IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.MC.No. 2847 of 2006() ------------------------- CC.844/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER(S): --------------- P.PRAKASH I.P.S., ASSISTANT SUPERINTENDENT OF POLICE, C/O.COMMISSIONER OF POLICE, KOCHI CITY. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VINU ABRAHAM, S/O.ABRAHAM, RESIDING AT 38/1857A, E.C.ROAD, VYTTILA, COCHIN-19. ADV. SRI.VARGHESE PREM FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl.M.C.No. 2847 of 2006 ----------------------------------------------------- Dated this the 18th day of March, 2011. ORDER If a police officer, in the course of investigation, allegedly inflicts custodial violence on a person, who is called to police station for questioning, is he entitled to protection under Section 197 of the Code of Criminal Procedure ('the Code', for short)? Is it enough, if a police officer establishes that offences were allegedly committed by him, “in the course of investigation”, to get protection under Section 197 of the Code? What is meant by the expression, “while acting or purporting to act in the discharge of his official duty”, referred to in section 197 of the Code? Is there any difference between the expressions “in the course of discharge of” and “in the discharge of” official duty? Mainly, these few questions arise for consideration in this case. 2. Facts briefly: A private complaint was filed by second respondent(complainant) before Additional Chief Judicial Magistrate court inter alia, stating that he is [Crl.M.C.2847/06] 2 an Engineer working in a reputed automobile body construction company and on 11.5.2006, he was called to the police station, stating that petitioner wanted some enquiry to be made about some case which was under investigation. Petitioner is an IPS officer. He was working as Station House Officer in a police station, as part of the training. 3. The complainant appeared before petitioner on 11.5.2006 by about 11 a.m., when he was told by the latter that during investigation into a chain-snatching case (Crime No.191/2006) against one Biju, it was revealed that complainant's motor cycle was used for committing the offence. The complainant was also asked to furnish the address and details of the said Biju. The complainant-respondent did not know any such person and he expressed his helplessness to furnish details. 4. Petitioner grew furious and he assaulted complainant. He also took help of other police constables (who are the co-accused) to assault him. Thereafter, complainant was denuded, except for an [Crl.M.C.2847/06] 3 underwear and he was detained in the lock-up. During the odd ours of that night, co-accused entered lock-up and manhandled complainant again, and after about 6 hours of continuous torture, complainant was made to sign three blank white papers given by accused. 5. On the next day morning ie., on 12. 5. 2006, complainant was released by petitioner, with a direction to gather information and details regarding Biju and report the details to him. His motor cycle was detained at the police station, as a security to ensure compliance of the direction. The complainant straight away went to Government Hospital and got him examined there. He also got a discharge on request and on 14.05.2006, he filed a private complaint (CMP 2257/2006) before the Magistrate Court against petitioner and co-accused others, alleging various offences, in respect of the incidents which took place on 11.5.2006 and 12.5.2006. 6. While the matter was pending in court, on 15.5.2006, complainant was again called to police [Crl.M.C.2847/06] 4 station, stating that it was to release his vehicle. When he went to the police station, petitioner along with some police constables again attacked him brutally with iron rods, lathis, stick etc., and threatened him that he would be implicated in many offences, if he did not withdraw the private complaint filed against petitioner. The complainant was also wrongfully detained in the police lock-up along with Biju, who was arraigned as 1st accused in the theft case (Crime No.191/2006). He was manhandled for two days in police lock-up and he was not even given any food or water on the 15th. 7. The complaint which was filed by complainant on the 14th had been posted for recording sworn statement to 18.05. 2006.On knowing that complainant was under illegal detention, complainant's counsel sought for issuance of search warrant and search warrant was issued production of complainant in court. The court staff went to the police station with search warrant and police produced complainant before learned Magistrate, on 16.5.2006 at about 6 p.m. [Crl.M.C.2847/06] 5 8. At the time of his production, he was falsely implicated in the theft case, as a co-accused, alleging “criminal conspiracy”. He was remanded by the Magistrate. But, learned Magistrate directed medical examination of complainant before General Hospital and when he was produced before the doctor, police officials who were accompanying complainant told the doctor that he was a habitual offender. Hence, he was released without any examination, after giving an injection. Complainant was granted bail after two days judicial custody. 9. When complainant appeared in CMP 2257/2006 on 18.05.2006, for recording sworn statement, he also filed a complaint relating to what transpired at the police station on 15.5.2006 and 16.05.2006. The complaint was numbered as CMP No.2289/2006. CWs.1 to 5 were examined on oath and Exts.C1 to C6 were marked in the complaint. When complainant and witnesses were examined, they spoke about the incidents which took place at police station on both occasions viz., 11.5.2006, 12.5.2006, 15.5.2006 and [Crl.M.C.2847/06] 6 16.5.2006. The case was taken on file as C.C.No.844/2006 under Sections 342, 324, 348 and 34 IPC against accused 1 to 4. This petition is filed under Section 482 of the Code for quashing the proceedings initiated against petitioner. Contentions raised: 10. Heard both sides. Perused available records. Sri.S. Sreekumar, learned counsel for petitioner argued that from the allegations made in the complaint themselves, it would be clear that the offences were committed by petitioner, in the course of investigation into a theft case and hence, petitioner is entitled to protection under Section 197 of the Code. Admittedly, petitioner is a public servant but, no sanction was obtained for launching criminal prosecution against him. Hence, proceedings initiated against petitioner has to be quashed, for want of sanction, it is argued. 11. Reliance was placed upon the decision of the Supreme Court in Sankaran Moitra v. Sadhna Das & anr. (2006) 2 SCC Crl 358, and various other decisions [Crl.M.C.2847/06] 7 referred to therein to argue that even if a police officer allegedly commits murder, he would be well protected, under section 197 of the Code, if such offence is committed in the course of discharge of his duty. Hence, petitioner who is alleged to have committed the offences in the course of investigation cannot be proceeded against, for want of sanction, it is argued. 12. Sri. Varghese Prem, learned counsel for respondent/complainant, strongly contented that a public servant will not get any protection under Section 197 of the Code for all the acts committed by him. It is only if alleged the act done by the public servant is reasonably connected to the discharge of his official duty, protection under Section 197 of the Code will be available, as held in various decisions of the supreme Court, it is argued (vide Centre for Public Interest Litigation & Anr. v. Union of India & Anr. (2005) 8 SCC 202), K.Kalimuthu v. State by DSP (2005) 4 SCC 512), Choudhury Parveen Sultana v. State of West Bengal (2009) 3 SCC 398), and Sankara Moitra v. Sadhana Das & Anr. ( 2006) 2 SCC (Cri.) 358). In this case, offences [Crl.M.C.2847/06] 8 committed by petitioner have no connection with the official acts and hence, petitioner cannot be extended any benefit of Section 197 of the Code, it is further argued. 13. It was also submitted that custodial torture is not a part of a police officer's duty and it is condemned by the supreme Court time and again. In cases in which police officers are found guilty of custodial torture, even compensation was ordered by the Supreme Court,as seen from the decisions of the Supreme Court, it is pointed out (vide Sube Singh v. State of Hariyana & Ors. (2006) 3 SCC 178). 14. Learned counsel for respondent/complainant has also drawn by attention to the decision of the Supreme Court in Centre for Public Interest Litigation & anr. v. Union of India & anr. [(2005)8 SCC 202)] and argued that as per the said test laid down therein, only 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, he would get the protection. This is a [Crl.M.C.2847/06] 9 sure and safe test, it is argued. 15. According to respondent's counsel, if the above test is applied to the facts of this case, petitioner will not be entitled for protection under Section 197 of the Code and the proceedings initiated against petitioner cannot be quashed. It was further argued that petitioner can raise his contention relating to sanction at any stage of trial and hence, it is unnecessary to quash complaint. Decisions were also cited in support of these contentions (vide Bakshish Singh Brar v. Gurmej Kavur & Anr. [(1987) 4 SCC 663)], State of Maharashtra v. Devahari Deva Singh Pawar & Ors. (2008) 2 SCC 540), Bholu Ram v. State of Punjab & Anr. (2008) 9 SCC 140) and Padmarajan C.V. v. Govt. of Kerala & Ors. (2009 (1) KHC 65). 16. On hearing both sides and on going through available records in this case, I find that the crucial issue arising in this case is on the application and scope of section 197(1) of the Code. Section 197 of the Code reads as follows (only the portion which is necessary to dispose of this case is extracted): [Crl.M.C.2847/06] 10 “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) xxxxxx 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) xxxxxxxxxxxxxxx (3) xxxxxx [(3A) xxxxxxxxxxx [(3B) xxxxxxxxx (4)xxxxxxxxx” Basic requirements of Section 197(1) : 17. A reading of Section 197(1) of the Code shows that there is a bar for the court to take cognizance of an offence allegedly committed by a public servant, under certain circumstances. The bar under Section 197(1) of the Code will apply, only if court is satisfied of the following facts: i) that the accused is or was a public servant, at the time of [Crl.M.C.2847/06] 11 alleged commission of offence; ii) that he can be removed from his office only by or with the sanction of the Government concerned; and iii) that such offence was allegedly committed, while acting or purporting to act in the discharge of his official duty. 18. Admittedly, petitioner is and was a public servant, at the time of alleged commission of the offences. He can be removed from his office, only with sanction of the Government. The only dispute is on the question whether offences involved were allegedly committed by petitioner, “while acting or purporting to act in the discharge of his official duty” or not. What is meant by the expression, “while acting or purporting to act in discharge of his official duty”? 19. The challenging task in this case is in answering the above question. Though it may appear to be a simple one on a first blush, a survey through the various decisions of the High Courts and Supreme Court reveals that courts have differed on their opinion, on this crucial point, depending on the facts of each case. [Crl.M.C.2847/06] 12 20. A browse through the various decisions of the Supreme Courts and High courts reveal that very often bar and bench were using the expression, 'in the course of discharge of official duty', 'in the course of investigation' etc., while dealing with scope of application of Section 197(1) of the Code. In my view, this usage seems to have led to a lot of confusion in identifying the actual issue involved in Section 197 of the Code. 21. In this case also, the contention raised by petitioner is that alleged offences were committed “in the course of investigation” into theft case and hence, petitioner is protected under section 197 of the code. Going by the language in Section 197(1), it will be evident that what is to be looked into, for resolving the issue under the said provision is not whether offence was committed in the course of investigation or “in the course of” discharge of his official duty. 22. The relevant expression used in Section 197 (1) of the Code is, “in the discharge of” and it is not, “in the course of discharge of” official duty. There is a [Crl.M.C.2847/06] 13 lot of difference between the two expressions. As per Oxford Advanced Learner's Dictionary, New 7th Edition, “In the course of”, means “during”. Therefore, the expression “in the course of” when used with the term, discharge of duty, would mean, 'during discharge of duty' or `while discharging duty' or `the time at which, the official duty is discharged'. The expression, “in the course of discharge of” official duty signifies the period or time during which, duty is or was being performed. 23. But, the expression, “in the discharge of” in Section 197(1) of the Code refers to totally different thing. As per Oxford Advanced Learner's Dictionary- New 7th Edition, the expression, “discharge”, in respect of duty, means, “to do everything that is necessary to perform and complete a particular duty”. Therefore, the expression “in the discharge of his official duty” in Section 197 of the Code has reference to the actual act or acts which are necessary to perform and complete a particular official duty. The emphasis is not on the period or time during which, the [Crl.M.C.2847/06] 14 duty is discharged, but it is on the actual act or acts, which are to be done by public servant to perform and complete a particular official duty. 24. Therefore, if a police officer is conducting investigation into an offence and he is alleged to have committed an offence, strictly speaking, the question to be decided under Section 197(1) of the Code is not whether offence was committed “in the course of investigation” or “during investigation”. Going by the plain language of Section 197(1) of the Code, what is to be looked into is whether in doing any of the acts which are necessary to perform and complete a particular duty, the offence was committed. 25. Investigation into a crime consists of various duties such as questioning witnesses, inspecting place of occurrence, effecting body search, search of building or vehicle, seizing material objects, arresting accused, preparing various documents etc. Each such duty will have to be executed in the course of investigation, depending on the facts of each case. To execute and complete each such particular duty, [Crl.M.C.2847/06] 15 different acts have to be performed by a police officer. 26. The acts which are necessary to be performed “in the discharge of” a particular duty may not be the same or similar to those which are to be performed “in discharge of” another particular duty. For example, to arrest a person, a police officer may have to perform the various acts referred to in Section 46 of the Code, whereas, to examine a person during investigation, he may have to perform various other acts, referred to in Section 161 of the Code. While “arrest” involves physical touch etc. of the body of the arrestee, “examination” under Section 161 of the Code does not involve body of the person who is being examined. 27. So, to decide the question whether the offences were committed by a public servant while acting in the discharge of his official duty, the court has to identify first, what was the particular duty which was being discharged by the public servant, at the time when he is alleged to have committed the offence. Thereafter, it must ascertain, what act or acts are involved in performing such particular duty. Then, it [Crl.M.C.2847/06] 16 must be found out whether the offending acts were committed in doing any of the acts which are necessary to perform and complete the particular duty. 28. Thus, what is relevant in Section 197(1) of the Code is what the officer did “in discharge of” his official duty, and is not what the officer did “in the course of” discharge of his duty or “in the course of investigation”. An officer may do many acts in the course of investigation, but he will not get protection for all such acts committed. It is only such act or acts which have reasonable connection or relationship to the acts which are necessary to perform and complete a particular duty will be protected under Section 197(1). 29. If the offending acts committed by a public servant have no reasonable connection or nexus with the acts which are necessary to be performed by a public servant for execution of a particular duty, such acts cannot be treated as acts committed by him, while acting “in the discharge of” his official duty, as [Crl.M.C.2847/06] 17 referred to in Section 197(1) of the Code. Section 197 (1) of the Code protects a police officer/public servant, only if offences were allegedly committed while acting or purporting to act “in the discharge of” his official duty. 30. A general or vague statement made by a public servant that the offences were allegedly committed “in the course of investigation” or “in the course of discharge of” his official duty, will be too far- fetched a defence and it is not sufficient to extend any benefit under Section 197 of the Code to a public servant. A public servant will be entitled for the protection under Section 197(1) of the Code only if the materials placed before court satisfy the court that the alleged offences were committed while acting or purporting to act “in the discharge of” his official duty. The three relevant questions: 31. From the above discussion and on a close study on the scope of the relevant expression used in Section 197 of the Code in the light of various decisions on the relevant issue, I am of view that the court can [Crl.M.C.2847/06] 18 easily solve the crucial issue under Section 197(1) of the Code, if three questions are answered, on the basis of the materials available in court. Those relevant questions are as follows :- i) What was the particular official duty which was being discharged or purported to be discharged by the public servant, at the time of alleged commission of offence? ii) What act or acts are to be done by the public servant to perform and complete such particular official duty? iii) Is there any reasonable connection or relationship between the offending act/acts allegedly committed by the public servant and, the act or acts which is/are to be done to perform and complete such particular duty? 32. If the above three questions are answered, and the third question is answered in the affirmative, it can be concluded that alleged offence was committed by public servant, while acting or purporting to act “in the discharge of” his official duty. If the answer to the third question is in the negative, protection under Section 197(1) of the Code [Crl.M.C.2847/06] 19 shall not be extended to a public servant. No sanction will also be necessary under Section 197(1) of the Code to prosecute such a public servant. 33. In my view, the above test may be an easy and practical test under Section 197(1) of the Code, for resolving the issue under discussion, which may arise in almost all cases involving Section 197. (However, I make it clear that the above test applies only to the “acts” involved in official duty and I have not dealt with the “omissions”). Now, I shall proceed to apply the above test to the facts of this case and answer the above three questions. What was the particular official duty which was being discharged or purported to be discharged by the public servant, at the time of alleged commission of offence? 34. The respondent was called to the police station stating that petitioner wanted to make some [Crl.M.C.2847/06] 20 enquiry with him in connection with investigation into a theft case. A reading of Section 160 of the Code shows that any police officer, making an investigation under Chapter XII may, by order in writing, require the attendance before himself of any person who, appears to be acquainted with the facts and circumstances of the case. But, nobody has a case that any notice was issued to respondent, as required under Section 160 of the Code. 35. However, for arguments sake, it may be assumed that complainant was called to police station on the 11th while purporting to act under Section 160 of the Code. Still, it cannot be said that on the 15th or 16th also petitioner was purporting to act under Section 160 of the Code. Respondent was called to police station on the 15th stating that it was to release his motor cycle which was detained in police station. Respondent was detained in police station on 15th and 16th also. Petitioner has no case that he was discharging any particular duty relating to respondent on 15th and 16th. [Crl.M.C.2847/06] 21 36. Section 161 of the Code lays down what a police officer can do if a person responds to the notice under Section 160 of the Code and appears in police station. As per Section 161, a police officer making an investigation under Chapter XII, may examine “orally” any person supposed to be acquainted with the facts and circumstances of the case. On examination of such person, the police officer may also reduce into writing, any statement made to him in the course of an examination under this section. If he does so, he shall also make a separate and true record of the statement of each such person whose statement he records. 37. Therefore, the particular duty which was purportedly being discharged by petitioner, at the relevant time of commission of the various offences alleged against petitioner at the police station on the 11th and on 12th may at best be said to be the one falling under Section 161 of the code. Though on 15th also, complainant was called to police station and he was detained there on 16th, it was for releasing his [Crl.M.C.2847/06] 22 motor cycle to him that he was summoned. Petitioner had no particular duty to be discharged on that day, except to release the vehicle to complainant. 38. Petitioner's contentions are based only on the allegations made in the complaint and according to learned counsel for petitioner, petitioner is entitled to get protection under Section 197 of the Code, going by the allegations in the complaint themselves. In such circumstances, on the basis of allegations made in the complaint, it may be said that on 11th and 12th petitioner was purporting to act under Section 161 of the Code. The particular duty which was purportedly being discharged by petitioner on 11th and 12th at the time of alleged commission of offence at the police station may