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Judgment
This revision is directed against the order dated 05.07.2010 passed by the learned Addl. Sessions Judge, Sibsagar framing charge against the
petitioner under Section 302/307/326/34 IPC, in Sessions Case No. 42/2010.
On 23.01.2010, the petitioner T.S. Chadha accompanied by his escort party moved out,for checking the ONGC installations. When they were
coming back from one of the ONGC establishment, at night, at about 11.30, two persons on a motorcycle overtook the escort vehicle of the petitioner,
which was following the vehicle of the petitioner. Being suspicious about of the said two persons overtaking the escort vehicle, the security personnel
of the escort vehicle informed the petitioner over V.H.F. set. Upon such information, the petitioner directed his PSO to stop the motorcycle. The PSO
of the petitioner, one Padum Bora jumped out of the vehicle and tried to stop the motorcyclist, but defying the signal, the motorcycle moved ahead in a
high speed and said Padum Bora opened fire to the motorcyclist, as a result of which, Nilikesh Gogoi and Bulu Gogoi died. An FIR was lodged to that
effect on the same day by the petitioner. Another FIR was lodged by one Thaneswar Gogoi, on the basis of which police registered a case and after
investigation submitted charge sheet against the present petitioner and Padum Bora under Section 302/307/326/34 IPC. On the basis of the said
charge sheet, learned Judicial Magistrate took cognizance and committed the case to the court of sessions as the offences were triable exclusively by
the court of sessions. Learned Sessions Judge by the impugned order framed charge against the present petitioner.
Aggrieved by the order of the learned Sessions Judge framing charge, the petitionerpreferred the instant revision petition.
I have heard learned Sr. Counsel, Mr. D.K. Mishra, assisted by Mr. B.M. Choudhury, forthe petitioner and the learned Addl. P.P., Assam Mr.
B.B. Gogoi.
The sole question raised in this revision petition is whether the petitioner being a publicservant was protected by Section 197 (1) CrPC from being
prosecuted without previous sanction.
Learned Sr. Counsel Mr. D.K. Mishra submitted referring to statement of the witnessesrecorded under Section 161 CrPC, that at the relevant time,
the petitioner was on duty and while he was coming back after inspecting one of the installation, found the boys coming on motorcycle at night and
when they defied the signal to stop, apprehending that they might be activist of ULFA, the PSO of the petitioner opened fire to them. Referring to
certain documents, more particularly an order dated 14.12.2006 passed by the District Magistrate prohibiting pillion riding, and various letters written
from the Chief Minister’s Security Cell to the DIG, CISF and other security officials informing that ULFA militants were likely to target the
ONGC installations on the eve of republic day and asking to step up the security measures, Mr. Misra contended that the situation was tense because
of ensuing republic day, and therefore being highly apprehensive, the PSO of the petitioner opened fire, which unfortunately caused death of the
victims. As the petitioner was on duty, he was immune from being prosecuting without sanction from the appropriate authority under Section 197 (1)
CrPC, submits Mr. Misra. To buttress the submission, learned Sr. Counsel placed reliance on the following decisions.
Matajog Dobey Vs. H.C. Bhari (AIR 1956 SC 44)
State of Orissa Vs. Ganesh Chandra Jew (2004) 8 SCC 40
Abdul Wahab Ansari Vs. State of Bihar (2000) 8 SCC 500
Sankaran Moitra Vs. Sadhna Das (2006) 4 SCC 584
In the case of Matajog Dobey (supra), the income tax officers were raiding the house of the complainant, which was resisted and there was
application of force. The Apex Court held that 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, but not a pretended or fanciful claim, that he did it in the course of the
performance of his duty. On the facts, the Constitutional Bench held that though there might be some excess, the act of the officer was considered to
be in discharge of their official duty
In Sankaran Moitra (supra), it was a day of election to the State Assembly and the appellant travelled to the place of spot in uniform in an official
Jeep, which was near a polling booth, and there was information of some disturbance at the polling booth and that it may took a violent turn of clashes
between the supporters of two political parties. Upon such information the appellant reached the site of the incident in his official vehicle.
In Abdul Wahab Ansari (supra) case also there were clashes between two groups, for which prohibitory order under Section 144 CrPC was
promulgated. The appellant made several request to the encroachers for removal of the encroachment and ultimately the Sub-Divisional Magistrate
appointed the appellant as Duty Magistrate for use of police force to remove the encroachment in question. The encroachers were requested to
remove the encroachment, but they did not obey and the miscreants armed with weapons, started hurling stones and as the situation became out of
control, after giving due warning, the appellant was compelled to order for firing.
In Ganesh Chandra Jew (supra), the appellants were forest officials, who as per the complainant entered into the clinic of the complainant alleging
that some elephant tusks were recovered from his possession. In all these decisions, on facts, the Apex Court held that the act of the public servant
was in discharge of their official function.
Supporting the impugned order, learned Addl. P.P., submitted that the act of thepetitioner in the instant case had no relation or nexus with his
official duty, and as such, the protective cover provided by the provision of Section 197 CrPC was not available to the petitioner. Learned Addl. P.P.,
contended that the petitioner was Assistant Commandant of CISF and the duty of the petitioner was confined to the protection of the installations of
the ONGC and not beyond the sites of ONGC installations. The petitioner was not entrusted with the law and order duty and therefore shooting a
person on the public road, only because of defying their signal to stop could no way be associated with the official duty of the petitioner. Learned
Addl. P.P., further contended, that all the authorities cited by Mr. Misra shall not be applicable in the case in hand, as the official duty of the public
servant in all those authorities cannot be equated with the official duty of the petitioner. Mr. Gogoi, further contended that the act complained of
against the public servant in those authorities were in discharge of their official duty, whereas the place occurrence in the instant case not being the
ONGC installations, the act of shooting the deceased on the public road had no relation or nexus with the official duty of the petitioner.
The provision of Section 197 CrPC protects the public servant only when, the actcomplained of is done in discharge of his official duty or in
purported discharge of official duty. Therefore, what is essential to note is that in order to extend the protective cover under Section 197 (1) CrPC,
there must be a reasonable connection between the act and the discharge of the official duty. The act done by public servant and the official duty
should be so inter-related that one could postulate reasonably, that it was done by the accused in discharge of his official duty or in purported
discharge of his official duty.
Contention of the learned Addl. P.P., was that even if it is assumed that there was orderunder Section 144 CrPC prohibiting pillion riding or an
alert for increasing security arrangement in the installations of ONGC, the appellant being official of CISF, his duty was confined to the ONGC
installations and the surrounding thereof. The petitioner was not entrusted with the duty of maintaining general law and order and as such, it was not
within the official duty of the petitioner, being a CISF officer to regulate the movement on the public road, which was not within the area of ONGC
installations.
Learned Sessions Judge also observed in the impugned order, that CISF were directedto take measures to protect the sensitive installations of the
ONGC and to secure the area around 500 meters radius outside the installations and colonies. It was further observed by the learned Sessions Judge,
that materials available on record, more particularly, sketch map and other documents failed to show that the place of occurrence was within 500
meter radius of the ONGC installations. Therefore, the learned Sessions Judge held that the duty of the CISF officials was limited to protect ONGC
installation in its sites and within the 500 meters radius of such installation. The observation of the learned Sessions Judge was that since the materials
could not establish that the place of occurrence was within the area, where the petitioner was to discharge his official duty, he was not entitled to
protection under Section 197 CrPC, as the petitioner could not be treated at par with the public servant entrusted with the duty of maintaining general
law and order.
It is trite that all the acts done by a public servant are not protected. The immunityfrom prosecuting without sanction extends only to the act done
in discharge of official duty or in purported discharge of official duty. Whether the act in a particular case has any nexus with the official duty, has to
be considered on its own fact situation. Evidently, the petitioner being an official of the CISF, his official duty was to protect the installations of the
ONGC, within a radius of 500 meters of the installations. The submission of learned Addl. P.P., that the ambit of official duty of the petitioner being
well defined and the maintenance of general law and order not being within the official duty of the petitioner, he could not be placed on the same
footing with the public servant or security personnel entrusted with the general law and order duty, appears to be preponderous in view of the facts
and circumstances of the case in hand. Therefore, having regard to the nature of official duty of the petitioner, who was not entrusted with the
maintenance of general law and order duty and the circumstances under which the death of he victims was caused, the place of occurrence certainly
a vital factor to be considered in order to ascertain whether the act complained of against the petitioner really had any nexus with his official duty. As
per observation of the learned Sessions Judge, materials, so far available on record were not sufficient to show that the act complained of had any
relation with his official duty. This being the position, in my considered view, it may not possible at this stage to decide the questions, whether the
petitioner will be protection under Section 197 CrPC or not, without giving him proper opportunity to adduce evidence in order to establish that the act
done by him was in discharge of his official duty or purported discharge of official duty. It is no doubt true, that by legislative mandate engrafted in
Section 197 CrPC, a prohibition is imposed by the statute from taking cognizance, and therefore, usually the question, whether a public servant is
entitled to the protection provided under Section 197(1) CrPC or not, as far as practicable, should be decided at the earliest. But, if the materials
available on record is not sufficient or if there is any doubt whether the act complained of had any nexus with the official duty, necessitating further
inquiry, the matter may be required to left to be decided at a later stage, for giving opportunity to the public servant to establish that the act complained
of really related to his official duty. Reference may be made to the decision of the Apex Court in P.K. Pradhan Vs. State of Sikkim reported in (2001)
6 SCC 704, where the Apex Court observed as under:
“It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after
cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may
not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official
duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was
reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In
such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the
trial.â€
This view was reiterated by the Apex Court in Raj Kishore Ray Vs. Kamaleswar Pandey reported in AIR 2002 (SC 2861.
Having considered the facts and circumstances of the present case and also the ratiolaid down by the Apex Court in P.K. Pradhan’s case
(supra), I am of the considered opinion, that it may not be proper at this stage to decide whether the petitioner will be entitled to protection under
Section 197(1) CrPC, without giving him opportunity to establish the fact that the act, for which, he has been prosecuted was done in discharge of his
official duty or purported discharge of official duty. Being the above view, this revision petition is disposed of keeping the question of immunity from
prosecuting without sanction to be decided at the time of final hearing.
The criminal revision petition is disposed of accordingly.
Send down the LCR.