PRABHAKAR V. SINARI versus SHANKER ANANT VERLEKAR

PRABHAKAR V. SINARI

SHANKER ANANT VERLEKAR

Navember 29, 1968

[J. C. SHAH AND A. N. GROVER, JJ.]

Code of Criminal Procedure, •· 197-Sanction for prosecution of public servant-Police Officer interfering in dispute over land and ask-ing one party to take possession-Whether act• in discharge of official duty. private complaint was !!led again•! the appellant who wa. De-puty Superintendent of Police. According to the statement of the com-plainant there was dispute between him and certain hawkers who wanted to trespass on his land and at his instance the police wa. in-formed. The appellant came to the spot, threatened and assaulted him, . and suggested to the hawkers to enter upon the land, whereupon the hawkers took possession df the land. The Magistrate after recording the statement of the complainant issued summons to the appellant and others for answering charges under ss.' 149, 341, 342, 352, 500 and 504 of the Indian Penal Code read with s. 34 thereof. The appellant filed petition for revision under s. 435 Cr. P.C. before the Sessions Judge in which the main point taken was that the l'revious sanction under s. 197 Cr. P.C. required for the prosecution of the appellant had not been ob-tained. The Sessions Judge ordered that the complainant be asked to obtain the required sanction before prosecuting the appellant. But the Judicial Commissioner's Court ordered that the order of the Magistrate issuing the summons be confirmed. In appeal to this Court by special leave,

HELD : The language of •· 197 Cr. P.C. clearly is that no court can take cognizance of an offence alleged to have been committed by any nerson belonging to the cate~ories mentioned in the section which would include the appellant when he is accused of an offence alleged to have been committed by him while acting or purporting to act in the dis-charge of his official duty.

In the present case it wa• not clear in what cal'acity the appellant came to the snot. On the basis of the statement of the comnlainant it was not established that he came in the capacity of police officer.

Ordinarily if per>on is in possession of some pronerty and other per~ons a"e threatenin~ to disnossess him it is no part of the duty of pohce officer to take sides and decide the dispute in favour of one party or th~ other or to. force one party to give uo possession to the other, even 1f he was satisfied that the party seeking to take po8'ession wa. lawfully entitled .to ~o so. This the police officer could only do if there had been anv direction by competent court for rendering help in the matter of delivery of possession.

[In dismissing the apoeal the Court observed that it would be open to the appell~~t to est.ablish during the course o'f further proceedingo that the requ1S1te sanction under s. 197 must be obtained.]

King' ;oi;/d 7;, ?'f. f!'ood ~lt. Math~ms King, v. 15 State I.A. 41, of Wm Phanindra Chandra Bengal, [1955] Neol!V I S.C.R. \', 216, TM • · · , ata/og Dubey v. H. C. Bhari, [1955) 2 S.C.it 925,

[1969] 2 S.C.R.

934, Amrik Singh v. State of Pepsu, [19551 1 S.C.R. 1302 and Nagra; v. State of Mysore, [1964} 3 S.C.R. 671, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of 1967. ·

Appeal by special leaw from the judgment and order dated November 19, 1966 of the Judicial Commissioner Court, Goa, Daman and Diu in Criminal Reference No. 103 of 1966. R. N. Sachthey, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by

Grover, J. The sole point for decision in this appeal by special leave is whether complaint which had been filed against the appellant and four other persons by the respondent for various alleged offences could be entertained without· necessary sanction being obtained for the prosecution of the appellant, who at the material time, was the Deputy Superintendent of Police, under s. 197 of the Criminal Procedure Code.

The original complaint is not before us as it has not been included in the appeal record but the allegations contained there-in are given in the judgment of the learned Judicial Cornmis· sioner. The complainant alleged that on March 5, 1966 at about 4 p.m. accused Nos. 2 to 5 who were hawkers by profession and some other persons attempted to trespass on his land in Margao town with the intention of putting up stalls there. The complainant having been threatened by them, sent his brother to the police station. The police came and asked the hawkers to keep their handcarts at the place where they were kept before. Later on at about 5-30 p.m. the appellant came to the spot and spoke to the complainant in very arrogant tone. The appellant informed the complainant that he was Deputy Superintendent of Police and that he had in his possession documents which proved that the land belonged to one Atma Ram. The appellant asked the complainant fo produce his documents of title but the com-tifainant replied that those documents had been prc1duced by him in some litigation in the civil courts. The aupellant is then alleged to have threatened the complainant that 'lie would Jock him up in case there was any interference with what the hawkers wanted to do. The appellant also beckoned accused Nos. 2-5 and other hawkers to enier upon the land. When the complainant 'protested he was warned by the appellant that if he talked he would be slaoped. The appellant also assaulted him. There-after the possession of the land was taken over by the hawken.

1966 at

The magistrate to whom the complaint was presented examin-ed the complainant und(}r s. 200, Criminal Procedure Code

and issued summons to answer the charges under ss. 149, 341, 342, 352 500, 503 and 504 read with s. 34 against the appel-lant and ~ther accused persons requiring them to appear on April 19, 1966. The appellant filed petition . for revisi<?n under s. 435 of the Code before the learned SeSSJons Judge m which the main poini taken was that the previous sanction under s. 197, Cr. P.C., to prosecute the appellant was required which had not been obtained. The learned SessiQns Judge made an order recommending that the magistrate be directed to require the complainant to obtain the requisite sanction before prosecuting the appellant. This matter was heard by a: bench consisting of the Judicial Commissioner and the Additional Judicial Commis-sioner. The Judicial Commissioner was of the view that there was no material on the record to come to the conclusion that the acts complained of would be protected by the provisions of s. 197 (1) of the Code. The learned Additional Judicial Com-missioner took contrary view and held that sanction was neces-sary. The order of the court was that there being no third Judge to resolve the difference of opinion, the order of the learned magistrate issuing the summons be confirmed in terms of proviso to s. 7 (2) of the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation, 1963.It may be mentioned that in the statement recorded under s. 200 of the Criminal Procedure Code, by the magistrate, the complainant made more or less the same allegations as were made in the complaint. According to the learned Additional Judicial Commissioner in the statement made in court it was not affirmed that the complainant had been wrongly retrained or confined nor was it mentioned that he was actually assaulted in the sense that physical force was used against him. The worst that could be said, according to the Additional Judicial Com-missioner, was that the appellant had warned the respondent that he would be arrested if he interfered with the entry of the haw-kers on the disputed land and that the appellant also made some ge~t~res .w!th the hand indicating threat of assault. In our opm10n. 1t 1s not necessary to go into the allegations in the original compla!nt. It would suffice to read the statement made by the complamant before the magistrate which is reproduced below :

. "I confirm the matter in my complaint. On 5th mstant, at about 4.00 p.m. the accused Nos. 2 to 5 attempted to trespass upon my plot situated near the ma~ket of. this city with view of setting upon thereon their m_oblle shops. I, therefore, sent my brother to the Pohce, who came to the spot and sent the vendors ~wa~ .. At about 5.30 p.m. on the same day Mr. Sinari, m c1'?1. dre~s turned up at that place. At that time, I was sitting in the verandah of the shop of one Kbaran-

At an earlier stage it had be~n observed that it did ~ot matter if the acts exceeded were stnctly necessary for the discharge of the duty. What had to be found out was whether the act and the official duty were so inter-related that o~e could postulate reasonably that it was done by the accused m the performance of the official duty though possibly in excess of the needs and requirements of the situation Pepsu('), Venkatarama Iyer .. J. In speaking for Amrik Singh th.e Court v. State s~mmed of up the result of the various decisions on the su~iect and said t?at it was not every offence committed by public servant which required sanction for prosecution under s. 197 ( 1) of t_he Co?e of Criminal Procedure nor even every act done by him while he was actually engaged in the performance of his officia~ dutie~. But if the act complained of was directly concerned with hiS .official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be neces-sary and that would be so, irrespective of whether it was in fact, proper discharge of his duties or not.

Reference may be· made to Nagrai v. State of Mysore(') in which the appellant, Sub-Inspector of Police, was committed to Sessions Court for trial on complaint that he and another person had severely beaten one T and when he was forcibly taking him away and was requested by K to excuse T he wantonly fired on two persons. Emphasis on the question of sanction has been laid on the rule that the jurisdiction of the court to proceed with the complaint emanates from the allegations made in the com-plaint and not from what is alleged by the accused or what is finally established in the case as result of the evidence record-ed.

We are unable to agree with the learned Additional' Judicial Commissioner that if the allegations of the complainant are taken to be correct it was established that the appellant held out ~reats t~ arrest the complainant ?r to give him slap on his face m the discharge or puroorted discharge of his duties. There are ~any "!alters o~ which there is comi;il~te absence of any matenal or mformatmn. In the first place 1t 1s not clear in what can.acity the appellant came to the spot. According to the com-G plamai!lt he sent his brother to the police station because the hawkers were attemnting to tresnass on his land. Normally it would be the officer-in-charge of the police station who would go to the snot to prevent anv breach of peace or apprehended breach of neace. Even if the appellant who was superior officer con!? come to nrevent any ugly. situation arising between the complamant and the hawkers. It 1s not established that the apoellant came in the canacity of police officer. On the con-trary the necessary implication in the statement of the complain-

ant is that the appellant came in civil dress, wanted the h~wkcrs to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he resisted he would be slapped in his face. Until some more mate-rial is placed on the. record it cannot be held that it was any part of the duty of the appellant to ensure that the hawkers _we!e put_in possession of the disputed land. It may be that the appel-lant was entitled to interfere and take proper steps if he appre-hended any breach of peace but there is nothing whatsoever in the complainant's statement which would show that any such situation existed which could justify interference by the appellant. Ordinarily if person is in possession of some property and other persons arc threatening to dispossess him it is no part of the duty of police officer to take sides and decide the dispute in favour of one party or the other or to force one party to give up possession to the other, even if he was satisfied that the party seeking to take possession was lawfully entitled to do so. This the police officer could only do if there had been any direction by competent court for rendering help in the matter of delivery of possession. Whatever way the matter is looked at we are un-able to hold on the basis of the allegations contained in the state-ment .of the complainant that the acts alleged against the appel-lant were such as could be regarded to have been committed by him while acting or purporting to act in the discharge: of his official duties. It will be open to the appellant to establish during the course of further proceedings that the requisite sanction under s. 197 must be obtained; but at this stage we concur in the view of the learned Judicial Commissioner thaf no such sanc-tion was necessary.

The appeal fails and it is dismissed.

. Appeal dismis8ed.

-'-.,..