{"id":202,"date":"2009-03-17T14:14:14","date_gmt":"2009-03-17T08:44:14","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=202"},"modified":"2009-03-18T14:14:36","modified_gmt":"2009-03-18T08:44:36","slug":"330-2006","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/330-2006\/","title":{"rendered":"Sankaran Moitra Vs. Sadhna Das & Anr – Stay on Arrest \/ CrPc 197"},"content":{"rendered":"

Supreme Court of India<\/strong>
\nCASE NO.:Appeal (crl.) 330 of 2006<\/p>\n

PETITIONER:Sankaran Moitra<\/p>\n

RESPONDENT:Sadhna Das & Anr.<\/p>\n

DATE OF JUDGMENT: 24\/03\/2006<\/p>\n

BENCH:Y.K. SABHARWAL & P.K. BALASUBRAMANYAN<\/p>\n

JUDGMENT:J U D G M E N T<\/p>\n

[ARISING SPECIAL LEAVE PETITION (CRIMINAL) NO. 3347 OF 2003]<\/p>\n

P.K. BALASUBRAMANYAN, J.<\/p>\n

1. Leave granted.
\n2. The husband of Respondent No.1 herein, met with his
\nend on 10.5.2001. On 12.5.2001, Respondent No.1 (hereinafter
\nreferred to as the ‘complainant’) filed a complaint before the Deputy
\nCommissioner of Police that she had come to know from the members
\nof the public that while her husband was coming from Beliaghata
\nSubhas Sarobar he was beaten to death by the police. She stated that
\nshe wanted the post-mortem examination of her innocent husband
\nRobindranath Das to be held in the presence of a Magistrate and video
\nrecording of the portions of the body of her husband whereon it had
\nbeen hit by the police. She demanded stern punishment for the
\nmurderer of her husband. On 28.5.2001, she filed a complaint in the
\ncourt of the Chief Judicial Magistrate, Alipore in respect of offences,
\npunishable according to her under Sections 302, 201, 109 read with
\nSection 120-B of the Indian Penal Code. In the complaint, she stated
\nthat she was a house-wife and, that her husband Robindranath Das,
\nwas a businessman and a social worker. The antecedents of her
\nhusband were above board and he always acted on the right side of the
\nlaw. He was also an active supporter of a particular political party.
\nOn 10.5.2001, the General Election to the Assembly in West Bengal
\nwas held. Her husband was in-charge of giving food packets to the
\npolling agents of a contesting political party in the booth in C.I.T.
\noffice situated at Subhas Sarobar (Beliaghata Lake). When her
\nhusband did not turn up for lunch, before she left for casting her vote,
\nshe asked her brother to summon her husband for lunch. She was
\nreturning at about 1415 hours after casting her vote. While she was
\nreturning, a Tata Sumo Car came along, being driven at speed and in
\nthat car she found a local resident Anath sitting. When she reached
\nthe vicinity of Vivekananada Club, she found there assembled, a
\ncrowd of local people. When she enquired what had happened, one of
\nthose assembled said that the police had severely assaulted her
\nhusband with lathi in the lake, her husband had became unconscious,
\nand he had been taken to the doctor in a Tata Sumo Car. On further
\nenquiry, she was told that her husband was assaulted for no reason by
\nthe police with lathis on his head near the C.I.T. office at the Lake
\ninstigated by the “Bara Babu” of Phoolbagan Thana and Moitra Babu,
\nprevious “Barababu” of Beliaghata Thana at about 1400 hrs.
\nSubsequently, she came to learn from various persons of the locality
\nincluding her brother and her brother-in-law that her husband was
\ntalking near the outer gate of the C.I.T. office area at Subhas Sarobar
\nwith Mr. S.K. Kundu, the ‘Barababu’ of Phoolbagan Police station at
\nabout 1400 hours. At that point of time, the previous officer-in-
\ncharge of Beliaghata Police Station, at the time of the complaint, the
\nAssistant Commissioner of E.S.D.(Eastern Suburban Division),
\nCalcutta came there by a police jeep and after talking with the Officer
\nin charge, Phoolbagan Police Station ordered the beating up of her
\nhusband and accordingly the Officer in charge, Phoolbagan Police
\nStation instigated the police constables who were accompanying them
\nto beat her husband and to kill him. Thereupon, a constable, namely,
\nSudhir Sikdar assaulted her husband with a lathi and her husband tried
\nto run away to save his life but the police personnel chased him. Her
\nhusband fell down in the water at the edge of the lake. He requested
\nthe chasing police personnel not to assault him and he told them that
\nhe did not know how to swim. In spite of repeated requests and
\nbegging for his life by her husband, the police constable Sudhir Sikdar
\nstruck successive blows on the head of her husband, and other
\ndifferent portions of his body with a lathi, as a result of which her
\nhusband became unconscious and fell in the lake. Then the police
\npersonnel left the place. Her brother and brother-in-law, with the help
\nof others who were eye-witnesses to the incident pulled out her
\nhusband from the water. Thereafter, Anath a local person, with the
\nhelp of others removed her husband in an unconscious state to the
\nnearby Divine Nursing Home where the doctor declared him dead.
\nThe people seeing the atrocities of the police personnel in attacking an
\ninnocent person, became agitated. After a considerable lapse of time,
\nthe body of her husband was removed by the police from the Nursing
\nHome. According the complainant, the accused persons had no legal
\nauthority to kill her husband, an innocent person, without any
\nprovocation from his end. Hence the accused, in collusion with each
\nother and having a common intention and in pursuance of a
\nconspiracy hatched up among themselves, have committed an offence
\npunishable under Sections 302, 120-B, 109 read with Section 34 of
\nthe Indian Penal Code. They were guilty of violating of the
\nprovisions of law and they were liable for exemplary punishment.
\nAccused Nos.1 and 2 further abetted the murderous assault on the
\nvictim by accused No.3 by instigating him openly to assault and kill
\nher husband. The accused persons had taken advantage of their
\nuniforms and had murdered her husband in a planned manner and
\nhence were guilty of murder. She feels, from the available
\ncircumstances, that the death of her husband was the result of a deep
\nrooted conspiracy and to fulfill the vested interest of some interested
\npersons, which would be revealed at the time of trial. She therefore
\nprayed that the learned Magistrate be pleased to take cognizance and
\nissue process against the accused persons and after their appearance
\npass necessary orders in accordance with law. She arrayed the
\nAssistant Commissioner Sankaran Moitra as Accused No.1, S.M.
\nKundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as
\nAccused No. 2 and Sudhir Sikdar, a police constable attached to
\nPhoolbagan Police Station, Calcutta as Accused No.3.<\/p>\n

3. On 31.5.2001, the Chief Judicial Magistrate, Alipore took
\nthe statements of the complainant and the witnesses produced by her
\nwhich included her brother and her brother-in-law and issued process
\nto the accused. The Chief Judicial Magistrate thus took cognizance of
\nthe offence. On 16.6.2001, the Chief Judicial Magistrate issued a
\nwarrant for the arrest of accused no.1. On 30.6.2001, accused no.1,
\nthe then Assistant Commissioner of Police, moved an application
\nunder Section 210 of the Code of Criminal Procedure. Therein, after
\nreferring to the complaint filed by the complainant, he submitted that
\non the self same matter on the written complaint of the complainant
\nmade on 12.5.2001, a case had been registered in the Phoolbagan
\nPolice Station as Case No. 112 of 2001 under Section 304 of the India
\nPenal Code. The complainant had filed the said complaint addressed
\nto the Deputy Commissioner of Police, Eastern Division, Calcutta on
\n11.5.2001 basing upon which the case was registered on 12.5.2001.
\nThereafter, one Fax message was sent addressed to the Joint
\nCommissioner of Police, Calcutta concerning the death of
\nRobindranath Das, wherein the place of occurrence was mentioned as
\nBeliaghata Lake and himself and two other persons above mentioned
\nas the assailants with a prayer that a case be registered under Section
\n302, 506(II) and 114 of the India Penal Code, with a further prayer
\nthat the Fax message be treated as “First Information Report”. That
\nFax was sent by a brother of the deceased. On the self-same incident
\nunder an order of Superiors, a case has been registered on 12.5.2001.
\nThe complaint was filed before the Magistrate on 28.5.2001 by the
\ninformant in the Phoolbagan Police Station case. An investigation by
\nPolice was in progress in relation to the offence which is the subject
\nmatter of the enquiry held by the Chief Judicial Magistrate. In view
\nof this, he prayed that the proceedings in the enquiry held by the Chief
\nJudicial Magistrate be stayed and a report on the matter from the
\nOfficer-in-charge of Phoolbagan Police Station be called for. By a
\nseparate application, he also prayed that the application under Section
\n210 of the Code of Criminal Procedure may be directed to be put up
\nimmediately for orders. The Chief Judicial Magistrate ordered that
\nthe application under Section 210 of the Code of Criminal Procedure
\nbe put up on 10.7.2001.<\/p>\n

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.<\/p>\n

5. Accused No. 1, meanwhile, filed a Petition under Section
\n482 of the Code of Criminal Procedure before the High Court seeking
\na quashing of the complaint on the ground that the Chief Judicial
\nMagistrate had no jurisdiction to entertain the complaint since the
\ncondition precedent for entertaining the complaint, a sanction under
\nSection 197(1) of the Code of Criminal Procedure, had not been
\nobtained. In that application, after referring to the proceedings before
\nthe Magistrate, he pleaded that he had filed an application on
\n30.6.2001 under Section 210 of the Code of Criminal Procedure
\nbefore the Chief Judicial Magistrate seeking a stay of the proceedings
\nin view of the pending investigation into the earlier complaint. But
\nthe Magistrate without passing any order thereon had kept it pending
\nwith a direction to serve copy on the other side. He submitted that
\nthe learned Magistrate had erred in issuing a warrant of arrest at the
\nfirst instance without complying with the provisions of the Code of
\nCriminal Procedure. An opportunity ought to have been given to him
\nto appear before court by issuing summons at the first instance. In a
\ncase instituted on the basis of a complaint in terms of the provisions of
\nSections 61 and 62 of the Code of Criminal Procedure and by not
\nadverting to these provisions, the Magistrate had acted contrary to
\nlaw. He submitted that the incident was not as described by the
\ncomplainant. He then stated as follows:<\/p>\n

“It is stated that on 10.5.2001 at about 1410 hrs on
\ngetting an information of some disturbance at the Polling
\nStation at C.I.T. Office. Subhas Sarobar, the Petitioner
\nNo.2 along with Police Force reached the spot and found
\nviolence inside and around the polling premises between
\nthe supporters of C.P.I. (M) and T.M.G. On reaching
\nthere, they tried to separate both the groups from each
\nother to prevent serious cognizable offence as the mob
\nware in agitated condition over the issue of proxy voting,
\nboth Jamming etc. and there was every likelihood of a
\nserious rioting. The purpose of the Police Personnel’s
\nbeing present at the spot was to control the mob free and
\nfair election. In the meantime the petitioner also arrived
\nat the spot and the agitated mob started throwing brick
\nbats and bomb indiscriminately aiming towards the
\nPolice force. The Police stepped into action and chased
\nthe unruly mob when a group dispersed towards two
\nopposite directions.<\/p>\n

It is therefore learnt that one\/two persons while retreating
\nat random jumped in Subhas Sarobar Lake and as result
\nof which they might sustain injuries on their persons and
\nout of aforesaid persons the victim Robindranath Das
\nTopi was one of them.<\/p>\n

That on the basis of the aforesaid incident a case was
\nstarted by the Police Sumo to being Phoolbagan Police
\nStation Case No. 111 dated 10.5.2001 against 20\/30
\npersons including Robindranath Das under Section
\n148\/149\/336 of the India Penal Code and Section 3 and 5
\nof Explosive Substance Act.<\/p>\n

That the Petitioner submits that initially the opposite
\nParty No.1 lodged an information against some unknown
\nPolice Personnel as stated above but subsequently at the
\ninstance of some designing and interested persons
\nimplicated the Petitioner falsely in the present complaint
\ncase by introducing false, concocted and after thought
\nstory which was filed before the learned Court below 18
\ndays after the alleged incident.<\/p>\n

That the petitioner states that the learned Magistrate erred
\nin taking cognizance on the basis of the aforesaid
\ncomplaint in absence of Sanction for prosecution under
\nSection 197 of the Code of Criminal Procedure as the
\npetitioner being the Public servant being appointed by the
\nGovernment of West Bengal and not removable from his
\noffice save by all with the sanction of the Government
\nand for any purported act in discharge of his official duty
\ncognizance without previous sanction is bad in the eye of
\nlaw and liable to be set aside for the ends of justice.<\/p>\n

That the petitioner submits that the learned Magistrate
\ntotally overlooked the provisions of Section 197 of the
\nCode of Criminal Procedure i.e. no Court shall take
\ncognizance of any offence alleged to have been made by
\na Public Servant in discharge of his official duty without
\nthe previous sanction from the Government and as such
\nthe order taking cognizance in absence of sanction
\nmandatory is unsustainable in law as also all other
\nconsequential orders are also unsustainable in law.”<\/p>\n

6. The High Court by order dated 11.7.2003 dismissed the
\napplication. It overruled the contention of the accused based on
\nSection 197 of the Code of Criminal Procedure thus:
\n“In its considered view Section 197 Cr.P.C. has got no
\nmanner of application in the present case. Under Section
\n197 Cr. P.C. sanction is required only if the public
\nservant was, at the time of commission of offence,
\n’employed in connection with the affairs of the Union or
\nof a State’ and he was ‘not removable from his office
\nsave by or with the sanction of the Government.’ The bar
\nunder Section 197 Cr.P.C. cannot be raised by a public
\nservant if he is removable by some authority without the
\nsanction of the Government.<\/p>\n

Committing an offence can never be a part of an official
\nduty. Where there is no necessary connection between
\nthe act and the performance of the duties of a public
\nservant, section 197 Cr.P.C. will not be attracted.
\nBeating a person to death by a police officer cannot be
\nregarded as having been committed by a public servant
\nwithin the scope of his official duties.”<\/p>\n

After referring to the some of the decisions cited, the Court further
\nstated:<\/p>\n

“Committing of an offence of murder can never be a part
\nof an official duty. Where there is no necessary
\nconnection between the act and the performance of the
\nduties of a public servant, Section 197 of the Code will
\nnot be attracted. Merciless beating by a police officer
\ncausing death of a person can never be said to be an act
\nin discharge of his official duty.”<\/p>\n

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

7. Accused No.1 challenged this order before this Court by
\nway of this Petition for Special Leave to Appeal. In the Petition for
\nSpecial Leave, Accused No. 1, the appellant, also referred to the
\nwarrant of arrest pending against him and prayed for a stay of further
\nproceedings. On 22.8.2003, this Court while issuing notice also
\nstayed further proceedings before the Chief Judicial Magistrate,
\npending further orders. It appears that, as of now, neither accused
\nNo.1 has been arrested nor the investigation completed. Learned
\ncounsel appearing on behalf of the State of West Bengal could only
\nsay that the investigation has not been completed. Learned counsel
\nfor the complaint, on the other hand, submitted that the attitude
\nadopted was one of helping the accused since they were police
\nofficers. What is relevant for our purpose is to notice that
\ninvestigations into the two crimes registered, namely, Case No. 111
\nunder Sections 148, 149, 336 IPC read with Sections 3 and 5 of
\nExplosive Substances Act and Case No. 112, registered on the
\ncomplaint made by the complainant herein on 11.5.2001, have not
\nbeen completed.<\/p>\n

8. It is true that at the time the complaint was made before
\nthe Chief Judicial Magistrate by the complainant on 28.5.2001, there
\nwould have been no material before him about the investigation
\npending on the two cases registered in the Phoolbagan Police Station
\nas Case Nos. 111 and 112. The Magistrate took cognizance of the
\ncomplaint filed before him after recording the statements of witnesses
\non 31.5.2001 and issued process and also issued warrant for arrest of
\nthe appellant on 16.6.2001. Therefore, at that stage, it is possible, as
\ncontended by the learned counsel for the complainant, that there was
\nno occasion for the Chief Judicial Magistrate to consider the
\napplicability of Section 197 of the Code of Criminal Procedure. The
\noccasion had not arisen. In this context, learned counsel for the
\ncomplainant submitted that the contention sought to be raised by the
\nappellant based on Section 197 of the Code of Criminal Procedure
\nneed not be decided at this stage and it may be open to the appellant to
\nraise that objection after he has appeared and while raising his
\ndefenses. Learned counsel relied on the observations of the
\nVaradachariar, J. in the decision in Dr. Hori Ram Singh Vs.
\nEmperor [1939 FCR 159]. He relied on the passage:
\n“As the consent of the Governor, provided for in that
\nSection, is a condition precedent to the institution of
\nproceedings against a public servant, the necessity for
\nsuch consent cannot be made to depend upon the case
\nwhich the accused or the defendant may put forward after
\nthe proceedings had been instituted, but must be
\ndetermined with reference to the nature of the allegations
\nmade against the public servant, in the suit or criminal
\nproceeding. If these allegations cannot be held to relate
\nto “any act done or purporting to be done in the execution
\nof his duty” by the defendant or the accused “as a servant
\nof the Crown,” the consent of the authorities would,
\nprima facie, not be necessary for the institution of the
\nproceedings. If, in the course of the trial, all that could
\nbe proved should be found to relate only to what he did
\nor purported to do “in the execution of his duty,” the
\nproceedings would fail on the merits, unless the Court
\nwas satisfied that the acts complained of were not done in
\ngood faith: S.270(2). Even otherwise, the proceedings
\nwould fail for want of the consent of the Governor, if the
\nevidence established only official acts. As the Appellate
\nCourt has not pronounced any opinion on the evidence,
\nwe are not in a position to say whether on the facts
\nproved, the proceedings could be held to fail on either of
\nthe above grounds”<\/p>\n

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

“In the consideration of S.197 much assistance is to be
\nderived from the judgment of the Federal Court in 1939
\nF.C.R. 159, and in particular from the careful analysis of
\nprevious authorities which is to be found in the opinion
\nof Varadachariar J. Their Lordships, while admitting the
\ncogency of the argument that in the circumstances
\nprevailing in India a large measure of protection from
\nharassing proceedings may be necessary for public
\nofficials cannot accede to the view that the relevant
\nwords have the scope that has in some cases been given
\nto them. A public servant can only be said to act or to
\npurport to act in the discharge of his official duty, if his
\nact is such as to lie within the scope of his official duty.
\nThus a Judge neither acts nor purports to act as a Judge
\nin receiving a bribe, though the judgment which he
\ndelivers may be such an act: nor does a Government
\nmedical officer act or purport to act as a public servant in
\npicking the pocket of a patient whom he is examining,
\nthough the examination itself may be such an act. The
\ntest may well be whether the public servant, if
\nchallenged, can reasonably claim that, what he does, he
\ndoes in virtue of his office.”<\/p>\n

9. We find that even if we were accept the submission of
\nlearned counsel for the complainant that the stage is not reached for
\nconsidering whether sanction under Section 197(1) of the Code of
\nCriminal Procedure is required in the present case or not, it would
\nonly be postponing the consideration of that question. As we have
\nnoticed earlier, in his application filed before the Chief Judicial
\nMagistrate invoking Section 210 of the Code of Criminal Procedure
\nand praying for a stay of further proceedings, the appellant, has
\npleaded that the act was done by him in performance of his duty and
\nin the application filed under Section 482 of the Code of Criminal
\nProcedure before the High Court in addition to reiterating that the
\nalleged offence was committed by him in the course of performance
\nof his duty, he had also invoked Section 197(1) of the Code of
\nCriminal Procedure and had pleaded that the proceedings cannot go
\non and would be without jurisdiction for want of sanction under
\nSection 197(1) of the Code of Criminal Procedure. Of course, the
\nHigh Court has taken the view that the complaint would not attract
\nSection 197(1) of the Code and that was the reason for rejecting the
\nprayer of the appellant to quash the proceedings as being without
\njurisdiction for want of sanction. Learned counsel for the complainant
\nhas made a submission that the whole investigation was being delayed
\nand the whole process was being delayed in view of the fact that the
\naccused involved were police personnel and the State was more
\ninterested in protecting them than in having justice done. When we
\ntake note of this submission, postponing a decision on the
\napplicability or otherwise of Section 197(1) of the Code can only lead
\nto the proceedings being dragged on in the trial Court and a decision
\nby this Court, here and now, would be more appropriate in the
\ncircumstances of the case especially when the accused involved are
\npolice personnel and the nature of the complaint made is kept in mind.<\/p>\n

10. We may first try and understand the scope of Section 197
\nand the object of it. This Court in Shreekantiah Ramayya
\nMunipalli Vs. The State of Bombay [1955 (1) SCR 1177) explained
\nthe scope of Section 197 thus:<\/p>\n

“Now it is obvious that if Section 197 of the Code of
\nCriminal Procedure is construed too narrowly it can
\nnever be applied, for of course it is no part of an official’s
\nduty to commit an offence and never can be. But it is
\nnot the duty we have to examine so much as the act,
\nbecause an official act can be performed in the discharge
\nof official duty as well as in dereliction of it. The
\nsection has content and its language must be given
\nmeaning. What it says is —-<\/p>\n

“when any public servant \u0005. is accused of any offence
\nalleged to have been committed by him while acting or
\npurporting to act in the discharge of his official duty\u0005”<\/p>\n

We have therefore first to concentrate on the word
\n“offence”.<\/p>\n

Now an offence seldom consists of a single act. It is
\nusually composed of several elements and, as a rule, a
\nwhole series of acts must be proved before it can be
\nestablished. In the present case, the elements alleged
\nagainst the second accused are, first, that there was an
\n“entrustment” and\/or “dominion”; second, that the
\nentrustment and\/or dominion was “in his capacity as a
\npublic servant”; third, that there was a “disposal”; and
\nfourth, that the disposal was “dishonest”. Now it is
\nevident that the entrustment and\/or dominion here were
\nin an official capacity, and it is equally evident that there
\ncould in this case be no disposal, lawful or otherwise,
\nsave by an act done or purporting to be done in an
\nofficial capacity. Therefore, the act complained of,
\nnamely the disposal, could not have been done in any
\nother way. If it was innocent, it was an official act; if
\ndishonest, it was the dishonest doing of an official act,
\nbut in either event the act was official because the second
\naccused could not dispose of the goods save by the doing
\nof an official act, namely officially permitting their
\ndisposal; and that he did. He actually permitted their
\nrelease and purported to do it in an official capacity, and
\napart from the fact that he did not pretend to act
\nprivately, there was no other way in which he could have
\ndone it. Therefore, whatever the intention or motive
\nbehind the act may have been, the physical part of it
\nremained unaltered, so if it was official in the one case it
\nwas equally official in the other, and the only difference
\nwould lie in the intention with which it was done: in the
\none event, it would be done in the discharge of an official
\nduty and in the other, in the purported discharge of it.”<\/p>\n

This Court therefore held in that case that Section 197 of the Code of
\nCriminal Procedure applied and sanction was necessary and since
\nthere was none, the trial was vitiated from the start.<\/p>\n

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

After noticing the facts of that case, their Lordships stated:
\n“In our judgment, even when the charge is one of
\nmisappropriation by a public servant, whether sanction is
\nrequired under Section 197(1) will depend upon the facts
\nof each case. If the acts complained of are so integrally
\nconnected with the duties attaching to the office as to be
\ninseparable from them, then sanction under Section
\n197(1) would be necessary; but if there was no necessary
\nconnection between them and the performance of those
\nduties, the official status furnishing only the occasion or
\nopportunity for the acts, then no sanction would be
\nrequired.”<\/p>\n

Their Lordship then quoted with approval the observations in the
\ndecision in Shreekantiah Ramayya Munipalli Vs. The State of
\nBombay (supra).<\/p>\n

12. A Constitution Bench of this Court had occasion to
\nconsider the scope of Section 197 of the Code of Criminal Procedure
\nin Matajog Dobey Vs. H.C. Bhari [1955 (2) SCR 925], after holding
\nthat Section 197 of the Code of Criminal Procedure was not violative
\nof the fundamental rights conferred on a citizen under Article 14 of
\nthe Constitution of India, this Court observed:<\/p>\n

“Public servants have to be protected from harassment in
\nthe discharge of official duties while ordinary citizens not
\nso engaged do not require this safeguard. It was argued
\nthat Section 197, Criminal Procedure Code vested an
\nabsolutely arbitrary power in the government to grant or
\nwithhold sanction at their sweet will and pleasure, and
\nthe legislature did not lay down or even indicate any
\nguiding principles to control the exercise of the
\ndiscretion. There is no question of any discrimination
\nbetween one person and another in the matter of taking
\nproceedings against a public servant for an act done or
\npurporting to be done by the public servant in the
\ndischarge of his duties. No one can take such
\nproceedings without such sanction.”<\/p>\n

On the test to be adopted for finding out whether Section 197 of the
\nCode was attracted or not and to ascertain the scope and meaning of
\nthat Section, their Lordships stated:
\n“Slightly differing tests have been laid down in the
\ndecided cases to ascertain the scope and the meaning of
\nthe relevant words occurring in Section 197 of the Code;
\n“any offence alleged to have been committed by him
\nwhile acting or purporting to act in the discharge of his
\nofficial duty”. But the difference is only in language and
\nnot in substance. The offence alleged to have been
\ncommitted must have something to do, or must be related
\nin some manner, with the discharge of official duty. No
\nquestion of sanction can arise under Section 197, unless
\nthe act complained of is an offence; the only point to
\ndetermine is whether it was committed in the discharge
\nof official duty. There must be a reasonable connection
\nbetween the act and the official duty. It does not matter
\neven if the act exceeds what is strictly necessary for the
\ndischarge of the duty, as this question will arise only at a
\nlater stage when the trial proceeds on the merit. What we
\nmust find out is whether the act and the official duty are
\nso inter-related that one can postulate reasonably that it
\nwas done by the accused in the performance of the
\nofficial duty, though possibly in excess of the needs and
\nrequirements of the situation.”<\/p>\n

After referring to the earlier decisions of the Federal Court, Privy
\nCouncil and that of this Court, their Lordships summed up the
\nposition thus :<\/p>\n

“The result of the foregoing discussion is this: There
\nmust be a reasonable connection between the act and the
\ndischarge of official duty; the act must bear such relation
\nto the duty that the accused could lay a reasonable, but
\nnot a pretended or fanciful claim, that he did it in the
\ncourse of the performance of his duty.”<\/p>\n

Their Lordships then proceeded to consider the stage at which the
\nneed for sanction under Section 197 (1) of the Code had to be
\nconsidered. Their Lordships stated:<\/p>\n

“The question may arise at any stage of the proceedings.
\nThe complaint may not disclose that the act constituting
\nthe offence was done or purported to be done in the
\ndischarge of official duty; but facts subsequently coming
\nto light on a police or judicial inquiry or even in the
\ncourse of the prosecution evidence at the trial, may
\nestablish the necessity for sanction. Whether sanction is
\nnecessary or not may have to be determined from stage to
\nstage. The necessity may reveal itself in the course of
\nthe progress of the case.”<\/p>\n

13. In the light of the above decision it does not appear to be
\nnecessary to multiply authorities. But we may notice some of them
\nbriefly. In Pukhraj Vs. State of Rajasthan & Another [(1973) 2
\nSCC 701], this Court held:
\n“While the law is well settled the difficulty really arises
\nin applying the law to the fact to any particular case. The
\nintention behind the section is to prevent public servants
\nfrom being unnecessarily harassed. The section is not
\nrestricted only to cases of anything purported to be done
\nin good faith, for a person who ostensibly acts in
\nexecution of his duty still purports so to act, although he
\nmay have dishonest intention. Nor is it confined to cases
\nwhere the act, which constitutes the offence, is the
\nofficial duty of the official concerned. Such an
\ninterpretation would involve a contradiction in terms,
\nbecause an offence can never be an official duty. The
\noffence should have been committed when an act is done
\nin the execution of duty or when an act purports to be
\ndone in execution of duty. The test appears to be not that
\nthe offence is capable of being committed only by a
\npublic servant and not by anyone else, but that it is
\ncommitted by a public servant in an act done or
\npurporting to be done in the execution of duty. The
\nsection cannot be confined to only such acts as are done
\nby a public servant directly in pursuance of his public
\noffice, though in excess of the duty or under a mistaken
\nbelief as to the existence of such duty. Nor need the act
\nconstituting the offence be so inseparably connected with
\nthe official duty as to form part and parcel of the same
\ntransaction. What is necessary is that the offence must be
\nin respect of and act done or purported to be done in the
\ndischarge of an official duty. It does not apply to acts
\ndone purely in a private capacity by a public servant.
\nExpressions such as the “capacity in which the act is
\nperformed”, “cloak of office” and “professed exercise of
\nthe office” may not always be appropriate to described or
\ndelimit the scope of section. An act merely because it
\nwas done negligently does not cease to be one done or
\npurporting to be done in execution of a duty.”<\/p>\n

In B. Saha & Ors. Vs. M.S. Kochar [(1979) 4 SCC 177], this Court
\nheld:
\n“In sum, the sine qua non for the applicability of this
\nsection is that the offence charged, be it one of
\ncommission or omission, must be one which has been
\ncommitted by the public servant either in his official
\ncapacity or under colour of the office held by him.”<\/p>\n

In Bakhshish Singh Brar Vs. Gurmej Kaur & Anr. [(1987) 4 SCC
\n663], this Court stated that it was necessary to protect the public
\nservants in the discharge of their duties. They must be made immune
\nfrom being harassed in criminal proceedings and prosecution, and that
\nis the rationale behind Section 196 and Section 197 of the Code. But
\nit is equally important to emphasize that rights of the citizens should
\nbe protected and no excesses should be permitted. Protection of
\npublic officers and public servants functioning in discharge of their
\nofficial duties and protection of private citizens have to be balanced in
\neach case by finding out as to what extent and how far is a public
\nservant working in discharge of his duties or purported discharge of
\nhis duties, and whether the public servant has exceeded his limit. In
\nthe recent decision in Rakesh Kumar Mishra Vs. State of Bihar &
\nOthers [(2006) 1 SCC 557], this Court after referring to the earlier
\ndecisions on the question stated:
\n“The Section has, thus, to be construed strictly, while
\ndetermining its applicability to any act or omission in the
\ncourse of service. Its operation has to be limited to those
\nduties which are discharged in the course of duty. But
\nonce any act or omission has been found to have been
\ncommitted by a public servant in the discharge of his
\nduty then it must be given liberal and wide construction
\nso far its official nature is concerned.”<\/p>\n

14. Learned counsel for the complainant argued that want of
\nsanction under Section 197(1) of the Code did not affect the
\njurisdiction of the Court to proceed, but it was only one of the
\ndefences available to the accused and the accused can raise the
\ndefence at the appropriate time. We are not in a position to accept this
\nsubmission. Section 197(1), its opening words and the object sought
\nto be achieved by it, and the decisions of this Court earlier cited,
\nclearly indicate that a prosecution hit by that provision cannot be
\nlaunched without the sanction contemplated. It is a condition
\nprecedent, as it were , for a successful prosecution of a public servant
\nwhen the provision is attracted, though the question may arise
\nnecessarily not at the inception, but even at a subsequent stage. We
\ncannot therefore accede to the request to postpone a decision on this
\nquestion.<\/p>\n

15. Coming to the facts of this case, the question is whether
\nthe appellant was acting in his official capacity while the alleged
\noffence was committed or was performing a duty in his capacity as a
\npolice officer which led to the offence complained of. That it was the
\nday of election to the State Assembly, that the appellant was in
\nuniform; that the appellant traveled in an official jeep to the spot, near
\na polling booth and the offence was committed while he was on the
\nspot, may not by themselves attract Section 197 (1) of the Code. But,
\nas can be seen from the facts disclosed in the counter affidavit filed on
\nbehalf of the State based on the entries in the General Diary of the
\nPhoolbagan Police Station, it emerges that on the election day
\ninformation was received in the Police Station at 1400 hours of some
\ndisturbance at a polling booth, that it took a violent turn and clashes
\nbetween the supporters of two political parties was imminent. It was
\nthen that the appellant reached the site of the incident in his official
\nvehicle. It is seen that a case had been registered on the basis of the
\nincidents that took place and a report in this behalf had also been sent
\nto the superiors by the Station House Officer. It is also seen and it is
\nsupported by the witnesses examined by the Chief Judicial Magistrate
\nwhile taking cognizance of the offence that the appellant on reaching
\nthe spot had a discussion with the Officer-in-charge who was
\nstationed at the spot and thereafter a lathi charge took place or there
\nwas an attack on the husband of the complainant and he met with his
\ndeath. Obviously, it was part of the duty of the appellant to prevent
\nany breach of law and maintain order on the polling day or to prevent
\nthe blocking of voters or prevent what has come to be known as booth
\ncapturing. It therefore emerges that the act was done while the
\nofficer was performing his duty. That the incident took place near a
\npolling booth on an election day has also to be taken note of. The
\ncomplainant no doubt has a case that it was a case of the deceased
\nbeing picked and chosen for illtreatment and he was beaten up by a
\npolice constable at the instance of the appellant and the Officer-in-
\ncharge of the Phoolbagan Police Station and at their behest. If that
\ncomplaint were true it will certainly make the action, an offence,
\nleading to further consequences. It is also true as pointed out by the
\nlearned counsel for the complainant that the entries in the General
\nDiary remain to be proved. But still, it would be an offence
\ncommitted during the course of the performance of his duty by the
\nappellant and it would attract Section 197 of the Code. Going by the
\nprinciple, stated by the Constitution Bench in Matajog Dobey
\n(supra), it has to be held that a sanction under Section 197 (1) of the
\nCode of Criminal Procedure is necessary in this case.<\/p>\n

16. We may in this context notice the decision in Rizwan
\nAhmed Javed Shaikh & Ors. v. Jammal Patel & Ors. [(2001) 5
\nSCC 7). This Court was dealing with officers who were brought
\nwithin the protective umbrella of Section 197 of the Code by a
\nnotification issued under Section 197(3) thereof. Cognizance had
\nbeen taken of an offence under Sections 220 and 342 of the Indian
\nPenal Code and Sections 147 and 148 of the Bombay Police Act. The
\ngravamen of the charge was the failure on the part of the accused
\npolice officers to produce the complainants before a magistrate within
\n24 hrs. of their arrest for alleged offences under the Indian Penal
\nCode. The police officers having claimed the protection of Section
\n197(1) of the Code, this Court after referring to the earlier decisions
\nheld”
\n“The real test to be applied to attract the
\napplicability of Section 197(3) is whether the act
\nwhich is done by a public officer and is alleged to
\nconstitute an offence was done by the public
\nofficer whilst acting in his official capacity though
\nwhat he did was neither his duty nor his right to do
\nas such public officer. The act complained of may
\nbe in exercise of the duty or in the absence of such
\nduty or in dereliction of the duty, if the act
\ncomplained of is done while acting as a public
\nofficer and in the course of the same transaction in
\nwhich the official duty was performed or purported
\nto be performed, the public officer would be
\nprotected.”<\/p>\n

Going by the above test it has to be held that
\nSection 197(1) of the Code is attracted to this case.<\/p>\n

17. The High Court has stated that killing of a person by use
\nof excessive force could never be performance of duty. It may be
\ncorrect so far as it goes. But the question is whether that act was done
\nin the performance of duty or in purported performance of duty. If it
\nwas done in performance of duty or purported performance of duty
\nSection 197(1) of the Code cannot be by-passed by reasoning that
\nkilling a man could never be done in an official capacity and
\nconsequently Section 197(1) of the Code could not be attracted. Such
\na reasoning would be against the ratio of the decisions of this Court
\nreferred to earlier. The other reason given by the High Court that if
\nthe High Court were to interfere on the ground of want of sanction,
\npeople will lose faith in the judicial process, cannot also be a ground
\nto dispense with a statutory requirement or protection. Public trust in
\nthe institution can be maintained by entertaining causes coming within
\nits jurisdiction, by performing the duties entrusted to it diligently, in
\naccordance with law and the established procedure and without delay.
\nDispensing with of jurisdictional or statutory requirements which may
\nultimately affect the adjudication itself, will itself result in people
\nlosing faith in the system. So, the reason in that behalf given by the
\nHigh Court cannot be sufficient to enable it to get over the
\njurisdictional requirement of a sanction under Section 197(1) of the
\nCode of Criminal Procedure. We are therefore satisfied that the High
\nCourt was in error in holding that sanction under Section 197(1) was
\nnot needed in this case. We hold that such sanction was necessary and
\nfor want of sanction the prosecution must be quashed at this stage. It
\nis not for us now to answer the submission of learned counsel for the
\ncomplainant that this is an eminently fit case for grant of such
\nsanction.<\/p>\n

18. We thus allow this appeal and setting aside the order of
\nthe High Court quash the complaint only on the ground of want of
\nsanction under Section 197(1) of the Code of Criminal Procedure.
\nThe observations herein, however, shall not prejudice the rights of the
\ncomplainant in any prosecution after the requirements of Section
\n197(1) of the Code of Criminal Procedure are complied with.<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[543,541,540,542],"class_list":["post-202","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-crpc-197","tag-sadhna-das","tag-sankaran-moitra","tag-stay-on-arrest"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/202","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=202"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/202\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=202"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=202"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=202"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}