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State (Delhi Administration) Vs. Sube Singh - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtDelhi High Court
Decided On
Case NumberCrl. Appeal No. 227 of 1983
Judge
Reported in1984(7)DRJ185; ILR1984Delhi376
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 197
AppellantState (Delhi Administration)
RespondentSube Singh
Advocates: R.P. Rao and; D.C. Mathur, Advs
Cases ReferredS. B. Saha v. M. S. Kochar
Excerpt:
.....the jurisdiction of s.h.o. to take cognizance of an offence violating the provisions of the delhi police act.; (iii) criminal procedure code - section 197--to misbehave and to use abusive language in public is not 'acting in performance of his official duty' by a policeman in uniform--sanction before prosecution not necessary.; a policeman in uniform armed with a warrant of attachment was trying to house-break and was using abusive language and indulging in unruly behavior at night awakening the people and a crowd collected and police was informed. it was also alleged that the accused was under the influence of alcohol. the accused was arrested and was found guilty of offences under sections 91, 93 & 97 of the delhi police act by the trial court. on appeal the sessions judge..........chawla, the then addl. sessions judge, delhi by which he acquitted the accused under s. 91/93/97, delhi police act. it may be noted that earlier to this shri prem kumar, metropolitan magistrate by his order dt. 3-4-81 had found the respondent guilty under s. 91/93/97, delhi police act and after convicting him had sentenced him to payment of rs. 100/- as fine in default of which the respondent was required to undergo simple imprisonment for 7 days. the learned additional sessions judge heard a revision application against this order and acquitted the respondent. 2. sube singh respondent who is a constable serving under the delhi police came to be prosecuted on a complaint instituted by mr. vijay kumar, then s.h.o., police station defense colony. the allegation against him was that on the.....
Judgment:

Sharief-Ud-Din, J.

1. This acquittal appeal is directed against the order dt. 4-5-83 of Shri M. K. Chawla, the then Addl. Sessions Judge, Delhi by which he acquitted the accused under S. 91/93/97, Delhi Police Act. It may be noted that earlier to this Shri Prem Kumar, Metropolitan Magistrate by his order dt. 3-4-81 had found the respondent guilty under S. 91/93/97, Delhi Police Act and after convicting him had sentenced him to payment of Rs. 100/- as fine in default of which the respondent was required to undergo simple imprisonment for 7 days. The learned Additional Sessions Judge heard a revision application against this order and acquitted the respondent.

2. Sube Singh respondent who is a constable serving under the Delhi Police came to be prosecuted on a complaint instituted by Mr. Vijay Kumar, then S.H.O., Police Station defense Colony. The allegation against him was that on the night intervening 20th/21st of February 1980 the respondent was found under the influence of liquor and was found misbehaving, abusing and creating nuisance in front of House No. B-52, Kidwai Nagar owned by one Dalip Singh. Information in respect of this event was transmitted by one Gurcharan Singh on telephone as a result of which D. D. Entry No. 20A came to be recorded at police station defense Colony which was handed over to ASI Budh Ram who along with constable Abdul Rashid went to spot. By the time they reached the scene of incident police control room van and Shri Vijay Kumar, the then S.H.O. Police Station defense Colony also appeared on the scene. They noticed the respondent constable Sube Singh standing in a drunken state and found him abusing and creating nuisance. They also found a crowd having collected on the scene which included one Arjan Dass, ex-councillor of the area. It is said that when even the efforts of these police officers failed to calm the accused, Vijay Kumar, the then S.H.O. was compelled to arrest the accused with a view to prevent any breach of peace. On his arrest the accused respondent was sent for medical examination. P.W. 4 Dr. V. Vijay Sarthy of Medical Institute on examination of the accused issued a certificate Ex. P.W. 4/A opining that the respondent was smelling alcohol and was under its effect. On these facts the respondent was prosecuted under the aforesaid provisions of Delhi Police Act.

3. Now, before proceeding further we may take notice of Ss. 91, 93 and 97 of Delhi Police Act. Section 91 lays down :

'No person shall willfully and indecently expose his person in any street or public place or place of public resort or within sight of, and in such manner as to be seen from, any street or public place or place of public resort, whether from within any house or building or not, or use indecent language or behave indecently or riotously or in a disorderly manner in a street or public place or place of public resort or in any office, police station or station house.'

Section 93 lays down :

'No person shall use in any street or public place any threatening, abusive or insulting words or behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.'

4. Section 97 lays down the penalty for violation of these provisions.

5. It would thus appear that what is prohibited is the indecent riotous or disorderly behavior in a street or public place and such like places as also the use of threatening abusive or insulting words or behavior with intent to provoke a breach of peace or whereby a breach of the peace may be occasioned. It would thus be seen that S. 93 of Delhi Police Act is wider in sweep inasmuch as even if there is no intention to provoke a breach of peace but the behavior is such that it is likely to provoke a breach of peace the offence will be deemed to have been committed. We are making a reference to the aforesaid provisions to indicate that indecent and riotous behavior having a tendency to provoke others irrespective of the fact whether a person is drunk or not has been made an offence. This is necessitated because of the observations of the learned Additional Sessions Judge that since there was no reliable evidence that the respondent was drunk at the relevant time no offence is made out. The learned Metropolitan Magistrate relying on the testimony of P.W. Vijay Kumar, P.W. Budh Ram and P.W. Rashid as also P.W. Dr. V. Vijay Sarthy found that there was sufficient evidence to warrant the conviction of the accused but in revision the learned Additional Sessions Judge Mr. Chawla came to the conclusion that on the basis of the clinical examination of P.W. 4 it is impossible to say that the respondent was under the influence of alcohol at the time of commission of offence and in this regard reliance was placed on the judgment of the Supreme Court in Bachu Bhai Hasan Ali Kariyani v. State of Maharashtra 1971 ACJ 116. The learned Additional Sessions Judge felt that neither the urine test nor the blood test of the respondent was carried in this case to find out if he was really under the influence of alcohol and that it is not possible to say on the basis of the clinical test by Dr. V. Vijay Sarthy that the respondent was drunk. The learned Additional Sessions Judge further observed that by virtue of Notification No. SO-183(E) dt. 20-3-74 R/W PPR/16.38 of the Police Rules and under S. 140 Delhi Police Act read with S. 197 of the Cr.P.C. a sanction for the prosecution of the respondent was a prerequisite which in the present case was lacking and as such the Court had no jurisdiction to take cognizance of the offence in the absence of such sanction. On these two short points the revision petition of the respondent against the order of learned Metropolitan Magistrate dt. 3-4-81 was accepted and respondent was acquitted of the charge under S. 91/93/97 of Delhi Police Act.

6. We have heard the learned counsel at length and we have carefully considered the evidence and the facts of the present case. P.W. Vijay Kumar, P.W. Budh Ram and P.W. Abdul Rashid are all police officers of police station defense Colony and they have categorically said that when they reached the scene at about 11 p.m. they did find the respondent indulging in a disorderly behavior and that respondent was found abusing under the influence of liquor and a number of persons had collected on spot. To our mind there is absolutely no reason to disbelieve these three witnesses particularly in view of the fact that they are all police officers and normally they would be considerate towards their colleague and, would not normally like to involve him in some trouble. When a number of police officers testify against another police officer it only goes to show that they are left with no other option but to state the truth. Together with this our attention was invited to the testimony of court witness Shri Dalip Singh who in fact was the aggrieved person and has been examined by the Court. This witness has clearly said that at about 8 p.m. the respondent came to his house in police uniform at B-52 Kidwai Nagar, New Delhi and told him that he is in possession of a warrant of attachment against him. He goes on to say that he found the accused heavily drunk and while talking to him in his room he persuaded him to go and come in the morning. The accused left and when the witness also left his house to attend a meeting the accused again appeared on the scene in his absence and started breaking open the house when his wife and children were alone in the house. The accused is then stated to have used abusive language as a result of which some neighbours arrived on spot and the matter was reported to police by Sardar Gurcharan Singh. That by the time police came he also returned and found the accused indulging in a highly, unruly and indecent conduct. It is to be recalled that it is in fact this witness vis-a-vis whose family the accused had misbehaved in his absence and thereforee he was the aggrieved person. This witness Mr. Dalip Singh immediately on the presentation of complaint on 21-2-80 made an application before the Metropolitan Magistrate that since he had not been cited as a witness and since he is a material witness he may be examined during the course of trial as a witness. Thus it would be seen that Mr. Dalip Singh court witness had immediately represented to the Magistrate that since he was the aggrieved person and he has been left out from the list of prosecution witnesses his examination as a witness in the case is very necessary. His testimony provides sufficient corroboration to what the P.Ws. 1, 2 and 3 have stated at trial. To our mind the evidence adduced in the case is reliable and trustworthy.

7. The next point that arises for consideration is as to whether the respondent Sube Singh was under the influence of a alcohol at the relevant time or not. In the first place we may say that doctors are experts in their own right and when they examine a person and give opinion it does not normally mean that their opinion is not correct. The question that arises in this regard is as to whether such evidence will be deemed to be a sufficient evidence of the fact that the accused was drunk. The ruling referred to by the learned Additional Sessions Judge is also distinguishable inasmuch as in that case the blood of the accused had been sent for Chemical examination but the result thereof was suppressed from the court. In such circumstances court would always be justified in disregarding evidence of clinical examination. In any case, be that what it is, we need not lay much emphasis on this aspect of the case for the simple reason that at no place S. 91/93, Delhi Police Act makes it a precondition that the accused must be found to be under the influence of alcohol. Whether the accused is under the influence of alcohol or not is immaterial if, on the facts of the case he was otherwise found misbehaving, abusing or creating nuisance in a public place and if such disorderly behavior on his part was likely to occasion a breach of peace. That is all what the requirement of Ss. 91 and 93 of Delhi Police Act are. If on the facts of this case we find that the accused did behave in a manner which was prohibited by the aforesaid provisions of law then irrespective of the fact whether he was under the influence of alcohol or not, he would be deemed to have committed the offence.

8. In the present case the accused admittedly was in possession of a warrant of attachment and he had gone in uniform for the execution of said warrant against Mr. Dalip Singh at his house at B-52, Kidwai Nagar. Admittedly he went to his house during the night hours and as per testimony of Dalip Singh he was persuaded to go back but then he soon reappeared somewhere at 10 p.m. and started indulging in a disorderly and unruly conduct as a result of which a number of people were attracted to the scene and police officers Vijay Kumar, Budh Ram and a constable Abdul Rashid also arrived and found the accused indulging in nuisance and creating a scene by abusing people. This clearly goes to show that the accused did commit an offence within the ambit of S. 91/93 of Delhi Police Act.

9. Mr. Mathur submitted that in the presence of testimony of Kartar Singh D.W. the prosecution evidence should not be believed. Kartar Singh D.W. who was driving the vehicle in which Vijay Kumar SHO arrived at the scene of occurrence has deposed that when they reached the site they found the accused standing near police control van and on enquiry he told the SHO that he had come there to serve a process. Mr. Mathur submits that since this witness did not find him either under the influence of liquor or indulging in an unruly conduct there is every reason to conclude that all other witnesses were not speaking the truth. We have already said that the prosecution evidence in this case to our mind is trustworthy and there is no question of disbelieving them simply because Kartar Singh who is also a constable has chosen to give a divergent version about the incident. The prosecution witnesses in the present case are the most natural and impartial witnesses and we have every reason to trust them. To our mind thereforee there is sufficient evidence to connect the accused with the commission of crime.

10. The next point for consideration is as to whether a sanction for prosecution in the present case was necessary before taking cognizance of the offence. Mr. Mathur in the first place invited our attention to Punjab Police Rules 1934 Volume II, Chapter XVI which reads as under :

16.38. 'Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having 1st class powers.'

11. His contention is that the complaint was without jurisdiction inasmuch as it was the sole discretion of the District Magistrate either to make over this complaint to the police or to some Magistrate of the 1st Class and that the police could not have proceeded against the accused on its own. To our mind this really does not otherwise restrict the jurisdiction of SHO to take cognizance of an offence violating the provisions of Delhi Police Act. Mr. Mathur again made a reference to sub-section (3) of S. 197 of the Cr.P.C. and submitted that by virtue of Notification No. S.O. 183(E) dt. 20-3-74 R/W PPR/ 16.38 of the Police Rules and under S. 140, Delhi Police Act the Court could not take cognizance of the offence against the respondent without a previous sanction from the competent authority. The aforesaid Notification has not been produced before us. Instead we were shown Notification No. F. 10/77/78-HP-II issued by order of Lt. Governor which reads :

'In exercise of the powers conferred upon him under sub-section (3) of Section 197 of the Code of Criminal Procedure 1973 read with Govt. of India Notification No. S.O. 183(E) dated 20th March 1974, the Lt. Governor Delhi is hereby pleased to direct that the provisions of sub-section (2) of the said section shall apply to serving police officials of all ranks of Delhi police forces charged with the maintenance of public order.'

12. Section 140, Delhi Police Act is not applicable as it only lays down the period of limitation within which the cognizance can be taken by the court. Sub-section (2) of S. 197, Cr.P.C. lays down that 'no court shall take cognizance of any offence alleged to have been committed by any member of armed forces of the Union while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Central Government. Sub-section (3) of S. 197 lays down that the State Government may by Notification direct that the provisions of sub-section (2) shall apply to such class or category of the members of the forces charged with the maintenance of public order as may be specified therein, wherever they may be serving and thereupon the provisions of that sub-section will apply as if for the expression 'Central Government' occurring therein, the expression 'State Government' were substituted. Now this section by itself does not confer an immunity from prosecution on a police official unless it is specially notified by the Government. We have seen that a Notification to this effect is in existence but it still remains to be determined as to whether the offence committed by the respondent can be said to have been committed while acting or purporting to act in the discharge of his official duty. In view of the peculiar facts of this case we are of the view that the offence committed by the respondent cannot be said to have been committed by him under the colour of duty. In the present case one has to remember that even though the accused was in the possession of a warrant of attachment, he went to execute the same during the night hours and in a mental state which was highly unbecoming of a police official. The simple fact that he was in uniform and he was in possession of a warrant would not confer a license upon him to behave in any manner he likes. We cannot take wooden attitude in such matters and it can never be said that a police officer is at liberty to abuse and use indecent language and behave in disorderly manner while he is supposed to be on duty. If that view of the matter is taken it would only amount to giving them a license for commission of offences and that would be an end of rule of law. To our mind the accused in the present case cannot take shelter behind S. 197, Cr.P.C. We are fortified in our view by : 1979CriLJ1367 , S. B. Saha v. M. S. Kochar wherein it has been held (Paras 19 & 18) :

'The sine qua non for the applicability of Section 197 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.

The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) are capable of a narrow as well as wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted.

The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office.'

13. In the present case on the basis of the material on record we find that the conduct indulged in by the respondent is not even remotely connected with his official duty. It does not fall within the scope and range of his official duties and if the accused were challenged he could never reasonably claim that he abused and indulged in unruly conduct by virtue of his office. We are thereforee of the view that the accused is not entitled to the protection as envisaged by S. 197 and there was no question of any sanction for prosecution in the present case. We are thereforee of the view that the learned Additional Sessions Judge has wrongly acquitted the accused and we hereby set aside his judgment dt. 4-5-1983 by which he has acquitted the respondent and we restore and affirm the judgment of the learned Metropolitan Magistrate dt. 3-4-1981 by which he convicted and sentenced the accused under Ss. 91, 93 and 97 of Delhi Police Act.

14. Appeal allowed.


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