N Criminal Appeal Nos
844 845 of 1985
From the Judgment and Order dated 1121982 of the Delhi High Court in Crl
Main No 551 of 1982
Anil Deo Singh RN Poddar and PK Mukharjee for the Appellants
Anil Kumar Gupta Amicus Curiae for the Respondents
The Judgment of the Court was delivered by 814 BCRAY J
The only question involved in these two appeals is whether the criminal proceedings initiated against the appellants ie Balbir Singh Sub Inspector and Ram Shanker Constable of Delhi Police Force is maintainable in the absence of any prior sanction obtained from the Lt Governor as required under s197 3 of the Code of Criminal Procedure
Section 1971 of the Code of Criminal Procedure envisages that no court can take cognizance of any offence alleged to have been committed by a Judge or Magistrate or a public servant while acting or purporting to act in the discharge of his official duty without previous sanction of the Government
Sub section 2 of that Section further provides that 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 discharge of his official duty without obtaining the prior sanction of the Central Government
Sub section 3 of the said Section further provides that the State Government may by notification direct that the provisions of Sub section 2 shall apply to such class or category of members of the Forces charged with the maintenance of public order as may be specified in the said order and upon such notification being made the provisions of Sub section 2 will apply as if for the expression Central Government occurring therein the expression State Government were substituted
The appellants are undoubtedly the members of Delhi Police Force
It is also not in dispute that these appellants do not fall within the category of officers mentioned in Sub Section 1 of Sec
197 of Criminal Procedure Code and as such no prior sanction of the Government is necessary in order to launch a prosecution against these officers
The only question remains to be considered is whether the appellants being members of the Delhi Police Force are entitled to get the benefit of Sub Section 3 of Section 197 of Criminal Procedure Code by virtue of the notification No SO 183E dated 20th March 1974 issued by the Under Secretary of India read with the notification dated 7th April 1980 issued by the Lt Governor Delhi under No
F107778 HP II
Delhi is a Union Territory within the meaning of Article 1 read with the First Schedule to the Constitution as amended by the Constitution 7th amendment Act 1956
The power to administer the Union Territory is vested in the President under Article 239 of the Constitution and Clause 1 of the said Article empowers the President to administer the Union Territory through 815 and Administrator to be appointed by him
The Administrator appointed by the President under article 2391 of the Constitution with the designation of Lt Governor of Delhi derives only such powers functions and duties as are entrusted to him by the President under article 2391
In accordance with the provisions of this Art 2391 the aforesaid notification dated 20th March 1974 has been made whereby the President had directed that the Administrators of all the Union Territories other than Arunachal Pradesh and Mizoram exercise subject to the control of the President the powers and discharge the functions under the Code of Criminal Procedure 1973 as mentioned in Schedule annexed thereto subject to the condition mentioned therein
The said notification was enforced on 1st April 1974
In this Schedule all powers and functions of the State Government except those conferred by Sections 8 and 477 of the Code were conferred on the Administrator
Therefore by virtue of this notification the President empowered the Administrator of Union Territories ie Lt Governor of Delhi to exercise the powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in Sections 8 and 477 of the said Act
It also appears from the notification dated 7th April 1980 that the Lt Governor directed that the provisions of Sub Section 2 of Sec197 shall apply to serving police officials of all ranks of Delhi Police Force charged with the maintenance of public order
This notification was made in exercise of powers conferred upon the administrator under Sub Section 3 of Sec
197 of the Code of Criminal Procedure read with the Government of India Notification Dated March 20 1974 mentioned before Reading these two notifications together it is crystal clear that to start a proceeding against the members of all ranks of Deli Police Officials in a Criminal Court previous sanction of the Lt Governor is imperative provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty
In the instant case the act of tampering of the Search Memos by the two appellants ie Balbir Singh and Ram Shankar cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court
The complaint was filed by the Special Railway Magistrate alleging that Search Memos which were signed by the Sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search Memos were in the custody of the Court
Subsequently it has been interpolated by getting the same signed by the accused Ram Shankar
This 816 act of tampering and interfering with the records of the Court by the two petitioners by any stretch of imagination cannot be said to have been done or purported to have been done by the petitioners in discharge of their official duty
It is pertinent to refer in this connection to the decision of this Court in Matajog Dobey vs HC
Bhari 1955 2 SCR 925 where this Court laid down the scope of the protection afforded by Sec
197 of the Code of Criminal Procedure in the following terms  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 but not a pretended or fanciful claim that he did it in the course of the performance of his duty
 These observations have been followed by this Court in Pukhraj vs State of Rajasthan  Anr  In that case the Post Master General of Rajasthan abused and kicked a Clerk of the Head Post Office when a clerk of the Head Post Office of Jodhpur went to make some oral representations to the Post Master General
The clerk filed a complaint against the Post Master General under Sec 323 and 504 IPC before the Additional Munsif Magistrate of Jodhpur city
An application was filed praying that no cognizance of the offence would be taken without the sanction of the Government under Sec
197 of Criminal Procedure Code
It was held that the acts alleged were not done in due discharge of his official duty and so no prior sanction of the Government was necessary under Section 197 of the Code
In Bhagwan Prasad Srivastava vs NP Misra 1971 1 SCR 317 the respondent filed a complaint alleging that the appellant a Civil Surgeon used defamatory and abusive words and got him pushed out by the cook of the hospital
It was found that the case was not covered by Sec
197 of the said Act as those acts were not done in discharge of his official duty
In the case of Darshan Kumar vs Sushil Kumar Malhotra  Ors  it was found that the acts complained of against Respondents Nos
13 and 4 were purported to have been done by them in discharge of their official duties and it was reasonably connected with their official duties
As such it was held that prior sanction of the State Government was necessary in prosecuting them in respect of the offence if any made out from the commission of such acts
817 As regards scope and ambit of Sec
1973 of the Code of Criminal Procedure it has been rightly observed by the Division Bench of the Gujarat High Court in Bhikhaji Vaghji vs LK Barot and Ors  that after the issuance of the notification by the Government under Sec
1973 of the Criminal Procedure Code directing that the provisions of Sub Sec2 of Sec 197 shall apply to the Police Officers charged with the maintenance of public order the same could not be questioned on the ground of non application of mind as it is within the scope and ambit of Sub Sec
3 of Sec 197 of the Code
It was also observed that  Before the protection of sub sec2 of Section 197 of the Code could be had and the proceedings are dropped on that count the learned Magistrate is under an obligation to decide that the alleged acts attributed to the members of the police force are acts done in the discharge of their official duties or at any rate they purport to be or bear the colour or semblance of the acts that could be done in the discharge of their official duties
 We have already said that the alleged acts of tampering the Search Memo while the same was in custody of the Court cannot be deemed to be an act purported to have been done by these two appellants in discharge of their official duties
Therefore the previous sanction of the Lt Governor as provided in Section 1973 Criminal Procedure Code was in our considered opinion not at all necessary for initiating the proceedings against these two appellants who are members of the Delhi Police Force
For the reasons stated hereinbefore the Appeal filed by the Delhi Administration succeeds and is allowed and the Appeal filed by the accused is dismissed
The Judgment and Order of the High Court declaring the impugned notification dated 7th April 1980 issued by the Lt Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law
We are thankful to Sri Anil Kumar Gupta for the assistance he has rendered as Amicus Curiae
MLA Criminal Appeal 84485 dismissed
Criminal Appeal 84585 partly allowed


Summary:
A Complaint was filed by the Special Railway Magistrate against the appellants Balbir Singh and Ram Shankar members of Delhi Police Force alleging that the Search Memos which were signed by the sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search memos were in the custody of the Court and that they were interpolated subsequently by getting the same signed by the accused Ram Shankar
The appellants contended before the Trial Court that the aforesaid complaint was not maintainable since prior sanction as required by section 1973 Cr
PC was not obtained by the complainant to prosecute them
The trial court rejected the contention and the High Court confirmed the same in appeal by the appellants
The High Court however held that the Notification No F107778 HP II dated 7th April 1980 issued by the Lt Governor directing that the provisions of sub s2 of section 197 shall apply to serving police officials of all ranks of Delhi Police Force charged with the maintenance of public order was bad in law as the Lt Governor had no authority to issue the said Notification under sub s3 of section 197 Cr
Allowing Criminal Appeal No 84585 partly and dismissing the other appeal  HELD 1i The Judgment and order of the High Court declaring the impugned notification dated 7th April 1980 issued by the Lt Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law
817 F ii By virtue of the Notification No SO183E dated 20th March 1974 the President empowered the Administrator of Union Territories ie Lt Governor of Delhi to exercise the 813 powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in sections 8 and 477 of the said Act
The Notification dated 7th April 1980 issued by the Lt Governor was made in exercise of powers conferred upon him under sub section 3 of Sec 197 of the Code of Criminal Procedure read with the Government of India Notification dated March 20 1974 mentioned before
Therefore the Notification is not ultra vires the Constitution
815 D E 2
Reading the two notifications together it is crystal clear that to start a proceeding against the member of all ranks of Delhi Police Officials in a Criminal Court previous sanction of the Lt Governor is imperative provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty
815 F In the instant case the previous sanction of the Lt Governor as provided in Section 197 3 Criminal Procedure Code was not at all necessary for initiating the proceedings against the two appellants since the act of tampering of the Search Memos by them cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court
817 E F Matajog Dobey vs HC Bhari   Pukhraj vs State of Rajasthan  Anr   Bhagwan prasad Srivastava vs NPMisra 1971 1 SCR 317 and Darshan Kumar vs Sushil Malhotra  Ors 1980 Crl
LJ 154 relied upon
Bhikhaji Vaghaji vs LK Barot and Ors 1982 Cr
LJ 2014 approved