TMI Blog2006 (3) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Sections 302, 201, 109 and 120B IPC could be proceeded with or required to be stayed? HELD THAT:- In the instant case, from the material which has been placed on record, it is amply clear that the appellant and other police officers had acted illegally, unlawfully and highhandedly. In the complaint, it was stated by the widow of deceased Topi Das that the accused chased her husband and assaulted him by causing several injuries which resulted in his death. But, apart from what is stated in the complaint, the learned Chief Judicial Magistrate had recorded statements of witnesses mentioned in the complaint. The learned counsel for the first respondent- complainant, drew our attention to those statements who were eye-witnesses. It was stated by them that the deceased had not indulged in any illegal activity. He had not done any unlawful act. He had no weapon with him. He was distributing food packets at the polling booth of a particular political party. He was assaulted and beaten by accused persons who were police officers. When the deceased left the place, the police officers chased him and continued to beat him. When deceased reached near a lake, he requested the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T P.K. Balasubramanyan, J. 1. Leave granted. 2. I have had the benefit of going through the judgment prepared by my learned brother P.K. Balasubramanyan, J. I express my inability to agree with the reasons recorded and conclusions arrived at by him. I, therefore, consider it appropriate to deal with the matter independently. The relevant facts as stated in the judgment of the High Court of Calcutta impugned in the present appeal are that on May 10, 2001 general election of the State Assembly of the West Bengal was held. One Rabindra Nath Das @ Topi Das ('deceased' for short), husband of Mrs. Sadhna Das ('complainant' for short) was supporting a particular political party. He was engaged in distributing food packets to the polling agents at Subhas Sarobar (Baliaghata Lake) constituency. It was the case of the complainant that when her husband left the home on May 10, 2001, he stated that he would be coming for taking lunch. According to the complainant, however, her husband did not come. When she was returning after casting her vote, she saw a Tata Sumo vehicle and one Anath Das of the locality inside the vehicle. When she asked the people who gathered over there as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said material, the learned Magistrate took cognizance of the offences. On June 16, 2001, the learned Magistrate issued non-bailable warrant against the accused persons including the appellant herein and fixed July 10, 2001 as returnable date. Meanwhile, on June 30, 2001, the accused preferred an application under Section 210 of the Code stating therein that a complaint was filed by the complainant on May 12, 2001 which had been registered as PS Case No.112 of 2001 for an offence punishable under Section 304 IPC by Phoolbagan Police Station and proceedings were initiated. It was also stated that thereafter Fax-message was sent to the Joint Commissioner of Police to investigate the case under Section 302 which was treated as FIR. It was, therefore, prayed that the complaint dated May 28, 2001 be stayed. 4. It may also be stated that the accused moved the High Court for grant of anticipatory bail under Section 438 of the Code. The application, however, was rejected by the High Court on June 20, 2003. The order passed by the High Court was challenged by filing Special Leave Petition in this Court which was also dismissed by this Court on July 28, 2003. 5. The accused then filed a pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isperse the rioting mob and restore law and order situation. During the said incident of dispersing mob and preventing rioting, the deceased was injured and fell into water, drowned in the lake and declared dead on being taken to the hospital. According to Mr. Tulsi, all acts were committed by the appellant while exercising powers, discharging duties and performing functions as police officer and as such the provisions of Section 197 of the Code were clearly attracted. It was submitted by Mr. Tulsi that admittedly, no sanction was obtained from the Government before instituting proceedings against the appellant. The proceedings were, therefore, not tenable. The learned Magistrate, therefore, was wrong in taking cognizance, in issuing non-bailable warrant and proceeding with the case. Mr. Tulsi submitted that absence of sanction as required by Section 197 goes to the root of the matter and no proceedings could be initiated in absence of such sanction and the proceedings are required to be dropped. Mr. Tulsi also submitted that as is clear, the complainant had filed a complaint on May 11, 2001 and in the said complaint it was expressly stated that her husband had met with death due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also by this Court as early as in 2003, till today, the appellant has not been arrested. He, therefore, submitted that no case has been made out for interference by this Court and the appeal deserves to be dismissed. 8. Mr. Avijit Bhattacharjee, learned counsel appearing for the State relied upon the affidavit filed on behalf of the State. 9. The questions which arise for our consideration are, firstly, whether in the facts and circumstances of the case, Section 197 of the Code is attracted and sanction as required by that section is sine qua non for prosecuting the appellant and other police officers and whether the Chief Judicial Magistrate was justified in taking cognizance of the complaint filed by the complainant and proceeding with the complaint, and secondly, whether the case is covered by Section 210 of the Code and the private complaint filed by the complainant in the Court of Chief Judicial Magistrate on May 28, 2001 against the accused persons for offences punishable under Sections 302, 201, 109 and 120B IPC could be proceeded with or required to be stayed? Before I deal with the material placed on record, it would be appropriate to consider the legal position. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me up for judicial interpretation in several cases. One of the leading cases which has been referred to in several decisions thereafter was of Dr. Hori Ram Singh v. Emperor, [1939 FCR 159 : AIR 1939 FC 43]. Their Lordships of the Federal Court in Dr. Hori Ram Singh were called upon to consider Section 270 of the Government of India Act, 1935 which was similar to Section 197 of the present Code. Sulaiman, J., interpreting the said section, observed that the question of good faith or bad faith would not strictly arise in interpreting the provision inasmuch as the words used in the section were not only any act done in the execution of his duty but also any act purporting to be done in the execution of duty . It was, therefore, held that when the act is not done in the execution of the duty, but is purported to be done in the execution of the duty, it would be covered. 13. The learned Judge stated; Obviously the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while actually engaged in some official work, he is not accepting it even in his official capacity, much less in the execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification. (emphasis supplied) 15. In the concurring opinion, Varadachariar, J. stated - It only remains to deal with the arguments urged on the one side or the other as to the test to be applied in determining whether or not the act complained of is one purporting to be done in execution of his duty as a public servant. I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests . (emphasis supplied) 16. In H.H.B. Gill another v. King, (75 IA 41:AIR 1948 PC 128), the Judicial Committee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he office. It is only when the act complained of is directly connected with his official duties that sanction is necessary. 20. Speaking for the Court, Venkatarama Ayyar, J. referring to the relevant decisions on the point, formulated the principle: 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. 21. A reference may be made to a decision of the Constitution Bench in Matajog Dobey v. H.C. Bhari, [1955 (2) SCR 925 : AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope of the official duty or in excess of it that the protection is claimable. 24. In Pukhraj v. State of Rajasthan Another, [(1973) 2 SCC 701 : 1974 (1) SCR 551], after considering several cases on the point, the Court observed that though the principle is well settled, the real difficulty lies in applying it to the factual situation. 24.1. The Court observed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted. Encounter death has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced 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. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damaged to the evidence. 24.4 In P.K. Pradhan v. State of Sikkim, [(2001) 6 SCC 704], after referring to relevant case law on the point, it was observed that different tests have been laid down to ascertain the scope and meaning of the relevant words occurring in Section 197 any offence alleged to have been committed by him while ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31]. 24.6 In K. Kalimuthu v. State by DSP [(2005) 4 SCC 512], it was stated that the protection given under Section 197 of the Code is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. But the said protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. 25 It was, therefore, observed Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 197 of the Code, it is not only the power but the duty of the Court to apply its mind to the fact-situation before it. It should ensure that on the one hand, the public servant is protected if the case is covered by Section 197 of the Code and on the other hand, appropriate action would be allowed to be taken if the provision is not attracted and under the guise of his position as public servant, he is trying to take undue advantage. 30. In the instant case, from the material which has been placed on record, it is amply clear that the appellant and other police officers had acted illegally, unlawfully and highhandedly. In the complaint, it was stated by the widow of deceased Topi Das that the accused chased her husband and assaulted him by causing several injuries which resulted in his death. But, apart from what is stated in the complaint, the learned Chief Judicial Magistrate had recorded statements of witnesses mentioned in the complaint. The learned counsel for the first respondent- complainant, drew our attention to those statements who were eye-witnesses. It was stated by them that the deceased had not indulged in any illegal activity. He had not done any unlawful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt showgrade-II atteroma at the root of aorta. On the basis of my findings I have the following opinion: Death was due to the effects of head injuries associated with drawing ante-mortem and homicidal in nature. The injuries which I found are consisted with a trauma caused by blunt weapon such as Lathi. (Emphasis supplied) 34. The High Court, in my judgment, considered this aspect in its proper perspective and was wholly justified in observing that it was a merciless beating by a police officer causing death of a person which could not be said to be an act in discharge of official duty. The High Court was also right in stating that postmortem report clearly indicated the nature and extent of injuries on the victim. Other witnesses had given vivid description of the offence committed by the accused persons. The said finding, which is supported by material on record, cannot be said to be based on 'no evidence' or otherwise perverse, nor it can be concluded that an error of law has been committed by the High Court which requires to be corrected by this Court in the exercise of discretionary jurisdiction under Article 136 of the Constitution. Hence, in my opinion, no interferen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice. (emphasis supplied) 39. It is thus clear that before Section 210 can be invoked, the following conditions must be satisfied. (i) There must be a complaint pending for inquiry or trial; (ii) Investigation by the police must be in progress in relation to the same offence; (iii) A report must have been made by the police officer under Section 173; and (iv) The magistrate m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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