Full Judgment Text
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PETITIONER:
BAKHSHISH SINGH BRAR
Vs.
RESPONDENT:
SMT. GURMEJ KAUR AND ANR.
DATE OF JUDGMENT12/10/1987
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
DUTT, M.M. (J)
CITATION:
1988 AIR 257 1988 SCR (1) 450
1987 SCC (4) 663 JT 1987 (4) 190
1987 SCALE (2)828
ACT:
Criminal Procedure Code, 1973: ss, 196 & 197-Rationale
of-Protection of public servants in discharge of official
duties-Immunity from being harassed in criminal proceedings
and prosecution-Citizens’ rights-Protection of-Equally
important.
HEADNOTE:
The petitioner, a police officer, was charged by the
Judicial Magistrate under ss. 148/302/149/325/149 and under
ss. 323/149 of the Indian Penal Code for allegedly causing
grievous injuries to the complainant and death of one of the
alleged offenders during a raid and search for illicit
liquor and unlicenced arms, and committed to the Court of
Sessions for trial. His contention was that under s. 196 of
the Code of Criminal Procedure the cognizance of the offence
could not be taken nor the trial proceeded with without the
sanction of the appropriate authorities under s. 197 of that
Code. The Sessions Court took the view that unless
cognizance was taken and the facts and the circumstances and
the nature of the allegations involved in the case were gone
into, it would not be possible to determine whether or not
the raiding party exceeded its limits or power while acting
in the discharge official duties.
The High Court dismissed the application under s. 482
of the Code of Criminal Procedure for staying further
proceedings in the Sessions Court.
In the special leave petition to this Court on the
question: Whether without the sanction under s. 197 of the
Code of Criminal Procedure the proceedings could go on.
Dismissing the special leave petition,
^
HELD: l. The order passed by the Sessions Court was
proper and the High Court was right in not interfering with
the same. [455G]
2. Criminal trials should not be stayed in all cases at
the prelimi
451
nary stage because that will cause great damage to the
evidence. It is necessary to protect the public servants in
the discharge of their duties. They must be made immune from
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being harassed in criminal proceedings and prosecution, that
is the rationale behind ss. 196 and 197 of the Criminal
Procedure Code. But it is equally important that rights of
the citizens should be protected and no excesses should be
committed. In the facts and circumstances of each case
protection of public officers and public servants
functioning in discharge of official duties and protection
of private citizens have, therefore, to be balanced by
finding out as to what extent and how far is a public
servant working in discharge of his duties or purported
discharge of his duties, and whether the public servant has
exceeded his limit. [455F,C-E]
Pukhraj v. State of Rajasthan and Anr., [1974] 1 S.C.R.
559, referred to
In the instant case, it is alleged that grievous
injuries were inflicted upon the complainant and as a result
of injuries one of the alleged accused had died. The
question is while investigating and performing his duties as
a police officer was it necessary for the petitioner to
conduct himself in such a manner which would result in such
consequences. Therefore, the trial should proceed. If
necessary the question of sanction under s. 197 of the
Criminal Procedure Code may be agitated after some evidence
have been noted by the Sessions Court. [455C, H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
(Crl. ) No. 419 of 1987.
From the Judgment and order dated 11.12.1986 of the
Punjab and Haryana High Court in Criminal Miscellaneous No.
7421-M of 1 986 .
R.K. Garg, Ms. Suman Kapoor and R.P. Singh for the
Petitioner.
P.N. Puri, R.S. Sodhi and R.S. Suri for the
Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. This is a petition for leave to
appeal under Article 136 of the Constitution against the
judgment and order of the High Court of Punjab and Haryana
dated 11th of December, 1986. By the order the High Court
has dismissed the applica-
452
tion under section 482 of the Code of Criminal Procedure
praying that further that proceedings be stayed in Sessions
Case No. 1 of 25th of March, 1985 under sections
148/302/325/323/149/120-B of the I.P.C. The High Court
dismissed this petition because it found no merit in the
same.
The petitioner, herein alongwith 14 more persons were
charged by an order dated 30th of May, 1986 under sections
148/302/149/325/149 and under sections 323/149 of the I.P.C.
for allegedly causing death of one Ajit Singh and for
causing hurt to Smt. Gurmej Kaur, the complainant. The case
was committed to the Court of Sessions by the Judicial
Magistrate 1st Class, Kapurthala vide order dated 20.2.1985.
As per the case set up by the complainant Smt. Gujmej Kaur,
her son Ajit Singh since deceased was involved in a murder
case pertaining to the murder of head constable Bagga Singh
of Police Station Dhilwan. That case was registered in
police station Bhogpur, District Jalandhar and Ajit Singh
was tried alongwith other persons and was sentenced by the
Additional Sessions Judge but he was acquitted by the High
Court. The complainant further states that Ajit Singh was
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also involved by the police in a case of dacoity of police
station Kotwali Kapurthala and police station Dhilwan during
investigation of the murder case in question. Ajit Singh was
also convicted in those cases but acquitted by the High
Court. It is the case of the complainant that Ajit Singh was
allegedly involved in some other murder and dacoity case by
the police which was tried in Himachal Pradesh and Ajit
Singh was acquitted by the Himachal Pradesh High Court.
Mohinder Singh and Des Raj also co-accused in this case
allegedly investigated cases of Kapurthala and Ajit Singh
was tortured by Des Raj and the leg of Ajit Singh was
broken. Ajit Singh then filed complaint against Des Raj
(also accused in this case) and he was summoned by the
Judicial Magistrate 1st p Class, Kapurthala and thus the
relation between Ajit Singh and Kapurthala Police Station
had become very strained. Ajit Singh had then settled in
U.P., according to the allegations in the complaint, out of
fear of the police. It is stated that on or about 7th of
April, 1983 at about 3 p.m. all the accused including
present petitioner went to village Bhandal Bet. They went to
the house of the complaint where she was present alongwith
her sons Ajit Singh and Manjit Singh and other members of
the family. Manjit Singh and Ajit Singh, it was alleged,
were surrounded by the police officials and Manjit Singh and
Ajit Singh protested against this. Then Bakshish Singh
accused, petitioner, directed his companions to arrest Ajit
Singh and Manjit Singh and tie them with ropes and put them
in the truck for the purpose of throwing them in the river
Beas. It was further alleged that Manjit
453
Singh and Ajit Singh ran to save themselves but they were
attacked by the police officials. The complainant also
received injuries in the A course of this occurrence when
she was given dang blows. Ajit Singh and Manjit Singh were
given blows by the police officals on the asking of the
appellant herein Bakhshish Singh Brar, who is the Deputy
Superintendent of Police. A hue and cry was raised. Other
persons came, Ajit Singh and Manjit Singh became unconscious
and then they were taken away in the truck for the purpose
of throwing them in the river, according to the complaint.
The case of the complainant further was that Ajit Singh and
Manjit Singh were then got admitted by the police in Civil
Hospital, Kapurthala as indoor patients and Ajit Singh died
as a result of injuries on 8th of March, 1983. It was
further alleged that the accused who are the police
officials fabricated false evidence in order to make out a
defence and registered two false cases one under section
61(1)(a) of the Punjab Excise Act, F.I.R. No. 70 dated 7th
of April 1983 and the other under section 307, I.P.C. F.I.R.
No. l 1 dated 7th April, 1983.
On the other hand, the case of the respondents was that
the police party headed by the petitioner including 13 of
his subordinates went to the Haveli of Jit Singh alias Jita,
situated in village Bhandel Bet in connection with raid on
secret information to the effect that he is indulging in
illicit liquor and unlicenced arms. There were two First
Information Reports one under section 61(1)(14) of the
Punjab Excise Act and the other under section 25(54)(59) of
the Arms act were recorded in Police Station Dhilwan. That
on the same date the police party raided the Haveli of Jit
Singh alias Jita, where Manjit Singh, Jasbir Singh, Balwant
Singh, Chhinda and Majwi, residence of village Bullowal and
Gurdev Singh resident of village Ucha were present there. It
is further alleged that seeing the police party, Jasbir
Singh fired at Ajit Singh, who saved himself by hiding
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himself behind a wall. The other persons armed with dangs
and dhope attacked the police party.
There are rival versions involved in this case. The
question was whether without the sanction under section 197
of the Code of Criminal Procedure the proceedings could go
on. It is quite apparent that as a result of the alleged
search and raid, which was conducted by the petitioner in
discharge of his official duties certain injuries, which are
described as grievous, injuries had been inflicted on the
complainant and one of the alleged offenders had died. In
this case, admittedly, the petitioner is a Government
servant. Admittedly, there was no sanction under section 197
of the Cr. P.C. had been taken. The trial in this case H
454
is one of the offences mentioned under section 196 of the
Cr. P.C. The A contention of the petitioner was that under
section 196 of the Cr. P.C. the cognizance of the offence
could not be taken nor the trial proceeded without the
sanction of the appropriate authorities. The learned
Additional Sessions Judge, Kapurthala after consideration of
the facts and circumstances of the case in view of the
observations of this Court in Pukhraj v. State of Rajasthan
and another, [1974] 1 S.C.R. S59 that unless cognizance is
taken and the facts and in the circumstances and the nature
of the allegations involved in this case are gone into the
question whether the raiding party exceeded its limits or
power while acting in the official duties cannot be
determined. The learned Judge observed after gathering the
materials and some evidence, it would be possible to
determine whether the petitioner while acting in the
discharge of his duties as a police officer had exceeded the
limit of his official capacity in inflicting grievous
injuries on the accused and causing death to the other
accused.
This Court in the aforesaid decision had occasion to
consider this aspect. The case is instructive and
illustrative how a balance has to be struck between the need
for speedier trial of criminal offenders and at the same
time protecting public servants or police officials in the
discharge of their duties without obstructions. There the
appellant had filed a complaint against his superior
officer, in the Postal Department under sections 323 and 502
of I.P.C. alleging that when the appellant went with a
certain complaint to the second respondent, the said
respondent kicked him in his abdomen and absued him by
saying "Sale, gunde, badmash ...." The said respondent filed
an application under section 197 of the Cr. P.C. praying
that the Court should not take cognizance of the offence
without the sanction of the Government, as required by
section 197 of the Cr. P.C. It was further contended that
the alleged acts, if at all done by the accused were done
while discharging his duties as a public servant. The trial
Magistrate dismissed the application. The High Court allowed
the revision application of the said respondent. This Court
on appeal held that at that stage, the Court was concerned
only with one point, viz., whether on facts alleged in the
complaint, it could be said that the acts were done in
purported exercise of his duties. Applying the test laid
down in the decisions of the Federal Court and this Court to
acts complained of, viz., kicking the complainant and
abusing, could not be said to have been done in the course
of the performance of the duty by the said respondent. The
facts subsequently coming to light during the course of the
judicial enquiry or during the course of the prosecution
evidence at the trial might establish the necessity for
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sanction, it was observed. This Court noted that it might be
possible for the said respondent to
455
place materials on record during the course of the trial for
showing what his duties were and also that the acts
complained of were so interrelated with his official duty,
so as to attract the protection afforded by section 197 of
the Cr. P.C. This Court reiterated that the question whether
sanction was necessary or not might have to depend upon from
stage to stage having regard to the facts and circumstances
of the case. This Court allowed the appeal and allowed the
trial to proceed without the sanction.
In the instant case, it is alleged that grievous
injuries were inflicted upon the complainant and as a result
of injuries one of the alleged accused had died. The
question is while investigating and performing his duties as
a police officer was it necessary for the petitioner to
conduct himself in such a manner which would result in such
consequences.It is necessary to protect the public servant
in the discharge of their duties. They must be made immune
from being harassed in criminal proceedings and prosecution,
that is the rationale behind section 196 and section 197 of
the Cr. P.C. But it is equally important to emphasise that
rights of the citizens should be protected and no excesses
should be permitted. "Encounter death" has become too
common. In the facts and circumstance of each case
protection of public officers and public servants
functioning in discharge of official duties and protection
of private citizens have to be balanced by finding out as to
what extent and how far is a public servant working in
discharge of his duties or purported discharge of his
duties, and whether the public servant has exceeded his
limit. It is true that section 196 states that no cognizance
can be taken and even after cognizance having been taken if
facts come to light that the acts complained of were done in
the discharge of the official duties then the trial may have
to be stayed unless sanction is obtained. But at the same
time it has to be emphasised that criminal trials should not
be stayed in all cases at the preliminary stage because that
will cause great damage to the evidence.
In that view of the matter we are of the opinion that
the order passed by the learned Additional Sessions Judge,
Kapurthala, in the facts of this case, was proper and the
High Court was right in not interfering with the same. We,
therefore, dismiss this petition. G
We, however, direct that the trial should proceed as
expeditiously as possible. We further record that if
necessary the question of sanction under section 197 of the
Cr. P.C. may be agitated after some evidence have been noted
by the learned Additional Sessions Judge.
P.S.S. Petition dismissed.
456