# SANKARAN MOITRA v. SADHNA DAS AND ANR

- **Citation:** [2006] 3 S.C.R. 305
- **Court:** Supreme Court of India
- **Decided:** 2006-03-24
- **Case number:** Criminal Appeal No. 330 F of 2006
- **Bench:** Y.K. Sabharwal, P.K. Balasubramany An, C.K. Thakker
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sankaran-moitra-v-sadhna-das-and-anr-21219
- **Pages:** 43

## Headnote

A
B
Code of Criminal Procedure, 1973-Section 197(1)-Death due to
police lathi charge on day of election to State Assembly-Prosecution of C
accused police officer-Sanction as required under Section 197(1) not
obtained-Held: If a person is killed by· use of excessive force by police
officer in performance of duty or purported performance of duty, Section
197(1) cannot be by-passed by reasoning that killing a man could never be
done in an official capacity-Requirement of sanction prescribed in Section
197(1) was a condition precedent for a successful prosecution though question D
may have arisen not at inception, but at a subsequent stage-Jn the facts of
case, act of police officer found to be done in performance of his duty to
prevent breach of law and maintain order on polling day-It was so since
he was in uniform and had travelled to spot near polling booth in official
jeep subsequent to receipt of information in Police Station suggesting imminent E
clashes between supporters of two political parties there-Prosecution
quashed for want of requisite sanction.
On the day of election to a State Assembly, appellant, Assistant
Commissioner of Police, reached a polling booth. On reaching there, he
had a discussion with officer-in-charge of a police station. Thereafter a F
lathi charge by police constables took place wherein husband of respondent
no. 1 died. On her complaint to Deputy Commissioner of Police, cases were
registered in police station against unknown police officials. About two
weeks thereafter, she filed a private complaint in the Chief Judicial
Magistrate (CJM), accusing appellant, amongst others, ofvarious offences
under IPC. Cognisance was taken on this complaint, and after recording G
statements of witnesses, warrant for arrest of appellant was issued.
Appellant filed application before CJM under Section 210 Cr. PC. seeking
stay of proceedings on the complaint on the ground that investigation of
cases registered by police was pending. Before passing of any order on
305
H
306
SUPREME COCRT REPORTS
[2006] 3 S.C.R.
A this application, appellant filed a petition before High Court under Section
482 Cr PC seeking quashing of the complaint on the ground that CJM did
not have the jurisdiction to entertain the complaint as sanction required under
Section 197(1) Cr PC had not been obtained. High Court dismissed this
petition after considering the post mortem report and evidence of witnesses,
B holding that it was a case of merciless beating by police officer causing death
of a person, which could not be said to be an act in discharge of official duty,
and for this reason no sanction was required under Section 197(1) Cr. PC.
Hence the present appeal.
Appellant contended that (i) he was a police officer on duty, and had
C gone to the polling booth in his police uniform and in the official jeep pursuant
to receipt of a message about rioting and law and order problem there; hence
the act was done in discharge of his duty, and his prosecution could not be
proceeded with without sanction as required under Section 197(1) Cr PC (ii)
the case was covered by Section 210 of the Code and proceedings in the private
complaint filed by the respondent were required to be stayed.
D
Respondent contended that as the Magistrate did not have occasion to
consider the applicability of Section 197 Cr. PC, contentions of appellant based
on this provision should not be decided by the Court, especially as they could
be raised on his appearance before Magistratt.
E
Allowing the appeal, the Court
HEID.
Per P. K. Balasubramanyan J., (for himself and Y.K. Sabharwal, CJ!)
I.I. The High Court has stated that killing of a person by use of
F excessive force could never be performance of duty. It may be correct so far
as it goes. But the question is whether that act was done in the performance
of duty or in purported performance of duty. If it was done in performance of
duty or purported performance of duty Section 197(1) of the Code cannot be
by-passed by reas

## Text

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SANKARAN MOITRA
v.
SADHNA DAS AND ANR.
MARCH 24, 2006
[Y.K. SABHARWAL, CJ., P.K. BALASUBRAMANY AN AND
C.K. THAKKER, JJ.]
A
B
Code of Criminal Procedure, 1973-Section 197(1)-Death due to
police lathi charge on day of election to State Assembly-Prosecution of C
accused police officer-Sanction as required under Section 197(1) not
obtained-Held: If a person is killed by· use of excessive force by police
officer in performance of duty or purported performance of duty, Section
197(1) cannot be by-passed by reasoning that killing a man could never be
done in an official capacity-Requirement of sanction prescribed in Section
197(1) was a condition precedent for a successful prosecution though question D
may have arisen not at inception, but at a subsequent stage-Jn the facts of
case, act of police officer found to be done in performance of his duty to
prevent breach of law and maintain order on polling day-It was so since
he was in uniform and had travelled to spot near polling booth in official
jeep subsequent to receipt of information in Police Station suggesting imminent E
clashes between supporters of two political parties there-Prosecution
quashed for want of requisite sanction.
On the day of election to a State Assembly, appellant, Assistant
Commissioner of Police, reached a polling booth. On reaching there, he
had a discussion with officer-in-charge of a police station. Thereafter a F
lathi charge by police constables took place wherein husband of respondent
no. 1 died. On her complaint to Deputy Commissioner of Police, cases were
registered in police station against unknown police officials. About two
weeks thereafter, she filed a private complaint in the Chief Judicial
Magistrate (CJM), accusing appellant, amongst others, ofvarious offences
under IPC. Cognisance was taken on this complaint, and after recording G
statements of witnesses, warrant for arrest of appellant was issued.
Appellant filed application before CJM under Section 210 Cr. PC. seeking
stay of proceedings on the complaint on the ground that investigation of
cases registered by police was pending. Before passing of any order on
305
H
306
SUPREME COCRT REPORTS
[2006] 3 S.C.R.
A this application, appellant filed a petition before High Court under Section
482 Cr PC seeking quashing of the complaint on the ground that CJM did
not have the jurisdiction to entertain the complaint as sanction required under
Section 197(1) Cr PC had not been obtained. High Court dismissed this
petition after considering the post mortem report and evidence of witnesses,
B holding that it was a case of merciless beating by police officer causing death
of a person, which could not be said to be an act in discharge of official duty,
and for this reason no sanction was required under Section 197(1) Cr. PC.
Hence the present appeal.
Appellant contended that (i) he was a police officer on duty, and had
C gone to the polling booth in his police uniform and in the official jeep pursuant
to receipt of a message about rioting and law and order problem there; hence
the act was done in discharge of his duty, and his prosecution could not be
proceeded with without sanction as required under Section 197(1) Cr PC (ii)
the case was covered by Section 210 of the Code and proceedings in the private
complaint filed by the respondent were required to be stayed.
D
Respondent contended that as the Magistrate did not have occasion to
consider the applicability of Section 197 Cr. PC, contentions of appellant based
on this provision should not be decided by the Court, especially as they could
be raised on his appearance before Magistratt.
E
Allowing the appeal, the Court
HEID.
Per P. K. Balasubramanyan J., (for himself and Y.K. Sabharwal, CJ!)
I.I. The High Court has stated that killing of a person by use of
F excessive force could never be performance of duty. It may be correct so far
as it goes. But the question is whether that act was done in the performance
of duty or in purported performance of duty. If it was done in performance of
duty or purported performance of duty Section 197(1) of the Code cannot be
by-passed by reasoning that killing a man could never be done in an official
G capacity and consequently Section 197(1) of the Code could not be attracted.
1316-B-DI
1.2. That it was the day of election of the State Assembly, that the
appellant was in uniform; that the appellant travelled in an official jeep to the
spot, near a polling booth and the offence was committed while he was on the
H spot may not by themselves attract Section 197(1) of the Code. But, as can be
SANKARAN MOJTRA v. SADHNA DAS
307
seen from the facts disclosed in the counter affidavit filed on behalf of the A
State based on the entries in the General Diary of the Phoolbagan Police
Station, it emerges that on the election day information was received in the
Police Station at 1400 hours of some disturbance at a polling booth, that it
took a violent tμrn and clashes between the supporters of two political parties
was imminent. It was then that the appellant reached the site of the incident B
in his official vehicle. It is seen that a case had been registered on the basis
of the incidents that took place and a report in this behalf had also been sent
to the superiors by the Station House Officer. It is also seen and it is supported
by the witnesses examined by the Chief Judicial Magistrate while taking
cognisance of the offence that the appellant reached the spot and thereafter a
lathi charge took place or there was an attack on the'" husband of the C
complainant and he met with his death. Obviously, it was part of the duty of
the appellant to prevent any breach of law and maintain order on the polling
day orto prevent the blocking of voters or prevent what has come to be known
as booth capturing. It therefore emerges that the act was done while the officer
was performing his duty. That the incident took place near a polling booth on
an election day has also to be taken no of. The complainant no doubt has a D
case that the deceased was picked and chosen for ill treatment and he was
beaten up by a police constable at the instance of the appellant and the Officerin-charge of the Phoolbagan Police Station and at their behest. If that
complaint were true it will certainly make the action, an offence leading to
further consequences. It is also true that the entries in the General Diary E
remain to be proved. But still, it would be an offence committed during the
course of the performance of his duty by the appellant and it would attract
Section 197 of the Code. It has to be held that a sanction under Section 197(1)
of the Code of Criminal Procedure is necessary in this case.
[324-H; 325-A-F)
1.3. For want of sanction the prosecution must be quashed. [319-B-C[
Shreekantiah Ramayya Munipal/i v. The State of Bombay, [ 1955] l SCR
1177, Amrik Singh v. The Stale of PEPSU. [1955[ 1 SCR 1302, Matajog Dobey
F
v. HC. Bhari, (1955) 2 SCR 925, Pl1khraj v. State of Rajasthan and Anr.,
[1973] 2 sec 701, B. Saha and Ors. v. MS. Kochar, [1979] 4 sec 177, G
Bakhshish Singh Brar v. Gurmej Kaur and Anr., (1987) 4 SCC 663, Rakesh
Kumar Mishra v. State of Bihar and Ors., (2006) 1 SCC 557 and Rizwan
Ahmad Javed Shaikh and Ors. v. Jammal Patel and Ors., [2001) 5 SCC 7,
relied on.
H
308
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A
2. Postponing a decision on the applicability or otherwise of Section
197(1) of the Code can only lead to the proceedings being dragged on in the
trial Court and a decision by this Court, here and now, would be more
appropriate in the circumstances of the case especially when the accused
involved are police personnel and the nature of the complaint made is kept
B in mind. [319-C-D]
Dr. Hori Ram SinKh v. Emperor. (1939) FCR 159 and H.H.B. Gill and
Anr. v. The King, 75 Indian Appeals 41, referred to.
3. Argument of this respondent that want of sanction under Section
C 197(1) of the Code did not affect the jurisdiction of the Court to proceed,
but it was only one of the defences available to the accused and the accused
can raise the defence at the appropriate time, cannot be accepted. Section
197(1), its opening words and the object sought to be achieved by it and
the decisions of this Court clearly indicate that a prosecution hit by that
provision cannot be launched without the sanction contemplated. It is a
D condition precedent, as it were, for a successful prosecution of a public
servant when the provision is attracted, though the question may arise
necessarily not at the inception, but even at a subsequent stage. The request
to postpone a decision on this question cannot be accede to. 1324-E-GI
4. The other reason given by the High Court that if the High Court
E were to interfere on the ground of want of sanction, people will lose faith
in the judicial process, cannot also be a ground to dispense with a statutory
requirement or protection. Public trust in the institution can be maintained
by entertaining causes coming within its jurisdiction by performing the
duties entrusted to it diligently, in accordance with law and the established
F procedure and without delay. Dispensing with of jurisdictional or statutory
requirements which may ultimately affect the adjudication itself, will itself
result in people losing faith in the system. So, the reason in that behalf
given by the High Court cannot be sufficient to enable it to get over the
jurisdictional requirement of a sanction under Section 197(1) of the Code
of Criminal Procedure. !326-F-HI
G
H
Per C. K. Thakker J (Dissenting):
I. The primary object of the Legislature behind Section 197 of the
Code is to protect public officers who have acted in discharge of their
duties or purported to act in discharged of such duties. But, it is equally well
..
SANKARAN MOITRA v. SADHNA DAS
309
settled that the act said to have been committed by public officer must have A ·.
reasonable connection with the duty sought to be discharged by such public
officer. If the act complained of has no nexus, reasonable connection or
relevance to the official act or duty of such public servant and is otherwise
illegal, unlawful or in the nature of an offence, he cannot get shelter under
Section 197 of the Code. In other words, protection offered by said section is B
qualified and conditional. (341-G-H; 342-A(
Dr. Hori Ram Singh v. Emperor, (1939) FCR 159, H.H.B. Gill and Anr.
v. The King, 75 Indian Appeals 41, Shreekantiah Ramayya Munipalli v. The
State of Bombay, [1955) l SCR 1177, Amrik Singh v. The State of Pepsu,
[1955) 1 SCR 1302, Matajog Dobey v. H.C. Bhari, [1955] 2 SCR 925, P. C
Arulswami v. State of Madras, (19671 1 SCR 201, Pukhraj v. State of
Rajasthan and Anr., [1973] 2 SCC 701, B. Saha and Ors. v. MS. Kochar,
(1979] 4 SCC 177, Bakhshish Singh Brar v. Gurmej Kaur and Anr., [1987] 4
SCC 663, P.K. Pradhan v. State of Sikkim, [2001) 6 SCC 704, State of Orissa
v. Ganesh Chandra Jew, (2004] 8 SCC 40, S.K. Kalimuthu v. State by DSP,
(2005] 4 SCC 512 and Rakesh Kumar Mishra v. State of Bihar and Ors., D
(20061 1 sec 55, relied on.
2.1. From the material which has been placed on record, it is amply clear
that the appellant and other police officers had acteci illegally, unlawfully and
highhandedly. In the complaint, it was stated by the widow of deceased that
accused chased her husband and assaulted him by causing several injuries
which resulted in his death. But, apart from what is stated in the complaint,
E
the Chief Judicial Magistrate had recorded statements of witnesses
mentioned in the complaint. It was stated by them that the deceased had not
indulged in any illegal activity. He had not done any unlawful act. He had no
weapon with him. He was distributing food packets at the polling booth of a
p
particular political party. He was assaulted and beaten by accused persons
who were police officers. When the deceased left the place, the police officers
chased him and continued to beat him. When deceased reached near a lake,
he requested the police officers not to beat him. He also stated that he did not
know how to swim and prayed to leave him. But the police officers did not pay
any heed to his request and continued beating, which resulted in his death.
G
[342-F-H; 343-A(
2.2. The High Court considered the post mortem examination report in
its proper perspective and was wholly justified in observing that 'it was a
merciless beating by a police officer' causing death of a person which could H
310
SUPREME COURT REPORTS
(2006] 3 S.C.R.
A not be said to be an act in discharge of official duty. The High Court was also
right in stating that post mortem report clearly indicated the nature and extent
of injuries on the victim. Other witnesses had given vivid description of the
offence committed by the accused persons. The said finding, which is supported
by material on record, cannot be said to be based on 'on evidence' or otherwise
perverse, nor it can be concluded that an error of law has been committed by
B the High Court which requires to be corrected by this Court in the exercise
of discretionary jurisdiction under Article 136 of the Constitution. Hence,
no interference is called for against the said order. 1344-D-E]
3.1. Section 210 of the Code has no application to the facts of the case
C on hand. Section 210 requires procedure to be followed when there is a
complaint case and police investigati•m in respect of the same offence.
1344-F)
3.2. Before Section 210 can be invoked, following conditions must be
satisfied: (i) There must be a complaint pending for inquiry or trial; (ii)
D Investigation by the police must be in progress in relation to the same offence
(iii) A report must have been made by the police officer under Section 173;
(iv) The magistrate must have taken congnisance of an offence against a person
who is accused in the complaint case. 1346-B-q
3.3. ln the impugned order passed by the High Court, no such
E contention appears to have been raised by the appellant. On the basis of
the complaint filed by the complainant and on being satisfied on the
material placed on record, the Chief Judicial Magistrate had proceeded
with the case which cannot be said to be illegal. 1346-D-E I
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 330
F of 2006.
G
From the Final Judgment and Order dated 11.7.2003 of the Calcutta
High Court in C.R.R. No. 1256/2003.
K.T.S. Tutsi, H.K. Puri, S.K. Puri and V.M. Chauhan for the Appellant.
Pradip Kumar Ghosh, Somiran Sharma, Amit Sharma and S. Muralidhar
for Respondent No. I
Avijit Bhattacharjee and Ms. Saumya Kondu for State.
H
The Judgment of the Court was delivered by
. }
-
SANKARAN MOITRA v. SADHNA DAS [BALASUBRAMANY AN, J.] 311
P.K BALASUBRAMANY AN, J.
A
I.
Leave granted.
2.
The husband of Respondent No. I herein, met with his end on
10.5.2001. On 12.5.2001, Respondent No.I (hereinafter referred to as the
'complainant') filed a complaint before the Deputy Commissioner of Police B
that she had come to know from the members of the public that while her
husband was coming from Beliaghata Subhas Sarobar he was beaten to death
by the police. She stated that she wanted the post-mortem examination of her
innocent husband Robindranath Das to be held in the presence of a Magistrate
and video recording of the portions of the body of her husband whereon it C
had been hit by the police. She demanded stem punishment for the murderer
of her husband. On 28.5.2001, she filed a complaint in the court cifthe Chief
Judicial Magistrate, Alipore in respect of offences, punishable according to
her under Sections 302, 201, 109 read with Section 120-B of the Indian Penal
Code. In the complaint, she stated that she was a house-wife and, that her
husband Robindranath Das, was a businessman and a social worker. The D
antecedents of her husband were above board and he always acted on the
right side of the law. He was also an active supporter of a particular political
party. On 10.5.2001, the General Election to the Assembly in West Bengal
was held. Her husband was in-charge of giving food packets to the polling
agents of a contesting political party in the booth in C.l.T. office situated at
Subhas Sarobar (Beliaghata Lake). When her husband did not tum up for E
lunch, before she left for casting her vote, she asked her brother to summon
her husband for lunch. She was returning at about 1415 hours after casting
her vote. While she was returning, a Tata Sumo Car came along, being driven
at speed and in that car she found a local resident Anath sitting. When she
reached the vicinity of Vivekananada Club, she found there assembled, a p
crowd of local people. When she enquired what had happened, one of those
assembled said that the police had severely assaulted her husband with lathi
in the lake, her husband had became unconscious, and he had been taken to
the doctor in a Tata Sumo Car. On further enquiry, she was told that her
husband was assaulted for no reason by the police with lathis on his head
near the C.I.T. office at the Lake instigated by the "Bara Babu" of Phoolbagan G
Thana and Moitra Babu, previous "Barababu" of Beliaghata Thana at about
1400 hrs. Subsequently, she came to learn from various persons of the locality
including her brother and her brother-in-law that her husband was talking
near the outer gate of the C.l.T. office area at Subhas Sarobar with Mr. S.K.
Kundu, the 'Barababu' of Phoolbagan Police station at about 1400 hours. At H
312
SllPRFMF COURr REPORl S
[2006) 3 S.C.R.
A that point of time, the previous officer-in-charge of Beliaghata Police Station,
at the time of the complaint. the Assistant Commissioner of E.S.D. (Eastern
Suburban Division), Calcutta came there by a police jeep and after talking with
the Officer in charge, Phoolbagan Police Station ordcn:d the beating up of her
husband and accordingly the Officer in charge. Phoolbagan Police Station
B instigated the police constable> who were accompanying them to beat her
husband and to kill him. Thereupon, a constable. namely. Sudhir Sikdar
assaulted her husband with a lathi and her husband tried to run away to save
his life but the police personnel chased him. Her husband fell down in the
water at the edge of the lake. lk requested the chasing police personnel not
to assault him and he told them that he did not know how to swim. Jn spite
C of repeated requests and begging for his life by her husband, the police
constable Sudhir Sikdar struck successive blvws on the head of her husband,
and other different portions of his body with a lathi, as a result of which her
husband became unconscious and fell in the lake. Then the police personnel
left the place. Her brother and brother-in-law, with the help of others who
were eye-witnesses to the incidcnt pulled out her husband from the water.
0 Thereafter. Anath a local per>.on. with the help of others removed her husband
in an unconscious state to the nearby Divine Nursing Home where the doctor
declan:d him dead. The people seeing the atrocities of the police personnel
in attacking an innocent person, became agitated. After a considerable lapse
of time, the body of her husband was removed by the police from the Nursing
E Home. According the complainant. the accused persons had no legal authority
to kill her husband, an innocent person. without any provocation from his
end. Hence the accused. in collusion with each other and having a common
intention and in pursuance of a conspiracy hatched up among themselves,
have committed an offence punishable under Sections 302, 120-B, l 09 read
with Section 34 of the Indian Penal Code. They were guilty of violating of
F the provisions of law and they were liable for exemplary punishment. Accused
Nos. I and 2 further abetted the murderous assault on the victim by accused
No.3 by instigating him openly to assault and kill her husband. The accused
persons had taken advantage ofthdr uniforms and had murdered her husband
in a planned manner and hence were guilty of murder. She feels, from the
G available circumstances, that the death of her husband was the result of a
deep rooted conspiracy and to fulfill the vested interest of some interested
persons, which would be n:vealed at the time of trial. She therefore prayed
that the learned Magistrate be pleased to take cognizance and issue process
against the accused persons and after their appearance pass necessary orders
in accordance with law. She arrayed the Assistant Commissioner Sankaran
H
SANKARAN MOITRA v. SADHNA DAS [BALASUBRAMANYAN, J.] 313
Moitra as Accused No. I, S.M. Kundu, Officer-in-charge, Phoolbagan Police A
Station, Calcutta as Accused No. 2 and Sudhir Sikdar, a police constable
attached to Phoolbagan Police Station, Calcutta as Accused No.3.
3.
On 31.5.2001, the Chief Judicial Magistrate, Alipore took the
statements of the complainant and the witnesses produced by her which
included her brother and her brother-in-law and issued process to the accused. B
The Chief Judicial Magistrate thus took cognizance of the offence. On
16.6.2001, the Chief Judicial Magistrate issued a warrant for the arrest of
accused no.I. On 30.6.2001, accused no.I, the then Assistant Commissioner
of Police, moved an application under Section 210 of the Code of Criminal
Procedure. Therein, after referring to the complaint filed by the complainant, C
he submitted that on the self same matter on the written complaint of the
complainant made on 12.5.2001, a case had been registered in the Phoolbagan
Police Station as Case No. 112 of 200 I under Section 304 of the India Penal
Code. The complainant had filed the said complaint addressed to the Deputy
Commissioner of Police, Eastern Division, Calcutta on 11.5.200 I basing upon
which the case was registered on 12.5.2001. Thereafter, one Fax message D
was sent addressed to the Joint Commissioner of Police, Calcutta concerning
the death of Robindranath Das, wherein the place of occurrence was mentioned
as Beliaghata Lake and himself and two other persons above mentioned as
the assailants with a prayer that a case be registered under Section 302,
506(11) and 114 of the India Penal Code, with a further prayer that the Fax E
message be treated as "First Information Report". That Fax was sent by a
brother of the deceased. On the self-same incident under an order of Superiors,
a case has been registered on 12.5.2001. The complaint was filed before the
Magistrate on 28.5.2001 by the informant in the Phoolbagan Police Station
case. An investigation by Police was in progress in relation to the offence
which is the subject matter of the enquiry held by the Chief Judicial Magistrate. F
In view of this, he prayed that the proceedings in the enquiry held by the
Chief Judicial Magistrate be stayed and a report on the matter from the
Officer-in-charge of Phoolbagan Police Station be called for. By a separate
application, he also prayed that the application under Section 210 of the Code
of Criminal Procedure may be directed to be put up immediately for orders. G
The Chief Judicial Magistrate ordered that the application under Section 210
of the Code of Criminal Procedure be put up on 10.7.2001.
4.
Meanwhile, accused No. 1 had filed an application for anticipatory
bail before the High Court of Calcutta. On 20.6.2003, the High Court refused
anticipatory bail. Accused No. I approached this Court challenging the order H
314
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A refusing anticipatory bail. This Court by order dated 28.7.2003 rejected the
Petition for Special Leave to Appeal stating that there was no merit in it.
5.
Accused No. I, meanwhile, filed a Petition under Section 482 of the
Code of Criminal Procedure before the High Court seeking a quashing of the
complaint on the ground that the Chief Judicial Magi>trate had no jurisdiction
B to entertain the complaint since the condition precedent for entertaining the
complaint, a sanction under Section 197( l) of the Code of Criminal Procedure,
had not been obtained. In that application. after referring to the proceedings
before the Magistrate, he pleaded that he had filed an application on 30.6.2001
under Section 210 of the Code of Criminal Procedure before the Chief Judicial
C Magistrate seeking a stay of the proceedings in view of the pending
investigation into the earlier complaint. But the Magistrate without passing
any order thereon had kept it pending with a direction to serve copy on the
other side. He submitted that the learned Magistrate had erred in issuing a
warrant of arrest at the first instance without complying with the provisions
D
of the Code of Criminal Procedure. An opportunity ought to have been given
to him to appear before court by issuing summons at the first instance. In a
case instituted on the basis of a complaint in terms of the provisions of
Sections 61 and 62 of the Code of Criminal Procedure and by not adverting
to these provisions, the Magistrate had acted contrary to law. He submitted
that the incident was not as described by the complainant. He then stated as
E follows:
"It is stated that on I 0.5.200 l at about 1410 hrs on getting an
infonnation of some disturbance at the Polling Station at C.l.T. Office.
Subhas Sarobar, the Petitioner No.2 along with Police Force reached
the spot and found violence inside and around the polling premises
F
between the supporters of C.P.I. (M) and T.M.G. On reaching there,
they tried to separate both the groups from each other to prevent
serious cognizable offence as the mob ware in agitated condition over
the issue of proxy voting, both Jamming etc. ar.d there was every
likelihood of a serious rioting. The purpose of the Police Personnel's
G
H
being present at the spot was to control the mob free and fair election.
In the meantime the petitioner also arrived at the spot and the agitated
mob started throwing brick bats and bomb indiscriminately aiming
towards the Police force. The Police stepped into action and chased
the unruly mob when a group dispersed towards two opposite
directions.
It is therefore learnt that one/two persons while retreating at random
--
SANKARAN MOITRA v. SADHNA DAS [BALASUBRAMANYAN, J.] 315
jumped in Subhas Sarobar Lake and as result of which they might A
sustain injuries on their persons and out of aforesaid persons the
victim Robindranath Das Topi was one of them.
That on the basis of the aforesaid incident a case was started by the
Police Sumo to being Phoolbagan Police Station Case No. 111 dated
10.5.2001 against 20/30 persons including Robindranath Das under B
Section 148/149/336 of the India Penal Code and Section 3 and 5 of
Explosive Substance Act.
That the Petitioner submits that initially the opposite Party No. I lodged
an information against some unknown Police Personnel as stated above
but subsequently at the instance of some designing and interested C
persons implicated the Petitioner falsely in the present complaint case
by introducing false, concocted and after thought story which was
filed before the learned Court below 18 days after the alleged incident.
That the petitioner states that the learned Magistrate erre.d in taking D
cognizance on the basis of the aforesaid complaint in absence of
Sanction for prosecution under Section 197 of the Code of Criminal
Procedure as the petitioner being the Public servant being appointed
by the Government of West Bengal and not removable from his office
save by all with the sanction of the Government and for any purported
act in discharge of his official duty cognizance without previous E
sanction is bad in the eye of law and liable to be set aside for the ends
of justice.
That the petitioner submits· that the learned Magistrate totally
overlooked the provisions of Section 197 of the Code of Criminal
Procedure i.e. no Court shall take cognizance of any offence alleged F
to have been made by a Public Servant in discharge of his official
duty without the previous sanction from the Government and as such
the order taking cognizance in absence of sanction mandatory is
unsustainable in law as also all other consequential orders are also
unsustainable in law."
6.
The High Court by order dated 11.7.2003 dismissed the application.
It overruled the contention of the accused based on Section 197 of the Code
of Criminal Procedure thus:
G
"Jn its considered view Section 197 Cr.P.C. has got no manner of H
application in the present case. Under Section 197 Cr. P.C. sanction is
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required only if the public servant was, at the time of commission of
offence, 'employed in connection with the affairs of the Union or of
a State' and he was 'not removable from his office save by or with
the sanction of the Government.' The bar under Section 197 Cr. P.C.
cannot be raised by a public servant if he is removabl<: by some
authority without the sanction of the Government.
Committing an offence can never be a part of an official duty. Where
there is no necessary connection between the act and the performance of the
duties of a public servant, section 197 Cr.P.C. will not be attracted. Beating
a person to death by a police officer cannot be regarded as having been
C committed by a public servant within the scope of his official duties."
D
After referring to the some of the decisions cited, the Court further stated:
"Committing of an offence of murder can never be a part of an
official duty. Where there is no necessary connection between the act
and the performance of the duties of a public servant, Section 197 of
the Code will not be attracted. Merciless beating by a police officer
causing death of a person can never be said to be an act in discharge
of his official duty."
The Cout t stated that since from the statement of the doctor who conducted
E the post-mortem examination it appeared that the victim had suffered as
many as six serious injuries and in the opinion of the doctor, the death was
due to the injuries to the head inflicted on the deceased, it was justified in
the view it had taken. The learned Judge wound up by stating that it was not
a fit case for interference by the High Court and if the Court interferes with
the proceedings on any of the grounds urged by the accused, people will lose
F their confidence in the administration of justice. The High Court directed the
Magistrate to proceed with the matter with utmost expedition and in accordance
with law.
7.
Accused No. I challenged this order before this Court by way of
G this Petition for Special Leave to Appeal. In the Petition for Special Leave,
Accused No. I, the appellant, also referred to the warrant of arrest pending
against him and prayed for a stay of further proceedings. On 22.8.2003, this
Court while issuing notice also stayed further proceedings before the Chief
Judicial Magistrate, pending further orders. It appears that, as of now, neither
accused No. I has been arrested nor the investigation completed. Learned
H counsel appearing on behalf of the State of West Bengal could only say that
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SANKARAN MOITRA v. SADHNA DAS [BALASUBRAMANYAN, J.] 317
the investigation has not been completed. Learned counsel for the complaint, A
on the other hand, submitted that the attitude adopted was one of helping
the accused since they were police officers. What is relevant for our purpose
is to notice that investigations into the two crimes registered, namely, Case
No. 111 under Sections 148, 149, 336 IPC read with Sections 3 and 5 of
Explosive Substances Act and Case No. 112, registered on the complaint B
made by the complainant herein on 11.5.200 l, have not been completed.
8.
It is true that at the time the complaint was made before the Chief
Judicial Magistrate by the complainant on 28.5.2001, there would have been
no material before him about the investigation pending on the two cases
registered in the Phoolbagan Police Station as Case Nos. 111 and 112. The C
Magistrate took cognizance of the complaint filed before him after recording
the statements of witnesses on 31.5.2001 and issued process and also issued
warrant for arrest of the appellant on 16.6.200 I. Therefore, at that stage, it
is possible, as contended by the learned counsel for the complainant, that
there was no occasion for the Chief Judicial Magistrate to consider the
applicability of Section 197 of the Code of Criminal Procedure. The occasion D
had not arisen. In this context, learned counsel for the complainant submitted
that the contention sought to be raised by the appellant based on Section 197
of the Code of Criminal Procedure need not be decided at this stage and it
may be open to the appellant to raise that objection after he has appeared and
while raising his defenses. Learned counsel relied on the observations of the E
Varadachariar, J. in the decision in Dr. Hori Ram Singh v. Emperor, (1939)
FCR 159. He relied on the passage:
"As the consent of the Governor, provided for in that Section, is a
condition precedent to the institution of proceedings against a public
servant, the necessity for such consent cannot be made to depend F
upon the case which the accused or the defendant may put forward
after the proceedings had been instituted, but must be determined
with reference to the nature of the allegations made against the public
servant, in the suit or criminal proceeding. If these allegations can .. ot
be held to relate to "any act done or purporting to be done in the
execution of his duty" by the defendant or the accused "as a servant G
of the Crown," the consent of the authorities would, prima facie, not
be necessary for the institution of the proceedings. If, in the course
of the trial, all that could be proved should be found to relate only
to what he did or purported to do "in the execution of his duty," the
proceedings would fail on the merits, unless the Court was satisfied H
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that the acts complained of were not done in good faith: S.270(2).
Even otherwise, the proceedings would fail for want of the consent
of the Governor, if the evidence established only official acts. As the
Appellate Court has not pronounced any opinion on the evidence, we
are not in a position to say whether on the facts proved, the
proceedings could be held to fail on either of the above grounds"
Learned counsel further relied on the decision in H.H. B. Gill and Anr. v. The
King, (75 Indian Appeals 41) in an appeal from the decision in 1947 F.C. 9
to point out that there was no difference between Section 270 of the
Government of India Act dealt with by Varadachariar, J. and Section 197 (I)
C of the Code. He also pointed out that the Privy Council had approved the
view expressed by Varadachariar, J. in Dr. Hori Ram Singh v. Emperor
(supra). Lord Simonds speaking for the Privy Council stated:
D
E
F
"In the consideration of S.197 much assistance is to be derived from
the judgment of the Federal Court in 1939 F.C.R. 159, and in particular
from the careful analysis of previous authorities which is to be found
in the opinion of Varadachariar J. Their Lordships. while admitting
the cogency of the argument that in the circumstances prevailing in
India a large measure of protection from harassing proceedings may
be necessary for public officials cannot accede to the view that the
relevant words have the scope that has in some cases been given to
them. A public servant can only be said to act or to purport to act in
the discharge of his official duty, if his act is such as to lie within the
scope of his official duty. Thus a Judge neither acts nor purports to
act as a Judge i11 receiving a bribe, though the judgment which he
delivers may be such an act: nor does a Government medical officer
act or purport to act as a public servant in picking the pocket of a
patient whom he is examining. though the examination itself may be
such an act. The test may well be whether the public servant, if
challenged, can reasonably claim that, what he does, he does in virtue
of his office.''
G
9.
We find that even if we were accept the submission of learned
counsel for the complainant that the stage is not reached for considering
whether sanction under Section 197( I) of the Code of Criminal Procedure is
required in the present case or not, it would only be postponing the
consideration of that question. As we have noticed earlier, in his application
filed before the Chief Judicial Magistrate invoking Section 210 of the Code
H of Criminal Procedure and praying for a stay of further proceedings, the
•
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SANKARAN MOITRA v. SADHNA DAS [BALASUBRAMANY AN, J.] 319
appellant, has pleaded that the act was done by him in performance of his A
duty and in the application filed under Section 482 of the Code of Criminal
Procedure before the High Court in addition to reiterating that the alleged
offence was committed by him in the course of performance of his duty, he
had also invoked Section 197(1) of the Code of Criminal Procedure and had
pleaded that the proceedings cannot go on and would be without jurisdiction B
for want of sanction under Section 197(1) of the Code of Criminal Procedure.
Of course, the High Court has taken the view that the complaint. would not
attract Section 197(1) of the Code and that was the reason for rejecting the
prayer of the appellant to quash the proceedings as being without jurisdiction
for want of sanction. Learned counsel for the complainant has made a
submission that the whole investigation was being delayed and the whole C
process was being delayed in view of the fact that the accused involved were
police personnel and the State was more interested in protecting them than
in having justice done. When we take note of this submission, postponing a
decision on the applicability or otherwise of Section 197(1) of the Code can
only lead to the proceedings being dragged on in the trial Court and a decision
by this Court, here and now, would be more appropriate in the circumstances D
of the case especially when the accused involved are police personnel and the
nature of the complaint made is kept in mind.
10. We may first try and understand the scope of Section I 97 and the
object of it. This Court in Shreekantiah Ramayya Munipa/li v. The State of E
Bombay, [1955] I SCR 1177 explained the scope of Section I 97 thus:
"Now it is obvious that if Section 197 of the Code of Criminal
Procedure is construed too narrowly it can never be applied, for of
course it is no part of an official's duty to commit an offence and
never can be. But it is not the duty we have to examine so much as p
the act, because an official act can be perfom1ed in the discharge of
official duty as well as in dereliction of it. The section has content
and its language must be given meaning. What it says is -
"when any public servant... .. .is accused of any offence alleged to
have been committed by him while acting or purporting to act in the G
discharge of his official duty .. "
We have therefore first to concentrate on the word "offence".
Now an offence seldom consists of a single act. It is usually composed
of several elements and, as a rule, a whole series of acts must be H
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proved before it can be established. In the present case, the elements
alleged against the second accused are, first, that there was an
"entrustment" and/or '"dominion"; second, that the entrustment and/
or dominion was "in his capacity as a public servant"; third, that there
was a "'disposal"; and fourth, that the disposal was "'dishonest". Now
it is evident that the entrustment and/or dominion here were in an
official capacity, and it is equally evident that there could in this case
be no disposal. lawfu I or otherwise, save by an act done or purporting
to be done in an official capacity. Then:fore, the act complained of,
namely the disposal, could not have been done in any other way.