1. The petitioner Giani Ajmer Singh Secretary, Shiromani Akali Dal, Amritsar has approached this Court under sections 435 and 439 Code of Criminal Procedure praying for setting aside the order of the Additional Sessions Judge dated 16-5-1962 affirming on revision the order of the Additional Sessions Judge of the District Magistrate, dated 9-4-1962. The two impugned order held the petitioner's complaint against S. Ranjit Singh Grewal Senior Superintendent of Police, under Section 427, 435, 193 and 195 of the Indian Penal Code not to be entertainable without the previous sanction as contemplated by section 197 Criminal Procedure Code. This revision was admitted by a learned Single Judge of this Court after perusing the records which had been sent for by him. Notice was issued as far back as 5th the revision has not so far been disposed of. In cases of this nature, I need hardly emphasise that and undue delay might well defeat the cause of justice.
(2) Before me the learned counsel for the petitioner has readout the complaint and has submitted that the real gravamen of ht allegations in the complaint is that on 22nd of October 1962 after the procession taken out in Taru Taran as a protect against the irregularities committed in the counting of the votes of Sarhali constituency where from Sardar Partap Singh Kairon the present Chief Minister has been declared elected defeating the rival Akali candidate Mohan Singh Tur had been teargases and dispersed the respondent in order o justify the wrongful improper and undulated for use of the tear-gas on the crowd and use of violence caused efferent doors, window-panes etc. of the Tehsil building to be smashed with the help of the police party under his control ; similarly some wooden khokhas situated outside the Tehsil which were used as temporary office of lawyers and petition-writers were also set at fire by the police party at the instance of the respondent. This action of the respondent according amount to offences under section 427 and 435 Indian Penal Code and since these acts were committed with the intention of creating circumstances which may appear in evidence in judicial proceedings or in other proceedings taken by law before a public servant to induce an erroneous opinion touching points material to the result of such proceedings they also fell within the purview of sections 193 and 195, Indian Penal Code. Emphases has been laid on the submission that these allegations do not attract the provisions of section 197 of the Code.
(3) Here I think it would be desirable to reproduce section 197:
197. Prosecution of Judges and Public servants--(1) When any person who is a Judge within the meaning of section 19 of the meaning of section 19 of the Indian Penal Code or when any Magistrate or when any public servant who is not removable from his office save by or with the section of a State Government or the Central Government is accused of any offence alleged to have been committed by him while acting or proper ting to act in the discharge of his official duty no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government and
(b) in the case of a person employed in connection with the affairs of a State, of the State Government.
(2) Power of Central or State Governments as to prosecution-The Central Government or the State Government as the case may be, determine the person by whom the manner in which the offence or offences for which the prosecution of such Judge or public servants is to be conducted and may specify the Court before which the trial is to be held.'
The petitioner's contention is that the offence alleged in the complaint to have been committed by the respondent was not committed by the respondent while acting or purporting to act in the discharge of this official duty for the duty of a police officer does not lid in damaging public property and setting fire to property after the procession had successfully been dispersed. Reference has been made on behalf of the petitioner to the following reported case. H. H. B. Gill v. The King AIR 1948 PC 128 has to begin with been relied upon and the following passage at p. 133 has particularly been referred to:
'A public servant can only been said to act or to purport to act in the discharge of his official duty if his act is such as to lei 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: not does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient who he is examining though the examination itself may be such an act. The test may will be whether the public servant if challenged can reasonably claim that what he does, he does in virtue of his office. Matajog Dobey v. H. C. bhari (S) AIR 1956 SC 44 has next been referred to. Certain passages at pp. 48 and 49 have been specifically referred an it has been argued that according to this decision it is necessary to find out whether the act and the official duty are so inter-related that one cannot postulate reasonably that it was done by the accused in performance of the official duty though possibly in excess of the needs and requirements of the situations. The contention is hat though while dispersing the crowd the excesses committed might be held to fall within section 197 to the acts committed after successful dispersal of the crowd, particularly when prima facie they are offences wholly unconnected with such dispersal of the crowd, section 197 would be inappropriate and irrelevant. Amrik Singh v. State of Pepsu (s) AIR 1955 Sc. 309 is a decision on which both sides before me placed reliance the petitioner's where the result of the authorities considered there was summed up. Om Parkash Gupta v. State of U. P., (S) AIR SC 458 was the next decision referred to, Finally support was sought from Satwant Singh V. State of Punjab, AIR 1960 SC 266 in which most of he earlier case have been digested and commented upon. The counsel has referred me to the observations at p. 271 and the following passage has been specifically relied upon:
It appears to me to be clear that some offences cannot be their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance acceptance of a bribe an offence punishable under section 161 of the Indian Penal Code is one of them and the and the offence of cheating abatement thereof is another. We have no hesitation in saying that where a public servant commits the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty as such offences have no necessary connection between them and the performance of the duties of a public servants the official status furnishing only the occasion or opportunity for the commission of the offences (vide (s) AIR 1955 SC 309. The act of cheating or abatement thereof has no reasonable concern with the discharge of official duty. The act must bear could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty: vide (S) AIR 1956 SC 44.'
Relying on this passage the counsel has submitted that in the case in hand the public servant could not lay a reasonable claim that he caused damaged to the property in question in the course of performance of his duty and that if at all he chose to do so this would be a pretend or fanciful claim.
(4) The construction of section 197, Criminal Procedure Code, also came up before the Supreme court in Dhananjay Ram Sharma v. M. S. Uppadaya, AIR 1960 Sc. 745 the head note of which reads thus:
'The accused persons who were in the employ of Northern Railway on the request of the Deputy Superintendent of Police Establishment but without any reference to their superior officers went to witness a search in the house of the complainant another Railway employee and were alleged to have committed offences of theft misappropriation of properties belonging to the complainant and wrongful confinement. Search and seizure of property in the complainant's house was not in a trap case a required by the Home Office Memorandum.
Held that the duties of the accused as public servants had prima facie nothing to so with witnessing any search or helping any place officer in the matter of searchers. When the accused went to witness the search they did so noting pursuance of the Home Office Memorandum and so could not possibly be said to be performing their official duty or purporting to act in the performance of their official duty.
Further assuming that witnessing the search in the complainants house was in performance of their official duty the offences alleged to have been committed by the accused could have no direct connection with the act of witnessing the search. The mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty as to justify even remotely the view that the acts complained of are within the scope of their official duty. Hence sanction under section 197 was not necessary.'
(5) As against these submissions the learned Deputy Advocate-General has drawn my attention to Krishna Pillai Madhavan Pillai v. P. Sadasivan Pillai, AIR 1963 Kerala 7 a decision by a learned single Judge of that Court. The head-note of this case is in the following words:
'The complaint against the accused, Deputy Superintendent of Police, Sub-Inspector of Police Head Constable and a constable was that the complainants were several beaten by the accused. The accused alleged that they had acted in the exercise of their powers under sections 127 and 128 Cr. P. c. in dispersing an unlawful assembly and that the complaint was therefore barred by section 132, Cr. P. C. for want of sanction of the State Government. A further contention was also raised that accused 1 and 2 were public servants removable form office only the State Government and that to prosecute them for the offence alleged to have been committed by them while acting purporting to act in the discharge of their official duties sanction will have to be obtained under section 197, Cr. P.C. and the Court could not take cognizance against them except with the previous sanction of the State Government.
Held that the accused could not be asked to prove that they were acting in the discharge of their duties in dispersing an unlawful assembly. What is contemplated under section 132 is that the accused in such a case cannot be put on trial at all. The protection conferred by the section would be rendered nugatory if the onus was thrown on the police officers to prove in the trial that they acted under Chapter 9 Cr. P. C.. It would mean that the Police Officers must prove themselves to be innocent of the offence alleged against them in order to show that the complaint was invalid for want of sanction. It was not correct to say that only the complaint and the sworn statement should be looked into and not any other circumstance or documents for the purpose of deciding whether the prosecution was barred under section 132. The accused were acing under Chapter 9 and were entitled to protection under section 132, Cr. P. C.' The counsel also quoted V. D. Yesudasan V. Gurusamy, AIR 1957 Mad 555 which was relied upon by the Karen High Court but his decision does not seem to carry the matter any further.
(6) The learned Deputy Advocate-General has lastly attempted to make a reference to an F. I. R. which according to him was made against the petitioner. This F. I. R. according to the counsel was not produced before the Courts below. It has been argued that this F. I. R. would show that the allegations contained in the complaint in question are really related to the performance of their unlawful assembly. I am not quite sure if this Court while considering the question of the competency of he complaint in the absence of sanction on revision would be justified in permitting evidence by the respondent when the petitioner has led no evidence and that too without permitted rebuttal thereof.
(7) The question raised appears to me to be of considerable importance and should in my opinion be decided by a larger Bench. I would accordingly direct that papers be laid before my Lord the Chief Justice for placing this case before a larger Bench. Since the revision is pending for nearly a year it is desirable that its disposal by a larger Bench is expedited.
[The case was placed before the Division Bench consisting of Inder Dev Dua and Jindra Lal JJ., who delivered the final order on 24-8-64]