CRR No.3222 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRR No.3222 of 2009 Date of Decision: 25.03.2010 Babu Lal & another ....Petitioners Versus State of Haryana & another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Manjeet Singh, Advocate for the petitioners. Mr. Sanjiv Sura, Addl. A.G., Haryana for the respondent-State. Mr. Raj Mohan Singh, Advocate for respondent No.2. ***** 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 a revision petition against the Order dated 16.11.2009 passed by the Additional Sessions Judge, Bhiwani, whereby, the application filed by the petitioners seeking protection under Section 197 Cr.P.C. has been dismissed. A complaint was filed by one Surender Singh son of Hari Singh, brother of the deceased Virender for the alleged commission of offence under Section 302 read with Sections 149 and 120-B IPC and CRR No.3222 of 2009 2 Section 7 of the Prevention of Corruption Act against the present petitioners and others. On the basis of the evidence produced, the petitioner and others were summoned for the commission of offences under Section 302 read with Section 10-B of the Indian Penal Code vide Order dated 24.09.2008. Admittedly, no revision was filed against the summoning Order dated 24.09.2008. The case was committed to Sessions as the offences were triable by the Court of Sessions. Accordingly, they moved an application dated 31.08.2009 for discharge. According to the petitioner, he was the Investigating Officer in FIR No.185 dated 14.05.2007 under Sections 148/149/323/324/325/506/302 IPC, registered at Police Station Sadar Bhiwani, in which Virender Singh, since deceased, brother of the complainant was one of the accused for the murder of Narender son of Rajbir and causing injuries to Jitender, Ajit and Ravi. It was submitted that the petitioner-Vijay Pal Singh, had taken the warrant of arrest being the Investigating Officer of that case and the story put up in the application by the petitioners was that the petitioner Babu Lal was incharge of Police Station Sadar, Bhiwani and after getting report that Virender, since deceased, was present at his house and for the compliance of warrant, he went there to arrest him but the deceased himself consumed poisonous substance to avoid his arrest. Babu Lal-petitioner took him to hospital and tried to save his life but after due efforts, he could not survive and deceased tried to commit suicide for which FIR No.197 dated 20.05.2007 under Section 309 IPC was registered in Police Station Sadar, Bhiwani against the deceased, so, Babu Lal was also discharging the official duties. It was further stated by learned counsel for the petitioners that both the petitioners were discharging their official duties and as per provisions of Section 197 Cr.P.C., necessary sanction for prosecution is required, which is not obtained by the complainant in this case and without the sanction, CRR No.3222 of 2009 3 the petitioner cannot be prosecuted and this Court also cannot take cognizance. However, the Additional Sessions Judge, Bhiwani vide Order dated 16.11.2009, dismissed the application by recording in para No.10 as under :- “ I have duly considered the rival contentions of learned P.P. for the State as well as learned defence counsel and of the considered opinion that there is no merit in the arguments of learned defence counsel. Surender complainant when stepped into the witness box has reiterated the version of the complaint and categorically and disposed that on 24.05.2007 Babu Lal SHO and Vijay Pal SI along with 5-6 other police officials and Satpal @ Sanu Sarpanch Gram Panchayt Tigrana, Madhu alias Paramjeet, Pritam, Mahender, Pappu alias Jatinder, Rajbir, Vijender, Arun, Amarpal and Mukesh forcibly entered their house at 10.30/11.00 p.m. and apprehended Virender and dragged him while giving beatings. They put him in the gypsy and took him to CIA Staff, Bhiwani. They (complainant) found him in CIA Staff Bhiwani. Thereafter, he went to his uncle who is residing at Bawari Gate, Bhiwani and then his uncle and aunt accompanied him to CIA Staff, Bhiwani. When they came there they were informed that Virender had been shifted to General Hospital, Bhiwani. When they reached to G.H. Bhiwani, they found that Virender was lying unconscious in emergency ward and that his brother died at 2.00 a.m. His statement further finds corroboration from the statement of CW.8 Smt. Bala Devi (widow of deceased Virender). She stated in her statement that her husband has been killed by the police and above said accused persons after hatching a criminal conspiracy. Statements of CWs Surender and CW8 Smt. Bala Devi also further find corroboration from the statements of CWs Mahender, Jai Singh, Sonu and Satish. The case of CRR No.3222 of 2009 4 the complainant also lends support from the medical evidence of CW6 Dr. Amrita Bhardwaj, who conducted the post mortem examination on the dead body. She has specifically stated that the case of death in this case was due to aluminum phosphate poisoning. She also proved copy of her report Ex.CW6/A, copy of chemical examiner report Ex.CW6/B and copy of MLR Ex.CW6/C.” The present revision has, therefore, been filed by the petitioners by raising the following arguments :- (a) That since the petitioners were summoned for an alleged act, which was part of their official duty, therefore, the petitioners moved an application for discharge by seeking protection under Section 197 Cr.P.C as the necessary sanction for prosecution of the petitioners was not obtained by the respondent No.2-complainant. (b) The trial Court has not exercised the jurisdiction vested in it so much so the trial Court has not dealt with Section 197 Cr.P.C for which the application was filed by the petitioners. It is evident from opening para of the impugned order that the order shall dispose of an application under Section 197, as well as, the controversy with regard to framing of charges. While adjudicating upon the matter, the trial Court has simply ignored the issue of 197 Cr.P.C so as to decide as to whether the petitioners are entitled to protection provided under Section 197 Cr.P.C. (c) There was no injury on the person of deceased Virender and he himself consumed some poisonous substance to avoid his arrest. (d) The Tehsildar-cum-Executive Magistrate, CRR No.3222 of 2009 5 Bhiwani submitted detailed enquiry to that effect. There was material improvement by the complainant in his statement in the present case from his earlier version. (e) Learned counsel for the petitioners also placed reliance on the judgments of Hon’ble the Apex Court rendered in the cases of S.K. Zutshi vs. Bimal Debnath 2004 A.I.R. (SC) 4174, K. Kalimuthu vs. State by D.S.P. 2005(4) S.C.C. 512 and Sankaran Moitra vs. Sadhna Das 2006(2) R.C.R. (Criminal) 389. Learned counsel for the respondents, however, opposed the same on the ground that it was evident from the complaint and the evidence produced, as well as, the summoning order that the petitioners were guilty of the offence under Sections 302, 149, 120-B, as well as, Section 7/13/88 of Prevention of Corruption Act. The said offence was not in the course of the duty, hence, there was no requirement of seeking sanction under Section 197 Cr.P.C. and placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases titled as Chaudhury Parveen Sultana vs. State of West Bengal and another 2009(3) Supreme Court Cases 398 and Bholu Ram vs. State of Punjab 2008(4) RCR (Criminal) 187. Learned counsel for the parties have been heard at length. 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 petitioner 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. Before I deal with the material placed on record, it would be appropriate to consider the legal position. Section 197 of the Code provides CRR No.3222 of 2009 6 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; (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. It is the case of the petitioners that whatever they have done have done “while acting or purporting to act in the discharge of their duties” 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 petitioner and other police officers had deliberately, intentionally and willfully caused death of his brother. In the facts of the case of Bholu Ram (supra), the accused was a Drawing and Disbursing Officer. He was charged with offence of embezzlement and cheating under Sections 409, 420, 467, 468 and 471 CRR No.3222 of 2009 7 IPC. Hon’ble the Apex Court while holding that the proceedings could not have been quashed on the ground of want of sanction, held in paras 66, 67, 68 and 69 as under :- “66. In our considered opinion, the Revisional Court was not justified in entering into correctness or otherwise of the evidence at the stage of issuance of summons to respondent No.2. Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law. 67. The learned counsel for respondent No.2, however, submitted that the Revisional Court was right in any case in allowing the revision and in quashing proceedings against the said respondent on the ground of absence of sanction as required by Section 197 of the Code. 68. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while `acting or purporting to act in discharge of official duty. 69. The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing CRR No.3222 of 2009 8 summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground.” Learned counsel for the respondents relied on the judgment of Hon’ble the Supreme Court in S.K. Zutshi, K. Kalimuthu and Sankaran Moitra’s case (supra) to state otherwise. However, the judgment rendered in the case of K. Kalimuthu and S.K. Zutshi (supra) was relied on by the Hon’ble Apex Court in the case of Sankaran Moitra (supra). Subsequently, Hon’ble the Supreme Court, in the case of Choudhury Parveen Sultana (supra) duly considered the judgment in the case of Sankaran Moitra (supra), wherein the short point involved was whether Section 197 of the Code of Criminal Procedure, previous sanction of the State Government was necessary for prosecuting the accused under Sections 384/506 of the Penal Code, 1860. After discussing the law laid down in the cases of Bhagwan Prasad Srivastava vs. N.P. Mishra 1970 (2) SCC 56, Parkash Singh Badal vs. State of Punjab 2007(1) SCC 1, as well as, in the case of Sankaran Moitra (supra), held in no uncertain terms as under :- “18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case 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 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 CRR No.3222 of 2009 9 Prasad Srivastava case 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. 19. xxx xxx xxx xxx 20. While dealing with the aforesaid question, the High Court appears to have been swayed by the submissions made on behalf of respondent No.2 that since in the complaint the acts of extortion and criminal intimidation were alleged to have been committed by Respondent no.2 and the co-accused while conducting investigation in connection with Behrampore Police Station Case No.348 dated 9-11-2005, such offences were purported to have been committed by Respondent no.2 while discharging official duties. 21. We have already indicated that we are unable to accept such a view. In our view, the offences complained of cannot be said to be part of the duties of the investigating officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C each case has to be considered in its own CRR No.3222 of 2009 10 fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as Respondent no.2 is concerned. The complaint prima facie makes out offences alleged to have been committed by Respondent no.2 which were not part of his official duties.” Thus, even as per the judgment cited by learned counsel for the petitioners, Hon’ble the Supreme Court held that committing a criminal offence, which was not a part of the duty of the officer concerned, could not be said to be an act performed in the discharge of official duties. In the instant case, even if the acts complained of were done during the investigation, it could not be said that the same was the part of the petitioners’ official duty. Hence, the protection of Section 197 Cr.P.C was not available to them. Thus, it is evident from the law laid down above that causing a death of a person cannot be said to be an act of discharge of an official duty. In the present case, the allegation against the petitioner is that the petitioner along with others trespassed in the house of the complainant. They broke open the door of the room in which the deceased was sleeping. They dragged him from his room, gave beatings and put him in the gypsy. Thereafter, he died in judicial custody. As such, the petitioners are responsible for the death of respondent No.2, which took place in judicial custody. The present petitioners have disputed the fact. It is argued that the deceased himself took poison and they had carried him from home directly to the hospital. However, the truth can be ascertained, only if, the trial is allowed to continue. In the present case, the complainant has made CRR No.3222 of 2009 11 a specific allegation that the petitioners have killed Virender after hatching a criminal conspiracy. The said act, by no stretch of imagination, can be said to have been committed during the course of duty. Therefore, the previous sanction is not required in the facts of present case. Accordingly, there is no merit in the petition and the same is, accordingly, dismissed. However, the Court has not entered into any allegation and counter-allegation and thus, any opinion expressed shall have no bearing on the merits of the case. (NIRMALJIT KAUR) Judge 25.03.2010 gurpreet