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Anil J. Solanke Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 19 of 1985
Judge
Reported in1985(2)BomCR778
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 197, 200 and 220; Bombay Police Act, 1951 - Sections 161
AppellantAnil J. Solanke
RespondentState of Maharashtra and anr.
Appellant AdvocateS.V. Manohar, Adv.
Respondent AdvocateV.V. Naik, A.G.P. for respondent-non-applicant No. 1 and ;V.S. Sirpurkar, Adv. for non-applicant No. 2
DispositionResult succeeded
Excerpt:
.....they cannot be prosecuted without obtaining prior sanction under section 197 - complainant denied bail - complainant arrested for bailable offence ready to furnish bail bond - offence registered against complainant done in discharge of his official duties - refusal to grant bail inter related with arrest in official discharge of duties and protected by provisions of section 197 - held, petitioner acted in his official capacity and in accordance with law. - - it was further contended that the act complained of was so closely interrelated to the earlier part of lawful arrest that assuming though not admitting, the accused petitioner has exceeded his duties or has acted in beach thereof, he was still under the protection of umbrella of section 197, criminal procedure code. if there..........that the complainant was refused bail thought all the offences under which he was arrested were bailable offences and that the accused nos. 1 and 2 were duty bond to released the complainant on bail when he was ready to furnish the same. that the accused persons have thus acted corruptly and maliciously. that while keeping the complainant in confinement they knew that they were acting contrary to the provisions of sections 50 and 436 of criminal procedure code. it is thus alleged that the accused nos. 1 and 2 are guilty of the offence defined and punishable under section 220 of indian penal code and accused persons 3 to 5 are also guilty of the same offence read with sections 109 and 34 of indian penal code. it is submitted by the complainant that the corrupt and malicious intention.....
Judgment:

S.W. Puranik, J.

1. This petition invokes the extraordinary powers of this Court under Articles 226 and 227 of the Constitution of India and also invokes the inherent powers of this Court under section 482 of Criminal Procedure Code to prevent an apparent miscarriage of justice and gross abuse of the process of the Court. The order of the Sessions Judge, Yeotmal in Criminal Revision Application No. 104/84 dated 6-4-1985 confirming the order passed by judicial Magistrate, First Class, in Criminal Case No. 10/83 dated 11-9-1984 passed below Exts. 21 and 22 is impugned in this petition. Ex. 21 is the application filed by the petitioner as accused No. 1 before the trial court and Ex. 22 is another application filed by the other accused Nos. 2 to 5, who are not parties in this petition, before the trial Court contending that they cannot be prosecuted in the complaint case without obtaining prior sanction under section 197, Criminal Procedure Code. The trial Court allowed the application Ex. 22 filed on behalf of the accused Nos. 2 to 5 and discharged them for want of necessary sanction under section 197, Criminal Procedure Code. However, he rejected the application of the petitioner accused No. 1. This order of the trial Court was confirmed by the sessions judge in Revision. Brief facts may be narrated as follows. The same are extracted from the order of the trial Court in Paragraphs 2 to 6.

'2. That the complainant is a Police Patil of village Lakh (Rayaji). That the M.L.A.'s belonging to ruling party, Shri Nanabhau Embadwar and Shri Sudhakarrao Dhurwe are on inimical terms with the complainant; that they exerted under pressure on all the accused persons and got some false offence registered against him. That they were also bribed by Shri Haribhau Raut, who is from the group of the above said M.L.A.'s, and that for all these reasons on 19-7-1982 at about 1 a.m. the accused No. 3 came to his house and informed him that he was called by the accused No. 1. That, after some time, accused No. 1 came along with accused Nos. 2, 3 and 5 and informed the complainant that he was being arrested on the complaint of accused Nos. 3 to 5. Accordingly, the complainant was arrested. The accused No. 1 then directed accused No. 2 to take the complainant to Police Station, Digras. Accordingly, accused No. 2 brought him to the Police Station in the Jeep. That, in the Police Station the complainant come to know that the offence under sections 147, 148, 352, 353 and 506 read with section 34 of Indian Penal Code came to be registered against him on the complaint of accused Nos. 3 to 5. That, all these offences are bailable and hence he requested accused No. 2 to release him on bail and that he was prepared to furnish proper surety. That the accused No. 2 at that time informed the complainant that he was under instructions from accused No. 1 not to enlarge him on bail. Thereafter one Shankar Manik contacted accused No. 1 and requested him to released the complainant on bail but the accused No. 1 blatantly refused to oblige him. It is a specific allegation that the accused No. 1 refused to enlarge the complainant on bail because he was heavily bribed by Shri Haribhau Raut and also because of the political pressure brought on him by Shri Sudhakarrao Dhurwe sitting M.L.A. from Digras. It is also alleged that accused Nos. 3 to 5 were also bribed by the said Haribhau and therefore, they lodged the false report against the complainant, on the strength of which the complainant was arrested.

3. It is averred that the accused Nos. 1 to 5 arrested the accused without any justification and that while detaining him in the Police Custody they were acting in concert with each other. That the accused Nos. 2 to 5 were also talking amongst themselves that due to the detention 'Rubab' of the complainant had come down.

4. It is further alleged by the complainant that the accused Nos. 1 and 3 are responsible Police Officers, who are supposed to know the provisions of sections 50 and 436 of Criminal Procedure Code. That the complainant was refused bail thought all the offences under which he was arrested were bailable offences and that the accused Nos. 1 and 2 were duty bond to released the complainant on bail when he was ready to furnish the same. That the accused persons have thus acted corruptly and maliciously. That while keeping the complainant in confinement they knew that they were acting contrary to the provisions of sections 50 and 436 of Criminal Procedure Code. It is thus alleged that the accused Nos. 1 and 2 are guilty of the offence defined and punishable under section 220 of Indian Penal Code and accused persons 3 to 5 are also guilty of the same offence read with sections 109 and 34 of Indian Penal Code. It is submitted by the complainant that the corrupt and malicious intention of the accused persons is obvious because other persons involved in the same offence were never confined by them.

5. That on the next day the complainant was released on bail after Superintendent of Police, Yavatmal was moved by Shankar Patil on behalf of the complainant and after accused No. 1 received the message from Superintendent of Police, Yavatmal, to release the complainant on bail.

6. The complainant, therefore, filed the present complaint case under section 200 of Criminal Procedure Code read with section 161 of Bombay Police Act for the offence under section 220 of Indian Penal Code, 147 of Bombay Police Act read with sections 109 and 34 of Indian Penal Code.'

2. As already stated above, both the courts have found that accused Nos. 2 to 5 were acting in discharge of their official duties under directions of accused No. 1, the present petitioner, and as such they were protected under section 197, Criminal Procedure Code and could not be prosecuted without prior sanction. As regards the petitioner accused No. 1, both the courts have found that the acts amounting to an offence under section 220 of Indian Penal Code and 147(c) of the Bombay Police Act committed by the petitioner were not in discharge of his official duties and hence no sanction under section 197 Criminal Procedure Code was necessary to prosecute him. It must be noted, however, that the trial Court issued process against accused under section 147 of Bombay Police Act and 220 of Indian Penal Code.

3. Shri S.V. Manohar, Advocate appears for the petitioner accused No. 1. The State of Maharashtra is represented by Shri V.V. Naik, Asstt. Government Pleader and respondent No. 2-Ramrao who is the original complainant is represented by Shri. V.S. Sirpurkar, Advocate.

4. With the assistance of the Counsel, I have gone through the petition, the impugned orders and the true copies of the original complaint approved by both the Counsel. It was contended on behalf of the petitioner, that a perusal of the complaint case filed by respondent No. 2, disclosed that the main gravamen of the allegation is that the petitioner accused has committed the offence under section 220 of Indian Penal Code and section 147-(c) of the Bombay Police Act, in not releasing the complainant on the bail when he was arrested for bailable offence. According to the petitioner, there is only on omission on the part of the petitioner accused No. 1 in not releasing the complainant on bail, but it would still be a matter within the discharge of his duties as a public officer or the purported discharge of the lawful duties. It was further contended that the act complained of was so closely interrelated to the earlier part of lawful arrest that assuming though not admitting, the accused petitioner has exceeded his duties or has acted in beach thereof, he was still under the protection of umbrella of section 197, Criminal Procedure Code. Mr. Manohar also argued that the courts below have given undue weight to some vague allegations in the complaint that the accused had accepted bribe before arresting the complainant on the basis of false reports. These allegations are neither factual, not are they specified. They are only on the basis of hear-say information of the complaint. There was, therefore, no material or date before the trial Court to find that the act of the accused was initially otherwise than in the discharge or purported discharge of his official duties.

5. The Counsel for the respondent No. 2 seriously opposed the petition and contended that the entire complaint and the substance of the complaint has to be taken into consideration in arriving at a finding as to whether the act of the accused was in the discharge of his official duties or not. According to him, both the courts have given a concurrent finding that in so far as accused No. 1 petitioner is concerned, the acts alleged against him are such which cannot be said to be performed in the exercise of his official duties .

6. Shri V.V. Naik, the learned Public Prosecutor, however, supported the petitioner and contended that granting of bail or refusing bail are parts of the official duties of the Police Inspector in the matter of arrest of any accused in an offence duly registered in his Police Station. If there has been any failure or breach in the exercise of these powers, yet the acts are such which are in the purported exercise of the said powers and the accused is entitled for the protection of section 197, Criminal Procedure Code.

7. Shri S.V. Manohar, Advocate for the petitioner relied on several judgments including those reported in Capt. Shankarrao v. Burjor D. Engineer : AIR1962Bom198 ; Somchand v. Bibhuti Bhusan : 1965CriLJ499 ; D. Subba Rao v. M.V.V. Reddi, 1975 Cr. Law J. 1124 and Nasir Ali Khan v. Government . The respondent's Counsel Shri Sirpurkar relied upon the decisions reported in Pukhraj v. State of Rajasthan : 1973CriLJ1795 ; S.B. Saha v. M.S. Kochar : 1979CriLJ1367 ; Prabhakar v. Shankar : 1969CriLJ1057 and B.S. Sambhu v. Krishnnaswamy : 1983CriLJ158 .

8. The first thing to be noted is that from the complaint case, launched against the five accused persons, accused Nos. 2 to 5 have been discharged by the trial Court holding inter alia that they were acting in discharge of their official duties and that they could not be prosecuted without sanction. The said order of discharge was in fact challenged by the complainant-respondent No. 2, but the revision came to be dismissed. Thus, the allegations in the complaint that the original accused Nos. 3 and 4 had filed a false complaint against the present respondent No. 2 and for which offence he was arrested are not available for trial. The perusal of the complaint has shown that the first few paragraphs, relate to the political rivalry between the two groups, one of the complainant and the other of M.L.A. There is no allegation against the petitioner accused No. 1, that he was at any time before inimical to the complainant. There is also a reference to an incident on the date of arrest of the complainant which is referred to in the complaint. It appears that near the house of the complainant, some hot discussion was going on where the complainant intervened and directed his group to take legal steps. It is, therefore, that a complaint by accused Nos. 3 and 4 was lodged at the Police Station of which the accused No. 1 petitioner was the Police Inspector. Offence was registered by him and he directed the complainant to be brought under arrest. The accused Nos. 2 to 5 under his direction arrested the complainant and produced him at the Police Station. The main gravamen of the complaint is that the respondent No. 2 was willing to furnish security for release on bail. There were also sureties available to furnish the necessary bonds for release of the respondent No. 2 But the petitioner accused No. 1 refused to grant him bail. According to the complainant's allegations, the accused acted corruptly and maliciously keeping the complainant in detention and acting contrary to the provisions of sections 50 and 436 of Criminal Procedure Code. Thus, the perusal of the complaint shows that the main gravamen of the charge is that the petitioner accused having legal authority to commit persons for trial and or to confine, had corruptly or maliciously kept the complainant respondent No. 2 in confinement in exercise of that authority and knowing that in doing so, he was acting contrary to law. It is for this purpose that even according to the complainant, the offences committed by the petitioner-accused are thus covered by section 220 of Indian Penal Code and 147-(c) of the Bombay Police Act.

9. The question is whether at the threshold, the material shows that the accused was acting in the discharge of his official duties as a public servant or purported discharge of his official duties as a public servant or not.

10. It is well settled that the objection under section 197 of Criminal Procedure Code can be taken at any stage of the trial and even at the threshold itself. A detailed complaint drafted through legal assistance has been filed on record. It is obvious that legal assistance was secured in the filling of the complaint case, inasmuch as it related to several provisions of the Indian Penal Code and Criminal Procedure Code in bringing home the fact that the accused has committed offence under section 220, Indian Penal Code and 147 Bombay Police Act.

11. The Division Bench consisting of Patel & Chandrachud, JJ., of our High Court in Capt. Shankarrao v. Burjor D. Engineer (supra) has observed as follows:

'The act constituting the offence cannot be the actual duty which the public servant is performing, but something independent of that duty; for doing the act of duty cannot both be legal and illegal. Yet it must arise out of the performance of duty; moreover it can never mean that a single act of duty must be regarded as the performance of duty out of which the offence must arise. Duty must be taken as the general duty which an officer has to perform. If in the course of such performance of duty he does something which is an offence the section must apply.' (Section 197 Criminal Procedure Code).

They further observed relying on Hori Ram Singh v. Emperor, 1939 F.C.R. 159; Shrekantiah Ramayya Munipalli v. State of Bombay : 1955CriLJ857 and Amrik Singh v. State of Pepsu : 1955CriLJ865

'inasmuch as the illegal omissions of the public servants must necessarily arise out of the official duty which they were performing, section 197 must apply, and the prosecution was incompetent in the absence of a sanction from an appropriate authority under section 197.'

In the case of Somchand v. Bibhuti Bhusan : 1965CriLJ499 , Their Lordship of the Supreme Court were discussing the question whether an Assistant Commissioner of Police could be prosecuted for the offence of refusing to grant the bail in a bailable offence under section 420, Indian Penal Code without prior sanction under section 197, Criminal Procedure Code. The said case arose as follows :

In pursuance of an investigation in to a complaint made by M against the appellant and two others in respect of offences under section 120-B read with section 420, I.P.C. the appellant was arrested, kept in police lock up and eventually produced before the respondent, the Assistant Commissioner of Police, Calcutta. When an application for release on bail was made on behalf of the appellant, the respondent refused to grant him bail unless he settled the matter with M and paid him a certain sum of money. The appellant then filed a complaint against the respondent-Assistant Commissioner of Police under section 348 I.P.C. and process was issued against him.

It was held in that case that sanction of the appropriate authority for the respondent's prosecution was necessary under section 197, Criminal Procedure Code, and that therefore, the process issued against him without such sanction has to be quashed. Whether the person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising discretion, he acted illegally by saying that bail would not be granted unless the appellant did some thing which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as public servant.

12. The facts and the observations of both the citations above squarely apply to the present case. According to the complainant, inspite of the fact that he was arrested for a bailable offence and he was ready to tender bail for his release, the accused petitioner had refused to release him on bail for a period of 10 hours. In my opinion, the investigating Officer, such as the petitioner, has a right to detain a person for interrogation and investigation, but his right is limited only to detain him for a period of 24 hours and not more. It is also seen from the complaint case that in fact he was released on bail by the applicant himself in the same morning after a few hours upon instructions from higher authorities. It was argued on behalf of the respondent-complainant that the substance of the complaint case should be taken into account and it is possible for the complainant after adducing some evidence before charge that what the applicant accused did was totally outside the purview of his official duties as Police Inspector. The said argument is not convincing for the simple reason that merely on the basis of a certain vague allegations in complaint paragraphs 1 to 7, it cannot be said that the accused petitioner intentionally recorded a false report, registered a false offence and caused to arrest the complainant and intentionally refused him bail. The fact remains that in ordinary course of business, an offence came to be registered against the complainant for which the petitioner directed his subordinates to detain the respondent No. 2 and then released him on bail after some hours. The said act cannot be termed as otherwise than.........in discharge of his official duties. At any rate, those acts are in the purported discharge of his official duties and the petitioner would be entitled to protection under section 197, Criminal Procedure Code. The act complained of has a direct nexus with the discharge of official duties by the petitioner. As held in D. Subha Rao v. M.V.V. Reddi, (supra), the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duties. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty. What the Court must find out is whether the act and the official duty are go interrelated 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.

13. The other accused persons having been discharged on the ground that they were acting in due discharge of their official duties as public servants one can safely assume that the offence registered against the complainant was done in discharge of their official duties and so the consequent arrest of respondent No. 2 by the petitioner was in due discharge of his official duties. The refusal to grant bail is so inter-related with the arrest in official discharge of duties that the necessary protection of section 197 Criminal Procedure Code can be availed of by the accused. For the above reasons, the impugned orders of both the courts below are not sustainable. They are contrary to law and liable to be quashed.

14. In the result, therefore, the petitioner succeeds. The impugned orders are quashed and set aside. The prosecution launched on the basis of complaint filed by respondent No. 2 against the applicant petitioner is quashed. Petitioner be discharged from the said proceeding. Rule absolute in above terms.


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