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2015 DIGILAW 195 (UTT)

PURAN SINGH RAWAT v. BALKAR SINGH

2015-04-01

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. (Oral) 1. The applicants, by means of present application under Section 482 Cr.P.C., seek to quash the cognizance order dated 07.12.2009 passed by Additional Judicial Magistrate, Khatima in Criminal Case No. 1530 of 2009, captioned as Balkar Singh vs. Ramesh Talwar and others, under Sections 147, 148, 323, 427, 452, 504 and 506 IPC as well as the entire proceedings of the said case. 2. Complainant (respondent herein) filed a criminal complaint case against five named accused including the applicants in the Court of Additional Judicial Magistrate, Khatima. Statement of the complainant was recorded under Section 200 Cr.P.C. Statements of Kripal Singh, Mahendra Singh, Rajveer Singh and Nirmal Singh were recorded under Section 202 Cr.P.C. Certain documents were also filed by the complainant. After having found a prima facie case against the accused persons, they were summoned to face the trial for the offences under Sections 147, 148, 323, 427, 452, 504 and 506 IPC, vide order dated 07.12.2009 passed by learned Additional Judicial Magistrate, Khatima. Aggrieved against the same, present application under Section 482 Cr.P.C. has been filed by the applicants, who were constables, posted in Sitarganj Police Station, at the relevant point of time. 3. According to the complainant, on 13.07.2009, at 4:30 am, accused persons including the applicants, who were posted in chowki Saktiform, trespassed into the complainant’s house, caught hold of complainant’s sister, made indecent gestures, started destroying house hold goods, looted Rs. 2,000/- and when the complainant resisted the same, they assaulted the complainant’s mother, father, grandmother and sister with the butt of gun. As a consequence of which, they sustained injuries. Complainant’s mother fell unconscious. Upon raising the alarm, the neighbourers assembled and saved the complainant and his family members. Accused persons threatened to kill them in the encounter. Complainant went to Sitarganj, but his report could not be lodged. Complainant made a complaint of the incident to the Governor and State Police Complaint Authority, as also DIG and SSP, Udham Singh Nagar. The injured also went to the hospital for treatment of their injuries. Complaint story was supported by Balkar Singh under Section 200 Cr.P.C. Kripal Singh, Mahendra Singh, Rajveer Singh and Nirmal Singh supported the statements of the complainant under Section 202 Cr.P.C. A prima facie case against them for the offences complained of against them was, therefore, made out. Foundation of criminal offences was, therefore, laid. Complaint story was supported by Balkar Singh under Section 200 Cr.P.C. Kripal Singh, Mahendra Singh, Rajveer Singh and Nirmal Singh supported the statements of the complainant under Section 202 Cr.P.C. A prima facie case against them for the offences complained of against them was, therefore, made out. Foundation of criminal offences was, therefore, laid. 4. It is the contention of learned counsel for the applicants that the applicants committed alleged offences in discharge of their official capacity. The complaint was filed late after a lapse of two months. According to learned counsel, a first information report was lodged by Smt. Pal Kaur against Balkar Singh and others on 05.07.2009 at PS Sitarganj, under Sections 147, 452, 354, 323, and 506 IPC and the police personnel went to Balkar Singh’s house in order to arrest him. It is also contention of learned counsel for the applicants that present criminal complaint case is an after thought and has been filed only with malafide intention to harass the applicants. The question is- whether the police personnel, while in police uniform, can do anything they like under the garb of discharge of their official duties? 5. It was held by Hon’ble Supreme Court in K. Kalimuthu vs. State BY DSP, (2005) 4 SCC 512 that the protection under Section 197 Cr.P.C. is available to a public servant, only when the alleged act done by him is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Even if, a public servant acts in excess of his official duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. It was held by Hon’ble Supreme Court in the said judgment : “The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. It was held by Hon’ble Supreme Court in the said judgment : “The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and 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, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” 6. In Rakesh Kumar Mishra vs. State of Bihar and others (2006) 1 SCC 557 , Hon’ble Supreme Court held as under:- “12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari, AIR (1956) SC 44 thus: “The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... 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 (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” 7. The reply to the questioned posed by this Court in para 4 of this judgment is, therefore, in the negative. 8. When the foundation of criminal offence is laid against the applicant, there is hardly any scope for interference in the impugned order in exercise of it’s inherent jurisdiction. It is the settled law that the factual controversy need not be gone into by this Court in exercise of it’s inherent jurisdiction under Section 482 of Cr.P.C., which has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicants are unable to pass those tests. 9. The applicants are unable to pass those tests. 9. Application under Section 482 Cr.P.C. is, therefore, dismissed, but with the direction upon the Judicial Magistrate, Khatima to decide the bail application of the applicants in this criminal complaint case on the same day, subject to their surrender. Liberty is also granted to the applicants to take all the factual pleas before the Court below for obtaining their discharge/acquittal at an appropriate stage.