Crl. Misc. No.M-6215 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-6215 of 2009 Date of Decision: 02.08.2010 Ranbir Singh and others ....Petitioners Versus Parveen Kumar ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. A.P.S. Deol, Sr. Advocate with Mr. Devinder Bir Singh, Advocate for the petitioners. Mr. G.S. Gill, Advocate for the respondent. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is petition under Section 482 Cr.P.C for quashing of the complaint dated 25.01.2006 (P-3), summoning Order dated 11.10.2007 (P-4), as well as, Order dated 21.01.2009 (P-5) passed by the Court of Additional Sessions Judge, Narnaul and all subsequent proceedings pending in the Court of Judicial Magistrate Ist Class, Narnaul. The facts, in short, are that FIR No.86 dated 15.06.2005 under Sections 25 and 54 of Arms Act was registered at Police Station Nangal Chaudhary against Shyam Lal, Mohan Lal (petitioners No.2 and 3, respectively), as well as, Balraj Singh, driver as on the search of the car, in Crl. Misc. No.M-6215 of 2009 2 which, the petitioners were travelling, one rexion bag was found, on which, RR was printed in white colour and on opening the chain of the bag, two country made pistols .315 bore and 4 cartridges of .315 bore recovered. Another attache of green blue colour was found lying in the dicky of the car, in which, two iron boxes containing 41 small spikes of iron and the second box containing 40 small spikes of iron were recovered. One photo of pooja with sindhoor wrapped in an envelope along with one piece of cotton was also found. All these articles along with arms were taken into possession by the police vide separate recovery memo after sealing the same. Thus, a prima facie offence under Sections 25 and 54 of Arms Act was made out against the accused. During investigation of the case, it transpired that in fact, both Shyam Lal and Mohan Lal have been trapped in this case by planting arms in the dicky of the car at the instance of Vinod Kumar Gupta through Parveen Kumar Pandit (present respondent) and his brother-in-law Krishan Lal in order to settle the score with them on account of a dispute they being business partner. The police after thorough investigation found the commission of offence under Section 120-B IPC read with Section 25 of Arms Act against these four persons, namely, Vinod Kumar Gupta, Rajender Sharma, Parveen Kumar and Krishan Lal. The inter-se connection between these four was established through mobile phone record, as well as, land-line telephones, as well as, the statements of other witnesses. The police after thoroughly investigating the matter, presented the report under Section 173 Cr.P.C on 09.06.2006 under Section 120-B IPC read with Section 25 of the Arms Act against these four accused. Krishan Lal, one of the accused challaned in this case, filed an application for anticipatory bail in this Court after it was declined by the Sessions Court vide Criminal Misc. No.53464-M of 2005. This Court was pleased to issue interim directions in his favour on the undertaking that the Crl. Misc. No.M-6215 of 2009 3 petitioner is ready and willing to join investigation. However, Krishan Lal was directed to appear before the Investigating Officer on 01.10.2005 at 10 a.m. vide interim Order dated 26.09.2005. However, when the case was taken up on 29.11.2005, it was reported by the State counsel on the instructions of ASI Rajinder Singh that pursuant to the Order dated 26.09.2005, the petitioner although appeared before the Investigating Officer but he was accompanied by battery of lawyer and refused to cooperate with the Investigating Officer. This Court while considering this aspect observed that prima facie, it appears that Krishan Lal had misused the concession of pre-arrest bail granted to him vide Order dated 26.09.2005. However, one opportunity was granted to him to join investigation with the directions that he will appear before the Investigating Officer on 08.12.2005 at 10.00 a.m. on that date. It was further directed that the Investigating Officer shall not permit any advocate and/or any one else to assist the petitioner at the time of his investigation/interrogation and that the petitioner would be obliged to answer in writing the questionnaire given to him by the Investigating Officer. Thereafter, the present complaint was filed by the said Krishan Lal/respondent against the petitioner, as well as, Rajender Singh ASI (now dead) P.P. Nizampur, Police Station Nangal Chaudhary and one Constable Mohan Singh, as well as, petitioner No.2-Shyam Lal and petitioner No.3- Mohan Lal under Sections 323, 341, 506, 148, 149 and 120-B IPC in the Court of Judicial Magistrate Ist Class, Narnaul alleging that he was assaulted and beaten by the police during investigation. The Judicial Magistrate Ist Class, Narnaul summoned the petitioners for offences under Sections 323, 506 and 34 IPC but discharged them for offences under Sections 341, 120-B, 148 and 149 IPC, while Mohan Singh, constable was not summoned to face trial since there being no specific allegations against him in the complaint. Crl. Misc. No.M-6215 of 2009 4 Aggrieved against the summoning order, the petitioners preferred a revision petition before the Court of Additional Sessions Judge, Narnaul, which was dismissed vide Order dated 21.01.2009 on the ground that the Revisional Court has a limited jurisdiction. While seeking the quashing of the complaint, as well as, the summoning Order and the Order of Revisional Court, learned counsel for the petitioners submitted that this allegation seems to be inherently improbable and absurd to which no prudent person can ever believe since the police would never take risk of causing any harm to an accused while investigating him on the direction of this Court. Secondly, the allegations with regard to beating etc., are not established from the medico legally report since the M.L.R of Krishan Lal is only a bare formality. It does not describe any injury. Thirdly, even if, the allegation is believed with regard to the interrogation of Krishan Lal by the police, they would be protected against any prosecution being government official, since this part of their act was done in their official duty even if they acted in excess of their duty. Reliance was placed on the judgments of Hon'ble the Apex Court, rendered in the case titled as Anjani Kumar vs. State of Bihar and another reported as 2008(2) Supreme Court Cases (Crl.) 582, Rakesh Kumar Mishra vs. State of Bihar and others reported as 2006(1) RCR (Criminal) 456, as well as, the judgment of this Court, rendered in the case titled as Dr. Sumitra Devi vs. Manjit Singh Ahlawat and others reported as 2007(4) RCR(Criminal) 1. Learned counsel for the respondent, on the other hand, vehemently opposed the prayer and raised the objection that the present petition is not maintainable on the ground that the petitioners had already filed revision petition challenging the summoning Order dated 11.10.2007, wherein, vide Order dated 21.01.2009, it was dismissed. The present Crl. Misc. No.M-6215 of 2009 5 petition under the garb of Section 482 Cr.P.C in substance amounts to a second revision which is not maintainable in the eyes of law. Secondly, the acts meted out by the police official, do not by any stretch of imagination, fall within the ambit of official duty and, therefore, no sanction was required. Reliance was placed on the various judgments of Hon'ble the Apex Court to substantiate his argument rendered in the cases titled as K. Ashoka vs. N.L. Chandrashekar and others reported as 2009(5) Supreme Court Cases 199 and U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi and another reported as 2009(2) Supreme Court Cases 147 to state that the power under Section 482 of the Criminal Procedure Code should not be used to stifle a legitimate prosecution. Learned counsel for the parties have been heard at length. The first question at hand is whether sanction is required in the facts of this case to prosecute the police officials. It is admitted on facts that the complainant had appeared before the Investigating Officer in pursuance to the directions of this Court dated 29.11.2005, wherein, it was observed as under :- “ Learned State counsel on instructions from ASI Rajinder Singh, informs that though pursuant to the order dated 26.09.2005 the petitioner appeared before the I.O. to join the investigation, however, he was accompanied by a battery of lawyers and refused to cooperate with the I.O. Prima facie, it appears that the petitioner has misused the concession of pre-arrest bail granted to him vide Order dated 26.09.2005. However, before the petitioner is deprived of the aforesaid concession, one more opportunity is granted to him to join investigation with the following directions : (i) Petitioner shall appear before the I.O on 08.12.2005 at 10 a.m. and make himself available for investigation. The I.O shall be at liberty to keep the petitioner for the purpose of investigation and Crl. Misc. No.M-6215 of 2009 6 interrogation upto 8 p.m on that day. (ii)The I.O shall not permit any Advocate and/or anyone else to assist the petitioner at the time of his investigation/interrogation. (iii)If the Investigating Officer finds that the petitioner is not cooperating with the investigation, he shall give a questionnaire to him, which the petitioner shall be obliged to answer in writing.” The complainant, Krishan Lal, Parveen Kumar and others appeared before the Investigating Officer on 08.12.2005. Thereafter, the respondent filed complaint against accused No.1, 2, 3, 4 and 5 i.e. Rajender Singh, Ranbir Singh, Mohan Singh, Shyam Lal and Mohan Lal on 25.01.2006. The relevant allegation in the complaint reads as under :- “ 4. That the accused Rajender Singh ASI started saying that would we till him or not. By saying this, the accused Rajinder Singh ASI, Ranbir Singh constable, Mohan Lal constable, Sham Lal and Mohan Lal started beating the complainant and Krishan Lal pushed the complainant from his head. Due to this, the complainant struck against the wall and got swelling on the right side of his head. They make Krishan Lal, jija of the complainant naked and asked them to do unnatural sex with each other. The complainant and Krishan Lal kept mum and thereafter, the accused dragged them from the hair and gave beatings. They were threatened that they will be killed in an encounter and if they went to Delhi then they will get their encounter through DIG Deepak Mishra. The accused gave beatings to the complainant and Krishan Lal with dandas fist and kick blows and also kept them in illegal custody.” The observations of the Medical Officer in the M.L.R reads as under :- 1. C/o pain headache giddiness with no external mark of injury. 2. C/o pain abdomen with no external mark of injury. Crl. Misc. No.M-6215 of 2009 7 Thus, it cannot be denied that the said allegation is made against petitioner No.1 while he was performing his duty. Therefore, it would be important to examine the nature of power to be exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servants. Section 197(1) and (2) of the Code read 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- (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; (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.” Hon'ble the Supreme Court, in the case of Anjani Kumar (supra), while holding that the complaint filed against government official is a counterblast to action taken by him in his official capacity and, therefore, sanction was required, held in para 8 as under :- “8. The protection given under Section 197 is to protect responsible public servants against the Crl. Misc. No.M-6215 of 2009 8 institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of 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 Crl. Misc. No.M-6215 of 2009 9 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.” Hon'ble the Supreme Court in the case of Rakesh Kumar Mishra (supra), while explaining the use of excess force while performing official duty, clarified ; “ 11. xxx xxx xxx For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari, (AIR 1956 SC 44) thus : Crl. Misc. No.M-6215 of 2009 10 “ The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty....there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” 12. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.” It is already held as per the above discussion that the allegation arise out of an offence committed while performing official duty. Thus, the same would fall within the ambit of Section 197 of the Code in view of the observation made by the Hon'ble Apex Court in the case of Rakesh Kumar Mishra (supra). Besides, from the perusal of the Order passed by the learned Single Bench of this Court dated 29.11.2005, it is not difficult to assess that the conduct of the complainant themselves was not above board. Their conduct shows that they were capable of using any means to twist the arm while trying hard to suppress the Investigating Agency from performing their official duties. An FIR No.86 dated 15.06.2005 under Sections 25 and 54 of the Arms Act was registered against petitioners No.1 and 2. On investigation, it transpired that Shyam Lal and Mohan Lal, petitioners No.2 and 3 were trapped in the complaint at the instance of Vinod Kumar Gupta through Parveen Kumar Pandit and his brother-in-law Krishan Lal, the present respondents in order to settle the score with them on account of a dispute arising out of a business and that it was the complainant- respondent Parveen Kumar and other accused who had planted arms in Crl. Misc. No.M-6215 of 2009 11 the dicky of the car of their business partners. No wonder, complainant Parveen Kumar, Krishan Lal etc. were annoyed at the outcome of investigation. They tried every method to scuttle the same including the filing of the present complaint which is a counterblast. Thus, Section 197 of the Code affords protection to public servants, who, apart from various hazards in discharge of their duties, can be exposed to mala fide prosecution like in the present case. In the case in hand, the prosecution was launched against the complainant-respondent Krishan Lal for trying to trap his business partners by planting arms in their dicky. When they were called for investigation in pursuance to the FIR, his efforts to stop the investigating agency from doing its duty is evident from the Order dated 29.11.2005 passed by this Court reproduced above. When he had no choice but to join investigation, he found a novel way of filing the present complaint not only against the official investigating him but also Shyam Lal and Mohan Lal. While relying on the judgment of Hon'ble the Supreme Court, Single Bench of Punjab and Haryana High Court, in the case of Dr. Sumitra Devi (supra) concluded as under :- “ 13. xxx xxx xxx I am inclined to hold that allegations of theft and use of criminal force sounds improbable considering the status of the petitioner as well as that of the respondents and these allegations apparently seem to have been made for ensuring prosecution of respondents, which may be termed as vexatious. These considerations would arise in the present case making the requirement of sanction to be essential, so that the respondents concededly being public servants are not put to any un-called vexatious prosecution.” The judgment rendered in the case of Dalbir Singh vs. State Crl. Misc. No.M-6215 of 2009 12 of U.P. and Ors. Reported as 2009(5) RCR(Criminal) 846 relied upon by the learned counsel for the respondent pertains to custodial death which amount to a case of torture and exercising of excess power but even in that case, sanction for prosecution was sought and duly granted. There is no doubt with the proposition of law as relied on by learned counsel for the respondent in the case of Choudhury Parveen Sultana vs. State of West Bengal and another reported as 2009(1) RCR (Criminal) 765. However, while applying the test as laid down in the cases of Anjani Kumar and Rakesh Kumar Mishra (supra), in the facts of the present case, there is no doubt that the accused was being charged for an act which was definitely committed by petitioner No.1 while discharging his duty and, therefore, the sanction for prosecution under Section 197 of the Code was required. Moreover, Hon'ble the Supreme Court, in the case of Bhagwan Prasad Srivastava v. N.P. Misra reported as 1971(1)SCR 317, observed that whether a particular act is done by a public servant in the discharge of his official duties is substantially one of fact to be determined in the circumstances of each case. Hon'ble the Supreme Court in the case of Gauri Shankar Prasad vs. State of Bihar and another reported as 2000(5) Supreme Court Cases 15 in some similar use of excessive force by a public servant held : “14. Coming to the facts of the case in hand, it is manifest that the appellant was present at the place of occurrence in his official capacity as Sub- Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the Crl. Misc. No.M-6215 of 2009 13 appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C. Therefore, the High Court erred in holding that Section 197 Cr.P.C is not applicable in the case.” Similar view is expressed by Hon'ble the Apex Court in the case of P.K. Choudhury (supra) and held in 12 as under :- “12. Far more important however, is the question of non-grant of sanction. The appellant admittedly is a public servant. He is said to have misused his position as a public servant. Section 197 of the Code of Criminal Procedure lays down requirements for obtaining an order of sanction from the competent authority, if in committing the offence, a public servant acted or purported to act in discharge