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D.N. Srivastva Vs. Parthajoy Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal (M) M. 597 of 1981
Judge
Reported in1983(1)Crimes248; 1983(4)DRJ224; 1983RLR65
ActsCode of Criminal Procedure (CrPC) - Sections 132
AppellantD.N. Srivastva
RespondentParthajoy Das and ors.
Appellant Advocate R.S. Narula, Sr. Adv. and; K.T.S. Tulsi, Adv
Respondent Advocate Vijay Hansariya and ; Mukesh Advani, Advs. For Nos. 2 to 5, ;
DispositionPetition allowed
Cases ReferredIn Nagraj v. State of Mysore
Excerpt:
criminal procedure code section 132--sanction to prosecute a police officer--the question of necessity of sanction as contemplated under section 132 of the code can be raised at any stage. - - it is well settled that a matter should not be dealt with by two different forums simultaneously. speaking for the court has opined that in the following cases an order of the magistrate issuing process can be set aside :(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;(2) where the allegations made in the complaint are patently absurd and.....leila seth, j. 1. this petition under section 482 of the code of criminal procedure, 1973 is for quashing the proceedings instituted against the petitioner in case no. 1456-c of 1979 pending in the court of mr. m.l. mehta, metropolitan magistrate, delhi. the matter is an offshoot of the volatile 'foreigners issue in assam.2. the petitioner is an officer of the indian police service. when the petition was filed, he was the deputy inspector general of police, nowgong, assam. however, at the relevant time he was the superintendent of police, kamrup, gauhati, assam.3. on 31st december, 1979, parthajoy das, respondent no. 1 filed a complaint in the court of the sub-divisional magistrate at barpeta, assam. the complainant pertained to the action taken in the early hours of 10th december, 1979.....
Judgment:

Leila Seth, J.

1. This petition under Section 482 of the Code of Criminal Procedure, 1973 is for quashing the proceedings instituted against the petitioner in case No. 1456-C of 1979 pending in the court of Mr. M.L. Mehta, Metropolitan Magistrate, Delhi. The matter is an offshoot of the volatile 'foreigners issue in Assam.

2. The petitioner is an officer of the Indian Police Service. When the petition was filed, he was the Deputy Inspector General of Police, Nowgong, Assam. However, at the relevant time he was the Superintendent of Police, Kamrup, Gauhati, Assam.

3. On 31st December, 1979, Parthajoy Das, respondent No. 1 filed a complaint in the court of the Sub-Divisional Magistrate at Barpeta, Assam. The complainant pertained to the action taken in the early hours of 10th December, 1979 by the petitioner and respondents 3, 4, and 5 ; when respondent No. 1 and a crowd of 1500 to 2)00 persons were trying to prevent Begum Abida Ahmed from filing her nomination papers as a Lok Sabha candidate.

4. Respondent No. 3, Mr. K.P.S. Gill, belonging to the Indian Police Service, was, at the relevant time, Deputy Inspector General of Police, Gauhati, Kamrup, Assam, Respondent No. 4, Mr. M.C. Narasinham, belonging to the Indian Administrative Service, was at the relevant time Commissioner, Lower Assam Division, Gauhati. Respondent No. 5, Mr. A. Malik, belonging to the Assam Civil Service, was at the relevant time, Additional District Magistrate, Kamrup, Gauhati.

5. On receipt of the complaint the Magistrate examined the complainant and his witness Mr. Praveen Sharma, and took cognizance under Sections 302/325/323/427/34/114/149, Indian Penal Code he directed the issueof warrants of arrest against the petitioner and respondents 3, 4, and 5. He took these steps, though admittedly, no sanction to prosecute these public servants had been obtained under Section 197, Criminal Procedure Code. Nor did he apply his mind to the question of sanction of the State Government under Section 132, Criminal Procedure Code. He also did not wait for either the enquiry report, or the inquest report and/or the postmortem report.

6. As the petitioner was in the United Kingdom for higher studies and training, he could not be served. However, on his return he appeared before the Magistrate at Barpeta on 20th October, 1980. He immediately challenged the taking of cognizance. In his application he stated, inter alia, that no offence had been made out in the complaint nor had any sanction been accorded by the appropriate authority. But Magistrate did not pass any order on the application.

7. On 12th December. 1980 the petitioner along with respondents 3, 4, and 5 noted a transfer petition in the Supreme Court of India. They felt that they would be prejudiced, in view of the prevailing communal and political atmosphere in the State of Assam and the wide spread propaganda in the press and other media with regard to the 'foreigners' issue. The Supreme Court called for a report from the Chief Justice of the Gauhati High Court. It considered the report and transferred the case to the court of a Magistrate at Delhi, by its order dated 27th July, 1981 The Supreme Court opined that it was in the interest of justice to transfer the case to the court of a Magistrate to be nominated by the Sessions Judge, Delhi.

8. Three other transfer applications, pertaining to earlier incidents of the same night--early morning, i.e. of 9th--10 December, 1977, in connection with preventing Begum Abida Ahmed from filing her nomination papers were also before the Supreme Court. These, however, were not allowed. In those cases proceedings were pending in the High Court of Gauhati, for quashing and a stay of the proceedings before the Magistrate had already been ordered. The Supreme Court ordered that the stay would be operative till the disposal of the proceedings by the High Court of Gauhati.

9. With regard to the present matter the parties were directed to appear before the learned Sessions Judge, Delhi on 15th September, 1981 for necessary directions. The records were also transferred.

10. On 3rd December, 1981 the present petition was filed in this court to quash the complaint, the process served against the petitioner and the proceedings, inter alia, for want of sanction under Section 132, Criminal Procedure Code as also , non disclosure of any offence against the petitioner. On 15th January, 1982, after hearing the respondents, the court ordered that the Magistrate may proceed with the hearing of the applications but should not commit the case to the Court of Sessions. On 18th February, 1982 this interim order was confirmed till the pendency of the petition. The petition was also admitted on that date.

11. The case made out in the complaint by Mr. Parthajoy Das, respondent No. 1 is that the petitioner and respondents 3, 4 and 5 along with about 150 unknown armed police personnel assaulted him and the others, who had gathered at a place a few yards from Bhawanipur Chowk on thenational highway. The crowd consisted of the complainant and 1500 to 2000 persons. The purposes of the assembly was to peacefully dissuade candidates from filing nomination papers. This was the result of a movement, throughout the State of Assam, for postponement of the General Lok Sabha elections, to be held in January, 1980 in the State of Assam, till the names of all the 'foreigners' had been deleted from the electoral rolls. The dates of filing the nomination papers were 3rd December, 1979. As such to 10th December, all sections of the people and students in particular had assembled in a peaceful manner at different places in the State of Assam around the clock from 3rd December, 1979 to dissuade the intending candidates from filing nomination papers.

12. The Sub-Divisional Magistrate, Barpeta was the Returning Officer for the Barpeta Lok Sabha constituency. A person, intending to file a nomination paper at Barpeta, proceeding from Gauhati would have to pass by the national highway via Bhawanipur. It was public knowledge that Begum Abida Ahmed had come from Delhi and was staying at Gauhati and would proceed to Barpeta to file her nomination papers : however, till 9th December, 1979 no candidates had filed nomination papers before the Returning Officer at Barpeta. As such, this large crowd had assembled, near Bhawanipur Chowk on the national highway, in a last bid, to prevent her or any intending candidate from filing nomination papers at Barpeta.

13. Between 3.30 a.m. to 4.30. a.m. on the morning of 10th December, 1979, a number of vehicles suddenly approached the Bhawanipur Chowk from Gauhati. The crowd became vigilant and observed the vehicles with great attention. The vehicles stopped and the petitioner and respondents 3,4, and 5 alighted from the vehicles. Some unknown armed policemen also got down from the vehicles. Without giving any warning respondent No. 3, Mr, Gill ordered the armed policemen to assault the crowd. As a result, people began running helter-skelter. The petitioner and respondents 4 and 5 also instigated the armed policemen to assault the persons present without first giving an order to the assembly to disperse. The petitioner personally also assaulted a few persons with his stick. The instigation by the petitioner and respondents 3, 4 and 5 resulted in serious injuries being caused to a number of persons. The complainant also sustained some injuries as a result of the assault.

14. One Khargeswar Talukdar, who was the Secretary of the 'Dakhin Bijni Anchalik Students' Union, was in the fore-front of the assembly along with the compainant. Respondent No. 3 chased the complainant and Khargeswar Talukdar with a stick and 'hurled few strokes with his stick to the complainant and Khargeswar Talukdar'. Some armed policemen also assaulted them. Khargeswar ran towards the northern side of the national highway and fell down after proceeding a few yards.

15. The complainant subsequently learnt from Mr. Praveen Sharma that he saw Mr. Gill giving a kick to Khargeswar on his private parts after he fell down on the ground. Khargeswar cried out 'Morilo Morilo' (dying, dying). Mr. Praveen Sharma also told the complainant that a policeman picked up Khargeswar. Thereafter, Mr. Praveen Sharma became unconscious as he had been aassulted.

16. A dead body was subsequently recovered from a pond on the northern side of the national highway. The complainant recognized the body to be that of Khargeswar. Certain petromax lights were also broken by the petitioner and respondents 3, 4 and 5.

17. It was also averred in the complaint that the only objective of the assembly was to dissuade the intending candidates or their proposers from filing nomination papers at Barpeta. They were not unruly. Neither the petitioner nor respondents 3 to 5 gave any order to the assembly to disperse before directing the police personnel to assault. thereforee, the acts attributed to these persons 'cannot be said to be done or purported to have been done under Sections 129 and 130, Criminal Procedure Code ; nor can it be said that the accused persons or any of them acted or purported to act in discharge of their official duties'.

18. The main thrust of the challenge before me by Dr. R.S. Narula, learned counsel appearing for the petitioner, is that the Magistrate was in the facts and circumstances of the case, in error in taking cognizence. According to him, the complaint against the petitioner and respondents 3 and 5 could not be entertained without the requisite sanction under Section 132(1), Criminal Procedure Code, having been first obtained and as such the proceedings ought to be quashed.

19. Alternatively, he urged that the parallel protection under Section 197, Criminal Procedure Code was available to the petitioner and respondents 3 to 5 ; this sanction not having been obtained, the cognizance had been taken without jurisdiction.

20. He further, submitted that all the material placed before the court, by the parties at any stage of the proceedings, could be examiner by the concerned court, as and when the question of sanction was raised. In other words, the consideration was not confined to the material before the Magistrate.

21. In any case, he contended, the complaint dated 13th December, 1979 coupled with the statements of P.Ws. 1 and 2 did not make out any case against the petitioner and the issuance of process by the Magistrate as such was liable to be annulled.

22. Mr. C.M. Nayyer, learned counsel appearing for the State of Assam, respondent No 2 supported the submissions of counsel for the petitioner in connection with the mandatory necessity of obtaining sanction under Sections 132 and 197. Criminal Procedure Code. These contentions were also concurred with by Mr. Rajinder Singh and Mr. Arvind Minocha, learned counsel appearing for respondents 3 and 5 respectively. Ms. Neelam Grover, learned counsel who appeared for respondent No. 4 sought to seek the protection of Section 197, Criminal Procedure Code.

23. Mr. Vijay Hansaria, learned counsel for respondent No. 1, however, submitted that the High Court should not quash the proceedings under Section 482, Criminal Procedure Code. His contention was that the trial of a complaint is a normal procedure and, there should be a reluctance to interfere at the interlocutory stage, by the court, especially under its inherent or revisional jurisdiction.

24. He joined issue with Dr. Narula and State that only those documents which formed part of the record of the Magistrate could be looked at by the High Court, in considering whether the proceedings should be quashed. He also contended that the conditions attracting the requirement of a sanction under Section 132(1), Criminal Procedure Code were not existent and, thereforee, no such sanction was needed before prosecuting the petitioner. The question pertaining to the protection of Section 197, Criminal Procedure Code had already been argued before the Magistrate and was pending decision.

25. He also contended that the complaint disclosed the offences against the petitioner and the allegations set out in the complaint were neither patently absurd nor inherently improbable. In the circumstances, the discretion exercised by the Magistrate in taking cognizance was neither capricious nor arbitrary.

26. Admittedly ; the question, whether the Assam Magistrate was in error in taking cognizance before obtaining the previous sanction under Section 197, Criminal procedure Code, is Pending decision before the Delhi Magistrate. I am informed that the matter was argued at length. It is well settled that a matter should not be dealt with by two different forums simultaneously. In these circumstances, I do not propose to deal with it.

27. I, first, propose to examine the scope and ambit of Section 482, Criminal Procedure Code. Section 482 is couched in the widest possible language. It provides that nothing shall be deemed to limit or affect the inherent powers of the High Court. The section itself provides the guidelines. These inherent powers are to be exercised to give effect to any order under the Code of Criminal Procedure ; to prevent the abuse of the process of any court ; and/or to secure the ends of justice. The provisions of Section 482, Criminal Procedure Code have been considered in a concatenate of cases by the Supreme Court. I shall refer only to two.

28. In Smt. Naowwa v. Veeranna Shivalingappa Konjaloi and Ors., : 1976CriLJ1533 , Fazl Ali, J. speaking for the Court has opined that in the following cases an order of the Magistrate issuing process can be set aside :

'(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no product person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on evidence or on materials which are wholly irrelevant or inadmissible ; and

(4) where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of a complaint by legally competent authority and the like.'

29. In State of Karnataka v L. Muniswamy and Ors. : 1977CriLJ1125 Chandrachud, J. (as he then was) referring to Section 482 observed :

'In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.

30. The learned Judge also opined that Section 482 ought not to be encased within the strait jacket of a rigid formula.

31. In State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., : 1982CriLJ819 the Supreme Court has gone so far as to observe that even an investigation can be quashed if no offence is disclosed.

32. thereforee, it is clear that in the interest of justice no holes are barred, provided that justice is administered in accordance with law.

33. I shall now turn to the other relevant provisions of the code of Criminal Procedure. Section 190 provides for the taking of cognizance by the Magistrate. Section 190(1)(a) specifically states that this cognizance can be taken upon receiving a complaint of facts which constitute such offence. It is, thereforee, axiomatic that if the allegations set out in the complaint do not constitute an offence the complaint must be dismissed.

34. Section 132 is the subject of controversy in this case. The relevant portion reads :

''132(1) No prosecution against any person for any act purporting to be done under Section 129, Section 130 or Section 131 shall be instituted in any Criminal Court except:--

(a) with the sanction of the Central Government where such person is an officer or member of the armed forces ;

(b) with the sanction of State Oovt. in any other case.

(2)(a) Not Executive Magistrate or police officer acting under any of the said sections in good faith ;

(b) No person doing any act in good faith in compliance with a requisition under Section 129 or Section 130 ;

(c) no officer of the armed forces acting under Section 131 in good faith ;

(d) no number of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence.'

35. Section 129 which deals with the dispersal of an assembly by use of civil force is in the following terms :

'129(1) Any Executive Magistrate an officer-in-charge of a police station or, in the absence of such officer-in-charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.

(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in Sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the person who from part of it in order to disperse such assembly or that they may be punished according to law.

36. These provisions, as pertaining to the point in issue, provide for the protection against prosecution of the police officers who are not below the rank of sub-inspector and/or an Executive Magistrate, who act in the exercise of their duty or in purported exercise thereof under Section 129.

37. In the present case, as noticed above, it has been averred in the complaint that neither the Executive Magistrate nor the police officers . ordered the unlawful assembly or the assembly of five or more persons, likely to cause disturbance to public peace, to disperse. It is well settled that for the purposes of the present proceedings the averments in the complaint must be taken at their face value unless apparently absurd. It is, thereforee, clear that the provisions of Section 129(1) are not attracted.

38. On a perusal of Section 129(2) however, it is apparent that if an assembly, conducts itself in such a manner as to show a determination not to disperse, then an Executive Magistrate or police officer, not below the rank of a .sub-inspector, may proceed to disperse, the assembly by force and may require the assistance of any male person not being a member of the armed forces This dispersal can be done even without giving the command to disperse.

39. It is, thereforee, necessary to ascertain what are the admitted facts in this case and whether the ingredients of Section 129 are attracted. For it is only then, that the protection of Section 132 becomes available.

40. Admittedly, an agitation was going on in Assam not to allow elections to be held before the settlement of the 'foreigners' issue. The last date for filing the nomination papers was 10th December, 1979; no nomination paper had been filed till 9th December, 1979. It was widely believed that Begum Abida Ahmed intended to go by national highway 31 from Gauhati to Barpeta, to file her nomination papers there, on the night-early morning of 9-10th December, 1979; in all probability she would be escorted by thepolice. The agitators, including a large number of students, had decided to block national highway 31 at different places and stop the vehicles and locate Begum Abida Ahmed and collectively dissuade her from filing her nomination papers. The agitators had been assembling for this purpose since 3rd December, 1979 on the national highway ; and this was a last bid and determination to prevent her from filing her nomination papers before the dead line of 10th December, 1979.

41. 1500 to 2000 persons including students had collected at Bhawanipur Chowk on national highway 31 to keep watch throughout the night. The night in question was dark, cold and wintery. The group of persons including the complainant and deceased were equipped with petromax lamps; The petitioner and respondent No. 3 were police officers within the ambit of Section 129, Criminal Procedure Code and respondent No. 5 was an Executive Magistrate. They were heading a large police force and were traveling in Government police vehicles.

42. There is no allegation in the complaint that they have bore any personal motive or grudge against the complainant, the students or the deceased. The police, as also, the Executive Magistrate had a statutory right to disperse the assembly if it was unlawful; and even if it was not unlawful, they had a statutory right to do so, if in their opinion the assembly of five or more persons was likely to cause a disturbance of the public peace and conducted itself in such a manner as to show a determination not to disperse.

43. The Government had information that for achieving the object of preventing candidates from filing nomination papers, students and others would be building road blocks and may even use force to dissuade Begum Abida Ahmed which may result in firing and loss of innocent lives. An overall assessment of the Government was communicated in writing by the District Magistrate to Chief Secretary of the State on 9th December, 1979.

44. An order under Section 144 Code of Criminal Procedure had been in force since 27th November, 1979 for the entire Barpeta sub-division. It had come into force with immediate effect and use to remain in force until further orders. The assembly of more than five persons in any public place including maidans, streets, roads, thoroughfares was prohibited. Obstructions or attempted obstructions, intimidation or attempted intimidation and wrongful restraint and/or wrongful confinement of any person in lawful pursuit of his duties by any person was, inter alia, prohibited. The order was made exparte in view of the emergent situation.

45. The officers and the police force had gone to perform their duty. In spite of the large police contigent, the amount of force vise was minimum. The fact that the assembly did not disperse on the arrival of the police is patent as it was their objective to prevent and/or pursuade Begum Abida Ahmed from proceeding further and thus restrain her from filing her nomination papers. The vehicles came to a standstill ; as the agitators were vigilant and wanted to observe the vehicles carefully.

46. The Assistant District Magistrate and the police officers had removed obstructions between 1 a.m. to 2 a.m. at the first point of their journey and between 2 a.m. to 3 a.m. at the second point and between 3.30a.m. to 4 a.m. at the third point by using force, as alleged in those complaints, without giving any command to disperse. The petitioner and respondent No. 3 were also being prosecuted in respect of those occurrences. They had filed Criminal Revisions 49, 50 and 51 of 1980 at Gauhati High Court. Those prosecutions were quashed by Mr. Justice K. Lahiri of that Court oh 2nd April, 1982.

47. I am here concerned with the obstruction at point No. 4 which occurred at 4 a.m. to 4.30 a.m. Were the said officers acting in discharge or purported discharge of their duty Who and how was it to be decided whether the assembly was conducting itself in such a manner as to show a determination not to disperse, as that the police officers and the Executive Magistrate would proceed to disperse it without first giving an order for disperse These are the various quarries that come to mind.

48. In the facts and circumstances set out above, it is clear that the officers acted in discharge of their duty or in purported discharge thereof. That they were acting in their official capacity is not disputed. They were obviously trying to ensure that the electoral process was not the warted. They were apparently not conducting a purely private pursuit. Nor were they on a frolic of their own. They were trying to clear the way to Barpeta and the Returning Officer.

49. Interference or attempted interference with the free exercise of a candidate's electoral rights is an offence under Section 171C, Indian Penal Code. So is wrongful restraint and confinement. An order under Section 144, Criminal Procedure Code was in force in the entire area. If the order was valid, it would make the assembly unlawful.

50. However, I do not propose to deal with the question of the validity of the order under Section 144, Criminal Procedure Code. For even if it be assumed that what the petitioner and respondents 3 and 5 did, was in excess of their duty, it would come within the expression 'purported discharge of duty'. Purporting is professed exercise. A crowd of 1500 to 2000 persons was of the national highway 31 obstructing the way. This had to be cleared. thereforee, even assuming that the power was erroneously exercised without giving a command to disperse, when such a command should have been given, this would still be purported exercise of duty ; as acting ostensibly in execution of a duty means purporting to so act. See : Dr. Hari Ram Singh v. Emperor AIR 1939 FC 43.

51. In The Trustees of Port of Bombay v. The Premier of Automobiles Ltd. and Anr., : [1974]3SCR397 , Krishna Iyer, J. has observed : A policeman acts or purports'to act not only when he uses his lathi but also when he omits to open the lock-up to set the arrested free or omits to produce him before a Magistrate. The ostensible basis of the whole conduct colours both doings and defaults and the use of the words 'purporting to have been done' in their natural sweep, cover the commission-omission complex. The true test is whether the conduct of the public servant viewed as a whole including its omissions can be attributed to the exercise of office. thereforee, what is done under purported exercise of statutory functions, even if in excess of or contrary to its provisions is done pursuant to or under the Act so long there is a legitimate link between the offending act and the official role.

52. There is no dispute that the 'foreigners' issue had created an explosive law and order problem. The atmosphere in Assam was tense. The situation required delicate handling. The acts of the petitioner and respondents 3 and 5 were connected with this duty. They were inter-related no malafides has been alleged, as such, it can be reasonably postulated that these acts were done in the performance of official duties or purported discharge thereof.

53. It would, also appear to me that it is for the officer at the spot to decide, whether the assembly is conducting itself in such a manner as to show a determination not to disperse, and, thereforee, what types would succeed in defusing the situation. He is the best judge of the mood of the matter. It must be left to his discretion whether to give the command to disperse or not before acting.

54. I find support of my view in a decision of the Patna High court in Pancham Lal v. Dadan Singh 1979 Cri. L. J. 1018. That Court held :

'Law and order is quite a ticklish problem. What step will succeed at a particular situation has to be seen, to be understood. It is quite different from sitting and calculating in a cool and serene atmosphere of a court room dissecting the acts and counter-acts alleged by parties. What posture and attitude will succeed in a given set of circumstances must be left to the discretion of the public servant who had to tackle an explosive situation. Often a slap to the gang leader demoralises his adherents and defuses the situation. The methods and demands of tackling a situation must keep on varying and yet all those acts are in discharge of duty, may be in dereliction thereof.'

55. It is pertinent to note that, that decision has been approved by the Supreme Court in Akhilesh Prasad v. Union Territory of Mizoram, : 1981CriLJ407 .

56. It has been often repeated that the purport of Section 132 is to provide protection to officials in the larger interest of efficiency of administration. This protective umbrella is necessary so that public servants feel free to perform their official functions fearlessly without any apprehension of possible prosecution or persecution. If challenged, they can fall back on their 'official trappings'.

57. It is also clear that it is the prerogative of the State to sanction prosecution under Section 132(1)(b) and this function cannot be usurped. Its objective is to prevent frivolous and vexatious prosecution against officials who have themselves to protect the life and liberty of the citizens. The objective would be frustrated if prosecutions proceeded without the relevant sanction. In Constitutional and Administrative Law by E.C.S. Wade and G. Phillips (9th Edition) at page 336 it has been stated' .....prosecuting is not a judicial function but an executive one'. Thus it is for the State to scrutinize the question of sanction, keeping the situation in view, so that it should not result in public servants shirking their responsibilities.

58. It would, thereforee, appear to me that the acts as alleged to have been done by the petitioner and respondents 3 and 5 come within the ambitof Section 129(2) and they are entitled to the protection of Section 132(l)(b), Criminal Procedure Code. The sanction of the State Government admittedly, being non existent, the prosecution could not have been instituted. It must, thereforee, be quashed.

59. The question of the necessity of sanction can be determined at any stage, when raised ; and for the purpose of examining whether there is a fundamental legal defect in initiating the prosecution, without sanction, all the material on record at the time the matter is raised can be looked at.

60. In Akhilesh Prasad v. Union Territory of Mizoram, (Supra), the Supreme Court referring to the following relevant remarks of the High Court :

'The question of necessity of sanction has to be determined from stage to stage as the case progresses 1979 Crl. L. J. 1018 (Pat) (Pancham Lal v. Dadan Singh). It may be considered at any stage of the proceeding and while considering, it is not necessary for the Court to confine itself to the allegations in the complaint, and the court can take into consideration all the materials on the record at the time the question is raised. : 1979CriLJ1367 , (S.B. Saha v. M.S. Kochar)'

has observed that the exposition is not only, correct according to the learned counsel for the parties but 'has our full approval'.

61. Further, though counsel for the complainant sought to challenge the legality of the order under Section 114, Criminal Procedure Code, dated 27th November, 1979, as it was ex-parte, the existence or promulgation of the order is not disputed.

62. I need not go into the question of the legality of the order under Section 144, Criminal Procedure Code, which if valid, would result in turning the assembly into an unlawful one. Suffice it to say, that the existence of an order under Section 144, Criminal Procedure Code, makes it abundantly apparent that what the officers were doing by accompanying the candidates/ proposers and making it possible for them to proceed was in discharge of their official duty or purported discharge thereof.

63. It is also apparent from the latter dated 9th December, 1979 from the Deputy Commissioner, Kamrup to the Chief Secretary, Government of Assam, that a very abnormal tense situation existed because of the agitation and the proposed programme of Begum Abida Ahmed to file her nomination papers at Barpeta. A large scale mobilization to prevent her taken place. Tension and trouble were anticipated. Security measures had to be taken. Blocking of roads on way to Barpeta and widespread violence was anticipated Direct confrontation between the law enforcing agency and the agitators was apprehended.

64. I do not propose to refer to the actual text of the General Diary entries as they arc maintained by the police themselves ; but they do indicate that the petitioner was proceeding on official duty. In any case, the above mentioned two documents provide sufficient circumstances to show the Necessity of sanction.

65 It is clear to me that this material can be looked at, at the stage, though only for the limited purpose of examining the necessity of sanction. The documents cannot be used to turn the complainant into an accused or . to reflect on the merits of the case or to set up a counter case.

66 In Nagraj v. State of Mysore, : 1964CriLJ161 it has been stated that the necessity of sanction can be established even from the circumstances of the case if it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Sections 127 and 128 of the Code. (These sections of the Code of 1898 are equivalent to Sections 129 and 130 of the Code of Criminal Procedure, 1973).

67. In view of my decision that the prosecution could not be initiated without the sanction of the Government under Section 132(1), Criminal Procedure Code, I do not propose to dilate on the other propositions posed by the parties.

68. In the result and for the reasons out lined above, the petition is allowed and the proceedings quashed.


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