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2000 DIGILAW 734 (PAT)

Ajay Kumar v. Girijanand Prasad

2000-05-18

P.K.SINHA

body2000
Judgment 1. ORDER :- Quashing appliction bearing Cr. Misc. No. 2018 of 1998 has been filed by Dr. Ajay Kumar, the City Superintendent of Police, Patna at the relevant time, whereas quashing application bearing Cr. Misc. No. 8644 of 1996 has been filed by Shri Amrit Singh Nimbran. The Senior Superintendent of Police, Patna at the same time, under Sec. 482 of the Code of Criminal Procedure (The Code, in short) both praying therein to quash the order dated 17-9-1994 passed by Sri Birendra Singh, the then Judicial Magistrate, Ist Class, Patna in Complaint Case No. 933(C) of 1992 whereunder, after enquiry, the learned Magistrate had found that a prima facie case against the petitioners was made out under Secs. 323 and 504 of the Indian Penal Code and there were sufficient grounds for proceeding against them, further directing the complainant to file requisites for issuance of summonses against them. Both the cases emanate from the same complaint case which was filed by Shri Girija Nandan Prasad, hence have been heard together and, with consent of the parties are being disposed of under this order. 2 The facts, briefly stated, as in the complaint petition, Annexure 1 which was filed against these petitioners and one Shri S. N. Pradhan, are that on 28-10-1992 a young man of the Mohalla approached complainants wife for using his telephone which was allowed, who was also joined by another person and talked on phone with someone. The wife complained thereafter to the complainant that those two persons did not appear to be good men. Wife of the complainant though recognised the persons who had come but she did not know their names. In the same night a person introducing himself as S. K. Sinha phoned and sought an interview with the complainant, an Advocate, for legal consultation and on his subsequent insistance, the complainant agreed to his request and gave out his address. 3. The allegation further is that at 1.a.m. in the same night there was knocking at the door and the complainant was called by name. 3. The allegation further is that at 1.a.m. in the same night there was knocking at the door and the complainant was called by name. When he saw four persons knocking the grill of the house demanding to open the gate in abusive language, the complainant and his wife, to save themselves, crossed over to a neighbours house who,subsequently, asked them to come out at the persons who had come were but police officers in plain clothes, at which they come out from hiding. Thereafter those newcomers, including these two petitioners, assaulted him brutally and also abused the complainant and the community of the lawyers at large. When the wife tried to intervene she also was assaulted by pulling her hair. The complainant and his wife told the police officers about the phone call made by the young man of the Mohalla named Vinod Kahar at which Vinod Kahar was apprehended and, at his instance, kidnapped boy was recovered. On way of the Phulwari Sharif the policemen again assaulted the complainant and, at the police station itself the complainant was again beaten by one Shri S. N. Pradhan, a police officer then posted at Danapur. After that the complainant was also produced before one I.G. of Police where also he was assaulted. On 30-10-1992, the complainant was handcuffed and tied with a rope in his waist and was taken to Danapur Court. 4. The fellow lawyers, as stated, moved the High Court in Cr.W.J.C. No. 598 of 1992 complaining the highhandedness of the police. A medical Board, constituted under the orders of this Court, in its report revealed that the complainant had received as many as 10 injuries on his person, all caused by hard and blunt substance at which he was hospitalised at Patna Medical College and Hospital and subsequently he was ordered to be released on bail on 17-12-1992. Thereafter the complaint was filed on 23-12-1992. 5. From the impugned order it will appear that after examination of the complainant on solemn affirmation, during enquiry three more witnesses were produced by the complainant after which the petitioners were ordered to be summoned to face trial. Thereafter the complaint was filed on 23-12-1992. 5. From the impugned order it will appear that after examination of the complainant on solemn affirmation, during enquiry three more witnesses were produced by the complainant after which the petitioners were ordered to be summoned to face trial. It will also appear from the impugned order that the learned Sub-divisional Judicial Magistrate also had considered the applicability of Sec. 197 of the Code and held that the acts alleged against the petitioners did not appear to have been committed while acting or purporting to act in due discharge of their official duties, hence no sanction for their prosecution was necessary. 6. The case of the petitioners in the instant application is that on 28-10-1992, Danapur police station case No. 346 of 1992 was instituted under sections 368, 365, 120-B read with Sec. 34 of the Indian Penal Code on the allegation that a four and half years old child Abhishekh Gupta, son of informant, was kidnapped by criminals in a car. The F.I.R. is Annexure 2 to this petition. It is further stated that soon after kidnapping the kidnapper phoned Krishan Gupta, the informant, demanding ransom of Rs. 7,00000.00 threatening to kill the child if any information was given to the police. Senior Superintendent of Police, one of the petitioners, managed to trace out the phone number (230718) which was used by the kidnappers for demand of ransom and a team was constituted including the two petitioners who went to the house of the complainant. The door of the complainant was knocked, but the door was not opened though the wife of the comlainant saw them. The petitioners also heard cry of a child, and apprehending that the kidnapped boy was being killed, the police officers started scaling the wall. The complainant and his wife seeing the police personnel jumped to the adjoining house of the neighbour. The police party sought help from the owner of the house and thereafter arrested the complainant. The petitioners also heard cry of a child, and apprehending that the kidnapped boy was being killed, the police officers started scaling the wall. The complainant and his wife seeing the police personnel jumped to the adjoining house of the neighbour. The police party sought help from the owner of the house and thereafter arrested the complainant. On interrogation the complainant admitted to have provided his house as a hide out to the kidnappers who also used the said telephone for demand of ransom and on further interrogation, the complainant also had given more clues and details of kidnapping and took the police party to the place where two kidnappers were found sleeping who were arrested and thereafter they took the police party to the place where the kidnapped child was kept, who was rescued. The aforesaid case, as claimed by the petitioners, was also investigated by Criminal Investigation Department which also found enough material against the complainant and submitted charge-sheet against the accused including the complainant. 7. In the petition it has been claimed that the complainant had filed a malicious and vexatious case against the petitioners since he was arrested in the case. It has been claimed that there being no enmity between the petitioners and the complainant, the petitioners were only doing their duty for solving a case, further denying that the complainant was assaulted in course of arrest. It has further been claimed that in such a case, the sanction of the Government under Sec. 197 of the Code was essential without which the prosecution could not have been launched against the petitioners. It has also been mentioned in the application that in so far as the case of S. N. Pradhan was concerned, he had filed an application dated 9-12-1996 seeking protection in terms of the general directions of the Supreme Court in case of "Common Cause" A Registered Society through its Director V/s. Union of India, AIR 1996 SC 1619 , which application was allowed by the Court vide order dated 1-2-1997 and the case against that accused was closed, and he was acquitted. 8. It will appear that the complainant opposite party No. 1 in this case appeared and filed show cause denying the averments made in the main petition. 8. It will appear that the complainant opposite party No. 1 in this case appeared and filed show cause denying the averments made in the main petition. Besides denial, and supporting the allegations made in the complaint petition, it has been mentioned in the show cause that at the time when the police were assaulting him, the complainant had told them that if he was killed by the police, he would be unable to tell them anything about the kidnapping incident, as also that he had nothing to do with the said crime. Along with the show cause, a copy of the injury report has been filed showing 10 injuries upon the complainant, mainly bruises which were found to be simple. 9. The only point that has been argued before me, for and against, by Shri S. D. Yadav, learned counsel for the petitioners and by Shri Damodar Prasad Tiwary, learned A.P.P., in both the cases and by Shri Keshav Shrivastava, Sr. Advocate for opposite party No. 1, revolved round the poser as to whether or not in this nature of case sanction of the Government was necessary before the accused could be prosecuted, as required under Sec. 197 of the Code. 10. In this regard, the learned Counsels have placed before me decisions of this Court and the Apex Court which may be discussed first. Learned counsel for opposite party No.1 has placed decision of this Court in the case of N. C. Dhoundial V/s. State of Bihar (1997) 2 Pat LJR 754. In that case some C.B.I. officials had entered into the house of one Shri Hemchan, posted at the relevant time as D.I.G., and the Executive Director (Vigilance) in Central Coal Field Ltd., purportedly in connection with a case. Learned single Judge of this Court in that case noted that except the assertion in the complaint petition that a false case was instituted by the accused persons being RC 17A/92 there was nothing on the record to show that the accused persons had gone to the house of the complainant in connection with an investigation of a regularly instituted case. Learned Judge also noted that there also was nothing on the record to show that the petitioners had any search warrant or had authority of law to search the house of the complainant, hence it could not be assumed that, being the officials of the C.B.I., they must have gone in connection with the investigation of a case under valid authority in law. Therefore, it was held, there was no reason to hold that the acts complained of were done in course of official duties of the petitioners. That judgment was recorded on the basis of the materials then available on a record but with further observation that if at a subsequent stage of the proceeding material was brought on the record to show that the accused persons had gone in connection with investigation of a case under valid search warrant, the Court might consider that question and might come to the conclusion that the prosecution was vitiated for want of sanction. 11. Learned counsel for opposite party also has relied upon the decision of the Supreme Court in the case of Pukhraj V/s. State of Rajasthan (1973) 2 SCC 701 : (1973 Cri LJ 1795). Even in that case it was indicated that even if in discharge of official duties some excesses had been made by the Officer concerned, the case of sanction must be held to be made out. However, it was also held, on facts of case, that the Post Master General could be not permitted to contend that kicking the clerk, when such clerk had requested to cancel his transfer order, was resorted to in purported exercise of official duty, therefore sanction was not necessary. In the facts of that case it was clear that the act alleged had no nexus with the exercise of official duties of the official concerned. 12. The case of Budhi Parkash Yadav V/s. K. C. Sharma, 1981 Cri LJ 993 a decision by a single Judge of Punjab and Haryana High Court has also been relied upon but the ratio of that case is not applicable to the facts of this case as the plea of protection under Sec. 197 of the Code in that case was taken at the enquiry stage. 13. 13. Another decision by the same Court in the case of Surjeet Singh V/s. Jit Singh, 1998 Cri LJ 3562 has been cited but the facts of that case are also different. That was a case of custodial death and since the allegation was that the accused police officials had tortured and caused death of a person in their custody, it was held that the act could not be said to be in discharge of their official duties. 14. Sri S. D. Yadav, learned counsel for the petitioners has drawn my attention to a decision of this Court in the case of Devendra Kumar Sinha V/s. Har Narain Singh (1999) 3 Pat LJR 842. As per the facts of that case, the Bar Association and the Collectorate at Banka were adjacent with a common boundary wall, with an opening in the same. On a Bihar Bandh day hooliganism was resorted to by some anti-social elements in the collectorate resulting in lathi charge also. The district administration felt that the opening in the boundary wall was being used by unauthorised persons for entering into the collectorate premises and, therefore, they proceeded to seal the wall. In the complaint case lodged subsequently by the Joint Secretary of the Banka Bar Association, it was alleged that the accused officials were trying to put up boundary wall and when the complainant and other witnesses protested, the accused persons called them names, abused them and got two hotels standing in the premises of the Bar Association demolished and also lifted stone chips, bricks, and sand which were used for construction of the new boundary wall. 15. The learned single Judge came to the conclusion that the alleged act of raising of boundary wall was in bona fide discharge of the official duties of the accused and, nothing several decisions in that regard, held that initially the petitioner was acting under aegis of official duties but on the spur of moment had exceeded in the discharge of such duties, therefore the petitioner was entitled to the protection of Sec. 197 of the Code. In the case of Matajog Dobey V/s. H. C.Bhari, AIR 1956 SC 44 : (1956 Cri LJ 140) this question came up for consideration. The case before the Apex Court arose out of the decision of the Calcutta High Court in two revision petitions. In the case of Matajog Dobey V/s. H. C.Bhari, AIR 1956 SC 44 : (1956 Cri LJ 140) this question came up for consideration. The case before the Apex Court arose out of the decision of the Calcutta High Court in two revision petitions. In those cases, in connection with certain proceedings before the Income-tax Investigation Commission authorised officials went to a house, darwan of which challenged them but, as allegations go, they broke open the door, went inside and interfered with some boxes and drawers of tables, besides they tied the darwan with a rope and assaulted him causing injuries. The same officials in the other case raided another premises and forcibly opened the lock of the door of the room in which books and papers were kept and when they were protested against for packing those into bundles for removal, two policemen held the protester down and he was assaulted mercilessly, kicked, dragged downstairs and put in a Maruti Van. Thereafter he was taken to the police station where he was assaulted again. Their Lordships of the Supreme Court in that case held as follows :- "The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No quesion of sanction can arise under Sec. 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits." 16. In that case observation made in the case of Hori Ram Singh V/s. Emperor, AIR 1939 FC 43 : (1939 (40) Cri LJ 468) was also noted in which it was observed that it was not necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. In such case there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. 17. In such case there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. 17. In the case of Shreekantiah Ramayya Munipalli V/s. State of Bombay, AIR 1955 SC 287 : (1955 Cri LJ 857) following observation was made, as also noted with approval in the case of Matajog Dobey (1956 Cri LJ (49) (SC) (supra) :- "Now it is obvious that if Sec. 197, Cr.P.C. is construed too narrowly it can never be applied for of course it is no part of an officials duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it." 18. Sec. 197 of the Code is designed to provide protection to the public servants from malicious vexatious prosecution. If a public servant has committed an offence, he has to be prosecuted but if it was done by him while acting or purporting to act in due discharge of his official duties, his prosecution can take place only after sanction has been obtained from the appropriate Government. At the same time it is also true that this protection is not meant to protect a public servant committing an offence which has no nexus or is not related in some manner to his due discharge of official duties. Keeping in view the object of this provision, and to give it meaning it was designed to have, this provision cannot be interpreted narrowly. Simply because it prima facie appears that some offence has been committed in excess of official duties it cannot be argued that, therefore the public servant was not protected under Sec. 197 of the Code on argument that committing any offence cannot be said to be in due discharge of official duties. 19. In order to attract the provision of Sec. 197, what has first to be seen is if the person who is alleged to have committed the offence 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. 19. In order to attract the provision of Sec. 197, what has first to be seen is if the person who is alleged to have committed the offence 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. Once that is established then the only thing that remains to be seen is as to whether the offence alleged to have been committed was committed by him while acting or purporting to act in discharge of his official duties. 20. It is admitted position that the petitioners were public servants, not removable from their office save by or with the sanction of the Government. 21. Now coming to the act complained of, there is sufficient material on the record to show that being senior police officers while the case of kidnapping of Abhishekh was being investigated by police, they had located the phone number from which demand of ransom was made, which phone belonged to the complainant, and on basis of that they had gone to the house of the complainant to arrest him. To investigate a crime and to make arrest in a cognizable offence comes within the purview of the official duties of a police officer. Therefore, it will appear that initially they had gone to the house of the complainant while acting or purporting to act in discharge of their official duties. What is alleged is that while making the arrest they had exceeded what was necessary in performing such duties and had abused and assaulted the complainant and his wife. 22. This case was initiated on a petition of complaint filed by the complainant. Shri S. D. Yadav has argued that, as is well known, a complaint petition can be drafted in a way so as to avoid the legal loopholes and in such a case if an enquiry is made by the Magistrate under Sec. 202 of the Code, the leading of evidence is also controlled by the complainant and the Court has little role to play in adducing of evidence, i.e., the Court may put some questions but even that has to be limited. Shri Yadav argued that prosecution by filing a complaint case is different from the case in which investigation is first made by an independent agency such as a police or C.I.D. or C.B.I. 23. Shri Yadav argued that prosecution by filing a complaint case is different from the case in which investigation is first made by an independent agency such as a police or C.I.D. or C.B.I. 23. Even apart from the aforesaid argument of Shri Yadav, from the materials on record it will appear, as already noted, that the petitioners had gone to the house of the complainant in discharge of their official duties. From the allegations it may appear that thereafter they had exceeded in discharge of their official duties and, allegedly, had assaulted the complainant. In such a case, in view of the law already discussed above, and in my opinion, the petitioners are entitled to the protection of Sec. 197 of the Code. 24. The learned counsel for the complainant-opposite party No. 2 has put stress on the injury report, annexed with the show cause. Shri Yadav has submitted that the injuries were simple which could be caused in scuffle. It was also pointed out that the complainant had complained of not only assault by the petitioners, but by policemen also on way to police station, at the police station and in presence of Inspector General of Police. Shri Yadav submitted that, therefore, it is also difficult to say as to by whom the injuries were caused. 25. In view of the aforesaid findings, both the applications are allowed and the impugned order dated 17-9-1994 is hereby quashed in so far as these two petitioners are concerned.Petition allowed.