Prabhakar V. Sinari Vs. Shanker Anant
Verlekar [1968] INSC 303 (29 November 1968)
29/11/1968 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
CITATION: 1969 AIR 686 1969 SCR (2)1013
CITATOR INFO:
R 1970 SC1661 (6)
ACT:
Code of Criminal Procedure s. 197-Sanction
for prosecution of public servant-Police Officer interfering in dispute over
land and asking one party to take possession-Whether acts in discharge of
official duty.
HEADNOTE:
A private complaint was filed against the
appellant who was a Deputy Superintendent of Police. According to the statement
of the complainant there was a dispute between him and certain hawkers who
wanted to trespass on his land and at his instance the police was informed. The
appellant came to the spot, threatened and assaulted him, and suggested to the
hawkers to enter upon the load, whereupon the hawkers took possession of the
land. The Magistrate after recording the statement of the complainant issued
summons to the appellant and others for answering charges under ss. 149, 341, 342.
352, 500 and 504 of the Indian Penal Code read with s. 34 thereof. The
appellant filed a petition for revision under s. 435 Cr. P.C. before the
Sessions Judge in which the main point taken was that the previous sanction
under s. 197 Cr. P.C. required for the prosecution of the appellant had not
been obtained. The Sessions Judge ordered that the complainant be asked to
obtain the required sanction before prosecuting the appellant. But the judicial
Commissioner's Court ordered that the order of the Magistrate issuing the
summons be confirmed. In appeal to this Court by special leave,
HELD: The language of s. 197 Cr. P.C. clearly
is that no court can take cognizance of an offence alleged to have been
committed by any person belonging to the categories mentioned in the section
which would include the appellant when he is accused of an offence alleged to
have been committed by-him while acting or purporting to act in the discharge
of his official duty.
In the present case it was not clear in what
capacity the appellant came to the spot. On the basis of the statement of the
complainant it was not established that he came in the capacity of a police
officer.
Ordinarily if a person is in possession of
some property and other persons are threatening to dispossess him it is no part
of the duty of a police officer to take sides and decide the dispute in favour
of one party or the other or to force one natty to give up possession to the
other, even if he was satisfied that the party seeking to take possession was lawfully
entitled to do so. This the police officer could only do if there had been any
direction by a competent court for rendering help in the matter of delivery of
possession.
[In dismissing the appeal the Court observed
that it would be open to the appellant to establish during the course of
further proceedings that the requisite sanction under s. 197 must be obtained.]
Ronald Wood Mathams v. State of West Bengal, [1955] 1 S.C.R. 216, H.B. Gill v.
The ICing, 75 I.A. 41, Phanindra Chandra Neogv v. The King, 76 I.A. 10, Matalog
Dubey v. H.
C. Bhari, [1955] 2 S.C.R. 925, 1054 934,
Amrik Singh v. State of Pepsu, [1955] 1 S.C.R. 1302 and Nagraj v. State of
Mysore, [1964] 3 S.C.R. 671, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 152 of 1967.
Appeal by special leave from the judgment and
order dated November 19, 1966 of the Judicial Commissioner Court, Goa, Daman
and Diu in Criminal Reference No. 103, of 1966.
R.N. Sachthey, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by
Grover, J. The sole point for decision in this appeal by special leave is
whether a complaint which had been filed against the appellant and four other
persons by the respondent for various alleged offences could be entertained
without necessary sanction being obtained for the prosecution of the appellant,
who at the material time, was the Deputy Superintendent of Police, under s. 197
of the Criminal Procedure Code.
The original complaint is not before us as it
has not been included in the appeal record but the allegations contained
therein are given in the judgment of the learned Judicial Commissioner. The
complainant alleged that on March 5, 1966 at about 4 p.m. accused Nos. 2 to 5
who were hawkers by profession and some other persons attempted to trespass on
his land in Margao town with the intention of putting up stalls there. The
complainant having been threatened by them, sent his brother to the police
station.
The police came and asked the hawkers to keep
their handcarts at the place where they were kept before. Later on at about
5-30 p.m. the appellant came to the spot and spoke to the complainant in a very
arrogant tone. The appellant informed the complainant that he was Deputy
Superintendent of Police and that he had in his possession documents which
proved that the land belonged to one Alma Ram. The appellant asked the
complainant to produce his documents of.
title but the complainant replied that those
documents had been produced by him in some litigation in the civil courts.
The appellant is then alleged to have
threatened the complainant that he would lock him up in case there was any
interference with what the hawkers Wanted to do. The appellant also beckoned
accused Nos. 2-5 and other hawkers to enter upon the land. When the complainant
protested he was warned by the appellant that if he talked he would be slapped.
The appellant also assaulted him. Thereafter the possession of the land was
taken over by the hawkers.
The magistrate to whom the complaint was presented
examined the complainant under s. 200, Criminal Procedure Code 1015 and issued
summons to answer the charges under ss. 149, 341, 342, 352, 500, 503 and 504
read with s. 34 against the appellant and other accused persons requiring them
to appear on April 19, 1966. The appellant filed a petition for revision under
s. 435 of the Code before the learned Sessions 'Judge in which the main point
taken was that the previous sanction under s. 197, Cr. P.C., to prosecute the
appellant was required which had not been obtained. The learned Sessions Judge
made an order recommending that the magistrate be directed to require the
complainant to obtain the requisite sanction before prosecuting the appellant.
This matter was heard by a bench consisting
of the Judicial Commissioner and the Additional Judicial Commissioner. The
Judicial Commissioner was of the view that there was no material on the record
to come to the conclusion that the acts complained of would be protected by the
provisions of s. 197(1) of the Code. The learned Additional Judicial
Commissioner took a contrary view and held that sanction was necessary. The
order of the court was that there being no third Judge to resolve the
difference of opinion, the order of the learned magistrate issuing the summons
be confirmed in terms of proviso to s. 7(2) of the Goa, Daman and Diu (Judicial
Commissioner's Court) Regulation, 1963.
It may be mentioned that in the statement
recorded under s. 200 of the Criminal Procedure Code, by the magistrate, the
complainant made more or less the same allegations as were made in the
complaint. According to the learned Additional Judicial Commissioner in the
statement made in court it was not affirmed that the complainant had been
wrongly retrained or confined nor was it mentioned that he was actually
assaulted in the sense that physical force was used against him. The worst that
could be said, according to the Additional Judicial Commissioner, was that the
appellant had warned the respondent that he would be arrested if he interfered
with the entry of the hawkers on the disputed land and that the appellant. also
made some gestures with the hand indicating threat of assault. In our opinion
it is not necessary to go into the allegations in the original complaint. It
would suffice to read the statement made by the complainant before the
magistrate which is reproduced below:
"I confirm the matter in my complaint.
On 5th instant, at about 4.00 p.m. the
accused Nos. 2 to 5 attempted to trespass upon my plot situated near the market
of this city with a view of setting upon thereon their mobile shops. I,
therefore, sent my brother to the Police, who came to the spot and sent the
vendors away. At about 5.30 p.m. on the same day Mr. Sinari, in civil dress
turned up at that place. At that time, I was sitting in the verandah of the
shop of one Kharan- 1016 gute situated at the same place. He called me near
him. Thereafter he asked me whether I knew him, to this I replied in the
affirmative. After this, he identified himself as Dy. Superintendent of Police
and threatened me that if I interfered with vendors he would arrest me..
Subsequently, he directed the vendors to enter my plot and warned me that he
should slap me on my face.
In case I oppose to this. He told me further
that he was dealing with the case, when I brought to his notice that my
documents were lying with the Municipality and with the Court. The same accused
made some gestures of threats of assault with hands. I kept myself mum in view
of this unusual attitude and the vendors' took possession of my pro- The
learned Judicial Commissioner as also the Additional Judicial Commissioner have
discussed the case law on the subject exhaustively and have also summarised the
principles deducible from the various pronouncements. It seems to us that there
is no difficulty in finding the true rule which has been laid down by numerous
decisions including those of the Privy Council, Federal Court and this Court.
It is only in the application of the settled rule that certain amount of
difficulty may be experienced owing to the peculiar facts of a particular case.
The language of s. 197, Cr. P. Code clearly is that no court can take
cognizance of an offence alleged to have been committed by any person belonging
to the categories mentioned in the section which would include the appellant
when he is accused of an offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty. This Court
observed in Ronald Wood Matham v. State of West Bengal(1) that the question
whether sanction under s. 197 was necessary for instituting proceedings on
charges of conspiracy and of bribery stood concluded by the decisions of the
Judicial Committee in H. H. B. Gill v. The King(2) and Phanindra Chandra Neogy
v. The King(3) and must be answered in the negative. so far as the appellant in
that case was concerned. After a full discussion of the case law the result was
stated in Matajog Dubey v.H.C. Bhari(4): 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." 76 I.A. 10. (4) [1955] 2 S.C.R, 925, 934, 1017 At an
earlier stage it had been observed that it did not matter if the acts exceeded
were strictly necessary for the discharge the duty. What had to be found out
was whether the act and the official duty were so inter-related that one could postulate
reasonably that it was done by the accused in the performance of the official
duty though possibly in excess of the needs and requirements of the situation.
In Amrik Singh v. State Pepsu(x), Venkatarama lyer J.
speaking for the Court summed up the result
of the various decisions on the subject and said that it was not every offence
committed by a public servant which required sanction for prosecution under s.
197(1) of the Code of Criminal Procedure nor even every act done by him while
he was actually engaged in the performance of his official duties. But if the
act complained of was 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 or not.
Reference may be made to Nagraj v. State of
Mysore(2) in which the appellant, a Sub-Inspector of Police, was committed to
Sessions Court for trial on a complaint that he and another person had severely
beaten one T and when he was forcibly taking him away and was requested by K to
excuse T he wantonly fired on two persons. Emphasis on the question of sanction
has been laid on the rule that the jurisdiction of the court to proceed with
the complaint emanates from the allegations made in the complaint and not from
what is alleged by the accused or what is finally established in the case as a
result of the evidence record- We are unable to agree with the learned
Additional judicial Commissioner that if the allegations of the complainant are
taken to be correct it was established that the appellant held out threats to
arrest the complainant or to give him a slap on his face in the discharge or
purported discharge of his duties. There are many matters on which there is
complete absence of any material or information.
In the first place it is not clear in what
capacity the appellant came to the spot. According to the complainant he sent
his brother to the police station because the hawkers were attempting to
trespass on his land. Normally it would be the office-in-charge of the police
station who would go to the spot to prevent any breach of peace or apprehended
breach of peace. Even if the appellant who was a superior officer could come to
prevent any ugly situation arising between the complainant and the hawkers. It
is not established that the appellant came in the capacity of a police officer.
On the contrary the necessary implication in the statement of the complain
[1955]:1 S.C.R.1302.
f2) 11964138.CR. 671.
1018 ant is that the appellant came in civil
dress, wanted the hawkers to be put in possession of the disputed plot and
actually directed them to enter the plot and warned the complainant that if he.
resisted he would be slapped in his face. Until some more material is placed on
the record it cannot be held that it was any part of the duty of the appellant
to ensure that the hawkers were put in possession of the disputed land. It may
be that the appellant was entitled to interfere and take proper steps if he
apprehended any breach of peace but there is nothing whatsoever in the
complainant's statement which would show that any such situation existed which
could justify interference by the appellant. Ordinarily if a person is in
possession of some property and other persons are threatening to dispossess him
it is no part of the duty of a police officer to take sides and decide the
dispute in favour of one party or the other or to force one party to give up
possession to the other, even if he was satisfied that the party seeking to
take possession was lawfully entitled to do so. This the police officer could
only do if there had been any direction by a competent court for rendering help
in the matter of delivery of possession.
Whatever way the matter is looked at we are
unable to hold on the basis of the allegations contained in the statement of
the complainant that the acts alleged against the appellant were such as could
be regarded to have been committed by him while acting or purporting to act in
the discharge of his official duties. It will be open to the appellant to
establish during the course of further proceedings that the requisite sanction
under s. 197 must be obtained; but at this stage we concur in the view of the
learned judicial Commissioner that no such sanction was necessary.
The appeal fails and it is dismissed.
G.C. Appeal. dismissed.
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