TMI Blog2013 (10) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... a of the respondent that the prosecution was barred under Section 197 Cr.P.C. has, therefore, to be rejected. The decision in this case GENERAL OFFICER COMMANDING VERSUS CBI ANR. [ 2012 (5) TMI 612 - SUPREME COURT] followed. - Criminal Appeal No. 1822 of 2013 (@ SLP (Crl.) No. 8352 of 2011) - - - Dated:- 23-10-2013 - Fakkir Mohamed Ibrahim Kalifulla And T. S. Thakur, JJ. For the Petitioner : Rishi Malhotra, Adv. For the Respondent : Nikhil Jain, Adv. JUDGMENT Fakkir Mohamed Ibrahim Kalifulla, J. 1. Leave granted. 2. This appeal at the instance of the complainant is directed against the judgment of the High Court of Punjab and Haryana at Chandigarh, in Criminal Miscellaneous Petition No.9585-M of 2008. The High Court, by the order impugned in this appeal, confirmed the order of the learned Additional Sessions Judge, Panchkula dated 10.03.2008, in and by which, the learned Additional Sessions Judge reversed the orders of the learned Chief Judicial Magistrate, Panchkula dated 30.07.2001 and 17.04.2007. 3. The brief facts, which are required to be stated are that the appellant herein filed a complaint against the respondent, alleging that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar under Section 397(2) of Cr.P.C. would operate for the learned Additional Sessions Judge to entertain the revision petition. The contention of the learned counsel was that if at all the respondent was aggrieved as against the orders dated 30.07.2001 and 17.04.2007, he could have only approached the High Court under Section 482 of the Code of Criminal Procedure and not by way of a revision under Section 397 of Cr.P.C. 8. It was also contended that since the sole issue raised before the learned Chief Judicial Magistrate, while seeking to recall the order dated 30.07.2001, was that the respondent being a Sub Divisional Magistrate and the action complained of by the appellant was in the course of discharge of his functions as Sub Divisional Magistrate, the appellant ought to have sought for the necessary sanction under Section 197 of the Code of Criminal Procedure, before preferring a complaint before the learned Chief Judicial Magistrate. It was also contended that it would be a question, which could have been gone into by the learned Trial Judge at the time of trial in as much as, according to the appellant the manner in which the respondent and the other accused behaved in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n interim order, revision under Section 397 Cr.P.C. before the learned Additional Sessions Judge was not maintainable and consequently, the order of the High Court in declining to interfere with the same is liable to be set aside and the order of the learned Additional Sessions Judge dated 10.03.2008, is also liable to be set aside. 10. As against the above submissions, the learned senior counsel appearing for the respondent contended that this Court has held in innumerable decisions that an order-issuing summons is not an interim order, but an intermediate order and therefore, the jurisdiction of the revisional Court under Section 397 of Cr.P.C. was not ousted. It was also contended that in any event, when the inherent jurisdiction of the High Court was invoked by the appellant herself, the whole issue as regards the validity of the issuance of summons by the learned Chief Judicial Magistrate, which was the subject matter of challenge was open, that the High Court could validly examine the correctness of the issuance of summons by the learned Chief Judicial Magistrate and therefore no fault can be found with the order of the High Court impugned in this appeal. 11. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision in K.M. Mathew vs. State of Kerala and another reported in (1992) 1 SCC 217, it was held that the order issuing the process is an interim order and not a judgment and it can be varied or recalled. It was held in paragraph 8 that the fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. Here and now, we want to make it abundantly clear that in the said decision, this Court did not examine the question about the reviseability of an order passed under Section 204 Cr.P.C., either by the Sessions Judge or by the High Court in exercise of its revisional jurisdiction under Section 397 Cr.P.C. On the other hand in the decision in Rajendra Kumar Sitaram Pande (supra) this Court after referring to the earlier decisions in Amar Nath (supra), Madhu Limaye (supra) and V.C. Shukla (supra) held as under in paragraph 6: 6.....this Court has held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the power of the Criminal Court to review its own order passed under Section 204 Cr.P.C. was inherent in the absence of any specific provision in the Cr.P.C. was referred for consideration by a larger Bench of three-Judge in the decision in Adalat Prasad (supra). 17. In fact, the said issue was referred to a larger Bench even in an earlier case of Nilamani Routray vs. Bennett Coleman and Co. Ltd. reported in (1998) 8 SCC 594. However, the said case got settled out of Court and hence, the issue involved in K.M. Mathew (supra) was not decided by the Larger Bench. The said issue was therefore, considered only in the case of Adalat Prasad (supra). This Court ultimately held that in the absence of any review power or inherent power with the subordinate criminal Court, there was no jurisdiction or power vested in the Magistrate to review or recall its order deciding to issue summons. It was however held that in the absence of any review power or inherent power in the subordinate criminal Court, the remedy is by invoking Section 482 of Cr.P.C. Ultimately, in paragraph 17 of the Adalat Prasad (supra), this Court held that it was not necessary for this Court to go into the question as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law........ (Emphasis added) 20. It has been virtually held that apart from the remedy available under Section 482, the aggrieved party can also workout the other remedies available in law. 21. When we examine the said ratio laid down in Subramaniam Sethuraman (supra), considering the earlier view of this Court rendered in umpteen number of judgments, including the one mentioned in K.K. Patel (supra), wherein a test was laid down to ascertain, which order can be construed as an interlocutory order or intermediatory order, it was held thereunder to the effect that the order deciding to issue summons would be only intermediatory or quasi final order, which would be subject to the revisional jurisdiction under Section 397 Cr.P.C. 22. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under the provisions of the Code of Criminal Procedure and, therefore, the requirement of the compliance of Section 197 of Cr.P.C. was paramount. The High Court, therefore, held that the conclusions of the learned Additional Sessions Judge that the issuance of the summons by the Magistrate lacked in jurisdiction was correct and upheld the said order. 26. In order to appreciate the above conclusions reached by the learned Additional Sessions Judge as well as by the High Court and to examine whether such a conclusion can be sustained it will be necessary to reiterate brief facts which culminated in the issuance of the summons to the respondent. The appellant is a Pharmacist and is working in ESI dispensary situated in the premises of HMT Pinjore for the last about 20 years. She is stated to have been living along with her two daughters and a son in an official accommodation allotted to her by the dispensary authorities in Quarter's No.8-4, ESI Dispensary, HMT, Pinjore situated in the first floor. In the same premises one Maya Rani was living in the ground floor. The appellant is stated to have filed a complaint against the said Smt. Maya Rani under Section 500 IPC alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e his clothes in front of other officials and that both of them were taken to the civil hospital where the appellant was examined by a male doctor, namely, Dr. S.K. Gupta and Dr. Dewan which was again not in consonance with law. In the above stated background, it was contended that none of the acts complained of against the respondent would amount to exercise of any powers in his official capacity as SDM and, therefore, he could not have taken umbrage under Section 197 Cr.P.C. It was, therefore, contended that the order of the learned Additional Sessions Judge and the confirmation of the same by the High Court in having held that for want of sanction under Section 197 Cr.P.C the whole complaint of the appellant was not maintainable was thoroughly illegal and the same is liable to be set aside. 28. When we examine the above stand of the appellant, it is necessary to note the relevant provisions under the Criminal Procedure Code as well as Indian Penal Code to find out whether it can be held that the act complained of against the respondent and the various allegations relating to him along with the other respondents, some of whom were police officials, can be construed as one in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant it transpires that according to the appellant based on a complaint preferred by Smt. Maya Rani alleging that the appellant and one R.C. Chopra were living in an illicit relationship, the respondent directed the Tehsildar to enquire into the matter and also directed the DSP to conduct special investigation. The respondent is also alleged to have accompanied the investigation team along with two other persons, namely, accused 7 and 8 with video cameras and carried out the search in the house of the appellant. It is also alleged that the respondent threatened the appellant and R.C. Chopra to withdraw the case filed against Smt. Maya Rani. The further allegation was that R.C. Chopra was made to strip off his clothes before others and thereby he was humiliated and that both the appellant and the said R.C. Chopra were forced to undergo a medical examination in the civil hospital against their will. 32. In the first place, we wish to ascertain whether there was any semblance of an official act in whatever act in which the respondent was alleged to have been involved as complained of by the appellant. In other words, it is necessary to examine and find out whether the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account, we find that she cannot be held to be an aggrieved person falling under Section 198(1) Cr.P.C. or for that matter governed by the proviso to Section 198(2). There is no dispute about the fact of the respondent in having entered the house of the appellant on 26.06.1997 pursuant to the complaint made by Smt. Maya Rani. Therefore, if the said complaint of Smt. Maya Rani cannot validly form the basis for the respondent to exercise his power and authority as an Executive Magistrate/SDM, we are at a loss to understand as to through what other source, the respondent acquired the power or was empowered to barge into the house of the appellant under the garb of an Executive Magistrate. Therefore, it cannot be held that the respondent validly exercised his authority as an Executive Magistrate when he acted based on the complaint of Smt. Maya Rani. 36. If there is no scope to bring the action of the respondent under Section 198 Cr.P.C, the only other provision under which the appellant could have acted while ordering a search could have been only under Section 107 Cr.P.C. Indisputably the only allegation which could be culled out from the facts pleaded was that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading Sections 53 and 54 together, prior to the arrest of a person and in the absence of any alleged offence which would require such medical examination there was no scope for anyone, much less for a person in the capacity of an Executive Magistrate to order for a forcible medical examination. 39. The allegations complained of against the respondent at the instance of the appellant in the present proceedings if found to be true, the resultant position would be, that the respondent cannot be said to have legally acted in his official capacity as Executive Magistrate while ordering for the search and inquiry by the Tehsildar, the DSP and the other police officers along with the two video cameramen. It is again relevant to keep in mind that the only basis for the respondent to act was the so called complaint of Smt. Maya Rani alleging that the appellant was having illicit relationship with R.C. Chopra. Assuming such an allegation of Smt. Maya Rani was true on its face value, we wonder, how a person in the rank of an SDM took a decision to barge into the house of a lady, that too at the odd hours of 10 pm accompanied by a pose of police officers under the guise of ascertaining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing of the case on day to day basis and conclude the same expeditiously preferably within three months from the date of production of copy of this order. We, however, make it clear that whatever stated by us in this judgment is only for the purpose of examining the correctness of the judgment of the learned Additional Sessions Judge and the High Court and we have not dealt with the merits of the case which shall be examined by the trial Court in accordance with law. T. S. THAKUR, J. 1. I have had the advantage of going through the order proposed by my esteemed and noble Brother Kalifulla J. While I entirely agree with the conclusions arrived at by His Lordship, I propose to add a few lines of my own. 2. The draft order has painstakingly and with remarkable lucidity dealt with the question of maintainability of a revision petition before the High Court and concluded that such a revision petition was indeed maintainable. I can make no addition to what Kalifulla, J. has said on that count except to place on record my deep appreciation for an articulate and erudite statement of the legal position on the subject. What has impelled me to add to what is already said is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t democracies around the world. Experience in this country has shown that excesses are often committed by those in power. This Court has in several pronouncements expressed grave concern over the insensitivity of state authorities in protecting the basic rights of citizens and even gone to the extent of laying down principles that would bind such authorities to act humanely in situations that keep recurring. Of these decisions, cases dealing with custodial violence stand out in bold relief where this Court has deprecated incidents of torture and other inhuman, cruel or degrading treatment declaring such acts to be clear violations of citizens' fundamental right to life guaranteed under Article 21 of the Constitution of India. For instance in D.K. Basu v. State of West Bengal (1997) 1 SCC 416, this Court came down heavily on custodial torture and resultant death when it said: ...Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law...... It is aggravated by the fact that it is committed by the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which, if it happens, will be a sad day, for any one to reckon with. 5. A reference may also be made to State of Punjab v. Baldev Singh, etc. AIR 1999 SC 2378 where this Court held that legitimacy of judicial process may itself come under cloud if this Court were seen to be condoning acts of lawlessness conducted by the investigating agency during search operations which may in turn undermine respect for law and compromise the administration of justice. In State of Maharashtra and Ors. etc. v. Saeed Sohail Sheikh etc. AIR 2013 SC 168 this Court had another occasion to emphasise the importance of the Rule of Law and to declare that police exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t another case accusing the functionaries of the State machinery of highhanded, insensitive and unwarranted acts of misbehavior, that the same constitute offences punishable under the Indian Penal Code. The question precisely is whether sanction under Section 197 of the Cr.P.C. was necessary for prosecuting the respondent public servant who is alleged to have acted without the authority of law and without any lawful justification, harassed the complainant, violated her right to privacy, and subjected her to an unwarranted public humiliation in - (a) having entered the house of the complainant-Urmila Devi after sunset equipped, as it were, with video cameras; (b) having asked Mr. R.C. Chopra who was present in the house of the complainant to undress; (c) having taken the complainant and Mr. Chopra to the Police Station without any reasonable cause and without disclosing to them the offence for which they were being forced to do so; (d) having subjected them to medical examination without their consent and without there being any cause whatsoever for such an examination; (e) having threatened them with dire consequences if the complainant did not withdraw the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legedly committed by the respondents were committed while he was 'acting or purporting to act in the discharge of his official duty'. The words acting or purporting to act in the discharge of his official duty appearing in Section 197 (supra) are critical not only in the case at hand but in every other case where the accused invokes the protection of that provision. What is the true and correct interpretation of that provision is no longer res integra. The provision has fallen for consideration on several occasions before this Court. Reference to all those decisions may be unnecessary for the law has been succinctly summed up in the few decisions to which we shall presently refer. But before we do so we may point out that the expression official duty appearing in Section 197 has not been defined. The dictionary meaning of the expression would, therefore, be useful for understanding the expression both literally and contextually. The term official has been defined in Black's Law Dictionary as under: Official... Of or relating to an office or position of trust or authority official duties . 11. The term office is defined in the same dictionary as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary...It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. (emphasis supplied) 15. The legal position was further elaborated and explained by another three Judge Bench decision of this Court in B. Saha and Ors. v. M.S. Kochar (1979) 4 SCC 177, where this Court held that while Section 197 Cr.P.C. was capable of both liberal and narrow interpretations, a moderate and balanced approach was the correct way to interpret that provision to avoid an unfair advantage or disadvantage to the accused. This Court, therefore, evolved the test of a direct and reasonable connection between the official duty of the accused and the acts constituting the commission of offence. The Court observed: The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 Code of Criminal Procedure cannot be disputed. (emphasis supplied) 17. The test of direct and reasonable connection between the official duty of the accused and the acts allegedly committed by them is, therefore, the true test to be applied while deciding whether the protection of Section 197 of the Cr.P.C. is available to a public servant accused of the commission of an offence. The High Court has not adverted to this test nor has it held that there existed a direct and reasonable connection between the official duty being discharged by the accused public servant and the acts committed by him. The High Court has on the contrary misdirected itself when it said that the accused had only committed an act of omission towards his official duties which entitled him to the protection of Section 197 of the Code. The High Court observed: After going through the facts of the above case, one thing is clear that there was an on-going rift between Smt. Maya Devi and Smt. Urmila Devi. They are both quarrelsome i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registration of any case or subject her to an uncalled for medical examination. The test of direct and reasonable connection between the official duty of the respondent Sub Divisional Magistrate and the police officers concerned and the acts complained of thus fails in the present case especially because there is not even a semblance of a lawful justification forthcoming from the respondent for what he did. Entering the house of a woman, after sunset with a posse of police force, carrying video cameras conducting an unwarranted search of the house, humiliating and invading the privacy of the complainant, insulting and humiliating R.C. Chopra by asking him to undress and dragging both of them to the police station for medical examination against their wishes, especially when male doctors were asked to examine the complainant which added insult to injury, all remain unsupported by any lawful justification and have no connection with the duties that were cast upon the respondent as a public servant, even if a complaint alleging an adulterous relationship between the appellant and R.C. Chopra had been received by the SDM. The alleged acts of the respondent cannot, therefore, be said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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