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CASE NO.: Appeal (crl.)  330 of 2006

PETITIONER: Sankaran Moitra

RESPONDENT: Sadhna Das & Anr.

DATE OF JUDGMENT: 24/03/2006

BENCH: Y.K. SABHARWAL & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

[ARISING SPECIAL LEAVE PETITION (CRIMINAL) NO. 3347 OF 2003]

P.K. BALASUBRAMANYAN, J.

1.              Leave granted.  2.              The husband of Respondent No.1 herein, met with his  end on 10.5.2001.  On 12.5.2001, Respondent No.1 (hereinafter  referred to as the ’complainant’) filed a complaint before the Deputy  Commissioner of Police that she had come to know from the members  of the public that while her husband was coming from Beliaghata  Subhas Sarobar he was beaten to death by the police.  She stated that  she wanted the post-mortem examination of her innocent husband  Robindranath Das to be held in the presence of a Magistrate and video  recording of the portions of the body of her husband whereon it had  been hit by the police.  She demanded stern punishment for the  murderer of her husband.  On 28.5.2001, she filed a complaint in the  court of the Chief Judicial Magistrate, Alipore in respect of offences,  punishable according to her under Sections 302, 201, 109 read with  Section 120-B of the Indian Penal Code.  In the complaint, she stated  that she was a house-wife and, that her husband Robindranath Das,  was a businessman and a social worker.  The antecedents of her  husband were above board and he always acted on the right side of the  law.  He was also an active supporter of a particular political party.    On 10.5.2001, the General Election to the Assembly in West Bengal  was held.   Her husband was in-charge of giving food packets to the  polling agents of a contesting political party in the booth in C.I.T.  office situated at Subhas Sarobar (Beliaghata Lake). When her  husband did not turn up for lunch, before she left for casting her vote,  she asked her brother to summon her husband for lunch.  She was  returning at about 1415 hours after casting her vote.  While she was  returning, a Tata Sumo Car came along, being driven at speed and in  that car she found a local resident Anath sitting.  When she reached  the vicinity of Vivekananada Club, she found there assembled, a  crowd of local people.  When she enquired what had happened, one of  those assembled said that the police had severely assaulted her  husband with lathi in the lake, her husband had became unconscious,  and he had been taken to the doctor in a Tata Sumo Car.  On further  enquiry, she was told that her husband was assaulted for no reason by  the police with lathis on his head near the C.I.T. office at the Lake  instigated by the "Bara Babu" of Phoolbagan Thana and Moitra Babu,  previous "Barababu" of Beliaghata Thana at about 1400 hrs.   Subsequently, she came to learn from various persons of the locality  including her brother and her brother-in-law that her husband was  talking near the outer gate of the C.I.T. office area at Subhas Sarobar  with Mr. S.K. Kundu, the ’Barababu’ of Phoolbagan Police station at  about 1400 hours.  At that point of time, the previous officer-in- charge of Beliaghata Police Station, at the time of the complaint, the

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Assistant Commissioner of E.S.D.(Eastern Suburban Division),  Calcutta came there by a police jeep and after talking with the Officer  in charge, Phoolbagan Police Station ordered the beating up of her  husband and accordingly the Officer in charge, Phoolbagan Police  Station instigated the police constables who were accompanying them  to beat her husband and to kill him.    Thereupon, a constable, namely,  Sudhir Sikdar assaulted her husband with a lathi and her husband tried  to run away to save his life but the police personnel chased him.  Her  husband fell down in the water at the edge of the lake.  He requested  the chasing police personnel not to assault him and he told them that  he did not know how to swim.  In spite of repeated requests and  begging for his life by her husband, the police constable Sudhir Sikdar  struck successive blows on the head of her husband, and other  different portions of his body with a lathi, as a result of which her  husband became unconscious and fell in the lake.  Then the police  personnel left the place.  Her brother and brother-in-law, with the help  of others who were eye-witnesses to the incident pulled out her  husband from the water.  Thereafter, Anath a local person, with the  help of others removed her husband in an unconscious state to the  nearby Divine Nursing Home where the doctor declared him dead.   The people seeing the atrocities of the police personnel in attacking an  innocent person, became agitated.  After a considerable lapse of time,  the body of her husband was removed by the police from the Nursing  Home.  According the complainant, the accused persons had no legal  authority to kill her husband, an innocent person, without any  provocation from his end.  Hence the accused, in collusion with each  other and having a common intention and in pursuance of a  conspiracy hatched up among themselves, have committed an offence  punishable under Sections 302, 120-B, 109 read with Section 34 of  the Indian Penal Code.  They were guilty of violating of the  provisions of law and they were liable for exemplary punishment.   Accused Nos.1 and 2 further abetted the murderous assault on the  victim by accused No.3 by instigating him openly to assault and kill  her husband.  The accused persons had taken advantage of their  uniforms and had murdered her husband in a planned manner and  hence were guilty of murder. She feels, from the available  circumstances, that the death of her husband was the result of a deep  rooted conspiracy and to fulfill the vested interest of some interested  persons, which would be revealed at the time of trial.  She therefore  prayed that the learned Magistrate be pleased to take cognizance and  issue process against the accused persons and after their appearance  pass necessary orders in accordance with law.  She arrayed the  Assistant Commissioner Sankaran Moitra as Accused No.1, S.M.  Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as  Accused No. 2 and Sudhir Sikdar, a police constable attached to  Phoolbagan Police Station, Calcutta as Accused No.3.

3.              On 31.5.2001, the Chief Judicial Magistrate, Alipore took  the statements of the complainant and the witnesses produced by her  which included her brother and her brother-in-law and issued process  to the accused.  The Chief Judicial Magistrate thus took cognizance of  the offence.  On 16.6.2001, the Chief Judicial Magistrate issued a  warrant for the arrest of accused no.1.  On 30.6.2001, accused no.1,  the then Assistant Commissioner of Police, moved an application  under Section 210 of the Code of Criminal Procedure.  Therein, after  referring to the complaint filed by the complainant, he submitted that  on the self same matter on the written complaint of the complainant  made on 12.5.2001, a case had been registered in the Phoolbagan  Police Station as Case No. 112 of 2001 under Section 304 of the India  Penal Code.  The complainant had filed the said complaint addressed  to the Deputy Commissioner of Police, Eastern Division, Calcutta on  11.5.2001 basing upon which the case was registered on 12.5.2001.    Thereafter, one Fax message was sent addressed to the Joint  Commissioner of Police, Calcutta concerning the death of  Robindranath Das, wherein the place of occurrence was mentioned as

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Beliaghata Lake and himself and two other persons above mentioned  as the assailants with a prayer that a case be registered under Section  302, 506(II) and 114 of the India Penal Code, with a further prayer  that the Fax message be treated as "First Information Report".  That  Fax was sent by a brother of the deceased.  On the self-same incident  under an order of Superiors, a case has been registered on 12.5.2001.   The complaint was filed before the Magistrate on 28.5.2001 by the  informant in the Phoolbagan Police Station case.  An investigation by  Police was in progress in relation to the offence which is the subject  matter of the enquiry held by the Chief Judicial Magistrate.  In view  of this, he prayed that the proceedings in the enquiry held by the Chief  Judicial Magistrate be stayed and a report on the matter from the  Officer-in-charge of Phoolbagan Police Station be called for.   By a  separate application, he also prayed that the application under Section  210 of the Code of Criminal Procedure may be directed to be put up  immediately for orders.  The Chief Judicial Magistrate ordered that  the application under Section 210 of the Code of Criminal Procedure  be put up on 10.7.2001.   

4.              Meanwhile, accused No. 1 had filed an application for  anticipatory bail before the High Court of Calcutta.  On 20.6.2003, the  High Court refused anticipatory bail.  Accused No. 1 approached this  Court challenging the order refusing anticipatory bail.   This Court by  order dated 28.7.2003 rejected the Petition for Special Leave to  Appeal stating that there was no merit in it.  

5.              Accused No. 1, meanwhile, filed a Petition under Section  482 of the Code of Criminal Procedure before the High Court seeking  a quashing of the complaint on the ground that the Chief Judicial  Magistrate had no jurisdiction to entertain the complaint since the  condition precedent for entertaining the complaint, a sanction under  Section 197(1) of the Code of Criminal Procedure, had not been  obtained.  In that application, after referring to the proceedings before  the Magistrate, he pleaded that he had filed an application on  30.6.2001 under Section 210 of the Code of Criminal Procedure  before the Chief Judicial Magistrate seeking a stay of the proceedings  in view of the pending investigation into the earlier complaint.   But  the Magistrate without passing any order thereon had kept it pending  with a direction to serve copy on the other side.   He submitted that  the learned Magistrate had erred in issuing a warrant of arrest at the  first instance without complying with the provisions of the Code of  Criminal Procedure.  An opportunity ought to have been given to him  to appear before court by issuing summons at the first instance.  In a  case instituted on the basis of a complaint in terms of the provisions of  Sections 61 and 62 of the Code of Criminal Procedure and by not  adverting to these provisions, the Magistrate had acted contrary to  law.  He submitted that the incident was not as described by the  complainant.  He then stated as follows:

"It is stated that on 10.5.2001 at about 1410 hrs on  getting an information of some disturbance at the Polling  Station at C.I.T. Office.  Subhas Sarobar, the Petitioner  No.2 along with Police Force reached the spot and found  violence inside and around the polling premises between  the supporters of C.P.I. (M) and T.M.G.  On reaching  there, they tried to separate both the groups from each  other to prevent serious cognizable offence as the mob  ware in agitated condition over the issue of proxy voting,  both Jamming etc. and there was every likelihood of a  serious rioting.  The purpose of the Police Personnel’s  being present at the spot was to control the mob free and  fair election.  In the meantime the petitioner also arrived  at the spot and  the agitated mob started throwing brick  bats and bomb indiscriminately aiming towards the  Police force.  The Police stepped into action and chased

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the unruly mob when a group dispersed towards two  opposite directions.  

It is therefore learnt that one/two persons while retreating  at random jumped in Subhas Sarobar Lake and as result  of which they might sustain injuries on their persons and  out of aforesaid persons the victim Robindranath Das  Topi was one of them.  

That on the basis of the aforesaid incident a case was  started by the Police Sumo to being Phoolbagan Police  Station Case No. 111 dated 10.5.2001 against 20/30  persons including Robindranath Das under Section  148/149/336 of the India Penal Code and Section 3 and 5  of Explosive Substance Act.

That the Petitioner submits that initially the opposite  Party No.1 lodged an information against some unknown  Police Personnel as stated above but subsequently at the  instance of some designing and interested persons  implicated the Petitioner falsely in the present complaint  case by introducing false, concocted and after thought  story which was filed before the learned Court below 18  days after the alleged incident.  

That the petitioner states that the learned Magistrate erred  in taking cognizance on the basis of the aforesaid  complaint in absence of Sanction for prosecution under  Section 197 of the Code of Criminal Procedure as the  petitioner being the Public servant being appointed by the  Government of West Bengal and not removable from his  office save by all with the sanction of the Government  and for any purported act in discharge of his official duty  cognizance without previous sanction is bad in the eye of  law and liable to be set aside for the ends of justice.  

That the petitioner submits that the learned Magistrate  totally overlooked the provisions of Section 197 of the  Code of Criminal Procedure i.e. no Court shall take  cognizance of any offence alleged to have been made by  a Public Servant in discharge of his official duty without  the previous sanction from the Government and as such  the order taking cognizance in absence of sanction  mandatory is unsustainable in law as also all other  consequential orders are also unsustainable in law."   

6.              The High Court by order dated 11.7.2003 dismissed the  application.  It overruled the contention of the accused based on  Section 197 of the Code of Criminal Procedure thus: "In its considered view Section 197 Cr.P.C. has got no  manner of application in the present case.  Under Section  197 Cr. P.C. sanction is required only if the public  servant was, at the time of commission of offence,  ’employed in connection with the affairs of the Union or  of a State’ and he was ’not removable from his office  save by or with the sanction of the Government.’ The bar  under Section 197 Cr.P.C. cannot be raised by a public  servant if he is removable by some authority without the  sanction of the Government.  

Committing an offence can never be a part of an official  duty.  Where there is no necessary connection between  the act and the performance of the duties of a public  servant, section 197 Cr.P.C. will not be attracted.  

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Beating a person to death by a police officer cannot be  regarded as having been committed by a public servant  within the scope of his official duties."

After referring to the some of the decisions cited, the Court further  stated:

"Committing of an offence of murder can never be a part  of an official duty.  Where there is no necessary  connection between the act and the performance of the  duties of a public servant, Section 197 of the Code will  not be attracted.  Merciless beating by a police officer  causing death of a person can never be said to be an act  in discharge of his official duty."

The Court stated that since from the statement of the doctor who  conducted the post-mortem examination it appeared that the victim  had suffered as many as six serious injuries and in the opinion of the  doctor, the death was due to the injuries to the head inflicted on the  deceased, it was justified in the view it had taken.  The learned Judge  wound up by stating that it was not a fit case for interference by the  High Court and if the Court interferes with the proceedings on any of  the grounds urged by the accused, people will lose their confidence in  the administration of justice.  The High Court directed the Magistrate  to proceed with the matter with utmost expedition and in accordance  with law.

7.              Accused No.1 challenged this order before this Court by  way of this Petition for Special Leave to Appeal.  In the Petition for  Special Leave, Accused No. 1, the appellant, also referred to the  warrant of arrest pending against him and prayed for a stay of further  proceedings.  On 22.8.2003, this Court while issuing notice also  stayed further proceedings before the Chief Judicial Magistrate,  pending further orders.  It appears that, as of now, neither accused  No.1 has been arrested nor the investigation completed.  Learned  counsel appearing on behalf of the State of West Bengal could only  say that the investigation has not been completed.  Learned counsel  for the complaint, on the other hand, submitted that the attitude  adopted was one of helping the accused since they were police  officers.  What is relevant for our purpose is  to notice that  investigations into the two crimes registered, namely, Case No. 111  under Sections 148, 149, 336 IPC read with Sections 3 and 5 of  Explosive Substances Act and Case No. 112, registered on the  complaint made by the complainant herein on 11.5.2001, have not  been completed.   

8.              It is true that at the time the complaint was made before  the Chief Judicial Magistrate by the complainant on 28.5.2001, there  would have been no material before him about the investigation  pending on the two cases registered in the Phoolbagan Police Station  as Case Nos. 111 and 112.  The Magistrate took cognizance of the  complaint filed before him after recording the statements of witnesses  on 31.5.2001 and issued process and also issued warrant for arrest of  the appellant on 16.6.2001.   Therefore, at that stage, it is possible, as  contended by the learned counsel for the complainant, that there was  no occasion for the Chief Judicial Magistrate to consider the  applicability of Section 197 of the Code of Criminal Procedure.  The  occasion had not arisen.  In this context, learned counsel for the  complainant submitted that the contention sought to be raised by the  appellant based on Section 197 of the Code of Criminal Procedure  need not be decided at this stage and it may be open to the appellant to  raise that objection after he has appeared and while raising his  defenses.  Learned counsel relied on the observations of the  Varadachariar, J. in the decision in Dr. Hori Ram Singh Vs.

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Emperor [1939 FCR 159].  He relied on the passage: "As the consent of the Governor, provided for in that  Section, is a condition precedent to the institution of  proceedings against a public servant, the necessity for  such consent cannot be made to depend upon the case  which the accused or the defendant may put forward after  the proceedings had been instituted, but must be  determined with reference to the nature of the allegations  made against the public servant, in the suit or criminal  proceeding.   If these allegations cannot be held to relate  to "any act done or purporting to be done in the execution  of his duty" by the defendant or the accused "as a servant  of the Crown," the consent of the authorities would,  prima facie, not be necessary for the institution of the  proceedings.  If, in the course of the trial, all that could  be proved should be found to relate only to what he did  or purported to do "in the execution of his duty," the  proceedings would fail on the merits, unless the Court  was satisfied that the acts complained of were not done in  good faith: S.270(2).    Even otherwise, the proceedings  would fail for want of the consent of the Governor, if the  evidence established only official acts.   As the Appellate  Court has not pronounced any opinion on the evidence,  we are not in a position to say whether on the facts  proved, the proceedings could be held to fail on either of  the above grounds"

Learned counsel further relied on the decision in H.H. B. Gill and  another Vs. The King, (75 Indian Appeals 41) in an appeal from the  decision in 1947 F.C. 9 to point out that there was no difference  between Section 270 of the Government of India Act dealt with by  Varadachariar, J. and Section 197 (1) of the Code.  He also pointed  out that the Privy Council had approved the view expressed by  Varadachariar, J. in Dr. Hori Ram Singh Vs. Emperor (supra).  Lord  Simonds speaking for the Privy Council stated:

"In the consideration of S.197 much assistance is to be  derived from the judgment of the Federal Court in 1939  F.C.R. 159, and in particular from the careful analysis of  previous authorities which is to be found in the opinion  of Varadachariar J.   Their Lordships, while admitting the  cogency of the argument that in the circumstances  prevailing in India a large measure of protection from  harassing proceedings may be necessary for public  officials cannot accede to the view that the relevant  words have the scope that has in some cases been given  to them.   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."

9.              We find that even if we were accept the submission of  learned counsel for the complainant that the stage is not reached for  considering whether sanction under Section 197(1) of the Code of  Criminal Procedure is required in the present case or not, it would

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only be postponing the consideration of that question.  As we have  noticed earlier, in his application filed before the Chief Judicial  Magistrate invoking Section 210 of the Code of Criminal Procedure  and praying for a stay of further proceedings, the appellant, has  pleaded that the act was done by him in performance of his duty and  in the application filed under Section 482 of the Code of Criminal  Procedure before the High Court in addition to reiterating that the  alleged offence was committed by him in the course of performance  of his duty, he had also invoked Section 197(1) of the Code of  Criminal Procedure and had pleaded that the proceedings cannot go  on and would be without jurisdiction for want of sanction under  Section 197(1) of the Code of Criminal Procedure.  Of course, the  High Court has taken the view that the complaint would not attract  Section 197(1) of the Code and that was the reason for rejecting the  prayer of the appellant to quash the proceedings as being without  jurisdiction for want of sanction.  Learned counsel for the complainant  has made a submission that the whole investigation was being delayed  and the whole process was being delayed in view of the fact that the  accused involved were police personnel and the State was more  interested in protecting them than in having justice done.  When we  take note of this submission, postponing a decision on the  applicability or otherwise of Section 197(1) of the Code can only lead  to the proceedings being dragged on in the trial Court and a decision  by this Court, here and now, would be more appropriate in the  circumstances of the case especially when the accused involved are  police personnel and the nature of the complaint made is kept in mind.    10.             We may first try and understand the scope of Section 197  and the object of it.  This Court in Shreekantiah Ramayya  Munipalli Vs. The State of Bombay [1955 (1) SCR 1177) explained  the scope of Section 197 thus:

"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 no 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.   The  section has content and its language must be given  meaning.  What it says is ----  

"when any public servant \005. 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\005"

We have therefore first to concentrate on the word  "offence".  

Now an offence seldom consists of a single act.   It is  usually composed of several elements and, as a rule, a  whole series of acts must be proved before it can be  established.  In the present case, the elements alleged  against the second accused are, first, that there was an  "entrustment" and/or "dominion"; second, that the  entrustment and/or dominion was "in his capacity as a  public servant"; third, that there was a "disposal"; and  fourth, that the disposal was "dishonest".    Now it is  evident that the entrustment and/or dominion here were  in an official capacity, and it is equally evident that there  could in this case be no disposal, lawful or otherwise,  save by an act done or purporting to be done in an  official capacity.   Therefore, the act complained of,  namely the disposal, could not have been done in any  other way.   If it was innocent, it was an official act; if

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dishonest, it was the dishonest doing of an official act,  but in either event the act was official because the second  accused could not dispose of the goods save by the doing  of an official act, namely officially permitting their  disposal; and that he did.   He actually permitted their  release and purported to do it in an official capacity, and  apart from the fact that he did not pretend to act  privately, there was no other way in which he could have  done it.   Therefore, whatever the intention or motive  behind the act may have been, the physical part of it  remained unaltered, so if it was official in the one case it  was equally official in the other, and the only difference  would lie in the intention with which it was done: in the  one event, it would be done in the discharge of an official  duty and in the other, in the purported discharge of it."

This Court therefore held in that case that Section 197 of the Code of  Criminal Procedure applied and sanction was necessary and since  there was none, the trial was vitiated from the start.

11.             Again in Amrik Singh Vs. The State of PEPSU [1955  (1) SCR 1302] this Court after referring to the decisions of the Federal  Court and the Privy Council referred to earlier and some other  decisions summed up the position thus:  "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."

After noticing the facts of that case, their Lordships stated: "In our judgment, even when the charge is one of  misappropriation by a public servant, whether sanction is  required under Section 197(1) will depend upon the facts  of each case.  If the acts complained of are so integrally  connected with the duties attaching to the office as to be  inseparable from them, then sanction under Section  197(1) would be necessary; but if there was no necessary  connection between them and the performance of those  duties, the official status furnishing only the occasion or  opportunity for the acts, then no sanction would be  required."

Their Lordship then quoted with approval the observations in the  decision in Shreekantiah Ramayya Munipalli Vs. The State of  Bombay (supra).

12.             A Constitution Bench of this Court had occasion to  consider the scope of Section 197 of the Code of Criminal Procedure  in Matajog Dobey Vs. H.C. Bhari [1955 (2) SCR 925], after holding  that Section 197 of the Code of Criminal Procedure was not violative  of the fundamental rights conferred on a citizen under Article 14 of  the Constitution of India, this Court observed:

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"Public servants  have to be protected from harassment in  the discharge of official duties while ordinary citizens not  so engaged do not require this safeguard.   It was argued  that  Section 197, Criminal Procedure Code vested an  absolutely arbitrary power in the government to grant or  withhold sanction at their sweet will and pleasure, and  the legislature did not lay down or even indicate any  guiding principles to control the exercise of the  discretion.   There is no question of any discrimination  between  one person and another in the matter of taking  proceedings against a public servant for an act done or  purporting to be done by the public servant in the  discharge of his duties.   No one can take such  proceedings without such sanction."

On the test to be adopted for finding out whether Section 197 of the  Code was attracted or not and to ascertain the scope and meaning of  that Section, their Lordships stated:  "Slightly differing  tests have been laid down in the  decided cases to ascertain the scope and the meaning of  the relevant words occurring in Section 197 of the Code;  "any offence alleged to have been committed by him  while acting or purporting to act in the discharge of his  official duty".  But the difference is only in language and  not in substance.   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 merit.  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."

After referring to the earlier decisions of the Federal Court, Privy  Council and that of this Court, their Lordships summed up the  position thus :

"The result of the foregoing discussion is this: 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."

Their Lordships then proceeded to consider the stage at which the  need for sanction under Section 197 (1) of the Code had to be  considered.  Their Lordships stated:

"The question may arise at any stage of the proceedings.    The complaint may not disclose that the act constituting  the offence was done or purported to be done in the  discharge of official duty; but facts subsequently coming  to light on a police or judicial inquiry or even in the  course of the prosecution evidence at the trial, may

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establish the necessity for sanction.   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."

13.             In the light of the above decision it does not appear to be  necessary to multiply authorities.  But we may notice some of them  briefly.  In Pukhraj Vs. State of Rajasthan & Another [(1973) 2  SCC 701], this Court held: "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 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  offence should have been committed when an act is done  in the execution of duty or when an act purports to be  done in execution of 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. 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 need the act  constituting the offence be so inseparably connected with  the official duty as to form part and parcel of the same  transaction. What is necessary is that the offence must be  in respect of and act done or purported to be done in the  discharge of an official duty. It does not apply to acts  done purely in a private capacity by a public servant.  Expressions such as the "capacity in which the act is  performed", "cloak of office" and "professed exercise of  the office" may not always be appropriate to described or  delimit the scope of section. An act merely because it  was done negligently does not cease to be one done or  purporting to be done in execution of a duty."   

In B. Saha & Ors. Vs. M.S. Kochar [(1979) 4 SCC 177], this Court  held: "In sum, the sine qua non for the applicability of this  section is that the offence charged, be it one of  commission or omission, must be one which has been  committed by the public servant either in his official  capacity or under colour of the office held by him."  

In Bakhshish Singh Brar Vs. Gurmej Kaur & Anr. [(1987) 4 SCC  663], this Court stated that it was 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, and that  is the rationale behind Section 196 and Section 197 of the Code.  But  it is equally important to emphasize that rights of the citizens should  be protected and no excesses should be permitted.  Protection of  public officers and public servants functioning in discharge of their  official duties and protection of private citizens have to be balanced in  each case 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.   In

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the recent decision in Rakesh Kumar Mishra Vs. State of Bihar &  Others [(2006) 1 SCC 557], this Court after referring to the earlier  decisions on the question stated: "The Section has, thus, to be construed strictly, while  determining its applicability to any act or omission in the  course of service.  Its operation has to be limited to those  duties which are discharged in the course of duty.  But  once any act or omission has been found to have been  committed by a public servant in the discharge of his  duty then it must be given liberal and wide construction  so far its official nature is concerned."

14.             Learned counsel for the complainant argued that want of  sanction under Section 197(1) of the Code did not affect the  jurisdiction of the Court to proceed, but it was only one of the  defences available to the accused and the accused can raise the  defence at the appropriate time.  We are not in a position to accept this  submission.  Section 197(1), its opening words and the object sought  to be achieved by it, and the decisions of this Court earlier cited,  clearly indicate that a prosecution hit by that provision cannot be  launched without the sanction contemplated.  It is a condition  precedent, as it were , for a successful prosecution of a public servant  when the provision is attracted, though the question may arise  necessarily not at the inception, but even at a subsequent stage.  We  cannot therefore accede to the request to postpone a decision on this  question.

15.             Coming to the facts of this case, the question is whether  the appellant was acting in his official capacity while the alleged  offence was committed or was performing a duty in his capacity as a  police officer which led to the offence complained of.  That it was the  day of election to the State Assembly, that the appellant was in  uniform; that the appellant traveled in an official jeep to the spot, near  a polling booth and the offence was committed while he was on the  spot, may not by themselves attract Section 197 (1) of the Code.  But,  as can be seen from the facts disclosed in the counter affidavit filed on  behalf of the State based on the entries in the General Diary of the  Phoolbagan Police Station, it emerges that on the election day  information was received in the Police Station at 1400 hours of some  disturbance at a polling booth, that it took a violent turn and clashes  between the supporters of two political parties was imminent.  It was  then that the appellant reached the site of the incident in his official  vehicle.  It is seen that a case had been registered on the basis of the  incidents that took place and a report in this behalf had also been sent  to the superiors by the Station House Officer.  It is also seen and it is  supported by the witnesses examined by the Chief Judicial Magistrate  while taking cognizance of the offence that the appellant on reaching  the spot had a discussion with the Officer-in-charge who was  stationed at the spot and thereafter a lathi charge took place or there  was an attack on the husband of the complainant and he met with his  death.  Obviously, it was part of the duty of the appellant to prevent  any breach of law and maintain order on the polling day or to prevent  the blocking of voters or prevent what has come to be known as booth  capturing.   It therefore emerges that the act was done while the  officer was performing his duty.  That the incident took place near a  polling booth on an election day has also to be taken note of.  The  complainant no doubt has a case that it was a case of the deceased  being picked and chosen for illtreatment and he was beaten up by a  police constable at the instance of the appellant and the Officer-in- charge of the Phoolbagan Police Station and at their behest.  If that  complaint were true it will certainly make the action, an offence,  leading to further consequences. It is also true as pointed out by the  learned counsel for the complainant that the entries in the General  Diary remain to be proved.  But still, it would be an offence  committed during the course of the performance of his duty by the

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appellant and it would attract Section 197 of the Code.  Going by the  principle, stated by the Constitution Bench in Matajog Dobey  (supra), it has to be held that a sanction under Section 197 (1) of the  Code of Criminal Procedure is necessary in this case.   

16.             We may in this context notice the decision in Rizwan  Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors. [(2001) 5  SCC 7).    This Court was dealing with officers who were brought  within the protective umbrella of Section 197 of the Code by a  notification issued under Section 197(3) thereof.   Cognizance had  been taken of an offence under Sections 220 and 342 of the Indian  Penal Code and Sections 147 and 148 of the Bombay Police Act.  The  gravamen of the charge was the failure on the part of the accused  police officers to produce the complainants before a magistrate within  24 hrs. of their arrest for alleged offences under the Indian Penal  Code.  The police officers having claimed the protection of Section  197(1) of the Code, this Court after referring to the earlier decisions  held" "The real test to be applied to attract the  applicability of Section 197(3) is whether the act  which is done by a public officer and is alleged to  constitute an offence was done by the public  officer whilst acting in his official capacity though  what he did was neither his duty nor his right to do  as such public officer.  The act complained of may  be in exercise of the duty or in the absence of such  duty or in dereliction of the duty, if the act  complained of is done while acting as a public  officer and in the course of the same transaction in  which the official duty was performed or purported  to be performed, the public officer would be  protected."

               Going by the above test it has to be held that  Section 197(1) of the Code is attracted to this case.

17.             The High Court has stated that killing of a person by use  of excessive force could never be performance of duty.  It may be  correct so far as it goes.  But the question is whether that act was done  in the performance of duty or in purported performance of duty.  If it  was done in performance of duty or purported performance of duty  Section 197(1) of the Code cannot be by-passed by reasoning that  killing a man could never be done in an official capacity and  consequently Section 197(1) of the Code could not be attracted.  Such  a reasoning would be against the ratio of the decisions of this Court  referred to earlier.  The other reason given by the High Court that if  the High Court were to interfere on the ground of want of sanction,  people will lose faith in the judicial process, cannot also be a ground  to dispense with a statutory requirement or protection.  Public trust in  the institution can be maintained by entertaining causes coming within  its jurisdiction, by performing the duties entrusted to it diligently, in  accordance with law and the established procedure and without delay.   Dispensing with of jurisdictional or statutory requirements which may  ultimately affect the adjudication itself, will itself result in people  losing faith in the system.  So, the reason in that behalf given by the  High Court cannot be sufficient to enable it to get over the  jurisdictional requirement of a sanction under Section 197(1) of the  Code of Criminal Procedure.  We are therefore satisfied that the High  Court was in error in holding that sanction under Section 197(1) was  not needed in this case.  We hold that such sanction was necessary and  for want of sanction the prosecution must be quashed at this stage.  It  is not for us now to answer the submission of learned counsel for the  complainant that this is an eminently fit case for grant of such  sanction.

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18.             We thus allow this appeal and setting aside the order of  the High Court quash the complaint only on the ground of want of  sanction under Section 197(1) of the Code of Criminal Procedure.   The observations herein, however, shall not prejudice the rights of the  complainant in any prosecution after the requirements of Section  197(1) of the Code of Criminal Procedure are complied with.