TaxTMI 
TaxTMI 
2016 (7) TMI 1247
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....he arrest of Neeraj Kumar, his father Piara Lal was placed under suspension on 10.06.1999. The aforesaid FIR No.30, we were informed, was in respect of complaints made by residents of Kapurthala, pertaining to theft of motorcycles and other vehicles in the city. 3. It was pointed out, that while investigating into the allegations contained in the complaint dated 03.03.1999, three persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj Kumar was granted bail on 30.06.1999. In the above view of the matter, it is apparent that Neeraj Kumar had remained in jail for just about two/three days (from 28.06.1999 to 30.06.1999). Usha Rani - mother of Neeraj Kumar (detained during the investigation of FIR No. 30), filed a representation asserting, that her son had been detained on 24.06.1999 (and not on 28.06.1999, as alleged). That would make the duration of his arrest as of six/seven days. The present controversy pertains to the additional four/five days of the arrest of Neeraj Kumar. Her complaint highlighted, that her son - Neeraj Kumar was apprehended illegally and unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for four/five days. 4. Investigation into....
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.... as, the 'Code') for prosecuting the six concerned police officials. It is also relevant to mention, that it was the express contention of the appellants, that on the conclusion of investigation, no involvement of the appellants had emerged, and therefore, their names were recorded in Column No.2. It was submitted, that the aforesaid depiction of the names of the appellants in Column No.2 by itself, demonstrates their innocence (with reference to the allegations made by Usha Rani, that her son Neeraj Kumar had been illegally detained from 24.06.1999). 7. It is not a matter of dispute, that after the statements of three prosecution witnesses were recorded by the trial Court, Usha Rani moved an application under Section 319 of the 'Code' before the trial Judge - the Chief Judicial Magistrate, Kapurthala, for taking cognizance against the appellants herein. The aforesaid application was allowed by the trial Court, on 06.09.2003. Thereupon, the appellants were summoned by the Chief Judicial Magistrate, Kapurthala, to face trial. The appellants contested their summoning before the trial Court by asserting, that their prosecution was unsustainable in law, because no sanction had been ....
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....nment or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." (emphasis is ours) The learned senior counsel highlighted, that sanction under Section 197 of the 'Code' is mandatory, where the concerned public servant is alleged to have committed an offence "while acting or purporting to act in the discharge of his official duty". 10. In order to demonstrate the ambit and scope of the term "while acting or purporting to act in the discharge of his official duty", learned senior counsel placed reliance on Dr. Hori Ram Singh vs. Emperor, AIR (1939) FC 43, wherein the Court has observed as under: "But Sec.477-A in express terms covers the case of an officer, who willfully falsifies accounts which may be his duty to maintain. They have apparently put theft, embezzlement, or breach of trust on exactly the same footing as falsification of accounts, and have not considered the charge of falsifying the accounts separately from that of criminal breach of tr....
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.... faith," for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention." (emphasis is ours) Reliance was also placed on Sankaran Moitra vs. Sadhna Das, (2006) 4 SCC 584, wherefrom our attention was drawn to the following paragraph: "25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can....
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....be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197(1), as it then stood, but we do not base our decision on that distinction. Our attention was next invited to a three- Judge decision in B. Saha vs. M.S. Kochar, (1979) 4 SCC 177. The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the code, are capable of ....
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....sent 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, I.P.C. 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." (emphasis is ours) Reliance was finally placed on P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704, and our attention was drawn, to the following observations recorded therein: "5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It i....
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....on as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." (emphasis is ours) All in all, based on the judgments referred to above, it was contended, that even if it was assumed that Neeraj Kumar had been detained with effect from 24.06.1999, his detention by the appellants was "while acting or purporting to act" in the discharge of the appellants' official duties. And as such, the Chief Judicial Magistrate, Kapurthala, could not have taken cognizance, without sanction under Section 197 of the 'Code'. 11. Mr. Varinder S. Rana, learned counsel, who entered appearance on behalf of responden....
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....se, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood." (emphasis is ours) Reliance was then placed on Usharani vs. The Commissioner of Police, (2015) 2 KarLJ 511 (a judgment rendered by the Karnataka High Court), to highlight the importance and significance of personal liberty, specially with reference to unlawful detention wherein it has been observed as under: "10. In Constitutional and Administrative Law by Hood Phillips and Jackson, it is stated thus: "The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applica....
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....f India." (emphasis is ours) 12. The first task, which a Court is obliged to embark upon, when confronted with a proposition of the nature in hand, is to ascertain as to whether the alleged offence, attributed to the accused, had been committed by an accused "while acting or purporting to act in the discharge of his official duty". In the facts and circumstances of the present case, the alleged action constituting the allegations levelled against the appellants, is based on the arrest and detention of Neeraj Kumar from 24.06.1999 upto 28.06.1999 (before, he was admitted to have been formally arrested on 28.06.1999). 13. Insofar as the power of arrest and detention by police officials/officers is concerned, reference may be made to Section 36 of the 'Code' which postulates, that all police officers superior in rank to an officer in charge of a police station, are vested with an authority to exercise the same powers (throughout the local area, to which they are appointed), which can be exercised by the officer in charge of a police station. Section 49 of the 'Code' postulates, the manner in which a police officer is to act, while taking an individual in custody. Section 49 of t....
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....during the period Neeraj Kumar was allegedly arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formal arrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction under Section 197 would arise, because in that situation, the offence allegedly committed would be taken to have been committed "while acting or purporting to act in the discharge of their official duties". In the present case, the arrest and detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, is denied. The formalities postulated under the 'Code', on the alleged arrest of Neeraj Kumar on 24.06.1999, were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrested on that date. It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true, was obviously without following the mandatory conditions of arrest and detention, contemplated under the provisions (referred to above). And therefore, would not fall within the realm of "acting or purporting to act in the discharge of their official duties". 16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel for the respondents placed r....
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....ced at the hands of learned counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P. Unnikrishnan case (supra) is clear and emphatic. The same does not leave any room for making any choice. It is apparent, that the official arrest of Neeraj Kumar in terms of the provisions of the 'Code', referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made "while acting or purporting to act in the discharge of their official duties". The factual position expressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999. His detention during the above period, if true, in our considered view, would certainly not emerge from the action of the accused while acting or purporting to act in the discharge of their official duties. If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while acting or purporting to act in the discharge of the....
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....the matter is committed may proceed against a public servant, after sanction has been granted by the concerned Government under Section 197 of the 'Code'. In emphasizing on the above scope of sanction, it was pointed out, that Section 197 of the 'Code' being a part of Chapter-XIV of the 'Code', its applicability would extend to the provisions under Chapter-XIV alone. It was submitted, that Section 319 of the 'Code' is contained in Chapter XXIV, over which Section 197 can have no bearing. 19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by learned counsel representing the respondents, that the prosecution contemplated under Section 197 of the 'Code', and the action of the Court in taking cognizance, pertain to actions initiated on the basis of complaints, which disclose the commission of an offence, or on a police report of such facts, or upon receipt of information from a person other than the police officer, that such offence had been committed. It was asserted, that the above action of taking cognizance by a Court, is based on alleged "facts" and not "on evidence" recorded by a Court. The above distinction was drawn by referring to Se....
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....eference in the first instance may be made to Dilawar Singh vs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709. The following observations in the above cited judgment are of relevance to the present issue: "2. It is necessary to mention the basic facts giving rise to the present appeals. On the complaint made by the wife, a case was registered against Parvinder Singh @ Iqbal Singh under Section 406/498-A IPC. On 27.1.2000 Parvinder Singh @ Iqbal Singh gave a complaint to the SSP, Barnala alleging that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his house on a scooter and forcibly took him to the Police Station Barnala. He was beaten and tortured and was subjected to third-degree methods. Some of his relatives, namely, Jarnail Singh, Sukhdev Singh, Sadhu Singh Grewal and Sukhdev Singh Virk came to the police station and requested the police personnel not to beat or torture him. It was further alleged in the complaint that Jasbir Singh, ASI, told them that they should talk to Dilawar Singh, S.H.O., who was sitting there on a chair. Dilawar Singh then demanded an amount of Rs. 20,000/- for releasing Parvinder Singh. His relations then brought the amount, ou....
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.... of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution. 5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was examining the scope of Section 6(1) of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) of the Preventio....
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....de overrides the provisions of Section 19 of the Prevention of Corruption Act, 1988 (in short "the Act") and for exercise of power under the former provision, the only conditions required to be fulfilled are set out in sub-section (4) of Section 319 itself. The High Court felt that the view was not sustainable in view of what has been stated by this Court in Dilawar Singh v. Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC 709). Accordingly, the order was set aside. XXX XXX XXX 4. As has been rightly held by the High Court in view of what has been stated in Dilawar Singh's case (supra), the Trial Court was not justified in holding that Section 319 of the Code has to get preference/primacy over Section 19 of the Act, and that matter stands concluded....." (emphasis is ours) Last of all, reference may be made to a recent decision of this Court in Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64. For the issue under reference, the following observations recorded in the above judgment are relevant: "74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of....