Sankaran Moitra Vs. Sadhna Das & Anr – Stay on Arrest / CrPc 197

Supreme Court of India
CASE NO.:Appeal (crl.) 330 of 2006

PETITIONER:Sankaran Moitra

RESPONDENT:Sadhna Das & Anr.

DATE OF JUDGMENT: 24/03/2006

BENCH:Y.K. SABHARWAL & P.K. BALASUBRAMANYAN

JUDGMENT:J U D G M E N T

[ARISING SPECIAL LEAVE PETITION (CRIMINAL) NO. 3347 OF 2003]

P.K. BALASUBRAMANYAN, J.

1. Leave granted.
2. The husband of Respondent No.1 herein, met with his
end on 10.5.2001. On 12.5.2001, Respondent No.1 (hereinafter
referred to as the ‘complainant’) filed a complaint before the Deputy
Commissioner of Police that she had come to know from the members
of the public that while her husband was coming from Beliaghata
Subhas Sarobar he was beaten to death by the police. She stated that
she wanted the post-mortem examination of her innocent husband
Robindranath Das to be held in the presence of a Magistrate and video
recording of the portions of the body of her husband whereon it had
been hit by the police. She demanded stern punishment for the
murderer of her husband. On 28.5.2001, she filed a complaint in the
court of the Chief Judicial Magistrate, Alipore in respect of offences,
punishable according to her under Sections 302, 201, 109 read with
Section 120-B of the Indian Penal Code. In the complaint, she stated
that she was a house-wife and, that her husband Robindranath Das,
was a businessman and a social worker. The antecedents of her
husband were above board and he always acted on the right side of the
law. He was also an active supporter of a particular political party.
On 10.5.2001, the General Election to the Assembly in West Bengal
was held. Her husband was in-charge of giving food packets to the
polling agents of a contesting political party in the booth in C.I.T.
office situated at Subhas Sarobar (Beliaghata Lake). When her
husband did not turn up for lunch, before she left for casting her vote,
she asked her brother to summon her husband for lunch. She was
returning at about 1415 hours after casting her vote. While she was
returning, a Tata Sumo Car came along, being driven at speed and in
that car she found a local resident Anath sitting. When she reached
the vicinity of Vivekananada Club, she found there assembled, a
crowd of local people. When she enquired what had happened, one of
those assembled said that the police had severely assaulted her
husband with lathi in the lake, her husband had became unconscious,
and he had been taken to the doctor in a Tata Sumo Car. On further
enquiry, she was told that her husband was assaulted for no reason by
the police with lathis on his head near the C.I.T. office at the Lake
instigated by the “Bara Babu” of Phoolbagan Thana and Moitra Babu,
previous “Barababu” of Beliaghata Thana at about 1400 hrs.
Subsequently, she came to learn from various persons of the locality
including her brother and her brother-in-law that her husband was
talking near the outer gate of the C.I.T. office area at Subhas Sarobar
with Mr. S.K. Kundu, the ‘Barababu’ of Phoolbagan Police station at
about 1400 hours. At that point of time, the previous officer-in-
charge of Beliaghata Police Station, at the time of the complaint, the
Assistant Commissioner of E.S.D.(Eastern Suburban Division),
Calcutta came there by a police jeep and after talking with the Officer
in charge, Phoolbagan Police Station ordered the beating up of her
husband and accordingly the Officer in charge, Phoolbagan Police
Station instigated the police constables who were accompanying them
to beat her husband and to kill him. Thereupon, a constable, namely,
Sudhir Sikdar assaulted her husband with a lathi and her husband tried
to run away to save his life but the police personnel chased him. Her
husband fell down in the water at the edge of the lake. He requested
the chasing police personnel not to assault him and he told them that
he did not know how to swim. In spite of repeated requests and
begging for his life by her husband, the police constable Sudhir Sikdar
struck successive blows on the head of her husband, and other
different portions of his body with a lathi, as a result of which her
husband became unconscious and fell in the lake. Then the police
personnel left the place. Her brother and brother-in-law, with the help
of others who were eye-witnesses to the incident pulled out her
husband from the water. Thereafter, Anath a local person, with the
help of others removed her husband in an unconscious state to the
nearby Divine Nursing Home where the doctor declared him dead.
The people seeing the atrocities of the police personnel in attacking an
innocent person, became agitated. After a considerable lapse of time,
the body of her husband was removed by the police from the Nursing
Home. According the complainant, the accused persons had no legal
authority to kill her husband, an innocent person, without any
provocation from his end. Hence the accused, in collusion with each
other and having a common intention and in pursuance of a
conspiracy hatched up among themselves, have committed an offence
punishable under Sections 302, 120-B, 109 read with Section 34 of
the Indian Penal Code. They were guilty of violating of the
provisions of law and they were liable for exemplary punishment.
Accused Nos.1 and 2 further abetted the murderous assault on the
victim by accused No.3 by instigating him openly to assault and kill
her husband. The accused persons had taken advantage of their
uniforms and had murdered her husband in a planned manner and
hence were guilty of murder. She feels, from the available
circumstances, that the death of her husband was the result of a deep
rooted conspiracy and to fulfill the vested interest of some interested
persons, which would be revealed at the time of trial. She therefore
prayed that the learned Magistrate be pleased to take cognizance and
issue process against the accused persons and after their appearance
pass necessary orders in accordance with law. She arrayed the
Assistant Commissioner Sankaran Moitra as Accused No.1, S.M.
Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as
Accused No. 2 and Sudhir Sikdar, a police constable attached to
Phoolbagan Police Station, Calcutta as Accused No.3.

3. On 31.5.2001, the Chief Judicial Magistrate, Alipore took
the statements of the complainant and the witnesses produced by her
which included her brother and her brother-in-law and issued process
to the accused. The Chief Judicial Magistrate thus took cognizance of
the offence. On 16.6.2001, the Chief Judicial Magistrate issued a
warrant for the arrest of accused no.1. On 30.6.2001, accused no.1,
the then Assistant Commissioner of Police, moved an application
under Section 210 of the Code of Criminal Procedure. Therein, after
referring to the complaint filed by the complainant, he submitted that
on the self same matter on the written complaint of the complainant
made on 12.5.2001, a case had been registered in the Phoolbagan
Police Station as Case No. 112 of 2001 under Section 304 of the India
Penal Code. The complainant had filed the said complaint addressed
to the Deputy Commissioner of Police, Eastern Division, Calcutta on
11.5.2001 basing upon which the case was registered on 12.5.2001.
Thereafter, one Fax message was sent addressed to the Joint
Commissioner of Police, Calcutta concerning the death of
Robindranath Das, wherein the place of occurrence was mentioned as
Beliaghata Lake and himself and two other persons above mentioned
as the assailants with a prayer that a case be registered under Section
302, 506(II) and 114 of the India Penal Code, with a further prayer
that the Fax message be treated as “First Information Report”. That
Fax was sent by a brother of the deceased. On the self-same incident
under an order of Superiors, a case has been registered on 12.5.2001.
The complaint was filed before the Magistrate on 28.5.2001 by the
informant in the Phoolbagan Police Station case. An investigation by
Police was in progress in relation to the offence which is the subject
matter of the enquiry held by the Chief Judicial Magistrate. In view
of this, he prayed that the proceedings in the enquiry held by the Chief
Judicial Magistrate be stayed and a report on the matter from the
Officer-in-charge of Phoolbagan Police Station be called for. By a
separate application, he also prayed that the application under Section
210 of the Code of Criminal Procedure may be directed to be put up
immediately for orders. The Chief Judicial Magistrate ordered that
the application under Section 210 of the Code of Criminal Procedure
be put up on 10.7.2001.

4. Meanwhile, accused No. 1 had filed an application for anticipatory bail before the High Court of Calcutta. On 20.6.2003, the High Court refused anticipatory bail. Accused No. 1 approached this Court challenging the order refusing anticipatory bail. This Court by order dated 28.7.2003 rejected the Petition for Special Leave to Appeal stating that there was no merit in it.

5. Accused No. 1, meanwhile, filed a Petition under Section
482 of the Code of Criminal Procedure before the High Court seeking
a quashing of the complaint on the ground that the Chief Judicial
Magistrate had no jurisdiction to entertain the complaint since the
condition precedent for entertaining the complaint, a sanction under
Section 197(1) of the Code of Criminal Procedure, had not been
obtained. In that application, after referring to the proceedings before
the Magistrate, he pleaded that he had filed an application on
30.6.2001 under Section 210 of the Code of Criminal Procedure
before the Chief Judicial Magistrate seeking a stay of the proceedings
in view of the pending investigation into the earlier complaint. But
the Magistrate without passing any order thereon had kept it pending
with a direction to serve copy on the other side. He submitted that
the learned Magistrate had erred in issuing a warrant of arrest at the
first instance without complying with the provisions of the Code of
Criminal Procedure. An opportunity ought to have been given to him
to appear before court by issuing summons at the first instance. In a
case instituted on the basis of a complaint in terms of the provisions of
Sections 61 and 62 of the Code of Criminal Procedure and by not
adverting to these provisions, the Magistrate had acted contrary to
law. He submitted that the incident was not as described by the
complainant. He then stated as follows:

“It is stated that on 10.5.2001 at about 1410 hrs on
getting an information of some disturbance at the Polling
Station at C.I.T. Office. Subhas Sarobar, the Petitioner
No.2 along with Police Force reached the spot and found
violence inside and around the polling premises between
the supporters of C.P.I. (M) and T.M.G. On reaching
there, they tried to separate both the groups from each
other to prevent serious cognizable offence as the mob
ware in agitated condition over the issue of proxy voting,
both Jamming etc. and there was every likelihood of a
serious rioting. The purpose of the Police Personnel’s
being present at the spot was to control the mob free and
fair election. In the meantime the petitioner also arrived
at the spot and the agitated mob started throwing brick
bats and bomb indiscriminately aiming towards the
Police force. The Police stepped into action and chased
the unruly mob when a group dispersed towards two
opposite directions.

It is therefore learnt that one/two persons while retreating
at random jumped in Subhas Sarobar Lake and as result
of which they might sustain injuries on their persons and
out of aforesaid persons the victim Robindranath Das
Topi was one of them.

That on the basis of the aforesaid incident a case was
started by the Police Sumo to being Phoolbagan Police
Station Case No. 111 dated 10.5.2001 against 20/30
persons including Robindranath Das under Section
148/149/336 of the India Penal Code and Section 3 and 5
of Explosive Substance Act.

That the Petitioner submits that initially the opposite
Party No.1 lodged an information against some unknown
Police Personnel as stated above but subsequently at the
instance of some designing and interested persons
implicated the Petitioner falsely in the present complaint
case by introducing false, concocted and after thought
story which was filed before the learned Court below 18
days after the alleged incident.

That the petitioner states that the learned Magistrate erred
in taking cognizance on the basis of the aforesaid
complaint in absence of Sanction for prosecution under
Section 197 of the Code of Criminal Procedure as the
petitioner being the Public servant being appointed by the
Government of West Bengal and not removable from his
office save by all with the sanction of the Government
and for any purported act in discharge of his official duty
cognizance without previous sanction is bad in the eye of
law and liable to be set aside for the ends of justice.

That the petitioner submits that the learned Magistrate
totally overlooked the provisions of Section 197 of the
Code of Criminal Procedure i.e. no Court shall take
cognizance of any offence alleged to have been made by
a Public Servant in discharge of his official duty without
the previous sanction from the Government and as such
the order taking cognizance in absence of sanction
mandatory is unsustainable in law as also all other
consequential orders are also unsustainable in law.”

6. The High Court by order dated 11.7.2003 dismissed the
application. It overruled the contention of the accused based on
Section 197 of the Code of Criminal Procedure thus:
“In its considered view Section 197 Cr.P.C. has got no
manner of application in the present case. Under Section
197 Cr. P.C. sanction is required only if the public
servant was, at the time of commission of offence,
’employed in connection with the affairs of the Union or
of a State’ and he was ‘not removable from his office
save by or with the sanction of the Government.’ The bar
under Section 197 Cr.P.C. cannot be raised by a public
servant if he is removable by some authority without the
sanction of the Government.

Committing an offence can never be a part of an official
duty. Where there is no necessary connection between
the act and the performance of the duties of a public
servant, section 197 Cr.P.C. will not be attracted.
Beating a person to death by a police officer cannot be
regarded as having been committed by a public servant
within the scope of his official duties.”

After referring to the some of the decisions cited, the Court further
stated:

“Committing of an offence of murder can never be a part
of an official duty. Where there is no necessary
connection between the act and the performance of the
duties of a public servant, Section 197 of the Code will
not be attracted. Merciless beating by a police officer
causing death of a person can never be said to be an act
in discharge of his official duty.”

The Court stated that since from the statement of the doctor who
conducted the post-mortem examination it appeared that the victim
had suffered as many as six serious injuries and in the opinion of the
doctor, the death was due to the injuries to the head inflicted on the
deceased, it was justified in the view it had taken. The learned Judge
wound up by stating that it was not a fit case for interference by the
High Court and if the Court interferes with the proceedings on any of
the grounds urged by the accused, people will lose their confidence in
the administration of justice. The High Court directed the Magistrate
to proceed with the matter with utmost expedition and in accordance
with law.

7. Accused No.1 challenged this order before this Court by
way of this Petition for Special Leave to Appeal. In the Petition for
Special Leave, Accused No. 1, the appellant, also referred to the
warrant of arrest pending against him and prayed for a stay of further
proceedings. On 22.8.2003, this Court while issuing notice also
stayed further proceedings before the Chief Judicial Magistrate,
pending further orders. It appears that, as of now, neither accused
No.1 has been arrested nor the investigation completed. Learned
counsel appearing on behalf of the State of West Bengal could only
say that the investigation has not been completed. Learned counsel
for the complaint, on the other hand, submitted that the attitude
adopted was one of helping the accused since they were police
officers. What is relevant for our purpose is to notice that
investigations into the two crimes registered, namely, Case No. 111
under Sections 148, 149, 336 IPC read with Sections 3 and 5 of
Explosive Substances Act and Case No. 112, registered on the
complaint made by the complainant herein on 11.5.2001, have not
been completed.

8. It is true that at the time the complaint was made before
the Chief Judicial Magistrate by the complainant on 28.5.2001, there
would have been no material before him about the investigation
pending on the two cases registered in the Phoolbagan Police Station
as Case Nos. 111 and 112. The Magistrate took cognizance of the
complaint filed before him after recording the statements of witnesses
on 31.5.2001 and issued process and also issued warrant for arrest of
the appellant on 16.6.2001. Therefore, at that stage, it is possible, as
contended by the learned counsel for the complainant, that there was
no occasion for the Chief Judicial Magistrate to consider the
applicability of Section 197 of the Code of Criminal Procedure. The
occasion had not arisen. In this context, learned counsel for the
complainant submitted that the contention sought to be raised by the
appellant based on Section 197 of the Code of Criminal Procedure
need not be decided at this stage and it may be open to the appellant to
raise that objection after he has appeared and while raising his
defenses. Learned counsel relied on the observations of the
Varadachariar, J. in the decision in Dr. Hori Ram Singh Vs.
Emperor [1939 FCR 159]. He relied on the passage:
“As the consent of the Governor, provided for in that
Section, is a condition precedent to the institution of
proceedings against a public servant, the necessity for
such consent cannot be made to depend upon the case
which the accused or the defendant may put forward after
the proceedings had been instituted, but must be
determined with reference to the nature of the allegations
made against the public servant, in the suit or criminal
proceeding. If these allegations cannot be held to relate
to “any act done or purporting to be done in the execution
of his duty” by the defendant or the accused “as a servant
of the Crown,” the consent of the authorities would,
prima facie, not be necessary for the institution of the
proceedings. If, in the course of the trial, all that could
be proved should be found to relate only to what he did
or purported to do “in the execution of his duty,” the
proceedings would fail on the merits, unless the Court
was satisfied that the acts complained of were not done in
good faith: S.270(2). Even otherwise, the proceedings
would fail for want of the consent of the Governor, if the
evidence established only official acts. As the Appellate
Court has not pronounced any opinion on the evidence,
we are not in a position to say whether on the facts
proved, the proceedings could be held to fail on either of
the above grounds”

Learned counsel further relied on the decision in H.H. B. Gill and
another Vs. The King, (75 Indian Appeals 41) in an appeal from the
decision in 1947 F.C. 9 to point out that there was no difference
between Section 270 of the Government of India Act dealt with by
Varadachariar, J. and Section 197 (1) of the Code. He also pointed
out that the Privy Council had approved the view expressed by
Varadachariar, J. in Dr. Hori Ram Singh Vs. Emperor (supra). Lord
Simonds speaking for the Privy Council stated:

“In the consideration of S.197 much assistance is to be
derived from the judgment of the Federal Court in 1939
F.C.R. 159, and in particular from the careful analysis of
previous authorities which is to be found in the opinion
of Varadachariar J. Their Lordships, while admitting the
cogency of the argument that in the circumstances
prevailing in India a large measure of protection from
harassing proceedings may be necessary for public
officials cannot accede to the view that the relevant
words have the scope that has in some cases been given
to them. A public servant can only be said to act or to
purport to act in the discharge of his official duty, if his
act is such as to lie within the scope of his official duty.
Thus a Judge neither acts nor purports to act as a Judge
in receiving a bribe, though the judgment which he
delivers may be such an act: nor does a Government
medical officer act or purport to act as a public servant in
picking the pocket of a patient whom he is examining,
though the examination itself may be such an act. 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.”

9. We find that even if we were accept the submission of
learned counsel for the complainant that the stage is not reached for
considering whether sanction under Section 197(1) of the Code of
Criminal Procedure is required in the present case or not, it would
only be postponing the consideration of that question. As we have
noticed earlier, in his application filed before the Chief Judicial
Magistrate invoking Section 210 of the Code of Criminal Procedure
and praying for a stay of further proceedings, the appellant, has
pleaded that the act was done by him in performance of his duty and
in the application filed under Section 482 of the Code of Criminal
Procedure before the High Court in addition to reiterating that the
alleged offence was committed by him in the course of performance
of his duty, he had also invoked Section 197(1) of the Code of
Criminal Procedure and had pleaded that the proceedings cannot go
on and would be without jurisdiction for want of sanction under
Section 197(1) of the Code of Criminal Procedure. Of course, the
High Court has taken the view that the complaint would not attract
Section 197(1) of the Code and that was the reason for rejecting the
prayer of the appellant to quash the proceedings as being without
jurisdiction for want of sanction. Learned counsel for the complainant
has made a submission that the whole investigation was being delayed
and the whole process was being delayed in view of the fact that the
accused involved were police personnel and the State was more
interested in protecting them than in having justice done. When we
take note of this submission, postponing a decision on the
applicability or otherwise of Section 197(1) of the Code can only lead
to the proceedings being dragged on in the trial Court and a decision
by this Court, here and now, would be more appropriate in the
circumstances of the case especially when the accused involved are
police personnel and the nature of the complaint made is kept in mind.

10. We may first try and understand the scope of Section 197
and the object of it. This Court in Shreekantiah Ramayya
Munipalli Vs. The State of Bombay [1955 (1) SCR 1177) explained
the scope of Section 197 thus:

“Now it is obvious that if Section 197 of the Code of
Criminal Procedure 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. The
section has content and its language must be given
meaning. What it says is —-

“when any public servant . is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty”

We have therefore first to concentrate on the word
“offence”.

Now an offence seldom consists of a single act. It is
usually composed of several elements and, as a rule, a
whole series of acts must be proved before it can be
established. In the present case, the elements alleged
against the second accused are, first, that there was an
“entrustment” and/or “dominion”; second, that the
entrustment and/or dominion was “in his capacity as a
public servant”; third, that there was a “disposal”; and
fourth, that the disposal was “dishonest”. Now it is
evident that the entrustment and/or dominion here were
in an official capacity, and it is equally evident that there
could in this case be no disposal, lawful or otherwise,
save by an act done or purporting to be done in an
official capacity. Therefore, the act complained of,
namely the disposal, could not have been done in any
other way. If it was innocent, it was an official act; if
dishonest, it was the dishonest doing of an official act,
but in either event the act was official because the second
accused could not dispose of the goods save by the doing
of an official act, namely officially permitting their
disposal; and that he did. He actually permitted their
release and purported to do it in an official capacity, and
apart from the fact that he did not pretend to act
privately, there was no other way in which he could have
done it. Therefore, whatever the intention or motive
behind the act may have been, the physical part of it
remained unaltered, so if it was official in the one case it
was equally official in the other, and the only difference
would lie in the intention with which it was done: in the
one event, it would be done in the discharge of an official
duty and in the other, in the purported discharge of it.”

This Court therefore held in that case that Section 197 of the Code of
Criminal Procedure applied and sanction was necessary and since
there was none, the trial was vitiated from the start.

11. Again in Amrik Singh Vs. The State of PEPSU [1955
(1) SCR 1302] this Court after referring to the decisions of the Federal
Court and the Privy Council referred to earlier and some other
decisions summed up the position thus:
“The result of the authorities may thus be summed up: It
is not every offence committed by a public servant that
requires sanction for prosecution under section 197(1) of
the Code of Criminal Procedure; nor even every act done
by him while he is actually engaged in the performance
of his official duties; but if the act complained of is
directly concerned with his official duties so that, if
questioned, it could be claimed to have been done by
virtue of the office, then sanction would be necessary;
and that would be so, irrespective of whether it was, in
fact, a proper discharge of his duties, because that would
really be a matter of defence on the merits, which would
have to be investigated at the trial, and could not arise at
the stage of the grant of sanction, which must precede the
institution of the prosecution.”

After noticing the facts of that case, their Lordships stated:
“In our judgment, even when the charge is one of
misappropriation by a public servant, whether sanction is
required under Section 197(1) will depend upon the facts
of each case. If the acts complained of are so integrally
connected with the duties attaching to the office as to be
inseparable from them, then sanction under Section
197(1) would be necessary; but if there was no necessary
connection between them and the performance of those
duties, the official status furnishing only the occasion or
opportunity for the acts, then no sanction would be
required.”

Their Lordship then quoted with approval the observations in the
decision in Shreekantiah Ramayya Munipalli Vs. The State of
Bombay (supra).

12. A Constitution Bench of this Court had occasion to
consider the scope of Section 197 of the Code of Criminal Procedure
in Matajog Dobey Vs. H.C. Bhari [1955 (2) SCR 925], after holding
that Section 197 of the Code of Criminal Procedure was not violative
of the fundamental rights conferred on a citizen under Article 14 of
the Constitution of India, this Court observed:

“Public servants have to be protected from harassment in
the discharge of official duties while ordinary citizens not
so engaged do not require this safeguard. It was argued
that Section 197, Criminal Procedure Code vested an
absolutely arbitrary power in the government to grant or
withhold sanction at their sweet will and pleasure, and
the legislature did not lay down or even indicate any
guiding principles to control the exercise of the
discretion. There is no question of any discrimination
between one person and another in the matter of taking
proceedings against a public servant for an act done or
purporting to be done by the public servant in the
discharge of his duties. No one can take such
proceedings without such sanction.”

On the test to be adopted for finding out whether Section 197 of the
Code was attracted or not and to ascertain the scope and meaning of
that Section, their Lordships stated:
“Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning of
the relevant words occurring in Section 197 of the Code;
“any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his
official duty”. But the difference is only in language and
not in substance. The offence alleged to have been
committed must have something to do, or must be related
in some manner, with the discharge of official duty. No
question of sanction can arise under Section 197, unless
the act complained of is an offence; the only point to
determine is whether it was committed in the discharge
of official duty. There must be a reasonable connection
between the act and the official duty. It does not matter
even if the act exceeds what is strictly necessary for the
discharge of the duty, as this question will arise only at a
later stage when the trial proceeds on the merit. What we
must find out is whether the act and the official duty are
so inter-related that one can postulate reasonably that it
was done by the accused in the performance of the
official duty, though possibly in excess of the needs and
requirements of the situation.”

After referring to the earlier decisions of the Federal Court, Privy
Council and that of this Court, their Lordships summed up the
position thus :

“The result of the foregoing discussion is this: 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.”

Their Lordships then proceeded to consider the stage at which the
need for sanction under Section 197 (1) of the Code had to be
considered. Their Lordships stated:

“The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting
the offence was done or purported to be done in the
discharge of official duty; but facts subsequently coming
to light on a police or judicial inquiry or even in the
course of the prosecution evidence at the trial, may
establish the necessity for sanction. Whether sanction is
necessary or not may have to be determined from stage to
stage. The necessity may reveal itself in the course of
the progress of the case.”

13. In the light of the above decision it does not appear to be
necessary to multiply authorities. But we may notice some of them
briefly. In Pukhraj Vs. State of Rajasthan & Another [(1973) 2
SCC 701], this Court held:
“While the law is well settled the difficulty really arises
in applying the law to the fact to any particular case. The
intention behind the section is to prevent public servants
from being unnecessarily harassed. The section is not
restricted only to cases of anything purported to be done
in good faith, for a person who ostensibly acts in
execution of his duty still purports so to act, although he
may have dishonest intention. Nor is it confined to cases
where the act, which constitutes the offence, is the
official duty of the official concerned. Such an
interpretation would involve a contradiction in terms,
because an offence can never be an official duty. The
offence should have been committed when an act is done
in the execution of duty or when an act purports to be
done in execution of duty. The test appears to be not that
the offence is capable of being committed only by a
public servant and not by anyone else, but that it is
committed by a public servant in an act done or
purporting to be done in the execution of duty. The
section cannot be confined to only such acts as are done
by a public servant directly in pursuance of his public
office, though in excess of the duty or under a mistaken
belief as to the existence of such duty. Nor need the act
constituting the offence be so inseparably connected with
the official duty as to form part and parcel of the same
transaction. What is necessary is that the offence must be
in respect of and act done or purported to be done in the
discharge of an official duty. It does not apply to acts
done purely in a private capacity by a public servant.
Expressions such as the “capacity in which the act is
performed”, “cloak of office” and “professed exercise of
the office” may not always be appropriate to described or
delimit the scope of section. An act merely because it
was done negligently does not cease to be one done or
purporting to be done in execution of a duty.”

In B. Saha & Ors. Vs. M.S. Kochar [(1979) 4 SCC 177], this Court
held:
“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.”

In Bakhshish Singh Brar Vs. Gurmej Kaur & Anr. [(1987) 4 SCC
663], this Court stated that it was necessary to protect the public
servants in the discharge of their duties. They must be made immune
from being harassed in criminal proceedings and prosecution, and that
is the rationale behind Section 196 and Section 197 of the Code. But
it is equally important to emphasize that rights of the citizens should
be protected and no excesses should be permitted. Protection of
public officers and public servants functioning in discharge of their
official duties and protection of private citizens have to be balanced in
each case by finding out as to what extent and how far is a public
servant working in discharge of his duties or purported discharge of
his duties, and whether the public servant has exceeded his limit. In
the recent decision in Rakesh Kumar Mishra Vs. State of Bihar &
Others [(2006) 1 SCC 557], this Court after referring to the earlier
decisions on the question stated:
“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 the discharge of his
duty then it must be given liberal and wide construction
so far its official nature is concerned.”

14. Learned counsel for the complainant argued that want of
sanction under Section 197(1) of the Code did not affect the
jurisdiction of the Court to proceed, but it was only one of the
defences available to the accused and the accused can raise the
defence at the appropriate time. We are not in a position to accept this
submission. Section 197(1), its opening words and the object sought
to be achieved by it, and the decisions of this Court earlier cited,
clearly indicate that a prosecution hit by that provision cannot be
launched without the sanction contemplated. It is a condition
precedent, as it were , for a successful prosecution of a public servant
when the provision is attracted, though the question may arise
necessarily not at the inception, but even at a subsequent stage. We
cannot therefore accede to the request to postpone a decision on this
question.

15. Coming to the facts of this case, the question is whether
the appellant was acting in his official capacity while the alleged
offence was committed or was performing a duty in his capacity as a
police officer which led to the offence complained of. That it was the
day of election to the State Assembly, that the appellant was in
uniform; that the appellant traveled in an official jeep to the spot, near
a polling booth and the offence was committed while he was on the
spot, may not by themselves attract Section 197 (1) of the Code. But,
as can be seen from the facts disclosed in the counter affidavit filed on
behalf of the State based on the entries in the General Diary of the
Phoolbagan Police Station, it emerges that on the election day
information was received in the Police Station at 1400 hours of some
disturbance at a polling booth, that it took a violent turn and clashes
between the supporters of two political parties was imminent. It was
then that the appellant reached the site of the incident in his official
vehicle. It is seen that a case had been registered on the basis of the
incidents that took place and a report in this behalf had also been sent
to the superiors by the Station House Officer. It is also seen and it is
supported by the witnesses examined by the Chief Judicial Magistrate
while taking cognizance of the offence that the appellant on reaching
the spot had a discussion with the Officer-in-charge who was
stationed at the spot and thereafter a lathi charge took place or there
was an attack on the husband of the complainant and he met with his
death. Obviously, it was part of the duty of the appellant to prevent
any breach of law and maintain order on the polling day or to prevent
the blocking of voters or prevent what has come to be known as booth
capturing. It therefore emerges that the act was done while the
officer was performing his duty. That the incident took place near a
polling booth on an election day has also to be taken note of. The
complainant no doubt has a case that it was a case of the deceased
being picked and chosen for illtreatment and he was beaten up by a
police constable at the instance of the appellant and the Officer-in-
charge of the Phoolbagan Police Station and at their behest. If that
complaint were true it will certainly make the action, an offence,
leading to further consequences. It is also true as pointed out by the
learned counsel for the complainant that the entries in the General
Diary remain to be proved. But still, it would be an offence
committed during the course of the performance of his duty by the
appellant and it would attract Section 197 of the Code. Going by the
principle, stated by the Constitution Bench in Matajog Dobey
(supra), it has to be held that a sanction under Section 197 (1) of the
Code of Criminal Procedure is necessary in this case.

16. We may in this context notice the decision in Rizwan
Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors. [(2001) 5
SCC 7). This Court was dealing with officers who were brought
within the protective umbrella of Section 197 of the Code by a
notification issued under Section 197(3) thereof. Cognizance had
been taken of an offence under Sections 220 and 342 of the Indian
Penal Code and Sections 147 and 148 of the Bombay Police Act. The
gravamen of the charge was the failure on the part of the accused
police officers to produce the complainants before a magistrate within
24 hrs. of their arrest for alleged offences under the Indian Penal
Code. The police officers having claimed the protection of Section
197(1) of the Code, this Court after referring to the earlier decisions
held”
“The real test to be applied to attract the
applicability of Section 197(3) is whether the act
which is done by a public officer and is alleged to
constitute an offence was done by the public
officer whilst acting in his official capacity though
what he did was neither his duty nor his right to do
as such public officer. The act complained of may
be in exercise of the duty or in the absence of such
duty or in dereliction of the duty, if the act
complained of is done while acting as a public
officer and in the course of the same transaction in
which the official duty was performed or purported
to be performed, the public officer would be
protected.”

Going by the above test it has to be held that
Section 197(1) of the Code is attracted to this case.

17. The High Court has stated that killing of a person by use
of excessive force could never be performance of duty. It may be
correct so far as it goes. But the question is whether that act was done
in the performance of duty or in purported performance of duty. If it
was done in performance of duty or purported performance of duty
Section 197(1) of the Code cannot be by-passed by reasoning that
killing a man could never be done in an official capacity and
consequently Section 197(1) of the Code could not be attracted. Such
a reasoning would be against the ratio of the decisions of this Court
referred to earlier. The other reason given by the High Court that if
the High Court were to interfere on the ground of want of sanction,
people will lose faith in the judicial process, cannot also be a ground
to dispense with a statutory requirement or protection. Public trust in
the institution can be maintained by entertaining causes coming within
its jurisdiction, by performing the duties entrusted to it diligently, in
accordance with law and the established procedure and without delay.
Dispensing with of jurisdictional or statutory requirements which may
ultimately affect the adjudication itself, will itself result in people
losing faith in the system. So, the reason in that behalf given by the
High Court cannot be sufficient to enable it to get over the
jurisdictional requirement of a sanction under Section 197(1) of the
Code of Criminal Procedure. We are therefore satisfied that the High
Court was in error in holding that sanction under Section 197(1) was
not needed in this case. We hold that such sanction was necessary and
for want of sanction the prosecution must be quashed at this stage. It
is not for us now to answer the submission of learned counsel for the
complainant that this is an eminently fit case for grant of such
sanction.

18. We thus allow this appeal and setting aside the order of
the High Court quash the complaint only on the ground of want of
sanction under Section 197(1) of the Code of Criminal Procedure.
The observations herein, however, shall not prejudice the rights of the
complainant in any prosecution after the requirements of Section
197(1) of the Code of Criminal Procedure are complied with.

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