K.K.
Patel & ANR Vs. State of Gujarat & ANR [2000] INSC 348 (12 May 2000)
K.T.
THOMAS & D.P. MOHAPATRA
Thomas
J.
Leave
granted.
L.I.T.J
This case is policeman versus policeman. For six years now the case is still
drifting in the first phase itself, as its very right of entry into the
criminal court is under challenge. The Sessions Court in revisional proceedings
upheld the objections raised by the accused that prosecution is not
maintainable but the High Court in a second revision held that sessions court
had transgressed the jurisdiction as no revisional powers could have been
exercised by the Sessions Judge at that stage. It is the said decision of the
Division Bench of the High Court of Gujarat which is being challenged in this
appeal.
A
Deputy Superintendent of Police (for convenience he can be referred to
hereinafter as "the respondent-police officer) filed a complaint before
the Metropolitan Magistrate, Ahmedabad, against two other police officers one
of whom was a Superintendent of Police and the other was a Deputy
Superintendent of Police. (They will hereinafter be referred to as "the
appellants".) The offences alleged against the appellants in the complaint
are those under Sections 166, 167, 176, 201, 219, 220, 342, 417 of the Indian
Penal Code (IPC for short) read with Sections 120B, 34 and 109 of the same
Code. The offence under Section 147(G) of the Bombay Police Act is also
included in the complaint.
A
brief account of the events which preceded the filing of the said complaint is
necessary. On 24.8.1992, one Jaffer Khan lodged a complaint with the magistrate
alleging that his brother (Jahangir Khan) was kidnapped by some persons named
in the complaint. The magistrate forwarded the said complaint to the police for
action under Section 156(3) of the Code of Criminal Procedure (hereinafter
referred to as "the Code") and then FIR was registered on its basis.
The respondent-police officer was arrested by the appellants on 28.8.1992, but
the alleged kidnapped person (Jahangir Khan) appeared before all people
concerned.
Respondent-police
officer was later released on bail. After investigation the police submitted
"final report" on 3.3.1994 holding that the accused are untraceable
and requested the court to grant "A" Summary (which means that the
complaint could not be substantiated due to want of proof). But the court after
hearing the respondent-police officer also in the matter, passed an order
granting "B" Summary, (which means that the complaint was found
false).
It was
in the above background that the respondent-police officer filed the present
complaint on 25.7.1994.
The
present complaint runs into more than 70 typed pages and has been prepared in a
flummoxed fashion. It is very clumsily prepared. It was difficult even for the
learned counsel appearing for the respondent-police officer to decipher the
lengthy sentences as well as circumlocuted paragraphs. Nonetheless he found out
the core allegations in the complaint which is extracted below:
"The
conspiracy has been made by making false complaint and I have illegally been
arrested in which accused No.1 and 2 have helped since they were in crime
branch since long period and having relation with Muslim
politicians/leaders/anti social elements and having good relations with them
and to get their help in continuing in the crime branch and in view of their
other weaknesses and under political pressure to please the Muslim leaders and
in doing so, getting benefit inter se, have played main role in arresting us
and in making ex parte inquiry against me which would become clear from perusal
of all the aforesaid facts and the grounds. Investigating Officer cannot make
such illegal ex parte inquiry under political or other pressure or for any
other cause for illegally arresting by misusing the power under the pretext of
law and though the complaint was going to be proved wrong, ultimately, instead
of "B" Summary, "A" Summary has been prayed for and for
preventing repetition of such things in future, the accused should be severely
dealt with to set example in the interest of justice and I am filing this
complaint only for the sake of justice and therefore, it is prayed that the
accused be strictly and severally dealt with. Otherwise, when a Class I Police
Officer has been dealt with in this fashion and has been arrested in this
manner, there would be nothing like safety of any common subject or
citizen." The Metropolitan Magistrate after taking the sworn statement of
the respondent-police officer took cognizance of the aforesaid offences and
issued process to the appellants. On appearance before the Metropolitan
Magistrate appellants filed a petition for discharging them on the premise that
no sanction was obtained to prosecute them. The Metropolitan Magistrate dismissed
the said petition on 17.5.1997 with a rider that "appropriate decision
regarding prior sanction shall be taken on merits after considering the
evidence that may be produced by the parties". (The Metropolitan
Magistrate of Ahmedabad has written one of the lengthiest and tautologous
orders running into 114 closely typed pages just for reaching the above
conclusion. We are unable to appreciate how the heavily boarded courts like the
Metropolitan Magistrate's court or a city court could afford writing such fritteringly
lengthy orders just for concluding that the questions raised can be considered
at a later stage).
Appellants
filed a revision before the Sessions Court and in the revision the appellants
raised one more additional point based on Section 161(1) of the Bombay Police
Act which was made applicable to the State of Gujarat. As per that section no complaint could be filed after one
year of the date of the act complained of in respect of offences falling within
the purview of that sub- section. By a well considered order learned Additional
Sessions Judge of Ahmedabad (V.N. Yagnik) upheld the objections on both counts,
one based on Section 197 of the Code and the other on Section 161(1) of the
Bombay Police Act. Consequently the process issued by the trial court was
quashed and the complaint itself stood dismissed.
Learned
Single Judge of the High Curt of Gujarat in the revision moved by the
respondent-police officer set aside the judgment of the Additional Sessions
Judge mainly on the ground that Sessions Court should not have entertained the
revision at all as the order challenged before it was only interlocutory. What
the learned Single Judge has stated on that point is the following:
"The
order dated 17th May
1997, made by the
learned Magistrate did not conclude the issue raised before him and, therefore,
was necessarily an interlocutory order. In view of the provisions contained in
Section 397(2) CRPC a revision against the said order would not be
maintainable.
In my
view, therefore, the Revision Application No.198/97 preferred before the
learned Additional Sessions Judge was not maintainable. The learned Additional
Sessions Judge has thus transgressed her jurisdiction in entertaining and
allowing the said Revision Application." However, learned Single Judge
opined that the Metropolitan Magistrate was right in holding that further
evidence is required to decide the question relating to Section 197 of the
Code, regarding the objections pertaining to Section 161(1) of the Bombay
Police Act. The learned Single Judge made following observations:
"The
question of limitation under Section 161 of the Bombay Police Act was never
raised before the learned Magistrate. It was, therefore, not open to the
accused to raise the said contention before the learned Additional Sessions
Judge and the learned Additional Sessions Judge in entertaining and deciding
the said issue has clearly transgressed her jurisdiction." Merely because
the appellants did not raise the legal points based on Section 161 of the
Bombay Police Act before the Metropolitan Magistrate they are not estopped from
canvassing on that additional grounds also before the Sessions Court in
revision as they were challenging therein the very issuance of process against
them. The position may be different if the Sessions Judge had avoided dealing
with the contention based on Section 161(1) of the said Act on the premise that
it could be raised before the trial court.
But
when the Sessions Judge had opted to go into that question and rendered a
decision on it on merits it is difficult to concur with the reasoning of the
High Court that the said aspect would not be gone into by the High Court as the
same was not raised before the trial court.
That
apart, the view of the learned Single Judge of the High Court that no revision
was maintainable on account of the bar contained in Section 397(2) of the Code,
is clearly erroneous. It is now well neigh settled that in deciding whether an
order challenged is interlocutory or not as for Section 397(2) of the Code, the
sole test is not whether such order was passed during the interim stage. {vide Amar
Nath vs. State of Haryana (1977 4 SCC 137); Madhu Limaye vs.
State of Maharashtra (1977 4 SCC 551); V.C. Shukla vs.
State through CBI (1980 2 SCR 380); and Rajendra Kumar Sitaram Pande vs. Uttam(1999
3 SCC 134)}. The feasible test is whether by upholding the objections raised by
a party, would it result in culminating the proceedings, if so any order passed
on such objections would not be merely interlocutory in nature as envisaged in
Section 397(2) of the Code. In the present case, if the objection raised by the
appellants were upheld by the court the entire prosecution proceedings would
have been terminated. Hence, as per the said standard, the order was revisable.
Therefore,
the High Court went wrong in holding that the order impugned before the
Sessions Court was not revisable in view of the bar contained in Section 397(2)
of the Code.
Though
learned counsel for the appellants endeavoured to contend that want of sanction
of the Government is a bar under Section 197 of the Code for taking cognizance
of the offences, we do not consider it necessary to delve into that part of the
contention in view of our conclusion regarding Section 161(1) of the Bombay
Police Act. The said sub-section is extracted below:
"161.
Suits or prosecutions in respect of acts done under colour of duty as aforesaid
- not to be entertained, or to be dismissed if not instituted within the
prescribed period.- (1) In any case of alleged offence by the Commissioner, the
Revenue Commissioner, the Commissioner, a Magistrate, Police officer or other
person, or of a wrong alleged to have been done by such Commissioner, such
Revenue Commissioner, Commissioner, Magistrate, Police officer or other person
by any act done under colour or in excess of any such duty or authority as
aforesaid or wherein, it shall appeal to the Court that the offence or wrong if
committed or done was of the character aforesaid, the prosecution or suit shall
not be entertained, or shall be dismissed, if instituted, more than one year
after the date of the act complained of.
Provided
that, any such prosecution against a Police Officer may be entertained by the
Court, if instituted with the previous sanction of the State Government within
two years from the date of the offence." The sub-section imposed a ban on
the court from entertaining a prosecution for an offence falling within the
purview of the sub-section and was committed by a police officer, if the
prosecution was instituted more than one year after the date of the act
complained of. The only exception to the said ban is, if the complainant gets
sanction from the State Government to prosecute the police officer the
aforesaid period of one year would get enlarged to two years. Offences falling within
the purview of the sub-section relate to those acts done "under the colour
or in excess of any duty or authority as aforesaid". The sub- section then
widens the net a little further by bringing within its sweep those offences
committed through any acts done which are "of the character
aforesaid". The expression "aforesaid" in the sub-section is
evidently with reference to what is mentioned in Sections 159 and 160 of the
same enactment. Those provisions afford an absolute immunity to a public
servant from any penalty or liability to pay damages in respect of any
"act done in good faith" in pursuance of or intended pursuance of
"any duty imposed or any authority conferred on him by any provision of
this Act or any other law for the time being in force or any rule, order or
direction made or given thereunder". Such absolute immunity is not
afforded in respect of any offence or wrong alleged to have been done by such
public servant, if it was done "under colour or in excess of any such duty
or authority as aforesaid". Nonetheless the said statute has fixed a time
limit for initiation of prosecution proceedings in such cases against the
public servant. If prosecution proceedings were not initiated within such time
limit, they cannot be commenced thereafter.
A
three Judge Bench of this Court in Virupaxappa Veerappa Kadampur vs. State of Mysore
(AIR 1963 SC 849) has considered the amplitude of the expression "under
the colour of any duty or authority" as envisaged in the sub- section.
After
making reference to some of the earlier decisions rendered by the Bombay High
Court and after noticing the meaning of the expression "colour of
office" given in Law lexicons, learned Judges observed thus:
"Whether
or not when the act bears the true colour of the office or duty or right, the
act may be said to be done under colour of that right, office or duty, it is
clear that when the colour is assumed as a cover or a cloak for something which
cannot properly be done in performance of the duty or in exercise of the right
or office, the act is said to be done under colour of the office or duty or
right.
It is
reasonable to think that the legislature used the words `under colour' in S.161(1)
to include this sense.
.......
It appears to us that the words `under colour of duty' have been used in S.161(1)
to include acts done under the cloak of duty, even though not by virtue of the
duty.
When
he (the police officer) prepares a false Panchnama or a false report he is
clearly using the existence of his legal duty as a cloak for his corrupt action
or to use the words in Stroud's Dictionary `as a veil to his falsehood.' The
acts thus done in dereliction of his duty must be held to have been done under colour
of the duty." In this case, there is no scope for contending that the
offences alleged would not fall within the purview of "acts done under the
colour or in excess of duty or authority" of such police officer. Even the
very reading of the ingredients for the offences alleged would show that such
offences could not be committed without being in the cloak of a public servant
nor could they be committed unless the public servant was at least under the colour
of his office.
Section
166 of the Indian Penal Code which is one of the offences alleged against the
complainant is extracted below:
"166.Public
servant disobeying law, with intent to cause injury to any person.- Whoever,
being a public servant, knowingly disobeys any direction of the law as to the
way in which he is to conduct himself as such public servant, intending to
cause, or knowing it to be likely that he will, by such disobedience, cause
injury to any person, shall be punished with simple imprisonment for a term
which may extend to one year, or with fine, or with both." The
indispensable ingredient of the said offence is that the offender should have
done the act "being a public servant". The next ingredient close to
its heels is that such public servant has acted in disobedience of any legal
direction concerning the way in which he should have conducted as such public
servant. For the offences under Sections 167 and 219 of IPC the pivotal
ingredient is the same as for the offence under Section 166 of IPC. The
remaining offences alleged in the complaint, in the light of the averments made
therein, are ancillary offences to the above and all the offences are parts of
the same transaction. They could not have been committed without there being at
least the colour of the office or authority which appellants held.
Shri
S.K. Dholakia, learned senior counsel for the State of Gujarat invited our attention to the
decisions of this Court in State of Maharashtra vs. Narhar Rao (AIR 1966 SC 1783) and State of Maharashtra vs. Ram and Ors. (AIR 1966 SC
1786). Both the decisions dealt with the scope of Section 161 of the Bombay
Police Act. In the former, a Police Head Constable was tried for the offence
under Section 5(2) of the Prevention of Corruption Act 1947, for accepting
bribe in the course of investigating a criminal case. Though the trial court
convicted him of the offence the High Court acquitted him in appeal on the
ground that prosecution was barred under Section 161(1) of the Act. A three
Judge Bench of this Court has held that the act of accepting bribe is not an
act done in the colour of his office. The following observations in that
decision are apposite in the context.
"In
this connection, it is important to remember that an act is not done under colour
of an office merely because the point of time at which it is done coincides
with the point of time the accused is invested with the powers or duty of the
office. To be able to say that an act was done under the colour of an office
one must discover a reasonable connection between the act alleged and the duty
or authority imposed on the accused by the Bombay Police Act or other statutory
enactment. Unless there is a reasonable connection between the act complained
of and the powers and duties of the office, it is difficult to say that the act
was done by the accused officer under the colour of his office." In the
latter decision the same three Judges Bench considered the case of two Police
Head Constables who were prosecuted for certain offences and they were
convicted under Section 330 of the IPC. There also the High Court took the
view, in the appeal filed by them, that prosecution was barred under Section
161(1) of the Act. On the facts of that case learned Judges held that the
offence was not relating to an act done in the colour of office. The said
decision confined to the fact situation which arose in that case.
We may
observe that neither of the above decisions has changed the legal position laid
down by the three Judges Bench in Virupaxappa Veerappa Kadampur (supra).
In the
present case, it is the admitted fact that the complaint was filed only long
after the period indicated in Section 161 of the Act was over, either with or
without sanction from the State Government. Therefore, the complaint is
irretrievably barred under the said provision.
In
view of this conclusion of ours it is unnecessary for us to consider the next
question whether sanction under Section 397 of the Code is necessary to take
cognizance of the offences alleged.
We,
therefore, allow this appeal and set aside the judgment under challenge and
restore the order passed by the Sessions Judge dismissing the complaint.
Back