2006 Supreme(SC) 267

2006(4) Supreme 645
SUPREME COURT OF INDIA
(From Calcutta High Court)
Y.K. Sabharwal, CJI., C.K. Thakker and P.K. Balasubramanyan, JJ.
Sankaran Moitra—Appellant
versus
Sadhna Das & Anr.—Respondents
Criminal Appeal No. 330 of 2006
(@ Special Leave Petition (Crl.) No. 3347 of 2003)
Decided on 24-3-2006
Counsel for the Parties
For the Appellant : K.T.S. Tulsi, Sr. Advocate, H.K. Puri, S.K. Puri and V.M. Chauhan, Advocates.
For the Respondent No.1 : Pradip Kumar Ghosh, Sr. Advocate, Somiran Sharma, Amit Sharma, S. Muralidhar, Advocates.
For the State : Avijit Bhattacharjee, Ms. Saumya Kondu, Advocates.

IMPORTANT POINT
Protection of public officers and public servants functioning in discharge of their official duties and protection of private citizens have to be balanced in each case by finding out as to what extent and how for is a public servant working in discharge of his duties or purported discharge of his duties and whether the public servant has exceeded his limit.

Headnote:Criminal Procedure Code, 1973—Section 197—Indian Penal Code, 1860—Sections 302, 201, 109 rw/s 120-B—Police assault resulting in death—Police official pleading applicability of Section 197 Cr.P.C.—Appellant was a police officer, on duty—He had received a message about rioting and law and order situation at the place of incident as on that date, the General Election to the Assembly in West Bengal was being held—Victim was in charge of giving food packets to the polling agents in that booth—Appellant had gone to the spot in police uniform, in police jeep to deal with the situation—Wife of victim filed a complaint u/ss. 302, 201, 109 rw/s 120-B IPC alleging it a case of murder—Her case that antecedents of her husband were above board and he always acted on right side of the law—Allegations that police had severely assaulted her husband with lathi on his head for no reason—Appellant, Assistant Commissioner of that Division alleged to have ordered beating up of her husband and accordingly Officer-in-Charge instigated the police constables who were accompanying them to beat her husband and to kill him—A constable then assaulted her husband with a lathi when victim became unconscious and fell down in the water of a lake—According to the complainant, accused persons had no legal authority to kill her husband—Chief Judicial Magistrate took cognizance of offence—Whether prosecution was liable to be quashed for want of sanction—(Yes).

       Majority Judgment (Y.K. Sabharwal, CJI and P.K. Balasubramanyan, J.

       Held : Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant traveled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197(1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the officer-in-charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in-charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code.(Para 15)

       The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be by-passed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.(Para 17)

       We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. (Para 18)

       Minority Judgment (C.K. Thakker, J.)

       The primary object of the Legislature behind Section 197 of the Code is to protect public officers who have acted in discharge of their duties or purported to act in discharge of such duties. But, it is equally well settled that the act said to have been committed by public officer must have reasonable connection with the duty sought to be discharged by such public officer. If the act complained of has no nexus, reasonable connection or relevance to the official act or duty of such public servant and is otherwise illegal, unlawful or in the nature of an offence, he cannot get shelter under Section 197 of the Code. In other words, protection afforded by the said section is qualified and conditional.(Para 51)

       It is precisely in such cases that the Court is called upon to consider whether the public servant was acting or purporting to act in discharge of his duty or it was merely a cloak for doing illegal act under the excuse of his status as a public servant and by taking undue advantage of his position, he was committing an offence or an unlawful act. In such situations, when the question comes up for consideration before a Court of law as to the applicability or otherwise of Section 197 of the Code, it is not only the power but the duty of the Court to apply its mind to the fact-situation before it. It should ensure that on the one hand, the public servant is protected if the case is covered by Section 197 of the Code and on the other hand, appropriate action would be allowed to be taken if the provision is not attracted and under the guise of his position as public servant, he is trying to take undue advantage.(Para 53)

       In the instant case, from the material which has been placed on record, it is amply clear that the appellant and other police officers had acted illegally, unlawfully and highhandedly. In the complaint, it was stated by the widow of deceased Topi Das that the accused chased her husband and assaulted him by causing several injuries which resulted in his death. But, apart from what is stated in the complaint, the learned Chief Judicial Magistrate had recorded statements of witnesses mentioned in the complaint. The learned counsel for the first respondent-complainant, drew our attention to those statements who were eye-witnesses. It was stated by them that the deceased had not indulged in any illegal activity. He had not done any unlawful act. He had no weapon with him. He was distributing food packets at the polling booth of a particular political party. He was assaulted and beaten by accused persons who were police officers. When the deceased left the place, the police officers chased him and continued to beat him. When deceased reached near a lake, he requested the police officers not to beat him. He also stated that he did not know how to swim and prayed to leave him. But the police officers did not pay any heed to his request and continued beating, which resulted in his death.(Para 54)

       The High Court, in my judgment, considered this aspect in its proper perspective and was wholly justified in observing that “it was a merciless beating by a police officer” causing death of a person which could not be said to be an act in discharge of official duty. The High Court was also right in stating that postmortem report clearly indicated the nature and extent of injuries on the victim. Other witnesses had given vivid description of the offence committed by the accused persons. The said finding, which is supported by material on record, cannot be said to be based on no evidence’ or otherwise perverse, nor it can be concluded that an error of law has been committed by the High Court which requires to be corrected by this Court in the exercise of discretionary jurisdiction under Article 136 of the Constitution. Hence, in my opinion, no interference is called for against the said order.(Para 56)

       I am constrained to observe here that there is considerable force in the allegation of the learned counsel for the complainant that the State agency had shown partisan attitude and favoured the appellant. This is clear from the fact that though the application of the appellant for anticipatory bail was rejected by the High Court as well as by this Court before about three years, the appellant was never arrested by the police. For the foregoing reasons, in my opinion, the order passed by the High Court is in consonance with well settled principles of law and does not deserve interference under Article 136 of the Constitution.(Paras 63 & 64)