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2016 DIGILAW 585 (RAJ)

Mohan Lal Lathar v. State of Rajasthan

2016-04-27

PANKAJ BHANDARI

body2016
JUDGMENT : Pankaj Bhandari, J. Since these revision petitions arise out of common order dated 12.12.2014, they are being decided together at the stage of admission. The crux of the matter is that a complaint was filed against the present petitioners by non-petitioner No.2, who happens to be father of Nakul Singh, who was picked up by the police for investigation of a blind murder case, popularly known as 'Girdhari Murder Case'. It was alleged in the FIR that the present petitioners, to extract confession from Nakul Singh, tortured him. Applications were filed by the petitioners under Section 197(2) Cr.P.C. praying for discharge of the petitioners. The learned Magistrate allowed the applications and discharged the petitioners, as he was of the view that the present petitioners are entitled to the protection provided under Section 197 Cr.P.C., as the act though in excess, but was done by them in discharge of their official duty. 2. On filing of the revision petition by the present non-petitioner No.2 as well as the State, the learned Additional Session Judge, by the impugned order, held that the act of the present petitioners was not in discharge of their official duty, and therefore, the sanction, as provided under Section 197 Cr.P.C, was not required, aggrieved by which the present revision petitions have been filed. 3. Counsel for the petitioners has placed reliance on catena of judgments of the Hon'ble Apex Court and has argued that the act of the present petitioners had a reasonable connection with the official duty, and merely because it was in excess, it cannot deprive the public servant of the protection, as provided under Section 197 Cr.P.C. It was also argued that such protection can be claimed at any stage of the proceedings. 4. Counsel for the non-petitioner No.2, on the other hand, has argued that Nakul Singh was picked up by the police and detained in policy custody at Amba Mata Police Station. The present petitioners had no right to investigate, as Jeevan Singh, SHO, Surajpole was the Investigating Officer, to whom the case was entrusted. It is also argued that Nakul Singh was not arrested and from 17.07.2000 to 20.07.2000, he was kept under illegal confinement and was tortured by the present petitioners. It is also argued that the Additional Superintendent of Police has come to the conclusion that the police officers exceeded the powers vested in them. 5. It is also argued that Nakul Singh was not arrested and from 17.07.2000 to 20.07.2000, he was kept under illegal confinement and was tortured by the present petitioners. It is also argued that the Additional Superintendent of Police has come to the conclusion that the police officers exceeded the powers vested in them. 5. I have considered the arguments put forth before me. 6. To properly appreciate the controversy, it would be appropriate to refer to Sub-section (1) of Section 197 Cr.P.C., which reads as under:- "197. 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 [save otherwise provided in the Lokpal and Lokayuktas Act, 2013]" 7. To arrive at a finding whether Section 197 Cr.P.C. would apply and the petitioners would have the protection provided therein, I deem it proper to deal with the rulings cited before me. 8. In Criminal Appeal No.722 of 2015 (D.T. Virupakshappa v. C. Subhash), the Hon'ble Apex Court was dealing with a case, which was registered against the police officers. The Court placed reliance on Om Prakash & Ors. v. State of Jharkhand & Anr., reported in (2012) 12 SCC 72 . Para 41 of the judgment in Om Prakash's case (supra) is reproduced hereunder:- "41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence, and therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea . . . ." 9. The decision in State of Orissa v. Ganesh Chandra Jew, reported in (2004) 8 SCC 40 has also been referred to in D.T. Virupakshappa (supra), wherein the Hon'ble Apex Court has held that if in doing his official duty, a person has 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 of the protection. In Om prakash's case (supra), referred to herein-above, the Court further held that the protection given under Section 197 Cr.P.C. 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. 10. Placing reliance on the above rulings, the Hon'ble Apex Court in that case held that the whole allegation is on police excess during investigation of a criminal case and the same has reasonable connection with the performance of the official duty. 11. The judgment of Constitution Bench in Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 has also been referred to, wherein during an income tax investigation, on protest that the action was illegal and oppressive, two policemen held the complainant down. He was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to Burra Bazar Thana, where he was assaulted again before being sent to hospital. The Hon'ble Apex Court held that where a power is conferred or a duty is imposed by a statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with commonsense and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Ed., at page 312: "It is a rule that when the law commands a thing to be done, it authorizes the performance of whatever may be necessary for executing its command." The Hon'ble Apex Court held that the act was done in virtue of the official duty and the protection under Section 197 Cr.P.C. was available. 12. The learned counsel for the non-petitioner No.2 has placed reliance on the following judgments. 13. State of Himachal Pradesh v. M.P. Gupta, reported in 2004 R.Cr.D. 820 (SC) has been referred, wherein the Hon'ble Apex Court has held that before Section 197 Cr.P.C. 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 in discharge of his official duties, and such act must fall within the scope and range of official duties of public servant concerned. It was further held that this Section does not extend its protective cover to every act or omission done by a public servant in service. 14. Raman Lal v. State of Rajasthan & Ors., reported in 2001(1) R.Cr.D. 423 (Raj.) has also been referred, wherein the Hon'ble High Court has held that in absence of ex-facie official action alleged in the complaint, the accused can be proceeded against in criminal court without any requirement of prosecution sanction and the prosecution sanction is not required in every offence committed by public man. That was a case where the act was not co-related with the official duty. 15. Raj Kishor Roy v. Kamleshwar Pandey & Anr., reported in (2002) 6 SCC 543 has also been relied upon, wherein the Hon'ble Apex Court has held that where the act has been done by the public servant in course of his service or in discharge of his duty, protection under Section 197 Cr.P.C. is available. But if the act complained of is not in connection with the discharge of official duty, the protection under Section 197 Cr.P.C. would not be available. But if the act complained of is not in connection with the discharge of official duty, the protection under Section 197 Cr.P.C. would not be available. 16. S.K. Zutshi & Anr. v. Bimal Debnath & Anr., reported in (2004) 8 SCC 31 has also been cited. That was a case where public servants demanded illegal gratification of Rs. 10,000/- from a shopkeeper, and on refusal to pay the same, the appellants ransacked the shop and took way the goods. The court below was wholly justified in holding that the appellants were not entitled to protection under Section 197 Cr.P.C. 17. The rulings relied upon by the rival counsels embark upon the Court to adjudge whether the act was committed in discharge of official duty or not, or some reasonable connection between the act and performance of the official duty exists or not. 18. In the present case in hand, Nakul Singh was picked up by the police for interrogation and as stated and not disputed by the learned counsel, the same was entered into the Roznamcha. It is true that the investigating officer in this case was of Surajpole Thana, and Nakul Singh was interrogated at Police Station, Amba Mata, but there being no bar in investigating a particular case in a particular police station, the interrogation of Nakul Singh at Police Station, Amba Mata cannot be considered as violation of any law. The other contention of the non-petitioner No.2 is that the police officers did not have a right to investigate, as Jeevan Singh was the Investigating Officer, this plea too does not have any force, because Section 36 Cr.P.C. deals with powers of superior officers of police, which reads as under:- "36. Powers of superior officers of police.- Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station." 19. Therefore, the contention that the present petitioners could not investigate the case, has no force, since the present officers are stated to be Superintendent of Police, Additional Superintendent of Police and Deputy Superintendent of Police, and were thus, competent to participate in the investigation, even though they were not the Investigating Officer. 20. Therefore, the contention that the present petitioners could not investigate the case, has no force, since the present officers are stated to be Superintendent of Police, Additional Superintendent of Police and Deputy Superintendent of Police, and were thus, competent to participate in the investigation, even though they were not the Investigating Officer. 20. As far as torture is concerned, this point has not been argued before the Court, since counsel for the petitioner states that if any offence is committed, the non-petitioner No.2 is free to move the appropriate authorities for seeking permission to prosecute the petitioners. 21. It is an admitted case that the police was investigating 'Girdhari Murder Case', which was a blind murder case and Nakul Singh was picked up by the police, as he had previous criminal record. Investigating a case being within the province of the petitioners, merely because they exceeded their powers and gave beating and tortured Nakul Singh to extract the truth, it cannot be said that the same had no nexus with the official duty. While trying to extract the truth, the present petitioners acted in excess of their duty, but that was clearly in connection with the discharge of their official duty and such excess cannot be considered as a ground to deprive the public servant of the protection provided under Section 197 Cr.P.C. 22. The present case in hand is alike the case of D.T. Virupakshappa (supra) cited by the learned counsel for the petitioners, wherein also the Court held that the police excess in connection with the investigation of the criminal case, has reasonable connection with the performance of the official duty of the police officers, and hence, they are entitled to the protection provided under Section 197 Cr.P.C. 23. The learned Additional Sessions Judge, in the impugned order, held that taking into custody on the basis of suspected involvement in a cognisable case and making investigation, is within the framework of law and can be termed as 'discharge of official duty'. But the Court further held that 'torturing' cannot be termed as official duty, as no law permits a police officer to torture a person mercilessly with regard to an offence, just to seek favourable confession. 24. But the Court further held that 'torturing' cannot be termed as official duty, as no law permits a police officer to torture a person mercilessly with regard to an offence, just to seek favourable confession. 24. The learned Additional Sessions Judge having come to the conclusion that taking into custody and making investigation is within the framework of law, was completely in error in coming to the conclusion that torturing the accused in order to bring out the truth with regard to an offence cannot be considered to be in connection with the performance of official duty. 25. I am not inclined to deal with the criminal act committed by the petitioners, as I am clearly of the view that the said act, though in excess, has a reasonable nexus with making of investigation and is having reasonable connection with the performance of official duty, thus, inviting the protection provided for under Section 197 of Cr.P.C. 26. Consequently, I deem it proper to uphold the order passed by the learned Chief Judicial Magistrate and set aside the order passed by the learned Additional Sessions Judge. 27. Resultantly, the present revision petitions are allowed. The impugned order dated 12.12.2014 is set aside and the order passed by the learned Chief Judicial Magistrate is upheld. However, Bhanwar Singh, who has not approached the Court, being Government servant on same footing, will also derive benefit of this order.