important point
Jumping road divider and hitting the oncoming scooter while on way to deliver an official message is not a matter within the colour of duty.

judgment

Harjit Singh Bedi, J. —

1.Leave granted.

2.This appeal by way of special leave is directed against the judgment of the High Court of Delhi dated 30th May, 2006 confirming the judgment of the trial court and the first appellate court convicting the appellant for offences punishable under Sections 279 and 304-A of the IPC but reducing the sentence imposed by the first two courts to 6 months imprisonment but retaining the fine as it is.

3. The appellant who was working as a Head Constable with the Delhi Police and posted at P.S. Kashmere Gate was directed to go to the Police Headquarters at ITO to convey an urgent message. He left the Police Station driving police Mini Truck No. DDL-6462. As the vehicle reached under the railway bridge on the Ring Road going towards Jamuna Bazar it went over the road divider and hit a scooter driven by Hans Kumar with his friend Atma Ram sitting on the pillion seat. Unnerved, the appellant attempted to steer the truck back on the other side of the road but in doing so, struck an electric pole and came to a halt. The Police Control Room was called and Atma Ram was taken to the Jai Prakash Narain Hospital where he subsequently succumbed to injuries. The appellant was accordingly tried and convicted under sections 279 and 304-A of the IPC, as already mentioned above. The conviction and sentence was confirmed by the first appellate court, by the High Court in revision and was further challenged by way of a special leave petition in this Court.

4. The primary plea raised at that stage was that the order of the High Court dismissing the revision petition was a non-speaking one and as the main plea that the prosecution was bad ab initio as being beyond limitation prescribed under Section 140 of the Delhi Police Act, 1978 (hereinafter called the ‘Act’) had not been dealt with as the appellant had been acting under the colour of duty. This Court allowed the appeal and remitted the case to the High Court. It is in this circumstance that a second round of litigation started before the High Court. Before the High Court, the learned counsel appearing for the petitioner (the present appellant) conceded that section 140 would not come into play but that sanction had nevertheless to be taken under Section 197 of the Code of Criminal Procedure as the appellant had been acting or purporting to act in discharge of his police duty in driving an official vehicle when the accident had taken place. The learned counsel for the appellant placed reliance on Sankaran Moitra Vs. Sadhna Das,1 2006 (3) SCALE 141. The learned counsel for the State, however, submitted that that no sanction under section 197 was necessary inasmuch as there was no connection between the duty of the appellant and his rash and negligent act in crossing the road divider and hitting a vehicle on the other side and as such the question of the applicability of Section 197 of the Cr.P.C. did not arise. Several judgments were cited by the learned counsel for this proposition as well. In addition, the State counsel urged that Section 197 of the Code was applicable only in a case where the public servant concerned was not removable from service save by or with the sanction of the Government and the appellant, a mere Head Constable, did not fall in this exalted category. It was also urged that even assuming sanction was required the trial would still not be vitiated and the proceeding and the sentence could not be set aside because of a mere irregularity more particularly as the non-obtaining of the sanction had not in any way occasioned a failure of justice in the trial.

5.The High Court in the course of its judgment held that as per the provisions of Section 465 of the Code an irregularity in the sanction would not ipso-facto entitle a court of appeal or revision to reverse an order of conviction unless it could be established that such an error had resulted in a failure of justice. The Court accordingly held that as the appellant had not raised this