TaxTMI 
TaxTMI 
2006 (3) TMI 748
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....lainant' for short) was supporting a particular political party. He was engaged in distributing food packets to the polling agents at Subhas Sarobar (Baliaghata Lake) constituency. It was the case of the complainant that when her husband left the home on May 10, 2001, he stated that he would be coming for taking lunch. According to the complainant, however, her husband did not come. When she was returning after casting her vote, she saw a Tata Sumo vehicle and one Anath Das of the locality inside the vehicle. When she asked the people who gathered over there as to what had happened, she was informed that Topi Das had become unconscious due to beating by police on his head and he was taken to hospital. The complainant, therefore, immediately proceeded to hospital. She found her younger brother-in-law Laxman Das amongst the crowd. On being asked, she was told that her husband had died. She learnt that her husband was supplying food packets at the polling booth. At that time, some police officers came there and they beat her husband. When her husband left the place, police men chased him towards the lake side. Her husband was not knowing swimming and he stated to the police person....
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....age was sent to the Joint Commissioner of Police to investigate the case under Section 302 which was treated as FIR. It was, therefore, prayed that the complaint dated May 28, 2001 be stayed. 4. It may also be stated that the accused moved the High Court for grant of anticipatory bail under Section 438 of the Code. The application, however, was rejected by the High Court on June 20, 2003. The order passed by the High Court was challenged by filing Special Leave Petition in this Court which was also dismissed by this Court on July 28, 2003. 5. The accused then filed a petition under Section 482 of the Code for quashing of proceedings, inter alia, contending that the alleged offence had been committed by them "while acting or purporting to act" in the discharge of their official duties and no cognizance could be taken by the Court except with the previous sanction of the State Government. Since no such sanction was obtained before filing the complaint, the complaint was not maintainable at law and was liable to be dismissed only on that ground. The High Court, by the impugned order, dismissed the petition observing that it was a case of 'merciless beating' by police off....
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.... appellant. The proceedings were, therefore, not tenable. The learned Magistrate, therefore, was wrong in taking cognizance, in issuing non-bailable warrant and proceeding with the case. Mr. Tulsi submitted that absence of sanction as required by Section 197 goes to the root of the matter and no proceedings could be initiated in absence of such sanction and the proceedings are required to be dropped. Mr. Tulsi also submitted that as is clear, the complainant had filed a complaint on May 11, 2001 and in the said complaint it was expressly stated that her husband had met with death due to beating by police officers. An entry was made to that effect and a case was registered as PS Case No.112 of 2001 for an offence punishable under Section 304 IPC by Phoolbagan Police Station on May 12, 2001. Subsequently, even Section 302 IPC was added. Considering that fact also, a private complaint instituted by the complainant in the Court of the Chief Judicial Magistrate on May 28, 2001 for offences punishable under Sections 302, 201, 109 and 120B IPC was required to be stayed under Section 210 of the Code which provides for procedure to be followed in such cases. Mr. Pradip Kumar Ghosh, learned ....
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....olice officers and whether the Chief Judicial Magistrate was justified in taking cognizance of the complaint filed by the complainant and proceeding with the complaint, and secondly, whether the case is covered by Section 210 of the Code and the private complaint filed by the complainant in the Court of Chief Judicial Magistrate on May 28, 2001 against the accused persons for offences punishable under Sections 302, 201, 109 and 120B IPC could be proceeded with or required to be stayed? Before I deal with the material placed on record, it would be appropriate to consider the legal position. Section 197 of the Code provides for sanction of prosecution of certain public servants. The relevant part thereof reads thus: 197 Prosecution of Judges and Public Servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person w....
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....preting the provision inasmuch as the words used in the section were not only "any act done in the execution of his duty" but also "any act purporting to be done in the execution of duty". It was, therefore, held that when the act is not done in the execution of the duty, but is purported to be done in the execution of the duty, it would be covered. 13. The learned Judge stated; "Obviously the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The words as used in the Section are not "in respect of any official duty" but "in respect of any act done or purporting to be done in the execution of his duty". The two expressions are obviously not identical. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of the duty. The reference is obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact....
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....pplied) 15. In the concurring opinion, Varadachariar, J. stated - "It only remains to deal with the arguments urged on the one side or the other as to the test to be applied in determining whether or not the act complained of is one "purporting to be done in execution of his duty" as a public servant. I would observe at the outset that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests." (emphasis supplied) 16. In H.H.B. Gill & another v. King, (75 IA 41:AIR 1948 PC 128), the Judicial Committee of the Privy Council had an occasion to deal with the provisions of Section 197 of the Code in juxtaposition of Section 270 of the Government of India Act, 1935. Referring to Dr. Hori Ram Singh and applying the ratio laid down therein, their Lordships observed that a public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The Judicial Committee proceeded to ....
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....ection 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution." 21. A reference may be made to a decision of the Constitution Bench in Matajog Dobey v. H.C. Bhari, [1955 (2) SCR 925 : AIR 1956 SC 44]. Holding Section 197 of the Code constitutional and not discriminatory and violative of Article 14 of the Constitution, the Court stated that the primary object of Section 197 was to protect public servants from harassment in the discharge of their official duties. Delivering the judgment for the Bench, Chandrasekhara Aiyar, J. said: "The offence alleged to have been committ....
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....ved "While the law is well settled the difficulty really arises in applying the law to the fact to any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. (emphasis supplied) 24.2 In B. Saha & others v. M.S. Kochar, [(1979) 4 SCC 177], this Court stated that for the application of Section 197 of the Code, there must be direct and reasonable nexus between the offence committed and the discharge of official duty. It may happen ....
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....scharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damaged to the evidence." 24.4 In P.K. Pradhan v. State of Sikkim, [(2001) 6 SCC 704], after referring to relevant case law on the point, it was observed that different tests have been laid down to ascertain the scope and meaning of the relevant words occurring in Section 197 "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". It was then stated that the offence alleged to have been committed must have something to do, or must relate in some manner, with the discharge of official duty of a public servant. No question of sanction would arise under Section 197, unless the....
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....are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. But the said protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. 25 It was, therefore, observed "Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the....
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.... or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty: if the answer to this question is in the affirmat....
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....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. 30. 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 office....
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...."Death was due to the effects of head injuries associated with drawing ante-mortem and homicidal in nature. The injuries which I found are consisted with a trauma caused by blunt weapon such as Lathi." (Emphasis supplied) 34. 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. 35. In my view, even Section 210 of the Co....
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....igation by the police, some of the persons file complaint and quickly get an order of acquittal either by cancellation or otherwise. Thereupon the investigation of the case becomes infructuous leading to miscarriage of justice in some cases. To avoid this, the Committee has provided that where a complaint is filed and the Magistrate has information that the police is also investigating the same offence, the Magistrate shall stay the complaint case. If the police report (under Section 173) is received in the case, the Magistrate should try together the complaint case and the case arising out of the police report. But if no such case is received the Magistrate would be free to dispose of the complaint case. This new provision is intended to secure that private complainants do not interfere with the course of justice." (emphasis supplied) 39. It is thus clear that before Section 210 can be invoked, the following conditions must be satisfied. (i) There must be a complaint pending for inquiry or trial; (ii) Investigation by the police must be in progress in relation to the same offence; (iii) A report must have been made by the police officer under....