Manju Goel, J.
1. This criminal revision petition is directed against the order dated 8.8.2002 passed by Shri S.S. Rathi, M.M., New Delhi summoning the petitioners in case FIR No.154/2000 of police station Kapashera under Sections 302/201/34 of Indian Penal Code. This petition was heard and disposed of vide order dated 22.1.2004 on the observations that the judgment under challenge ' suffers from no infirmity, perversity, impropriety or jurisdictional error'. The order dated 22.1.2004 was challenged before the Supreme Court in Civil Appeal No.1050-1051/2004 The Hon'ble Supreme Court observed in its order dated 17.9.2004 that the matter required deeper consideration and, thereforee, set aside the order and remanded the present criminal revision petition for fresh decision. The petition, thereforee, was heard again.
2. The order of the learned M.M. Dated 8.8.2002 appears to have been passed suo moto. The petitioners are two police officers. The charge-sheet was put up before the Magistrate for the purpose of taking cognizance of the offence mentioned therein. The learned Magistrate found that while three accused Jaswant, Dharambir and Rajesh had been charge-sheeted no action was proposed against two petitioners, who are police officers, who according to the observations of the Magistrate made 'deliberate attempt to sabotage and spoil the evidence and investigation'. It was found that on receipt of DD No.14A through the PCR on 3.1.2000 about a man committing suicide near chaupal in village Pochanpur, ASI Narain Singh along with a constable was sent to the spot. Thereafter SI Manoj Kumar, petitioner No.2, and SI V.N. Sammi along with Inspector Rajender Singh, petitioner No.1, arrived at the spot. The three officers, namely, petitioner Nos.1 and 2 and ASI Narain Singh came back to the police station at 12.30 apparently after completing the inquest proceedings under Section 174 of the Code of Criminal Procedure (in short `Code'). The learned Magistrate found that according to the Punjab Police Rules and various other standing orders SHO and the investigating officer in case of homicide had to voluntarily take various steps during the course of inquest or investigation but in the present case the three police offices had failed in their duty to take those steps. In the impugned order the duties of an investigating officer in a case of death have been enumerated in detail. These duties included drawing up a plan of the scene, examination of the body in order to find any abnormal appearance, taking of finger prints of the deceased person, photographing the body, etc. These instructions are contained in Chapter 25 of Punjab Police Rules, 1934 and Standing Order No.77. The learned Magistrate observed that according to the charge-sheet no crime team was called, no photographer was summoned, no site plan was prepared and the rope with which the deceased was found hanging had not been preserved. It was found that no report as per Punjab Police Rule 25.35 giving specifications about the height and sufficiency of the support, the nature of the rope and the weight of the decease had been sent. The SDM of the area was not asked to visit the spot. Further, it was found that the provisions of Section 174 of the Code had been violated by the failure to send the inquest report to the SDM. It was further observed that the SHO and the Investigating Officer after recording the statement of the accused Dharambir and Yashpal jumped to the conclusion that it was a case of suicide. He also expressed doubt that some statement of the complainant, Poonam, had been manufactured by the petitioners after obtaining her signatures on blank papers. Most importantly the doctor could not give any information as to whether the death was homicidal or suicidal in view of the absence of the last photograph of the deceased and in view of the absence of the ligature material and its knot. What impressed the Magistrate further was that the complainant, Poonam, sister of the deceased, had to file a writ petition when she failed to obtain any justice from the police and after the writ petition was filed the police suo moto registered the FIR on the basis of the complaint of Smt.Poonam, which they had withheld for six months. The Magistrate thus found that the petitioners had committed an offence punishable under Section 201 IPC in so far as they knew or has reason to believe that an offence of murder had been committed and yet they become instrumental in causing disappearance of clinching evidence. Accordingly the three officials, namely, the two petitioners and ASI Narain Singh were summoned under Section 201 IPC.
3. This order is challenged on three main grounds: (1) that the cognizance of the offence was barred by limitation provided by Section 140 of the Delhi Police Act, (2) that the two petitioners are police officers and the offence relates to acts and omissions done in discharge of their official duty and, thereforee, without a valid permission under Section 197 of the Code cognizance against them could not have been taken, and (3) the Magistrate did not have the power to summon another person not named in charge-sheet when the charge-sheet was presented for the purpose of cognizance of a Sessions' triable offence. It is submitted that all that the Magistrate could have done was to commit the case to Sessions without further application of mind.
4. Section 140 of the Delhi Police Act is a special act and puts a special bar to suits and prosecution against police officers. The same reads as under:
'140. Bar to suits and prosecutions ' (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrong doer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.'
5. The question that can be raised is whether the acts constituting the offence under Section 201 IPC as found by the Magistrate were done in the colour of duty or authority or in excess of any such duty or authority. If it is so, the prosecution has to be instituted within three months from the date on which the act was committed. Admittedly, the FIR itself was recorded very late and by the time the impugned order was passed on 8.8.2002, 19 months had elapsed from the date of the offence. In Prof. Sumerhand v. Union of India and Ors.; : 1993CriLJ3531 , the Hon'ble Supreme Court has explained what is an act done under the colour of duty or authority. In doing so it followed its earlier decision in the case of Verupaxappa Veerappa Kadampur v. State of Mysore : AIR1963SC849 . In the judgment of Verupaxappa Veerappa Kadampur (Supra), the expression under colour of duty has been explained in the following language:
' The expression 'under colour of something' or 'under colour of duty', or 'under colour of office', is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collections for a charity. Whether or not when the act bears the true colour of the officer duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right. It is reasonable to think that the legislature used the words 'under colour' in Section 161 to include this sense.'
6. It was further clarified in the case of Sumer Chand (Supra) that it is only when the act is in violation of the duty, the question of the act being done under colour of duty arises and, thereforee, the fact that the act has been done under gross violation of the duty can be no reason to think that the act has not been done under colour of the duty.
7. Most importantly in the case of Verupaxappa Veerappa Kadampur (Supra), the Supreme Court said that when an act is in dereliction of the duty, the same shall also be an act under colour of duty. In para 10 of that judgment, the Supreme Court said as under:
'10. It appears to us that the words 'under colour of duty' have been used in S. 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false Panchnama or a false reported is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary 'as a veil to his falsehood.' The acts thus done in dereliction of his duty must be held to have been done 'under colour of the duty'.
8. In the case of State of Maharashtra v. Narhar Rao : 1966CriLJ1495 , it was held that a Head Constable who accepted the bribe for weakening the prosecution case, had not done the act under the colour of the office. The reason for so holding was that the alleged acceptance of bribe by the accused officer was not an act which could be said to have been done under the colour of office or done in excess of duty or authority within the meaning of Section 161 of the Bombay Police Act.
The distinction between the case of Narhar Rao (Supra) and the one in Verupaxappa Veerappa Kadampur (Supra) is that in Verupaxappa Veerappa Kadampur (Supra) it was duty of the Police Constable to prepare a panchnama and the act of preparation of false panchnama was done under the colour of his office and there was a nexus between the act complained of and the statutory duty that the police Head Constable was to perform whereas there was no such nexus between the official duty and the acceptance of bribe. or the same reason in the case of State of Maharashtra v. Atma Ram, AIR 1966 SC 1786, the acts of a police officer of assault and confinement of a suspect in police custody were not held to be acts done under colour of duty since the said acts had no reasonable connection or nexus with the duty or authority imposed upon the police officer under the Bombay Police Act or any other enactment conferring the powers on the police under the colour of which this act was done and that such acts fell completely outside the scope and duties of the respondents police officers and they were not entitled to protection conferred by Section 161 of the Bombay Police Act.
9. After considering all the afore-mentioned judgments, the Supreme Court in the case of Sumer Chand (Supra) found that the respondent No.4 who was in charge of Mayapuri police post and who allegedly had registered a false, vexatious and malicious report against the appellant and respondent No.3, who was station house officer of police station Naraina, who had allegedly filed the challan in court against the appellant and other accused on the basis of the said report, had done acts under colour of duty within the meaning of Section 140 of Delhi Police Act.
10. In P.P. Unnikrishnan and Anr. v. Puttiyottil Alikutty and Anr. reported as 2000 7 AD SC 134, when two police men kept the complainant in lock up for a few days without producing them before the Magistrate and gave severe fist and lathi blows, their acts were not covered by the provisions of Section 64(3) of the Kerala Police Act which provided for a similar limitation of 6 months.
11. On applying these principles here, there can be no two opinions that the acts allegedly done by the petitioners were acts done under the colour of duty. What the petitioners have done in the investigation of the case had direct nexus with the duty assigned to them by virtue of their being police officers assigned with the investigation of the case. The learned Magistrate has found that what they did in discharge of their duty was not enough. In fact, he has found these petitioners to have committed dereliction of duty in such manner as to make evidence to disappear constituting an offence under Section 201 IPC. The Supreme Court has sufficiently explained that if the alleged offence is an act committed in dereliction of duty, the same also will be an act under the colour of duty. In that case preparing of false panchnama or false report was found to have been an act done under the colour of duty. They could not be deprived of the protection of the particular Police Act applicable on the argument that their duty did not require them to prepare a false panchnama.
12. The learned counsel appearing for the state has vehemently argued that it was no part of the duty of the petitioners to cause disappearance of evidence and, thereforee, they cannot seek protection of Section 140 of the Delhi Police Act. The catena of Supreme Court decisions on this point clearly leads to the conclusion that the acts and omissions of the petitioners which have lent them into the criminal case has a clear direct nexus with the duty because it was only in performance of the duty that such acts and omissions had taken place. This is not a case in which a police officer was caught taking a bribe because taking a bribe was not a part of his duty. The petitioners went to the spot and conducted the inquest or investigation. It was during this inquest and investigation that the alleged offence of Section 201 has been committed. Such act is primarily committed in dereliction of duty and not by an act outside the ambit of their duty. I, thereforee, have absolutely no hesitation to hold that the accompanied of which constituted the offence under Section 201 of IPC had been done under the colour of duty and, thereforee, the limitation prescribed under Section 140 of the Delhi Police Act will apply. In this view, cognizance of the offence as against the petitioners was barred by limitation on the date the impugned order of the Magistrate was passed.
13. This takes us to the second question of protection under Section 197 of the Code. The relevant part of section 197 reads as under:
' 197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.'
14. It is not disputed that the petitioners are such public servants who cannot be removed from office except with the sanction of the Government. For their prosecution for an act purported to be an act in the discharge of their official duty, action cannot be taken except with the previous sanction of the State Government. The question to be examined, thereforee, is whether the act was done in discharge of the official duty of the petitioners. As explained above, the act was not only done under the colour of duty. In fact, the act was done directly in discharge of official duty.
15. In Abdul Wahab Ansari v. State of Bihar and Anr. : 2000CriLJ4631 , a Circle Inspector under orders to use police force to remove encroachment directed opening of fire when some miscreants hurled stones and situation became out of control. The Supreme Court found that the act of opening fire was in exercise of official duty and that cognizance of the offences should not be taken without prior sanction of the competent authority. In the case of Gauri Shankar Prasad v. State of Bihar and Anr., : 2000CriLJ4031 , a Sub-Divisional Officer while carrying out the operation of removing of public encroachment was alleged to have entered the chamber of the complainant, abused him and taken him and his wife to police station was held to have acted with reasonable nexus with official duty necessitating sanction to prosecute.
16. The test for determining whether the provisions of Section 197 of the Code would come to the aid of an accused in a given case has been amply explained by the Supreme Court in the case of P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation, 2001 2 AD SC 581. After examining a number of decisions on this aspect the conclusion arrived at was as under:
' Thus from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required.'
17. This judgment was referred to in the subsequent judgment of the Supreme Court in the case of Raj Kishor Roy v. Kamleshwar Pandey and Anr., 2002 (3) Crimes 67 (SC). In the present case it has to be said, though at the cost of repetition, that the alleged offence has direct nexus with the duty assigned and, thereforee, has to be deemed to be an act purporting to be in discharge of the official duty. thereforee, no court can take cognizance of the offence except with the previous sanction of the Government. In this view of the matter also, the learned Magistrate was wrong in taking cognizance of the offence against the petitioners as there was no sanction to prosecute them under Sections 197 of the Code.
18. The third question to be decided is whether the Magistrate could take cognizance against the petitioners who had not been named as accused in the police report and the case was triable by the court of Sessions. The initiation of proceedings in a criminal case begins with cognizance of offence by Magistrates. Section 190 of the Code gives power to the Magistrate to take cognizance of the offence. Cognizance can be taken (a) upon receiving a complaint of facts which constitute such offences; (b) upon a police report of such acts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The Magistrate takes cognizance of all offence, whether triable by the Magistrate or by the court of Sessions. In other words, the manner in which the Magistrate takes cognizance is the same whether the offence is one triable by the Magistrate or is one triable by the court of Sessions. Undoubtedly, an offence under Section 302 IPC was made out in the police report. The offence of which cognizance is taken is one under Section 201 IPC. If the Magistrate could take cognizance of the offence under Section 302 IPC on the police report it is difficult to say that the Magistrate could not have taken cognizance of the offence under Section 201 IPC. When the Magistrate read the charge-sheet, he found that the petitioners (police officers) had not performed their duties in the manner they should have according to the rules. The same police report on which cognizance of the offence under Section 302 IPC was taken provided sufficient material for taking cognizance of the offence under Section 201 IPC. It is difficult to accept the proposition that the Magistrate could not have taken cognizance against the petitioners because it was a Session triable case.
19. Section 209 of the Code requires that where the offence is triable by the court of Sessions, the Magistrate shall commit the case to Sessions after complying with the provisions of Section 207 and 208. In doing so, the Magistrate is required to remand the accused, send the record of the case along with documents and articles, if any, to the court of Sessions and to notify the Public Prosecutor of the commitment of the case to the court of Sessions. The stage of Section 209 of the Code comes after the stage of Section 190 of the Code. I could not find anything directly in the Code which debars a Magistrate from taking cognizance of an offence on the basis of the same police report against a person who has not been named as an accused but whose name can be found in the police report.
20. In the case of Rajender Prasad v. Bashir and Ors. reported as 2002 SCC 28, a very similar situation arose. The respondents 1 to 9 were challaned for trial under various sections but the charge under Section 395 IPC had not been added and similarly names of four persons, respondents 10 to 13, had been wrongly dropped. The appellant who had lodged the complaint with the police asked for inclusion of charge under Section 395 IPC and also the name of those four respondents. The Magistrate allowed the application and committed the case to the court of Sessions. The Magistrate as well as Additional Sessions Judge issued the non-bailable warrants against all the accused persons on inclusion of the Section 395 in the matter. In revision the High Court observed that issuance of NBWs was not proper. Subsequently, in a petition under Section 482 Cr.P.C., the High Court held that the Magistrate being the court of committal had no power to add four persons as accused persons without adopting the procedures prescribed under Section 203 of the Code and allowed the petition of the respondents and set aside the order by which the cognizance of the offence under Section 395 had been taken. The High Court also remanded the case back to the Magistrate to hold a inquiry as per the provisions of Section 203 of the Act and to pass necessary orders if an offence under Section 395 was found to have been made out. This order was the subject matter of the appeal before the Supreme Court. On the point in question before this court the Supreme Court made the following observations:
'11. Under this section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused person, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This section refers back to Section 190, as is evident from the words 'instituted on a police report' used in Section 190 of the Code. While dealing with the scope of Section 190 this Court in Raghubans Dubey v. State of Bihar held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.'
21. For arriving at this conclusion the Supreme Court has taken support from the opinion expressed by the Supreme Court in the case of Raghubans Dubey v. State of Bihar, : 1967CriLJ1081 , which was subsequently followed in SWIL Ltd. v. State of Delhi, : 2001CriLJ4173 . In Raghubans Dubey (Supra), the Supreme Court observed:
'In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.'
22. In the present context it will be worthwhile to refer to the judgment of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka and Anr., in which the Supreme Court held that the Magistrate could take cognizance of an offence even when the police report is to the effect that no case was made out and that such a cognizance can be taken by exercise of power under Section 191 by ignoring the conclusion arrived at by the Investigating Officer and by independently applying his mind to the facts emerging from the investigation. It was further held that the Magistrate was not bound in such a situation to follow the procedure of enquiry laid down in Section 200 and 202 of the Code.
23. As against these judgments, the counsel for the petitioner heavily relies upon the judgment of the Supreme Court in the case of Raj Kishore Prasad v. State of Bihar, : 1996CriLJ2523 . Having carefully gone through the judgment it appears to me that a though there is an apparent contradiction between this judgment and the others cited above, in fact, no contradictory view has actually been expressed in this judgment. The question whether a Magistrate could take cognizance of the offence which appears from the police report, although the police report does not call upon the Magistrate to take cognizance of those offences, was not the subject matter of discussion in that case. It was found that at the stage of committal the Magistrate did not have any power under Section 319 of the Code which could be exercised by the court of Sessions in a Sessions triable case only after the name of some other person surfaced during trial. In that case the first informant made an application requiring the Magistrate to exercise power to summon the appellant so as to send him to stand trial alongside the accused sent up by the police before the court of Sessions. This petition was dismissed by the Chief Judicial Magistrate. The court of Sessions allowed the revision petition and desired of the Chief Judicial Magistrate for issuance of warrant of arrest of the appellant to face trial. When approached by the persons so ordered to summon, the High Court dismissed the petition under Section 482 of the Code. It was then submitted before the Supreme Court that during the stage of Section 209 of the Code, the Chief Judicial Magistrate had no power which could be used under Section 319 of the Code or under any other provision of the Code.
24. Thus the point that arose for consideration was not whether the Magistrate could have taken cognizance in exercise of powers under Section 190 of the Code against those not sent up for trial and of offences not named in the police report. The Magistrate in this case had already declined to take cognizance of some offence against another person when the complainant make such a prayer. thereforee, the stage of Section 190 of the Code was over. The only thing then left to be done by the Magistrate was to commit the case to Sessions. The Supreme Court has held that at this stage the Magistrate was only required to submit the papers to the court of Sessions. The Supreme Court found that the order of court of Sessions requiring the Magistrate to arrest and commit the appellant along with accused proposed to be committed to stand trial before him was patently illegal and beyond jurisdiction. Eventually, the Supreme Court directed the Magistrate to perform its function under Section 209 of the Code but left it open to the court of Sessions to exercise the power under Section 319 at the appropriate stage.
25. In view of above discussion, I am of the considered opinion that the Magistrate had the power to summon the petitioners for the offence under Section 201 of the Indian Penal Code, although in view of the bar of Section 197 of the Code and Section 140 of the Delhi Police Act, the petitioners enjoyed a protection and, thereforee, could not have been summoned. The revision petition petition is allowed and the impugned order is set aside.