IMPORTANT POINTS
1. The indispensable ingredient of the offence u/s 166 of IPC is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant.
2. Prosecution of Public servant u/s 161 of the Bombay Police Act is not maintainable after the lapse of one year from the date of act complained of unless prior sanction of Government is obtained.
3. An order rejecting petition to discharge accused on the ground of want of sanction for prosecution u/s 197 Cr.P.C. is not an interlocutory order and as such revision thereagainst is not barred u/s 397(2) Cr.P.C.

Headnote:(i) Code of Criminal Procedure, 1973-Section 397-Revision-New issue, whether could be entertained-Legal point as to limitation to entertain complaint raised in revisional Court-Issue not raised before trial Court-Revisional Court deciding issue-No fault can be found with-High Court not correct in holding that revisional Court should not have gone into issue.
       Merely because the appellants did not raise the legal points based on Section 161 of the Bombay Police Act before the Metropolitan Magistrate they are not estopped from canvassing on that additional grounds also before the Sessions Court in revision as they were challenging therein the very issuance of process against them. The position may be different if the Sessions Judge had avoided dealing with the contention based on Section 161(1) of the said Act on the premise that it could be raised before the trial Court. But when the Sessions Judge had opted to go into that question and rendered a decision on it on merits it is difficult to concur with the reasoning of the High Court that the said aspect would not be gone into by the High Court as the same was not raised before the trial Court. (Para 10)
       (ii) Code of Criminal Procedure, 1973-Section 397(2) r/w Section 197-Revision-Maintainability of-Petition to discharge accused on ground sanction u/s 197 not obtained-Trial Court dismissing petition holding issue would be decided after evidence-Revision thereagainst -Revisional Court quashing complaint-High Court holding revision could not have been entertained as order u/s 197 was interlocutory-Not correct-If objections of accused were upheld entire prosecution proceedings would have been terminated -Order of trial Court not interlocutory-Revision rightly entertained.
       It is now well neigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any other passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. (Para 11)
       In the present case, if the objection raised by the appellants were upheld by the court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. (Para 11)
       (iii) Bombay Police Act-Section 161-Prosecution of police officer-Time limit for-Prosecution for an offence falling within Section 161 not maintainable after one year from date of act complained of-After one year time limit prosecution could be launched with prior sanction of State Government.
       Sub-section (1) of Section 161 imposed a ban on the court from entertaining a prosecution for an offence falling within the purview of the sub-section and was committed by a police officer, if the prosecution was instituted more than one year after the date of the act complained of. The only exception to the said ban is, if the complainant gets sanction from the State Government to prosecute the police officer the aforesaid period of one year would get enlarged to two years. Offences falling within the purview of the sub-section relate to those acts done "under the colour or in excess of any duty or authority as aforesaid". The sub-section then widens the net a little further by bringing within its sweep those offences committed through any acts done which are "of the character aforesaid". The expression "aforesaid" in the sub-section is evidently with reference to what is mentioned in Sections 159 and 160 of the same enactment. Those provisions afford an absolute immunity to a public servant from any penalty or liability to pay damages in respect of any "act done in good faith" in pursuance of or intended pursuance of "any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given thereunder". Such absolute immunity is not afforded in respect of any offence or wrong alleged to have been done by such public servant, if it was done "under colour or in excess of any such duty or authority as aforesaid". Nonetheless the said statute has fixed a time limit for initiation of prosecution proceedings in such cases against the public servant. If prosecution proceedings were not initiated within such time limit, they cannot be commenced thereafter. (Para 14)
       In the present case, it is the admitted fact that the complaint was filed only long after the period indicated in Section 161 of the Act was over, either with or without sanction from the State Government. Therefore, the complaint is irretrievably barred under the said provision. (Para 21)
       (iv) Indian Penal Code, 1860-Section 166-Offence by public servant-Conditions precedent to attract Section 166-Offender should have done act "being a public servant"-Public servant should have acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant.
       Held : The indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 of IPC the pivotal ingredient is the same as for the offence under Section 166 of IPC. (Para 17)

JUDGMENT

Thomas, J.-Leave granted.

2. This case is policeman versus policeman. For six years now the case is still drifting in the first phase itself, as its very right of entry into the criminal court is under challenge. The Sessions Court in revisional proceedings upheld the objections raised by the accused that prosecution is not maintainable but the High Court in a second revision held that sessions court had transgressed the jurisdiction as no revisional powers could have been exercised by the Sessions Judge at that stage. It is the said decision of the Division Bench of the High Court of Gujarat which is being challenged in this appeal.

3. A Deputy Superintendent of Police (for convenience he can be referred to hereinafter as "the respondent-police officer) filed a complaint before the Metropolitan Magistrate, Ahmedabad, against two other police officers one of whom was a Superintendent of Police and the other was a Deputy Superintendent of Police. (They will hereinafter be referred to as "the appellants".) The offences alleged against the appellants in the complaint are those under Sections 166, 167, 176, 201,219, 220, 342, 417 of the Indian Penal Code (IPC for short) read with Sections 120B, 34 and 109 of the same Code. The offence under Section 147(G) of the Bombay Police Act is also included in the complaint.

4. A brief account of the events which preceded the filing of the said complaint is necessary. On 24.8.1992, one Jaffer Khan Lodged a complaint with the magistrate alleging that his brother (Jahangir Khan) was kidnapped by some persons named in the complaint. The magistrate forwarded the said complaint to the police for action under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as "the Code") and them FIR was registered on its basis.The respondent-police officer was arrested by the appellants on 28.8.1992, but the alleged kidnapped person (Jahangir Khan) appeared before all people concerned. Respondent-police officer was later released on bail. After investigation the police submitted "final report" on 3.3.1994 holding that the accused are untraceable and requested the court to grant "A" Summary (which means that the complaint could not be substantiated due to want of proof). But the court hearing the respondent-police officer also in the matter, passed an order granting "B" Summary, (which means that the complaint was found false). It was in the above background that the respondent-police officer filed the present complaint on 25.7.1994.

5. The present complaint runs into more than 70 typed pages and has been prepared in a flummoxed fashion. It is very clumsily prepared. It was difficult even for the learned counsel appearing for the respondent-police officer to decipher the lengthy sentences as well as circumlocuted paragraphs. Nonetheless he found out the core allegations in the complaint which is extracted below :

"The conspiracy has been made by making false complaint and I have illegally been arrested iiin which accused No.1 and 2 have helped since they were in crime branch since long period and having relation with Muslim politicians/leaders/anti social elements and having good relations with them and to get their help in continuing in the crime branch and in view of their other weaknesses and under political pressure to please the Muslim leaders and in doing so, getting benefit inter se, have played main role in arresting us and in making ex parte inquiry against me which would become clear from perusal of all the aforesaid facts and the grounds. Investigating Officer cannot make such illegal ex parte inquiry under political or other pressure or for any other cause for illegally arresting by misusing the power under the pretext of law and though the complaint was going to be proved wrong ultimately, instead of "B" Summary, "A" Summary has been prayed for and for preventing repetition of such things in future, the accused should be severely dealt with to set example in th

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2000 Supreme(SC) 1063

Cases Referred (7)