Gokul Saikia vs Ashok Sahu

Manisana, J.—This revision petition arises from the order dated 12.10.82 passed by the learned Judicial Magistrate, 1st Class, North Lakhimpur, in C.R. Case No. 850 of 1982 relating to sanction u/s 197, Code of Criminal Procedure.

On 19.7.82 the Petitioner Gokul Saikia made a complaint in the Court of the learned Judicial Magistrate, 1st Class, North Lakhimpur against the opposite party Ashok Sahu who was the Superintendent of Police, North Lakhimpur stating.'' inter alia that on 14.7.82, the Superintendent of Police (SP) assaulted the complainant Gokul Saikia with pistol and lathi. On 19.7.82, the learned Magistrate examined the complainant u/s 200, Code of Criminal Procedure and took cognizance of the offences punishable under Sections 323, 325 and 504, IPC against the SP. On 7.3.82 the Assistant Public Prosecutor filed an application'' for dropping the proceedings against the SP on the ground that junction under lection 197, Code of Criminal Procedure is requited for prosecution of the SP. The learned Magistrate by an order dated 12.10.82 allowed the prayer of the Assistant Public Prosecutor holding that sanction for prosecution u/s 197, Code of Criminal Procedure is required: hence this petition to this Court.

Mr. J.M. Cboudhury, learned Counsel for the Petitioner, hat submitted that there is no material on record to show that the S.P. committed the act in his official capacity or under the colour of the office held by him. Mr. B. Patnaik, the learned Counsel for the opposite party has submitted that there are sufficient materials on record to show that there was director reasonable connection between the act complained of and the discharge of the official duty.

The question which now arises for consideration is whether the SP committed the act compulsed of in discharge of his duty or under he colour of the office held by him.

It is now well-settled

(a) that the question whether or cot sanction for prosecution is required can be raised and considered at any stage of the proceedings, and that in considering the question, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the materials on record at the time when the question is raised and falls of consideration; and

(b) that there must be a reasonable and/or direct connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that be did it in the course of the performance of his duty; and

(c) that it was not every offence committed by a public servant which required sanction for the prosecution u/s 197, Code of Criminal Procedure nor even every set done by him when he was actually engaged in the performance of his official duties. Bat if the act complained of was directly conversed with his official duties so that, if questioned, it could be claimed to have been done by virtues of the office, then sanction would be necessary and that would be so, irrespective of whether it was in fact, a proper discharge of his duties or not.

[See Matajog Dobey Vs. H.C. Bhari, Prabhakar v. Shankar AIR 1969 SC 656 and S.B. Saha]

There it no dispute that the question whether sanction it necessary or not can be determined from stage to stage. The before, it is only to consider whether function ii necessary keeping the above principle in view. The material before roe are:

(1) Record of C.R. Cum No. 863/82 Initiated against Gokul Saikia under Sections 112, 113, 116 and 117 of the Motor Vehicle Act, 1939 (MV Act);

(2) Record of GR Case No. 890/82, State v. Golop Ch. Hazarika u/s 279, 337, 338 and 427, IPC;

(3) G.D. entries Nos. 500 and 508 made on 14.7.82;

(4) Medical report dated 14.7.82; and

(5) Complaint filed by Gokul Saikia,

In C.R. Case No. 863/82, a report was made against Gokul Saikia stating that he bad commuted offences punishable under Sections 112, 113, 116 and 117 of the MV Act. The report and result of the case will be discussed here-in-after.

The records of CR Case No. 890/82 shows that a case under Sections 279, 337, 338 and 427, IPC is pending against one Gopal Chandra Hazarika in connection with a truck accident. The G.D. entry No. 500 made on 14.7.82 at 7.45 p.m. relates to receiving of an information by the Officer in-charge from the Traffic Havilder about the truck accident. The G.D. entry No. 508 made on 14.7.82 at 11.15 p.m. shows that when Gokul Saikia reached the place of occurrence, the SP in his official capacity was supervising the case of the truck accident and Gokul Saikia was arrested in connection with the delving of motor vehicle (jeep) recklessly or dangerously, etc. (C.R. Case No. 863/82).

The medical report reads:

I examined Sri Gokul Saikia S/o Sri Minaram Saikia on 14.7.82 at 11.30 p.m. and found to be under influence of alcohol and found him to be having control over self.

The following injuries are found over the head-

Laverated injury on the left partial region. Size-1� x1� Scalp deep.

Bruise over the forehead (left side)

Duration of injury - fresh

Weapon used - blunt

Nature of injury -simple.

Mr. Patnaik has submitted that the G.D. entry No. 508 shows that the SP was supervising the truck accident case (C.R. Case No. 890/82). The medical report shows that the injury sustained by Gokul Saikia was simple in nature, and that Gokul was found under the influence of liquor.

Mr. Patnaik has drawn ray attention to the following recitals in the complaint:

(1) A truck bad met with an accident and a part of the truck was on the bridge and the other part was hanging.

(2) Some time between 10/11 P.M. the complainant reached the place of occurrence in his jeep, The complaint ant parked his jeep near the place of occurrence and came out and focused his torch on the hanging truck.

(3) The opposite party SP asked the complainant as to who was the owner of the truck involved in the accident. The complainant gave the name of Khudiram Hazarika.

(4) The SP harshly told the complainant that be had caused the accident.

(5) When the SP told the complainant that he bad committed the accident, the complaisant apprehended that worse may happen to him.

(6) The complainant, apprehending that the situation .nay become bad for him, walked away from the SP and went to the road.

(7) The SP followed the complainant behind him and assaulted the complainant with pistol and lathi.

Mr. Patnaik bas submitted that the recitals mentioned above show that the SP in the circumstances of the case, came to One conclusion or suspected that Gokul Saikia had committed the accident. The statement in the complaint that when the SP told Gokul Saikia that Gokul bad committed the accident, Gokul walked away from the SP and went to the road shows that Gokul Saikia run away from the SP apprehending that be might be arrested by the SP.

Mr. Patnaik has further submitted that when the SP suspected that Gokul Saikia had committed the accident, the SP bad the power to detain and arrest Gokul Saikia. Under the law, the SP has the power to apprehend the suspect when he ran away and for that purpose the SP can use force. In such a situation there was reasonable end/or direct connection between she alleged act of the assult by the SP with pistol and lathi an Gokul Saikia, and the discharge of his official duty to arrest Gokul Saikia. The injury was also simple one. Even assuming that the force used by the SP was in excess of the requirement of the situation in view of the principles already stated above sanction u/s 197, Code of Criminal Procedure is required.

u/s 41(a), Code of Criminal Procedure, a police officer may with out warrant arrest any person if be reasonably suspect any person mo have committed a cognizable offence, Section 46, Code of Criminal Procedure provides:

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section. gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Under Section 46, Code of Criminal Procedure reasonable or necessary force may be used by the police if the person to be arrested forcibly resists the endeavor to arrest him, or attempts to evade arrest causing damage or injury as is necessary to effect the arrest. But it does not give a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. Jurisdiction for catalog soy injury will depend upon the availability of means of arrest.

If the contention of Mr. Patnaik is accepted, it would mean that the SP was justified u/s 46, Code of Criminal Procedure to caw the injury in view of the nature of the injury. In that case, I am deciding the case in favour of the SP before trial by bolding that the accused is not guilty of alleged offences. I think I can not do so. If a public servant does within the limits of power under any law, he committee no offence, Section 197, Code of Criminal Procedure will be attracted only when the public servant exceed till power or ties conferred on him by him. Although It has been settled that the Court can take into account as the materials on record at the time when the question It raised and falls for consideration, it does not, mean that the merits of the care can be decided. The materials are to be used for limited purpose as is necessary to decide the question of sanction and cot to decide the merits of the case. This view of mine finds support from a decision of this High Court in K.P.S. Gill v. Dimbeswar Sarma (Criminal Revision Nos. 40, 50, 51 of 1980.) In that case this Court (Lahiri, J.) observed;

In my opinion, all the genuine documents supporting the plea of the accused relating to the necessity of sanction are admissible and may be examined by the Court but only fur the limited purpose as to the necessity of sanction. No documents can be made use of to throw out prosecution allegations or to set up a counter-case or to produce documents to destroy wholly or partly the allegations contained in the complaint.''

In this view of the matter, the contention of Mr. Patnaik cannot be accepted.

Mr. Patnaik has further submitted that Gokul Saikia came to the spot driving a jeep in heavily drunken stage and as such he was arrested u/s 41, Code of Criminal Procedure as shown in the G.D entry No. 508 aforesaid. The reports submitted by the police against Gokul Saikia iu connection with the arrest in C.R. Case No. 863 of 1982 runs:

The brief case is that on 14.7.82 at about 10/30 P.M. the accused noted in column No. 3 drove the Jeep No. ASD 6062 from N.L. town to Hatilong Bantoo on the N.T. Road in the full speed, be was given signal by police to stop the vehicle on the approach of the Hatilong bridge where Police guarding an accident vehicle and control the both side traffic as the vehicular traffic was stopped due to accident of the truck on the bridge. The Accd. driver did not obey the Police signal and rush the vehicle near by bridge and stop the vehicle on the wrung side of the road. The driver immediately got down from the Jeep and run away towards the side of the accident truck where he knocked down his bead on the body of the truck as such he received injury on his head. The Head driver immediately taken into police custody for his personal safety and it was detected that the Accd. was under influence of alcohol, He was brought to P.S. ard sent or medical examination. The Medical Officer opined that be was under influence of alcohol. The accd. person ultimately released on P.R. bond.

So I beg to request your honour the accd. poted in Colm. No. 3 may kindly be prosecuted u/s 112/113/116/117 M.V. Act. Witness in colm. No. 8 will prove the case.

u/s 128 of the MV Act, a police officer in uniform may arrest without warrant any person who commits in his view an offence punishable u/s 116, or Section 117 or section 126 as provided thereunder. The trial of the said C.R. Case No. 863 of 1982 has already been concluded and Gokul Saikia has been acquitted of the charges, However, if there is any material, en record to show that the SP was attempting to arrest Gokul Saikia and he was evading the arrest or resisting the arrest, then the SP may reasonably claim that the act complained of was directly or reasonably connected with the official duty or it was committed in performance of his duty. A close reading of the above report of the police and the complaint of Gokul Saikia the ire is nothing whatsoever which would show that such a situation existed which could justify the act complained of or which cold justify to claim that it was directly or reasonably connected the discharge of his official duty.

Mr. Patnaik has finally submitted that there is no case, or fact which constitute any offence, against the SP and as such the proceedings before the learned Magistrate may be quashed. Referring to the recitals in the complaint, which have already been alluded to above, Mr. Patnaik has made the following submissions vide written argument.

In the complaint petition the Petitioner complainant admits that when he was walking away from the SP apprehending that something bad may happen to him which in the context would mean apprehending that he might be arrested, the opposite party SP followed behind him and while ho was so following behind him assulted the Petitioner-complainant at several places on his face with pistol and lathi. It is not the case in the complaint petition that opposite patty SP overtook the Petitioner-com-Plaint came in front of him and standing in front of him assulted him. The medical report drawn up at 11.30 p.m. at the hospital records only two injuries-(1) Bruise over the Forehead (2) One lacerated Injury on the left partial region. The allegation that the opposite party SP assaulted the Petitioner-complainant and caused a bruise in the forehead and lacerated wound in the left partial region while he was behind the Petitioner-complainant and while he was following the Petitioner-complainant is, on the face of it abused incredible and physically impossible. This it is submitted that even if the Petitioner complainant had obtained sanction u/s Code of Criminal Procedure in view of the recitals in the complaint petition itself, no credible care for taking cognizance was made out and cognizance taken was liable to be quashed. The medical report also falsified the allegation of the Petitioner-complainant having been assaulted at several places of his face by pistol and lathi.

After discussing earlier decisions relating to the provision u/s 482, Code of Criminal Procedure, the Supreme Court, in J.P. Sharma v. Vinod Kumar (1986) 3 SCC 87, has held:

The question at this stage, is, not whether there was any truth in the allegations made but the question is whether on the basis of the allegations, cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove tin; truth or otherwise on the allegation is not pound on the basis of which the complaint can be quashed.

In view of the above decision of the Supreme Court, the contention of Mr. Patnaik cannot be accepted. If the submission of Mr. Patnaik is accepted, it will amount to deciding the truth of the allegations made in the complaint. What the Supreme Court has decided is that taking of the allegation in the complaint to be true, without adding or subtracting anything, if a prima facie case is made out for trial, the High Court has no Jurisdiction to exercise Its power u/s 402, Code of Criminal Procedure to quash the proceedings. In the present case inking all the allegations in the complaint to be true, at this stage. a prima facie case at least for on offence u/s 323. IPC for trial ban been mode out. As regards the delay in waking the complaint, the complainant him explained the delay. It is for the trial Court to decide whether the explanation is acceptable or not In this view of the mutter, the contention of Mr. Patnaik has no force.

For the foregoing reasons, it is conclude that there is no materials on record to show as to the necessity of emotion u/s 197, Code of Criminal Procedure at this stage and as such the order of the learned Magistrate is liable to be set aside. The impugned order dated 10.12.1982 passed by the learned Judicial Magistrate, 1st Class, North Lakhimpur, is accordingly set aside, and the case is sent back to the learned Judicial Magistrate, for enquiry and or trial in accordance with law.

With the above observation and direction the position is allowed and disposed of.