ORDER
1. The Inspector of Police, H and B Squad, Corps of Detectives, had filed a charge-sheet against several accused persons including the respondents 1 to 3 on the complaint of this petitioner in Cri. No. 138 of 1992 alleging that all the accused persons were responsible for the custodial death of her son Kamalakar and causing disappearance of evidence, punishable under Sections 120B, 365, 368, 465, 506, 342, 344, 302, 201, 107, 119, 202 read with Section 511 and Section 217 of the IPC. These respondents are accused Nos. 16, 17 and 18. Respondent 1 is the Circle Inspector of Police. Respondent 2 is the Superintendent of Police and respondent 3 is the DIG of Police, Gulbarga. After the case was committed, the learned Sessions Judge heard the arguments on both sides and held that the charge came to be filed without obtaining sanction to prosecute them as required under Section 197 of the Cr. P.C. and therefore, they were discharged. Being aggrieved by that order dated 18-10-1997 passed by the Principal Sessions Judge, Gulbarga, in SC No. 105 of 1992 discharging these respondents, the complainant/petitioner herein preferred this petition.
2. Heard the learned Counsel Sri S. Mahesh for the petitioner and the learned Counsel Sri B. Billappa Associates for respondent 1, Sri C.V. Nagesh, learned Counsel for respondents 2 and 3 and Sri S.S. Koti, Additional State Public Prosecutor for respondent 4.
3. The principal argument was submitted by Sri C.V. Nagesh and the same has been adopted by the other Counsels and they also submitted their further arguments. At the very outset Sri C.V. Nagesh contended that this petition is filed by the complainant and not by the State and the charge-sheet was filed by the police. Therefore, this petition is liable to be dismissed in limine.
4. In support of his arguments he placed reliance on a decision rendered by the Supreme Court in Kishan Swaroop v Government of NCT of Delhi, wherein the synopsis reads as follows.-
'Criminal Procedure Code (2 of 1974), Sections 378 and 401 --Appeal/revision against acquittal -- Locus standi -- Private party has no right to file in a case instituted upon a police report --Formal permission of Public Prosecutor would not entitle him to such right'.
From a reading of this synopsis it may appear that a private party has no locus standi to file an appeal or revision against an order passed in a case instituted on a police report but from the reading of paras 3 and 4 it is clear that the revision petition is maintainable. To clarify the doubt it is necessary to refer to paras 3 and 4 which read as follows:
'From the impugned judgment we find that the High Court has referred to the provisions of Sections 378 and 210 of the Code of Criminal Procedure to conclude that it was the primary responsibility of the State to file appeal/revision and therefore, no criminal revision in respect of an order which is appealable at the instance of the State could/should be entertained without the requisite permission of the Public Prosecutor. In drawing the above inference the High Court failed to notice that if the Code of Criminal Procedure did not empower a private party to file a revision petition against an order of acquittal passed in a case instituted on a police report, a formal permission of the Public Prosecutor would not entitle him to do so. To put it differently, a Public Prosecutor cannot vest a private party with a right which it has not got under the Code'.
In dealing with the revision powers of the High Court vis-a-vis the right of a private party to move in revision against an order of acquittal passed in a case instituted upon a police report this Court observed in K. Chinnaswamy Reddy v State of Andhra Pradesh, (on which judgment the High Court relied) as under (at p. 1791 of AIR):
'It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in theprocedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice'.
From the above decision, it is abundantly clear that a private party has locus standi to file a revision in a case instituted upon a police report but the High Court can exercise jurisdiction only in exceptional cases as explained above. Therefore, the argument of the learned Counsel that the revision petition filed by the petitioner who is a private party is not maintainable is liable to be rejected. However, this Court should find out as to whether there is a glaring defect in the procedure or there is a manifest error in a point of law leading to the flagrant miscarriage of justice.
5. The facts relevant for the disposal of this petition to put it succinctly as against the respondents are that the 1st respondent Girijapathy having come to know about the death of Kamalakar in the police lock-up went to the official residence of the 2nd respondent K. Srinivas, Additional Superintendent of Police and informed him about the death of Kamalakar. Instead of taking legal action, the 2nd respondent accompanied by Prakash Murgod and the 1st respondent along with C.W. 85, Dhansingh went to A-18 Guruprasad, former DIG who was having dinner at the official residence of the Chief Secretary, Zilla Parishad C.W. 105 and brought him outside the residence of C.W. 105 and informed him about the death of Kamalakar on account of torture meted out to him. Therefore, Girijapathy, Srinivas and D.V. Guruprasad being public servants who were responsible for the prevention of commission of offences, failed to prevent the disappearance of evidence in allowing Prakash Murgod to dispose off the dead body of the deceased Kamalakar. Thus, they were charged with the offence punishable under Sections 119, 217 and 120B of the IPC. However, there is no dispute that these respondents were public servants and they have failed to take legal action against Prakash Murgod from either committing the murder in the lock-up or causing disappearance of the body near the Maharashtra border and thereby they committed these offences. In other words, the allegations against them are that they failed and neglected to take prompt action being public servants. In view of that, it is now necessary to refer to Sections 119 and 217 of the IPC. Section 119 opens with words: 'Public servant concealing design to commit offence which is his duty to prevent' and Section 217 also opens with the words 'Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture'. So from the reading of these two sections, the main ingredient is that the officer must be a public servant and admittedly these 3 respondents were working as police officers as mentioned above and those offences are committed during the course of their official duty. Under those circumstances, the learned Sessions Judge by his order dated 18-10-1997 allowed their application and discharged these respondents holding that sanction is not obtained and therefore, they are entitled for protection under Section 197.
6. The learned Counsel for the petitioner has vehemently argued that no sanction is necessary to prosecute these respondents. Therefore, theorder of the Court below is totally misconceived and liable to be set aside. He further contended that the offence alleged against them does not come under the colour of office. Therefore, there was no need to obtain sanction under Section 197 of the Criminal Procedure Code to prosecute them, Further; the Court should not have discharged them for want of sanction as this question should be considered from stage to stage. In support of these arguments, he placed reliance on the following decisions:
In Ninge Gowda and Another v S. Madhureswar, it is held by this Court that the need for sanction need not be considered as soon as the complaint is lodged. In Prabhakar V. Sinari v Shanker Anant Verlekar , the Deputy Superintendent of Police threatened the complainant that he would arrest him if he interfered with the hawkers and asking hawkers to enter upon land and the complainant also threatened that he would be slapped. The prosecution was launched against the Superintendent of Police on various charges. Under those circumstances their Lordships have held that no sanction was required. In State of Maharashtra v Atma Ram and Others, it is held that protection from the alleged acts of beating and confinement done by police officer sanction is not necessary because there is no connection between such acts and duties imposed on an officer. Under such circumstances, the police officer is not entitled for protection under Sections 161(1) and 64(b) of Bombay Police Act. In Shambhoo Nath Misra v State of Uttar Pradesh and Others, while considering Section 197(1) of the Cr. P.C. it is held that fabrication of records and misappropriation of public funds by public servant is not the official duty and sanction for his prosecution for alleged offence not necessary.
7. From the above discussion, it is clear that sanction is required if the alleged offence is committed by the public servant while discharging his official duties as public officer. As indicated above, the allegations against these respondents are that they failed to take prompt action as public servants being police officers and did not prevent A-12 Murgod from causing disappearance of the evidence. Therefore, it is clear that they have failed to perform their official duties and it is also clear from Sections 32 and 36 of the IPC and even non-performance of duty also where it is required by law, is an offence. It is clear from Section 32 that act is not confined to its ordinary meaning of positive conduct of doing something but includes also illegal omissions. The words 'acting or purporting to act' under Section 197(4) of the Cr. P.C. will include illegal omission by virtue of Section 2(y) of the Criminal Procedure Code and Section 32 of the Indian Penal Code. When the law imposes on a person a duty to act, his illegal omission to act renders him liable for punishment. Similarly, Section 36 follows as a corollary from Section 32. The legal consequences of an 'act' and of an 'omission' being the same, if an act is committed partly by an act and partly by an omission, the consequences will be the same as if the offence was committed by an 'act' or by an 'omission' alone. This section shows that when an offence is the effect partly of an act or partly of an omission, it is one offence only. Therefore, as indicated above, the non-performance of the officers viz., respondents is also an offence. But their act is protected under Section 197 as they failed to perform their duty as public servants. To substantiate this, the learned Counsel for the respondents placed reliance on a decision rendered in S.B. Hossain v Emperor, wherein it is held that even to proceed against an officer under Section 217 of the IPC sanction is necessary for prosecution for offence under Section 217. Proceedings commenced without first obtaining sanction are null and void and are not validated by subsequent sanction.
8. This Court has held in N. Shiva Kumar and Another v N. Ramanna Adyanthaya, that while considering the question of sanction required to proceed against the police officer for the offence under Sections 166 and 170 held that the petitioners/police officers alleged to have demanded money from complainant party for showing official favour and also made false entries in register to suppress the truth for not producing the accused before Court for 24 hours thus records were manipulated and the son of the complainant was detained in police custody. Petitioners working as police officers are public servants and alleged offences committed during the course of discharging their official duties, sanction is mandatory requirement to prosecute the petitioners. With reference to Sections 119 and 217 of the IPC it is clear that the allegations made against these respondents are only that being public officers they failed to perform their duties. Therefore, to prosecute them, sanction under the Criminal Procedure Code is a mandatory requirement.
9. There is no dispute that no sanction was obtained before proceeding against these respondents. This is clear from the order passed by this Court in the case of M.K. Srivatsava v State of Karnataka and Another . The petitioner in that case was one of the accused persons along with these respondents. He has questioned the order passed by the Court below holding that there are materials to frame charge against him. He questioned that order on the ground that sanction was not obtained from the Government to prosecute him as he was the Deputy Inspector General of Police, Gulbarga at the relevant time. This Court has observed while setting aside that order and discharging him at para 23 as follows:
'One unseemly instance which is noticed in this case is that COD chose to submit the charge-sheet before the JurisdictionalMagistrate before the Government has taken a decision on the question of sanction. The correspondence between the Home Secretary and the IGP, COD and the opinion of the Home Secretary and the Advocate-General has any indication, the Government was of the clear opinion that since there was no material against the petitioner, there was no necessity to prosecute him. Before the opinion was taken by Government, the prosecuting agency laid the charge-sheet and cognizance was taken by the concerned Court. These facts are brought in only to highlight the speed with which the prosecution agency submitted the charge-sheet without waiting for Government sanction, more so, when the investigating agency viz., COD sought the sanction of the Government''.
In this case also sanction was not obtained and the observation made by this Court clearly applies to those respondents also. Therefore, it is clear that the COD has filed the charge-sheet without even waiting for the sanction from the Government to prosecute these respondents which is a mandatory requirement more so, for the offence for which these respondents were charge-sheeted.
10. The learned Counsel for the 1st respondent further contended that no offence is made out as against this respondent in view of the fact that admittedly this respondent has reported the matter to his superiors. With that his responsibility ceases as C.I. of police. To substantiate his argument, he has drawn my attention to Mysore Police Manual under Chapter III under the heading 'Inquiry in Cases of Death or Injury in Police Custody'. Section 193(e) reads:
'When information of the alleged commission of any such offence is received by a Police Officer below the rank of Assistant or Deputy Superintendent of Police, he should not make any regular investigation himself but should at once report the case to the Assistant/Deputy Superintendent of Police, who should proceed as laid down in (b) above'.
Therefore, no case is made out as far as the 1st respondent is concerned as admittedly he reported the matter to his superior officers respondents 2 and 3.
11. From the above discussion it is abundantly clear that there was direct connection between the acts and duties imposed on these respondents. Under such circumstances, these respondents were entitled for protection under Section 197 of the Cr. P.C. For the foregoing reasons, I hold that there is no reason to interfere with the order passed by the learned Court below in discharging these respondents for want of sanction under Section 197 of the Cr. P.C.
Accordingly, the petition is dismissed.