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2006 DIGILAW 592 (GAU)

Rajen Singh v. State of Assam

2006-06-21

I.A.ANSARI

body2006
ORDER I.A. Ansari, J. 1. The opposite party No. 3 herein, namely. Smt. Sukhasri Musahari lodged a complaint in the Court of learned Judicial Magistrate, 1st Class, Jonai, which gave rise to CR Case No. 5/99, the case of the complainant being, in brief, thus. Dead body of a homeguard personnel was found near Sirnen-Chapori Out Post. Following the discovery of the said dead body, a team of police personnel, headed by the accused-petitioner, namely, Rajen Singh, the then Sub-Divisional Police Officer, Jonai, came, on 2-2-99, at about 12.00/1.00 p.m., to the complainant's village at Sonapur, which is located at a distance of about 4 km from the place, where the said dead body was found lying, and assaulted complainant's son, namely, Raju Musahari, mercilessly, took him away after damaging various articles lying at the complainant's house and also set fire to her dwelling house. On 4-2-99, the accused-petitioner along with a team of police personnel, once again, came to the house of Dharani Basumatary, where the Shradh ceremony of the mother of the Dharani Basumatary was being performed, the complainant's husband, Sobharam Basumatary, was beaten so mercilessly that he passed stool in pain and agony, whereupon the police party took him away and that both Raju Musahari and Sobharam Basumatary are still kept in the custody. 2. The learned Court below held an enquiry under Section 202, Cr.P.C. and by its order, dated 16-4-99, took cognizance of the offences under Section 109 read with Sections 436/427/323/34, IPC against the accused named in the complaint including the present accused-petitioner and directed issuance of summons to all of them. 3. By making this application under, inter alia, Section 483, Cr.P.C. read with Article 227 of the Constitution of India, the accused-petitioner aforementioned has impugned the order, dated 16-4-99, aforementioned on the ground that the allegations levelled against him are completely false and baseless and that his prosecution for the offences alleged to have been committed by him is not maintainable, for, in the facts and circumstances of the case at hand, sanction for his prosecution under Section 197, Cr.P.C. read with Section 6 of the Assam Disturbed Areas Act, 1955, ought to have been obtained before taking cognizance. Having not obtained the requisite sanction, the prosecution of the accused-petitioner is wholly illegal and the impugned order, to the extent that the same directs issuance of summons to the accused-petitioner, may be set aside and quashed. 4. I have heard Mr. N. Dutta, learned Senior Counsel, and Mr. B. Sinha, learned Additional Public Prosecutor, Assam, for the respondent Nos. 1 and 2. I have also heard Mr. M. Sarania, learned Counsel for the complainant-Opposite Party No. 3. 5. Assailing the impugned order, Mr. N. Dutta has submitted that the impugned order shows that the cognizance of the offence has been taken against the accused-petitioner under Section 436, IPC on the ground that he had not tried to stop a police personnel, who had allegedly set fire to the house of the complainant. For the omission to do so, points out Mr. Dutta, the accused-petitioner cannot be held to be criminally liable. At any rate, in respect of the offences allegedly disclosed by the complaint and the materials on record, no cognizance, according to Mr. Dutta, ought to have been taken against the accused-petitioner inasmuch as the offences, so disclosed, were committed by the accused-petitioner, while discharging his official duty and for prosecution of the accused-petitioner for the offences allegedly committed, sanction under Section 197, Cr.P.C. was essential. 6. Assailing further the impugned order, Mr. N. Dutta has drawn the attention of this Court to the provisions of Sections 4, 5 and 6 of the Assam Disturbed Areas Act, 1955, to show that under Section 5 of the said Act, if a police officer is of the opinion that a structure is utilized as a hideout or shelter by armed gangs or absconders wanted for offences in connection with the disturbances, he may destroy any such hideout or shelter and if he does so, Section 6 of the said Act provides protection to such a police officer from prosecution except with the previous sanction of the State Government. In the case at hand, points out Mr. In the case at hand, points out Mr. Dutta, the complainant's case, if closely examined, reveals that a team of police personnel, headed by the accused-petitioner, went to the village of the complainant following discovery of the dead body of a Homeguard personnel and brought out the complainants son, beat him up and took him away, but before taking him away, the police party set fire to the house of the complainant destroying the same and also damaging the properties lying there and that the police party came, once again, after two days, beat the complainant's husband and took him away with them. It is also the case of the complainant, further points out Mr. Dutta, that at the time of lodging of the complaint, the complainant's son and her husband were already arrested and were in custody. 7. The complaint, thus, discloses, points out Mr. Dutta, that the complainant's son and husband were being looked for by the police, the police visited their house, arrested them from their house, took them into custody and their house was destroyed by setting fire thereto. These alleged acts of the police party, led by the accused-petitioner, are, according to Mr. Dutta, completely protected under Section 197, Cr.P.C. read with Section 6 of the said Act, for, a police officer, while affecting an arrest, submits Mr. Dutta, is entitled to use force as may be required in order to apprehend the person accused of an offence. In the case at hand, contends Mr. Dutta, even if the police party used force for making the arrest of the complainant's son and husband and while using the force, the police exceeded the limit to which the use of force was required, the fact remains that the offence, so committed under Section 323, IPC, cannot be said to be not in the discharge or purported discharge of official duty and, hence, such an act is protected, submits Mr. Dutta, under Section 197, Cr.P.C. and no cognizance ought to have been taken against the accused-petitioner under Section 323, IPC without obtaining sanction for his prosecution. This apart, the house, which was allegedly destroyed by the police party, was, according to Mr. Dutta, under Section 197, Cr.P.C. and no cognizance ought to have been taken against the accused-petitioner under Section 323, IPC without obtaining sanction for his prosecution. This apart, the house, which was allegedly destroyed by the police party, was, according to Mr. Dutta, nothing, but a structure utilized as a hideout or as a shelter by the complainant's son and husband, both of whom were absconders and were wanted in connection with the offences for which they were, eventually, arrested. In such circumstances, when, in exercise of the power under Section 5 of the said Act, the police party headed by the accused-petitioner could have destroyed the said house, the same being utilized as a shelter by absconders, the alleged acts of destroying the house or destroying the properties lying inside the said house were nothing but acts, which were all done in exercise of the powers, which were conferred on the accused-petitioner under Section 5 and in such a case, the protection provided to a police of fleer under Section 6 of the said Act would remain available. 8. In support of his submission that an act, even if the same amounts to offence, is done, while acting or purporting to act in the discharge of a public servant's duty or in the discharge of a police officer's duty in exercise of the powers under Section 5 of the said Act, such acts, which may amount to offence, require sanction of the State Government for prosecution of such a public servant or police officer, Mr. Dutta has placed reliance on Sankaran Moitra v. Sadhana Das Criminal Appeal No. 330/06 decided on March 24, 2006 reported in AIR 2006 SC 1599 . 9. Controverting the above submissions made on behalf of the accused-petitioner, Mr. M. Sarania, learned Counsel for the complainant-Opposite party No. 3, has submitted that the law cannot protect criminals and in the facts and circumstances of the present case, when the accused-petitioner committed offence as serious as under Section 436, IPC, such an offence cannot be said to be protected under Section 197, Cr.P.C. and/or under Section 6 of the said Act. As far as the learned Additional Public Prosecutor is concerned, his submission is that this Court may pass such order or orders as may be warranted by the facts of the present case and the law relevant thereto. 10. As far as the learned Additional Public Prosecutor is concerned, his submission is that this Court may pass such order or orders as may be warranted by the facts of the present case and the law relevant thereto. 10. Before entering into the rival submissions made before me on behalf of the parties, let me point out that the vires of the Assam Disturbed Areas Act, 1955, was challenged along with some other legislations, such as, the Armed Forces (Special Provisions) Act, 1958, in Naga People's Movement of Human Rights v. Union of India reported in AIR 1998 SC 465 . The Assam Disturbed Areas Act, 1955, was held, in Naga People's Movement of Human Rights (supra), to be a valid piece of legislation. 11. In the background of the fact that the Assam Disturbed Areas Act, 1955, has been held to be a valid piece of legislation, let me, now, quote hereinbelow the provisions of Sections 3, 4 and 5, which are relevant in the present case: Section 3 : Powers to declare areas to be disturbed areas - The State Government may, by notification in the Official Gazette, declare that the whole or any part of any district of Assam, as may be specified in the notification, is a disturbed area. Section 4 : Power to fire upon persons contravening certain orders - Any Magistrate or Police Officer not below the rank of Sub-Inspector or Havildar in case of the Armed Branch of the Police or any officer of the Assam Rifles not below the rank of Havildar, may, if in his opinion, it is necessary so to do for the maintenance of public order, after giving such warning, if any, as he may consider necessary, fire upon, or otherwise use force even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in a disturbed area, prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or fire-arms, ammunition and explosive substances. Section 5 : Powers to destroy arms, fortified positions, etc. Section 5 : Powers to destroy arms, fortified positions, etc. - Any Magistrate or Police Officer not below the rank of Sub-Inspector or any officer of the Assam Rifles not below the rank of Jamadar may, if in his opinion, it is necessary so to do destroy any arms dump, prepared or fortified positions or shelters from which armed attacks are made or attempted, structures used as training camps for armed volunteers or utilized as hideouts or shelters by armed gangs or absconders wanted for offences in connection with the disturbances. 12. A bare reading of Section 3 shows that the State Government may, by notification in the Official Gazette, declare the whole or any part of any district of Assam as a disturbed area. There is no dispute before me that at the relevant point of time, the Sub-division of Jonai, where the alleged occurrence took place, was, pursuant to a notification issued, in this regard, under Section 3 of the said Act, was a disturbed area. As the whole of the Sub-division of Jonai was a disturbed area, a police officer, not below the rank of a Sub-Inspector, was empowered, under Section 4 of the said Act, to use force even to the extent of causing death of any person, who was acting in contravention of any law or order in force in a disturbed area. Similarly, Section 5 of the said Act empowered a police officer, not below the rank of Sub-Inspector, to destroy any arms dump, prepared or fortified positions or shelters from which armed attacks were made or attempted, structures used as training camps for armed volunteers or utilized as hideouts or shelters by armed gangs or absconders wanted for offences in connection with the disturbances. 13. Though described as draconian by Mr. Sarania, learned Counsel for the complainant-opposite party No. 3, the fact remains that Sections 4 and 5 have been held to be, as indicated above, valid pieces of legislation and, hence, the accused-petitioner, being of the rank of Sub-Divisional Police Officer, at the time of the alleged occurrence, was, indeed, a police officer, who was competent to use such powers as are conferred by Sections 4 and 5 of the said Act. Thus, the accused-petitioner was empowered to use such force as may be necessary and exercise of such powers could have extended even to the causing of death of any person, who, in the opinion of a police officer, such as, the accused-petitioner, an offender or an absconder wanted for offences in connection with the disturbances. The accused-petitioner was also empowered, under Section 5 of the said Act, to destroy, if, in his opinion, it was necessary so to do, any structure, which obviously would include even a dwelling house, if such a structure was, in the opinion of the accused-petitioner, utilized as a hideout or shelter by absconders wanted for offences in connection with the disturbances. 14. Coupled with the above, it is also worth noticing that if the accused-petitioner had, in exercise of his powers conferred by Sections 4 and 5 of the said Act, done any act or omitted to do any act, which amounted to an offence, his prosecution was, in the light of the provisions of Section 6 of the said Act, impermissible for commission of such an offence. 15. In the case at hand, it is the admitted case of the parties that the police force swung into action on the discovery of the dead body of a Homeguard personnel and following this discovery, the police force, allegedly headed by the accused-petitioner, went to the complainant's house, apprehended the complainant's son, destroyed her house by setting fire thereto, damaged the properties lying there and took away her son. Strictly speaking, the setting fire to the house and using of force more than necessary would amount to offences unless protected by law. Similarly, the alleged acts of the accused-petitioner's coming into the complainant s village, catching hold of her husband, taking him away and putting him in custody were all within the powers available to the accused-petitioner even if the accused-petitioner, while doing these acts, had exceeded the powers conferred on him. While apprehending and taking away the complainant's son and husband, if the police officer concerned had beaten them up, it would be nothing, but exceeding the limit of the power of using of force, which a police officer ought to have, otherwise, avoided. Can, in such circumstances, a police officer, such as, the accused-petitioner, be held entitled to protection under Section 6 of the said Act and/or Section 197, Cr.P.C.? Can, in such circumstances, a police officer, such as, the accused-petitioner, be held entitled to protection under Section 6 of the said Act and/or Section 197, Cr.P.C.? While considering the aspect of the case, it may be pointed out that the provisions contained in Section 6 of the said Act necessitating obtaining of sanction for prosecution under the circumstances specified therefore have also been hold to be valid in Naga People's Movement of Human Rights AIR 1998 SC 431 (supra). 16. For the sake of clarity, let me quote hereinbelow, Section 6 of the said Act, which reads as follows: Section 6 : Protection of persons acting under Sections 4 and 5 - No suit, prosecution or other legal proceeding shall be instituted except with the previous sanction of the State Government against any person in respect of anything done or purporting to be done in exercise of the powers conferred by Sections 4 and 5. 17. Let me also quote, at this stage, Section 197, Cr.P.C., which run as follows: Prosecution of Judges and public servants.- (1) 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: Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of Sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3-A) Notwithstanding anything contained in Sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 18. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 18. From a bare reading of Section 197, Cr.P.C., it is clear that when a 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, no Court shall take cognizance of such offence except with the previous sanction of the State Government or the Central Government, as the case may be, if the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. 19. In short, if an act, which constitutes an offence, is allegedly done by a public servant, who falls within the category of the public servants mentioned in Section 197, Cr.P.C., such a public servant cannot be proceeded against and no cognizance of such offence can be taken if the offence has been committed by him without sanction as contemplated in Section 197, Cr.P.C. provided that the act, constituting the offence, is done by him, while acting or purporting to act in the discharge of his official duty. 20. Turning to the question as to whether in the facts and circumstances of the present case, sanction under Section 197, Cr.P.C. was required, it is pertinent to note that sanction under Section 197, Cr.P.C. is required only in respect of persons, who are removable from office by or with the sanction of the Government. It is not in dispute that the accused-petitioner, being, at the relevant time, a Sub-Divisional Police Officer, falls within the category of the public servants, who are covered by the provisions of Section 197, Cr.P.C. 21. While considering the scope and ambit of Section 197, Cr.P.C., it may be borne in mind that the protection conceived under Section 197, Cr.P.C. is meant to protect responsible public servants from being dragged to vexatious criminal proceedings for offences allegedly committed by them, while acting or purporting to act as public servants. While considering the scope and ambit of Section 197, Cr.P.C., it may be borne in mind that the protection conceived under Section 197, Cr.P.C. is meant to protect responsible public servants from being dragged to vexatious criminal proceedings for offences allegedly committed by them, while acting or purporting to act as public servants. The object behind Section 197, Cr.P.C. is to afford adequate protection to public servants in order to ensure that they are not prosecuted for acts done by them in the discharge of their official duties without reasonable cause and without sanction having been obtained from the Government concerned for such prosecution. This protection has defined parameters and is limited to such acts, which have been done by a public servant in the discharge or in the purported discharge of his official duties. To put it differently, the protection, envisaged under Section 197, Cr.P.C., 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. If in doing his official duty, a public servant acts in excess of his duty, yet if there is a reasonable connection between the act done and the performance of the official duty, the excess will not deprive the public servant of the protection available to him under Section 197, Cr.P.C. See Bakhshish Singh Brar v. Smt. Gurmej Kaur 1988 CriLJ 419. See also State of Himachal Pradesh v. M.P. Gupta reported in (2004) 2 SCC 349 . 22. While considering the scope of Section 197, Cr.P.C., it is apposite to recall the law laid down in HHB Gill v. The King wherein the Privy Council held, "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty." This view has been approved by the Privy Council in Albert West Meads v. The King. 23. The acts, which Section 197, Cr.P.C., seek to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. Thus, the protective umbrella of Section197, Cr.P.C. extends to only such acts, which fall within the scope and range of a public servant's official duty. 23. The acts, which Section 197, Cr.P.C., seek to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. Thus, the protective umbrella of Section197, Cr.P.C. extends to only such acts, which fall within the scope and range of a public servant's official duty. In other words, for availing protection under Section 197, Cr.P.C. the act of the public servant concerned must not only fall within the scope and range of his official duty, but that the offence must be connected with the official duty and not unconnected therewith. The necessary corollary flowing from this limitation is that when an act is prohibited to be done by a public servant in the discharge of official duty, such act of the public servant, though committed during the discharge of the official duty, will not be protected under Section 197, Cr.P.C. 24. From what has been observed above, it is clear that the primary test for determining if an act, which constitute offence, is an act, which can be claimed to have been done in the discharge or purported discharge of the duty, is that when questioned, the officer must be able to say that whatever has been done by him in the discharge or purported discharge of his duties. There is subtle, but definite distinction between the expression 'during the discharge of official duties' and 'in discharge of official duty'. An Officer may be on duty; but what he might have done may be an offence, which will fall outside his duty. For instance, when a Police Officer, on duty, commits offence of rape, he cannot say that since he was on duty, the act done by him is protected by Section 197, Cr.P.C. The test, therefore, is that the act, which an accused has allegedly done, must be shown to form part of his duty, though he may have exceeded his powers, while discharging his duties. 25. What is, now, of utmost importance to note is that unless an act, allegedly committed by a public servant of the categories mentioned in Section 197, Cr.P.C., amounts to an offence, the question of taking resort to Section 197 does not arise at all. 25. What is, now, of utmost importance to note is that unless an act, allegedly committed by a public servant of the categories mentioned in Section 197, Cr.P.C., amounts to an offence, the question of taking resort to Section 197 does not arise at all. In other words, an act, which becomes a subject-matter of prosecution and sanction in terms of Section 197, must amount to an offence, for, unless an act, complained of, amounts to an offence, the question of taking resort to Section 197 would not arise at all. At the first blush, therefore, the requirement of sanction under Section 197 is paradoxical. On the one hand, Section 197 protects a public servant from being prosecuted without sanction if the acts, which constitutes the offence, has been done by him, while acting or purportedly acting in the discharge of his official duties, it (Section 197) allows, at the same time, prosecution of such a public servant without sanction if his act, which constitutes the offence, was done by him, while not acting in the discharge or purported discharge of his duties. 26. Though, in either case, an offence is committed by a public servant, he is, in one case, protected; whereas, in the other case, he is not. It is in this context that the meaning of the expression 'while acting or purporting to act in discharge of his official duty' needs to be carefully analysed and understood, for, it can never be a part of the duty of a public servant to commit an offence. Thus, if construed too narrowly, Section 197 can never be applied, for, it is no part of the duty of a public servant to commit an offence. At the same time, if the expression, 'while acting or purporting to act in the discharge of his official duty', is construed liberally, it may vest in a public servant absolute power and make him berserk. 27. There is yet another significant aspect of Section 197, Cr.P.C., which, unless carefully taken note of, may lead to aberrations in the course of administration of justice. When an act is done, though offence, honestly in the discharge of public duty, it is protected under Section 197. However, when such a public servant dishonestly acts in the discharge of his public duty and thereby commits an offence, can he be still covered by Section 197? When an act is done, though offence, honestly in the discharge of public duty, it is protected under Section 197. However, when such a public servant dishonestly acts in the discharge of his public duty and thereby commits an offence, can he be still covered by Section 197? The answer to this question has to be in the affirmative, for, such a dishonest act will be covered by the expression purporting to act in the discharge of his official duty'. Thus, not only the honest discharge of a public servant's duty, which may amount to an offence, would be protected under Section 197, but also his dishonest act, which too may amount to an offence, would be protected if the act can be construed to be in the purported discharge of his duties. It is, therefore, necessary that the act of the public servant is examined in order to test if the act amounts to an offence and if so, whether such an act has been done, while acting or purporting to act in the discharge of his official duties. 28. A classic case, covering the above paradoxical facet of Section 197, Cr.P.C. is a case, wherein a public servant is alleged to have committed an offence under Section 409, IPC. Will such an offence require sanction for prosecution of the public servant concerned? The answer to this complex question is not far to seek. While, however, ascertaining to answer the question, so posed, what one has to bear in mind is that in order to constitute an offence under Section 409, IPC, there has to be, firstly, entrustment or dominion over the property and secondly, such entrustment or dominion must be in the capacity of public servant, thirdly, there must have been disposal of the property, entrusted to the public servant concerned or under the dominion of public servant concerned, and, fourthly, the disposal of such a property must have been dishonest. Thus, it is clear that the entrustment or dominion over the property would be in official capacity. Similarly, disposal of the property could not have but been done in the official capacity of the public servant concerned. Thus, it is clear that the entrustment or dominion over the property would be in official capacity. Similarly, disposal of the property could not have but been done in the official capacity of the public servant concerned. If the disposal of the property was innocent, it was an official act done in discharge of official duty; if the disposal of the property was dishonest, it was the dishonest doing of an official act, but nevertheless the act, in question, was in either case official because the public servant would not have disposed of the property except while acting or purporting to act in the discharge of his official duty. To put it differently, if the act was done innocently, it would be an act done in the discharge of his official duty and if the disposal of the property was with dishonest intention or motive, the act would be an act purportedly done in the discharge of his official duty. Not only in the first instance, but even in the second instance, (i.e., in the case of dishonest disposal of property), the fact remains that, the doing of the act by the public servant was still official, though it was purportedly done in discharge of official duty. In the second instance too, therefore, when the public servant is required to be prosecuted for the offence under Section 409, IPC on the ground that he has dishonestly disposed of the property, his prosecution would necessitate obtaining of sanction under Section 197 before cognizance in respect of the offence is taken. 29. To appreciate what has been indicated above, reference may be made to Shreekantiah Ramayya Munipalli v. The State of Bombay reported in 1955 CriLJ 857, wherein the Apex Court explained the scope of Section 197 thus: Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for, of course, it is no part of an official's 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. The section has content and its language must be given meaning. 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. The section has content and its language must be given meaning. What it says is - "when any public servant 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. We have therefore first to concentrate on the word "offence". Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion", second, that the entrustment and/or dominion was "in his capacity as a public servant", third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it. 30. In Amrik Singh v. The State of PEPSU reported in 1955 CriLJ 865 too, the Apex Court summed up the scope of Section 197 in these words. "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 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 could 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." 31. Analyzing the facts of the case, as emerged in Amrik Singh (supra) and also quoting with approval the observations made in Shreekantiah Ramayya Munipalli (supra), their Lordships held, "In our judgment, even when the charge is one of misappropriation by a public servant, whether action is required under Section 197(1) will depend upon the facts of each case. Analyzing the facts of the case, as emerged in Amrik Singh (supra) and also quoting with approval the observations made in Shreekantiah Ramayya Munipalli (supra), their Lordships held, "In our judgment, even when the charge is one of misappropriation by a public servant, whether action is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required." 32. A Constitution Bench, in Matajog Dobey v. H.C. Bhari reported in [1955] 28 ITR 941(SC) of the Supreme Court had occasion to consider the scope of Section 197. Laying down the test to be adopted to ascertain if Section 197 was attracted or not, the Constituent Bench, in Matajog Dobey (supra) held, "Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. 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 question of sanction can arise under Section 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 merit. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.... What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.... The result of the foregoing discussion is this : There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." 33. I may also, at this stage, refer to Pukhraj v. State of Rajasthan and Anr. reported in 1973 CriLJ 1795, wherein the Apex Court held, "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 offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of 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 in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of the office" may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty." 34. In Rakesh Kumar Mishra v. State of Bihar and Ors. reported in 2006 CriLJ 808, the Apex Court, after having referred to its earlier decisions on the question of application of Section 197, observed, "The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties, which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned." 35. Bearing in mind what have been indicated above, it is now of paramount importance to note that in Sankaran Moitra v. Sadhana Das and Ors. Criminal Appeal No. 330/06 decided on March 2, 2006 reported in AIR 2006 SC 1599 , a three Judge Bench of the Supreme Court has considered a large number of its earlier decisions on the scope and ambit of Section 197 Cr.P.C. The majority view, as expressed through P.K. Balasubramanyan, J. in Sankaran Moitra (supra), is that in the facts of the case, which their Lordships had considered, sanction under Section 197 Cr.P.C. was necessary and cognizance ought not to have been taken by the Court without requisite sanction. The facts, which gave rise to the case of Sankaran Moitra (supra) were, if true, quite serious in nature and need to be, therefore, carefully noted. The facts, which gave rise to the case of Sankaran Moitra (supra) were, if true, quite serious in nature and need to be, therefore, carefully noted. In Sankaran Moitra (supra), the complainant's case in the words of PK Balasubramanyan, J. may be described as follows: The husband of Respondent No. 1 herein, met with his end on 10-5-2001. On 12-5-2001, Respondent No. 1 (hereinafter referred to as the 'complainant') filed a complaint before the Deputy Commissioner of Police that she had come to know from the members of the public that while her husband was coming from Beliaghata Subhas Sarobar he was beaten to death by the police. She stated that she wanted the post-mortem examination of her innocent husband Robindranath Das to be held in the presence of a Magistrate and video recording of the portions of the body of her husband whereon it had been hit by the police. She demanded stern punishment for the murder of her husband. On 28-5-2001, she filed a complaint in the Court of the Chief Judicial Magistrate, Alipore in respect of offences, punishable according to her under Sections 302, 201, 109 read with Section 120-B of the Indian Penal Code. In the complaint, she stated that she was a house-wife and, that her husband Robindranath Das, was a businessman and a social worker. The antecedents of her husband were above-board and he always acted on the right side of the law. He was also an active supporter of a particular political party. On 10-5-2001, the General Election to the Assembly in West Bengal was held. Her husband was in-charge of giving food packets to the polling agents of a contesting political party in the booth in C.I.T. office situated at Subhas Sarobar (Beliaghata Lake). When her husband did not turn up for lunch, before she left for casting her vote, she asked her brother to summon her husband for lunch. She was returning at about 1415 hours after casting her vote. While she was returning, a Tata Sumo Car came along, being driven at speed and in that car she found a local resident Anath sitting. When she reached the vicinity of Vivekananada Club, she found there assembled, a crowd of local people. She was returning at about 1415 hours after casting her vote. While she was returning, a Tata Sumo Car came along, being driven at speed and in that car she found a local resident Anath sitting. When she reached the vicinity of Vivekananada Club, she found there assembled, a crowd of local people. When she enquired what had happened, one of those assembled said that the police had severely assaulted her husband with lathi in the lake, her husband became unconscious, and he had been taken to the doctor in a Tata Sumo Car. On further enquiry, she was told that her husband was assaulted for no reason by the police with lathis on his head near the C.I.T. office at the Lake instigated by the "Bara Babu" of Phoolbagan Thana and Moitra Babu, previous "Bara Babu" of Beliaghata Thana at about 1400 hrs. Subsequently, she came to learn from various persons of the locality including her brother and her brother-in-law that her husband was talking near the outer gate of the C.I.T. office area at Subhas Sarobar with Mr. S.K. Kundu, the 'Barababu' of Phoolbagan Police station at about 1400 hrs. At that point of time, the previous officer-in-charge of Belighata Police Station, at the time of the complaint, the Assistant Commissioner of E.S.D. (Eastern Suburban Division), Calcutta came there by a police jeep and after talking with the Officer in charge, Phoolbagan Police Station ordered the beating up of her husband and accordingly the Officer in charge, Phoolbagan Police Station instigated the police constables who were accompanying them to beat her husband and to kill him. Thereupon, a constable, namely, Sudhir Sikdar assaulted her husband with a lathi and her husband tried to run away to save his life but the police personnel chased him. Her husband fell down in the water at the edge of the lake. He requested the chasing police personnel not to assault him and he told them that he did not know how to swim. In spite of repeated requests and begging for his life by her husband, the police constable Sudhir Sikdar struck successive blows on the head of her husband, and other different portions of his body with a lathi, as a result of which her husband became unconscious and fell in the lake. Then the police personnel left the place. In spite of repeated requests and begging for his life by her husband, the police constable Sudhir Sikdar struck successive blows on the head of her husband, and other different portions of his body with a lathi, as a result of which her husband became unconscious and fell in the lake. Then the police personnel left the place. Her brother and brother-in-law, with the help of others who were eye-witnesses to the incident pulled out her husband from the water. Thereafter, Anath a local person, with the help of others removed her husband in an unconscious state to the nearby Divine Nursing Home where the doctor declared him dead. The people seeing the atrocities of the police personnel in attacking an innocent person, became agitated. After a considerable lapse of time, the body of her husband was removed by the police from the Nursing Home. According to the complainant, the accused persons had no legal authority to kill her husband, an innocent person, without any provocation from his end. Hence the accused, in collusion with each other and having a common intention and in pursuance of a conspiracy hatched up among themselves, have committed an offence punishable under Sections 302, 120-B, 109 read with Section 34 of the Indian Penal Code. They were guilty of violating of the provisions of law and they were liable for exemplary punishment. Accused Nos. 1 and 2 further abetted the murderous assault on the victim by accused No. 3 by instigating him openly to assault and kill her husband. The accused persons had taken advantage of their uniforms and had murdered her husband in a planned manner and hence were guilty of murder. She feels, from the available circumstances, that the death of her husband was the result of a deep rooted conspiracy and to fulfil the vested interest of some interested persons, which would be revealed at the time of trial. She therefore prayed that the learned Magistrate be pleased to take cognizance and issue process against the accused persons and after their appearance pass necessary orders in accordance with law. She arrayed the Assistant Commissioner Sankaran Moitra as Accused No. 1, S.M. Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as Accused No. 2 and Sudhir Sikdar, a police constable attached to Phoolbagan Police Station, Calcutta as Accused No. 3. 36. She arrayed the Assistant Commissioner Sankaran Moitra as Accused No. 1, S.M. Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as Accused No. 2 and Sudhir Sikdar, a police constable attached to Phoolbagan Police Station, Calcutta as Accused No. 3. 36. It was in the setting of the facts contained in the complaint made as above that the Apex Court, in Sankaran Moitra (supra), considered the question as to whether sanction under Section 197 Cr.P.C. was imperative and to the question, so posed, their Lordships answered thus: 15. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197(1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officer-in-charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for ill-treatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in-charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned Counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey 1956 Cri LJ 140 (supra), it has to be held that a sanction under Section 197(1) of the Code of Criminal Procedure is necessary in this case. 16. We may in this context notice the decision in Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. 2001 CriLJ 2897. This Court was dealing with officers who were brought within the protective umbrella of Section 197 of the Code by a notification issued under Section 197(3) thereof. Cognizance had been taken of an offence under Sections 220 and 342 of the Indian Penal Code and Sections 147 and148 of the Bombay Police Act. The gravamen of the charge was the failure on the part of the accused police officers to produce the complainants before a magistrate within 24 hours of their arrest for alleged offences under the Indian Penal Code. The gravamen of the charge was the failure on the part of the accused police officers to produce the complainants before a magistrate within 24 hours of their arrest for alleged offences under the Indian Penal Code. The police officers having claimed the protection of Section 197(1) of the Code, this Court after referring to the earlier decisions held 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. Going by the above test it has to be held that Section 197(1) of the Code is attracted to this case. 17. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be by-passed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements, which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned Counsel for the complainant that this is an eminently fit case for grant of such sanction. 37. A microscopic reading of the facts of the case of Sankaran Moitra AIR 2006 SC 1599 (supra) shows that the complainant's husband was assaulted by lathi and on being so assaulted, he tried to run away to save his life, but the police personnel chased him and when he fell down in the water at the edge of the lake, he begged for his life from the police personnel chasing him and requested them not to assault him by saying that he did not know how to swim, but despite repeated requests and begging for life, a police constable struck successive blows on the head of the complainant's husband and also on different parts of his body with a lathi, the result being that the complainant's husband became unconscious, fell in the lake and died. Even in such a case, provisions of Section 197 Cr.P.C. were found attracted, for, the alleged acts, though dishonest and far in excess of the limits of the powers of the police personnel concerned, were nevertheless found to have been done, while acting or purporting to act in the discharge of official duties. Going by this test, the majority, in Sankaran Moitra (supra), held that sanction under Section 197 Cr.P.C. was essential. 38. Going by this test, the majority, in Sankaran Moitra (supra), held that sanction under Section 197 Cr.P.C. was essential. 38. In the backdrop of the position of law in matters governing of Section 197 Cr.P.C., when I revert to the case at hand, I notice that it is the case of the complainant that the police force in the present case, swung into action on the discovery of the dead body of a home guard personnel and following this discovery, the police force, allegedly headed by the accused petitioner, went to the complainant's house, apprehended the complainant's son, destroyed her house by setting fire thereto, damaged the properties lying there, took away her son and, thereafter, the police party, headed by the accused petitioner, came, once again, to the complainant's village, caught hold of her husband, beat him up mercilessly, took him away and kept him in custody. Strictly speaking, the act of setting fire to the house and/or the act of beating, which was nothing but using of force more than necessary, would amount to offences making liable the accused petitioner to prosecution therefore unless protected by law. 39. Since Section 4, as already indicated hereinabove, empowered the accused petitioner to use force to the extent of causing death of any person and to destroy any structure, which obviously would include even a dwelling house if such a structure was, in the opinion of the accused petitioner, utilized as a hideout or shelter by absconders wanted in offences in connection with the disturbances, it is clear that while apprehending and taking away the complainant's son and husband if the police officer concerned had beaten them up, it would be nothing, but exceeding the limit of the power of using force, which the accused petitioner was, otherwise, entitled to use. In short, the alleged acts of the accused-petitioner coming into the complainant's village, catching hold of her son and husband, beating them, taking them away and putting them into custody were all within the powers available to the accused petitioner though while beating, if true, the accused petitioner had exceeded the limits of his powers to use force, which a police officer has, while taking a person into custody or while putting him under arrest. Similarly, in the face of the facts of the present case, the police had come to the said village looking for and/or trying to apprehend the complainants son and husband and if, in such a situation, the accused-petitioner considered the dwelling house of the complainant as a structure, which was being used as a hideout or shelter by the absconders, who were wanted for offences committed in connection with the disturbances, he was entitled to set fire to the said house. 40. Whether, as a matter of fact, the accused petitioner, while using force or while setting fire to the said house, acted, honestly or dishonestly, are both contingencies, which are covered by Section 197, for, if he had acted honestly he was acting in the discharge of his official duty if he had acted, dishonestly or mala fide, while taking the persons aforementioned into custody, beating them up and setting fire to the house, he was still acting in the discharge of his official duty and his acts were covered by the expression 'purporting to act in the discharge of his official duty'. 41. When beating of a person and/or killing of a person by use of allegedly excessive force has been held to be, in the light of the decision in Sankaran Moitra AIR 2006 SC 1599 (supra), as acts done in the discharge of official duty or as acts purportedly done in the discharge of official duty under Section 197 Cr.P.C. the crucial fact that the accused petitioner, in the present case, had allegedly beaten the son and husband of the complainant would also be acts protected under Section 197, when the use of force was a part of a police officer's duty, though, in the present case, such use of force might not have been honest and bona fide. If the acts were bona fide, they were protected as acts done in the discharge of official duties; but if the acts were mala fide or dishonest, the acts were still done in the purported discharge of the official duty. If the acts were bona fide, they were protected as acts done in the discharge of official duties; but if the acts were mala fide or dishonest, the acts were still done in the purported discharge of the official duty. Since the acts allegedly done by the accused petitioner were acts done, while acting in the discharge of official duty or purported discharge of official duty, necessity to obtain sanction cannot be avoided by merely making the remark that beating a person by a police officer or setting fire to the house of a person is never a part of a police officer's duty. Considered thus, the alleged acts of the accused-petitioner, which amounted to commission of offences under Sections 436 and 427 IPC, were protected under Section 6 of the said Act and as far as the act, which amounted to an offence under Section 323 IPC is concerned, the same too was protected under Section 6 of the said Act read with Section 197 Cr.P.C. In the case at hand, therefore, sanction for prosecution of the accused petitioner was essential both under Section 6 of the Assam Disturbed Areas Act, 1955, and also under Section 197 Cr.PC. 42. Because of what have been discussed and pointed out above, I am firmly of the view that the learned Court below had no jurisdiction to take cognizance of the offences aforementioned against the accused petitioner without requisite sanction having been obtained in this regard. 43. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 16-4-1999, is hereby set aside to the extent that the same relates to the taking of cognizance of offences aforementioned against the accused petitioner and directing issuance of process against him. 44. Before parting with this revision, it is, however, made clear that the complainant may apply to the State Government for obtaining requisite sanction for prosecution of the accused-petitioner and if the sanction is refused to be granted, the omission to grant sanction would remain, in the light of the law laid down in Naga Peoples Movement of Human Rights AIR 1998 SC 431 (supra), open to judicial review. 45. With the above observations and directions, this revision shall stand disposed of.