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PETITIONER: BAKHSHISH SINGH BRAR

       Vs.

RESPONDENT: SMT. GURMEJ KAUR AND ANR.

DATE OF JUDGMENT12/10/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) DUTT, M.M. (J)

CITATION:  1988 AIR  257            1988 SCR  (1) 450  1987 SCC  (4) 663        JT 1987 (4)   190  1987 SCALE  (2)828

ACT:      Criminal Procedure  Code, 1973: ss, 196 & 197-Rationale of-Protection of  public servants  in discharge  of official duties-Immunity from  being harassed in criminal proceedings and   prosecution-Citizens’   rights-Protection   of-Equally important.

HEADNOTE:      The petitioner,  a police  officer, was  charged by the Judicial Magistrate  under ss. 148/302/149/325/149 and under ss. 323/149  of the  Indian Penal Code for allegedly causing grievous injuries to the complainant and death of one of the alleged offenders  during a  raid  and  search  for  illicit liquor and  unlicenced arms,  and committed  to the Court of Sessions for  trial. His contention was that under s. 196 of the Code of Criminal Procedure the cognizance of the offence could not  be taken nor the trial proceeded with without the sanction of the appropriate authorities under s. 197 of that Code.  The   Sessions  Court   took  the  view  that  unless cognizance was taken and the facts and the circumstances and the nature of the allegations involved in the case were gone into, it  would not  be possible to determine whether or not the raiding  party exceeded its limits or power while acting in the discharge official duties.      The High  Court dismissed  the application under s. 482 of the  Code  of  Criminal  Procedure  for  staying  further proceedings in the Sessions Court.      In the  special leave  petition to  this Court  on  the question: Whether  without the  sanction under s. 197 of the Code of Criminal Procedure the proceedings could go on.      Dismissing the special leave petition, ^      HELD: l.  The order  passed by  the Sessions  Court was proper and  the High Court was right in not interfering with the same. [455G]      2. Criminal trials should not be stayed in all cases at the prelimi 451 nary stage  because that  will cause  great  damage  to  the evidence. It  is necessary to protect the public servants in the discharge of their duties. They must be made immune from

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being harassed in criminal proceedings and prosecution, that is the  rationale behind  ss. 196  and 197  of the  Criminal Procedure Code.  But it  is equally important that rights of the citizens  should be  protected and no excesses should be committed. In  the facts  and  circumstances  of  each  case protection  of   public   officers   and   public   servants functioning in  discharge of  official duties and protection of private  citizens have,  therefore,  to  be  balanced  by finding out  as to  what extent  and how  far  is  a  public servant working  in discharge  of his  duties  or  purported discharge of  his duties, and whether the public servant has exceeded his limit. [455F,C-E]      Pukhraj v. State of Rajasthan and Anr., [1974] 1 S.C.R. 559, referred to      In the  instant  case,  it  is  alleged  that  grievous injuries were inflicted upon the complainant and as a result of injuries  one  of  the  alleged  accused  had  died.  The question is while investigating and performing his duties as a police  officer was  it necessary  for the  petitioner  to conduct himself  in such a manner which would result in such consequences.  Therefore,   the  trial  should  proceed.  If necessary the  question of  sanction under  s.  197  of  the Criminal Procedure  Code may be agitated after some evidence have been noted by the Sessions Court. [455C, H]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Crl. ) No. 419 of 1987.      From the  Judgment and  order dated  11.12.1986 of  the Punjab and  Haryana High Court in Criminal Miscellaneous No. 7421-M of 1 986 .      R.K. Garg,  Ms. Suman  Kapoor and  R.P. Singh  for  the Petitioner.      P.N.  Puri,   R.S.  Sodhi   and  R.S.   Suri  for   the Respondents.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI, J. This is a petition for leave to appeal under  Article 136  of the  Constitution against  the judgment and  order of  the High Court of Punjab and Haryana dated 11th  of December,  1986. By  the order the High Court has dismissed the applica- 452 tion under  section 482  of the  Code of  Criminal Procedure praying that  further that proceedings be stayed in Sessions Case  No.   1  of   25th  of   March,  1985  under  sections 148/302/325/323/149/120-B  of  the  I.P.C.  The  High  Court dismissed this  petition because  it found  no merit  in the same.      The petitioner,  herein alongwith  14 more persons were charged by  an order  dated 30th of May, 1986 under sections 148/302/149/325/149 and under sections 323/149 of the I.P.C. for allegedly  causing death  of  one  Ajit  Singh  and  for causing hurt  to Smt. Gurmej Kaur, the complainant. The case was committed  to the  Court of  Sessions  by  the  Judicial Magistrate 1st Class, Kapurthala vide order dated 20.2.1985. As per  the case set up by the complainant Smt. Gujmej Kaur, her son  Ajit Singh  since deceased was involved in a murder case pertaining  to the murder of head constable Bagga Singh of Police  Station Dhilwan.  That  case  was  registered  in police station  Bhogpur, District  Jalandhar and  Ajit Singh was tried  alongwith other  persons and was sentenced by the Additional Sessions  Judge but  he was acquitted by the High Court. The  complainant further  states that  Ajit Singh was

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also involved  by the  police in a case of dacoity of police station Kotwali Kapurthala and police station Dhilwan during investigation of the murder case in question. Ajit Singh was also convicted  in those  cases but  acquitted by  the  High Court. It is the case of the complainant that Ajit Singh was allegedly involved  in some other murder and dacoity case by the police  which was  tried in  Himachal Pradesh  and  Ajit Singh was  acquitted by  the Himachal  Pradesh  High  Court. Mohinder Singh  and Des  Raj also  co-accused in  this  case allegedly investigated  cases of  Kapurthala and  Ajit Singh was tortured  by Des  Raj and  the leg  of  Ajit  Singh  was broken. Ajit  Singh then  filed complaint  against  Des  Raj (also accused  in this  case) and  he was  summoned  by  the Judicial Magistrate  1st p  Class, Kapurthala  and thus  the relation between  Ajit Singh  and Kapurthala  Police Station had become  very strained.  Ajit Singh  had then  settled in U.P., according  to the allegations in the complaint, out of fear of  the police.  It is  stated that  on or about 7th of April, 1983  at about  3  p.m.  all  the  accused  including present petitioner went to village Bhandal Bet. They went to the house  of the  complaint where she was present alongwith her sons  Ajit Singh  and Manjit  Singh and other members of the family.  Manjit Singh  and Ajit  Singh, it  was alleged, were surrounded by the police officials and Manjit Singh and Ajit Singh  protested  against  this.  Then  Bakshish  Singh accused, petitioner,  directed his companions to arrest Ajit Singh and  Manjit Singh and tie them with ropes and put them in the  truck for  the purpose of throwing them in the river Beas. It was further alleged that Manjit 453 Singh and  Ajit Singh  ran to  save themselves but they were attacked by  the  police  officials.  The  complainant  also received injuries  in the  A course  of this occurrence when she was  given dang  blows. Ajit Singh and Manjit Singh were given blows  by the  police officals  on the  asking of  the appellant herein  Bakhshish Singh  Brar, who  is the  Deputy Superintendent of  Police. A  hue and  cry was raised. Other persons came, Ajit Singh and Manjit Singh became unconscious and then  they were  taken away in the truck for the purpose of throwing  them in  the river, according to the complaint. The case  of the complainant further was that Ajit Singh and Manjit Singh  were then  got admitted by the police in Civil Hospital, Kapurthala  as indoor patients and Ajit Singh died as a  result of  injuries on  8th of  March,  1983.  It  was further  alleged   that  the  accused  who  are  the  police officials fabricated  false evidence  in order to make out a defence and  registered two  false cases  one under  section 61(1)(a) of  the Punjab  Excise Act, F.I.R. No. 70 dated 7th of April 1983 and the other under section 307, I.P.C. F.I.R. No. l 1 dated 7th April, 1983.      On the other hand, the case of the respondents was that the police  party headed  by the  petitioner including 13 of his subordinates went to the Haveli of Jit Singh alias Jita, situated in  village Bhandel  Bet in connection with raid on secret information  to the  effect that  he is  indulging in illicit liquor  and unlicenced  arms. There  were two  First Information Reports  one  under  section  61(1)(14)  of  the Punjab Excise  Act and the other under section 25(54)(59) of the Arms  act were  recorded in Police Station Dhilwan. That on the  same date  the police party raided the Haveli of Jit Singh alias  Jita, where Manjit Singh, Jasbir Singh, Balwant Singh, Chhinda  and Majwi, residence of village Bullowal and Gurdev Singh resident of village Ucha were present there. It is further  alleged that  seeing the  police  party,  Jasbir Singh fired  at Ajit  Singh, who  saved  himself  by  hiding

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himself behind  a wall.  The other  persons armed with dangs and dhope attacked the police party.      There are  rival versions  involved in  this case.  The question was  whether without the sanction under section 197 of the  Code of  Criminal Procedure the proceedings could go on. It  is quite  apparent that  as a  result of the alleged search and  raid, which  was conducted  by the petitioner in discharge of his official duties certain injuries, which are described as  grievous, injuries  had been  inflicted on the complainant and  one of  the alleged  offenders had died. In this  case,  admittedly,  the  petitioner  is  a  Government servant. Admittedly, there was no sanction under section 197 of the Cr. P.C. had been taken. The trial in this case H 454 is one  of the  offences mentioned  under section 196 of the Cr. P.C.  The A  contention of the petitioner was that under section 196  of the  Cr. P.C.  the cognizance of the offence could not  be taken  nor the  trial  proceeded  without  the sanction  of   the  appropriate   authorities.  The  learned Additional Sessions Judge, Kapurthala after consideration of the facts  and circumstances  of the  case in  view  of  the observations of  this Court in Pukhraj v. State of Rajasthan and another,  [1974] 1  S.C.R. S59 that unless cognizance is taken and  the facts and in the circumstances and the nature of the  allegations involved  in this case are gone into the question whether  the raiding  party exceeded  its limits or power  while   acting  in  the  official  duties  cannot  be determined. The  learned Judge  observed after gathering the materials  and  some  evidence,  it  would  be  possible  to determine  whether   the  petitioner  while  acting  in  the discharge of his duties as a police officer had exceeded the limit  of  his  official  capacity  in  inflicting  grievous injuries on  the accused  and causing  death  to  the  other accused.      This Court  in the  aforesaid decision  had occasion to consider  this   aspect.  The   case  is   instructive   and illustrative how a balance has to be struck between the need for speedier  trial of  criminal offenders  and at  the same time protecting  public servants  or police officials in the discharge of  their duties  without obstructions.  There the appellant  had   filed  a  complaint  against  his  superior officer, in the Postal Department under sections 323 and 502 of I.P.C.  alleging that  when the  appellant  went  with  a certain  complaint   to  the  second  respondent,  the  said respondent kicked  him in  his abdomen  and  absued  him  by saying "Sale, gunde, badmash ...." The said respondent filed an application  under section  197 of  the Cr.  P.C. praying that the  Court should  not take  cognizance of  the offence without the  sanction of  the  Government,  as  required  by section 197  of the  Cr. P.C.  It was further contended that the alleged  acts, if  at all  done by the accused were done while discharging  his duties as a public servant. The trial Magistrate dismissed the application. The High Court allowed the revision  application of the said respondent. This Court on appeal  held that  at that stage, the Court was concerned only with  one point,  viz., whether on facts alleged in the complaint, it  could be  said that  the acts  were  done  in purported exercise  of his  duties. Applying  the test  laid down in the decisions of the Federal Court and this Court to acts  complained  of,  viz.,  kicking  the  complainant  and abusing, could  not be  said to have been done in the course of the  performance of  the duty by the said respondent. The facts subsequently  coming to light during the course of the judicial enquiry  or during  the course  of the  prosecution evidence at  the trial  might establish  the  necessity  for

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sanction, it was observed. This Court noted that it might be possible for the said respondent to 455 place materials on record during the course of the trial for showing  what  his  duties  were  and  also  that  the  acts complained of  were so  interrelated with his official duty, so as  to attract  the protection afforded by section 197 of the Cr. P.C. This Court reiterated that the question whether sanction was necessary or not might have to depend upon from stage to  stage having regard to the facts and circumstances of the  case. This  Court allowed the appeal and allowed the trial to proceed without the sanction.      In the  instant  case,  it  is  alleged  that  grievous injuries were inflicted upon the complainant and as a result of injuries  one  of  the  alleged  accused  had  died.  The question is while investigating and performing his duties as a police  officer was  it necessary  for the  petitioner  to conduct himself  in such a manner which would result in such consequences.It is  necessary to  protect the public servant in the  discharge of  their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is  the rationale behind section 196 and section 197 of the Cr.  P.C. But  it is equally important to emphasise that rights of  the citizens  should be protected and no excesses should  be  permitted.  "Encounter  death"  has  become  too common.  In   the  facts   and  circumstance  of  each  case protection  of   public   officers   and   public   servants functioning in  discharge of  official duties and protection of private citizens have to be balanced by finding out as to what extent  and how  far is  a public  servant  working  in discharge of  his  duties  or  purported  discharge  of  his duties, and  whether the  public servant  has  exceeded  his limit. It is true that section 196 states that no cognizance can be  taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be  stayed unless  sanction is  obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.      In that  view of  the matter we are of the opinion that the order  passed by  the learned Additional Sessions Judge, Kapurthala, in  the facts  of this  case, was proper and the High Court  was right  in not interfering with the same. We, therefore, dismiss this petition. G         We, however, direct that the trial should proceed as expeditiously  as   possible.  We  further  record  that  if necessary the  question of sanction under section 197 of the Cr. P.C. may be agitated after some evidence have been noted by the learned Additional Sessions Judge. P.S.S.                                   Petition dismissed. 456