Appeal
Appeal against order quashing the proceedings pending before CJM for murder
2. These appeals arise out of the common Judgment and Order passed by a learned Single Judge of the High Court of Judicature at Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 respectively filed by the respondent nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of Criminal Procedure, 1973 (for short, the “CrPC”) whereby the High Court allowed the applications and quashed the proceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others) pending before the CJM, Firozabad, both arising out of Case Crime No. 617 of 2007 registered for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for short, the “IPC”) with the Dakshin Police Station, District Firozabad, Uttar Pradesh.
A. Factual matrix
Registration of FIR: Om Prakash Yadav lodged the FIR for the offence punishable under Sections 147, 148, 149, 302 and 307 IPC [hereafter murder case]
3. On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the “appellant”) lodged a First Information Report (hereinafter, “FIR”) as Case Crime No. 617 of 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307 of IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Dixit and three others. The FIR alleged that the appellant’s brother, Suman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad, was killed and his brother’s son Harsh aged about 4 ½ years was grievously injured by the aforesaid accused persons by indiscriminately firing with their handguns near the Suhagnagar Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that the incident was witnessed by him and several others.
Another FIR was registered against Ashok Dixit who is the main accused in another FIR for carrying illegal liquor [hereafter liquor case]
4. On the same day, another FIR was registered as Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh, for the offence punishable under Section 34 of the Madhya Pradesh Excise Act, 1915 (hereinafter, the “Excise Act”) against Ashok Dixit who is the main accused of Case Crime No. 617 of 2007. The FIR which was lodged by Head Constable Ram Baran Singh Yadav (hereinafter, “respondent no.5”) stated that based on the information received from an informant while patrolling the area, the accused Ashok Dixit was arrested for carrying 12 bottles of illegal foreign liquor near the Thatipur Crossing. It was stated therein that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar (hereinafter, “respondent no. 4”) and Head Constable Vijay Bahadur Singh (hereinafter, “respondent no. 3”) of the Thatipur Chauki, Murar Police Station, had seized the illegal liquor and arrested the accused at around 09:30 am on 12.10.2007. It was further added that the accused, Ashok Dixit, was later released on bail by the Station House Officer (hereinafter, “SHO”), D.S. Khushawa of the Murar Police Station, on the same day, upon furnishing the necessary surety since the offence under Section 34 of the Excise Act was a bailable one. On 26.10.2007, the concerned IO is said to have submitted a Charge Sheet in connection with Case Crime No. 967 of 2007 against Ashok Dixit before the Chief Judicial Magistrate (hereinafter, “CJM”), Gwalior.
Final report (charge sheet) filed in murder case before CJM, Firozabad
5. The Investigating Officer (hereinafter, “IO”) at Dakshin, Firozabad undertook further investigation and recorded the statements of several witnesses under Section 161 CrPC in connection with Case Crime No. 617 of 2007. On 05.01.2008, the Charge Sheet No. 3 of 2008 was submitted before the CJM, Firozabad, against 12 persons namely Ashok Dixit, Pappu Dixit, Sanjay Dixit, Surender Singh Gurjar, Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu, Suresh, Pancham, Rajesh and Devender. However, the charge sheet stated that the investigation against Niranjan Kumar Upadhyay (hereinafter, “respondent no. 1”), respondent no.3, respondent no. 4, respondent no. 5 and two other individuals in regard to the FIR registered for the offence under Section 34 of the Excise Act in Murar, Gwalior allegedly for the purpose of shielding the accused, Ashok Dixit, was still pending.
6. Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded the statements of SHO D.S. Khushawa, respondent no. 3, respondent no. 4 and respondent no. 5 respectively of the Murar Police Station, Gwalior under Section 161 of CrPC.
IO (who is relative of main accused in murder case) in liquor case has filed a stay petition before the CJM, Gwalior to stay the proceedings
7. Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad moved an application before the CJM, Gwalior, Madhya Pradesh, requesting that the proceedings in Case No. 15003 of 2007 relating to the Case Crime No. 967 of 2007 under Section 34 of the Excise Act filed against the accused Ashok Dixit, pending before him, be stayed. The application alleged that the respondent no. 1 who was posted in Gwalior as Town Inspector (for short, “TI”) was a relative of the accused Ashok Dixit. It was further alleged that the respondent nos. 1, 3, 4 and 5 respectively had conspired to shield the accused from the offence of murder by creating a bogus case under Section 34 of the Excise Act with the sole object of providing the accused with an alibi for the crime alleged to have been committed in Firozabad. The incident in Firozabad occurred at 08:30 am while the incident in Gwalior occurred at 09:30 am on the same day. The distance between Gwalior and Firozabad being 160 kilometers, the same could not have been covered in a duration of one hour by road. The application stated that, since the accused, Ashok Dixit, might confess his guilt in connection with the offence under Section 34 of the Excise Act with a view to save himself from the offence of murder, the proceedings in Case Crime No. 617 of 2007 pending before the CJM, Firozabad might get adversely affected if the proceedings in Case No. 15003 of 2007 were allowed to be continued.
CJM (trying liquor case) rejected the stay application as baseless
8. Upon due consideration of the aforesaid application, the CJM, Gwalior vide its order dated 05.02.2008, directed the SHO of the Murar Police Station, Gwalior, to furnish a report before the Court. On 12.02.2008, the statements of respondent nos. 3, 4 and 5 respectively, were recorded by the SHO of the Murar Police Station, Gwalior and an enquiry report was furnished on 17.02.2008 before the CJM, Gwalior. Upon perusal of the enquiry report, the CJM, Gwalior vide its order dated 23.02.2008 rejected the application dated 20.01.2008 filed by the IO at Dakshin, Firozabad, as being baseless.
CJM (trying liquor case) issued non-bailable warrant and initiated proceedings under sections 82 and 83 CrPC
9. On 14.04.2008, the IO at Dakshin, Firozabad filed an application before the CJM, Firozabad for the issuance of non-bailable warrant against the respondent nos. 1, 3, 4 and 5 respectively along with two other persons. In pursuance of the said application, on 21.04.2008, the CJM, Firozabad issued a non-bailable warrant against the aforesaid accused which included the respondent nos. 1, 3, 4 and 5 respectively, herein. However, it is the case of the IO at Firozabad that the respondent nos. 1, 3, 4 and 5 were absconding and therefore, proceedings under Sections 82 and 83 CrPC respectively were also initiated and completed against them.
IO (murder case) filed an application before DIG Gwalior requesting sanction u/s 197 CrPC for prosecution for respondents 1,3,4 and 5
10. On 02.05.2008, the IO at Dakshin, Firozabad filed an application before the D.I.G., Gwalior, Madhya Pradesh through the D.I.G., Agra, Uttar Pradesh, requesting sanction for prosecution of the respondent nos. 1, 3, 4 and 5 respectively. Further, on 07.05.2008, the Superintendent of Police, Firozabad, also sent a letter to the D.I.G., Gwalior, requesting for the sanction for prosecution under Section 197 CrPC so that the respondents could be chargesheeted.
High Court stayed the arrest of respondent no.1
11. In the meantime, the respondent no.1 preferred Criminal Misc. Writ Petition No. 10181 of 2008 before the High Court of Allahabad and vide order dated 23.07.2008, the arrest of respondent no. 1 was stayed.
DIG refused to accord sanction till the disposal of trial in connection with liquor case
12. On 30.07.2008, the Superintendent of Police, Firozabad, addressed one another letter to the D.I.G., Gwalior in the form of a reminder to accord sanction under Section 197 CrPC for prosecuting the respondents herein. However, on 02.08.2008, the D.I.G., Gwalior replied to the Superintendent of Police, Firozabad, informing him that sanction for prosecution cannot be granted till the disposal of the trial in connection with Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior for the offence under Section 34 of the Excise Act.
Hon’ble High Court refused to quash the criminal proceedings in liquor case but stayed the entire proceedings
13. On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 of 2008 under Section 482 CrPC before the High Court of Madhya Pradesh at Gwalior for quashing the criminal proceedings concerning Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007 registered for the offence under Section 34 of the Excise Act pending before the Court of CJM, Gwalior. In the alternative, it was prayed that the proceeding be stayed till a decision is arrived at in the case pending against Ashok Dixit before the CJM, Firozabad, concerning Case Crime No. 617 of 2007. The High Court vide its order dated 25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by observing as follows:
“12. In the light of the above legal position, the Appellant who is a complainant in the criminal case in connection with Crime No.617 of 2007 registered against respondent No.2 at Firozabad has locus standi to file this petition under section 482 of Cr.P.C. Now legal aspect and circumstances of the case is to be considered. Suppose for the sake of argument, if respondent No.2 admits his guilt in the case of Excise Act pending in the Court of CJM Gwalior what will be its effect? He will have a good ground of alibi that at the time of alleged murder of Appellant’s brother he was not present at Firozabad but was present at Gwalior which is 160 Kms. away from Firozabad. So it will cause a great prejudice in that case and on the other hand, in the interest of justice, if proceedings pending in the court of CJM Gwalior are stayed, it will not cause any prejudice to respondent No.2. Moreover, it will avoid conflicting judgments of two Courts. Therefore, it is good case for invoking inherent powers of the court.
13. Considering the facts and circumstances of the case, petition is allowed and further proceedings pending in the court of CJM Gwalior in connection with Excise. Act pending in the CJM Gwalior concerning Case No.15003 of 2007 are hereby stayed till disposal of the Criminal Case pending at Firozabad concerning Crime No.617 of 2007.” (emphasis supplied)
After a year IO had recorded statements of two persons stated that they were falsely involved as eye-witnesses in the liquor case to create a alibi for murder case
14. After a period of almost one year, on 25.10.2008, the IO at Dakshin, Firozabad recorded the statements of two persons i.e., Ramesh Yadav and Barelal under Section 161 CrPC. Both stated that they had witnessed the respondent no.1 being directly involved in the creation of a false case under Section 34 of the Excise Act in order to provide the accused Ashok Dixit the benefit of an alibi. Soon thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of 2008 in case Crime No. 617 of 2007 was filed against the respondent no. 1 for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC respectively for being involved in hatching a conspiracy of murder that occurred in Firozabad. It was the case of the IO at Firozabad that the Charge Sheet was filed since he had found out that the respondent no. 1 was not posted at the Murar Police Station, Gwalior at the time of the arrest of Ashok Dixit for the offence under Section 34 of the Excise Act and therefore, the provision of sanction under Section 197 CrPC would not be attracted against the respondent no. 1. It is pertinent to observe here that it is the case of the respondent no. 1 herein that the Charge Sheet No. 3A of 2008 was backdated to 03.11.2008 when in fact it was actually filed on 24.11.2008 before the Magistrate.
CJM took cognizance on the liquor case and the accused preferred quash
16.The CJM, Firozabad took cognizance of the Charge Sheet No. 3A of 2008 vide order dated 24.11.2008. Immediately, on 28.01.2009, the respondent no. 1 preferred Criminal Misc. Application No. 4080 of 2009 under Section 482 CrPC before the High Court of Allahabad seeking to quash the proceedings in Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) arising out of the above charge sheet in Case Crime No. 617 of 2007, pending before the CJM, Firozabad.
CJM took cognizance on the murder case and the accused preferred quash
17. Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was filed in the case of the respondent nos. 3, 4 and 5 respectively for the offence under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC respectively for being involved in the conspiracy to commit murder of the appellant’s brother at Firozabad. The CJM, Firozabad took cognizance of the same vide order dated 10.08.2009. On 29.11.2009, the respondent nos. 3, 4 and 5 respectively also preferred an application being the Criminal Misc. Application No. 32494 of 2009 under Section 482 CrPC before the High Court of Allahabad seeking to quash the proceedings of Case No. 67A of 2009 (State vs. Ram Prakash Gunkar and Ors.) arising out of the said charge sheet in Case Crime No. 617 of 2007 pending before the CJM, Firozabad.
Trial court (Additional District and Sessions Judge) concluded the trial in murder case denying the plea of alibi and convicted all the 12 accused guilty for murder
18. During the pendency of the aforesaid two applications filed under Section 482 CrPC before the High Court, the Court of Additional District and Sessions Judge, Firozabad, completed the Sessions Trial No. 753 and 753A of 2008 respectively and vide the judgment & order dated 10.07.2015, held all the 12 accused, including Ashok Dixit, guilty of the offences under Sections 147, 148, 149, 307, 302 and 120-B IPC with which they were charged. The relevant observations made by the Trial Court are reproduced hereinbelow:
“…The “plea of alibi” taken by accused Ashok Dixit that on the day of incident he was lodged in jail u/s 34, Excise Act at P.S. Murar, district Gwalior was with the inconsistent report of the Murar police officials and after investigation I.O. has submitted its report to SSP, Gwalior and JM, Gwalior and stated that the case was false. The above mentioned police officials have been suspended after conducting a departmental investigation also they have been named for conspiring the death along with accused Ashok Dixit in the charge sheet that has been presented before CJM, Firozabad in which they have been charged u/s 302, 120B I.P.C…
It is correct that the distance of 160 kilometres cannot be covered in one hour and if accused Ashok Dixit was at Murar, Gwalior at 9.30 a.m., then he cannot be involved in the commission of incident at Firozabad at 8.30 a.m. It was contended in this regard on behalf of the prosecution that accused Ashok Dixit is a cunning criminal. He showed his presence there colluding with Murar Police station, Gwalior in order to escape himself from the offence of murder. The investigator SHO Shri Baldhari Singh made enquiries after going there, then the whole matter was found forged and the investigator gave an application to SSP Gwalior in this regard and also submitted an application before JM Gwalior Madhya Pradesh and keeping the investigation in progress, it was found that in order to save accused Ashok Dixit from the heinous crime like murder, the forged arrest and his release on bail has been shown by the police of Murar police station. SSP Gwalior, on investigation, finding the whole case forged, has suspended all the officials involved in the said matter and initiated departmental inquiry against them and after collecting the evidence in the said case, a charge sheet has been filed in the court of CJM Firozabad against the said police officials Niranjan Upadhyay, T.I. Police Station Murar, Gwalior and Shailendra Singh and Triloki Gaur and ASI P.P. Gunkar, Head constable Vijay Bahadur and Head Constable. Rambaran Yadav under Section 147, 148, 149, 307, 302, 201, 120B IPC with regard to give cooperation in the conspiracy of murder under Section 120B IPC. A case No. 67 A/2008 State Versus Niranjan and others is pending in that regard in the court of CJM Firozabad and the warrant of the arrest of the accused persons have been issued. The said file pending in the court of CJM was summoned on behalf of the prosecution in this regard, which is available on the file of the instant session trial which makes it clear that accused Ashok Dixit has shown his presence at 9.30 a.m. on the day of incident showing his arrest under Section 34 of Excise Act in order to escape from the case of murder of Suman Prakash colluding with the police officials of police station Murar, District Gwalior, Madhya Pradesh which was found forged in the investigation and charge sheet has been filed against the said police officials involving them in the conspiracy of murder and in order to save accused Ashok Dixit from punishment, the case of the same is pending in the court of CJM, Firozabad and warrant of arrest against all the police officials have been issued and SSP Gwalior has suspended them and departmental inquiry has been initiated against them. All these police officials are absconding. Arrest warrants have been issued against them by CJM Court, Firozabad. The, copy of charge sheet of Case No.67 A/2008 State Versus Niranjan and others pending in the court of CJM has also been filed on record behalf of the prosecution. The proceedings of case No.15003/2007 State Versus Ashok Dixit under Section 34 of Excise Act, police Station Murar pending before the CJM Court has been stayed by order dated 25.08.2009 by the Hon’ble High Court, bench at Gwalior passed in Misc. Case No.5971. The copy of the order passed by the Hon’ble High court bench at Gwalior is filed on record from 613B/25 to 613B/30. SLP has been filed against the said order before the Hon’ble Supreme court which was not admitted for hearing, the copy of the same is filed on record at 613B/31, Therefore, no profit of case under Section 34 of Excise Act cannot be given to accused Ashok Dixit and his presence at Murar, District Gwalior at the time of incident under the case of 34 Excise Act has been found forged and the accused has made a forged plea of alibi colluding with the police officials.” (emphasis supplied)
Hon’ble High Court quashed the case against the respondent no.1 for want of sanction under section 197 Cr.P.C
19. The High Court at Allahabad heard the Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed them vide the common Judgment and Order dated 19.04.2018. The High Court quashed the proceedings in Case Nos. 67 of 2008 and 67A of 2009 respectively essentially on the ground that sanction to prosecute the respondent nos. 1, 3, 4, and 5 respectively under Section 197 CrPC was necessary & since it had not been obtained, the trial cannot proceed. The relevant observations are reproduced hereinbelow:
“Admittedly, the applicants are public servant and case was registered under Section 34 Excise Act against main accused of the murder in the discharge of public duty but the sanction to prosecute for the offence committed at Firozabad was not granted by the State of M.P. to prosecute the applicants for the offence committed within the jurisdiction of the Police Station, Dakhin at Firozabad (U.P.) as is evident from the Annexure SA-I and SA-II to the supplementary affidavit. In the above circumstances, it ought not to be proper to allow the proceedings to be continued against the applicants and in case, the proceeding is allowed to continue against the applicants, it would be nothing but misuse of process of law.
In view of what has been submitted and discussed above, the applications have substance and are liable to be allowed. Accordingly, the applications are allowed and the proceedings pending before CJM, Firozabad as Case No. 67 of 2008 (State Vs. Niranjan Kumar Upadhyay) as well as Case No. 67A of 2009 (State Vs. Ram Prakash Gunkar and others) in connected application arising out of Case Crime No. 617 of 2007 under Sections 147, 148, 149, 307, 302, 201, 120B IPC, P.S. Dakshin, District Firozabad are hereby quashed.” (emphasis supplied)
Complainant preferred this appeal against the quash order
20. In such circumstances referred to above, the appellant (complainant) is here before this Court with the present appeal.
Analysis
E. Only issue for determination
38. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only issue that falls for our consideration is:
a. Whether the CJM, Firozabad could have taken cognizance of the Charge Sheet No. 3A of 2008 and Charge Sheet No. 30 of 2009 respectively against the respondent nos. 1, 3, 4 and 5 respectively, in the absence of the grant of sanction for prosecution under Section 197 CrPC? In other words, whether the offence or the act alleged to have been committed by the respondent nos. 1, 3, 4 and 5 respectively could be said to have been done “while acting or purporting to act in the discharge of official duty”?
Analysis: section 197 Cr.P.C
39. Section 197 CrPC reads as under:
“197. Prosecution of Judges and public servants. —
40. The 41st Report of the Law Commission of India contextualizes the object behind the enactment of Section 197 CrPC by pointing out that it enables the more important categories of public servants, performing onerous and responsible functions, to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. Under the erstwhile Code of Criminal Procedure, 1898, the ambit of the Section was considered a bit too wide since it read – “is accused as such Judge or public servant of any offence”. However, to offer more precision, the Amending Act of 1923 inserted the phrase – “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”. The same has been retained in the statute books till today despite the provision undergoing several amendments over the period of time.
Analysis: Question of discharge of his official duty is a fact
41. As rightly acknowledged by the Law Commission, the meaning of the word “acting or purporting to act” in Section 197 CrPC has been well settled by a legion of decisions of the Federal Court, the Privy Council and the Supreme Court and any difficulty that may be felt lies only in the actual application of the principles laid down in these decisions to the facts and circumstances of a particular case. In other words, the question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact, which is to be determined in the unique circumstances of each case.
Analysis: Section 197 CrPC is subject of judicial interpretation
42. The applicability of Section 197 CrPC has been the subject of judicial interpretation in several cases. One of the first and foremost case laws which examined the pith of the expression “any act done or purporting to be done” was the Federal Court decision in Dr. Hori Ram Singh v. The Crown reported in AIR 1939 FC 43. Their Lordships were called upon to consider the applicability of Section 270 of the Government of India Act, 1935 which albeit not identical, but was similar to Section 197 CrPC. The Court held that while the offence under Section 409 IPC as regards the criminal breach of trust by a public servant would not require consent from the Governor for it cannot be done or purported to be done in the execution of his duty, yet the offence under Section 477A IPC as regards the falsification of accounts would require the Governor’s consent. The words “purported to be done” was interpreted as follows:
“Extent of the Protection. Obviously, the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The words as used in the section are not “in respect of any official duty” but “in respect of any act done or purporting to be done in the execution of his duty.” The two expressions are obviously not identical. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of the duty. The reference as obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact connected with it. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting. The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time. For instance, if a public servant accepts as a reward a bribe in his office while actually engaged in some official work, he is not accepting it even in his official capacity, much less in the execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification.” (emphasis supplied)
Judgments Analysis of sanction: Discharge of Official Duty
57. This Court’s reasoning in State of Orissa and Others v. Ganesh Chandra Jew reported in (2004) 8 SCC 40 was further adopted in a few other landmark decisions including S.K. Zutshi and Another v. Bimal Debnath and Another reported in (2004) 8 SCC 31 and K. Kalimuthu v. State reported in (2005) 4 SCC 512. The Court in Ganesh Chandra Jew (supra) considered the scope of the expression “official duty” and stated that the protective cover of the section must not be extended to every act or omission done by a public servant in service but be restricted to only those acts or omissions which are done by a public servant in the discharge of his “official” duty. The scope can be widened further by also extending protection to those acts or omissions which are done in the “purported” exercise of “official” duty i.e., under the color of office, but not more.
58. Dr. Arijit Pasayat, J, went on to state that the protection given under Section 197 CrPC must not be viewed as limitless. This protection has certain limits and is available only when the alleged act done is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act. However, if the public servant acted in excess of his official duty but there exists a reasonable connection between the act and the performance of his official duty, the excess cannot be a sufficient ground to deprive him of the protection under Section 197 CrPC. Therefore, it was re-iterated that it is the “quality” of the act which is important and such an act must fall within the scope and range of the public servant’s official duty. While there cannot be any universal rule to determine whether there exists a reasonable connection between the act done and the official duty, one “safe and sure test” in this regard would be to consider if the omission or neglect on part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, the protection under Section 197 CrPC can be granted since there was every connection with the act complained of and the official duty of the public servant. The relevant observations are as follows:
“7. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant…” (emphasis supplied)
Legal position regarding section 197 Cr.P.C is settled
65. Thus, the legal position that emerges from a conspectus of all the decisions referred to above is that it is not possible to carve out one universal rule that can be uniformly applied to the multivarious facts and circumstances in the context of which the protection under Section 197 CrPC is sought for. Any attempt to lay down such a homogenous standard would create unnecessary rigidity as regards the scope of application of this provision. In this context, the position of law may be summarized as under: –
(i) The object behind the enactment of Section 197 CrPC is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity. It is to ensure that the public servants are not prosecuted for anything which is done by them in the discharge of their official duties, without any reasonable cause. The provision is in the form of an assurance to the honest and sincere officers so that they can perform their public duties honestly, to the best of their ability and in furtherance of public interest, without being demoralized.
(ii) The expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” in Section 197 CrPC must neither be construed narrowly nor widely and the correct approach would be to strike a balance between the two extremes. The section should be construed strictly to the extent that its operation is limited only to those acts which are discharged in the “course of duty”. However, once it has been ascertained that the act or omission has indeed been committed by the public servant in the discharge of his duty, then a liberal and wide construction must be given to a particular act or omission so far as its “official” nature is concerned.
(iii) It is essential that the Court while considering the question of applicability of Section 197 CrPC truly applies its mind to the factual situation before it. This must be done in such a manner that both the aspects are taken care of viz., on one hand, the public servant is protected under Section 197 CrPC if the act complained of falls within his official duty and on the other, appropriate action be allowed to be taken if the act complained of is not done or purported to be done by the public servant in the discharge of his official duty.
(iv) A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such that it lies within the scope and range of his official duties. The act complained of must be integrally connected or directly linked to his duties as a public servant for the purpose of affording protection under Section 197 CrPC. Hence, it is not the duty which requires an examination so much as the “act” itself.
(v) One of the foremost tests which was laid down in this regard was – whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
(vi) Later, the test came to be re-modulated. It was laid down that there must be a reasonable connection between the act done and the discharge of the official duty and the act must bear such relation to the duty such that the accused could lay a reasonable, but not a pretended or fanciful claim, that his actions were in the course of performance of his duty. Therefore, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be committed by the public servant either in his official capacity or under the color of the office held by him such that there is a direct or reasonable connection between the act and the official duty.
(vii) If in performing his official duty, the public servant acts in excess of his duty, the excess by itself will not be a sufficient ground to deprive the public servant from protection under Section 197 CrPC if it is found that there existed a reasonable connection between the act done and the performance of his official duty.
(viii) It is the “quality” of the act that must be examined and the mere fact that an opportunity to commit an offence is furnished by the official position would not be enough to attract Section 197 CrPC.
(ix) The legislature has thought fit to use two distinct expressions “acting” or “purporting to act”. The latter expression means that even if the alleged act was done under the color of office, the protection under Section 197 CrPC can be given. However, this protection must not be excessively stretched and construed as being limitless. It must be made available only when the alleged act is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.
(x) There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down such a rule. However, a “safe and sure test” would be to consider if the omission or neglect on the part of the public servant to commit the act complained of would have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, the protection under Section 197 CrPC can be granted since there was every connection with the act complained of and the official duty of the public servant.
(xi) The provision must not be abused by public servants to camouflage the commission of a crime under the supposed color of public office. The benefit of the provision must not be extended to public officials who try to take undue advantage of their position and misuse the authority vested in them for committing acts which are otherwise not permitted in law. In such circumstances, the acts committed must be considered dehors the duties which a public servant is required to discharge or perform.
(xii) On an application of the tests as aforesaid, if on facts, it is prima facie found that the act or omission for which the accused has been charged has a reasonable connection with the discharge of his official duty, the applicability of Section 197 CrPC cannot be denied.
66. At the cost of repetition, we say that the position of law on the application of Section 197 CrPC is clear – that it must be decided based on the peculiar facts and circumstances of each case. This Court has held in a legion of decisions that any misuse or abuse of powers by a public servant to do something that is impermissible in law like threatening to provide a tutored statement or trying to obtain signatures on a blank sheet of paper; causing the illegal detention of an accused; engaging in a criminal conspiracy to create false or fabricated documents; conducting a search with the sole object of harassing and threatening individuals, amongst others, cannot fall under the protective umbrella of Section 197 CrPC.
Filing false case is not duty of police official and no sanction required
67. In light of the same, it follows that when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same. On examining the quality of the act, it is evident that there exists no reasonable or rational nexus between such an act and the duties assigned to the public servant for the claim that it was done or purported to be done in the discharge of his official duty. The mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply Section 197 CrPC. Allowing so, would enable the accused to use their status as public servants as a facade for doing an objectionable, illegal and unlawful act and take undue advantage of their position. If the Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior, by respondent nos. 3, 4 and 5 respectively, was a false case, then there is no doubt that the refusal to grant sanction would not operate as a bar for their prosecution. Moreover, as far as the case of respondent no. 1 is concerned, it is an undisputed fact that he was not even posted as the S.H.O or T.I at the Murar Police Station when the said false case was registered. The same is evident from the affidavit submitted by the IO at Firozabad before the High Court. Additionally, the respondent no. 1 has himself admitted in his submissions before us that he was in fact posted at District Shivpuri which is 120 kms away from Gwalior during the relevant time. Therefore, any act or offence committed by the respondent no. 1 in the present case can safely be said to have been outside the scope of his official duty which obviates the question of sanction for his prosecution.
74. The legal position that emerges from the discussion of the aforesaid case laws is that:
(i) There might arise situations where the complaint or the police report may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty. However, the facts subsequently coming to light may establish the necessity for sanction. Therefore, the question whether sanction is required or not is one that may arise at any stage of the proceeding and it may reveal itself in the course of the progress of the case.
(ii) There may also be certain cases where it may not be possible to effectively decide the question of sanction without giving an opportunity to the defence to establish that what the public servant did, he did in the discharge of official duty. Therefore, it would be open to the accused to place the necessary materials on record during the trial to indicate the nature of his duty and to show that the acts complained of were so interrelated to his duty in order to obtain protection under Section 197 CrPC.
(iii) While deciding the issue of sanction, it is not necessary for the Court to confine itself to the allegations made in the complaint. It can take into account all the material on record available at the time when such a question is raised and falls for the consideration of the Court.
(iv) Courts must avoid the premature staying or quashing of criminal trials at the preliminary stage since such a measure may cause great damage to the evidence that may have to be adduced before the appropriate trial court.
Statement recorded under section 161 Cr.P.C is not evidence
77. The statements of the respondent nos. 3, 4 and 5 respectively recorded earlier by the IO at Dakshin, Firozabad during the course of his investigation on 23.01.2008 and later by the SHO of the Murar Police Station, D.S. Khushawa on 12.02.2008, under Section 161 CrPC, are the only pieces of evidence that have been adduced before us for our consideration. Those statements reveal that – (a) amongst the two panchas of arrest and seizure namely, Shailendra Singh and Triloki Gaur in the alleged false second case i.e., Case Crime No. 967 of 2007, Triloki Gaur was the former driver of the respondent no. 1, (b) the respondent no. 1 had arrived at the Murar Police Station shortly after the alleged arrest of Ashok Dixit and had conversed with the SHO of the Murar Police Station, D. S. Khushawa, (c) the respondent no. 1 also had a conversation with the person arrested by the accused respondents, and (d) the respondent no. 1 had asked the SHO of the Murar Police Station, D.S. Khushawa, to release the arrested person on bail stating that he was his relative. However, it is settled law that a statement recorded under Section 161 CrPC does not constitute substantive evidence and can only be utilized for the limited purpose of proving contradictions and/or omissions as envisaged under Section 145 of the Evidence Act, 1872. This has been laid down in a catena of decisions including in Parvat Singh and Others v. State of Madhya Pradesh reported in (2020) 4 SCC 33 which observed as follows:
“13.1…However, as per the settled proposition of law a statement recorded under Section 161 CrPC is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW 8 recorded under Section 161 CrPC while observing that the appellants were having the lathis.” (emphasis supplied)
78. The aforesaid position of law was reiterated in Birbal Nath v. State of Rajasthan reported in 2023 SCC OnLine SC 1396 which observed as thus:
“19. Statement given to police during investigation under Section 161 cannot be read as an “evidence”. It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong.” (emphasis supplied)
Respondents/Accused did not produce any credible evidence before the Supreme Court to establish their arrest at the time of murder
81. Having said so, on the other hand, the respondent nos. 3, 4 and 5 respectively have also not adduced any credible evidence before us to prima facie establish that it was Ashok Dixit who was arrested at 09:30 am at Murar, Gwalior; that the illegal liquor carried by him was seized, and that he was later released from the Murar Police Station on the directions of SHO, D.S. Khushawa upon furnishing a surety. It is true that the offence contemplated under Section 34 of the Excise Act is bailable and that any accused under the said offence would be entitled to be released on bail from the police station. However, bearing in mind that there exist serious suspicion as to whether an arrest was ever made to begin with and if made, whether it was Ashok Dixit who was indeed arrested, we find ourselves unable to arrive at an appropriate decision at this stage due to lack of reliable and credible evidence to verify the same. The respondent nos. 3, 4 and 5 respectively have stated that the accused had identified himself to be Ashok Dixit upon arrest and it is unclear whether the identity of the said accused was further duly verified while the case was registered under the Excise Act. Despite the appellant’s allegation that the release of the said accused on bail from the police station was done hurriedly, almost immediately after arrest, in order to conceal the identity of the person who was released and that an unconnected stranger might have been released from the police station, no other material which substantiates the bona fides of respondent nos. 3, 4 and 5 have been made available before us at the present moment.
Sanction is not required for respondent no.1
83. As far as respondent no. 1 is concerned, it is made clear that there would be no requirement for sanction since he was not acting in the discharge of his official duty by virtue of not being posted at Murar Police Station, Gwalior at the relevant time when the alleged false case was registered. As a consequence, the extent of the involvement of respondent no. 1 in the alleged conspiracy to murder can be determined by the Trial Court upon a further examination of the evidence adduced before itself. However, so far as the respondent nos. 3, 4 and 5 respectively are concerned, if the case of the prosecution that they had also played a dubious role in registering a false case is correct then the requirement of sanction would not be a sin qua non for proceeding further with the criminal proceedings. However, the defence must be given an opportunity to rebut the same by leading appropriate evidence.
Criminal proceedings should not have been quashed
84. At this juncture on a prima facie examination of the materials adduced before us, we are of the opinion that the criminal proceedings pending before the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009 should not have been quashed at such a preliminary stage. In cases where there is a legitimate doubt as regards whether sanction for prosecution under Section 197 CrPC is required or not, the progress of the trial must not be hampered or unnecessarily delayed. Therefore, the CJM, Firozabad had rightly taken cognizance of the two charge sheets vide its orders dated 24.11.2008 and 10.08.2009 respectively. The High Court committed an error in failing to consider this aspect while quashing the proceedings in Case No. 67 of 2008 and 67A of 2009 respectively vide its impugned order.
G. Conclusion
86. In light of the aforesaid, the appeals filed by the appellant are allowed and the impugned order passed by the High Court is set aside.
87. We dispose of the present appeals in light of the aforesaid directions.
Party
Om Prakash Yadav …Appellant(S) Versus Niranjan Kumar Upadhyay & Ors …Respondent(S) – Criminal Appeal Nos. 5267-5268 OF 2024 (Arising out of S.L.P. (Crl.) Nos. 8239-8240 of 2018) – 2024 INSC 979
