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PETITIONER: PP UNNIKRISHNAN AND ANOTHER

       Vs.

RESPONDENT: PUTTIYOTTIL ALIKUTTY ANR ANOTHER

DATE OF JUDGMENT:       05/09/2000

BENCH: K.T. THOMAS, J. & R.P. SETHI, J.

JUDGMENT:

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Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Two  cops who are caught in the dock of a criminal court want to pre-empt the trial on the ground of limitation.  But the  trial court and the High Court did not accede to  their plea.   Hence  they  are  now   before  the  Supreme   Court challenging  the  order  of the High Court.   How  they  got themselves   enmeshed   in  the   cobweb  of  the   criminal proceedings  can be narrated in brief:  First appellant  was the  Sub-Inspector  of  Police and second  appellant  was  a Police  Constable  attached  to   Perambra  Police   Station situated  in  a moffusil centre within the Calicut  district (Kerala).   First  respondent, a middle aged  shopkeeper  of Perambra, was living with his wife and three children within the  limits  of  the said Police Station.  On  1.9.1995  the first   respondent   (hereinafter  referred    to   as   the complainant)  filed a complaint against the two appellants before  the  Judicial  Magistrate of  First  Class  Perambra complaining  that  the  appellants have  committed  offences under  Sections  325,  342, 330 and 506(1) IPC.   The  First Class  Magistrate after examining the complaint on oath  and after  taking cognizance of the said offences issued process to   the  appellants.   They   entered  appearance  in   the Magistrates court and raised preliminary objection that the magistrate  should not have taken cognizance of the offences in  view of the bar contained in Section 64(3) of the Kerala police  Act (for short the KP Act) which fixed a period of six  months  from the date of commission of the offence  for taking  cognizance  thereof.  The magistrate over-ruled  the objections.   Appellants  then  moved the High  Court  under Section  482  of the Code of Criminal Procedure  (For  short the  Code) for quashing the criminal proceeding  initiated by  the  complainant.   They contended that  the  Magistrate could  not take cognizance of the offences as the  complaint was filed only after the expiry of six months of the alleged commission  of the offences.  A learned single judge of  the High Court dismissed the petition as per the impugned order.

   For  dealing with the question raised in this appeal  it is  necessary to extract, at least briefly, the  allegations made in the complaint.  They are the following:

   On  the evening of 23.12.1994 the complainant was called

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to  the police station, he was asked to remain therein  till the  arrival of the first appellant.  But appellants did not arrive  at  the police station on that evening nor  was  the complainant permitted to leave the police station.  Hence he had  to remain inside the police station overnight.  On  the next morning, both the appellants reached the station.  They put the complainant in the lock up room, and first appellant asked  him  did  you not steal the articles from  the  next shop?  and  so asking he started beating  the  complainant. Thereafter both the appellants together showered a volley of blows all over his body.  He fell down.  Appellants kept him inside  the  lock-up room and left the police  station.   By evening  they  returned  to the police station  and  resumed their  assault operation during which they inflicted lots of blows  on  different  portions of his body by  uttering  the words  if  you do not tell the truth you will  be  killed. Thereafter the complainant was asked to sit on the floor and then  both  the  appellants stood on his legs  and  in  that posture  they  inflicted blows on him with hands as well  as lathi.   He  again  fell  down   and  this  time  he  became unconscious.   He  was  kept in the lock up room  from  24th December,  95 till the morning of 27th December, 95.  He was released  from  the  confinement of police  station  on  the morning  of  27th after administering a warning that  if  he divulged  to any person outside of what happened he would be trapped  in  a  false case.  The above is in  substance  the allegations in the complaint.

   Section 64 of the K.P.Act deals with initiation of legal proceedings  against  police officers or  magistrates.   The first  two  sub-sections are intended to  afford  protection against  any penalty or action for damages on account of any act, done by such officers in good faith in pursuance of any duty  imposed or any authority conferred.  Sub-section  (3), which is relied on by the appellants as the sheet anchor for their safety, is extracted below:

   No  court  shall  take  cognizance   of  any  suit   or complaint,  in respect of any offence or wrong alleged to be committed  or done by a Magistrate, Police Officer or  other person  on account of any act done in pursuance of any  duty imposed  or  authority conferred on him by this Act  or  any other  law for the time being in force or any rule, order or direction  lawfully made or given thereunder unless the suit or complaint is filed within six months of the date on which the  offence  or wrong is alleged to have been committed  or done.

   Learned  Single  Judge  of the High Court  repelled  the contention  based  on the sub-section on two premises.   For the first premise he made the following observations:

   From  the allegation made in the Annexure-A complaint it is clear that the allegation made against the petitioner are with regard to the commission of several offences punishable under  the IPC.  By no stretch of imagination it can be said that  the  offence  alleged  to have  committed  is  in  the discharge of the official duties of the petitioners so as to attract the protection under sec.64 (3) of the Police Act in favour of the petitioners.  Therefore, the contention of the petitioners  that  since Annexure-A complaint is  barred  by time  the  cognizance  of the offence taken by  the  learned Magistrate is illegal, is not sustainable.

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   The  second premise is based on Section 473 of the Code. Learned Single Judge has observed thus on that aspect:

   Under  Sec.473  of  the  Cr.P.C.  the  courts  have  got jurisdiction  not only in cases where applications are filed to  condone  the  delay  by explaining  the  delay  occurred properly  but  also  in appropriate cases even  without  any application  to condone the delay in order to meet the  ends of  justice.   In this case the petitioner has  alleged  the reasons  for  the delay in filing the complaint.  It is  for the  trial  court to consider whether there  are  sufficient reasons  to condone the delay in filing the complaint at the appropriate  stage  merely  because  of the  fact  that  the complaint  was filed after the lapse of six months from  the date of alleged offence committed or acts done the complaint filed  against  the  police officials cannot be  thrown  out under  Section 64(3) of the Police Act.  If such  contention is  accepted, the unscrupulous police officials can drag the investigation  for six months and contend that the complaint filed subsequent thereto is barred by time.

   Section  473  of the Code is the last of the  provisions subsumed  in  Chapter XXXVI of the Code.  The title of  that Chapter  is  Limitation  for taking cognizance  of  certain offences.  The Chapter contains a fasciculus of only  seven sections  starting  with  Section 467.  It is  necessary  to extract that commencing provision which is as under:

   467.   Definitions.-  For the purpose of  this  Chapter, unless   the   context  otherwise   requires,   period   of limitation  means  the period specified in section 468  for taking cognizance of an offence.

   It is clear from a reading of the said opening provision that  the  entire Chapter concerns only with the  period  of limitation  prescribed  in  the succeeding  provisions.   Of course  the usual play at the joints is provided therein  by using  the  words unless the context  otherwise  requires. But  on reading Section 473 it would become crystally  clear that it is intended to be applied only with reference to the period  fixed  in Section 468 of the Code.  Now  we  extract below Section 473 of the Code:

   473.   Extension  of  period of  limitation  in  certain cases.    -  Notwithstanding  anything   contained  in   the foregoing  provisions  of this Chapter, any Court  may  make cognizance  of an offence after the expiry of the period  of limitation,  if  it  is satisfied on the facts  and  in  the circumstances  of the case that the delay has been  properly explained  or that it is necessary so to do in the interests of justice.

   The extension of period contemplated in the said Section is  only  by way of an exception to the period fixed as  per the provisions of Chapter XXXVI of the Code.  Section 473 of the  Code therefore cannot operate in respect of any  period of  limitation prescribed under any other enactment.   Hence we  are  unable  to uphold the view adopted by  the  learned Single  Judge of the High Court that Section 473 of the Code can   appropriately  be  invoked  by  the  complainant   for circumventing the bar contained in Section 64(3) of the K.P. Act.

   Shri L.N.  Rao, learned counsel for the complainant made an endeavour to support the impugned order of the High Court

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by contending that the bar contained in Section 64(3) of the K.P.   Act would be restricted to the offences specified  in that Act and it cannot encompass any other offence under any enactments, particularly the penal code offences.

   To bolster up the contention learned counsel invited our attention  to the decision of this Court in Maulud Ahmad vs. State of Uttar Pradesh {1963 Supp.(2) SCR 38}.  In that case one  Police  Head  constable challenged his  conviction  and sentence  under  Section 218 of the IPC.  As the High  Court confirmed the conviction he approached this Court by special leave.   One of the grounds urged in this Court was based on Section  42  of the Indian Police Act which says  that  all actions  and  prosecutions against any person, which may  be lawfully  brought  for anything done or intended to be  done under  the  provisions  of this Act, or  under  the  general police  powers hereby given shall be commenced within  three months  after  the  act  complained   of  shall  have   been committed, and not otherwise.

   Subba  Rao, J.  (as the learned Chief Justice then  was) felt that Section 42 of the Indian Police Act does not apply to  prosecutions against any person for anything done  under the provisions of any other Act.  The reasoning for adopting the  said  legal position is quite obvious from the  section itself.  Learned Judge has stated as follows:

   Under S.36 nothing contained in the Police Act shall be construed  to prevent any person from being prosecuted under any  Regulation  or Act for any offence made  punishable  by this  Act or for being liable under any other Regulation  or Act  or  any other or higher penalty or punishment  than  is provided  for such offence by this Act.  This section  makes it  clear  that the provisions of the Act including s.42  do not  preclude a person from being prosecuted for an  offence under any other Act.  A combined reading of these provisions leads  to  the  conclusion  that  s.42  only  applies  to  a prosecution  against a person for an offence committed under the Police Act.

   The  aforesaid  provision is not identically  worded  as Section  64(3)  of the K.P.  Act.  The words  any  offence mentioned   in  the  said   sub-section  indicate  that  the provision is not restricted to the offences specified in the K.P.   Act.  It is advantageous in this context to refer  to Section  2(n)  of the Code which is the definition  for  the word  offence.   It  means  any   act  or  omission  made punishable by any law for the time being in force.

   Even otherwise there is nothing in Section 64 (3) of the KP  Act  which  would warrant a construction  that  the  ban therein  is  intended  only with reference to  the  offences mentioned in that Act.

   Ms.M.   Jayshree,  learned  counsel for  the  appellants contended that Section 64(3) of the K.P.  Act contains words which  are analogous to the words employed in Section 197(1) of the Code and on that premise learned counsel requested us to  follow certain decisions for understanding the scope  of the  sub-section concerned in the K.P.  Act.  Even  assuming that  the words employed in those two different sub-sections (one  in  the K.P.  Act and the other in the Code)  are  the same  it has to be pointed out that the context envisaged in Section  197(1)  of the Code or the purpose of  providing  a filter  therein is demonstrably different from the object of

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Section  64(3) of the K.P.  Act.  Section 197(1) of the Code does  not impose any absolute ban against taking  cognizance of  the  offence,  but  it   only  says  that  the  sanction contemplated  therein  is a condition precedent  for  taking such  cognizance.   It  obviously is for  preventing  public servants  from being subjected to frivolous prosecutions for discharging  their  official  duties.  On  the  other  hand, Section  64(3) of the K.P.  Act incorporates an absolute ban against  taking  cognizance  of  the offences  of  the  type mentioned  therein  on  the expiry of the  period  specified therein.

   That  apart the words used in Section 197(1) of the Code for qualifying the offence are seemingly wider.  Those words are  these:  any offence alleged to have been committed  by him  while  acting or purporting to act in the discharge  of his  official duty.  In Section 64(3) of the K.P.  Act  the offence  is  qualified as the offence committed by a  police officer on account of any act done in pursuance of any duty imposed  or  authority conferred on him, by this Act or  any other  law for the time being in force or any rule, order of direction lawfully made or given thereunder.

   The commission of an offence, while acting or purporting to  act in the discharge of his official duty is of a  wider radius when compared with an offence committed on account of an  act done in pursuance of any duty or authority.  In  the latter,  the  act  done  itself should  be  an  exercise  in discharge  of  his  duty or authority and  that  act  should amount  to  an  offence.   It is not  enough  that  the  act complained  of  was only purported to be in exercise of  his duty  though  it maybe sufficient under the former.  So  the scope  under Section 64(3) of the K.P.  Act is much narrower than  the  amplitude  of Section 197(1) of the  Code  for  a public servant to claim protection.

   Even  under  Section 197 of the Code no  protection  has been granted to public servants for the type of acts alleged in  the case against the appellants.  Decisions are a legion relating to the scope of the protection under Section 197(1) of the Code.  In Matakpg Dpneu vs.  H.C.  Bhari{1955 (2) SCR 925}  this  Court  made  a slight deviation  from  the  view adopted  by  the Judicial Committee of the Privy Council  in Gills  case  (1948  Law  Reports  75).   This  Court  after referring  to  earlier  decisions  summed up  the  scope  of Section 197(1) of the Code 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.

   While  following the said decision this Court has found, on  a  subsequent  occasion,  that a  superior  officer  who assaulted  his subordinate for defying his orders could  not be  said  to have acted in the course of performance of  his duty,  (vide Pukhraj vs.  State of Rajasthan and Anr.  {1974 (1) SCR 559}.

   If a police officer dealing with law and order duty uses force  against unruly persons, either in his own defence  or in defence of others and exceeds such right it may amount to an  offence.   But  such  offence   might  fall  within  the amplitude  of  Section  197 of the Code as well  as  Section

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64(3)  of the K.P.  Act.  But if a police officer assaults a prisoner  inside  a lock-up he cannot claim such act  to  be connected with the discharge of his authority or exercise of his  duty unless he establishes that he did such acts in his defence or in defence of others or any property.  Similarly, if  a  police  officer wrongfully confines a person  in  the lock-up  beyond a period of 24 hours without the sanction of a  magistrate or an order of a court it would be an  offence for  which  he  cannot claim any protection  in  the  normal course,  nor can he claim that such act was done in exercise of  his official duty.  A policeman keeping a person in  the lock-up  for  more  than 24 hours without authority  is  not merely  abusing his duty but his act would be quite  outside the contours of his duty or authority.

   Ms.   M.  Jayshree, learned counsel for the  appellants, made  a last attempt to salvage the appellant from  criminal proceedings on the strength of a recent decision rendered by this  Court  in K.K.  Patel & anr.  vs.  State of Gujarat  & anr.   {2000  (6) SCC 195}.  That decision was  rendered  in consideration  of  Section 161(1) of the Bombay Police  Act. The  phraseology used in that sub-section is far wider  than Section 64(3) of the K.P.  Act.  Under the former protection is given for acts done under colour or in excess of duty or authority  by  providing  that action should  be  initiated within  a  particular period and if it is not  so  initiated within that period the action can be initiated only with the sanction of the Government.  The said decision is of no help to  the  appellants as the sub-section (3) of Section 64  of the K.P.  Act is differently worded.

   If  sub-section  (3) of Section 64 of the K.P.   Act  is given  the interpretation sought for by the learned  counsel for  the  appellants,  it  may   give  rise  to   calamitous consequences,  e.g.  if a police officer inflicts torture on a prisoner inside the lock up and he knows that the right of the  prisoner  to move within the time prescribed  for  such acts  would  stand permanently debarred after the expiry  of six  months, he might inflict such sorts of physical harm to the  prisoner as to disable him from moving out for the next 6  months  so  that  the  offending  policeman  would  stand permanently  immuned  from  any prosecution  proceedings  in respect  of the offences committed by him.  This may be only an  illustration in fiction but such fiction may turn out to be  reality,  at  least  in   exceptional  cases.   So   the interpretation which may lead to such dangerous consequences should be averted.

   For  the aforesaid reasons we are not inclined to afford the  benefit envisaged in Section 64(3) of the K.P.  Act  to the appellants.  The appeal is hence dismissed.