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Mrs. Mary Kutty Thomas Vs. Mr. Pawar, D.C.P. Zone-iv and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Reported in1983CriLJ1654
AppellantMrs. Mary Kutty Thomas
RespondentMr. Pawar, D.C.P. Zone-iv and ors.
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power.....orderkotwal, j.1. the protector of law is sought to be placed in the dock by a private citizen while one judicial forum practically removed him from that situation. the petitioner herein is the wife of one thomas kurian alias khaja, residing in sion area of this metropolitan city along with her husband and the children. her husband runs a restaurant as also a wine shop located at antop hill road for quite some time under the name and. style as 'janith restaurant and janith wine shop.' the wife claims that one edward albert mathias and two of his associates were arrested by the police attached to matunga police station on july 28, 1982, for an offence under sections 307, 353 of the penal code and section 66(1)(b) of the bombay prohibition act. when they were produced before the 30th court.....

Kotwal, J.

1. The protector of law is sought to be placed in the dock by a private citizen while one judicial forum practically removed him from that situation. The petitioner herein is the wife of one Thomas Kurian alias Khaja, residing in Sion area of this metropolitan city along with her husband and the children. Her husband runs a restaurant as also a wine shop located at Antop Hill Road for quite some time under the name and. style as 'Janith Restaurant and Janith Wine Shop.' The wife claims that one Edward Albert Mathias and two of his associates were arrested by the Police attached to Matunga Police Station on July 28, 1982, for an offence under Sections 307, 353 of the Penal Code and Section 66(1)(b) of the Bombay Prohibition Act. When they were produced before the 30th Court Kurla for remand, two of them ventilated a grievance that they have been ill-treated by Shri Pawar, Deputy Commissioner of Police Zone-V, whose office is located in the precincts of Matunga Police Station. The Court remanded them to judicial custody with a direction that they be medically examined.

2. The wife then gives her account in a very sorrowful manner how her husband was directly involved According to her it was on July 29, 1982, that her husband was arrested by the Police attached to the same Police Station in respect of the same case wherein on the previous day the other three accused were arrested. Her husband was then produced before the said Court when he made a categorical complaint of ill-treatment at the hands of Police, stating in clear terms that he was brought from Chembur by about 3 or four police constables on 28th instant at about 9 a.m. and from there he was taken to Matunga Police Station where he was subjected! to physical assault with fist on stomach and back. The husband complained of pain and was feeling giddy which was also ventilated to the learned Magistrate and an application was made by an advocate on his behalf with a request to get him medically examined. Despite that according to her, her husband was remanded to police custody for one day.

3. It is then on the next day i.e. on July 30, 1982 that according to the wife some thing more was in the store. On that day, her husband was produced in the said Court at Kurla where a direct complaint about the ill-treatment was filed. The learned Magistrate recorded that complaint, the gist of which is to the effect that on July 29, 1982 some time at 8-30 p.m. in the said, Police Station, at Matunga, the Deputy Commissioner of Police Shri Pawar, assaulted him with fist-blows on both ears and stomach which operation of assault continued for quite some time, on account of which he sustained pain near the ear on both the sides as also in the stomach on account of which he lost appetite and had difficulty in urination and had also a feeling that his hearing capacity has been impaired. There was also swelling over the side of both ears. Thereafter the said Deputy Commissioner of Police, took him to Raoli Camp at Sion Koliwad in Police jeep and thereafter made him walk up to his shop. Shri Pawar had accompanied and it is at that point of time, that the said Deputy Commissioner of Police slapped on his cheek and gave a forcible kick from his back side. As per the allegations of the wife, not only her husband's complaint was written down, but the learned Magistrate also noted the injuries found on his person. It, was also indicated with no uncertainty by the husband that he was paraded in the locality with* handcuffs by the said D. C. P. and he was subjected to repeated assault by the said D. C. P. as well as by some police constables. The wife further claims that this assault was not a matter of any secrecy but was witnessed by the people in the locality which included one Dr. Agarwal, Dr. Talati and one Balkrishna Oban, who is the Proprietor of Anand Grills. Not only that but these very witnesses were present in the said Court on July 30, right from 11 a.m. till her husband, was remanded to jail custody, after he had made grievance about the ill-treatment. It is further claimed that in. support of the said allegations even the photographs were taken showing that her husband was paraded with the handcuffs in that locality by the said D. C. P. and actually tendered the photos before the learned Magistrate. It is ultimately claimed that the learned Magistrate recorded all these features in the said proceedings, remanded the accused to jail custody and also issued directions for the medical examination, which was in addition to the learned Magistrate himself noting down in the proceeding the injuries seen by him on the person of her husband.

4. A further narration is sort of a follow up action, According to the wife, in pursuance of the said order issued by the learned Magistrate, her husband was examined by the Medical Officer, attached to Arthur Road Jail Hospital and was given medical treatment for the injuries sustained on his person. Thereafter he was sent by jail authorities to JJ Group of Hospitals where he was again examined by the Medical Officer when the injuries were noticed.

5. In the last phase of the allegations it is mentioned that the moment it was revealed to the said Police Officer and his associates that her husband was contemplating launching of prosecution against the D. C. P, for the said assault, the said Police Officer all of a sudden presented himself and, was moving in the locality around her house and even visited the said restaurant and levelled threats to the customers as also the concerned parties to meet with dire consequences so that the entire business would be brought to disrepute and stand still. The wife also echoed in no uncertain terms her horrifying experience that she has been receiving telephone messages persistently on every day that are engineered by the said Police Officer. She further apprehends that in view of the proposed action against the said Police Officer he was likely to have vendetta and he would involve her and her husband as also their relations in a false prosecution. The wife claims that she has received direct threats from concerned agencies to pressurise her not to launch the prosecution.

6. In spite of the said tension and the pressure, the wife ultimately claims to have approached, the learned Magistrate by filing a private complaint under Sections 323 and 506(1) of the Penal Code, against the D. C. P. Zone-IV Shri Pawar, in the Court of the Metropolitan Magistrate 30th Court, Kurla. This was an event of August 1982. The complaint is also annexed with the list of witnesses who had seen the incident and in addition thereto she has cited the Medical Officer from Arthur Road Central Prison and one from JJ Group of Hospitals. She has also cited the co-accused Thomas and she had requested to call for the proceeding in the said Miscellaneous Application from the said Court in which all the details have been quoted in black and white. The learned Magistrate passed a cryptic order on Aug. 30, 1982 dismissing the complaint on the sole ground in view of the bar envisaged by Section 197 of the Cr. P.C. According to him, the accused is a public servant who is appointed by the Government and therefore the Court cannot take cognizance without the previous sanction from the authority for prosecuting the said Police Officer. This order, therefore, at least on that forum, though for the time being, sealed the fate of the proceeding at the threshold itself.

7. It is this order that is being impugned by the wife of the said accused in this Revision Application.

8. I have already indicated in details the gravamen of the allegations which are reflected very vividly in the complaint and as such repetition is unnecessary. If those allegations are read, in their entirety, then it cannot be said that those are either vague or do not make out any ex facie case at least for taking cognizance. The truthfulness of the said allegations cannot be a matter of inquiry in this proceeding. There are different modes prescribed under the Cr. P.C. under which the Magistrate either can straightway on reading the complaint and verification issue process or can, for the reasons to be recorded, postpone the issuance of process and hold, an inquiry by himself or through police agency. The third category in the instant case, for obvious reasons, is rather remote. The learned Magistrate has not addressed himself on the merits of the allegations nor has he suggested that he was not inclined to take cognizance. The only ground on which the complaint was dismissed rested on the so called bar of Section 197 of the Cr. P C. In view of this position, it would equally be just and proper to restrict in this proceeding to. that aspect only, as entering into the arena of the merits of the allegations, wholesale would be unnecessary, except for adverting to those in the limited field of considering their nexus with the requirement and applicability of the provisions of Section 197 since in every case the said provisions cannot be considered in vacuum and dehors of some factual aspects. The learned Magistrate, as indicated earlier, was of the view that since the respondent is a public servant, the Court cannot take cognizance without prior sanction of the concerned authority as per Section 197 of the Code. Significantly these are the only limited aspects to which the learned Magistrate addressed himself vis-a-vis the capacity of the respondent as being a public servant. This, however, is only a partial reading of the said provisions, since further requirements are also to be relevant, though unfortunately the learned Magistrate has not ' addressed himself to the said other requirements. In other words, merely the proposed accused being a public servant by itself is not enough to place the complaint under the clutches of the said provisions. But the further requirements also must co-exist, which are perhaps more germane, to the effect that the public servant concerned is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The order, therefore, would unmistakably indicate that the approach was almost perfunctory and the conclusion, when examined on the anvil of the correct reading of the said provisions in the context of various ratios, is equally vulnerable and unsustainable.

9. The said provision contained, in Section 197 of the Code when properly dissected is split up into different clauses the first being with reference to such person as placed in one of the categories of being a public servant who is not removable from his office without the sanction of the Government; the second clause pertains to the nature of the accusation vis-a-vis the offence charged and the third which is integrated with the second clause indicates that the said offence should have been committed, by him while acting or purporting to act in the discharge of his official duty. It is only when all the three clauses co-exist that the requirements of Section 197 of the Code are fulfilled under which the ban imposed on the Court from taking cognizance without a valid sanction from the concerned appointing or dismissing authority comes into operation. This provision has been incorporated with an obvious object to afford protection to public servants from unjustified and unnecessary harassment on the basis of frivolous allegations so that there would be pre-screening by the superior authority and, ultimately it would be his discretion after examining all aspects to consider whether there is any substance in the allegations and if so, whether it is expedient to prosecute the public servant in a Court of law or to deal with him departmentally and if in his opinion the allegations have absolutely no substance then at this level itself the public servant can be protected from the prospective harassment so that launching of a complaint itself is barred. This object, no doubt is quite laudable, still under the scrutiny of the nature of allegations in each case, the foundation of the requirements of the said, provisions must be properly established. What has been emphasisedpersistently pertains to the correct interpretation of the last clause viz. as..Offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty---....

Though the protection deserves to be granted to the public servant if he is discharging his official duty, even if there might be some lapses, still, it cannot be extended so spaciously even in respect of the accusation which tends to show that his act had absolutely no nexus whatsoever in his official duty. The object is obviously aimed at exposing the dishonest public servants in their acts which are wholly unconnected with their official duty, as the office they hold however merely opens an avenue for them to commit such acts by virtue of their position of their office and capacity as such public servants. With this preliminary observation, it would be proper to consider, in short, various ratios of the judicial pronouncements.

10. In Dr. Hori Ram Singh v. Emperor two charges were levelled against the said public servant who was a Medical Practitioner, the first being of falsification of accounts inasmuch as, the register of the medicines was falsely filled in and the second, was about the misappropriation of the amounts and the medicines. It was held, there that in so far as the first charge vis-a-vis the false entries in the register, a sanction was necessary inasmuch as it had some nexus to his official duty in the matter of filling in the register though that act may have been done by him dishonestly, whereas in so far as the ' allegation of misappropriation is concerned it has absolutely no nexus even inferentially with his duty and as such no such sanction was necessary in that behalf. Though the matter was considered on the basis of the phraseology in Section 270 of the Government of India Act, the analogy can be squarely applicable in view of the more or less identical nature of the terminology in both on the basic aspect. A similar ratio has been enunciated in H. H. B. Gill v. King , when it was indicated that there was hardly any difference between the provision of Section 197 of the Code and Section 270 of the Government of India Act and the test laid down is that 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. By way of illustration it was indicated that a Government Medical Officer cannot be said to act or purport to act as a public servant in picking the pocket of the patient whom he has examined, though the examination itself may be such an act. In the final analysis a very crucial test has been laid down that where the public servant if challenged can reasonably claim that what he did was by virtue of his office. In Shreekantiah Ramayya Munipalli v. State of Bombay : 1955CriLJ857 a similar deduction was laid with a further clarification that a public servant when he does his official duty honestly he is claimed to be acting in the discharge of his duty. However, if he does that act of his official duty, may be in dishonest manner, he would be deemed to be purporting to act in the discharge of official duty and even in that event he would be entitled to protection. Since it is not the duty which the Courts 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. However, if the act is thoroughly unconnected and divorced with the official duly, then there is no question to find out whether it is done honestly or dishonestly and as such, he cannot be said to act in the discharge of his duty or even in purported discharge of official duty. Emphasis was placed that the Courts have to concentrate on the word, 'offence' which seldom consists of a single act. In Amrik Singh v. State of Pepsu : 1955CriLJ865 a similar test has been laid down when it was observed that it is not every offence committed by public servant that requires sanction for prosecution under Section 197 of the Code, nor every act done by him while he is actually engaged in the performance of his official duty, but if the act complained of is directly concerned with his official duty so that, if questioned, it could be claimed to have been done by virtue of his official duty and it is in that event only that the sanction is necessary. In both these cases it. was held that no sanction was necessary so far offence of misappropriation or criminal breach of trust was concerned.

11. A similar conclusion was re-enunciated in Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) , when it was observed that the Court has to find out if the act complained against is committed by the accused while acting or purporting to act in the discharge of his official duty; that the offence alleged must have something to do, or must be related in some manner with the discharge of his official duty and as such there must be a reasonable connection between the act and the official duty. On the same lines the test was laid down in Virupaxappa Veerappa Kadampur v. State of Mysore : AIR1963SC849 , to the effect that the public servant when questioned can proclaim to the public at large that what he was really doing was his official duty, when he may perform that duty honestly or even dishonestly. Thus it was illustrated that recording of a panchanama is the official duty of the Investigating Officer while investigating a crime; the said public servant can record it honestly which would be in the the discharge of his official duty and he may do so dishonestly by including some false statements in the panchanama which can amount to the purported discharge of his official duty and in both these contingencies he could satisfy the test that he was really recording the panchanama which was his official duty. Either of those acts obviously springs from the basic authority and duty to record a panchanama. It is further reiterated in Pukhraj v. State of Rajasthan : 1973CriLJ1795 , and it was observed oh the facts of the said case that where in a complaint by a Clerk of the Head Post Office it is alleged that at the time of inspection the Post Master General kicked the complainant and abused him when the complainant was submitting his representation for cancellation of his transfer, the acts of that public servant so alleged could not be said to have been done in purported exercise of his duty. Reiterating the conclusions in the earlier ratios, it was observed, that there must be a reasonable connection between the act and the discharge of the official duty; the act must bear such relation to the duty that the accused could lay reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty.

12. In a recent pronouncement of the Supreme Court in B. S. Sambhu v. T. S. Krishnaswamy : 1983CriLJ158 , the same ratio is re-stated wherein it was held that addressing a person in an objectionable language was no part of the official duty of the Magistrate when he was directed to offer remarks in a transfer application and as such no sanction under Section 197 of the Code was necessary to prosecute him. I may also further observe that an identical construction was placed, though slightly in the different context by this Court, while interpreting the provisions of Section 197 of the Code in Gorakh Mahale v. State of Maharashtra 1965 Man LJ 94 : 1965 (2) Cri LJ 193, when it was observed that the terminology implied therein as 'under colour of office' would have the similar consideration for its construction as is required to be done in the one used in Section 197 of the Code of Criminal Procedure. After examining the various ratios this Court observed that the real test in the context of that terminology also would be that there should be some relationship between the official act or the acts connected with the office and the act complained of, so that at least ostensibly it can be represented and so camouflaged by the accused that he was really doing his duty. The extent of the act in the said case was held to be wholly outside the scope of the said office. Several other illustrations have also been utilised in support of the said ratio.

13. Applying these tests, though ostensibly containing different shades, have practically the common foundation. The facts of the case at hand would hardly require any comments to arrive at a firm and rational conclusion that the acts complained of as alleged in the complaint can hardly be covered under the said clause of Section 197 of the Code. To put in other form, it is unconceivable even inferentially that the acts alleged of have any relation or nexus with the official duty of the said police officer or has some thing to do with his office as a public servant or that if he is apprehended and: questioned while indulging in such act he could satisfy the people at large that what he was really doing was nothing but an official act. It is neither the discharge of his official duty nor was it a purported discharge of the same, as for both these items the undercurrent is always about existence of a right to do certain act in the official capacity and it is only thereafter that it would have to be considered whether it is done honestly or dishonestly, when in the former case it is in the discharge of the duty while in the latter, it is the purported discharge. Nonetheless basically there would be a right or the authority to do the said, act. Further elaboration, in my opinion, is unnecessary. Suffice it is to observe that the gravamen of the allegations which are reproduced in details at the threshold as reflected in the complaint, unmistakably take the case out of the purview of the provisions of Section 197 of the Code since one will proceed only on the basis of the recitals of the allegations in the complaint. Even the said public servant can never dare even to suggest that causing voluntary hurt or levelling serious threat to the life of a citizen form part of his duty. This would be notwithstanding that the person concerned, who accuses the public servant, might have been arrested by the said public servant in his official capacity. Some of the acts attributed to the said police officer are alleged to have been committed outside the Police Station and on some occasions the threats have been levelled by going to the shop of the petitioner's husband and also giving similar threats even to the petitioner at her residence. It is also not covered even remotely by any provisions whatsoever including the Police Manual, the Bombay Police Act and the Procedural Law vesting certain powers in the Police agency in the master of investigation. On the contrary, the allegations are specific and clear, making no secret that the alleged, acts are wholly unconnected and have not even a semblance or any nexus with the official act or the duty of the said police officer. The charge is under Sections 323 and 506 of the Indian Penal Code and the facts constituting the said offences as narrated in details, fully justify the learned Counsel Shri Keswani to contend that by no stretch of imagination the public servant can get protection for such acts as has been found by the learned trial Judge. In Ganga Prasad v. Brindaban Chandra : AIR1935Cal176 , it was held that a Sub-Divisional Officer of Public Works Department though had gone to discharge some official duty, still he was not purporting to act in the discharge of that duty when he got on the boat, lost his temper and assaulted the, complainant and as such his act was not covered by Section 197 of the Code, since it was not merely an abuse of an official act, it was a different act altogether. In Nagwant Sahay v. D. W. I : AIR1946Pat432 a similar situation had arisen when the public officer had assaulted some students accused of and apprehended for some offence. It was held that it is no part of the duty of a Dy. Commissioner or of an officer of the police force, to chastise persons who have committed offences, even though they had admitted their guilt, as their duty is to produce them before a Court and the Court would decide whether offence is committed. Therefore, in a, complaint under Section 323 of Indian Penal Code against the Deputy Police Commissioner for having caned the suspects, it was held that the accused did not act or nor purported to act in the discharge of his official duty and hence sanction under Section 197 of Criminal Procedure Code was not required. In my opinion, therefore, it is unnecessary to dilate over this aspect any further, since the conclusion about the vulnerability of the impugned order is manifest. On the same clarity of reasoning provisions of Section 161 of the Bombay Police Act would not be applicable to the facts of the instant case and as such no question of limitation would arise.

14. Similar view has been taken by the learned single Judge of this Court in Criminal Revision Application No. 352 of 1982, a copy of which Judgment has been placed before me. The point of interest which is difficult to be lost sight of is that the same police officer is involved in the said case as the prospective accused when serious allegations are levelled, against him by yet another person on the count that he was assaulted by the said police officer causing several injuries and that the said injuries were noted by the learned Magistrate as well as the Medical Officer who had even suspected fracture of his leg and on that basis the same D. C. P. is being prosecuted under Sections 323, 324 and 326 of the Penal Code. In that proceeding almost a similar order was passed by the learned Magistrate when this Court was pleased to set aside more or less on the same footing and directed that the prosecution be proceeded with against the said police officer. Though it may not be proper and fair to express any opinion about the merits of both the matters, as also not overlooking that the allegations are only in that shape at this stage when the truth or otherwise of the same is yet to be adjudicated upon on merits, still one may not resist the temptation of observing, though incidentally. that the same police officer figuring as prospective accused in both the proceedings with serious allegations being levelled against him and which are at least prima facie sought to be supported not only by oral evidence but also by the documents which normally would be above board, to say the least, is not quite a happy commentary against him.

15. Shri Keswani, the learned Counsel for the petitioner, submits that the manner in which the order has been recorded, it would be proper that the case be withdrawn from the file of the learned Magistrate and be transferred to the file of the learned Additional Chief Metropolitan Magistrate attached 1o the said Court. The order as recorded by the trial Court is extremely cryptic; which reflects utter non-application of mind and it also exhibits a most perfunctory casual approach. The submissions on behalf of the petitioner, therefore, cannot be said to be unjustified. There is, however, an additional ground which is more formidable in support of granting that relief inasmuch as. serious, allegations are levelled against police officer who is quite senior and therefore it would be necessary to have a fair and impartial trial for the said Police Officer. As against this, a citizen who may not have all resources at his command, is pitted against the authority who is none the less than a senior police officer and from that angle as he has to face certain obvious hurdles with the scales being uneven, and as such if his grievance is genuine, then in that event, he should also get an equally fair and impartial trial. It is on this principle that it is more desirable that a senior Judicial Officer should be incharge of this trial and, which object can be achieved conveniently by allotting the case to the file of the learned Additional Chief Metropolitan Magistrate, who is admittedly attached to the said station at Kurla. The State has no objections.

16. The net result would be that the prosecution would be revived and would be proceeded with on merits in accordance with law. Shri Keswani, the learned Counsel, submits that for obvious reasons the hearing be expedited which would be really in the interest of both the sides as the public servant would be anxious to get himself exonerated and thereby get his image restored whereas the citizen would be equally anxious to expose the alleged misdeeds of the public servant and thus get his grievance and honour vindicated. In this process in such cases the public interest is also tagged. The request, therefore. is well justified. The State has no objection.

17. In the result, the rule is made absolute. The impugned order recorded by the learned Magistrate on August 30, 1932 dismissing the complaint filed by the petitioner on behalf of her husband on the ground of absence of sanction under Section 197 of the Cr. P.C. is set aside. The said complaint is revived. However, the said complaint and the proceeding thereof are withdrawn from the file of the Court of the learned Metropolitan Magistrate, 30th Court, Kurla, and are transferred to the file of the Court of the learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla. with directions that the learned Magistrate should proceed to dispose of the said case on merits in accordance with law as expeditiously as possible and feasible under the circumstances.

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