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2021 DIGILAW 307 (AP)

C. Rushendra Babu v. State of Andhra Pradesh

2021-05-04

LALITHA KANNEGANTI

body2021
JUDGMENT Lalitha Kanneganti, J. - This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') aggrieved by the order dated 30.09.2019 passed in C.F.R.No.3206 of 2019 by the learned I Additional Judicial Magistrate of First Class, Kadapa whereby the complaint filed by the complainant under Sections 190 and 200 of Cr.P.C. praying the Court to take cognizance of the case for the offences punishable under Sections 347, 384, 389 and 506 read with 109 of the Indian Penal Code, 1860 (for short 'I.P.C.') and for issuance of summons to the accused was allowed. 2. The facts of the case in brief is: The complainant lodged a report before the Police alleging that some civil disputes arose among his family members after the death of his younger brother in respect of the properties. While so, in the month of October, 2018, the accused made a call from his official mobile No.9121100517 to the personal number of the complainant i.e. 9573597177 and threatened him that he would foist false case like murder, attempt to murder, rape against him and dowry harassment case against his family members if the entire property is not transferred in the name of the complainant's sister-in-law. When the complainant informed the accused that he would lodge a report against him, he along with others trespassed into his house and had an altercation with the complainant. 3. It was also averred in the complaint that on 30.11.2018 at about 10:00 A.M. when he came out from his house he was obstructed by his sister-in-law's brother-in-law and threatened by him that he would be killed if the entire property is not transferred in the name of Krishnaveni, the complainant's sister-in-law. Therefore, the complainant went to I Town Police Station, Kadapa to lodge a report with the accused. But, instead of registering the complaint, the accused abused him in filthy language and confined him a room for three hours by forcibly obtaining his signatures on some written papers. Later on the interference of S.P. of Kadapa District he was released and the report was registered as crime No.257 of 2018 against L.Madhusudhan Reddy for the offences punishable under Sections 448 and 506 I.P.C. 4. Later on the interference of S.P. of Kadapa District he was released and the report was registered as crime No.257 of 2018 against L.Madhusudhan Reddy for the offences punishable under Sections 448 and 506 I.P.C. 4. As the complainant did not heed to the accused, he developed grudge and got lodged a false complaint by Krishnaveni as if the complainant trespassed in her house and outraged her modesty. The same was registered as crime No.258 of 2018 for the offences punishable under Sections 448, 354 and 506 I.P.C. 5. The Court below after considering the evidence and material placed before it, heard the complainant and passed a detailed order by taking cognizance of case against the accused for the offences punishable under Sections 347, 384, 389 and 506 I.P.C. and ordered to issue summons to the accused. Assailing the same the accused is before this Court by way of this revision. 6. Heard Smt. M.Vidyavathi, learned counsel for the petitioner, learned Additional Public Prosecutor for respondent No.1 and Sri Syed Kaleemulla, learned counsel for respondent No.2. 7. Learned counsel for the petitioner submits that the Court below erred in interpreting the ambit of Section 197 Cr.P.C. to provide the Police personnel to discharge their official duties or purport to act in discharging their official duty, took the averments of the complaint as material and held that sanction is not necessary. Learned counsel for the petitioner further submits that respondent No.2/complainant is accused in crime No.258 of 2018 and the complaint lodged therein is to be considered as statement under Section 162 Cr.P.C. Thus, taking cognizance of the case without sanction under Section 197 Cr.P.C. is contrary to the law laid down in B.Sailesh vs. Union of India, (2018) 5 ALD 269 (DB)). 8. On the other hand the learned counsel for respondent No.2 and learned Assistant Public Prosecutor advanced arguments in support of the order impugned. It is argued that the acts done by the petitioner are not in discharge of his official duties and the Court below was perfectly right in taking cognizance of the offence. 9. 8. On the other hand the learned counsel for respondent No.2 and learned Assistant Public Prosecutor advanced arguments in support of the order impugned. It is argued that the acts done by the petitioner are not in discharge of his official duties and the Court below was perfectly right in taking cognizance of the offence. 9. A bare perusal of the complaint reveals that it was lodged by respondent No.2 alleging that family disputes arose among the family members after the death of his brother and the petitioner who is working as Sub-Inspector of Police, II Town Police Station, Kadapa City colluded with his sister-in-law Krishnaveni and has been harassing respondent No.2 by threatening him to transfer entire property in the name of Krishnaveni. In that process respondent No.2 and his mother were necked out of the house by his sister-in-law, her brother-in-law and one mediator of the petitioner and threatened to kill respondent No.2 if the property is not transferred in the name of his sister-in-law, Krishnaveni. Therefore, respondent No.2 went to the Police Station to lodge a complaint, but the petitioner without registering the crime threatened respondent No.2 that he would foist false cases against him if they do not transfer entire property in the name of Krishnaveni and he confined respondent No.2 in a room for three hours. 10. After considering the material placed on record and examining the witnesses the learned Magistrate has taken cognizance for the offences punishable under Sections 347, 384, 389 and 506 IPC. The contention of the learned counsel for the petitioner is that prior sanction for prosecuting the petitioner who is Police personnel is necessary as contemplated under Section 197 Cr.P.C. but the same was not obtained in his case. The obligation there under is to decide the alleged acts attributed to the personnel of Police force or acts done in discharge of their official duties or at any rate the purport of the provision is the protection for the acts done while discharging their official duties. For better appreciation of the contention raised by the learned counsel for the petitioner it is appropriate to have a look at Section 197 Cr.P.C. which reads thus: "197. Prosecution of Judges and public servants. For better appreciation of the contention raised by the learned counsel for the petitioner it is appropriate to have a look at Section 197 Cr.P.C. which reads thus: "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- (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: 1 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. (3A) 1 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. (3B) 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, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 11. A reading of Section 197 Cr.P.C. makes it clear that it does not extend the obligation to every act of omission done by a public servant in service but restricts its scope to those acts of omissions which are done by a public servant in discharge of official duty. 12. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of state immunity. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of state immunity. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. (Emphasis supplied) Prakash Singh Badal v. State of Punjab, (2007) 1 SCC 1 13. Even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. (Emphasis supplied) in Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513 14. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. 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, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward 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. If the case as put forward 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 well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where 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. In order to come to the conclusion whether 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. 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". (Emphasis supplied) in P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation, (2001) 6 SCC 704 . 15. Thus, from the authoritative pronouncements of the Hon'ble Apex Court referred supra it is clear that for the purpose of obtaining prior sanction from the appropriate Government under Section 197 Cr.P.C. it is imperative that the alleged offence is committed in discharge of official duty by the accused. 16. In the present case on hand, it is clear from the allegations that the acts committed by the petitioner cannot be labelled as part of his official duty. From a reading of the complaint, prima facie it appears that the petitioner herein acted as a mediator and misused his power by threatening respondent No.1 who approached him to lodge a complaint with regard to the incident that took place between him, his sister-in-law and her family members. The case of respondent No.1 was proved by examining LW2. The alleged acts committed by the petitioner at any stretch of imagination cannot be termed as acts done in discharge of his official duties. In those circumstances prior sanction for prosecuting as contemplated under Section 197 Cr.P.C. is not required. 17. The case of respondent No.1 was proved by examining LW2. The alleged acts committed by the petitioner at any stretch of imagination cannot be termed as acts done in discharge of his official duties. In those circumstances prior sanction for prosecuting as contemplated under Section 197 Cr.P.C. is not required. 17. In view of the above, the learned Magistrate was right in taking cognizance of the case and the order impugned does not warrant interference of this Court. Hence, the revision is liable to be dismissed. 18. Accordingly this Criminal Revision Case is dismissed. 19. As a sequel, pending miscellaneous petitions, if any, shall stand closed.