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PETITIONER: BALBIR SINGH DELHI ADMN. DELHI

       Vs.

RESPONDENT: D.N. KADIAN, M.M. DELHI & ANR. D.N. KADIAN AND ORS.

DATE OF JUDGMENT10/12/1985

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1986 AIR  345            1985 SCR  Supl. (3) 812  1986 SCC  (1) 410        1985 SCALE  (2)1258

ACT:      Code  of   Criminal  Procedure,   1973,  s.   197(3)  - Prosecution of member of Delhi Police Force - Prior sanction of the Government - Whether necessary and if so, when.

HEADNOTE:      A Complaint was filed by the Special Railway Magistrate against  the  appellants,  Balbir  Singh  and  Ram  Shankar, members of  Delhi Police  Force, alleging  that  the  Search Memos which  were signed  by the  sub-Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when  the said  Search memos were in the custody of the Court  and  that  they  were  interpolated  subsequently  by getting the  same signed  by the  accused, Ram  Shankar. The appellants  contended   before  the  Trial  Court  that  the aforesaid  complaint   was  not   maintainable  since  prior sanction as  required by  s. 197(3) Cr.P.C. was not obtained by the  complainant  to  prosecute  them.  The  trial  court rejected the  contention and  the High  Court confirmed  the same in  appeal by  the appellants. The High Court, however, held that  the Notification  No. F.10/77/78-HP-II  dated 7th April 1980  issued by  the Lt.  Governor directing  that the provisions of  sub-s.(2) of  s. 197  "shall apply to serving police officials of all ranks of Delhi Police Force" charged with the  maintenance of public order, was bad in law as the Lt. Governor had no authority to issue the said Notification under sub-s.(3) of s. 197 Cr.P.C.      Allowing  Criminal   Appeal  No.   845/85  partly   and dismissing the other appeal, ^      HELD: 1(i)  The Judgment  and order  of the  High Court declaring the  impugned    notification dated 7th April 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law. [817 F]      (ii) By virtue of the Notification No. S.O.183(E) dated 20th March  1974, the  President empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to exercise the 813 powers and  functions of the State Government as provided in the  Code  of  Criminal  Procedure  except  the  powers  and

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functions provided  in sections  8 and  477 of the said Act. The Notification  dated 7th  April 1980  issued by  the  Lt. Governor was  made in  exercise of powers conferred upon him under sub-section  (3) of  Sec. 197  of the Code of Criminal Procedure read  with the  Government of  India  Notification dated  March  20,  1974  mentioned  before.  Therefore,  the Notification is not ultra vires the Constitution. [815 D-E]      2.  Reading  the  two  notifications  together,  it  is crystal clear  that to start a proceeding against the member of all  ranks of Delhi Police Officials in a Criminal Court, previous  sanction   of  the  Lt.  Governor  is  imperative, provided the offence alleged to have been  committed by such members of  the Delhi  Police Force has been committed while acting or  purporting to act in  discharge of their official duty. [815 F]      In the  instant case,  the previous sanction of the Lt. Governor as  provided in  Section 197 (3) Criminal Procedure Code  was,   not  at   all  necessary   for  initiating  the proceedings against  the two  appellants, since  the act  of tampering of the Search Memos by them cannot be said to have been done  in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court. [817 E-F]      Matajog Dobey  v. H.C.  Bhari,  [1955]  2  S.C.R.  925; Pukhraj v.  State of  Rajasthan & Anr., [1973] 2 S.C.C. 701; Bhagwan prasad  Srivastava v. N.P.Misra, [1971] 1 S.C.R. 317 and Darshan Kumar v. Sushil Malhotra & Ors.  .1980 Crl. L.J. 154 relied upon.      Bhikhaji Vaghaji  v. L.K. Barot and Ors., 1982 Cr. L.J. 2014 approved.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 844-845 of 1985.      From the  Judgment and  Order dated  1.12.1982  of  the Delhi High Court in Crl. Misc. (Main) No. 551 of 1982.      Anil Deo  Singh, R.N. Poddar and P.K. Mukharjee for the Appellants.      Anil Kumar Gupta, Amicus Curiae for the Respondents.      The Judgment of the Court was delivered by 814      B.C.RAY, J.  The only  question involved  in these  two appeals  is   whether  the  criminal  proceedings  initiated against the  appellants, i.e. Balbir Singh Sub-Inspector and Ram Shanker, Constable of Delhi Police Force is maintainable in the  absence of  any prior sanction obtained from the Lt. Governor as required under s.197 (3) of the Code of Criminal Procedure.      Section  197(1)  of  the  Code  of  Criminal  Procedure envisages that  no court  can take cognizance of any offence alleged to have been committed by a Judge or Magistrate or a public servant  while acting  or purporting  to act  in  the discharge of  his official duty without previous sanction of the Government.  Sub-section (2)  of  that  Section  further provides that  no court shall take cognizance of any offence alleged to  have been  committed by  any member of the Armed Forces of  the Union  while acting  or purporting  to act in discharge of  his official duty, without obtaining the prior sanction of  the Central  Government. Sub-section (3) of the said Section  further provides that the State Government may by notification  direct that  the provisions  of Sub-section (2) shall apply, to such class or category of members of the Forces charged  with the  maintenance of public order as may

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be specified  in the  said order, and upon such notification being made,  the provisions of Sub-section (2) will apply as if  for   the  expression   "Central  Government"  occurring therein, the expression "State Government were substituted.      The appellants  are undoubtedly  the members  of  Delhi Police  Force.   It  is  also  not  in  dispute  that  these appellants do  not fall  within  the  category  of  officers mentioned  in  Sub-Section  (1)  of  Sec.  197  of  Criminal Procedure  Code  and  as  such  no  prior  sanction  of  the Government is  necessary in  order to  launch a  prosecution against these  officers. The  only question  remains  to  be considered is  whether the  appellants being  members of the Delhi Police  Force are  entitled to get the benefit of Sub- Section (3)  of Section  197 of  Criminal Procedure  Code by virtue of the notification No. S.O. 183(E) dated 20th March, 1974 issued  by the  Under Secretary  of India read with the notification  dated  7th  April,  1980  issued  by  the  Lt. Governor, Delhi  under No.F.10/77/78-HP-II. Delhi is a Union Territory within  the meaning  of Article  1 read  with  the First  Schedule  to  the  Constitution  as  amended  by  the Constitution  (7th   amendment)  Act   1956.  The  power  to administer the  Union Territory  is vested  in the President under Article  239 of  the Constitution  and Clause 1 of the said Article  empowers the President to administer the Union Territory through 815 and Administrator  to be appointed by him. The Administrator appointed  by   the  President  under  Art.  239(1)  of  the Constitution   with the designation of Lt. Governor of Delhi derives only  such  powers,  functions  and  duties  as  are entrusted to  him by  the President  under Art.  239(1).  In accordance with  the provisions  of this  Art    239(1)  the aforesaid notification  dated 20th March, 1974 has been made whereby the  President had  directed that the Administrators of all  the Union  Territories other  than Arunachal Pradesh and  Mizoram   exercise,  subject  to  the  control  of  the President, the  powers and discharge the functions under the Code of  Criminal Procedure  1973 as  mentioned in  Schedule annexed thereto, subject to the condition mentioned therein. The said  notification was  enforced on  1st April, 1974. In this  Schedule   all  powers  and  functions  of  the  State Government except  those conferred  by Sections 8 and 477 of the Code  were conferred on the Administrator. Therefore, by virtue of  this notification,  the President  empowered  the Administrator of  Union Territories,  i.e. Lt.  Governor  of Delhi to  exercise the  powers and  functions of  the  State Government as  provided in  the Code  of Criminal  Procedure except the  powers and  functions provided in Sections 8 and 477 of  the said  Act. It also appears from the notification dated 7th  April, 1980  that the  Lt. Governor directed that the provisions of Sub-Section (2) of Sec.197 "shall apply to serving police officials of all ranks of Delhi Police Force" charged  with   the  maintenance   of  public   order.  This notification was  made in  exercise of powers conferred upon the administrator  under Sub  Section (3) of Sec. 197 of the Code of Criminal Procedure read with the Government of India Notification Dated  March 20,  1974 mentioned before Reading these two  notifications together,  it is crystal clear that to start  a proceeding  against the  members of all ranks of Deli Police Officials in a Criminal Court, previous sanction of the  Lt. Governor  is imperative,  provided  the  offence alleged to  have been committed by such members of the Delhi Police Force  has been  committed while acting or purporting to act in discharge of their official duty.      In the  instant case the act of tampering of the Search

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Memos by  the two  appellants  i.e.  Balbir  Singh  and  Ram Shankar cannot  be said  to have  been done  in discharge of their official duties inasmuch as the said Search Memos were in the  custody of the Court. The complaint was filed by the Special Railway  Magistrate alleging that Search Memos which were signed  by the  Sub-Inspector Balbir Singh did not bear any signature  of the  witness Ram  Shankar at the time when the said  Search Memos  were in  the custody  of the  Court. Subsequently, it  has been  interpolated by getting the same signed by the accused Ram Shankar. This 816 act of  tampering and  interfering with  the records  of the Court by  the two  petitioners by any stretch of imagination cannot be  said to  have been done or purported to have been done by the petitioners in discharge of their official duty. It is  pertinent to refer in this connection to the decision of this Court in Matajog Dobey v. HC. Bhari, [1955] 2 S.C.R. 925, where  this Court laid down the scope of the protection afforded by  Sec. 197  of the  Code of Criminal Procedure in the following terms :           "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."      These observations  have been followed by this Court in Pukhraj v. State of Rajasthan & Anr., [1973] 2 S.C.C. 701.      In that  case the  Post  Master  General  of  Rajasthan abused and  kicked a  Clerk of  the Head  Post Office when a clerk of  the Head  Post Office of Jodhpur went to make some oral representations  to the  Post Master General. The clerk filed a complaint against the Post Master General under Sec. 323 and  504 I.P.C.  before the Additional Munsif Magistrate of Jodhpur  city. An  application was  filed praying that no cognizance  of  the  offence  would  be  taken  without  the sanction of  the  Government  under  Sec.  197  of  Criminal Procedure Code.  It was  held that the acts alleged were not done in  due discharge  of his official duty and so no prior sanction of  the Government  was necessary under Section 197 of the Code.      In Bhagwan  Prasad Srivastava  v. N.P.  Misra, [1971] 1 S.C.R. 317,  the respondent  filed a complaint alleging that the appellant,  a Civil  Surgeon used defamatory and abusive words and got him pushed out by the cook of the hospital. It was found  that the  case was not covered by Sec. 197 of the said Act  as those  acts were  not done  in discharge of his official duty.      In the case of Darshan Kumar v. Sushil Kumar Malhotra & Ors., 1980  Cr.  L.J.  154,  it  was  found  that  the  acts complained of  against  Respondents  Nos.  1,3  and  4  were purported to  have been  done by  them in discharge of their official duties  and it  was reasonably connected with their official duties.  As such it was held that prior sanction of the State  Government was  necessary in  prosecuting them in respect of the offence, if any, made out from the commission of such acts. 817      As regards  scope and  ambit of Sec. 197(3) of the Code of   Criminal Procedure  it has been rightly observed by the Division Bench  of the Gujarat High Court in Bhikhaji Vaghji v. L.K   Barot  and Ors.  1982 Cr. L.J. 2014, that after the issuance of  the notification  by the  Government under Sec. 197(3) of  the Criminal  Procedure Code  directing that  the provisions of  Sub-Sec.(2) of  Sec. 197  shall apply  to the

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Police Officers  charged  with  the  maintenance  of  public order, the  same could  not be  questioned on  the ground of non-application of  mind as it is within the scope and ambit of Sub-Sec.  (3) of  Sec. 197  of  the  Code.  It  was  also observed that :           "Before the  protection of  sub-sec.(2) of Section           197 of  the Code  could be had and the proceedings           are dropped  on that count, the learned Magistrate           is under  an obligation to decide that the alleged           acts attributed to the members of the police force           are acts  done in  the discharge of their official           duties, or  at any  rate, they  purport to  be, or           bear the  colour or  semblance of,  the acts  that           could be  done in  the discharge of their official           duties."      We have already said that the alleged acts of tampering the Search  Memo while  the same was in custody of the Court cannot be deemed to be an act purported to have been done by these two  appellants in discharge of their official duties. Therefore, the  previous sanction  of the  Lt.  Governor  as provided in  Section 197(3)  Criminal Procedure Code was, in our considered  opinion, not at all necessary for initiating the proceedings  against  these  two  appellants,  who  are- members of  the Delhi  Police Force.  For the reasons stated hereinbefore the  Appeal filed  by the  Delhi Administration succeeds and  is allowed and the Appeal filed by the accused is dismissed.  The Judgment  and Order  of  the  High  Court declaring the  impugned notification  dated 7th  April, 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law.      We are  thankful  to  Sri  Anil  Kumar  Gupta  for  the assistance he has rendered as Amicus Curiae. M.L.A.                     Criminal Appeal 844/85 dismissed.                       Criminal Appeal 845/85 partly allowed. 818