Balbir Singh Delhi Admn. Delhi Vs.
D.N. Kadian, M.M. Delhi & ANR D.N. Kadian & Ors [1985] INSC 247 (10
December 1985)
RAY, B.C. (J) RAY, B.C. (J) SEN, A.P. (J)
CITATION: 1986 AIR 345 1985 SCR Supl. (3) 812
1986 SCC (1) 410 1985 SCALE (2)1258
ACT:
Code of Criminal Procedure, 1973, s. 197(3) -
Prosecution of member of Delhi Police Force - Prior sanction of the Government
- Whether necessary and if so, when.
HEADNOTE:
A Complaint was filed by the Special Railway
Magistrate against the appellants, Balbir Singh and Ram Shankar, members of
Delhi Police Force, alleging that the Search Memos which were signed by the
sub-Inspector Balbir Singh did not bear any signature of the witness Ram
Shankar at the time when the said Search memos were in the custody of the Court
and that they were interpolated subsequently by getting the same signed by the
accused, Ram Shankar. The appellants contended before the Trial Court that the
aforesaid complaint was not maintainable since prior sanction as required by s.
197(3) Cr.P.C. was not obtained by the complainant to prosecute them. The trial
court rejected the contention and the High Court confirmed the same in appeal
by the appellants. The High Court, however, held that the Notification No.
F.10/77/78-HP-II dated 7th April 1980 issued by the Lt. Governor directing that
the provisions of sub-s.(2) of s. 197 "shall apply to serving police
officials of all ranks of Delhi Police Force" charged with the maintenance
of public order, was bad in law as the Lt. Governor had no authority to issue
the said Notification under sub-s.(3) of s. 197 Cr.P.C.
Allowing Criminal Appeal No. 845/85 partly
and dismissing the other appeal, ^
HELD: 1(i) The Judgment and order of the High
Court declaring the impugned notification dated 7th April 1980 issued by the
Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate
is directed to proceed with the case in accordance with law. [817 F] (ii) By
virtue of the Notification No. S.O.183(E) dated 20th March 1974, the President
empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to
exercise the 813 powers and functions of the State Government as provided in
the Code of Criminal Procedure except the powers and functions provided in
sections 8 and 477 of the said Act.
The Notification dated 7th April 1980 issued
by the Lt.
Governor was made in exercise of powers
conferred upon him under sub-section (3) of Sec. 197 of the Code of Criminal
Procedure read with the Government of India Notification dated March 20, 1974
mentioned before. Therefore, the Notification is not ultra vires the
Constitution. [815 D-E]
2. Reading the two notifications together, it
is crystal clear that to start a proceeding against the member of all ranks of
Delhi Police Officials in a Criminal Court, previous sanction of the Lt.
Governor is imperative, provided the offence alleged to have been committed by
such members of the Delhi Police Force has been committed while acting or
purporting to act in discharge of their official duty. [815 F] In the instant
case, the previous sanction of the Lt.
Governor as provided in Section 197 (3)
Criminal Procedure Code was, not at all necessary for initiating the
proceedings against the two appellants, since the act of tampering of the
Search Memos by them cannot be said to have been done in discharge of their
official duties inasmuch as the said Search Memos were in the custody of the
Court. [817 E-F] Matajog Dobey v. H.C. Bhari, [1955] 2 S.C.R. 925;
Pukhraj v. State of Rajasthan & Anr.,
[1973] 2 S.C.C. 701;
Bhagwan prasad Srivastava v. N.P.Misra,
[1971] 1 S.C.R. 317 and Darshan Kumar v. Sushil Malhotra & Ors. .1980 Crl.
L.J. 154 relied upon.
Bhikhaji Vaghaji v. L.K. Barot and Ors., 1982
Cr. L.J.
2014 approved.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
844-845 of 1985.
From the Judgment and Order dated 1.12.1982
of the Delhi High Court in Crl. Misc. (Main) No. 551 of 1982.
Anil Deo Singh, R.N. Poddar and P.K.
Mukharjee for the Appellants.
Anil Kumar Gupta, Amicus Curiae for the
Respondents.
The Judgment of the Court was delivered by
814 B.C.RAY, J. The only question involved in these two appeals is whether the
criminal proceedings initiated against the appellants, i.e. Balbir Singh
Sub-Inspector and Ram Shanker, Constable of Delhi Police Force is maintainable
in the absence of any prior sanction obtained from the Lt.
Governor as required under s.197 (3) of the
Code of Criminal Procedure.
Section 197(1) of the Code of Criminal
Procedure envisages that no court can take cognizance of any offence alleged to
have been committed by a Judge or Magistrate or a public servant while acting
or purporting to act in the discharge of his official duty without previous
sanction of the Government. Sub-section (2) of that Section further provides that
no court shall take cognizance of any offence alleged to have been committed by
any member of the Armed Forces of the Union while acting or purporting to act
in discharge of his official duty, without obtaining the prior sanction of the
Central Government. Sub-section (3) of the said Section further provides that
the State Government may by notification direct that the provisions of
Sub-section (2) shall apply, to such class or category of members of the Forces
charged with the maintenance of public order as may be specified in the said
order, and upon such notification being made, the provisions of Sub-section (2)
will apply as if for the expression "Central Government" occurring
therein, the expression "State Government were substituted.
The appellants are undoubtedly the members of
Delhi Police Force. It is also not in dispute that these appellants do not fall
within the category of officers mentioned in Sub-Section (1) of Sec. 197 of
Criminal Procedure Code and as such no prior sanction of the Government is
necessary in order to launch a prosecution against these officers. The only
question remains to be considered is whether the appellants being members of
the Delhi Police Force are entitled to get the benefit of Sub- Section (3) of
Section 197 of Criminal Procedure Code by virtue of the notification No. S.O.
183(E) dated 20th March, 1974 issued by the Under Secretary of India read with
the notification dated 7th April, 1980 issued by the Lt.
Governor, Delhi under No.F.10/77/78-HP-II.
Delhi is a Union Territory within the meaning of Article 1 read with the First
Schedule to the Constitution as amended by the Constitution (7th amendment) Act
1956. The power to administer the Union Territory is vested in the President
under Article 239 of the Constitution and Clause 1 of the said Article empowers
the President to administer the Union Territory through 815 and Administrator
to be appointed by him. The Administrator appointed by the President under Art.
239(1) of the Constitution with the designation of Lt. Governor of Delhi
derives only such powers, functions and duties as are entrusted to him by the
President under Art. 239(1). In accordance with the provisions of this Art
239(1) the aforesaid notification dated 20th March, 1974 has been made whereby
the President had directed that the Administrators of all the Union Territories
other than Arunachal Pradesh and Mizoram exercise, subject to the control of
the President, the powers and discharge the functions under the Code of
Criminal Procedure 1973 as mentioned in Schedule annexed thereto, subject to
the condition mentioned therein.
The said notification was enforced on 1st
April, 1974. In this Schedule all powers and functions of the State Government
except those conferred by Sections 8 and 477 of the Code were conferred on the
Administrator. Therefore, by virtue of this notification, the President
empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to
exercise the powers and functions of the State Government as provided in the
Code of Criminal Procedure except the powers and functions provided in Sections
8 and 477 of the said Act. It also appears from the notification dated 7th
April, 1980 that the Lt. Governor directed that the provisions of Sub-Section
(2) of Sec.197 "shall apply to serving police officials of all ranks of
Delhi Police Force" charged with the maintenance of public order. This
notification was made in exercise of powers conferred upon the administrator
under Sub Section (3) of Sec. 197 of the Code of Criminal Procedure read with
the Government of India Notification Dated March 20, 1974 mentioned before
Reading these two notifications together, it is crystal clear that to start a
proceeding against the members of all ranks of Deli Police Officials in a
Criminal Court, previous sanction of the Lt. Governor is imperative, provided
the offence alleged to have been committed by such members of the Delhi Police
Force has been committed while acting or purporting to act in discharge of
their official duty.
In the instant case the act of tampering of
the Search Memos by the two appellants i.e. Balbir Singh and Ram Shankar cannot
be said to have been done in discharge of their official duties inasmuch as the
said Search Memos were in the custody of the Court. The complaint was filed by
the Special Railway Magistrate alleging that Search Memos which were signed by
the Sub-Inspector Balbir Singh did not bear any signature of the witness Ram
Shankar at the time when the said Search Memos were in the custody of the
Court.
Subsequently, it has been interpolated by
getting the same signed by the accused Ram Shankar. This 816 act of tampering
and interfering with the records of the Court by the two petitioners by any
stretch of imagination cannot be said to have been done or purported to have
been done by the petitioners in discharge of their official duty.
It is pertinent to refer in this connection
to the decision of this Court in Matajog Dobey v. HC. Bhari, [1955] 2 S.C.R. 925,
where this Court laid down the scope of the protection afforded by Sec. 197 of
the Code of Criminal Procedure in the following terms :
"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." These observations have been followed by this Court in Pukhraj
v. State of Rajasthan & Anr., [1973] 2 S.C.C. 701.
In that case the Post Master General of
Rajasthan abused and kicked a Clerk of the Head Post Office when a clerk of the
Head Post Office of Jodhpur went to make some oral representations to the Post
Master General. The clerk filed a complaint against the Post Master General
under Sec.
323 and 504 I.P.C. before the Additional
Munsif Magistrate of Jodhpur city. An application was filed praying that no
cognizance of the offence would be taken without the sanction of the Government
under Sec. 197 of Criminal Procedure Code. It was held that the acts alleged
were not done in due discharge of his official duty and so no prior sanction of
the Government was necessary under Section 197 of the Code.
In Bhagwan Prasad Srivastava v. N.P. Misra,
[1971] 1 S.C.R. 317, the respondent filed a complaint alleging that the
appellant, a Civil Surgeon used defamatory and abusive words and got him pushed
out by the cook of the hospital. It was found that the case was not covered by
Sec. 197 of the said Act as those acts were not done in discharge of his
official duty.
In the case of Darshan Kumar v. Sushil Kumar
Malhotra & Ors., 1980 Cr. L.J. 154, it was found that the acts complained
of against Respondents Nos. 1,3 and 4 were purported to have been done by them
in discharge of their official duties and it was reasonably connected with
their official duties. As such it was held that prior sanction of the State
Government was necessary in prosecuting them in respect of the offence, if any,
made out from the commission of such acts.
817 As regards scope and ambit of Sec. 197(3)
of the Code of Criminal Procedure it has been rightly observed by the Division
Bench of the Gujarat High Court in Bhikhaji Vaghji v. L.K Barot and Ors. 1982
Cr. L.J. 2014, that after the issuance of the notification by the Government
under Sec.
197(3) of the Criminal Procedure Code
directing that the provisions of Sub-Sec.(2) of Sec. 197 shall apply to the
Police Officers charged with the maintenance of public order, the same could
not be questioned on the ground of non-application of mind as it is within the
scope and ambit of Sub-Sec. (3) of Sec. 197 of the Code. It was also observed
that :
"Before the protection of sub-sec.(2) of
Section 197 of the Code could be had and the proceedings are dropped on that
count, the learned Magistrate is under an obligation to decide that the alleged
acts attributed to the members of the police force are acts done in the
discharge of their official duties, or at any rate, they purport to be, or bear
the colour or semblance of, the acts that could be done in the discharge of
their official duties." We have already said that the alleged acts of
tampering the Search Memo while the same was in custody of the Court cannot be
deemed to be an act purported to have been done by these two appellants in
discharge of their official duties.
Therefore, the previous sanction of the Lt.
Governor as provided in Section 197(3) Criminal Procedure Code was, in our
considered opinion, not at all necessary for initiating the proceedings against
these two appellants, who are- members of the Delhi Police Force. For the
reasons stated hereinbefore the Appeal filed by the Delhi Administration
succeeds and is allowed and the Appeal filed by the accused is dismissed. The
Judgment and Order of the High Court declaring the impugned notification dated
7th April, 1980 issued by the Lt. Governor of Delhi to be ultra vires is set
aside and the learned Magistrate is directed to proceed with the case in
accordance with law.
We are thankful to Sri Anil Kumar Gupta for
the assistance he has rendered as Amicus Curiae.
M.L.A. Criminal Appeal 844/85 dismissed.
Criminal Appeal 845/85 partly allowed.
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