Binod Kumar Singh v. State Of Bihar — 1985 DIGILAW 115 (PAT)

Judgment 1. The order of refusal to discharge the petitioner in a sessions trial under Ss. 302, 302/109, Penal Code, and under S. 27, Arms Act, has been challenged by way of this Criminal Miscellaneous application for want of sanction under S. 197 Criminal P.C. (hereinafter referred to as the Code). 2. The matter seems to have arisen in the following circumstances. On 17-3-1984 at about 6 p.m. Parmeshwar Sah of village Mungo appeared at Nawadih Police Station and lodged the first information report against the petitioner and two armed constables, for the occurrence, which had taken place the same day at 4.30 P.M. when he was sitting in his shop in the village along with his son Sheo Narayan and his servant Kunwar Singh. It appears that at that very time the petitioner, who is a Block Development Officer of Nawadih came there along with armed force in a jeep, got down from the jeep and went to the verandah of the shop of the informant, Parmeshwar Sah and told him that there was a warrant of arrest against his son Sheo Narayan. On hearing this the informant Parmeshwar Sah requested the petitioner to defer the execution of the warrant of arrest till Holi festival, on which, the petitioner demanded a sum of Rs, 5,000.00 from the informant. The informant offered to pay a sum of Rs. 500/-to which the petitioner, B. D.O., did not agree. Thereafter the Havildar and the constables who were sitting in the jeep came and started dragging the son of the informant, namely, Sheo Narayan, on the order of the petitioner, in a bid to put him in the jeep. This was objected to by the informant, his son Sheo Narayan and his servant Kunwar Singh. The informant and other person who were sitting there resisted the taking away of Sheo Narayan to jeep. Thereupon the petitioner ordered for firing and on his order firing was resorted as a result of which Sheo Narayan, the son of the informant and his servant Kunwar Singh both received gun shot injuries. Kunwar Singh died on the spot and Sheo Narayan died on way while he was being taken to the hospital. After the occurrence the petitioner and the constables who were accompanying him left the place of the occurrence in the jeep. 3. On the statement of the informant, Parmeshwar Sah, a case under Ss. Kunwar Singh died on the spot and Sheo Narayan died on way while he was being taken to the hospital. After the occurrence the petitioner and the constables who were accompanying him left the place of the occurrence in the jeep. 3. On the statement of the informant, Parmeshwar Sah, a case under Ss. 302, 307, 324/34, 342 and 161, Penal Code, and under S, 27, Arms Act as also under the Prevention of Corruption Act was instituted and the police started investigation. 4. After completing investigation the police submitted charge-sheet on 3-4-1984 under S. 302/34, Penal Code, and under S. 27, Arms Act. After receipt of the charge-sheet, cognizance was taken and the case was committed to the Court of Session on 25-7-1984. 5. On 29-9-1984 the date fixed for hearing on charge matter, a petition was filed on behalf of the petitioner with a prayer to discharge him under S. 227 of the Code. 6. The Sessions Judge after hearing the learned counsel for the petitioner and the learned Public Prosecutor rejected the prayer to discharge the petitioner under S. 227 of the Code. Against this rejection order the petitioner has come up before this Court. 7. The record of the case indicates that on the 13th Nov. 1984, charge under S. 302/109, Penal Code, was framed against the petitioner and charge under S. 302, Penal Code, and under S. 27, Arms Act, was framed against another accused Nand Lal Rai. 8. The case of the petitioner is that on the date of the occurrence he was on deputation for maintaining law and order and was the officer reserved for Nawadih Police Station to keep watch over the entire area of the police station for the period from 14-3-1984 to 19-4-1984 and it was his duty to maintain law and order at any cost during the period in question. The petitioner received a written report from the Mukhiya of Tarnari Gram Panchayat regarding the likelihood of the breach of peace in that village for which a request was made to the petitioner to visit the village immediately and to ensure the maintenance of law and order during the Holi festival. The petitioner received a written report from the Mukhiya of Tarnari Gram Panchayat regarding the likelihood of the breach of peace in that village for which a request was made to the petitioner to visit the village immediately and to ensure the maintenance of law and order during the Holi festival. While the petitioner was going to village Tarnari and was passing through village Mungo, he found a mob collected on the road and on seeing the police party the members of the mob started abusing the members of the police party. On this the petitioner asked the driver to stop the jeep and called those persons and asked them as to why they were hurling abuses on him and the patrolling party. His further case is that the members of the mob picked up quarrel with him and the police party and surrounded the jeep. The petitioner got down from the jeep and tried to pacify the members of the mob, who manhandled the petitioner and they further tried to snatch away the rifles from the possession of the armed force. On this one of the members of armed force in order to protect the rifles and person opened fire in which two persons received gunshot injuries. The petitioner and the armed force thereafter left the place of the occurrence and straightway went to the police station and submitted a written report about the incident on which no action was taken by the police. Further case of the petitioner is that whatever he did, he did it in the discharge of his official duty when the alleged occurrence took place and, therefore, in view of the provisions contained in S. 197 of the Code no Court has got jurisdiction to take cognizance of the alleged offence against him. 9. In the instant case certain facts are admitted. The petitioner was the Block Development Officer and was posted as such in Nawadih block at the relevant time. On the date of the occurrence he was the officer reserved for Nawadih Police Station for maintaining the law and order within the jurisdiction of Nawadih Police Station, for the period from 14-3-184 to 19-4-84. The petitioner was the Block Development Officer and was posted as such in Nawadih block at the relevant time. On the date of the occurrence he was the officer reserved for Nawadih Police Station for maintaining the law and order within the jurisdiction of Nawadih Police Station, for the period from 14-3-184 to 19-4-84. There was firing in front of the shop of the informant in village Mungo by one of the members of the patrolling party as a result of which Sheo Narayan, son of the informant, and Kunwar Singh servant of the informant were killed. The petitioner was a public servant on the date of the occurrence cannot be disputed. 10. The petitioner wants his protection under S. 197(1) of the Code on the ground that what he did, he did it in discharge of his official duty and, as such, he cannot be prosecuted without the previous sanction of the State Government. Sec.197(1) of the Code runs as follows:- "When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction - (a) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government. (b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government." From a plain reading of sub-s. (1) of S. 197 of the Code it is clear that if an act is done by a public servant in discharge of his official duty, he cannot be prosecuted without the previous sanction of the Central Government or the State Government, as the case may be. 11 In the instant case it is to be seen whether the act of the petitioner was within the purview of S. 197(1) of the Code or whether the acts complained were not done in discharge of his official duty. 12. On behalf of the petitioner learned counsel has contended that from the written report of the petitioner it is clear that the firing was resorted to for the safety of the life of the petitioner and the armed constables and for the safety of the rifles, which were going to be snatched away by the members of the mob. The petitioner was moving on the jeep with the members of the patrolling party in discharge of his official duty and, as such, he was protected for any criminal action against him for the alleged murder of two persons. Learned counsel has further contended that the very cognizance in such a case is barred and the Court below has committed serious error of law and facts both by framing charge against the petitioner. According to him it was the official duty of the petitioner to maintain law and order during Holi festival and while he was going to village Tarnari for the maintenance of law and order, he had to order firing to protect himself, the members of the patrolling party also has the rifles and the firing was done in discharge of his official duty and, as such there is reasonable connection between the acts done by him and the official duty in the instant case. He has further contended that even if it is held that the acts done had exceeded what was strictly necessary for the discharge of official duty, even then the petitioner is entitled to his protection under S. 197(1) of the Code and for this learned counsel has referred to a decision in the case of Matajog Dobey V/s. H. C. Bhari, reported in AIR 1956 SC 44 : (1956 Cri LJ 140). 13. Learned counsel for the petitioner, in course of argument cited some more decisions and contended that admittedly the petitioner was a public servant and what he did, he did it in official capacity or in purported discharge of his official duty and, as such, he deserves protection under S. 197(1) of the Code. 13. Learned counsel for the petitioner, in course of argument cited some more decisions and contended that admittedly the petitioner was a public servant and what he did, he did it in official capacity or in purported discharge of his official duty and, as such, he deserves protection under S. 197(1) of the Code. He has further contended that the officer-in-charge of Nawadih police station was so much biased against the petitioner that he did not institute any case on the written report of the petitioner which he filed immediately after the incident. He further submitted that there was nexus between the official duty and the unfortunate incident which took place on the date of the occurrence and as such the cognizance without sanction is illegal and arbitrary. 14. On behalf of the State it has been contended that the allegations levelled against the petitioner in the instant case had nothing to do with his official act or purported discharge of his official act. It was not a part of his duty to visit the shop of the informant on the date of the occurrence in the guise of the Magistrate in charge of patrolling party and it was never his duty to extort a sum of Rs. 5,000.00 from the informant by representing that he had a warrant of arrest against the son of the informant. Learned counsel has further contended that there was no warrant of arrest against the son of the informant and it was a novel method adopted by the petitioner for extorting money from innocent persons. Learned State counsel has further contended that the petitioner had not only made attempt to extort money but also ordered the Havildar and the constables to put the son of the informant into the jeep, which was protested and thereafter the petitioner ordered for firing. According to the learned State Counsel there was no reasonable connection between the acts alleged and the official duty of the petitioner. It was never a part of his duty to do criminal act and kill innocent persons. According to him due to illegal order of the petitioner, firing was resorted to as a result of which life of two innocent persons have been lost. He has further contended that the written report alleged to have been filed by the petitioner is his defence and it cannot be accepted before the trial. According to him due to illegal order of the petitioner, firing was resorted to as a result of which life of two innocent persons have been lost. He has further contended that the written report alleged to have been filed by the petitioner is his defence and it cannot be accepted before the trial. No information was given to the officer-in-charge of Nawadih police station nor any station diary entry was made about the apprehension of the breach of peace in village Tarnari. The petitioner after the alleged occurrence had tried to cover his mischief by giving it a colour of discharge of his official duty in which he has miserably failed. He has further contended that it is not that every offence committed by a public servant which required sanction for prosecution under S. 197(1) of the Code nor even every act done by him while he was actually engaged in the performance of his official duties. According to him the acts complained must have direct link with his official duties then only he is entitled to protection under S. 197(1) of the Code. In support of this contention learned State Counsel has referred to a decision in the case of Prabhakar V. Sinari V/s. Shanker Anant Verlekar. reported in AIR 1969 SC 686 : ( 1969 Cri LJ 10571. He has further contended that it was not a case for discharge under S. 227 of the Code as sufficient materials had been collected in course of investigation against the petitioner and thereafter charge-sheet was submitted. According to him the Sessions Judge has rightly rejected the prayer for discharge. 15. In the instant case from the materials produced by the parties it appears that the petitioner was on deputation as officer reserved for Nawadih P. S. for keeping watch over the entire area and for maintaining the law and order. He had gone to the place of the occurrence at about 4.30 P.M. is not disputed. But the petitioner has failed to give satisfactory explanation for his presence at village Mungo where the occurrence is alleged to have taken place. From the allegations made in the first information report at nowhere it appears that Nhat the petitioner did had any concern with his official duties. But the petitioner has failed to give satisfactory explanation for his presence at village Mungo where the occurrence is alleged to have taken place. From the allegations made in the first information report at nowhere it appears that Nhat the petitioner did had any concern with his official duties. It is not a case in which it can safely be concluded at this stage that the acts complained were done by the petitioner in performing the duties which were assigned to him. There is no material on the record to show that the situation in village Mungo was much explosive that the presence of the petitioner was required there and he had to resort to firing for his safety and for the protection of the rifles. No doubt that the law and order is a ticklish problem but it does not give arbitrary or unlimited power to the Magistrate or to the police. 16. It is further to be noted that the petitioner after filing the written report to the officer-in-charge did not even care to know as to what action was taken on his application. He had not clearly stated in the said written report that he ordered for firing. There is nothing on the record to show that he brought this matter to the knowledge of the higher authorities. The attitude of the State in the instant case also indicates that the acts done by the petitioner were not in discharge of his official duties. It is never the spirit of S. 197(1) of the Code to protect every offence committed by a public servant while he was actually engaged in the performance of his official duties. The acts concerned must have direct connection with his official duties so that, if questioned, it could be claimed to have been done by virtue of official duties and then only sanction would be necessary. 17. In the instant case from the materials available up-till now it cannot be inferred or concluded that the acts complained against the petitioner had any reasonable connection with his official duties assigned to him on the date of the occurrence. 18. It is difficult at this stage to hold that the trial cannot proceed against the petitioner, in absence of sanction, in view of the allegations made against him and the materials collected against him during the course of investigation of this case. 18. It is difficult at this stage to hold that the trial cannot proceed against the petitioner, in absence of sanction, in view of the allegations made against him and the materials collected against him during the course of investigation of this case. It is not possible at this stage to discharge the petitioner on the plea of sanction alone when there are materials against him in the case diary. There appears to be some substance in the contention of the learned State counsel that the written report of the petitioner is his defence and it cannot be accepted without trial. Had it been a case that the acts complained against were done by the petitioner in discharge of his official duty or purported discharge of his official duty then the matter would have been entirely different and the prosecution would not have been given opportunity to prosecute the petitioner. There is absence of reliable or probable material on the record to conclude at this stage that the offences alleged to have been committed by the petitioner were linked in one way or the other with the discharge or purported discharge of his official duty. There appears to be no reasonable connection between the acts complained and the official duty of the petitioner for the alleged occurrence. 19. Learned counsel for the petitioner has challenged the order of the learned Sessions Judge only on the question of sanction. For the reasons stated above, the contention of the learned counsel for the petitioner appears to be without substance and for this he cannot claim discharge in view of sufficient material collected against the petitioner. 20. On a careful scrutiny of the trial Court records and the case diary, I am of the view that the trial can proceed against the petitioner without sanction in the circumstances of this case. There is no merit in this application and it is accordingly dismissed. 21. Before parting with this order I would like to make it clear that the observations made in this order will not affect the merit of the case and will not prejudice the defence of the petitioner during the trial. It will be open to the petitioner to agitate the point of sanction in the trial.