrusted with warrants of arrest for arrest of Anil Handa and R.K. Gupta. He, on the basis of those warrants, had actually arrested them and after obtaining transit remand, brought them to Bhatinda. These were the duties which he was legally supposed to perform and he did perform. No fault can also be found with his taking the arrested persons to the Court in handcuffs while walking from the Kotwali to the Court. These were the part of the duties to be performed by him. The complainant, however, contends that the petitioner had given out threats to the complainant against whom there were no warrants of arrest, and threatened to arrest him and others and further directed to settle out the dispute as the complainant was concerned with the control of the affairs of the company. Even at Bhatinda, he had thrown a challenge to complainant and others that if the Bank draft was not handedover, the police remand for 10 days shall be obtained and also that the complainant and others will not be allowed to go back to Delhi, the complaint alleged that it was on account of these threats, insult, humiliation and apprehension of injury to himself, his father G.R. Handa and Shastri that he handed over the draft and, thus, it was an exertion of money from him. In the statement made in Court, the petitioner has confirmed the facts of threats being given out to him. The act of the petitioner in giving out threats to the complainant and forcing him to part with the bank draft under the treat that otherwise he and others will not be allowed to return to Delhi, had no reasonable connection with the discharge of his official duty, which may require prior sanction under Section 197 Criminal Proceudre Code.

The judgment Somchand Sanghvi v. Bibhuti Bhusan Chakravarty, AIR 1965 SC 588, relied upon by the petitioner is distinguishable from the present case. In that case, a complaint was brought against Assistant Commissioner of Police for offence under Section 348 Indian Penal Code on the allegations of wrong confinement in order to extort a confession or compel restoration of property. The facts leading to the judging of the complaint as given in the judgment were as follows :

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3) One Manohar Lal Seth had lodged a complaint on July 28, 1960 against him and two other persons Fatehlal and Jaichand for offence under Section 120B/420, IPC and Section 420 IPC Manoharlal Seth had alleged in his complaint that these persons had induced him to purchase a bar of brass for Rs. 6000/ on the representation that it was of gold and thus duped him. Upon this complaint investigation was taken up by the police. He came to know Manoharlal Seth in the course of his business. They were on quite friendly terms in the beginning and later on considerable differences arose between him and Manoharlal Seth. As a result of that Manoharlal Seth told him that unless he settled his difference with Manoharlal Seth according to the latter''s dictates he would put him into trouble through his friend, the respondent; and that it is because of this that Manoharlal lodged a complaint against him for cheating. This complaint was thus a false complaint and it is common ground that ultimately it was dismissed by the Presidency Magistrate, 8th Court, Calcutta on January 2, 1981.

Then according to the appellant, on August 3, 1960 at about 6.00 a.m. P.C. Kundu SubInspector of Police attached to Burrabazar Police Station along with another SubInspector S. Bhattacharya, visited his residence, searched his house and arrested him. Neither of them had any warrant with them for the search of the house or for the arrest of the appellant. Upon enquiry by him from these persons they told him that this was being done under the orders of the respondent. After his arrest the appellant said that he was taken to the Burrabazar police station at about 7.00 a.m. and then to Jorasaned police station and produced before T.K. Talukder SubInspector in charge of that police station. From there he was taken to various places in Calcutta with a repetived round his waist by Kundua and Bhattacharya and was eventually produced at about 12 noon before the respondent and in his office at Lalbazar. There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5000/ or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth. At about 3.30 p.m. on the same day his brother Iswarilal accompanied by a lawyer Chakravarty visited the respondent''s office and sought the appellant''s release on bail as the offence was bailable one. The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5,000/ was paid to Manoharlal Seth. The appellant says that he was detained at Lalbazar police station till 8.00 p.m. From there he was taken to Jorsakko police station and kept in the lockup for the whole night. On the next day, that is August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and after obtaining his finger prints and taking his photographs the was taken to the court of the Additional Chief Presidency Magistrate he was released on bail at about 2.30 p.m."

On these facts, it was held as follows :

"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 discretion he acted illegally by stating t hat 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 for the respondent''s prosecution was necessary under Section 197 Cr.P.C."

The act of the accused in that case had, thus, a direct connection with the performance of his duty and it was on that basis that the sanction under Section 197 Cr.P.C. was deemed necessary.

I, thus, conclude that Section 197 Cr.P.C. does not operate as a bar to the prosecution of the petitioner on the basis of the allegations made. Obviously truthfulness of the allegations has only to be gone into the stage of trial. No case is made out for quashing of the proceedings. The petition stands dismissed.