The central legal point established in the judgment is that the protection under section 197 of the Code of Criminal Procedure is not applicable when the alleged act is not in discharge of official duty.

JUDGMENT :

1. Parties through their counsel.

2. The present petition has been filed under section 482 of the Code of Criminal Procedure against the order dated 7-4-2015 passed by learned XI Additional Sessions Judge, Ujjain in Criminal Case No. 367/14.

3. The facts of the case reveal that the present petitioner is working as Sub-Inspector of Police and a complaint was filed by non-applicant No. 2 Mushahid alleging that on 18-7-2010 at about 7.00 p.m., the present petitioner came to his repairing shop and directed him to repair the head light of the motor cycle. His complaint further reveals that Sub-Inspector of Police was politely told that the complainant is not an expert in repairing two wheeler, however, the present petitioner started assaulting the complainant for merely refusing to repair the head light of the motor cycle. He was beaten mercilessly, which resulted in serious injuries.

4. The complaint further reveals that he was forcibly lifted from his shop and was brought to the Police Station. The Station House Officer also came out of his room and intervened in the matter. The complainant was sent to the hospital and as per the complainant, there was a fracture in the knee cap of the complainant.

5. The complainant also informed the higher authorities and Deputy Inspector of General, Shri Varun Kapoor directed Additional Superintendent of Police Shri Narvariya to look into the matter and Shri Narvariya has submitted a report holding the present petitioner who was Assistant Sub-Inspector, guilty in respect of allegations made by the complainant.

6. In the complaint, it has been further stated that the present petitioner, in order to save his skin lodged a false report against the complainant.

7. Learned counsel has vehemently argued before this Court that the present petitioner as he was a sub-inspector was investigating some other matter and was on duty and therefore, the complaint itself was not maintainable and permission was required under section 197 of Criminal Procedure Code.

8. He has placed reliance upon a judgment delivered by the Apex Court in the case of R. Balakrishna Pillai vs. State of Kerala and anr. reported in I (1996) CCR 77 (SC). He has also placed heavy reliance upon paragraph 6, the same reads as under :-

In the present case, the appellant is charged with having entered into a criminal conspiracy with the co-accused while functioning as a Minister. The criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the consent of the Government of Kerala which is an illegal act' under the provisions of the Electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegation is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs. 19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegation is that it was an illegal act inasmuch as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under section 120-B, Indian Penal Code. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract the protection of section 197(1) of the Act.

Learned counsel has also placed reliance upon a judgment delivered in the case of D. T. Virupakshappa vs. C. Subash reported in AIR 2015