Anil Kumar Mishra Vs. State Of U.P. & Another

Allahabad High Court (Single Judge)

APPLICATION U/s 482, 11657 of 2015, Judgment Date: May 14, 2015

HIGH COURT OF JUDICATURE AT ALLAHABAD 

RESERVED 
AFR 
Court No. - 58 

Case :- APPLICATION U/S 482 No. - 11657 of 2015 

Applicant :- Anil Kumar Mishra 
Opposite Party :- State Of U.P. & Another 
Counsel for Applicant :- Jai Singh Yadav 
Counsel for Opposite Party :- Govt. Advocate 

Hon'ble B. Amit Sthalekar,J. 

Heard Shri Jai Singh Yadav, learned counsel for the applicant and the learned A.G.A. for the State. 

By means of this 482 Cr.P.C. application, the applicant is seeking quashing of the proceedings of complaint case No. 1932/9/2014 under sections 323, 504, 506, 392 and 342 I.P.C. police station Kundraki District Moradabad as well as quashing the summoning order dated 20.1.2014 passed by the Chief Judicial Magistrate, Moradabad. 

From a perusal of the allegations made out in the complaint it is noticed that there was a dispute between the complainant and Salim, Aslam and Fahim sons of Hamidullaha alias Chhotey, Shabban son of Saidullaha and Zareef and Shareef sons of Iqbal. Further allegation is that on 17.4.2013 at about 11 a.m. when the complainant was present in his field alongwith his son Jubaira, accused persons reached there alongwith Anil Kumar Mishra, Daroga (applicant) and forcibly started loading the wheat crop on a Tractor Trolley. When the complainant tried to stop the accused persons, Anil Kumar Mishra is stated to have said that it is the order of the S.S.P., and this wheat belongs to the accused and they shall be permitted to lift the same. When the complainant asked Anil Kumar Mishra to show the order of the S.S.P. the applicant took out his Pistol and put the same on the head of the complainant threatening him after using abusive language and is also stated to have threatened that he and his son would be killed in an encounter. 

An application was filed by the applicant under sections 151/107/116 Cr.P.C. at Police Station Kundarki Moradabad stating that on 30.4.2013 the applicant alongwith some other constables were on beat duty and while they were going from Kundarki to Hariyana village and reached near Milak Mohammad Jampur they saw some persons scuffling on the chak road. On being interrogated one party stated that they have purchased the field on 25.4.1997 and Mohammad Uvesh and Shafeque Ahmad were claiming the said field belonged to them and were insisting to irrigate the field. Since both parties became aggressive and there was apprehension of breach of peace therefore, Mohd. Uvesh and Shafeeque were challaned under section 151 Cr.P.C. 

On the complaint of opposite party no. 2 a complaint case no. 1932/9/2014 was registered under sections 323, 504, 506, 392 and 342 I.P.C. police station Kundraki District Moradabad and after considering the allegations made out in the complaint the summoning order dated 20.1.2014 has been issued by the Chief Judicial Magistrate, Moradabad. 

The submission of the learned counsel for the applicant is that the applicant was a Sub Inspector and that the report under section 151/107/116 was made by him in the discharge of his official duty and therefore no complaint could have been registered without compliance of the provisions of Section 197 Cr.P.C. i.e. without sanction of the competent authority. In support of his submissions following cases have been cited. 

Anjani Kumar Vs. State of Bihar reported in (208) 5 SCC 248, the Supreme Court in paragraph 11 has held as under: 

"11. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case." 

In State of Orissa through Kumar Raghvendra Singh and others Vs. Ganesh Chandra Jew reported in (2004) 8 SCC 40, the Supreme Court in paragraph 7 has held as under: 
"7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case." 


The aforesaid case in my opinion do not help the applicant at all. What emerges from the law laid down by the Supreme Court is that it is not the public duty which needs to be examined but the act which is purported to have been done in the discharge of the official duty which needs to be examined. 

In P. Arulswami Vs. State of Madras reported in AIR 1967 SC 776 the Supreme Court held in paragraph 6 as under: 

"6. It is not therefore every offence committed by a public servant that requires sanction for prosecution under s. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. 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 s. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

In (2004) 8 SCC 31 S.K. Zutshi and another Vs. Bimal Debnath and another, the Supreme Court in paragraph 5 has held as under: 

"5. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case." 

Thus the overwhelming judicial opinion of the Supreme Court is that the act must fall within the scope and range of the official duty of the public servant concerned. If the omission or neglect on the part of the public servant to commit the act complained of could have made the public servant answerable for a charge of dereliction of his official duty, it cannot be said that the act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. 

In (2009) 3 SCC 398 Choudhury Parveen Sultana Vs. State of West Bengal and another, the Supreme Court in paragraph 18 has held as under: 

"18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Prasad Srivastava's case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava's case the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."

The Supreme Court has illustratively explained that there can be cases of misuse or abuse of power vested in a public servant which can never be said to be a part of the official duty required to be performed by him. 

In the present case irrespective of whether the applicant was on official duty the act of putting his pistol to the head of the complainant and threatening him with dire consequences of eliminating him and his son in an encounter under the excuse that the wheat crop was being lifted under the orders of the S.S.P. but when asked to show the order, he failed to do so, such act cannot be said to be in discharge of his official duty and would not entitle him to the protection of Section 197 (1) Cr.P.C. 

For the aforesaid reasons I find absolutely no merit in the application and the same is accordingly rejected. 

Dated: 14th, May, 2015