JUDGMENT: - The only question involved for consideration is whether there ought to be a reasonable connection or nexus between the alleged act and the duty or authority imposed upon a Police Officer in order to attract the application of Rule 349 of the Police Rules, 1960.

2. How the question has arisen will be revealed by the following facts. On January 4, 1990 one Sher Singh was arrested by the Officer-Incharge of police station, Marwah Tehsll Kishtwar for interrogation in a murder case (FIR No. 13 of 1989 under S. 302, RPC). He died on 15-1-1990 while in custody. His father Sh. Jal Ram complained to Superintendent of Police, Doda, that he died in Police Custody due to police torture. The investigation of the case was entrusted to Crime Branch, on whose finding the Director General of Police Sh. J. N. Sexena vide letter dated 10-8-1991 approached the Government for grant of sanction to the prosecution of the accused in terms of S. 197 of the Code of Criminal Procedure. The investigation according to the above reference has revelled the following facts: -

"(a) The S. P. Doda, vide his order dated December 8, 1989 constituted a team of 19 officials headed by Shri Abdul Latif, Dy. SP Hqrs. Doda, for the investigation of case FIR No. 13/89 u/S. 302, RPC PS Parwah. The deceased Sheer Singh son of the complainant, had been arrested and kept in the police custody from January 4, 1990 to January 15. 1990, during which period he was tortured and severely beaten up as a result of which he died on January 15, 1990.

(b) The post-mortem was conducted by a Board of three doctors whose opinion categorically stated that the death of the deceased Sheer Singh was due to haemorrhage and shock as result of cumulative effect of multiple injuries described in the postmortem report.

(c) The evidence indicated that the then Naib-Tehsildar, Marwah, now Tehsildar Kishtwar, Sh. G. M. Sheikh, had remained actively associated with the investigation at the behest of the police officers/officials and he had personally also resorted to beating of the deceased Sheer Singh on various occasions. He had also attempted to fabricate a false report of having recorded the statement of the deceased Sheer Singh u/S. 164, Cr. P.C. at the Government dispensary Swed (Dechhan) whereas the evidence established beyond doubt that the deceased had never remained admitted in the said dispensary. Under law he was not competent to record the confessional statement of the deceased. He had also not been approached by any Police Officer for the said purpose. The voluntary recording of statement of the deceased speaks of his over enthusiasm to fabricate record to save himself as also the police officials involved in the case.

(d) The investigation has also amply proved that the accused Zahoor Ahmed Mattoo son of Mohammad Ibrahim Mattoo resident of Sheerpora Anantnag also remained actively associated with the investigation team and indulged in beating of the deceased, to avenge the death of his brother, namely, Mohammad Iqbal Mattoo."

3. The Director General of Police agreed with the conclusion of the Investigating Police Officer and found that accused were required to be sent up for trial for having committed offence punishable under Ss. 302, 109, 342, 330 and 193, RPC also. He therefore, recommended to the Government that sanction to the prosecution of Abdul Latif, Dy. S. P. and Zahoor Ahmed

Mattoo the then Tehsildar be accorded as required under S. 197, Cr. P.C. because both of them could be removed from service only by the order of the Government, Sanction to the prosecution was issued vide SRO 314 dated 7-11-1991.

4. It appears the defence objected to the trial of the accused on the ground that Rule 349 has been violated and the provisions being mandatory, no charge can be framed. This objection prevailed with the trial Court, and the accused were discharged.

5. The contention of learned Government Advocate is that accused persons have been wrongly discharged because Rule 349 has no

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