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CASE NO.:

Appeal (crl.) 330 of 2006

PETITIONER:

SANKARAN MOITRA

RESPONDENT:

SMT. SADHNA DAS & ANR.

DATE OF JUDGMENT: 24/03/2006

BENCH:

C.K. THAKKER

JUDGMENT:

J U D G M E N T

ARISING OUT OF

SPECIAL LEAVE PETITION (CRIMINAL) No. 3347 of 2003

C.K. THAKKER, J.

Leave granted.

I have had the benefit of going through the judgment

prepared by my learned brother P.K. Balasubramanyan, J. I

express my inability to agree with the reasons recorded and

conclusions arrived at by him. I, therefore, consider it

appropriate to deal with the matter independently.

The relevant facts as stated in the judgment of the

High Court of Calcutta impugned in the present appeal are

that on May 10, 2001 general election of the State

Assembly of the West Bengal was held. One Rabindra Nath

Das @ Topi Das ('deceased' for short), husband of Mrs.

Sadhna Das ('complainant' for short) was supporting a

particular political party. He was engaged in distributing

food packets to the polling agents at Subhas Sarobar

(Baliaghata Lake) constituency. It was the case of the

complainant that when her husband left the home on May

10, 2001, he stated that he would be coming for taking

lunch. According to the complainant, however, her husband

did not come. When she was returning after casting her

vote, she saw a Tata Sumo vehicle and one Anath Das of

the locality inside the vehicle. When she asked the people

who gathered over there as to what had happened, she was

informed that Topi Das had become unconscious due to

beating by police on his head and he was taken to hospital.

The complainant, therefore, immediately proceeded to

hospital. She found her younger brother-in-law Laxman Das

amongst the crowd. On being asked, she was told that her

husband had died. She learnt that her husband was

supplying food packets at the polling booth. At that time,

some police officers came there and they beat her husband.

When her husband left the place, police men chased him

towards the lake side. Her husband was not knowing

swimming and he stated to the police personnel that he did

not know swimming and requested them not to beat him.

But the police officers did not pay any heed to the request

and continued beating. The husband of the complainant fell

down, became unconscious, was taken to the hospital but

was declared dead there. She, therefore, informed the

Deputy Commissioner of Police on May 11, 2001 that her

husband was beaten to death by police and demanded

"stern punishment" to persons responsible for killing him.

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On the next day, i.e. on May 12, 2001, the Deputy

Commissioner of Police, registered Phoolbagan P.S. Case

No.112, for an offence punishable under Section 304 Indian

Penal Code (IPC) against unknown police officers. It

appears that for a considerable long period, nothing was

done in the matter and no action was taken on the basis of

complaint made by the complainant. She, therefore, filed a

private complaint in the Court of Chief Judicial Magistrate,

Alipore, Kolkata on May 28, 2001 being case No.C-1107 of

2001 against the appellant and two other police officers for

offences punishable under Sections 302, 201, 109 and

120B of IPC. It was stated in the said complaint that the

husband of the complainant was assaulted and severely

beaten by police personnel which resulted in his death and

thereby the accused had committed the offences as

mentioned in the complaint and prayed for taking

cognizance, to issue process against the accused and to

pass appropriate orders in accordance with law. She had

also submitted a list of witnesses.

Between May 31, and June 16, 2001, the learned

Magistrate, following the provisions of the Code of Criminal

Procedure, 1973 (hereinafter referred to as 'the Code')

recorded statements of the complainant and the witnesses

produced by her. On the basis of the said material, the

learned Magistrate took cognizance of the offences. On

June 16, 2001, the learned Magistrate issued non-bailable

warrant against the accused persons including the appellant

herein and fixed July 10, 2001 as returnable date.

Meanwhile, on June 30, 2001, the accused preferred an

application under Section 210 of the Code stating therein

that a complaint was filed by the complainant on May 12,

2001 which had been registered as PS Case No.112 of 2001

for an offence punishable under Section 304 IPC by

Phoolbagan Police Station and proceedings were initiated.

It was also stated that thereafter Fax-message was sent to

the Joint Commissioner of Police to investigate the case

under Section 302 which was treated as FIR. It was,

therefore, prayed that the complaint dated May 28, 2001

be stayed.

It may also be stated that the accused moved the

High Court for grant of anticipatory bail under Section 438

of the Code. The application, however, was rejected by the

High Court on June 20, 2003. The order passed by the High

Court was challenged by filing Special Leave Petition in this

Court which was also dismissed by this Court on July 28,

2003.

The accused then filed a petition under Section 482 of

the Code for quashing of proceedings, inter alia, contending

that the alleged offence had been committed by them

"while acting or purporting to act" in the discharge of their

official duties and no cognizance could be taken by the

Court except with the previous sanction of the State

Government. Since no such sanction was obtained before

filing the complaint, the complaint was not maintainable at

law and was liable to be dismissed only on that ground.

The High Court, by the impugned order, dismissed the

petition observing that it was a case of 'merciless beating'

by police officer causing death of a person which could not

be said to be an act in the discharge of official duty.

Several injuries were found on the person of the deceased

and according to the medical opinion, those injuries were

ante mortem and homicidal in nature. The postmortem

report clearly indicated the nature and extent of the injuries

inflicted by the accused on the victim and the witnesses

had given vivid description of the offence committed by the

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accused. In the facts and circumstances, therefore, it could

not be said to be a case covered by Section 197 of the

Code and hence the application was liable to be dismissed.

Accordingly, the application was dismissed on July 7, 2003.

The said order is challenged by the appellant.

On August 22, 2003, notice was issued and "stay of

further proceedings pending before the Chief Judicial

Magistrate, Alipore, Calcutta" was granted by this Court in

the meanwhile. Affidavits and counter affidavits were

thereafter filed.

We have heard learned counsel for the parties.

Mr. K.T.S. Tulsi, Senior Advocate, appearing for the

appellant, contended that the High Court has committed an

error of law in holding that the provisions of Section 197 of

the Code were not attracted. According to him, the

appellant was a police officer and he was on duty on May

10, 2001. At about 2 p.m., a message was received from

Assistant Commissioner of Police regarding disturbance and

rioting between two rival political parties at Subhash

Sarobar and the case was registered as Case No. 111 of

2001 for offences punishable under Sections 148, 149 and

336 IPC read with Sections 3 & 5 of Explosive Substances

Act, 1908 against the deceased and others and

investigation started. The appellant, along with other police

officers, rushed to the spot in order to disperse the rioting

mob and restore law and order situation. During the said

incident of dispersing mob and preventing rioting, the

deceased was injured and fell into water, drowned in the

lake and declared dead on being taken to the hospital.

According to Mr. Tulsi, all acts were committed by the

appellant while exercising powers, discharging duties and

performing functions as police officer and as such the

provisions of Section 197 of the Code were clearly

attracted. It was submitted by Mr. Tulsi that admittedly, no

sanction was obtained from the Government before

instituting proceedings against the appellant. The

proceedings were, therefore, not tenable. The learned

Magistrate, therefore, was wrong in taking cognizance, in

issuing non-bailable warrant and proceeding with the case.

Mr. Tulsi submitted that absence of sanction as required by

Section 197 goes to the root of the matter and no

proceedings could be initiated in absence of such sanction

and the proceedings are required to be dropped.

Mr. Tulsi also submitted that as is clear, the

complainant had filed a complaint on May 11, 2001 and in

the said complaint it was expressly stated that her husband

had met with death due to beating by police officers. An

entry was made to that effect and a case was registered as

PS Case No.112 of 2001 for an offence punishable under

Section 304 IPC by Phoolbagan Police Station on May 12,

2001. Subsequently, even Section 302 IPC was added.

Considering that fact also, a private complaint instituted by

the complainant in the Court of the Chief Judicial Magistrate

on May 28, 2001 for offences punishable under Sections

302, 201, 109 and 120B IPC was required to be stayed

under Section 210 of the Code which provides for

procedure to be followed in such cases.

Mr. Pradip Kumar Ghosh, learned senior counsel for

the complainant, on the other hand, supported the action

taken by the Chief Judicial Magistrate and the order passed

by the High Court. He submitted that the acts committed

by the appellant and other police officers were totally

illegal, unlawful and in violation of law of the land. The

deceased was chased, assaulted, severely beaten and killed

by the appellant and other police officials. Section 197 has

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no application in such cases. According to the learned

counsel, the High Court has considered the entire material

in its proper perspective and held that in the facts and

circumstances of the case, Section 197 could not be

invoked. The said order cannot be said to be illegal or

contrary to law.

The counsel also submitted that no action whatsoever

has been taken on the basis of the complaint filed by the

complainant on May 11, 2001 and hence Section 210 was

not attracted. The learned Magistrate, therefore, was

wholly justified in entertaining the complaint filed by the

complainant, in taking cognizance and issuing arrest

warrants. The counsel also submitted that in view of the

fact that the action of the appellant and police officers was

totally illegal and an innocent person was killed that non

bailable warrants were issued. The said action was

challenged by the accused but the High Court as well as

this Court did not interfere with the order and dismissed

the application for anticipatory bail. The counsel also made

grievance that the State and the police force of the

respondent State were virtually supporting and illegally

helping the appellant and other police officials which is clear

from the fact that even though non bailable warrant was

issued against the accused persons in June, 2001 and the

said action was confirmed by the High Court and also by

this Court as early as in 2003, till today, the appellant has

not been arrested. He, therefore, submitted that no case

has been made out for interference by this Court and the

appeal deserves to be dismissed.

Mr. Avijit Bhattacharjee, learned counsel appearing

for the State relied upon the affidavit filed on behalf of the

State.

The questions which arise for our consideration are,

firstly, whether in the facts and circumstances of the case,

Section 197 of the Code is attracted and sanction as

required by that section is sine qua non for prosecuting the

appellant and other police officers and whether the Chief

Judicial Magistrate was justified in taking cognizance of the

complaint filed by the complainant and proceeding with the

complaint, and secondly, whether the case is covered by

Section 210 of the Code and the private complaint filed by

the complainant in the Court of Chief Judicial Magistrate on

May 28, 2001 against the accused persons for offences

punishable under Sections 302, 201, 109 and 120B IPC

could be proceeded with or required to be stayed?

Before I deal with the material placed on record, it

would be appropriate to consider the legal position. Section

197 of the Code provides for sanction of prosecution of

certain public servants. The relevant part thereof 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;

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(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.

\005 \005 \005 \005 \005 \005 \005 \005 \005

(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 or 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.

It is the case of the appellant that whatever he has

done has done "while acting or purporting to act in the

discharge of his official duty" and Section 197 bars a Court

from taking cognizance of such offence except with the

previous sanction of the State Government. Since there is

no sanction of the State Government, the Chief Judicial

Magistrate could not have taken cognizance of the case and

the complaint was liable to be dismissed.

But the case of the complainant is that there was no

need or necessity to take sanction of the State Government

as the appellant and other police officers had deliberately,

intentionally and willfully caused death of her husband.

The said act was not done in discharge of duty or even

under colour of duty but it has been done by them by

taking undue advantage of their position. The case was of

murder, pure and simple. The learned Magistrate took into

account all relevant facts and material placed before him

and held that the sanction was not necessary. The High

Court was, therefore, justified in dismissing the application.

So far as the provisions of the Section 197 are

concerned, they came up for judicial interpretation in

several cases. One of the leading cases which has been

referred to in several decisions thereafter was of Dr. Hori

Ram Singh v. Emperor, [1939 FCR 159 : AIR 1939 FC 43].

Their Lordships of the Federal Court in Dr. Hori Ram Singh

were called upon to consider Section 270 of the

Government of India Act, 1935 which was similar to

Section 197 of the present Code. Sulaiman, J., interpreting

the said section, observed that the question of good faith

or bad faith would not strictly arise in interpreting the

provision inasmuch as the words used in the section were

not only "any act done in the execution of his duty" but

also "any act purporting to be done in the execution of

duty". It was, therefore, held that when the act is not

done in the execution of the duty, but is purported to be

done in the execution of the duty, it would be covered.

The learned Judge stated; "Obviously the section does

not mean that the very act which is the gravamen of the

charge and constitutes the offence should be official duty of

the servant of the Crown. Such an interpretation would

involve a contradiction in terms, because an offence can

never be an official duty. The words as used in the Section

are not "in respect of any official duty" but "in respect of

any act done or purporting to be done in the execution of

his duty". The two expressions are obviously not identical.

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 the execution of the duty. The reference is

obviously to an offence committed in the course of an

action, which is taken or purports to be taken in

compliance with an official duty, and is in fact connected

with it. The test appears to be not that the offence is

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capable of being committed only by a public servant and

not by any one else, but that it is committed by a public

servant in an act done or purporting to be done in the

execution of his 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 is it necessary to go to the length of saying that the act

constituting the offence should be so inseparably connected

with the official duty as to form part and parcel of the same

transaction. If the act complained of is an offence, it must

necessarily be not an execution of duty, but a dereliction of

it. What is necessary is that the offence must be in respect

of an act done or purported to be done in execution of

duty, that is, in the discharge of an official duty. It must

purport to be done in the official capacity with which he

pretends to be clothed at the time, that is to say under the

cloak of an ostensibly official act, though of course, the

offence would really amount to a breach of duty. An act

cannot purport to be done in execution of duty unless the

offender professes to be acting in pursuance of his official

duty and means to convey to the mind of another, the

impression that he is so acting."

It was, however, stated\027

"The section is not intended to apply to acts done

purely in a private capacity by a public servant. It

must have been ostensibly done by him in his

official capacity in execution of his duty, which

would not necessarily be the case merely

because it was done at a time when he held such

office, nor even necessarily because he was

engaged in his official business at the time. For

instance, if a public servant accepts as a reward

a bribe in his office while actually engaged in

some official work, he is not accepting it even in

his official capacity, much less in the execution of

any official duty, although it is quite certain that

he could never have been able to take the bribe

unless he were the official in charge of some

official work. He does not even pretend to the

person who offers the bribe that he is acting in

the discharge of his official duty, but merely uses

his official position to obtain the illegal

gratification." (emphasis supplied)

In the concurring opinion, Varadachariar, J. stated\027

"It only remains to deal with the arguments

urged on the one side or the other as to the test

to be applied in determining whether or not the

act complained of is one "purporting to be done

in execution of his duty" as a public servant. I

would observe at the outset that the question is

substantially one of fact, to be determined with

reference to the act complained of and the

attendant circumstances; it seems neither useful

nor desirable to paraphrase the language of the

section in attempting to lay down hard and fast

tests." (emphasis supplied)

In H.H.B. Gill & another v. King, (75 IA 41:AIR 1948

PC 128), the Judicial Committee of the Privy Council had an

occasion to deal with the provisions of Section 197 of the

Code in juxtaposition of Section 270 of the Government of

India Act, 1935. Referring to Dr. Hori Ram Singh and

applying the ratio laid down therein, their Lordships

observed that a public servant can only be said to act or

purport to act in the discharge of his official duty, if his act

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is such as to lie within the scope of his official duty. The

Judicial Committee proceeded to state that in considering

Section 197, 'much assistance' could be derived from the

Judgment of Dr. Hori Ram Singh.

It then formulated the test thus:

"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. Thus, a Judge neither acts nor

purports to act as a Judge in receiving a bribe,

though the judgment which he delivers may be

such an act; nor does a Government medical

officer act or purport to act as a public servant in

picking the pocket of a patient whom he is

examining, though the examination itself may be

such an act. The test may well be whether the

public servant, if challenged, can reasonably

claim that, what he does, he does in virtue of his

office." (emphasis supplied)

Shreekantiah Ramayya Munipalli & another v. State of

Bombay, [1955 (1) SCR 1177 : AIR 1955 SC 287] was

probably the first leading decision of this Court on the

point. Keeping in view the underlying object behind

Section 197 and referring to Dr. Hori Ram Singh as also

H.H.B. Gill, Vivian Bose, J. stated:

"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 not 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. (emphasis supplied)

Again, in Amrik Singh v. State of Pepsu, [1955 (1)

SCR 1302 : AIR 1955 SC 309], this Court held that it is not

every offence committed by a public servant that requires

sanction for prosecution under Section 197(1) of the Code,

nor every act done by him while he is actually engaged in

the performance of his official duties, so that, if questioned,

it could be claimed to have been done by virtue of the

office. It is only when the act complained of is directly

connected with his official duties that sanction is necessary.

Speaking for the Court, Venkatarama Ayyar, J.

referring to the relevant decisions on the point, formulated

the principle:

"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 been 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 would 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."

A reference may be made to a decision of the

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Constitution Bench in Matajog Dobey v. H.C. Bhari, [1955

(2) SCR 925 : AIR 1956 SC 44]. Holding Section 197 of the

Code constitutional and not discriminatory and violative of

Article 14 of the Constitution, the Court stated that the

primary object of Section 197 was to protect public

servants from harassment in the discharge of their official

duties. Delivering the judgment for the Bench,

Chandrasekhara Aiyar, J. said:

"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 merits. 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." (emphasis

supplied)

The Bench also considered the question that if such

sanction is necessary at any stage, it should be obtained at

that stage. It was also indicated that such question may

arise "at any stage of the proceeding". The complaint may

not disclose that the act constituting the offence was done

or purported to be done in the discharge of the official duty

but the facts subsequently coming to light on a police

report or judicial inquiry or even in the course of the

prosecution evidence at the trial, may establish the

necessity for sanction. The Court, therefore, concluded:

"Whether sanction is necessary or not may have to be

determined from stage to stage. The necessity may reveal

itself in the course of the progress of the case."

In P. Arulswami v. State of Madras, [1967 (1) SCR

201 : AIR 1967 SC 776], their Lordships stated:- "It is the

quality of the act that is important and if it falls within the

scope and range of his official duties, the protection

contemplated by Section 197 of the Criminal Procedure

Code will be attracted". If the act is totally unconnected

with the official duty, there can be no protection. It is only

when it is either within the scope of the official duty or in

excess of it that the protection is claimable.

In Pukhraj v. State of Rajasthan & Another, [(1973) 2

SCC 701 : 1974 (1) SCR 551], after considering several

cases on the point, the Court observed that though the

principle is well settled, the real difficulty lies in applying it

to the factual situation.

The Court observed\027

"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

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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 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. (emphasis supplied)

In B. Saha & others v. M.S. Kochar, [(1979) 4 SCC

177], this Court stated that for the application of Section

197 of the Code, there must be direct and reasonable

nexus between the offence committed and the discharge of

official duty. It may happen that a particular act might

have been committed by a public servant in the discharge

of his duty or purported to be in discharge of his duty but

he might have acted illegally and unlawfully if the other act

complained of would be outside the ambit of Section 197 of

the Code. In B. Saha, the Court observed that though the

initial action of seizure of the goods by the public servant

was an act committed by him while acting in discharge of

his official duty, subsequent act of dishonest

misappropriation or conversion of goods could not be said

to be in discharge or purported discharge of duty. For that

act, he cannot get protection of Section 197 of the Code.

The Court also observed that the question of sanction

under Section 197 of the Code can be raised and

considered at any stage of the proceedings. Moreover,

while considering the question whether or not sanction for

prosecution was required, it is not necessary for the Court

to confine itself to the allegation in the complaint alone and

it can take into account all the material on record at that

time when the question is raised and falls for consideration.

In Bakhshish Singh Brar v. Gurmej Kaur & Another,

[(1987) 4 SCC 663], this Court held that when police

officers were accused of causing grievous injuries and

death while conducting raid and search, it could not be said

that they were acting in purported discharge of their official

duty but if while discharging duty, they exceeded the limits

of such official capacity, sanction under Section 197 of the

Code would be necessary. While insisting on the need and

necessity to protect public servants, the Court also

emphasized the protection of rights of citizens.

The Court stated\027

"It is necessary to protect the public servants in

the discharge of their duties. They must be

made immune from being harassed in criminal

proceedings and prosecution, that is the

rationale behind Section 196 and Section 197 of

the CrPC. But it is equally important to

emphasise that rights of the citizens should be

protected and no excesses should be permitted.

"Encounter death" has become too common. In

the facts and circumstances of each case

protection of public officers and public servants

functioning in discharge of official duties and

protection of private citizens have to be

balanced by finding out as to what extent and

how far is a public servant working in discharge

of his duties or purported discharge of his

duties, and whether the public servant has

exceeded his limit. It is true that Section 196

states that no cognizance can be taken and

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even after cognizance having been taken if facts

come to light that the acts complained of were

done in the discharge of the official duties then

the trial may have to be stayed unless sanction

is obtained. But at the same time it has to be

emphasised that criminal trials should not be

stayed in all cases at the preliminary stage

because that will cause great damaged to the

evidence."

In P.K. Pradhan v. State of Sikkim, [(2001) 6 SCC

704], after referring to relevant case law on the point, it

was observed that different tests have been laid down to

ascertain the scope and meaning of the relevant words

occurring in Section 197 "any offence alleged to have been

committed by him while acting or purporting to act in the

discharge of his official duty". It was then stated that the

offence alleged to have been committed must have

something to do, or must relate in some manner, with the

discharge of official duty of a public servant. No question of

sanction would arise under Section 197, unless the act

complained of is an offence; the only point for

determination 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 that question would arise only at

a later stage when the trial proceeds on the merits. What a

court must consider is whether the act and the official duty

are so interrelated that one can postulate reasonably that it

was done by the accused in the performance of official

duty. If the answer to the said question is in affirmative,

Section 197 will be attracted, but not otherwise. This Court

reiterated that the question as to applicability of Section

197 of the Code can be raised at any stage of the

proceedings. In order to come to the conclusion, whether

the claim of the accused that the act he had committed

was in the course of 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 the question of sanction

would be left to be decided in the main judgment which

may be delivered upon at the conclusion of the trial.

In State of Orissa v. Ganesh Chandra Jew, [(2004) 8

SCC 40], it was held that the expression "any offence

alleged to have been committed by public servant while

acting or purporting to act in the discharge of his official

duty" implies that the act or omission must have been done

by the public servant in the course of his service and that it

should fall within the scope and range of his official duty. It

was then observed that the test is whether omission or

neglect to do that act would be brought on a public

servant, the charge of dereliction of his official duty. The

protection is available only when the alleged act done by

the public servant is reasonable, connected with the

discharge of his official duty and is not merely a cloak for

doing the objectionable act [vide S.K. Zutshi v. Bimal

Debnath (2004) 8 SCC 31].

In K. Kalimuthu v. State by DSP [(2005) 4 SCC 512],

it was stated that the protection given under Section 197 of

the Code 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

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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. But the said 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.

It was, therefore, observed\027

"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. 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 this 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. (emphasis

supplied)

Recently, in Rakesh Kumar Mishra v. State of Bihar &

Others, [(2006) 1 SCC 557], this Court restated the object

behind enacting Section 197 of the Code and also

prerequisites for application thereof.

The Court stated\027

"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 it chooses 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

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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. 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

this 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." (Emphasis supplied)

From the aforesaid decisions, in my opinion, the law

appears to be well settled. The primary object of the

Legislature behind Section 197 of the Code is to protect

public officers who have acted in discharge of their duties

or purported to act in discharge of such duties. But, it is

equally well settled that the act said to have been

committed by public officer must have reasonable

connection with the duty sought to be discharged by such

public officer. If the act complained of has no nexus,

reasonable connection or relevance to the official act or

duty of such public servant and is otherwise illegal,

unlawful or in the nature of an offence, he cannot get

shelter under Section 197 of the Code. In other words,

protection afforded by the said section is qualified and

conditional.

Mr. Tulsi, no doubt, submitted that the appellant was

a police officer. He was on duty. He had received a

message about rioting and law and order situation at

Baliaghata. He, therefore, had gone to the spot pursuant

to the said message, in police uniform, in police jeep to

deal with the situation. All the ingredients of Section 197

of the Code were thus satisfied and the High Court was

wrong in not applying the said provision.

I am unable to agree with Mr. Tulsi. In my judgment,

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it is precisely in such cases that the Court is called upon to

consider whether the public servant was acting or

purporting to act in discharge of his duty or it was merely a

cloak for doing illegal act under the excuse of his status as

a public servant and by taking undue advantage of his

position, he was committing an offence or an unlawful act.

In such situations, when the question comes up for

consideration before a Court of law as to the applicability or

otherwise of Section 197 of the Code, it is not only the

power but the duty of the Court to apply its mind to the

fact-situation before it. It should ensure that on the one

hand, the public servant is protected if the case is covered

by Section 197 of the Code and on the other hand,

appropriate action would be allowed to be taken if the

provision is not attracted and under the guise of his

position as public servant, he is trying to take undue

advantage.

In the instant case, from the material which has been

placed on record, it is amply clear that the appellant and

other police officers had acted illegally, unlawfully and

highhandedly. In the complaint, it was stated by the widow

of deceased Topi Das that the accused chased her husband

and assaulted him by causing several injuries which

resulted in his death. But, apart from what is stated in the

complaint, the learned Chief Judicial Magistrate had

recorded statements of witnesses mentioned in the

complaint. The learned counsel for the first respondent-

complainant, drew our attention to those statements who

were eye-witnesses. It was stated by them that the

deceased had not indulged in any illegal activity. He had

not done any unlawful act. He had no weapon with him.

He was distributing food packets at the polling booth of a

particular political party. He was assaulted and beaten by

accused persons who were police officers. When the

deceased left the place, the police officers chased him and

continued to beat him. When deceased reached near a

lake, he requested the police officers not to beat him. He

also stated that he did not know how to swim and prayed

to leave him. But the police officers did not pay any heed

to his request and continued beating, which resulted in his

death.

Dr. Rabindra Basu, who performed post mortem

examination, stated that he found the following injuries on

the person of Topi Das:

"1. One abrasion with a reddish crust 1.4 inches

x .3 inch more or less transversely placed

across left side of forehead lower part being

placed 1 inch above lateral 1/3rd left eye

brow.

2. One abrasion .4 inch x .3 inch with reddish

crust placed 1 inch above medical end of

left eyebrow and = inch lateral to midline.

3. One linear abrasion .6 inch x .1 inch with

reddish crust over lateral aspect of

uppermost part of left forearm.

4. One abrasion = x .1 inch with reddish crust

over postern lateral aspect of upper 1/3rd of

left forearm.

5. One abrasion = x .1 inch over dorsum of left

hand.

6. One linear abrasion .4 inch x .1 inch with

reddish rust over dorsal aspect of web

between index and middle finger."

On internal examination, he noticed the

following injuries:

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1. One heomotoma in the scalp tissue 3 =

inches x 2 inches over right temporal region.

2. One heamotoma in the scalp tissue over

vault of the skull 4 inch x .4 inch over parieto

occipitial region, of scalp.

3. One heamotoma in the scalp tissue over

vault of the skull 4 inch x 3 inches involving left

parieto topper region.

4. One heamotoma 2 = inches x 1 = inch over

left frontal region (forhead).

5. Exgradural Hemorrhage over vault of the

brain involving posterior aspects of both

partietal lobes.

6. Thin layscror sub-aural hemorrhage all over

both the cerebral homlsphered inching under

surfaced.

He then stated:

"All the internal organs were congested.

Laryenz and trachnoes was found congested

and the lumen was filled up with shaving

lathery froth with and sand seen even below

bifunction of trachoea. Lungs were voluminous,

doughy filled and on section and squeezing

occupious amount of frothy blood mixed fluid

come out. Heart showgrade-II atteroma at the

root of aorta.

On the basis of my findings I have the following

opinion: "Death was due to the effects of head

injuries associated with drawing ante-mortem

and homicidal in nature.

The injuries which I found are consisted with a

trauma caused by blunt weapon such as Lathi."

(Emphasis supplied)

The High Court, in my judgment, considered this

aspect in its proper perspective and was wholly justified in

observing that "it was a merciless beating by a police

officer" causing death of a person which could not be said

to be an act in discharge of official duty. The High Court

was also right in stating that postmortem report clearly

indicated the nature and extent of injuries on the victim.

Other witnesses had given vivid description of the offence

committed by the accused persons. The said finding, which

is supported by material on record, cannot be said to be

based on 'no evidence' or otherwise perverse, nor it can be

concluded that an error of law has been committed by the

High Court which requires to be corrected by this Court in

the exercise of discretionary jurisdiction under Article 136

of the Constitution. Hence, in my opinion, no interference

is called for against the said order.

In my view, even Section 210 of the Code has no

application to the facts of the case on hand. Section 210

requires procedure to be followed when there is a

complaint case and police investigation in respect of the

same offence and reads thus:

210 Procedure to be followed when there

is a complaint case and police investigation

in respect of the same offence.

(1) When in a case instituted otherwise than on

a police report (hereinafter referred to as a

complaint case), it is made to appear to the

Magistrate, during the course of the inquiry or

trial held by him, that an investigation by the

police is in progress in relation to the offence

which is the subject matter of the inquiry or

trial held by him, the Magistrate shall stay the

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proceedings of such inquiry or trial and call for a

report on the matter from the police officer

conducting the investigation.

(2) If a report is made by the investigating

police officer under Section 173 and on such

report cognizance of any offence to taken by

the Magistrate against any person who an

accused in the complaint case, the Magistrate

shall inquire together the complaint case and

the case arising out of the police report as if

both the cases were instituted on a police

report.

(3) If the police report does not relate to any

accused in the complaint case or if the

Magistrate does not take cognizance of any

offence on the police report, he shall proceed

with the inquiry or trial, which was stayed by

him in accordance with the provision of this

code.

Bare reading of the above provision makes it clear

that during an inquiry or trial relating to a complaint case,

if it is brought to the notice of the Magistrate that an

investigation by the police is in progress in respect of the

same offence, he shall stay the proceedings of the

complaint case and call for the record of the police officer

conducting the investigation.

The object of enacting Section 210 of the Code is

three fold:

(i) it is intended to ensure that private

complaints do not interfere with the course of

justice;

(ii) it prevents harassment to the accused

twice; and

(iii) it obviates anomalies which might arise

from taking cognizance of the same offence

more than once.

The Joint Committee of Parliament observed:

"It has been brought to the notice of the

Committee that sometimes when serious case is

under investigation by the police, some of the

persons file complaint and quickly get an order

of acquittal either by cancellation or otherwise.

Thereupon the investigation of the case

becomes infructuous leading to miscarriage of

justice in some cases. To avoid this, the

Committee has provided that where a complaint

is filed and the Magistrate has information that

the police is also investigating the same

offence, the Magistrate shall stay the complaint

case. If the police report (under Section 173) is

received in the case, the Magistrate should try

together the complaint case and the case

arising out of the police report. But if no such

case is received the Magistrate would be free to

dispose of the complaint case. This new

provision is intended to secure that private

complainants do not interfere with the course of

justice." (emphasis supplied)

It is thus clear that before Section 210 can be

invoked, the following conditions must be satisfied.

(i) There must be a complaint pending for inquiry

or trial;

(ii) Investigation by the police must be in progress

in relation to the same offence;

(iii) A report must have been made by the police

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officer under Section 173; and

(iv) The magistrate must have taken cognizance of

an offence against a person who is accused in

the complaint case.

In the impugned order passed by the High Court, no

such contention appears to have been raised by the

appellant. On the basis of the complaint filed by the

complainant and on being satisfied on the material placed

on record, the learned Chief Judicial Magistrate, Alipore had

proceeded with the case which cannot be said to be illegal.

It may also be stated here that the High Court in its

order, dated June 20, 2003 considered this contention and

observed that Section 210 of the Code could not arrest the

proceedings initiated by the complainant, since the 'basic

tenor of the two cases were different.' Relying on the

decision of this Court in Harjinder Singh v. State of Punjab,

(AIR 1985 SC 404), it was submitted that both the cases

could not be clubbed together since the prosecution version

was quite different in those cases. It may be stated that

Special Leave Petition against the order of the High Court

was dismissed by this Court on July 28, 2003. Even this

ground, therefore, cannot take the case of the appellant

anywhere.

I am constrained to observe here that there is

considerable force in the allegation of the learned counsel

for the complainant that the State agency had shown

partisan attitude and favoured the appellant. This is clear

from the fact that though the application of the appellant

for anticipatory bail was rejected by the High Court as well

as by this Court before about three years, the appellant

was never arrested by the police.

For the foregoing reasons, in my opinion, the order

passed by the High Court is in consonance with well settled

principles of law and does not deserve interference under

Article 136 of the Constitution. The appeal, therefore,

deserves to be dismissed and accordingly dismissed.

Interim stay granted earlier stands vacated.

It may be stated at this stage that the incident is of

May, 2001 and about five years have passed. It is,

therefore, necessary that the proceedings must be

concluded as expeditiously as possible. The learned Chief

Judicial Magistrate, Alipore is, therefore, directed to

proceed with the case with utmost expedition as directed

by the High Court.

Before parting with the matter, I may clarify that all

the observations made by me hereinabove have been only

for the limited purpose of deciding the controversy in

connection with the applicability or otherwise of Sections

197 and 210 of the Code and I may not be understood to

have expressed any opinion one way or the other on the

merits of the case. As and when the matter comes before

an appropriate Court, it may be decided strictly on its own

merits without being influenced/inhibited by the above

observations.

For the foregoing reasons, the appeal deserves to be

dismissed and it is accordingly dismissed.