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2011 DIGILAW 828 (GUJ)

Sanjiv Bhatt I. P. S. v. State of Gujarat

2011-12-14

M.R.SHAH

body2011
JUDGMENT : M.R. Shah, J. Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant-herein the then District Superintendent of Police, Porbander to quash and set aside the Criminal Case No.13129 of 1998 pending in the Court of learned JMFC, Porbandar instituted pursuant to the complaint made by the respondent no.2 herein for the offences punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code. 2. The facts leading to the present Criminal Miscellaneous Application in nutshell are as under: 3. That one FIR was lodged with Kamalabaug Police Station, Porbandar being CR.No.I-43 of 1994 by one Shri B.S. Chahaun PSI and Reader to the DSP, Porbandar on 8.3.1994 against 22 accused persons for the offences punishable under Section 121, 122, 123, 120-B r/w Section 34 of the Indian Penal Code as well as under Section 25(1) b(a) and 25(1)a(a) of Arms Act and Sections 3, 4 and 5 of the Terrorist and Destructive Activities (Prevention Act), 1987. That respondent no.2 herein was not named in the said FIR. That respondent no.2 herein who was arrested in connection with the another offence under the C.O.F.E.P.O.S.A. and was sent to Sabarmati Jail, Ahmedabad. Custody of the respondent no.2 was taken by the Porbandar Police from Sabarmati Jail and respondent came to be arrested in connection with the aforesaid FIR being C.R. No. I 43 of 1994 offence after obtaining transfer warrant under Section 70 of the Code of Criminal Procedure. It is the case of the respondent no.2 that his custody was taken from Sabarmati Jail on 5.7.1997 without informing him for what purpose he was taken to Porbandar. That respondent no.2 was produced before the learned JMFC, Porbandar on 6.7.1997 at 5.10 p.m. and he made complaint / grievance before the learned J.M.F.C. with respect to torture, ill treatment and harassment to him and his son while in custody and made complaint to the learned J.M.F.C. that concerned Police Officers inclusive of the petitioner in the office of the petitioner-DSP, Porbandar severely beat him and gave electric shocks to obtain confession and threats that if the weapons are not produced, his son will be killed. That respondent no.2-original complainant narrated all the facts before the learned Magistrate. That respondent no.2-original complainant narrated all the facts before the learned Magistrate. That the learned JMFC recorded the statement of the respondent no.2 and after making inquiry under para 14 of the Criminal Manual having noted and found some black dots on the hand and swelling on tongue directed to send respondent no.2 complainant to the Civil Hospital, Porbandar for medial opinion. That the Medical Officer submitted the report and thereafter the learned J.M.F.C., Porbandar passed an order to register the said complaint as Inquiry Case and directed to hold inquiry under Section 202 of the Code of Criminal Procedure and directed respondent no.2 -complainant to produce the evidence. That after recording the statement of the witnesses and after holding inquiry, the learned Magistrate was of the opinion that there is a prima facie case made out against the petitioner and another for the offences punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code, the learned J.M.F.C., Porbandar by an order dated 3.12.1998 has directed to issue process against the petitioner and one another i.e. Shri Vajubhai Chau, Police Constable, LCB for the offences punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code. It appears that thereafter applicant herein -original accused no.1 submitted the application before the learned Magistrate after a period of five years of issuing the process against him, praying to discharge him and to dismiss the institution of prosecution against him submitting that there is no sanction obtained from the competent authority before prosecuting him and/ or before cognisance is taken by the learned Magistrate as required under Section 197 of the Code of Criminal Procedure and also on the ground that the Medical Examination Report does not support the case on behalf of the complainant with respect to ill treatment and / or torture by the applicant. That the said application came to be dismissed by the learned JMFC, Court no.3, Porbandar by order dated 18.8.2004 on the ground that there is a prima facie case found against the applicant and that the accused are not cooperating and are not remaining present in the trial and because of that the trial has delayed and by specifically observing that to torture and / or ill treatment in the police custody for getting confession cannot be said to be part of the official duty. That the said order has attained the finality and inasmuch as the same is not challenged by the applicant. That thereafter, after a period of 12 years of issuing the process by the learned Magistrate and after a period 5 years of dismissing the application submitted by the petitioner to discharge him, in the year 2010 all of a sudden the petitioner has preferred present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned complaint being Criminal Case No. 13129 of 1998 pending in the Court of learned JMFC, Porbandar. 4. Shri Buch, learned advocate has appeared on behalf of the applicant. It is submitted by Shri Buch, learned advocate for the applicant that as such applicant has not committed any offence as alleged for the offence under Section 330, 324 r/w Section 34 of the Indian Penal Code. It is further submitted that the respondent no.2 was the headstrong criminal and was facing serious allegations and subsequently weapons were found from him and therefore, with a mala fide intention the impugned complaint has been filed by him. It is submitted that the medical report does not support the case of the respondent no.2 -original complainant with respect to beating and / or torture by the petitioner and/ or Police Officer as no external injury were found by the Medical Officer. Therefore, it is submitted that in absence of any corroborative medical evidence, the learned Magistrate has materially erred in directing to issue process against the petitioner for the offence under Sections 330, 324 r/w Section 34 of the Indian Penal Code. 4.1. It is further submitted by Shri Buch, learned advocate for the petitioner that even there is non compliance of para 14 of the Criminal Manual inasmuch as there was no report sent to the Higher Court by the learned JMFC as required under para 14 of the Criminal Manual. Therefore, it is submitted that the procedure as required to be followed in para 14 of the Criminal Manual has not been followed, the impugned complaint deserves to be quashed and set aside. 4.2. Shri Buch, learned advocate for the petitioner has submitted that the impugned complaint is vexatious and has been filed for ulterior motive and therefore, it is requested to quash and set aside the said complaint. 4.3. 4.2. Shri Buch, learned advocate for the petitioner has submitted that the impugned complaint is vexatious and has been filed for ulterior motive and therefore, it is requested to quash and set aside the said complaint. 4.3. Shri Buch, learned advocate for the petitioner has further submitted that even otherwise the order passed by the learned Magistrate taking cognisance of the complaint and directing to issue process against the applicant for the offence punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code deserves to be quashed and set aside for want of necessary sanction from the higher authority as required under Section 197 of the Code of Criminal Procedure. It is submitted that in the present case no sanction as required under Section 197 of the Code of Criminal Procedure has been obtained before taking cognisance by the learned Magistrate. It is submitted that whatever has been done by the applicant was as a part of his duty and / or while discharging his official duty to find out the truth from the respondent no.2 who was headstrong criminal and who was charged for the serious offence of in custody and / or possession of contraband weapon. Therefore, it is submitted that there is bar of taking cognisance of offence alleged to have been committed by the petitioner while performing his official duty in absence of sanction as required under Section 197 of the Code of Criminal Procedure. Therefore, it is requested to quash and set aside the impugned complaint considering the bar of taking cognisance of offence in absence of sanction as required under Section 197 of the Code of Criminal Procedure. 4.4. In support of his above submissions, Shri Buch, learned advocate for the petitioner has heavily relied upon the following decision of the Hon'ble Supreme Court as well as learned Single Judge of this Court. (1). Sankaran Moitra v. Sadhna Das and Another reported in (2006) 4 SCC 584 . (2). Anjani Kumar v. State of Bihar & Anr reported in (2008) 5 SCC 248 . (3). State of U.P v. Paras Nath Singh reported in AIR 2009 SCW 3712 . (4). Anil Pratham IPS Now DIG State CID-Crime v. State of Gujarat reported in 2010(0) GLHEL-HC-223224. (5). P.K. Roshan v. State of Gujarat reported in 2005(2) GLH 759 . (6). Anjani Kumar v. State of Bihar & Anr reported in (2008) 5 SCC 248 . (3). State of U.P v. Paras Nath Singh reported in AIR 2009 SCW 3712 . (4). Anil Pratham IPS Now DIG State CID-Crime v. State of Gujarat reported in 2010(0) GLHEL-HC-223224. (5). P.K. Roshan v. State of Gujarat reported in 2005(2) GLH 759 . (6). A.K. Sahdeve & Anr v. Ramesh Nanji Shah & Anr reported in 1998 Cri. LJ 2645. (7). Keki Hormusji Gharda & Others v. Mehervan Rustom Irani and Anr reported in (2009) 6 SCC 475 . 4.5. Shri Buch, learned advocate for the applicant has further submitted that even with respect to very allegations of torture and ill treatment by the applicant to the respondent no.2- original complainant, a commission was appointed headed by the learned Single Judge of this Court and the Commission had given clean chit to the applicant. Therefore, it is submitted that when the commission appointed by the State Government had given clean chit and / or when the conclusion is in favour of the applicant, the criminal prosecution against the applicant would be unnecessary harassment to the applicant and therefore, it is requested to quash and set aside the criminal prosecution. By making above submissions and relying upon the above decisions, it is requested to allow the present application. 5. Application is opposed by Shri P.K. Jani, learned Public Prosecutor appearing on behalf of the State Government as well as Shri Dharmesh D. Nanavati, learned advocate for the original complainant. 5.1. Shri P.K. Jani, learned Public Prosecutor as well as Shri Nanavati, learned advocate for the respondent has submitted that when the learned Magistrate has directed to issue process against the applicant and another for the offences punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code after inquiry under Section 202 of the Code of Criminal Procedure and after recording the statement of the witnesses and considering the material on record and having found prima facie against the applicant and another for trial, the same is not required to be interfered with by this Court in exercise of powers under Section 482 of the Code of Criminal Procedure. It is further submitted by Shri P.K. Jani, learned Public Prosecutor as well as Shri Nanavati, learned advocate for the respondent that at this stage that what is required to be considered is whether there is a prima facie case made out against the applicant for which the applicant is required to be tried or not and at this stage it is not required to be considered whether the applicant is likely to be convicted or not. Therefore, it is submitted that when a prima facie case is found against the applicant by the learned Magistrate after holding inquiry under Section 202 of the Code of Criminal Procedure and it is found that applicant is required to be tried and consequently learned Magistrate directed to issue process against the applicant and one another for the offence under Sections 330, 324 r/w Section 34 of the Indian Penal Code, no illegality has been committed by the learned Magistrate. Therefore, it is submitted that no case is made out to interfere with the impugned order of issuing the process by the learned Magistrate, in exercise of powers under Section 482 of the Code of Criminal Procedure. 5.2. Now, so far as contention on behalf of the petitioner that with respect to bar of taking cognisance of offence in absence of sanction as required under Section 197 of the Code of Criminal Procedure, it is submitted by Shri Jani, learned Public Prosecutor for the State as well as Shri Nanavati, learned advocate for the respondent-original complainant that the manner in which the custody of the applicant was obtained by the concerned police officer and not producing the applicant before the learned Magistrate immediately and taking the complainant to the office of the DSP, Porbandar at night torturing him and / or his son for getting confession and thereafter to produce the complainant before the learned Magistrate on the next date that too in the evening, cannot be said to be part of his official duty as sought to be contended on behalf of the applicant. Therefore, it is submitted that it is not part of the duty of police officer while discharging his official duty to torture or beat the accused to get confession and therefore, the impugned complaint is not required to be quashed and set aside for want of Section 197, as no sanction under Section 197 of the Code of Criminal Procedure is required to be obtained. 5.3. Shri Jani, learned Public Prosecutor for the State as well as Shri Nanavati, learned advocate for the respondent-original complainant have heavily relied upon the decision of the Hon'ble Supreme Court in the case of Raj Kishor Roy v. Kamleshwar Pandey & Anr reported in (2002) 6 SCC 543 more particularly para 8 of the said judgment. It is submitted that as held by the Hon'ble Supreme Court in the said decision that for invoking protection under Section 197 of the Code of Criminal Procedure, the acts of the accused, complained of, must be such that the same cannot be separated from the discharge of official duty but if there was no reasonable connection between them and the performance of those duties and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. It is further submitted that as held by the Hon'ble Supreme Court in the said decision, the question of sanction under Section 197 of the Code of Criminal Procedure can be raised any time after the cognisance; may be immediately after cognisance or framing of charge or even at the time of conclusion of trial and after conviction as well. It is further held that there can be cases when it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty and the claim of the accused, that the act that he did was in course of the performance of his duty, was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it and in such eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. Therefore, it is requested not to quash and set the impugned complaint on the aforesaid ground at this stage and question of sanction may be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. Therefore, it is requested not to quash and set aside the impugned complaint at this stage on the aforesaid ground. 5.4. Shri Nanavati, learned advocate for the original complainant has relied upon the decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Atma Ram and others reported in AIR 1996 SC 1786 by submitting that in similar set of facts and circumstance of the case Police Officers have claimed the protection under Section 161(1) of the Bombay Police Act, the Hon'ble Supreme Court has held that a Police Officer is prohibited from beating or confining persons with a view to induce them to make statements and therefore, alleged act of beating and confinement thus fall completely outside the scope of the police officers and therefore, they are not entitled to the mantle of protection conferred by Section 161(1) of the Bombay Police Act. 5.5. Shri Nanavati, learned advocate for the original complainant has also relied upon the decision of the Hon'ble Supreme Court in the case of Choudhury Praveen Sultana v. State of West Bengal & Anr reported in 2009 AIR SCW 861 by submitting that as observed and held by the Hon'ble Supreme Court in the said decision, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 and cannot be misused and abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. It is submitted that in the said decision, it is further observed by the Hon'ble Supreme Court that if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 and have to be considered dehors the duties which a public servant is required to discharge or perform. 5.6. 5.6. Shri Nanavati, learned advocate for the original complainant has also relied upon the decision of the learned Single Judge in the case of S.S. Khandwala (IPS) & Ors v. State of Gujarat & Ors reported in 2002(3) GLH 556 by submitting that in similar set of facts and circumstance the learned Single Judge has held that in case of gross violation of fundamental rights, it can hardly be claimed that the alleged acts of amounting the offence was committed while acting or purporting to act in the discharge of official duty. 5.7. It is further submitted by Shri Nanavati, learned advocate for the original complainant that in the present case it has been specifically alleged by the complainant that after the complainant was taken into custody by the Porbandar police on transfer warrant under Section 70 of the Code of Criminal Procedure on 5.7.1997, the complainant was not produced before learned Magistrate immediately and he was kept in illegal custody in the office of Dy.sp i.e. petitioner and that he was tortured and even the aforesaid was noted by the learned Magistrate when he was produced before the learned Magistrate on the next day i.e. on 6.7.1997 at 5.10 p.m. 5.8. Now, so far as contention on behalf of the applicant that even the medical report does not support the case on behalf of respondent no.2-original complainant with respect to torture and giving electric shocks is concerned, it is submitted that there were some ulcers found on the tongue and there were minor swelling also found. It is submitted that the learned Magistrate found the black dots on the hand/ palm when he was produced before the learned Magistrate. Therefore, it is submitted that it cannot be said that no case is made out against applicant at all for the offence as alleged and / or for which the learned Magistrate is directed to issue process against him. It is submitted that prima facie case has been found against the applicant by the learned Magistrate on appreciation of statement of witnesses as well as documents on record which is sufficient for the purpose of taking cognisance by the learned Magistrate and to issue process against the applicant for the offence alleged. It is submitted that prima facie case has been found against the applicant by the learned Magistrate on appreciation of statement of witnesses as well as documents on record which is sufficient for the purpose of taking cognisance by the learned Magistrate and to issue process against the applicant for the offence alleged. It is submitted that at this stage it is not required to be considered whether on the basis of material on record the applicant is likely to be convicted or not . 5.9. Now, so far as contention on behalf of the applicant that the impugned complaint is vexatious as the complainant was headstrong criminal and was facing serious charge, it is submitted by Shri Nanavati, learned advocate for the respondent-original complainant that by that itself it would not give a license to the police officer to torture and / or ill-treat and / or beat any person to extract the confession. It is submitted that as held by the Hon'ble Supreme Court in catena of decisions more particularly in the case of D.K. Basu v. State of West Bengal reported in AIR 1997 SC 610 even the accused are required to be dealt with in accordance with law. By making above submissions and relying upon the above decisions, it is requested not to exercise the extraordinary powers under Section 482 of the Code of Criminal Procedure and not to quash and set aside the impugned complaint. 6. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that in the present case, after holding necessary inquiry as provided under para 14 of the Criminal Manual as well as holding necessary inquiry under Section 202 of the Code of Criminal Procedure and recording the statement of the witnesses and material on record and having found prima facie case against the petitioner and one another, the learned Magistrate has directed to issue process for the offence punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code. As per cardinal principle of law at the stage of issuing the process / summons by the learned Magistrate, the learned Magistrate is required to consider whether there is a prima facie case made out for further trial and at that stage the learned Magistrate is not required to consider whether on the basis of evidence on record the accused is likely to be convicted or not. Under the circumstance, when after holding necessary inquiry and a prima facie case is made out and the learned Magistrate has issued the process against the applicant and one another for the offences under Sections 330, 324 r/w Section 34 of the Indian Penal Code, as such the same is not required to be interfered with by this Court in exercise of extraordinary powers, under Section 482 of the Code of Criminal Procedure. 6.1. It is contended on behalf of the applicant that on the basis of the medical certificate, it cannot be said that the applicant has committed any offence as alleged and it is sought to be contended on behalf of the applicant that the story put forward by the complainant with respect to giving electric shock is not made out and therefore, it is requested to quash and set aside the impugned complaint and the order passed by the learned Magistrate directing to issue process against the applicant. To the aforesaid, it is required to be noted that even considering the medical examination report no clean chit can be given to the applicant. It is required to be noted that from the very beginning the complainant made a grievance/ complaint before the learned Magistrate with respect to torture and beating by police personnel inclusive of the applicant and there was substance found even by the learned Magistrate while holding the inquiry as required under para 14 of the Criminal Manual and thereafter he was sent for medical examination and in the medical examination report also some ulcers are found on the tongue. The contention on behalf of the applicant that the ulcer on the tongue can be for so many other reasons is concerned, the same is not required to be considered at this stage. At the most it can be said to be his defence, which is required to be considered at the time of trial on leading the appropriate evidence. The contention on behalf of the applicant that the ulcer on the tongue can be for so many other reasons is concerned, the same is not required to be considered at this stage. At the most it can be said to be his defence, which is required to be considered at the time of trial on leading the appropriate evidence. When the learned Magistrate has held prima facie case against the applicant and another for the offence alleged, after holding necessary inquiry and even recording statement of the witnesses, it cannot be said that there is no case made out against the applicant and for that the impugned complaint and / or order passed by the learned Magistrate directing to issue process against the applicant deserves to be quashed and set aside in exercise of powers under Section 482 of the Code of Criminal Procedure. 6.2. The main contention on behalf of the applicant in support of his prayer to quash and set aside the impugned complaint and / or the order passed by the learned Magistrate directing to issue process against the applicant is with respect to bar of taking cognisance in absence of sanction as required under Section 197 of the Code of Criminal Procedure. It is the case of the applicant that whatever was done, was done in discharge of his official duty and therefore, before taking any cognisance by the learned Magistrate, the sanction as required under Section 197 of the Code of Criminal Procedure, was required to be obtained. At the outset, it is required to be noted that the allegation against the applicant and police officer are that after the complainant was taken into custody by the Porbandar Police from the Sabarmati Jail, Ahmedabad he was not produced before the learned Magistrate immediately and that in the night at 9 p.m he was brought to the office of the DSP and he was confined in illegal custody and he and his son were tortured; beaten and harass with a view to get confession and threats were given to the complainant that if the weapons are not produced, in that case, his son will be done to death. Shri Buch, learned advocate for the applicant has submitted that at the most it can be said to be exercising duty in excess, however as it was during the discharge of his official duty, before prosecuting them and taking cognisance by the learned Magistrate, a prior sanction as required under Section 197 of the Code of Criminal Procedure is required to be obtained and in the present case as the sanction under Section 197 of the Code of Criminal Procedure is not obtained before taking cognizance by the learned Magistrate, it is submitted that the same deserves to be quashed and set aside. In support of his above submission, learned advocate for the applicant has mainly relied upon the decisions of Sankaran Moitra (supra) as well as Keki Hormusji Gharda (supra) as well as decisions of the Hon'ble Supreme Court referred to herein above. However, the decision of the Hon'ble Supreme Court in the case of Raj Kishor Roy (supra) is also required to be considered at this stage. It is specifically observed by the Hon'ble Supreme Court in the said decision that protection under Section 197 of the Code is not available, if the act complained of, is not in connection with discharge of official duty. In the said decision, the Hon'ble Supreme Court in para 8 has further observed and held as under: “In the case of P.K. Pradhan v. State of Sikkim reported in 2001(6) SCC 704 , it has been held that the legislative mandate engrafted in sub-section (1) of Section 197 is a prohibition imposed by the statute from taking cognisance. It has been held that 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. It has been held that the only point for determination is whether the act was committed in discharge of official duty. It has been held that there must be a reasonable connection between the act and the official duty. It has been held that the only point for determination is whether the act was committed in discharge of official duty. It has been held that there must be a reasonable connection between the act and the official duty. It has been held that for invoking protection under Section 197 of the Code, the acts of the accused, complained of, must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. It has been held that if the case as put forth by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is held that the question of sanction under Section 197 of the Code can be raised any time after the cognisance; maybe immediately after cognisance or framing of charge or even at the time of conclusion of trial and after conviction as well. It is held that there can be cases when it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. It has been held that the claim of the accused, that the act that he did was in course of the performance of his duty, was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. It has been held that in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 6.3. It has been held that in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 6.3. In the case of Atma Ram & Others (supra) when the Police Officer sought the protection under Sections 161 & 64(b) of the Bombay Police Act while considering the similar set of facts and circumstance, the Hon'ble Supreme Court has observed and held that provision of Section 161 of the Bombay Police Act prohibits the police officer from beating or confining the person with a view to induce them to make statement and alleged acts of beating and confinement thus, fall completely outside the scope of the duties of the Police Officer and they are not entitled, therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act. It is further observed and held by the Hon'ble Supreme Court in the said decision that in such case, there is no connection between acts complained of and the office of the Police Officer and the duties and obligations imposed upon them by law. 6.4. In the case of Choudhury Parveen Sultana (supra), the Hon'ble Supreme Court has occasion to consider the scope of Section 197 of the Code of Criminal Procedure and after considering the earlier decision of the Hon'ble Supreme Court in the case of Bhagwan Prasad Srivastava v. N.P. Misra reported in (1971) 1 SCR 317 has observed and held that all acts done by a public servant in the purported discharge of his official duty cannot as a matter of course be brought under the protective umbrella of Section 197. It is further held that there can be cases of misuse and / or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. It is further held by the Hon'ble Supreme Court in the said decision that if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law such acts cannot claim the protection of Section 197 of the Code of Criminal Procedure and have to be considered de-hors the duty which a public servant is required to be discharged and / or performed. Consequently, the Hon'ble Supreme Court has specifically held in the said decision that in respect of prosecution for such excess or misuse of authority, no protection can be demanded by the public servant concerned. It is required to be noted that in the said decision the Hon'ble Supreme Court has considered the decision in the case of Sankaran Moitra (supra) and thereafter the Hon'ble Supreme Court has held as above. 6.5. Identical question came to be considered by the learned Single Judge in the case of S.S. Khandwala (IPS) (supra) and while considering the scope of Section 197 of the Code of Criminal Procedure and after considering the various decisions of the Hon'ble Supreme Court, it is held by the learned Single Judge that in case of gross violation of fundamental rights to life, it can hardly be claimed that the alleged act amounting to offence was committed while acting or purporting to act in the discharge of official duty. It is further held by the learned Single Judge in the said decision that it cannot be a part of official duty to commit an offence and every act constituting the offence committed in the course of duty cannot enjoy the protection of Section 197 of the Code of Criminal Procedure. 6.6. Considering the aforesaid decisions of the Hon'ble Supreme Court and the decisions of the learned Single Judge and considering the facts of the case on hand and the nature of allegation against the applicant and another of misuse and abuse of power, to torture the complainant / accused and his son with a view to make a particular statement or to obtain the confession prima facie cannot be said to be while discharge of duty as a public servant. As stated herein above, as observed by the Hon'ble Supreme Court in the case of Atma Ram (supra) such an act is prohibited under the Act and therefore, what is prohibited cannot be permitted to be done by the police officer under colour of office and therefore, this Court is prima facie of the opinion that applicant is entitled to the protection and / or claim bar under Section 197 of the Code of Criminal Procedure and therefore, learned Magistrate has not committed any error and / or illegality in taking cognisance and directing to issue process against the applicant for the offence punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code, without any sanction under Section 197 of the Code of Criminal Procedure. 6.7. It is required to be noted at this stage that considering the decision of the Hon'ble Supreme Court in the case of Raj Kishor Roy (Supra) this Court initially suggested the learned advocate for the applicant to keep the question with respect to bar under Section 197 of the Code of Criminal Procedure open, to be taken up at the time of trial on leading appropriate evidence, however learned advocate for the applicant has insisted for decision on merits and therefore, this Court has given prima face opinion on the same as recorded herein above. 6.8. Now, so far as decisions relied upon by the learned advocate for the applicant referred to herein above, on facts and considering the nature of allegations against the applicant and another recorded herein above and the prima facie finding given by the learned Magistrate after holding inquiry under para 14 of the Criminal Manual as well as after holding inquiry under Section 202 of the Code of Criminal Procedure and after recording the statement of witnesses and the material on record, the said decisions would not be of any assistance to the applicant, more particularly, considering the decision of the Hon'ble Supreme Court in the case of Atma Ram (supra) as well as Choudhury Parveen Sultana (supra). Similarly, the decision of the learned Single Judge relied upon by the learned advocate for the applicant as referred to above would not be applicable to the facts of the present case and / or same would not be of assistance to the applicant in light of the aforesaid decision of the Hon'ble Supreme Court. 6.9. Similarly, the decision of the learned Single Judge relied upon by the learned advocate for the applicant as referred to above would not be applicable to the facts of the present case and / or same would not be of assistance to the applicant in light of the aforesaid decision of the Hon'ble Supreme Court. 6.9. Now, so far as contention on behalf of the applicant that original complainant was headstrong criminal and was facing serious charge is concerned, it is neither here not there. Even if the complainant was an accused he was required to be dealt with in accordance with law and in accordance with provision of Code of Criminal Procedure and Criminal Manual. Merely because the original complainant was an accused his complaint with respect to torture and / or ill treatment and / or beating by police officers to get the confession cannot be discarded and / or cannot be considered to be vexatious. As stated above, the learned Magistrate has directed to issue process against the applicant for the offence punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code after following procedure as required under para 14 of the Criminal Manual as well as after holding necessary inquiry under Section 202 of the Code of Criminal Procedure and after recording the statement of the witness and considering the material on record and having found prima facie case against the applicant for further trial. 6.10. Now, so far as contention on behalf of the applicant that some part of para 14 of the Criminal Manual was not followed i.e. the complaint was not sent to the Chief Judicial Magistrate and /or Sessions Court is concerned, on the aforesaid ground when after holding inquiry under Section 202 of the Code of Criminal Procedure, the learned Magistrate has directed to issue process against the applicant, on the aforesaid ground alone impugned complaint and/ or order passed by the learned Magistrate directing to issue process against the applicant is not required to be quashed and set aside. 6.11. 6.11. Now, so far as contention on behalf of the applicant that with respect to very subject and alleged torture and ill-treatment to the complainant, a commission was appointed by the State Government and said Commission has given clean chit to the petitioner is concerned, it is required to be noted that as such the learned Magistrate has directed to issue process against the applicant herein, after holding necessary inquiry as required under para 14 of the Criminal Manual and after holding necessary inquiry under Section 202 of the Code of Criminal Procedure and after recording the statement of the witnesses and considering the material on record. Under the circumstance, the contention on behalf of the applicant to quash and set aside the criminal proceedings and the order passed by the learned Magistrate directing to issue process against the applicant on the aforesaid ground, cannot be accepted. 7. In view of the above and for the reasons stated above, this Court is of the opinion that this is not a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned complaint and / or order passed by the learned Magistrate directing to issue process against the applicant for the offence punishable under Sections 330, 324 r/w Section 34 of the Indian Penal Code, more particularly, when it was found by the learned Magistrate, even as far as back in 2004 that the applicant was not cooperating in the trial. It is also required to be noted at this stage that even the order passed by the learned Magistrate rejecting the application of the applicant to discharge him, which has been rejected on 18.8.2004 has not been challenged and the same has attained the finality and even thereafter after a period of 6 years of dismissing the said application and after period of more than 11 years of issuing process by the learned Magistrate, applicant has preferred present application in the year 2010 and that too without explaining the delay. 8. In view of the above and for the reasons stated above, the application fails and deserve to be dismissed and is accordingly dismissed. Rule discharged. Ad-interim relief, granted earlier stands vacated forthwith. 8. In view of the above and for the reasons stated above, the application fails and deserve to be dismissed and is accordingly dismissed. Rule discharged. Ad-interim relief, granted earlier stands vacated forthwith. Considering the fact that the Criminal Case is very old and even the learned Magistrate has directed to issue process against the applicant in the year 1998, the learned Magistrate is directed to proceed further with the trial and conclude the same at the earliest but not later than 12 months from the date of receipt of present order. All concerned are directed to cooperate the learned trial Court in early disposal of trial. Registry is directed to send writ of this of this order to the learned Magistrate, Porbandar at the earliest. Application dismissed.