Report No. 277
(i) Code of Criminal Procedure, 1973
4.66 Procedural embargoes to the substantive provisions of the IPC discussed hereinabove, sections 132 and 197, CrPC entail safeguards to protect judges and public servants from vexatious litigation with respect to their actions while performing a public function.115 While section 132, CrPC mandates sanction of the government for the prosecution of police officers for any act purporting to be done under section 129 to 131 CrPC, which deal with controlling an unlawful assembly that is alleged to have caused a breach of peace;116 section 197 requires that sanction be received from the Central or the State Government before any criminal proceeding is instituted against a police officer alleged to have committed a criminal offence "while acting or purporting to act within the discharge of his official duty".
4.67 As a general guiding principle for invoking section 197, CrPC the Supreme Court in Subramanian Swamy v. Manmohan Singh & Anr.117 held "These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption". Over the years, numerous judicial pronouncements have examined the scope of section 197, CrPC, and have ruled for police officers to have the protection of Section 197, CrPC, while also drawing exceptions for cases and situations where this protection will not be applicable.118 A few of these decisions are discussed hereinafter.
4.68 In Dhannjay Ram Sharma v. M.S. Uppadaya & Ors.119, the Supreme Court observed that before the protection of Section 197, CrPC can be claimed by an accused person but he has in the first instance to satisfy the Court that he is a Public Servant "not removable from his office save by or with the sanction of a State Government or the Central Government", and next that the acts complained of, if committed by him were committed "while acting or purporting to act in the discharge of his official duty".120
4.69 In P.P. Unnikrishnan v. Puttiyottil Alikutty121, a case of illegal detention and custodial torture, the Supreme Court discussing the scope of section 197(1), CrPC held that there must be a reasonable connection between the act in question and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable, and not just a pretended claim, that he did it in the course of his duty. The Court illustrated the foregoing with an example: if a police officer wrongly confines a person in lock-up for more than 24 hours without sanction of the court or assaults a prisoner, he is acting outside the contours of his duty, and therefore, not entitled to protection under section 197, CrPC.122
4.70 On the same lines, it was held in Rajib Ranjan & Ors. v. R. Vijaykumar123, as follows: even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.124
4.71 With respect to the issue under consideration, reference needs to be made to Uttarakhand Sangharsh Samiti v. State of U.P.125, where the Court specifically held that acts of wrongful restraint and detention, planting weapons to show fake recoveries, deliberate shooting of unarmed agitators, tampering with or framing incorrect records, commission of rape and molestation etc. are neither acts done, nor purported to be done in the discharge of official duties; and that no sanction of the Government is required in ordering prosecution of such police officials. The Court also granted exemplary damages to the victims of police atrocities.
4.72 The Courts have in a series of caselaw defined and whittled down the scope of section 197, CrPC, however, it appears that the procedural safeguards under the said section are often misused by the police officials by not allowing lodging of complaints or First Information Report (FIRs), thereby hindering the process of remedying police and prosecutorial misconducts.126
4.73 In addition to these provisions in CrPC, there are also similar procedural safeguards vis-à-vis the police under a few of the States' Police Acts and the Rules thereunder. Further, various High Court Rules also contain provisions with respect to instituting proceedings against police officials or other Government servants.
4.74 In this context, lastly reference needs to be made to the Supreme Court judgment in the case of The State of Uttar Pradesh v. Mohammad Naim,127 which laid down the guidelines for the courts to bear in mind while making remarks about police or other public officials and authorities' "improper conduct". The Apex Court in this case was reviewing Justice Mulla's (of the Allahabad High Court) observation on police conduct inter alia, "That there is not, a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force.", and held that courts of law while making observations on the objectionable and improper conduct of the persons and authorities whose conduct comes before them for scrutiny should consider:
"(a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;
(b) whether there is evidence on record bearing on that conduct justifying the remarks; and
(c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.".
4.75 Under the CrPC, another provision that merits a quick mention in this context is section 358 - providing for compensation to persons groundlessly arrested. From the wording of the section, it appears that it primarily targets groundless arrests instigated by one person against the other. It empowers the Court to order the person who has caused for a police officer to make such arrest to pay compensation to the person wrongfully arrested without any "sufficient ground".
That is to say, if a person is instrumental in causing a groundless arrest of a person through the police, the Court may order such person to pay compensation to the person so arrested to make up for his loss of time and expense. In order to invoke this section, there must be some direct and proximate nexus between the complainant - complaint/information provided and the arrest that is made on the basis of such complaint/information. There should be evidence to indicate that the informant caused the arrest of accused without any sufficient cause. The test should be that but for the efforts of the complainant the arrest could not have been made.128
4.76 The person at whose instance the arrest was made may be ordered to pay compensation of maximum Rs.1000/- to the person(s) arrested, and the amount thereof may be recovered as if it were a fine; Such person may be liable to be sentenced to simple imprisonment for a maximum period of 30 days if the ordered compensation amount cannot be recovered. Though addressing wrongful (groundless) arrests, this section is not directly relevant to the discussion herein for it does not address the police officer(s) making such an arrest, even if he were acting in collusion with the person who caused the arrest. Further, the modest amount of (maximum) compensation provided for in the section, hardly makes it a relief for the wrong done or the suffering caused, or a deterrent to preclude such wrongs from happening.