# Cosntable 52 Shiwakant Dubey v. State of U.P. & Anr - **Citation:** (2021) 10 ILRA 158 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-10-25 - **Case number:** U/S 482/378/407 No. 4045 of 2021 - **Bench:** Mrs. Sangeeta Chandra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cosntable-52-shiwakant-dubey-v-state-of-u-p-anr-46229 - **Pages:** 5 ## Headnote Law -Code of Criminal Procedure, 1973-Section 482 - Indian Penal Code, 1860-Section 504 - Police Act-Section 29-quashing of chargesheetwho was working as constable was entrusted to take down the statement of his colleague who had reported for duty late after unauthorized absenceapplicant failed to record the same-the superior got annoyed due to nonexercise of his official duty-applicant misbehaved and abused his Officer Incharge-no sanction u/s 197 Cr.P.C. was required-However, offence is minor in nature and only one witness has been examined, all the officers are retired now-applicant's retiral benefits have been withheld pending criminal proceedings-In such a situation trial may be expedite and trial court is directed to pass appropriate orders.(Para 1 to 12) B. Sanction of the government, to prosecute a police officer for any act related to the discharge of an official duty, it is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction.(Para 6) The petition is disposed of. (E-6) List of Cases cited: 10 All. Constable 52 Shiwakant Dubey Vs. State of U.P. & Anr. 159 ## Text 158 INDIAN LAW REPORTS ALLAHABAD SERIES Cr.P.C. but under Article 142 which is designed to do complete justice between the parties. However, the observations made by the Hon'ble Supreme Court seem appropriate in this case also. It has been submitted by the counsel for the petitioners and also by the opposite party no.2 that no untoward incident has occurred after the alleged assault which took place long time ago and in the heat of the moment under grave provocation. (8) Learned trial court be sent papers relating to this Application U/s 482 forthwith by the Registry. The compromise which has been filed in the original through supplementary affidavit by the counsel for the petitioners shall be returned to him. (9) Accordingly, the Application U/s 482 stands disposed of. (10) Learned trial court shall verify the compromise occurring between the parties and pass appropriate orders thereon. It shall be open for the petitioners to approach this Court again by filing the appropriate petition for quashing of the proceedings thereafter. Till appropriate orders are passed by the concerned trial court verifying the compromise occurring between the parties, no coercive steps be taken against the petitioners. ---------- (2021)10ILR A158 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 25.10.2021 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. U/S 482/378/407 No. 4045 of 2021 Cosntable 52 Shiwakant Dubey ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Satish Singh, Anjeet Singh Counsel for the Opposite Parties: G.A. A. Criminal Law -Code of Criminal Procedure, 1973-Section 482 - Indian Penal Code, 1860-Section 504 - Police Act-Section 29-quashing of chargesheetwho was working as constable was entrusted to take down the statement of his colleague who had reported for duty late after unauthorized absenceapplicant failed to record the same-the superior got annoyed due to nonexercise of his official duty-applicant misbehaved and abused his Officer Incharge-no sanction u/s 197 Cr.P.C. was required-However, offence is minor in nature and only one witness has been examined, all the officers are retired now-applicant's retiral benefits have been withheld pending criminal proceedings-In such a situation trial may be expedite and trial court is directed to pass appropriate orders.(Para 1 to 12) B. Sanction of the government, to prosecute a police officer for any act related to the discharge of an official duty, it is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction.(Para 6) The petition is disposed of. (E-6) List of Cases cited: 10 All. Constable 52 Shiwakant Dubey Vs. State of U.P. & Anr. 159 1. Devaraja Vs Owais Sabeer Hussain (2020) 7 SCC 695 (Delivered by Hon'ble Mrs. Sangeeta Chandra, J.) (1) Heard Shri Anjeet Singh, learned counsel for the petitioner, learned A.G.A. and perused the record. (2) The petitioner prays for quashing of the Charge-Sheet dated 15.09.2008 as well as the order taking cognizance and summoning the petitioner on 11.02.2009 and the entire criminal proceedings of Case No.434 of 2009 (State Vs. Shiwakant Dubey) arising out of Case Crime No.498 of 2008, under Section 29 Police Act and Section 504 IPC, Police Station Kotwali Nagar, District Pratapgarh, pending in the court of learned Chief Judicial Magistrate, Pratapgarh. (3) Learned counsel for the petitioner submits that the petitioner was working as a Constable at Police Station Kotwali Nagar. He was directed by the Sub Inspector, Santosh Kumar Dubey to take down the statement of his colleague Constable Ram Adhar Ram who had reported for duty late after unauthorized absence. The petitioner failed to record the statement of Constable Ram Adhar Ram. Consequently, the Sub Inspector got annoyed and F.I.R. was lodged under Section 29 of the Police Act and Section 504 IPC. The statements under Section 161 Cr.P.C. were recorded on 01.09.2008 and 15.09.2008 of Police Personnel, colleagues of the petitioner who supported the version of the F.I.R. However, despite cognizance being taken more than 12 years ago till date only one witness has been examined. In the meantime, the petitioner has retired from his services on 31.05.2021 and Constable Ram Adhar Ram who was the only witness who had given statement under Section 161 Cr.P.C. has also retired from service and the informant, the Sub Inspector may also have retired. There is no chance of any of the witness appearing in the court. (4) Additionally it has been submitted by the learned counsel for the petitioner that the petitioner was working as a Constable in the Police Force and whatever action he had taken was in the discharge of his official duty, therefore, sanction under Section 197 of the Cr.P.C. should have been taken which was not taken. The Trial is going on and the learned Trial Court has taken cognizance without applying its mind to the necessity of the sanction from the Government for prosecution of Police Officer. (5) Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of D. Devaraja Vs. Owais Sabeer Hussain reported in 2020 (7) SCC 695, where the Hon'ble Supreme Court has made observation in Paragraph No.67 that requirement of sanction to entertain/ take cognizance of an offence allegedly committed by a Police Officer under Section 197 Cr.P.C. had been settled by the Supreme Court in its earlier binding precedent. (6) This Court has carefully perused the judgment placed before this Court. The relevant paragraphs of the judgment in the case of D. Devaraja (supra) namely Paragraph Nos.67, 68, 69, 70, 71, 72, 73, 74, 75 & 76 are being quoted hereinbelow:- "67. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly 160 INDIAN LAW REPORTS ALLAHABAD SERIES committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above. 68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government. 69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. 70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. 72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. 73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. 74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of 10 All. Constable 52 Shiwakant Dubey Vs. State of U.P. & Anr. 161 Criminal Procedure and/or Section 170 of the Karnataka Police Act. 75. On the question of the stage at which the Trial Court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court. 76. While this Court has, in D.T. Virupakshappa (supra) held that the High Court had erred in not setting aside an order of the Trial Court taking cognizance of a complaint, in exercise of the power under Section 482 of Criminal Procedure Code, in Matajog Dobey (supra) this Court held it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings." (7) It is evident that the Supreme Court had observed in the aforecited judgment that the sanction is necessary only where the offence is committed either during the discharge of official duty by the Police Personnel or where there is a reasonable connection between the act and the performance of the official duty. The sanction is required not only for an act done in discharge of official duty, it is also required if a Police Officer is accused of any act done under the colour or in excess of any such duty or authority as aforesaid. (8) In the case of the petitioner he was asked to record the statement of a fellow colleague who was also a Constable. He failed to take down the statement also, despite the orders of the superior officer for not recording the return (Waapsi) of Constable Ram Adhar Ram from his unauthorized absence, till his statement is given, recorded the Wapsi in the General Duty. (9) These to actions of the petitioner can be said to have been done in the purported exercise or non-exercise of his official duty that was entrusted to him. However, there is an allegation that the petitioner started misbehaving and abusing Officer Incharge by using vulgar language when he was asked to comply with the orders. Such an act cannot be said to have been committed in the discharge of his official duty and therefore, no sanction under Section 197 Cr.P.C. was required in so far as the mis-behaviour with his superior fellow colleagues as has been mentioned in the F.I.R., was necessary. (10) However, taking into account the fact that the offence is minor in nature under Section 504 IPC, and despite summoning order being issued on 11.02.2009, only one witness has been examined by the learned Trial Court and the petitioner's retiral benefits have been withheld pending criminal proceedings, this Court finds it appropriate to expedite the Trial. (11) It is expected that the learned Trial Court shall complete all evidence and pass appropriate orders in accordance with the procedure prescribed under law within a period of six months from the date a certified copy of this order is produced before him. 162 INDIAN LAW REPORTS ALLAHABAD SERIES (12) This petition stands disposed of. ---------- (2021)10ILR A162 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 25.10.2021 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. U/S 482/378/407 No. 4047 of 2021 Golu ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Shrikant Mishra Counsel for the Opposite Parties: G.A. A. Criminal Law -Code of Criminal Procedure, 1973-Section 482, 319 - Indian Penal Code, 1860-Section 302, 201challenge to-interlocutory order passed u/s 319- applicant-Six prosecution witnesses named the petitioner as one of the three persons who were last seen with the deceased-trial court observed that initially in the F.I.R. and statements made before the police showed that the applicant had been named as a coaccused-Trial court rightly summoned the applicant after recording a prima facie satisfaction-Hence, no interference requires.(Para 1 to 17) B. Though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. in the absence of such satisfaction, the court should refrain from exercising power u/s 319 Cr.P.C. In section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted.'(Para 10 to 15) The petition is dismissed. (E-6) List of Cases cited: 1. Prabhu Chawla Vs St.of Raj. & anr. CRLA No. 842 of 2016 2. Raj Kapoor Vs St. (1980) 1 SCC 43: 1980 SCC (Cri) 72 3. Madhu Limaye Vs St. of Mah.(1977) 4 SCC 551: 1978 SCC (Cri) 10 4. Ramesh Chandra Srivastava Vs St. of U.P. CRLA No. 990 of 2021 5. Hardeep Singh Vs St. of Punj. & ors. (2014) 3 SCC 92 (Delivered by Hon'ble Mrs. Sangeeta Chandra, J.) 1. Heard learned counsel for the petitioner, Sri Pradeep Tiwari, Advocate, who has filed power on behalf of opposite party no.2 and Sri S.P. Tiwari, learned A.G.A. for the State. 2. This petition under Section 482 Cr.P.C. has been filed with the following main relief:- "It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to quash the impugned order dated 02/11/2020 passed by the Additional Session Judge Court No.1, U/S 319 Cr.P.C. in Session Trial No.277/2013:- State of U.P.