Criminal Writ Petition No.181 of 2002

16th October, 2004

Petitioner Counsel: Mr. ANIL MARDIKAR
Respondent Counsel: Mr. S. S. DOIFODE

Cases Cited:
N. K. Ogle Vs. Sanwaldas alias Sanwalmal Ahuja, AIR 1999 SC 1437 [Para 7]
K. K. Patel Vs. State of Gujarat, 2000 ALL MR (Cri) 1232 (S.C.)=(2000)6 SCC 195 [Para 7,8]
Rizwan Ahmed Javed Shaikh Vs. Jammal Patel, 2001 ALL MR (Cri) 1512 (S.C.)=(2001)5 SCC 7 [Para 7]
State of Orissa Vs. Ganesh Chandra Jew, 2004 ALL MR (Cri) 1492 (S.C.) [Para 7]
P. P. Unnikrishnan Vs. Puttiyottil Alikutty, AIR 2000 SC 2952 [Para 8]
Shambhoo Nath Misra Vs. State of U.P., 1997 ALL MR (Cri) 987 (S.C.)=AIR 1997 SC 2102 [Para 8]
M. Narayandas Vs. State of Karnataka, 2004 ALL MR (Cri) 217 (S.C.)=2004 Cri.L.J. 822 [Para 8]

JUDGMENT

JUDGMENT :- Heard.

2. By this petition the petitioners seek to quash the order dated 16-5-2000 passed by the Chief Judicial Magistrate, Akola in Criminal Complaint Case No.21150 of 1993 rejecting the application of the petitioners for quashing the proceedings which was confirmed by the Additional Sessions Judge, Akola by his order dated 3-4-2002 in Criminal Revision No.164 of 2000.

3. In order to appreciate the controversy a brief reference to the facts which is spread over for a decade would be necessary.

4. It appears that on 3-8-1993 one Ajay Sheshrao Galat was arrested by City Kotwali Police Station, Akola in connection with certain offences of theft. On 4-8-1993 he was produced before JMFC, 8th Court, Akola and police custody remand was sought. The learned Magistrate granted PCR till 6-8-1993 because he found that the injuries sustained by Ajay Galat were 36 to 48 hours old. On 6-8-1993 Ajay Galat was again produced before the magistrate in connection with other crime and PCR was granted till 10-8-1993.

5. In the meanwhile, on 7-8-1993 the father of Ajay Galat made complaint to District Judge, Akola that Ajay was arrested on 2-8-1993 in the night and was beaten up by the policemen in order to extract confession from him in respect of the alleged theft. It appears that the District Judge, Akola directed the Chief Judicial Magistrate, Akola to enquire into the complaint. Accordingly the Chief Judicial Magistrate, Akola enquired and submitted his report on 7-9-1993. After perusal of the report, the District Judge, Akola by his order dated 9-9-1993 directed the Chief Judicial Magistrate, Akola to file complaint against the policemen. Accordingly on 10-11-1993 the Chief Judicial Magistrate, Akola filed complaint against the policemen namely the applicants for the offences punishable under sections 330 and 341 read with section 34 of the Indian Penal Code.

6. On 18-10-1999 the policemen namely the accused i.e. the present petitioners moved an application praying that the cognizance taken against them as well as the proceedings initiated against them may be quashed for want of sanction under section 197 of the Code of Criminal Procedure. The said application was rejected by the learned Chief Judicial Magistrate, Akola by his order dated 16-5-2000. It was challenged by the petitioners by filing criminal revision application and the revision was dismissed by order dated 3-4-2002. Both these orders are challenged by the present petition.

7. The learned counsel for the petitioners submitted that the allegations against the petitioners are two-fold. Firstly that they restrained Ajay Galat from the night of 2-8-1993 and did not produce him before the Magistrate within 24 hours from the time of his arrest and secondly while he was in their custody he was beaten up to extract confession. The learned counsel for the petitioners submitted that the petitioners have denied those allegations, but even if it is presumed for the sake of argument that those allegations are accepted as they are, the prosecution cannot proceed for want of sanction by proper Government under section 197 of the Code of Criminal Procedure. He submitted that Ajay Galat was arrested by the petitioners in discharge of their official duty. He was interrogated by them in the discharge of their official duty. The arrest of Ajay by the petitioners has direct bearing with their official duty and if the allegations that they exceeded their powers by not producing him within time before the Magistrate and by beating him while in custody would also come within the mischief of Section 197 of the Code of Criminal Procedure. The protection given to the public servants under section 197 of the Code of Criminal Procedure is extended even to such excesses. In support of this submission, he relied on :

i) N. K. Ogle Vs. Sanwaldas alias Sanwalmal Ahuja, AIR 1999 SC 1437, in which it was held :-

A court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the concerned government servant.

ii) K. K. Patel and another Vs. State of Gujarat and Anr., (2000)6 SCC 195 : [2000 ALL MR (Cri) 1232], in which it was observed :-

The words "under colour of duty" have been used in Section 16(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchanama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or "as a veil to his falsehood". The acts thus done in dereliction of his duty must be held to have been done "under colour of the duty".

iii) Rizwan Ahmed Javed Shaikh and Ors. Vs. Jammal Patel & Ors., (2001)5 SCC 7 : [2001 ALL MR (Cri) 1512 (S.C.)], in which it was explained:-

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.

iv) State of Orissa and others Vs. Ganesh Chandra Jew, 2004 ALL MR (Cri) 1492 (S.C.) in which it was explained:-

The question is how should the expression, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understood ? what does it mean ?..

Use of the expression, "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities to that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted.

8. The learned APP, on the other hand, submitted that the act on the part of the petitioners in not producing Ajay before the Magistrate within time prescribed by law and beating him to extract confession are not protected and they would not be entitled to seek protection of Section 197 of the Code of Criminal Procedure. In this connection he relied on following cases :

i) P. P. Unnikrishnan and Anr. Vs. Puttiyottil Alikutty and Anr., AIR 2000 SC 2952, in which it is observed:-

A police officer who commits torture on complainant and keeps him in lock-up room cannot salvage himself from prosecution which is on ground that it is time-barred on plea that acts committed by him are done in pursuance of duty imposed or authority conferred on him by Act. Complaint filed in such cases after expiry of six months from date of offence is not time-barred.

It may be noted that (2000)6 SCC 195 : [2000 ALL MR (Cri) 1232] (supra) which was decided earlier was referred to in this case and the same was distinguished. In these cases provisions of different State Laws were considered by the Apex Court and that is why (2000)6 SCC 195 : [2000 ALL MR (Cri) 1232] (supra) was not followed. However that does not mean that the earlier case has been overruled.

ii) Shambhoo Nath Misra Vs. State of U.P. & Ors., AIR 1997 SC 2102 : [1997 ALL MR (Cri) 987 (S.C.)].

iii) M. Narayandas Vs. State of Karnataka & Ors., 2004 Cri.L.J. 822 : [2004 ALL MR (Cri) 217 (S.C.)].

9. Considering the above case law, I find that in the present case the petitioners are entitled to the protection of Section 197 of the Code of Criminal Procedure. The prosecution against them cannot be proceeded with in the absence of previous sanction as required under Section 197 of the Code of Criminal Procedure. I am convinced that to allow the prosecution to continue against the petitioners would be an abuse of the process of the Court. It is a fit case in which inherent powers of the Court should be invoked. Hence, I pass the following order:

i) The criminal writ petition is allowed.

ii) The orders dated 16-5-2000 and 3-4-2002 are quashed and set aside.

iii) The proceedings in Criminal Complaint Case No.21150 of 1993 are quashed.

Petition allowed.