Wazir Singh vs State of Haryana and Others

R.P. Nagrath, J.—The prayer in the instant petition is to quash the order dated 24.07.2009 of the Additional Sessions Judge, Rewari setting aside the summoning order passed against respondent No. 5 and also dismissing the revision against refusal to summon respondent Nos. 2 to 4 by the Magistrate. The prayer against respondent No. 5 no more survives as this respondent has admittedly died during pendency of the proceedings about one year ago. The facts emerging from record are that pages No. 89 and 91 of Roznamcha of the Police Station (daily diary report) for the year 2001 were replaced by SHO of the Police Station in connivance with Inspector Bhoop Singh to wrongfully mark the absence of petitioner from duty. These two police officials were accused Nos. 1 and 2 in the complaint. The petitioner at the relevant time was posted as Constable in the said Police Station. After recording preliminary evidence, the SHO and Inspector Bhoop Singh were summoned by the Magistrate to face trial for offences under Sections 166/167/466/467/469/471/474/405/506 and Section 120-B of Indian Penal Code (IPC). The revisions filed by them to challenge the order of summoning also were dismissed on 24.07.2009 by the same common order of Additional Sessions Judge.

Having heard learned counsel for the petitioner, State Counsel and counsel appearing for respondent Nos. 2, 3 and 5, I find no merit in the instant petition for the reasons enumerated hereunder.

The report of absence from duty was sent to respondent No. 3 and respondent No. 2 was appointed the enquiry officer by respondent No. 5 to hold regular enquiry against the petitioner. It is the allegation that respondent No. 2 extended help to Sub Inspector Ran Singh the SHO, without examining the pages of Roznamcha, he rather made recommendation regarding suspension of the petitioner. It is also stated that enquiry officer gave the report that the main accused has no role to play while making report in the Roznamcha at the instance of respondent No. 5 (since deceased). It is also the case of the petitioner that three more enquiries were opened against him for having published news item in the newspapers. This stance of petitioner is sought to be justified on the ground that petitioner being president of the Association of Constables and Head Constables was competent to issue press statements.

I am of the view that the nature of allegations against the respondents clearly relate to official acts or at least the acts purporting to be in performance of the official duties for which sanction of the competent authority is required for prosecuting them. If for the sake of arguments it is contended that the respondents have taken wrong view still the case would fall under the aforesaid mischief requiring sanction to prosecute. The main persons who are stated to have forged Roznamcha by replacing two pages are facing trial on the basis of the summoning order.

The principles on the subject are amply discussed and laid down by Hon''ble Supreme Court in Rakesh Kumar Mishra Vs. The State of Bihar and Others, as under:-

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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 discharged his official duty'', be understood? What does it mean? ''Official'' according to 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 and Others Vs. M.S. Kochar, it was held:

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 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 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 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 protection 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 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. For instance a police officer in discharge of duty may have to use force which may be an offence commits an act in course of service but not in discharge of his duty and without any justification therefor 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, thus:

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 fanciful claim, that he did it in the course of the performance of his duty.

If on facts, therefore, it is prima facie found that the act or omission for which the accused was changed had reasonable connection with discharge of his duty then it must be held to be official to which application of Section 197 of the Code cannot be disputed.

The precise allegation against respondent No. 2 is that he conducted an enquiry against the petitioner without applying his mind as none of the witnesses examined in the enquiry gave any evidence against the petitioner. Otherwise the observation made by respondent No. 2 in last paragraph of his enquiry report was that a separate enquiry is required to find if the print of pages of Roznamcha are different than the other pages. It is also stated that respondent No. 3 who was posted as DSP should have examined those pages of Roznamcha when it came to his knowledge regarding replacement of pages in the original Roznamcha.

It is, thus, apparent that the respondents were not directly involved in the replacement of pages of Roznamcha maintained in the Police Station. Therefore, to hold proceedings in the departmental action would be an act done in the performance of official duties entitling them to protection of Section 197 Cr.P.C. In view of the clear principles laid down by the Hon''ble Supreme Court, there is no illegality or infirmity in the order of Magistrate and also in the judgment passed in revision, requiring interference by this Court. The instant petition is, thus, devoid of merit and dismissed.