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CASE NO.: Appeal (crl.)  330 of 2006

PETITIONER: SANKARAN MOITRA

RESPONDENT: SMT. SADHNA DAS & ANR.

DATE OF JUDGMENT: 24/03/2006

BENCH: C.K. THAKKER

JUDGMENT: J U D G M E N T

ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) No. 3347 of 2003

C.K. THAKKER, J.

Leave granted. I have had the benefit of going through the judgment  prepared by my learned brother P.K. Balasubramanyan, J. I  express my inability to agree with the reasons recorded and  conclusions arrived at by him.  I, therefore, consider it  appropriate to deal with the matter independently. The relevant facts as stated in the judgment of the  High Court of Calcutta impugned in the present appeal are  that on May 10, 2001 general election of the State  Assembly of the West Bengal was held. One Rabindra Nath  Das @ Topi Das (’deceased’ for short), husband of Mrs.  Sadhna Das (’complainant’ for short) was supporting a  particular political party. He was engaged in distributing  food packets to the polling agents at Subhas Sarobar  (Baliaghata Lake) constituency. It was the case of the  complainant that when her husband left the home on May  10, 2001, he stated that he would be coming for taking  lunch. According to the complainant, however, her husband  did not come.  When she was returning after casting her  vote, she saw a Tata Sumo vehicle and one Anath Das of  the locality inside the vehicle. When she asked the people  who gathered over there as to what had happened, she was  informed that Topi Das had become unconscious due to  beating by police on his head and he was taken to hospital.  The complainant, therefore, immediately proceeded to  hospital. She found her younger brother-in-law Laxman Das  amongst the crowd.  On being asked, she was told that her  husband had died. She learnt that her husband was  supplying food packets at the polling booth.  At that time,  some police officers came there and they beat her husband.  When her husband left the place, police men chased him  towards the lake side. Her husband was not knowing  swimming and he stated to the police personnel that he did  not know swimming and requested them not to beat him.   But the police officers did not pay any heed to the request  and continued beating. The husband of the complainant fell  down, became unconscious, was taken to the hospital but  was declared dead there. She, therefore, informed the  Deputy Commissioner of Police on May 11, 2001 that her  husband was beaten to death by police and demanded  "stern punishment" to persons responsible for killing him.  

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On the next day, i.e. on May 12, 2001, the Deputy  Commissioner of Police, registered Phoolbagan P.S. Case  No.112, for an offence punishable under Section 304 Indian  Penal Code (IPC) against unknown police officers. It  appears that for a considerable long period, nothing was  done in the matter and no action was taken on the basis of  complaint made by the complainant.  She, therefore, filed a  private complaint in the Court of Chief Judicial Magistrate,  Alipore, Kolkata on May 28, 2001 being case No.C-1107 of  2001 against the appellant and two other police officers for  offences punishable under Sections 302, 201, 109 and  120B of IPC. It was stated in the said complaint that the  husband of the complainant was assaulted and severely  beaten by police personnel which resulted in his death and  thereby the accused had committed the offences as  mentioned in the complaint and prayed for taking  cognizance, to issue process against the accused and to  pass appropriate orders in accordance with law. She had  also submitted a list of witnesses.  Between May 31, and June 16, 2001, the learned  Magistrate, following the provisions of the Code of Criminal  Procedure, 1973 (hereinafter referred to as ’the Code’)  recorded statements of the complainant and the witnesses  produced by her. On the basis of the said material, the  learned Magistrate took cognizance of the offences. On  June 16, 2001, the learned Magistrate issued non-bailable  warrant against the accused persons including the appellant  herein and fixed July 10, 2001 as returnable date.  Meanwhile, on June 30, 2001, the accused preferred an  application under Section 210 of the Code stating therein  that a complaint was filed by the complainant on May 12,  2001 which had been registered as PS Case No.112 of 2001  for an offence punishable under Section 304 IPC by  Phoolbagan Police Station and proceedings were initiated.   It was also stated that thereafter Fax-message was sent to  the Joint Commissioner of Police to investigate the case  under Section 302 which was treated as FIR.  It was,  therefore, prayed that the complaint dated May 28, 2001  be stayed.  It may also be stated that the accused moved the  High Court for grant of anticipatory bail under Section 438  of the Code. The application, however, was rejected by the  High Court on June 20, 2003. The order passed by the High  Court was challenged by filing Special Leave Petition in this  Court which was also dismissed by this Court on July 28,  2003. The accused then filed a petition under Section 482 of  the Code for quashing of proceedings, inter alia, contending  that the alleged offence had been committed by them  "while acting or purporting to act" in the discharge of their  official duties and no cognizance could be taken by the  Court except with the previous sanction of the State  Government. Since no such sanction was obtained before  filing the complaint, the complaint was not maintainable at  law and was liable to be dismissed only on that ground.  The High Court, by the impugned order, dismissed the  petition observing that it was a case of ’merciless beating’  by police officer causing death of a person which could not  be said to be an act in the discharge of official duty.  Several injuries were found on the person of the deceased  and according to the medical opinion, those injuries were  ante mortem and homicidal in nature. The postmortem  report clearly indicated the nature and extent of the injuries  inflicted by the accused on the victim and the witnesses  had given vivid description of the offence committed by the

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accused.  In the facts and circumstances, therefore, it could  not be said to be a case covered by Section 197 of the  Code and hence the application was liable to be dismissed.  Accordingly, the application was dismissed on July 7, 2003.  The said order is challenged by the appellant.  On August 22, 2003, notice was issued and "stay of  further proceedings pending before the Chief Judicial  Magistrate, Alipore, Calcutta" was granted by this Court in  the meanwhile. Affidavits and counter affidavits were  thereafter filed. We have heard learned counsel for the parties. Mr. K.T.S. Tulsi, Senior Advocate, appearing for the  appellant, contended that the High Court has committed an  error of law in holding that the provisions of Section 197 of  the Code were not attracted. According to him, the  appellant was a police officer and he was on duty on May  10, 2001.  At about 2 p.m., a message was received from  Assistant Commissioner of Police regarding disturbance and  rioting between two rival political parties at Subhash  Sarobar and the case was registered as Case No. 111 of  2001 for offences punishable under Sections 148, 149 and  336 IPC read with Sections 3 & 5 of Explosive Substances  Act, 1908 against the deceased and others and  investigation started. The appellant, along with other police  officers, rushed to the spot in order to disperse the rioting  mob and restore law and order situation. During the said  incident of dispersing mob and preventing rioting, the  deceased was injured and fell into water, drowned in the  lake and declared dead on being taken to the hospital.   According to Mr. Tulsi, all acts were committed by the  appellant while exercising powers, discharging duties and  performing functions as police officer and as such the  provisions of Section 197 of the Code were clearly  attracted. It was submitted by Mr. Tulsi that admittedly, no  sanction was obtained from the Government before  instituting proceedings against the appellant.  The  proceedings were, therefore, not tenable. The learned  Magistrate, therefore, was wrong in taking cognizance, in  issuing non-bailable warrant and proceeding with the case.  Mr. Tulsi submitted that absence of sanction as required by  Section 197 goes to the root of the matter and no  proceedings could be initiated in absence of such sanction  and the proceedings are required to be dropped. Mr. Tulsi also submitted that as is clear, the  complainant had filed a complaint on May 11, 2001 and in  the said complaint it was expressly stated that her husband  had met with death due to beating by police officers. An  entry was made to that effect and a case was registered as  PS Case No.112 of 2001 for an offence punishable under  Section 304 IPC by Phoolbagan Police Station on May 12,  2001.  Subsequently, even Section 302 IPC was added.   Considering that fact also, a private complaint instituted by  the complainant in the Court of the Chief Judicial Magistrate  on May 28, 2001 for offences punishable under Sections  302, 201, 109 and 120B IPC was required to be stayed  under Section 210 of the Code which provides for  procedure to be followed in such cases.  Mr. Pradip Kumar Ghosh, learned senior counsel for  the complainant, on the other hand, supported the action  taken by the Chief Judicial Magistrate and the order passed  by the High Court. He submitted that the acts committed  by the appellant and other police officers were totally  illegal, unlawful and in violation of law of the land. The  deceased was chased, assaulted, severely beaten and killed  by the appellant and other police officials.  Section 197 has

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no application in such cases. According to the learned  counsel, the High Court has considered the entire material  in its proper perspective and held that in the facts and  circumstances of the case, Section 197 could not be  invoked. The said order cannot be said to be illegal or  contrary to law. The counsel also submitted that no action whatsoever  has been taken on the basis of the complaint filed by the  complainant on May 11, 2001 and hence Section 210 was  not attracted. The learned Magistrate, therefore, was  wholly justified in entertaining the complaint filed by the  complainant, in taking cognizance and issuing arrest  warrants. The counsel also submitted that in view of the  fact that the action of the appellant and police officers was  totally illegal and an innocent person was killed that non  bailable warrants were issued.  The said action was  challenged by the accused but the High Court as well as  this Court did not interfere with the order and dismissed  the application for anticipatory bail. The counsel also made  grievance that the State and the police force of the  respondent State were virtually supporting and illegally  helping the appellant and other police officials which is clear  from the fact that even though non bailable warrant was  issued against the accused persons in June, 2001 and the  said action was confirmed by the High Court and also by  this Court as early as in 2003, till today, the appellant has  not been arrested. He, therefore, submitted that no case  has been made out for interference by this Court and the  appeal deserves to be dismissed. Mr. Avijit Bhattacharjee, learned counsel appearing  for the State relied upon the affidavit filed on behalf of the  State.  The questions which arise for our consideration are,  firstly, whether in the facts and circumstances of the case,  Section 197 of the Code is attracted and sanction as  required by that section is sine qua non for prosecuting the  appellant and other police officers and whether the Chief  Judicial Magistrate was justified in taking cognizance of the  complaint filed by the complainant and proceeding with the  complaint, and secondly, whether the case is covered by  Section 210 of the Code and the private complaint filed by  the complainant in the Court of Chief Judicial Magistrate on  May 28, 2001 against the accused persons for offences  punishable under Sections 302, 201, 109 and 120B IPC  could be proceeded with or required to be stayed? Before I deal with the material placed on record, it  would be appropriate to consider the legal position. Section  197 of the Code provides for sanction of prosecution of  certain public servants.  The relevant part thereof reads  thus: 197 Prosecution of Judges and Public        Servants.  (1) When any person who is or was a Judge or  Magistrate or a public servant not removable  from his office save by or with the sanction of the  Government is accused of any offence alleged to  have been committed by him while acting or  purporting to act in the discharge of his official  duty, no Court shall take cognizance of such  offence except with the previous sanction -  (a) in the case of a person who is employed or,  as the case may be, was at the time of  commission of the alleged offence employed, in  connection with the affairs of the Union, of the  Central Government;

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(b) in the case of a person who is employed or,  as the case may be, was at the time of  commission of the alleged offence employed, in  connection with the affairs of a State, of the  State Government.  \005    \005    \005    \005    \005    \005    \005    \005    \005  (4) The Central Government or the State  Government, as the case may be, may determine  the person by whom, the manner in which, and  the offence or offences or which, the prosecution  of such Judge, Magistrate or public servant is to  be conducted, and may specify the Court before  which the trial is to be held. It is the case of the appellant that whatever he has  done has done "while acting or purporting to act in the  discharge of his official duty" and Section 197 bars a Court  from taking cognizance of such offence except with the  previous sanction of the State Government. Since there is  no sanction of the State Government, the Chief Judicial  Magistrate could not have taken cognizance of the case and  the complaint was liable to be dismissed. But the case of the complainant is that there was no  need or necessity to take sanction of the State Government  as the appellant and other police officers had deliberately,  intentionally and willfully caused death of her husband.   The said act was not done in discharge of duty or even  under colour of duty but it has been done by them by  taking undue advantage of their position. The case was of  murder, pure and simple. The learned Magistrate took into  account all relevant facts and material placed before him  and held that the sanction was not necessary. The High  Court was, therefore, justified in dismissing the application.  So far as the provisions of the Section 197 are  concerned, they came up for judicial interpretation in  several cases. One of the leading cases which has been  referred to in several decisions thereafter was of Dr. Hori  Ram Singh v. Emperor, [1939 FCR 159 : AIR 1939 FC 43].  Their Lordships of the Federal Court in Dr. Hori Ram Singh  were called upon to consider Section 270 of the  Government of India Act, 1935 which was similar to  Section 197 of the present Code. Sulaiman, J., interpreting  the said section, observed that the question of good faith  or bad faith would not strictly arise in interpreting the  provision inasmuch as the words used in the section were  not only "any act done in the execution of his duty" but  also "any act purporting to be done in the execution of  duty".  It was, therefore, held that when the act is not  done in the execution of the duty, but is purported to be  done in the execution of the duty, it would be covered. The learned Judge stated; "Obviously the section does  not mean that the very act which is the gravamen of the  charge and constitutes the offence should be official duty of  the servant of the Crown. Such an interpretation would  involve a contradiction in terms, because an offence can  never be an official duty. The words as used in the Section  are not "in respect of any official duty" but "in respect of  any act done or purporting to be done in the execution of  his duty".  The two expressions are obviously not identical.  The offence should have been committed when an act is  done in the execution of duty or when an act purports to be  done in the execution of the duty. The reference is  obviously to an offence committed in the course of an  action, which is taken or purports to be taken in  compliance with an official duty, and is in fact connected  with it. The test appears to be not that the offence is

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capable of being committed only by a public servant and  not by any one else, but that it is committed by a public  servant in an act done or purporting to be done in the  execution of his duty. The section cannot be confined to  only such acts as are done by a public servant directly in  pursuance of his public office, though in excess of the duty  or under a mistaken belief as to the existence of such duty.  Nor is it necessary to go to the length of saying that the act  constituting the offence should be so inseparably connected  with the official duty as to form part and parcel of the same  transaction. If the act complained of is an offence, it must  necessarily be not an execution of duty, but a dereliction of  it. What is necessary is that the offence must be in respect  of an act done or purported to be done in execution of  duty, that is, in the discharge of an official duty. It must  purport to be done in the official capacity with which he  pretends to be clothed at the time, that is to say under the  cloak of an ostensibly official act, though of course, the  offence would really amount to a breach of duty. An act  cannot purport to be done in execution of duty unless the  offender professes to be acting in pursuance of his official  duty and means to convey to the mind of another, the  impression that he is so acting." It was, however, stated\027 "The section is not intended to apply to acts done  purely in a private capacity by a public servant. It  must have been ostensibly done by him in his  official capacity in execution of his duty, which  would not necessarily be the case merely  because it was done at a time when he held such  office, nor even necessarily because he was  engaged in his official business at the time. For  instance, if a public servant accepts as a reward  a bribe in his office while actually engaged in  some official work, he is not accepting it even in  his official capacity, much less in the execution of  any official duty, although it is quite certain that  he could never have been able to take the bribe  unless he were the official in charge of some  official work. He does not even pretend to the  person who offers the bribe that he is acting in  the discharge of his official duty, but merely uses  his official position to obtain the illegal  gratification."                       (emphasis supplied) In the concurring opinion, Varadachariar, J. stated\027 "It only remains to deal with the arguments  urged on the one side or the other as to the test  to be applied in determining whether or not the  act complained of is one "purporting to be done  in execution of his duty" as a public servant. I  would observe at the outset that the question is  substantially one of fact, to be determined with  reference to the act complained of and the  attendant circumstances; it seems neither useful  nor desirable to paraphrase the language of the  section in attempting to lay down hard and fast  tests."                                 (emphasis supplied)  In H.H.B. Gill & another v. King, (75 IA 41:AIR 1948  PC 128), the Judicial Committee of the Privy Council had an  occasion to deal with the provisions of Section 197 of the  Code in juxtaposition of Section 270 of the Government of  India Act, 1935.  Referring to Dr. Hori Ram Singh and  applying the ratio laid down therein, their Lordships  observed that a public servant can only be said to act or  purport to act in the discharge of his official duty, if his act

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is such as to lie within the scope of his official duty. The  Judicial Committee proceeded to state that in considering  Section 197, ’much assistance’ could be derived from the  Judgment of Dr. Hori Ram Singh.  It then formulated the test thus: "A public servant can only be said to act or to  purport to act in the discharge of his official duty,  if his act is such as to lie within the scope of his  official duty. Thus, a Judge neither acts nor  purports to act as a Judge in receiving a bribe,  though the judgment which he delivers may be  such an act; nor does a Government medical  officer act or purport to act as a public servant in  picking the pocket of a patient whom he is  examining, though the examination itself may be  such an act. The test may well be whether the  public servant, if challenged, can reasonably  claim that, what he does, he does in virtue of his  office."                                (emphasis supplied) Shreekantiah Ramayya Munipalli & another v. State of  Bombay, [1955 (1) SCR 1177 : AIR 1955 SC 287] was  probably the first leading decision of this Court on the  point.  Keeping in view the underlying object behind  Section 197 and referring to Dr. Hori Ram Singh as also  H.H.B. Gill, Vivian Bose, J. stated: "Now it is obvious that if section 197 of the  Code of Criminal Procedure is construed too  narrowly it can never be applied, for of course it  is not part of an official’s duty to commit an  offence and never can be. But it is not the duty  we have to examine so much as the act,  because an official act can be performed in the  discharge of official duty as well as in dereliction  of it.                                 (emphasis supplied) Again, in Amrik Singh v. State of Pepsu, [1955 (1)  SCR 1302 : AIR 1955 SC 309], this Court held that it is not  every offence committed by a public servant that requires  sanction for prosecution under Section 197(1) of the Code,  nor every act done by him while he is actually engaged in  the performance of his official duties, so that, if questioned,  it could be claimed to have been done by virtue of the  office.  It is only when the act complained of is directly  connected with his official duties that sanction is necessary.  Speaking for the Court, Venkatarama Ayyar, J.  referring to the relevant decisions on the point, formulated  the principle:  "The result of the authorities may thus be  summed up : It is not every offence committed  by a public servant that requires sanction for  prosecution under section 197(1) of the Code of  Criminal Procedure; nor even every act done by  him while he is actually engaged in the  performance of his official duties; but if the act  complained of is 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 of his duties,  because that would really be a matter of  defence on the merits, which would have to be  investigated at the trial, and could not arise at  the stage of the grant of sanction, which must  precede the institution of the prosecution." A reference may be made to a decision of the

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Constitution Bench in Matajog Dobey v. H.C. Bhari, [1955  (2) SCR 925 : AIR 1956 SC 44]. Holding Section 197 of the  Code constitutional and not discriminatory and violative of  Article 14 of the Constitution, the Court stated that the  primary object of Section 197 was to protect public  servants from harassment in the discharge of their official  duties.  Delivering the judgment for the Bench,  Chandrasekhara Aiyar, J. said:  "The offence alleged to have been committed  must have something to do, or must be related  in some manner, with the discharge of official  duty. No question of sanction can arise under  section 197, unless the act complained of is an  offence; the only point to determine is whether  it was committed in the discharge of official  duty. There must be a reasonable connection  between the act and the official duty. It does  not matter even if the act exceeds what is  strictly necessary for the discharge of the duty,  as this question will arise only at a later stage  when the trial proceeds on the merits. What we  must find out is whether the act and the official  duty are so inter-related that one can 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." (emphasis  supplied) The Bench also considered the question that if such  sanction is necessary at any stage, it should be obtained at  that stage. It was also indicated that such question may  arise "at any stage of the proceeding". The complaint may  not disclose that the act constituting the offence was done  or purported to be done in the discharge of the official duty  but the facts subsequently coming to light on a police  report or judicial inquiry or even in the course of the  prosecution evidence at the trial, may establish the  necessity for sanction. The Court, therefore, concluded:  "Whether sanction is necessary or not may have to be  determined from stage to stage. The necessity may reveal  itself in the course of the progress of the case." In P. Arulswami v. State of Madras, [1967 (1) SCR  201 : AIR 1967 SC 776], their Lordships stated:- "It is the  quality of the act that is important and if it falls within the  scope and range of his official duties, the protection  contemplated by Section 197 of the Criminal Procedure  Code will be attracted". If the act is totally unconnected  with the official duty, there can be no protection. It is only  when it is either within the scope of the official duty or in  excess of it that the protection is claimable. In Pukhraj v. State of Rajasthan & Another, [(1973) 2  SCC 701 : 1974 (1) SCR 551], after considering several  cases on the point, the Court observed that though the  principle is well settled, the real difficulty lies in applying it  to the factual situation.  The Court observed\027 "While the law is well settled the difficulty really  arises in applying the law to the fact to any  particular case. The intention behind the section  is to prevent public servants from being  unnecessarily harassed. The section is not  restricted only to cases of anything purported to  be done in good faith, for a person who  ostensibly acts in execution of his duty still  purports so to act, although he may have

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dishonest intention. Nor is it confined to cases  where the act, which constitutes the offence, is  the official duty of the official concerned. Such  an interpretation would involve a contradiction  in terms, because an offence can never be an  official duty. The test appears to be not that the  offence is capable of being committed only by a  public servant and not by anyone else, but that  it is committed by a public servant in an act  done or purporting to be done in the execution  of duty.                             (emphasis supplied) In B. Saha & others v. M.S. Kochar, [(1979) 4 SCC  177], this Court stated that for the application of Section  197 of the Code, there must be direct and reasonable  nexus between the offence committed and the discharge of  official duty. It may happen that a particular act might  have been committed by a public servant in the discharge  of his duty or purported to be in discharge of his duty but  he might have acted illegally and unlawfully if the other act  complained of would be outside the ambit of Section 197 of  the Code. In B. Saha, the Court observed that though the  initial action of seizure of the goods by the public servant  was an act committed by him while acting in discharge of  his official duty, subsequent act of dishonest  misappropriation or conversion of goods could not be said  to be in discharge or purported discharge of duty. For that  act, he cannot get protection of Section 197 of the Code.  The Court also observed that the question of sanction  under Section 197 of the Code can be raised and  considered at any stage of the proceedings. Moreover,  while considering the question whether or not sanction for  prosecution was required, it is not necessary for the Court  to confine itself to the allegation in the complaint alone and  it can take into account all the material on record at that  time when the question is raised and falls for consideration. In Bakhshish Singh Brar v. Gurmej Kaur & Another,  [(1987) 4 SCC 663], this Court held that when police  officers were accused of causing grievous injuries and  death while conducting raid and search, it could not be said  that they were acting in purported discharge of their official  duty but if while discharging duty, they exceeded the limits  of such official capacity, sanction under Section 197 of the  Code would be necessary. While insisting on the need and  necessity to protect public servants, the Court also  emphasized the protection of rights of citizens.  The Court stated\027 "It is necessary to protect the public servants 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 CrPC. 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 circumstances 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

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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 damaged to the  evidence." In P.K. Pradhan v. State of Sikkim, [(2001) 6 SCC  704], after referring to relevant case law on the point, it  was observed that different tests have been laid down to  ascertain the scope and meaning of the relevant words  occurring in Section 197 "any offence alleged to have been  committed by him while acting or purporting to act in the  discharge of his official duty". It was then stated that the  offence alleged to have been committed must have  something to do, or must relate in some manner, with the  discharge of official duty of a public servant. No question of  sanction would arise under Section 197, unless the act  complained of is an offence; the only point for  determination is whether it was committed in the discharge  of official duty. There must be a reasonable connection  between the act and the official duty. It does not matter  even if the act exceeds what is strictly necessary for the  discharge of the duty, as that question would arise only at  a later stage when the trial proceeds on the merits. What a  court must consider is whether the act and the official duty  are so interrelated that one can postulate reasonably that it  was done by the accused in the performance of official  duty. If the answer to the said question is in affirmative,  Section 197 will be attracted, but not otherwise. This Court  reiterated that the question as to applicability of Section  197 of the Code can be raised at any stage of the  proceedings. In order to come to the conclusion, whether  the claim of the accused that the act he had committed  was in the course of performance of his duty was a  reasonable one and neither pretended nor fanciful can be  examined during the course of trial by giving opportunity to  the defence to establish it and the question of sanction  would be left to be decided in the main judgment which  may be delivered upon at the conclusion of the trial. In State of Orissa v. Ganesh Chandra Jew, [(2004) 8  SCC 40], it was held that the expression "any offence  alleged to have been committed by public servant while  acting or purporting to act in the discharge of his official  duty" implies that the act or omission must have been done  by the public servant in the course of his service and that it  should fall within the scope and range of his official duty. It  was then observed that the test is whether omission or  neglect to do that act would be brought on a public  servant, the charge of dereliction of his official duty. The  protection is available only when the alleged act done by  the public servant is reasonable, connected with the  discharge of his official duty and is not merely a cloak for  doing the objectionable act [vide S.K. Zutshi v. Bimal  Debnath (2004) 8 SCC 31]. In K. Kalimuthu v. State by DSP [(2005) 4 SCC 512],  it was stated that the protection given under Section 197 of  the Code is to protect responsible public servants against  the institution of possibly vexatious criminal proceedings  for offences alleged to have been committed by them while  they are acting or purporting to act as public servants. The  policy of the legislature is to afford adequate protection to  public servants to ensure that they are not prosecuted for

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anything done by them in the discharge of their official  duties without reasonable cause, and if sanction is granted,  to confer on the Government, if they choose to exercise it,  complete control of the prosecution. But the said protection  has certain limits and is available only when the alleged act  done by the public servant is reasonably connected with  the discharge of his official duty and is not merely a cloak  for doing the objectionable act.  It was, therefore, observed\027 "Before Section 197 can be invoked, it must be  shown that the official concerned was accused  of an offence alleged to have been committed  by him while acting or purporting to act in the  discharge of his official duties. It is not the duty  which requires examination so much as the act,  because the official act can be performed both  in the discharge of the official duty as well as in  dereliction of it. The act must fall within the  scope and range of the official duties of the  public servant concerned. It is the quality of the  act which is important and the protection of this  section is available if the act falls within the  scope and range of his official duty. There  cannot be any universal rule to determine  whether there is a reasonable connection  between the act done and the official duty, nor  is it possible to lay down any such rule. One  safe and sure test in this regard would be to  consider if the omission or neglect on the part  of the public servant to commit the act  complained of could have made him answerable  for a charge of dereliction of his official duty. If  the answer to this question is in the affirmative,  it may be said that such act was committed by  the public servant while acting in the discharge  of his official duty and there was every  connection with the act complained of and the  official duty of the public servant. (emphasis  supplied) Recently, in Rakesh Kumar Mishra v. State of Bihar &  Others, [(2006) 1 SCC 557], this Court restated the object  behind enacting Section 197 of the Code and also  prerequisites for application thereof.  The Court stated\027 "The protection given under Section 197 is to  protect responsible public servants against the  institution of possibly vexatious criminal  proceedings for offences alleged to have been  committed by them while they are acting or  purporting to act as public servants.  The policy  of the legislature is to afford adequate protection  to public servants to ensure that they are not  prosecuted for anything done by them in the  discharge of their official duties without  reasonable cause, and if sanction is granted, to  confer on the Government, if it chooses to  exercise it, complete control of the prosecution.   This protection has certain limits and is available  only when the alleged act done by the public  servant is reasonably connected with the  discharge of his official duty and is not merely a  cloak for doing the objectionable act.  If in doing  his official duty, he acted in excess of his duty,  but there is a reasonable connection between the  act and the performance of the official duty, the

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excess will not be a sufficient ground to deprive  the public servant from the protection.  The  question is not as to the nature of the offence  such as whether the alleged offence contained an  element necessarily dependent upon the offender  being a public servant, but whether it was  committed by a public servant acting or  purporting to act as such in the discharge of his  official capacity.  Before Section 197 can be  invoked, it must be shown that the official  concerned was accused of an offence alleged to  have been committed by him while acting or  purporting to act in the discharge of his official  duties.  It is not the duty which requires  examination so much as the act, because the  official act can be performed both in the  discharge of the official duty as well as in  dereliction of it.  The act must fall within the  scope and range of the official duties of the  public servant concerned.  It is the quality of the  act which is important and the protection of this  section is available if the act falls within the  scope and range of his official duty.  There  cannot be any universal rule to determine  whether there is a reasonable connection  between the act done and the official duty, nor is  it possible to lay down any such rule.  One safe  and sure test in this regard would be to consider  if the omission or neglect on the part of the  public servant to commit the act complained of  could have made him answerable for a charge of  dereliction of his official duty: if the answer to  this question is in the affirmative, it may be said  that such act was committed by the public  servant while acting in the discharge of his  official duty and there was every connection with  the act complained of and the official duty of the  public servant.  This aspect makes it clear that  the concept of Section 197 does not get  immediately attracted on institution of the  complaint case." (Emphasis supplied) From the aforesaid decisions, in my opinion, the law  appears to be well settled. The primary object of the  Legislature behind Section 197 of the Code is to protect  public officers who have acted in discharge of their duties  or purported to act in discharge of such duties. But, it is  equally well settled that the act said to have been  committed by public officer must have reasonable  connection with the duty sought to be discharged by such  public officer. If the act complained of has no nexus,  reasonable connection or relevance to the official act or  duty of such public servant and is otherwise illegal,  unlawful or in the nature of an offence, he cannot get  shelter under Section 197 of the Code.  In other words,  protection afforded by the said section is qualified and  conditional. Mr. Tulsi, no doubt, submitted that the appellant was  a police officer.  He was on duty.  He had received a  message about rioting and law and order situation at  Baliaghata.  He, therefore, had gone to the spot pursuant  to the said message, in police uniform, in police jeep to  deal with the situation.  All the ingredients of Section 197  of the Code were thus satisfied and the High Court was  wrong in not applying the said provision. I am unable to agree with Mr. Tulsi.  In my judgment,

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it is precisely in such cases that the Court is called upon to  consider whether the public servant was acting or  purporting to act in discharge of his duty or it was merely a  cloak for doing illegal act under the excuse of his status as  a public servant and by taking undue advantage of his  position, he was committing an offence or an unlawful act.   In such situations, when the question comes up for  consideration before a Court of law as to the applicability or  otherwise of Section 197 of the Code, it is not only the  power but the duty of the Court to apply its mind to the  fact-situation before it. It should ensure that on the one  hand, the public servant is protected if the case is covered  by Section 197 of the Code and on the other hand,  appropriate action would be allowed to be taken if the  provision is not attracted and under the guise of his  position as public servant, he is trying to take undue  advantage. In the instant case, from the material which has been  placed on record, it is amply clear that the appellant and  other police officers had acted illegally, unlawfully and  highhandedly. In the complaint, it was stated by the widow  of deceased Topi Das that the accused chased her husband  and assaulted him by causing several injuries which  resulted in his death.  But, apart from what is stated in the  complaint, the learned Chief Judicial Magistrate had  recorded statements of witnesses mentioned in the  complaint. The learned counsel for the first respondent- complainant, drew our attention to those statements who  were eye-witnesses. It was stated by them that the  deceased had not indulged in any illegal activity. He had  not done any unlawful act.  He had no weapon with him.   He was distributing food packets at the polling booth of a  particular political party. He was assaulted and beaten by  accused persons who were police officers. When the  deceased left the place, the police officers chased him and  continued to beat him. When deceased reached near a  lake, he requested the police officers not to beat him.  He  also stated that he did not know how to swim and prayed  to leave him.  But the police officers did not pay any heed  to his request and continued beating, which resulted in his  death.  Dr. Rabindra Basu, who performed post mortem  examination, stated that he found the following injuries on  the person of Topi Das: "1. One abrasion with a reddish crust 1.4 inches  x .3 inch more or less transversely placed  across left side of forehead lower part being  placed 1 inch above lateral 1/3rd left eye  brow. 2.  One abrasion .4 inch x .3 inch with reddish  crust placed 1 inch above medical end of  left eyebrow and = inch lateral to midline. 3.  One linear abrasion .6 inch x .1 inch with  reddish crust over lateral aspect of  uppermost part of left forearm. 4.  One abrasion = x .1 inch with reddish crust    over postern lateral aspect of upper 1/3rd of  left forearm. 5.  One abrasion = x .1 inch over dorsum of left  hand. 6. One linear abrasion .4 inch x .1 inch with  reddish rust over dorsal aspect of web  between index and middle finger." On internal examination, he noticed the  following injuries:

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1. One heomotoma in the scalp tissue 3 =  inches x 2 inches over right temporal region. 2. One heamotoma in the scalp tissue over  vault of the skull 4 inch x .4 inch over parieto  occipitial region, of scalp. 3. One heamotoma in the scalp tissue over  vault of the skull 4 inch x 3 inches involving left  parieto topper region. 4. One heamotoma 2 = inches x 1 = inch over  left frontal region (forhead). 5. Exgradural Hemorrhage over vault of the  brain involving posterior aspects of both  partietal lobes. 6. Thin layscror sub-aural hemorrhage all over  both the cerebral homlsphered inching under  surfaced.  He then stated: "All the internal organs were congested.   Laryenz and trachnoes was found congested  and the lumen was filled up with shaving  lathery froth with and sand seen even below  bifunction of trachoea.  Lungs were voluminous,  doughy filled and on section and squeezing  occupious amount of frothy blood mixed fluid  come out.  Heart showgrade-II atteroma at the  root of aorta. On the basis of my findings I have the following  opinion: "Death was due to the effects of head  injuries associated with drawing ante-mortem  and homicidal in nature. The injuries which I found are consisted with a  trauma caused by blunt weapon such as Lathi."  (Emphasis supplied) The High Court, in my judgment, considered this  aspect in its proper perspective and was wholly justified in  observing that "it was a merciless beating by a police  officer" causing death of a person which could not be said  to be an act in discharge of official duty. The High Court  was also right in stating that postmortem report clearly  indicated the nature and extent of injuries on the victim.   Other witnesses had given vivid description of the offence  committed by the accused persons. The said finding, which  is supported by material on record, cannot be said to be  based on ’no evidence’ or otherwise perverse, nor it can be  concluded that an error of law has been committed by the  High Court which requires to be corrected by this Court in  the exercise of discretionary jurisdiction under Article 136  of the Constitution.  Hence, in my opinion, no interference  is called for against the said order. In my view, even Section 210 of the Code has no  application to the facts of the case on hand.  Section 210  requires procedure to be followed when there is a  complaint case and police investigation in respect of the  same offence and reads thus: 210 Procedure to be followed when there  is a complaint case and police investigation  in respect of the same offence.  (1) When in a case instituted otherwise than on  a police report (hereinafter referred to as a  complaint case), it is made to appear to the  Magistrate, during the course of the inquiry or  trial held by him, that an investigation by the  police is in progress in relation to the offence  which is the subject matter of the inquiry or  trial held by him, the Magistrate shall stay the

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proceedings of such inquiry or trial and call for a  report on the matter from the police officer  conducting the investigation.  (2) If a report is made by the investigating  police officer under Section 173 and on such  report cognizance of any offence to taken by  the Magistrate against any person who an  accused in the complaint case, the Magistrate  shall inquire together the complaint case and  the case arising out of the police report as if  both the cases were instituted on a police  report.  (3) If the police report does not relate to any  accused in the complaint case or if the  Magistrate does not take cognizance of any  offence on the police report, he shall proceed  with the inquiry or trial, which was stayed by  him in accordance with the provision of this  code.  Bare reading of the above provision makes it clear  that during an inquiry or trial relating to a complaint case,  if it is brought to the notice of the Magistrate that an  investigation by the police is in progress in respect of the  same offence, he shall stay the proceedings of the  complaint case and call for the record of the police officer  conducting the investigation.  The object of enacting Section 210 of the Code is  three fold:  (i) it is intended to ensure that private  complaints do not interfere with the course of  justice;  (ii) it prevents harassment to the accused  twice; and  (iii) it obviates anomalies which might arise  from taking cognizance of the same offence  more than once.  The Joint Committee of Parliament observed: "It has been brought to the notice of the  Committee that sometimes when serious case is  under investigation by the police, some of the  persons file complaint and quickly get an order  of acquittal either by cancellation or otherwise.  Thereupon the investigation of the case  becomes infructuous leading to miscarriage of  justice in some cases. To avoid this, the  Committee has provided that where a complaint  is filed and the Magistrate has information that  the police is also investigating the same  offence, the Magistrate shall stay the complaint  case. If the police report (under Section 173) is  received in the case, the Magistrate should try  together the complaint case and the case  arising out of the police report. But if no such  case is received the Magistrate would be free to  dispose of the complaint case. This new  provision is intended to secure that private  complainants do not interfere with the course of  justice."                                (emphasis supplied) It is thus clear that before Section 210 can be  invoked, the following conditions must be satisfied. (i)     There must be a complaint pending for inquiry  or trial; (ii)    Investigation by the police must be in progress  in relation to the same offence; (iii)   A report must have been made by the police

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officer under Section 173; and (iv)    The magistrate must have taken cognizance of  an offence against a person who is accused in  the complaint case. In the impugned order passed by the High Court, no  such contention appears to have been raised by the  appellant. On the basis of the complaint filed by the  complainant and on being satisfied on the material placed  on record, the learned Chief Judicial Magistrate, Alipore had  proceeded with the case which cannot be said to be illegal. It may also be stated here that the High Court in its  order, dated June 20, 2003 considered this contention and  observed that Section 210 of the Code could not arrest the  proceedings initiated by the complainant, since the ’basic  tenor of the two cases were different.’  Relying on the  decision of this Court in Harjinder Singh v. State of Punjab,  (AIR 1985 SC 404), it was submitted that both the cases  could not be clubbed together since the prosecution version  was quite different in those cases.  It may be stated that  Special Leave Petition against the order of the High Court  was dismissed by this Court on July 28, 2003.  Even this  ground, therefore, cannot take the case of the appellant  anywhere.  I am constrained to observe here that there is  considerable force in the allegation of the learned counsel  for the complainant that the State agency had shown  partisan attitude and favoured the appellant. This is clear  from the fact that though the application of the appellant  for anticipatory bail was rejected by the High Court as well  as by this Court before about three years, the appellant  was never arrested by the police. For the foregoing reasons, in my opinion, the order  passed by the High Court is in consonance with well settled  principles of law and does not deserve interference under  Article 136 of the Constitution. The appeal, therefore,  deserves to be dismissed and accordingly dismissed.  Interim stay granted earlier stands vacated.  It may be stated at this stage that the incident is of  May, 2001 and about five years have passed. It is,  therefore, necessary that the proceedings must be  concluded as expeditiously as possible. The learned Chief  Judicial Magistrate, Alipore is, therefore, directed to  proceed with the case with utmost expedition as directed  by the High Court.   Before parting with the matter, I may clarify that all  the observations made by me hereinabove have been only  for the limited purpose of deciding the controversy in  connection with the applicability or otherwise of Sections  197 and 210 of the Code and I may not be understood to  have expressed any opinion one way or the other on the  merits of the case.  As and when the matter comes before  an appropriate Court, it may be decided strictly on its own  merits without being influenced/inhibited by the above  observations. For the foregoing reasons, the appeal deserves to be  dismissed and it is accordingly dismissed.