ARTICLES ON SECTION 197 CRIMINAL PROCEDURE CODE : PART - XXXIX

SOME REFLECTIONS IN INDUSTRIAL, SERVICE AND CRIMINAL JURISPRUDENCE : SECTION 197, CRIMINAL PROCEDURE CODE,1973 : SANCTION TO PROSECUTE PUBLIC SERVANTS : AN APEX JUDICIAL DICTUM : PART - XXXIX

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN, JAGJIVAN NAGAR,DHANBAD : 826003

PRELUDE :  The moot and short point involved in this appeal was :

 Whether in view of Section 197 of the Code of Criminal Procedure, previous sanction of the State Government was necessary for prosecuting the respondent No.2, Sahabul Hussain, under Section 384/506 of the Indian Penal Code ?

THE CASE-LAW :

CHOUDHURY PARVEEN SULTANA vrs STATE OF WEST BENGAL AND ANOTHER [ AIR 2009 SC 1404 = 2009 Cri LJ 1318 = 2009 (234) ELT 196 (SC) = (2008) 3 GLR 2082 (SC); = JT 2009 (1) SC 347 = RLW 2009 (4) SC 3082 = 2009 (1) SCALE 374 = (2009) 3 SCC 398 = 2009 (2) LC 658 (SC)]DoJ : 7 January, 2009

FACTS OF THE CASE :

       One, Mr shabul Hussain, respondent No.2 in this case was an officer of West Bengal Police Service and was posted as Deputy Superintendent of Police (D.N.T.) at Behrampore, District Murshidabad, West Bengal. On 9th September, 2005, at about 9.15/9.30 in the morning one Samiul Choudhury, the husband of the appellant herein, was shot at and suffered grievous injury to his right eye. Thereafter, in a statement given by him to the Inspector in-charge of Behrampore Police Station, he claimed that the assailants were the associates of Mohan Lal, Jalal, Kamal, Babul and Kabir of Zamindar para. On the basis of the said statement Behrampur Police Station Case No.348 dated 9.11.2005 was registered under Sections 326/307/120-B/34 IPC read with Sections 25/27 of the Arms Act. Subsequently, the appellant herein filed an application before the Chief Judicial Magistrate, Murshidabad, alleging commission of offences by the respondent No.2 and another punishable under Sections 387/504/34 IPC and the saidcomplaint was registered as C.R.Case No.543 of 2005.

       In the aforesaid complaint it was alleged that on 9th November 2005 Samiul Choudhury was shot at near his house and thereafter he was admitted to the Behrampore New General Hospital and police investigation was started. It was also alleged that on the pretext of conducting investigation the respondent No.2 and his co- accused used to come to the house of the appellant and on 18th December, 2005 and also on 19th December, 2005, the respondent No.2 and the other accused came to the house of the appellant and threatened her husband and wanted the husband of the appellant to make a tutored statement and under threat even tried to obtain his signature on a blank paper. It was also claimed that the appellant's husband lodged a complaint with the local police authorities and higher authorities also but no action was taken and the appellant was, therefore, compelled to move the Chief Judicial Magistrate Murshidabad by way of the said complaint. The learned Magistrate took cognizance of the offence by his order dated 26th September 2004 and transferred the case to the 2nd Court of Judicial Magistrate, Behrampore, for inquiry and trial. After transfer of the case the appellant and her husband were examined on solemn affirmation by the learned Magistrate on 14th February 2006 and summons were directed to be issued under Sections 384/506 IPC.

MOVING THE HIGH COURT :

       Being aggrieved by the cognizance taken and the issuance of process the respondent No.2 moved the High Court under Sections 397/401 read with Section 482 Cr.P.C. for quashing the cognizance taken and also the issue of process. The main ground of challenge was that being in the employment of the State Government the respondent No.2 enjoyed the protection of Section 197 Cr.P.C. and that no Court could take cognizance of the offence alleged to have been committed by the respondent No.2 except with the previous sanction of the State Government. It was also contended that the complaint disclosed that the offence was alleged to have been committed by the respondent No.2 during the course of investigation in connection with Behrampore Police Station Case No.348 dated 9.11.2005, and, accordingly, such offence, if at all committed, had been committed by the respondent No.2 while discharging official duties which brought him within the protective umbrella of Section 197 Cr.P.C. In support of the aforesaid contention made on behalf of the respondent No.2 reliance was placed on the decision of this Court in Sankaran Moitra vrs. Sadhna Das and another,(2006) 4 SCC 584,wherein after considering various case law on the subject the majority view was that the important criteria to be applied with regard to the invocation of Section 197 of the Code was that the act complained of must have been performed in discharge of or in the purported discharge of duty. This Court ultimately, came to the conclusion that dispensing with jurisdictional or statutory requirements could ultimately affect the adjudication itself and could result in loss of public confidence in the institution. The High Court was, therefore, of the view that in the facts of the case it was quite clear that the proceedings before the Magistrate had been vitiated in the absence of sanction having been obtained for prosecution of the respondent No.2 in terms of Section 197 Cr.P.C. The High Court, accordingly, quashed the proceedings and the cognizance taken on the basis thereof.

SPECIAL LEAVE PETITION (CRIMINAL) TO THE SUPREME COURT : 

      Having felt aggrived by the judgment and order of the High Court, the appellant moved the Hon'ble Supreme Court by filing special leave petition (criminal) bearing no.2864 of 2007 which on grant of special leave became criminal appeal no.8 of 2009.

The Counsel, appearing on bhalf of the appellant submitted as follows :

(i) that even in Sankaran Moitra's case (supra) this Court had held that committing a criminal offence, which was not part of the duties of the officer concerned, could not be said to be an act performed in the course of discharge of official duties.

(ii) that in the instant case the acts complained of against the respondent No.2 could never be said to have been part of his official duties.

(iii) that in other words, even if the acts complained of were done during investigation, it could not be said that the same were part of the respondent's official duties and hence the protection of Section 197 Cr.P.C. was not available to the respondent No.2.

 In support of his submissions the counsel for the appellant firstly referred to the decision of the Hon'ble Apex  Court in

RELIANCE ON CASE-LAWS :

 (i) Pukhraj vrs. State of Rajasthan,AIR 1973 SC 2591, : The Counsel for the appelant, in support of his submission placed reliance on this case where the same question as in Sankaran Moitra was dealt with and it was held that assaulting the complainant and abusing him when the complainant came to submit his representation for cancellation of his transfer could not by any standard be said to be part of the official duties to be exercised by the authority concerned.

 (ii) Bhagwan Prasad Srivastava vrs. N.P. Misra ,AIR 1970 SC 1661 : [1971] 1 SCR 317 : In this case a complaint had been filed that the accused, who was a civil surgeon, used defamatory and abusive words and got the complainant pushed out by the cook of the hospital. The question posed was whether the case was covered by Section 197 Cr.P.C. and whether previous sanction of the superior authority was necessary before the trial Court could take cognizance of the case. In the facts of the case, this Court was of the view that the case was not covered by Section 197 Cr.P.C. and that the object and purpose underlying Section 197 Cr.P.C. to afford protection to public servant against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. It was also observed that the Section 197 has been designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the Courts. It was finally observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially one of fact to be determined in the circumstances of each case.

 (iii) Parkash Singh Badal vrs. State of Punjab , AIR 2007 SC 1274 : 2007 (3) ALD 8 (SC) : JT 2007 (1) SC 89 : 2006 (13) SCALE 54 : (2007) 1 SCC 1 : 2007 AIR SCW 115 : (2007) 1 SCC (Cri) 193 : 2007 (1) Law Herald (SC) 142 : 2007 (1) KLJ 497 : 2007 (2) KCCRSN 92. : (2007) 1 SCC 1] :  In this case it was the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta. It was stated that allegations were vague, lack in details and even if accepted at the face value, did not show the commission of any offence. It was stated that though the High Court primarily relied on a Constitution Bench decision of thr Hon'ble Apex  Court in R.S. Nayak vrs A.R. Antulay , (1984) 2 SCC 183, the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (in short the 'Old Act'). It was submitted that the provisions contained in Section 6 thereof are in pari materia to Section 19 of the Act so far as relevant for the purpose of this case; the effect of Section 6 (2) of the Old Act (corresponding to Section 19(2) of the Act) was lost sight of. The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant of different category then no sanction in terms of Section 19 (1) of the Act corresponding to Section 6 (1) of the Old Act is necessary. However, the Hon'ble Supreme Court dismissed the appeals filed by Shri Prakash Singh Badal.

It was further submitted on behalf of the appellant that in the facts of this case also, since the acts complained of were not part of the official duties of the respondent No.2, they did not attract the bar of Section 197 Cr.P.C. and the Magistrate had quite lawfully taken cognizance of the offence and had issued process.

Counter- submission on behalf of respondent No.2 :

      The Counsel, appearing on behalf respondent No.2 supported the judgment of the High Court and submitted that since the acts complained of were alleged to have been committed during investigation it had been rightly held by the High Court that the same had been done in the discharge of official duties by the respondent No.2.

Counter-submission on behalf of State of West Bengal :

      The Counsel, appearing for the State of West Bengal urged that in view of the decision in Sankaran Moitra's case there was no scope to contend that the bar under Section 197 Cr.P.C. did not apply to the facts of the case. He  submitted that the acts complained of had been performed by the respondent No.2 during the course of investigation, which was part of the official duties required to be discharged by him and hence his case came squarely within the protective umbrella of Section 197 Cr.P.C.

APPRERCIATION OF RIVAL CONTENTIONS :

       Having considered the submissions made on behalf of the respective parties, the Hon'ble Apex Court was inclined to agree with the submissions made by Mr.Pijush K. Roy on behalf of the appellant.

REFREENCE TO BHAGAWAN PRASAD SRIVASTAVA'S CASE :

      The Hon'ble Court stated, the direction which had been given by it, as far back as in 1971 in Bhagwan Prasad Prasad Srivastava's case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava's case (supra), the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.

STATUS OF THE PRESENT CASE :

       In the instant case, certain deeds and acts have been attributed to the respondent No.2 and another accused, which cannot be said to have been part of the official duties to be performed by respondent No.2. Hence, in the view of the Hon'ble Court, the respondent No.2 was not entitled to the protection of Section 197 Cr.P.C. in respect of such acts.

      The Hon'ble Apex Court further stated that while dealing with the aforesaid question, the High Court appears to have been swayed by the submissions made on behalf of the respondent No.2 that since in the complaint the acts of extortion and criminal intimidation were alleged to have been committed by the respondent No.2 and co-accused while conducting investigation in connection with Behrampore Police Station Case No. 348 dated 9th November 2005, such offences were purported to have been committed by the respondent No.2 while discharging official duties.

THE CONCLUSION :

      It has  already been  indicated hereinbefore that the Supreme Court was not willing  to accept such a view . The offences complained of in this case, can by no stretch of imagination be said to part of the duties of the Investigating Officer while investigating an offence alleged to have been committed. It was no part of his duties to threaten the complainant or her husband to withdraw the complaint. In order to apply the bar of Section 197 Cr.P.C. each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C. could be given to the public servant. The fact situation in the complaint in this case is such that it does not bring the case within the ambit of Section 197 and the High Court erred in quashing the same as far as the respondent No.2 is concerned. The complaint prima facie makes out offences alleged to have been committed by the respondent No.2 which were not part of his official duties, stated the Hon'ble Apex Court.

THE VERDICT :,

1.The Appeal was allowed. the appeal and set aside

2. The judgment and order of the High Court was set aside.

3. The Trial Court  was directed to  proceed with the trial of all the accused, including the respondent No.2 herein.