C.R.R. No.1545 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 01.03.2011 1) C.R.R. No.1544 of 2007 (O&M) Jagdish Singh ……Petitioner Versus R.R. Jowell and another …Respondents 2) C.R.R. No.1545 of 2007 (O&M) Jagdish Singh ……Petitioner Versus R.N. Sharma and another ……Respondents 3) C.R.R. No.1546 of 2007 (O&M) Jagdish Singh ……Petitioner Versus Pop Singh and others …Respondents C.R.R. No.1545 of 2007 (O&M) -2- CORAM: HON'BLE MR. JUSTICE AJAY TEWARI -.- Present: Mr. J.S. Sidhu, Advocate for the petitioner. Mr. N.K. Sanghi, Advocate for respondent No.1 (in CRR No.1544/2007). Mr. C.L. Sharma, Advocate for respondent No.1 (in CRR No.1545/2007). Mr. R.D. Yadav, Advocate for respondent No.1 (in CRR No.1546/2007). Ms. Shalini Attri, D.A.G., Haryana. *** 1. Whether Reporters of local papers 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? AJAY TEWARI, J. (Oral) This order shall dispose of C.R.R. Nos.1544, 1545 and 1546 of 2007 as common questions of law and facts are involved in these cases. For the sake of convenience the facts are being extracted from C.R.R. No.1545 of 2007. C.R.R. No.1545 of 2007 (O&M) -3- These petitions have been filed challenging the judgment and order dated 15.02.2007 passed by the learned Additional Sessions Judge, Sirsa, whereby the revision petition filed by the respondents against the summoning order dated 22.01.2002 passed by the learned Judicial Magistrate, Ist Class, Sirsa was allowed. The allegations are that the petitioner and other members of the political party to which he belongs were holding a peaceful dharna on 23.06.1995. At that time the respondents who were police officers and executive officers of the Government while preventing the petitioner and his political party from taking out the dharna indulged in lathi charge and arson. From the record it transpires that FIRs were lodged against the petitioner and other members of his political party on 01.07.1995. One Rameshwar Dass who was also a member of the political party to which the petitioner belong filed private complaint against the respondents and some other persons but this complaint was dismissed in default in the year 2000. Thereafter the State cases against the petitioner and other member of the political party to which the petitioner belong were withdrawn. After the withdrawal (within a period of three months) the aforesaid Rameshwar Dass got the earlier complaint revived. On 22.01.2002, the learned trial Court summoned the respondents. The respondents challenged the said order and by the impugned order dated C.R.R. No.1545 of 2007 (O&M) -4- 15.02.2007 the learned Revisional Court accepted the revision and set aside the summoning order primarily on the ground that the respondents cannot be prosecuted without prior sanction by the petitioner under Section 197 Cr.P.C. Learned counsel for the petitioner has relied upon the judgment in the matter of Center for Public Interest Litigation and another v. Union of India and another reported in AIR 2005 Supreme Court 4413 wherein the Hon’ble Supreme Court in paragraph no.9 has held as follows:- “9. 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 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 C.R.R. No.1545 of 2007 (O&M) -5- 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 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 C.R.R. No.1545 of 2007 (O&M) -6- 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.” Learned counsel for the petitioner has further placed reliance upon the judgment in the matter of Choudhury Parveen Sultana v. State of West Bengal and another reported in (2009) 3 Supreme Court Cases 398 wherein the Hon’ble Supreme Court in paragraph no.18 has held as follows:- “18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Prasad Srivastava’s case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course C.R.R. No.1545 of 2007 (O&M) -7- be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava’s case (supra), the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.” Learned counsel for the petitioner has further placed reliance upon the judgment in the matter of Raj Kishor Roy v. Kamleshwar Pandey and another reported in (2002) 6 Supreme C.R.R. No.1545 of 2007 (O&M) -8- Court Cases 543 wherein the Hon’ble Supreme Court in paragraph no.11 has held as follows:- “11. In this case, as indicated above, the complaint was that the 1st Respondent had falsely implicated the Appellant and his brother in order to teach them a lesson for not paying anything to him. The complaint was that the 1st Respondent had brought illegal weapon and cartridges and falsely shown them to have been recovered from the Appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Section 197 Cr.P.C. The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in C.R.R. No.1545 of 2007 (O&M) -9- the main judgment which may be delivered upon conclusion of trial.” First case relates to a challenge made to the appointment of the private respondent as Chief Secretary. The second case relates to a factual situation where an investigating officer and a co- accused used to come to the house of the husband of the petitioner to pressurize him to withdraw his complaint. In the third case the officer was alleged to have lodged false cases against the petitioner and also falsely implicated him by showing recovery of a country made pistol. Even in all these cases the Hon’ble Supreme Court while dilating on the various facets of Section 197 Cr.P.C. have pointed out that each case has to be decided on its own fact. In my considered opinion, the present case is covered by another decision in the matter of Rakesh Kumar Mishra v. State of Bihar and others reported in 2006(1) RCR (Criminal) 457. In that case the allegation against the police officer was that they had entered the house of the petitioner without search warrant just to harass and humiliate the petitioner. The Hon’ble Supreme Court in paragraph Nos.10, 11 and 12 has held as follows:- “10. Such being the nature of the provision the question is how should the expression, ‘any offence alleged to have been committed by him while acting or purporting to act in the C.R.R. No.1545 of 2007 (O&M) -10- discharge of his official duty’, be understood? What does it mean? ‘Official’ according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar, [1979] 4 SCC 177, it was held : "The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 C.R.R. No.1545 of 2007 (O&M) -11- (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision." Use of the expression, ‘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 have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation C.R.R. No.1545 of 2007 (O&M) -12- has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. 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, C.R.R. No.1545 of 2007 (O&M) -13- AIR (1956) SC 44 thus:- "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 official to which applicability of Section 197 of the Code cannot be disputed.” Learned counsel for the respondents has placed reliance upon the judgments in the matter of S.K. Zutshi and another v. Bimal Debnath and another, 2004 AIR (SC) 4174; K. Kalimuthu v. State of D.S.P., 2005(4) SCC 512; Rizwan Ahmed Javed Shaikh v. Jammal Patel, 2001(2) R.C.R. (Criminal) 681; Sukhdev Singh and others v. State of Haryana and another, 2006 (3) RCR C.R.R. No.1545 of 2007 (O&M) -14- (Criminal) 633 P&H; P.K. Roshan v. State of Gujrat, 2005(4) RCR (Criminal) 944 GHC; Ram Kumar v. State of Haryana, AIR 1987 Supreme Court 735; Mrs. Kiran Bedi v. N.C.T. of Delhi, 2001 (2) RCR (Criminal) 614 DHC and D.N. Srivasta v. Parthajoy Das, 1983(1) RCR (Criminal) 169 DHC. Coming to the fact situation in the present case it is not disputed that the petitioner and the political party to which he belongs were involved in violation of the prohibitory orders under Section 144. In the circumstances, to stop them was the bounden duty of the respondents. The issue is whether the alleged acts of violence and arson attributed to the private respondents would attract the special provision of Section 197 Cr.P.C. or not. Apart from everything else, this Court also cannot overlook the fact that the alleged occurrence took place as far back as 15 years and that the respondents have been living under the shadow of the prosecution for the past two decades. In view of the conspectus of all the facts and the law stated above, I am not persuaded to hold that the impugned order passed by the learned Additional Sessions Judge, Sirsa suffers from any illegality or arbitrariness. No interference is therefore called for. Accordingly, the petition is dismissed. The petitioner would of course be at liberty to apply for sanction under Section 197 C.R.R. No.1545 of 2007 (O&M) -15- Cr.P.C. ( AJAY TEWARI ) March 01, 2011 JUDGE ashish