Writ petition - Non filing of charge sheet - extraordinary delay of 11 years on the plea of obtaining sanction orders - filing sanction orders is not a conditional precedent for filing a charge sheet - Pending of petition filed by accused for quashing the complaint is also not a ground to keep pending the charge sheet from filing - police directed to file charge sheet = Though the investigation was completed long back, the filing of charge-sheet was held up on untenable ground of sanction merely because of the involvement of public servants. It is 11 years since the complaint was lodged. The journey to justice through the process of law should be swift and secure. The citizen should not have the feeling that it is difficult to proceed against public servants even if they exceed their powers or misuse their powers. G.Haritha W/o M.A.Khadir....petitioner The Director General of Police, Govt.,of A.P., Hyderabad and others.. Respondents = published in / Cited in / Reported in judis.nic.in/judis_andhra/filename=10607
Writ petition - Non filing of charge sheet - extraordinary delay of 11 years on the plea of obtaining sanction orders - filing sanction orders is not a conditional precedent for filing a charge sheet - Pending of petition filed by accused for quashing the complaint is also not a ground to keep pending the charge sheet from filing - police directed to file charge sheet =
Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. =
This Writ Petition was filed seeking a direction to the Respondent Nos.1 to 3 to
file charge sheet in Cr.No.166 of 2003 of Begumpet Police Station forthwith and
proceed against the Respondents in accordance with law. =
This is one of the cases where the citizen is unable to set the criminal
law in motion in spite of clear mandate of law, due to one reason or other. The
Petitioner has to approach this Court earlier for getting her complaint
registered and inspite of this court's direction to take further steps
consequent to registration of crime and completion of investigation, expeditious
steps have not been taken. Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. When the law treats every one as equal, the law
enforcement agencies should not treat some as more exceptional.
09. In the facts and circumstances of this case, it is not necessary for this
court to go into merits of the case and views expressed herein either on
sanction or on other matters should not be construed as expressing any opinion
on the merits of the case and the parties are at liberty to take all defences
available to them under law before the competent court.
It is sufficient if a
direction is given to the Respondent Nos.1 and 2 to issue instructions to the
concerned officer to file a charge sheet within one (1) week from the date of
receipt of a copy of this order since investigation was completed in 2009
itself. The Writ Petition is liable to be allowed.
THE HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO
W.P.No.7825 OF 2007
06-12-2013
G.Haritha W/o M.A.Khadir....petitioner
The Director General of Police, Govt.,of A.P., Hyderabad and others..
Respondents
Counsel for the petitioner:Sri V.Raja Manohar
Counsel for the Respondents: G.P for Home for R-1 to R-3
Sri O.Manohar Reddy for R-4
Sri B.Vijaysen Reddy for R-7
<Gist :
>Head Note:
?Cases referred:
1.(2009) 6 SCC 372
2. AIR 1948 PC 128
3.(2000) 8 SCC 131
4.(2012) 6 SCC 228
THE HON'BLE SRI JUSTICE A. RAMALINGESWARA RAO
W.P.NO.7825 OF 2007
ORDER:-
This Writ Petition was filed seeking a direction to the Respondent Nos.1 to 3 to
file charge sheet in Cr.No.166 of 2003 of Begumpet Police Station forthwith and
proceed against the Respondents in accordance with law.
02. It is the case of the Petitioner that in respect of an incident alleged to
have occurred on 09-08-2002 due to involvement of Respondent Nos.4, 9 and
others, the Petitioner lodged a complaint on 14-09-2002 in Begumpet Police
Station. When no action was taken on the said complaint, she filed W.P.No.25085
of 2002 and the same was disposed of by this court on 12-08-2003 recording the
representation of the Respondents that case was registered and investigation was
almost nearing completion. This court while disposing of the Writ Petition
directed the Respondent Nos.2 and 3 therein to take such steps as are required
in law to carry the matter further. Even though Cr.No.166 of 2003 was registered
and investigation was completed, when no steps were taken for filing charge
sheet the present Writ Petition was filed narrating the incidents leading to the
registration of complaint.
03. A counter-affidavit was filed by the 4th Respondent denying the
allegations in the affidavit filed by the Petitioner and stating that with
regard to incident that took place on 09-08-2002, a report was given to the
Deputy Commissioner of Police only on 28-11-2002 and it was registered in
Begumpet Police Station only on 25-04-2003 under Sections.448, 323, 380 and 506
of IPC. Certain counter allegations were made against the Petitioner which are
not necessary for disposal of the present case.
04. Heard the learned counsel for the Petitioner, the learned Government
Pleader for Home for Respondent Nos.1 to 3, Sri O.Manohar
Reddy, learned counsel for R-4 and Sri B.Vijaysen Reddy, learned counsel for
Respondent No.7.
05. This case was admitted on 17-04-2007. On 23-06-2011, the learned counsel
for the Petitioner was permitted to take out personal notice to Respondent
Nos.5,6,8 and 9 failing which it was ordered that the Writ Petition would stand
dismissed as against them. Since no steps were taken by the Petitioner, the Writ
Petition was dismissed as against Respondent Nos.5,6,8 and 9. As Respondent
Nos.1 to 3 did not file any counter-affidavit even after six years, the learned
Government Pleader for Home was directed to inform this Court with regard to the
latest position in respect of Cr.No.166 of 2003 and the learned Assistant
Government Pleader for Home produced a letter of the Inspector of Police, CID,
GHR, Hyderabad addressed to the learned Government Pleader for Home. The
relevant portion of the said letter reads as follows:
"The investigation in this case is completed, but the charge sheet has not
been filed in this case, due to pending of prosecution sanction orders from the
Govt. against A5 Smt.Tejdeep Kaur Menon, IPS, and A-8 Sri
Kakarala Srinivas, PC-8554, CAR Hqrs, Hyderabad, since 2009. The accused A1 to
A4 was arrested on 25-04-2007 and released on bail as per the orders of the
Hon'ble High Court of A.P., and the accused A6 and A7 are yet to be arrested.
The quash petition filed by the A3 and A4 vide Crl.P.No.5669 of 2011 in
the Hon'ble High Court of A.P., is pending for admission. The counter was
submitted to the PP Office and the matter was last listed on 28-10-2013 but not
reached".
06. In view of the stand taken by the investigation officers that the Charge-
sheet could not be filed in view of the pendency of sanction proceedings, it is
necessary to consider the position relating to sanction only for the purpose of
prima facie examination of tenability of such stand. Sec.197 of Code of Criminal
Procedure,1973 reads as follows:
"197. Prosecution of Judges and public servants.-- (2) 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 who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in
clause (b) during the period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in a State, clause (b) will apply
as if for the expression "State Government" occurring therein, the expression
"Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed
by any member of the Armed Forces of the Union whole acting or purporting to act
in the discharge of his official duty, except with the previous sanction of the
Central Government.
(3) The State Government may, by notification, direct that the provisions of
sub-section (2) shall apply to such class or category of the members of the
Forces charged with the maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions of that sub-section
will apply as if for the expression "Central Government" occurring therein, the
expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no Court shall take
cognizance of any offence, alleged to have been committed by any member of the
Forces charged with the maintenance of public order in a State while acting or
purporting to act in the discharge of his official duty during the period while
a Proclamation issued under clause (1) of article 356 of the Constitution was in
force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any
other law, it is hereby declared that any sanction accorded by the State
Government or any cognizance taken by a Court upon such sanction, during the
period commencing on the 20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991, receives the assent of the President, with respect to an
offence alleged to have been committed during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution was in force in the
State, shall be invalid and it shall be competent for the Central Government in
such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government 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.
A reading of the above provision makes it clear that the court shall not take
cognizance of an offence against the class of persons mentioned in the above
Section when they are accused of any offence alleged to have been committed by
them while acting or purporting to act in the discharge of their official duty
unless previous sanction of the concerned Government is obtained. The section
gives protection against irresponsible, frivolous or vexatious proceedings for
acts done in discharge of official duty and does not extend to every act or
omission done by a public servant in service. The said protection is not
available to the public servant if the act complained of is not in connection
with the discharge of his duty or in excess of his duty.
The requirement of
sanction has to be gathered from the allegations in the complaint. Dealing with
the scope of said section, a 3 Judge Bench of the Supreme Court
in State of U.P. Vs. Paras Nath Singh(1) extensively quoted from another
decision as follows:
"The Section falls in the chapter dealing with conditions requisite for
initiation of proceedings. That is if the conditions mentioned are not made out
or are absent then no prosecution can be set into motion. For instance no
prosecution can be initiated in a Court of Session under Section 193, as it
cannot take cognizance, as a court of original jurisdiction, of any offence
unless the case has been committed to it by a Magistrate or the Code expressly
provides for it. And the jurisdiction of a Magistrate to take cognizance of any
offence is provided by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information received from any person
other than police officer, or upon his knowledge that such offence has been
committed. So far as public servants are concerned the cognizance of any
offence, by any court, is barred by Section 197 of the Code unless sanction is
obtained from the appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The Section not only specifies
the persons to whom the protection is afforded but it also specifies the
conditions and circumstances in which it shall be available and the effect in
law if the conditions are satisfied. The mandatory character of the protection
afforded to a public servant is brought out by the expression, 'no court shall
take cognizance of such offence except with the previous sanction'. Use of the
words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of
power of the court to take cognizance of any offence is absolute and complete.
Very cognizance is barred. That is the complaint cannot be taken notice of.
According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction'
or 'the exercise of jurisdiction' or 'power to try and determine causes'. In
common parlance it means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising jurisdiction if it
is in respect of a public servant who is accused of an offence alleged to have
committed during discharge of his official duty.
Such being the nature of the provision the question is how should the
expression, 'any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty', be understood? What
does it mean? 'Official' according to dictionary, means pertaining to an office,
and official act or official duty means an act or duty done by an officer in his
official capacity.
In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 177) it was
held :(SCC pp.184-85 para 17)
"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 in Section
197(1) of the Code, are capable of a narrow as well as a wide interpretation. If
these words are construed too narrowly, the section will be rendered altogether
sterile, for, 'it is no part of an official duty to commit an offence, and never
can be'. In the wider sense, these words will take under their umbrella every
act constituting an offence, committed in the course of the same transaction in
which the official duty is performed or purports to be performed. The right
approach to the import of these words lies between two extremes. While on the
one hand, it is not every offence committed by a public servant while engaged in
the performance of his official duty, which is entitled to the protection of
Section 197(1), an Act constituting an offence, directly and reasonably
connected with his official duty will require sanction for prosecution and the
said provision."
Use of the expression, 'official duty' implies that the act or omission must
have been done by the public in the course of his service and that it should
have been in discharge of his duty. The Section does not extend its protective
cover to every act or mission done by a public servant in service but restricts
its scope of operation to only those acts or omissions which are done by a
public servant in discharge of official duty.
It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty. That is under
the colour of office. Official duty therefore implies that the act or omission
must have been done by the public servant in course of his service and such act
or omission must have been performed as part of duty which further must have
been official in nature. The Section has, thus, to be construed strictly, while
determining its applicability to any act or omission in course of service. Its
operation has to be limited to those duties which are discharged in course of
duty. But once any act or omission has been found to have been committed by a
public servant in discharge of his duty then it must be given liberal and wide
construction so far its official nature is concerned. For instance a public
servant is not entitled to indulge in criminal activities. To that extent the
Section has to be construed narrowly and in a restricted manner. But once it is
established that act or omission was done by the public servant while
discharging his duty then the scope of its being official should be construed so
as to advance the objective of the Section in favour of the public servant.
Otherwise the entire purpose of affording protection to a public servant without
sanction shall stand frustrated. For instance a police officer in discharge of
duty may have to use force which may be an offence for the prosecution of which
the sanction may be necessary. But if the same officer commits an act in course
of service but not in discharge of his duty then the bar under Section 197 of
the Code is not attracted. To what extent an act or omission performed by a
public servant in discharge of his duty can be deemed to be official was
explained by this Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) thus"
"The offence alleged to have been committed (by the accused) must have something
to do, or must be related in some manner with the discharge of official duty ...
there must be a reasonable connection between the act and the discharge of
official duty the act must bear such relation to the duty that the accused could
lay a reasonable (claim) but not a pretended or fanciful claim, that he did it
in the course of the performance of his duty."
If on facts, therefore, it is prima facie found that the act or omission for
which the accused was charged had reasonable connection with discharge of his
duty then the act must be held as official to which applicability of Section 197
of the Code cannot be disputed.
In S.A. Venkataraman v. The State (AIR 1958 SC 107) and in C. R. Bansi v. The
State of Maharashtra (1970 (3) SCC 537) this Court has held that:
"There is nothing in the words used in Section 6(1) to even remotely suggest
that previous sanction was necessary before a court could take cognizance of the
offences mentioned therein in-the case of a person who had ceased to be a public
servant at the time the court was asked to take cognizance, although he had been
such a person at the time the offence was committed."
That apart, the contention of the respondent that for offences under Sections
406 and 409 read with Section 120-B of IPC sanction under Section 197 of the
Code is a condition precedent for launching the prosecution is equally
fallacious. This Court has stated the legal position in S.R. Munnipalli v.
Bombay (1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu (1955 RD-SC 9) that
it is not every offence committed by a public servant, which requires sanction
for prosecution under Section 197 of the Code, nor even every act done by him
while he is actually engaged in the performance of his official duties.
Following the above legal position it was held in Harihar Prasad, etc. v. State
of Bihar (1972 (3) SCC 89) as follows:
"As far as the offence of criminal conspiracy punishable under Section 120-8,
read with Section 409, Indian Penal Code is concerned and also Section 5(2) of
the Prevention of Corruption Act is concerned, they cannot be said to be of the
nature mentioned in Section 197 of the Code of Criminal Procedure. To put it
shortly, it is no part of the duty of a public servant, while discharging his
official duties, to enter into a criminal conspiracy or to indulge in criminal
misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure
is, therefore, no bar."
Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC
690). Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that
case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will
etc; forgery for purpose of cheating and using as genuine a forged document
respectively. It is no part of the duty of a public servant while discharging
his official duties to commit forgery of the type covered by the aforesaid
offences. Want of sanction under Section 197 of the Code is, therefore, no bar."
This position was highlighted in State of H.P. v. M.P. Gupta (2004 (2) SCC 349)"
07. In the instant case, Crime No.166 of 2003 was registered under Sections
448 (house-trespass), 323 (voluntarily causing hurt), 380 (theft in dwelling
house) and 506 (criminal intimidation) IPC. A perusal of the allegations in the
complaint against Respondent No.4 prima facie disclose that they do not relate
to the discharge of the official duties by the
4th Respondent and hence no sanction is required in the circumstances of the
case. It was well settled in H.H.B.Gill Vs. The King(2) that a public servant
can only be said to act or to 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
action of Police Officer in committing trespass into the floor mill of the
complainant by breaking open the lock, removing the sign-board and a motor was
held to be no part of their duty, actual or purported even if the property has
been acquired for the purpose of Police Station. (State of Maharashtra & Ors.
Vs. Jan Ali Mohammed Shafi, 1990 (1) Crimes 203). The Supreme Court in P.P.
Unnikrishnan Vs. Puttiyottil Alikutty(3) also considered the position and held
as follows:
"Even under Section 197 of the Code no protection has been granted to public
servants for the type of acts alleged in the case against the appellants.
Decisions are a legion relating to the scope of the protection under Section
197(1) of the Code. In Matajog Dobey Vs. H.C. Bhari {1955 (2) SCR 925} this
Court made a slight deviation from the view adopted by the Judicial Committee of
the Privy Council in Gill case (1948 Law Reports 75). This Court after
referring to earlier decisions summed up the scope of Section 197(1) of the Code
thus:
"There must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did it in
the course of the performance of his duty."
While following the said decision this Court has found, on a subsequent
occasion, that a superior officer who assaulted his subordinate for defying his
orders could not be said to have acted in the course of performance of his duty,
(vide Pukhraj vs. State of Rajasthan and Anr. {1974 (1) SCR 559}.
If a police officer dealing with law and order duty uses force against unruly
persons, either in his own defence or in defence of others and exceeds such
right it may amount to an offence. But such offence might fall within the
amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act.
But if a police officer assaults a prisoner inside a lock-up he cannot claim
such act to be connected with the discharge of his authority or exercise of his
duty unless he establishes that he did such acts in his defence or in defence of
others or any property. Similarly, if a police officer wrongfully confines a
person in the lock-up beyond a period of 24 hours without the sanction of a
magistrate or an order of a court it would be an offence for which he cannot
claim any protection in the normal course, nor can he claim that such act was
done in exercise of his official duty. A policeman keeping a person in the lock-
up for more than 24 hours without authority is not merely abusing his duty but
his act would be quite outside the contours of his duty or authority.
In a recent decision of the Supreme Court in General Officer Commanding
Rashtriya Rifles Vs. Central Bureau of Investigation and Another(4) the position
relating to sanction for prosecution under the provisions of the Code of
Criminal Procedure, Prevention of Corruption Act and the Armed forces (Special
Powers) Act,1990 has been discussed at length. As already stated, the crime is
registered under Sections 448, 323, 380 and 506 IPC and the acts complained of
prima facie cannot be held to be in discharge of official duty. Hence no
sanction is prima facie required and the competent authority can file charge
sheet before the competent criminal court. The filing of charge sheet under
Sec.173 Cr.P.C. precedes the act of taking cognizance by the Magistrate under
Sec.190 Cr.P.C. and need not wait for sanction orders, if at all required.
Sec.173 of Cr.P.C. says that every investigation shall be completed without
unnecessary delay and as soon as it is completed, the officer-in-charge of the
police station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report. But enormous delay has been caused in filing the
charge-sheet.
08. This is one of the cases where the citizen is unable to set the criminal
law in motion in spite of clear mandate of law, due to one reason or other. The
Petitioner has to approach this Court earlier for getting her complaint
registered and inspite of this court's direction to take further steps
consequent to registration of crime and completion of investigation, expeditious
steps have not been taken. Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. When the law treats every one as equal, the law
enforcement agencies should not treat some as more exceptional.
09. In the facts and circumstances of this case, it is not necessary for this
court to go into merits of the case and views expressed herein either on
sanction or on other matters should not be construed as expressing any opinion
on the merits of the case and the parties are at liberty to take all defences
available to them under law before the competent court. It is sufficient if a
direction is given to the Respondent Nos.1 and 2 to issue instructions to the
concerned officer to file a charge sheet within one (1) week from the date of
receipt of a copy of this order since investigation was completed in 2009
itself. The Writ Petition is liable to be allowed.
Accordingly, the Writ Petition is allowed. No costs.
_________________________
A.RAMALINGESWARA RAO,J
06-12-2013
Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. =
This Writ Petition was filed seeking a direction to the Respondent Nos.1 to 3 to
file charge sheet in Cr.No.166 of 2003 of Begumpet Police Station forthwith and
proceed against the Respondents in accordance with law. =
This is one of the cases where the citizen is unable to set the criminal
law in motion in spite of clear mandate of law, due to one reason or other. The
Petitioner has to approach this Court earlier for getting her complaint
registered and inspite of this court's direction to take further steps
consequent to registration of crime and completion of investigation, expeditious
steps have not been taken. Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. When the law treats every one as equal, the law
enforcement agencies should not treat some as more exceptional.
09. In the facts and circumstances of this case, it is not necessary for this
court to go into merits of the case and views expressed herein either on
sanction or on other matters should not be construed as expressing any opinion
on the merits of the case and the parties are at liberty to take all defences
available to them under law before the competent court.
It is sufficient if a
direction is given to the Respondent Nos.1 and 2 to issue instructions to the
concerned officer to file a charge sheet within one (1) week from the date of
receipt of a copy of this order since investigation was completed in 2009
itself. The Writ Petition is liable to be allowed.
THE HONOURABLE SRI JUSTICE A.RAMALINGESWARA RAO
W.P.No.7825 OF 2007
06-12-2013
G.Haritha W/o M.A.Khadir....petitioner
The Director General of Police, Govt.,of A.P., Hyderabad and others..
Respondents
Counsel for the petitioner:Sri V.Raja Manohar
Counsel for the Respondents: G.P for Home for R-1 to R-3
Sri O.Manohar Reddy for R-4
Sri B.Vijaysen Reddy for R-7
<Gist :
>Head Note:
?Cases referred:
1.(2009) 6 SCC 372
2. AIR 1948 PC 128
3.(2000) 8 SCC 131
4.(2012) 6 SCC 228
THE HON'BLE SRI JUSTICE A. RAMALINGESWARA RAO
W.P.NO.7825 OF 2007
ORDER:-
This Writ Petition was filed seeking a direction to the Respondent Nos.1 to 3 to
file charge sheet in Cr.No.166 of 2003 of Begumpet Police Station forthwith and
proceed against the Respondents in accordance with law.
02. It is the case of the Petitioner that in respect of an incident alleged to
have occurred on 09-08-2002 due to involvement of Respondent Nos.4, 9 and
others, the Petitioner lodged a complaint on 14-09-2002 in Begumpet Police
Station. When no action was taken on the said complaint, she filed W.P.No.25085
of 2002 and the same was disposed of by this court on 12-08-2003 recording the
representation of the Respondents that case was registered and investigation was
almost nearing completion. This court while disposing of the Writ Petition
directed the Respondent Nos.2 and 3 therein to take such steps as are required
in law to carry the matter further. Even though Cr.No.166 of 2003 was registered
and investigation was completed, when no steps were taken for filing charge
sheet the present Writ Petition was filed narrating the incidents leading to the
registration of complaint.
03. A counter-affidavit was filed by the 4th Respondent denying the
allegations in the affidavit filed by the Petitioner and stating that with
regard to incident that took place on 09-08-2002, a report was given to the
Deputy Commissioner of Police only on 28-11-2002 and it was registered in
Begumpet Police Station only on 25-04-2003 under Sections.448, 323, 380 and 506
of IPC. Certain counter allegations were made against the Petitioner which are
not necessary for disposal of the present case.
04. Heard the learned counsel for the Petitioner, the learned Government
Pleader for Home for Respondent Nos.1 to 3, Sri O.Manohar
Reddy, learned counsel for R-4 and Sri B.Vijaysen Reddy, learned counsel for
Respondent No.7.
05. This case was admitted on 17-04-2007. On 23-06-2011, the learned counsel
for the Petitioner was permitted to take out personal notice to Respondent
Nos.5,6,8 and 9 failing which it was ordered that the Writ Petition would stand
dismissed as against them. Since no steps were taken by the Petitioner, the Writ
Petition was dismissed as against Respondent Nos.5,6,8 and 9. As Respondent
Nos.1 to 3 did not file any counter-affidavit even after six years, the learned
Government Pleader for Home was directed to inform this Court with regard to the
latest position in respect of Cr.No.166 of 2003 and the learned Assistant
Government Pleader for Home produced a letter of the Inspector of Police, CID,
GHR, Hyderabad addressed to the learned Government Pleader for Home. The
relevant portion of the said letter reads as follows:
"The investigation in this case is completed, but the charge sheet has not
been filed in this case, due to pending of prosecution sanction orders from the
Govt. against A5 Smt.Tejdeep Kaur Menon, IPS, and A-8 Sri
Kakarala Srinivas, PC-8554, CAR Hqrs, Hyderabad, since 2009. The accused A1 to
A4 was arrested on 25-04-2007 and released on bail as per the orders of the
Hon'ble High Court of A.P., and the accused A6 and A7 are yet to be arrested.
The quash petition filed by the A3 and A4 vide Crl.P.No.5669 of 2011 in
the Hon'ble High Court of A.P., is pending for admission. The counter was
submitted to the PP Office and the matter was last listed on 28-10-2013 but not
reached".
06. In view of the stand taken by the investigation officers that the Charge-
sheet could not be filed in view of the pendency of sanction proceedings, it is
necessary to consider the position relating to sanction only for the purpose of
prima facie examination of tenability of such stand. Sec.197 of Code of Criminal
Procedure,1973 reads as follows:
"197. Prosecution of Judges and public servants.-- (2) 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 who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the
time of commission of the alleged offence employed, in connection with the
affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in
clause (b) during the period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in a State, clause (b) will apply
as if for the expression "State Government" occurring therein, the expression
"Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed
by any member of the Armed Forces of the Union whole acting or purporting to act
in the discharge of his official duty, except with the previous sanction of the
Central Government.
(3) The State Government may, by notification, direct that the provisions of
sub-section (2) shall apply to such class or category of the members of the
Forces charged with the maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions of that sub-section
will apply as if for the expression "Central Government" occurring therein, the
expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no Court shall take
cognizance of any offence, alleged to have been committed by any member of the
Forces charged with the maintenance of public order in a State while acting or
purporting to act in the discharge of his official duty during the period while
a Proclamation issued under clause (1) of article 356 of the Constitution was in
force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any
other law, it is hereby declared that any sanction accorded by the State
Government or any cognizance taken by a Court upon such sanction, during the
period commencing on the 20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991, receives the assent of the President, with respect to an
offence alleged to have been committed during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution was in force in the
State, shall be invalid and it shall be competent for the Central Government in
such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government 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.
A reading of the above provision makes it clear that the court shall not take
cognizance of an offence against the class of persons mentioned in the above
Section when they are accused of any offence alleged to have been committed by
them while acting or purporting to act in the discharge of their official duty
unless previous sanction of the concerned Government is obtained. The section
gives protection against irresponsible, frivolous or vexatious proceedings for
acts done in discharge of official duty and does not extend to every act or
omission done by a public servant in service. The said protection is not
available to the public servant if the act complained of is not in connection
with the discharge of his duty or in excess of his duty.
The requirement of
sanction has to be gathered from the allegations in the complaint. Dealing with
the scope of said section, a 3 Judge Bench of the Supreme Court
in State of U.P. Vs. Paras Nath Singh(1) extensively quoted from another
decision as follows:
"The Section falls in the chapter dealing with conditions requisite for
initiation of proceedings. That is if the conditions mentioned are not made out
or are absent then no prosecution can be set into motion. For instance no
prosecution can be initiated in a Court of Session under Section 193, as it
cannot take cognizance, as a court of original jurisdiction, of any offence
unless the case has been committed to it by a Magistrate or the Code expressly
provides for it. And the jurisdiction of a Magistrate to take cognizance of any
offence is provided by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information received from any person
other than police officer, or upon his knowledge that such offence has been
committed. So far as public servants are concerned the cognizance of any
offence, by any court, is barred by Section 197 of the Code unless sanction is
obtained from the appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The Section not only specifies
the persons to whom the protection is afforded but it also specifies the
conditions and circumstances in which it shall be available and the effect in
law if the conditions are satisfied. The mandatory character of the protection
afforded to a public servant is brought out by the expression, 'no court shall
take cognizance of such offence except with the previous sanction'. Use of the
words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of
power of the court to take cognizance of any offence is absolute and complete.
Very cognizance is barred. That is the complaint cannot be taken notice of.
According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction'
or 'the exercise of jurisdiction' or 'power to try and determine causes'. In
common parlance it means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising jurisdiction if it
is in respect of a public servant who is accused of an offence alleged to have
committed during discharge of his official duty.
Such being the nature of the provision the question is how should the
expression, 'any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty', be understood? What
does it mean? 'Official' according to dictionary, means pertaining to an office,
and official act or official duty means an act or duty done by an officer in his
official capacity.
In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 177) it was
held :(SCC pp.184-85 para 17)
"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 in Section
197(1) of the Code, are capable of a narrow as well as a wide interpretation. If
these words are construed too narrowly, the section will be rendered altogether
sterile, for, 'it is no part of an official duty to commit an offence, and never
can be'. In the wider sense, these words will take under their umbrella every
act constituting an offence, committed in the course of the same transaction in
which the official duty is performed or purports to be performed. The right
approach to the import of these words lies between two extremes. While on the
one hand, it is not every offence committed by a public servant while engaged in
the performance of his official duty, which is entitled to the protection of
Section 197(1), an Act constituting an offence, directly and reasonably
connected with his official duty will require sanction for prosecution and the
said provision."
Use of the expression, 'official duty' implies that the act or omission must
have been done by the public in the course of his service and that it should
have been in discharge of his duty. The Section does not extend its protective
cover to every act or mission done by a public servant in service but restricts
its scope of operation to only those acts or omissions which are done by a
public servant in discharge of official duty.
It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty. That is under
the colour of office. Official duty therefore implies that the act or omission
must have been done by the public servant in course of his service and such act
or omission must have been performed as part of duty which further must have
been official in nature. The Section has, thus, to be construed strictly, while
determining its applicability to any act or omission in course of service. Its
operation has to be limited to those duties which are discharged in course of
duty. But once any act or omission has been found to have been committed by a
public servant in discharge of his duty then it must be given liberal and wide
construction so far its official nature is concerned. For instance a public
servant is not entitled to indulge in criminal activities. To that extent the
Section has to be construed narrowly and in a restricted manner. But once it is
established that act or omission was done by the public servant while
discharging his duty then the scope of its being official should be construed so
as to advance the objective of the Section in favour of the public servant.
Otherwise the entire purpose of affording protection to a public servant without
sanction shall stand frustrated. For instance a police officer in discharge of
duty may have to use force which may be an offence for the prosecution of which
the sanction may be necessary. But if the same officer commits an act in course
of service but not in discharge of his duty then the bar under Section 197 of
the Code is not attracted. To what extent an act or omission performed by a
public servant in discharge of his duty can be deemed to be official was
explained by this Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) thus"
"The offence alleged to have been committed (by the accused) must have something
to do, or must be related in some manner with the discharge of official duty ...
there must be a reasonable connection between the act and the discharge of
official duty the act must bear such relation to the duty that the accused could
lay a reasonable (claim) but not a pretended or fanciful claim, that he did it
in the course of the performance of his duty."
If on facts, therefore, it is prima facie found that the act or omission for
which the accused was charged had reasonable connection with discharge of his
duty then the act must be held as official to which applicability of Section 197
of the Code cannot be disputed.
In S.A. Venkataraman v. The State (AIR 1958 SC 107) and in C. R. Bansi v. The
State of Maharashtra (1970 (3) SCC 537) this Court has held that:
"There is nothing in the words used in Section 6(1) to even remotely suggest
that previous sanction was necessary before a court could take cognizance of the
offences mentioned therein in-the case of a person who had ceased to be a public
servant at the time the court was asked to take cognizance, although he had been
such a person at the time the offence was committed."
That apart, the contention of the respondent that for offences under Sections
406 and 409 read with Section 120-B of IPC sanction under Section 197 of the
Code is a condition precedent for launching the prosecution is equally
fallacious. This Court has stated the legal position in S.R. Munnipalli v.
Bombay (1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu (1955 RD-SC 9) that
it is not every offence committed by a public servant, which requires sanction
for prosecution under Section 197 of the Code, nor even every act done by him
while he is actually engaged in the performance of his official duties.
Following the above legal position it was held in Harihar Prasad, etc. v. State
of Bihar (1972 (3) SCC 89) as follows:
"As far as the offence of criminal conspiracy punishable under Section 120-8,
read with Section 409, Indian Penal Code is concerned and also Section 5(2) of
the Prevention of Corruption Act is concerned, they cannot be said to be of the
nature mentioned in Section 197 of the Code of Criminal Procedure. To put it
shortly, it is no part of the duty of a public servant, while discharging his
official duties, to enter into a criminal conspiracy or to indulge in criminal
misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure
is, therefore, no bar."
Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC
690). Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that
case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will
etc; forgery for purpose of cheating and using as genuine a forged document
respectively. It is no part of the duty of a public servant while discharging
his official duties to commit forgery of the type covered by the aforesaid
offences. Want of sanction under Section 197 of the Code is, therefore, no bar."
This position was highlighted in State of H.P. v. M.P. Gupta (2004 (2) SCC 349)"
07. In the instant case, Crime No.166 of 2003 was registered under Sections
448 (house-trespass), 323 (voluntarily causing hurt), 380 (theft in dwelling
house) and 506 (criminal intimidation) IPC. A perusal of the allegations in the
complaint against Respondent No.4 prima facie disclose that they do not relate
to the discharge of the official duties by the
4th Respondent and hence no sanction is required in the circumstances of the
case. It was well settled in H.H.B.Gill Vs. The King(2) that a public servant
can only be said to act or to 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
action of Police Officer in committing trespass into the floor mill of the
complainant by breaking open the lock, removing the sign-board and a motor was
held to be no part of their duty, actual or purported even if the property has
been acquired for the purpose of Police Station. (State of Maharashtra & Ors.
Vs. Jan Ali Mohammed Shafi, 1990 (1) Crimes 203). The Supreme Court in P.P.
Unnikrishnan Vs. Puttiyottil Alikutty(3) also considered the position and held
as follows:
"Even under Section 197 of the Code no protection has been granted to public
servants for the type of acts alleged in the case against the appellants.
Decisions are a legion relating to the scope of the protection under Section
197(1) of the Code. In Matajog Dobey Vs. H.C. Bhari {1955 (2) SCR 925} this
Court made a slight deviation from the view adopted by the Judicial Committee of
the Privy Council in Gill case (1948 Law Reports 75). This Court after
referring to earlier decisions summed up the scope of Section 197(1) of the Code
thus:
"There must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did it in
the course of the performance of his duty."
While following the said decision this Court has found, on a subsequent
occasion, that a superior officer who assaulted his subordinate for defying his
orders could not be said to have acted in the course of performance of his duty,
(vide Pukhraj vs. State of Rajasthan and Anr. {1974 (1) SCR 559}.
If a police officer dealing with law and order duty uses force against unruly
persons, either in his own defence or in defence of others and exceeds such
right it may amount to an offence. But such offence might fall within the
amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act.
But if a police officer assaults a prisoner inside a lock-up he cannot claim
such act to be connected with the discharge of his authority or exercise of his
duty unless he establishes that he did such acts in his defence or in defence of
others or any property. Similarly, if a police officer wrongfully confines a
person in the lock-up beyond a period of 24 hours without the sanction of a
magistrate or an order of a court it would be an offence for which he cannot
claim any protection in the normal course, nor can he claim that such act was
done in exercise of his official duty. A policeman keeping a person in the lock-
up for more than 24 hours without authority is not merely abusing his duty but
his act would be quite outside the contours of his duty or authority.
In a recent decision of the Supreme Court in General Officer Commanding
Rashtriya Rifles Vs. Central Bureau of Investigation and Another(4) the position
relating to sanction for prosecution under the provisions of the Code of
Criminal Procedure, Prevention of Corruption Act and the Armed forces (Special
Powers) Act,1990 has been discussed at length. As already stated, the crime is
registered under Sections 448, 323, 380 and 506 IPC and the acts complained of
prima facie cannot be held to be in discharge of official duty. Hence no
sanction is prima facie required and the competent authority can file charge
sheet before the competent criminal court. The filing of charge sheet under
Sec.173 Cr.P.C. precedes the act of taking cognizance by the Magistrate under
Sec.190 Cr.P.C. and need not wait for sanction orders, if at all required.
Sec.173 of Cr.P.C. says that every investigation shall be completed without
unnecessary delay and as soon as it is completed, the officer-in-charge of the
police station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report. But enormous delay has been caused in filing the
charge-sheet.
08. This is one of the cases where the citizen is unable to set the criminal
law in motion in spite of clear mandate of law, due to one reason or other. The
Petitioner has to approach this Court earlier for getting her complaint
registered and inspite of this court's direction to take further steps
consequent to registration of crime and completion of investigation, expeditious
steps have not been taken. Though the investigation was completed long back, the
filing of charge-sheet was held up on untenable ground of sanction merely
because of the involvement of public servants. It is 11 years since the
complaint was lodged. The journey to justice through the process of law should
be swift and secure. The citizen should not have the feeling that it is
difficult to proceed against public servants even if they exceed their powers or
misuse their powers. When the law treats every one as equal, the law
enforcement agencies should not treat some as more exceptional.
09. In the facts and circumstances of this case, it is not necessary for this
court to go into merits of the case and views expressed herein either on
sanction or on other matters should not be construed as expressing any opinion
on the merits of the case and the parties are at liberty to take all defences
available to them under law before the competent court. It is sufficient if a
direction is given to the Respondent Nos.1 and 2 to issue instructions to the
concerned officer to file a charge sheet within one (1) week from the date of
receipt of a copy of this order since investigation was completed in 2009
itself. The Writ Petition is liable to be allowed.
Accordingly, the Writ Petition is allowed. No costs.
_________________________
A.RAMALINGESWARA RAO,J
06-12-2013
Comments
Post a Comment