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PETITIONER: PRABHAKAR V. SINARI

       Vs.

RESPONDENT: SHANKER ANANT VERLEKAR

DATE OF JUDGMENT: 29/11/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C.

CITATION:  1969 AIR  686            1969 SCR  (2)1013  CITATOR INFO :  R          1970 SC1661  (6)

ACT: Code of Criminal Procedure s. 197-Sanction  for  prosecution of    public servant-Police Officer interfering  in  dispute over  land and asking one party to  take  possession-Whether acts in  discharge of official duty.

HEADNOTE:     A private complaint was filed against the appellant  who was  a  Deputy Superintendent of Police.  According  to  the statement of the complainant there was a dispute between him and  certain hawkers  who wanted to trespass on his land and at  his instance the  police  was  informed.  The  appellant came  to  the  spot,  threatened  and  assaulted  him,   and suggested to the hawkers to enter  upon the load,  whereupon the  hawkers  took possession of 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  a petition  for  revision  under s. 435 Cr.  P.C.  before  the Sessions  Judge in which the main point taken was  that  the previous  sanction  under s. 197 Cr. P.C. required  for  the prosecution  of  the appellant had not been  obtained.   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 s. 197 Cr. P.C. clearly is  that  no court can take cognizance of an offence alleged to have been committed   by  any  person  belonging  to  the   categories 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 discharge of his official duty.   In the present case it was not clear  in what capacity the appellant came to the spot.  On  the basis of the  statement of  the complainant it was not established that he  came  in the capacity of a police officer.   Ordinarily  if a person is in possession of some  property

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and other persons are threatening to dispossess him it is no part  of  the  duty of a police officer to  take  sides  and decide the dispute in favour of one party or the other or to force one natty 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 a competent court  for  rendering  help in the  matter  of  delivery  of possession.   [In dismissing the appeal the Court observed that it would be  open to the appellant to establish during the course  of further   proceedings that the requisite sanction  under  s. 197 must be obtained.]   Ronald  Wood  Mathams v. State of West  Bengal,  [1955]  1 S.C.R. 216,   H.B. Gill v. The ICing, 75 I.A. 41,  Phanindra Chandra  Neogv v. The King, 76 I.A. 10, Matalog Dubey v.  H. C. Bhari, [1955] 2 S.C.R. 925, 1054 934, Amrik Singh v. State of Pepsu, [1955] 1 S.C.R. 1302 and Nagraj v. State of Mysore, [1964] 3 S.C.R. 671, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 152  of 1967.     Appeal  by  special leave 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 a 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  therein are given in the judgment of the  learned Judicial   Commissioner.   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 a 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  Alma  Ram.   The appellant asked the complainant to produce his documents of. title  but the complainant replied that those documents  had been produced by him in some litigation in the civil courts. The  appellant  is  then  alleged  to  have  threatened  the complainant that he would lock 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  enter upon the land.  When the complainant protested  he was  warned by the appellant that if he talked he  would  be

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slapped.  The appellant also assaulted him.  Thereafter  the possession of the land was taken over by the hawkers.     The  magistrate  to  whom the  complaint  was  presented examined  the complainant under s. 200,  Criminal  Procedure Code 1015 and issued summons to answer the charges under ss. 149, 341, 342,  352,  500,  503 and 504 read with s.  34  against  the appellant and other accused persons requiring them to appear on  April  19, 1966.  The appellant filed a   petition   for revision  under  s.  435  of the  Code  before  the  learned Sessions  ’Judge in which the main point 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  Sessions 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 Commissioner.   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 Commissioner took a contrary view and held that sanction was necessary.  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  Commissioner,  was  that  the appellant  had  warned  the  respondent  that  he  would  be arrested  if he interfered with the entry of the hawkers  on the  disputed  land and that the appellant. also  made  some gestures with the hand  indicating threat  of  assault.   In our  opinion it is not necessary to go into the  allegations in  the  original complaint.  It would suffice to  read  the statement  made  by the complainant  before  the  magistrate which is reproduced below:                   "I  confirm the matter in  my   complaint.               On 5th instant, at about 4.00 p.m. the accused               Nos. 2 to 5 attempted to trespass upon my plot               situated  near the market of this city with  a               view  of  setting upon  thereon  their  mobile               shops.  I, therefore, sent  my brother to  the               Police,  who  came to the spot  and  sent  the               vendors  away. At about 5.30 p.m. on the  same               day  Mr. Sinari, in civil dress turned  up  at               that place. At that time, I was sitting in the               verandah of the shop of one Kharan- 1016               gute situated at the same place.  He called me               near  him.  Thereafter he asked me  whether  I               knew   him,   to  this  I   replied   in   the               affirmative.    After  this,   he   identified               himself  as  Dy.  Superintendent   of   Police               and  threatened me that if I  interfered  with

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             vendors he would arrest me.. Subsequently,  he               directed  the  vendors to enter  my  plot  and               warned  me that he should slap me on my  face.               In  case I oppose to this. He told me  further               that  he was dealing with the  case,   when  I               brought  to his notice that my documents  were               lying  with  the  Municipality  and  with  the               Court.  The same accused made some gestures of               threats of assault with hands.  I kept  myself               mum in  view of this  unusual attitude and the               vendors’ took  possession of my pro-     The   learned   Judicial  Commissioner   as   also   the Additional Judicial Commissioner have discussed the case law on  the  subject exhaustively and have also  summarised  the principles  deducible from the various  pronouncements.   It seems to us that there is no difficulty in finding the  true rule  which  has  been  laid  down  by  numerous   decisions including  those of the  Privy  Council, Federal  Court  and this  Court.  It is only in the  application of the  settled rule  that certain amount of difficulty may  be  experienced owing  to  the peculiar  facts of a  particular  case.   The language  of s. 197, Cr. P.  Code clearly is that  no  court can  take  cognizance  of an offence alleged  to  have  been committed   by  any  person  belonging  to  the   categories 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 discharge  of  his  official duty. This  Court  observed  in Ronald  Wood Matham  v.  State  of  West Bengal(1) that  the question  whether  sanction under s. 197 was  necessary  for instituting  proceedings  on charges of  conspiracy  and  of bribery  stood  concluded by the decisions of  the  Judicial Committee  in H. H. B. Gill v.  The King(2)  and   Phanindra Chandra  Neogy  v. The King(3) and must be answered  in  the negative.  so  far  as  the  appellant  in  that  case   was concerned.   After  a full discussion of the  case  law  the result was stated in Matajog Dubey v.H.C. Bhari(4): thus:                      "There must be a reasonable  connection               between the act and the discharge of  official               duty;  the act must bear such relation to  the               duty that the accused could lay a  reasonable,               but not a pretended or fanciful claim, that he               did  it  in the course of the  performance  of               his  ..... duty." 76 I.A. 10.                    (4) [1955] 2 S.C.R, 925, 934, 1017 At  an  earlier stage it had been observed that it  did  not matter if the acts exceeded were strictly necessary for  the discharge the duty. What had to be found out was whether the act  and  the official duty were so inter-related  that  one could  postulate reasonably that it was done by the  accused in  the performance of the official duty though possibly  in excess  of the needs and requirements of the situation.   In Amrik  Singh   v.   State  Pepsu(x),  Venkatarama  lyer   J. speaking  for the Court summed up the result of the  various decisions  on  the subject and said that it  was  not  every offence  committed  by  a  public  servant  which   required sanction  for  prosecution under s. 197(1) of  the  Code  of Criminal  Procedure nor even every act done by him while  he was  actually  engaged in the performance  of  his  official duties. 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  necessary  and  that  would   be   so, irrespective  of whether it was in fact, a proper  discharge

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of his duties or not.     Reference may be made to Nagraj v. State of Mysore(2) in which   the  appellant,  a  Sub-Inspector  of  Police,   was committed to Sessions Court for trial on a 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 complaint and not  from  what  is alleged by the accused or what is finally established in the case as a result of the evidence record-     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 threats to arrest the complainant  or to give him a slap on his face in the discharge or purported discharge  of his  duties.  There are many matters on  which there is  complete absence of  any material or  information. In  the  first place it is not clear in  what  capacity  the appellant came to the spot. According to the complainant  he sent his brother to the police station  because  the hawkers were attempting to trespass on his land.  Normally it  would be  the officr-in-charge of the police station who would  go to  the spot to prevent any breach of peace  or  apprehended breach of peace.  Even if the appellant who was  a  superior officer  could  come to prevent any ugly  situation  arising between  the  complainant  and  the  hawkers.   It  is   not established  that  the appellant came in the capacity  of  a police  officer.  On the contrary the necessary  implication in  the  statement  of  the  complain  [1955]:1  S.C.R.1302. f2) 11964138.CR. 671. 1018 ant  is that the appellant came in civil dress,  wanted  the hawkers  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 material 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 were put_in  possession of  the  disputed  land. It may be that  the  appellant  was entitled   to  interfere  and  take  proper  steps   if   he apprehended  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 a person is  in possession   of  some   property   and  other  persons   are threatening to dispossess him it is no part of the duty of a 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  a  competent  court  for rendering  help  in the matter of  delivery  of  possession. Whatever  way the matter is looked at we are unable to  hold on  the basis of the allegations contained in the  statement of  the  complainant  that  the  acts  alleged  against  the appellant  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 that no  such  sanction  was

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necessary.  The appeal fails and it is dismissed. G.C.                                     Appeal. dismissed. 1019