ORDER
Arunabha Basu, J.
1. The revislonal application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed to quash proceeding in connection with G.R Case No. 390 of 2004 arising out of R.C. Case No. 2/S/05-Kol dated 18-3-2005 under Sections 302/34 of the Indian Penal Code, now pending before the Court of learned Chief Judicial Magistrate, Paschim Midnapore.
2. Petitioner herein is arrayed as an accused in connection with the above noted case where officer of Central Bureau of Investigation on completion of investigation submitted charge-sheet under Sections 302/201/218/120B of the Indian Penal Code.
3. Opposite party No. 3 lodged a written information before the officer-in-charge of the Kharagpur (Town) Police Station alleging inter alia that in the night of 7-7-2004, 5 to 7 police personnel came to the house of defacto complainant and they took away the husband of defacto complainant namely Soumendu Mondal (since deceased), after intimating that the husband of the defacto complainant is wanted in connection with some allegations.
4. Thereafter, on 8-7-2004 the defacto complainant was intimated that her husband while trying to escape jumped from the police vehicle at Gokulpur on Bombay road and as a result of which the husband of the defacto complainant sustained injuries on his person. The husband of the defacto complainant was removed to Kharagpur hospital for medical treatment but he expired.
5. Initially a case being Kharagpur (Town) Police Case No. 183 dated 13-7-2004 was registered under Sections 302/34 of the Indian Penal Code but ultimately investigation was taken up by Central Bureau of Investigation, consequent to the Order passed by the learned single Judge of this Hon'ble Court in connection with W.P. No. 372(W) of 2005. On conclusion of investigation charge-sheet under the aforesaid provisions of law was submitted against the petitioners along with others.
6. The main contention of the petitioner that he being an officer appointed by the order of Governor is a public servant within the meaning of Section 197 of the Code of Criminal Procedure. No sanction was obtained by the investigating agency from appropriate Government before submitting charge-sheet against the petitioner. If is further contended that learned Magistrate before whom chargesheet was submitted on completion of investigation took cognizance for the offence by his order dated 15-6-2006.
7. It is further contention of the petitioner that whatever act is performed by the petitioner herein is in discharge of his official duty and as such without obtaining necessary sanction under Section 197 of the Code of Criminal Procedure, the prosecution against the petitioner as initiated on the basis of charge-sheet would not be maintainable.
8. Mr. Sekhar Basu, learned advocate appearing for the petitioner submitted that so far as the present case is concerned, the charge-sheet specifically disclosed the alleged overt act on the part of the petitioner for commission of the offence punishable under various provision of Indian Penal Code including the offence of committing culpable homicide amounting to murder punishable under Section 302 of the Indian Penal Code, relates to his official act.
9. The specific attention of this Court is drawn to the recital in the charge-sheet which is set out below:
1. Investigation has revealed that Soumendu Mondal was shown arrested by S.I., Apurba Nag under the supervision of S.D.P.O., Jayanta Mukherjee (petitioner herein) in connection with three cases of Kharagpur Police Station namely Case No. 140/2Q03 dated 26-6-2003 under Section 395 Indian Penal Code and 25/27 Arms Act, Case No. 167/2004 dated 16-6-2004 under Section 395 Indian Penal Code and 25/27 Arms Act, and Case No. 182/2004 dated 2-7-2004 under Section 394 Indian Penal Code and 25/27 Arms Act.
2. At para 39 of the charge-sheet so far a the petitioner Jayanta Mukherjee, who is arrayed as A-2 in the charge-sheet, the following recital is made:
1. He led the police party for arresting Soumendu alias Jhuma Mandal.
2. He had visited Kharagpur local Police Station on 7-7-2004 evening and interrogated Soumendu.
3. He led the police party for conducting raid with Soumendu on 7-7-2004 evening.
4. He called S.I., Akinchan Pal and show visited, Nlrmala Nursing Home with injured Soumendu.
10. It is the contention of the learned advocate for the petitioner that the alleged specific overt act which according to the prosecution shows the involvement of the petitioner herein in connection with the offence for which charge-sheet is submitted by Central Bureau of Investigation, leaves no room for doubt that all the act as alleged by the prosecution was performed by the petitioner herein in discharge of his official duty and as such without obtaining necessary sanction from the State Government in terms of provision under Section 197 of the Code of Criminal Procedure, the petitioner herein cannot be prosecuted or tried in connection with the aforementioned case.
11. It is further contended by learned advocate for the petitioner that annexure P-2 which is a notification dated 3-2-1999 clearly shows that petitioner was initially appointed as Deputy Superintendent of Police in the cadre of W.B.C.S. (Exe.) etc. Grpup-B service by the order of Governor. The petitioner herein is removable from office by the order of the State Government and as such he is a public servant within the meaning of Section 197 of the Code of Criminal Procedure.
12. It is further contended by learned advocate for the petitioner that so far as the petitioner is concerned, charge-sheet is submitted against him for commission of offence punishable under Section 120B/302/201/218 of the Indian Penal Code and the offence under Section 218 of the Indian Penal Code deals with public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture, then the nature of offence clearly indicates that the same can only be committed by a public servant and as the charge-sheet indicates that incorrect official records were prepared by the petitioner herein, then the prosecution must obtain necessary sanction in term of Section 197 of the Code of Criminal Procedure. .
13. In support of his contention; learned advocate for the petitioner has referred to the following decisions:
1. Shree Kantiah Ramayya Munipalli v. State of Bombay reported in : AIR 1955 SC 287 : 1955 Cri LJ 865.
2. Sankaran Moitra v. Sadhna Das reported in : (2006) 4 SCC 584 : AIR 2006 SC 1599.
3. Rajiv Mishra, IPC v. Bivas Hazra in connection with CRR No. 206 of 2005 with C.R.A.N. 370 of 2005, passed by; learned single Judge of this Court.
4. Anjani Kumar v. State of Bihar reported in : 2008 (3) AICLR 169 : 2008 Cri LJ 2558 (SC).
5. P.K. Choudhury v. Commander, 48 BRTF (GREF) reported in : 2008 AIR SC 1937.
14. In Shree Kantiah Ramayya Munipalli v. State of Bombay : 1955 Cri LJ 865 (supra), three-Judge Bench of Hon'ble Supreme Court explained the scope of Section 197 of the Code of Criminal Procedure. It will be appropriate to refer to the observation of Hon'ble Supreme Court at para 18, which is set out blow:
18. Now it is obvious that if Section 197, Cr. P.C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is - then any public servant...,....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...' have therefore first to concentrate on the 'offence'.
15. It will be appropriate to reproduce the decision of Hon'ble Supreme Court in the aforementioned case at para 19, which appears to be very relevant for the purpose of present discussion:
19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. The present case, the elements alleged against the accused 2 are, first, that there was on 'entrustment' and/or 'dominion; second, that the entrustment and/or dominion was 'in his capacity as a public servant', third, that there was a 'disposal' and fourth, that the disposal was 'dishonest', it is evident that the entrustment and/or dominion here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal. Therefore; whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would He in the intention with which it has done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.
16. In Sankaran Moltra v. Sadhna Das : AIR 2006 SC 1599 (supra), the three Judges Bench of Hon'ble Supreme Court considered the scope of Section 197 of the Code of Criminal Procedure and the majority view of the Hon'ble Supreme Court in connection with application of Section 197 of the Code of Criminal Procedure is set out below:
The complainant argued that want of sanction under Section 197(1), Cr. P.C. did not affect the Jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. This submission cannot be accepted. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of the Supreme Court, clearly indicate that a prosecution hit by that provision cannot be launched without the contemplated sanction. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. One cannot therefore accede to the request to postpone a decision on this question. Postponing a decision on the applicability or otherwise of Section 197(1) Cr. P.C. can only lead to the proceedings being dragged on the trial Court and a decision by the Supreme Court, here and now, would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind.
Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police, officer which led to the offence complained of. That it was the duty of election to the State Assembly; that the appellant was in uniform: that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197(1), Cr. P.C. But, as can be seen from the facts disclosed in the counter-affidavit filed on behalf of the State based on the entries in the general diary of the police station concerned, it emerges that on the election day information was received in the police station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties were imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the officer-in-charge who was stationed at the spot and thereafter a lathi-charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for ill-treatment and he was beaten up by a police constable at the instance of the appellant and the officer in charge of the police station and at their behest. If that complaint were true it will certainly make the action an offence, leading to further consequences. It is also true as pointed out by the complainant that the entries in the general diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197, Cr. P.C.
17. In Rajiv Mishra, IPC v. Bivas Hazra (supra) learned Judge of this Court in the fact situation of the case and after recording to the decision of Hon'ble Supreme Court in Sankaran Moitra v. Sadhna Das quashed the proceeding on the ground of lack of sanction in terms of provision under Section 197 of the Code of Criminal Procedure.
18. In Anjani Kumar v. State of Bihar : 2008 Cri LJ 2558 (supra), two Judges Bench of Hon'ble Supreme Court while considering the scope of Section 197 of the Code of Criminal Procedure summarized the scope of application under Section 197 of the Code of Criminal Procedure. The Hon'ble Supreme Court held that the protection given under Section 197 is to protect responsible public servant against the institution of vexatious criminal proceedings for offences alleged to have been committed by such public servants while they are acting for purporting act as public servants. The Hon'ble Supreme Court further held that such 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 cloak for doing the objectionable act. The Hon'ble Apex Court further held if the omission or neglect on the part of the public servant to commit the act complained of could have made answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, then 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. When the offence complained of is entirely unconnected with the official duty of the public servant then there cannot be any protection under Section 197 of the Code of Criminal Procedure. The Hon'ble Supreme Court considered the use of words 'no' and 'shall' as appearing in Section 197 of the Code of Criminal-Procedure and held as follows:
The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no Court shall take cognizance of such offence except with the previous sanction'. Use of the words, *n0' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
19. The Supreme Court further explained that the use of the expression official duty implies that the act or omission must have been done by the pubic servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
20. In P.K. Choudhury v. Commander, 48 BRTF GREFM : AIR 2008 SC 1937 (supra), Two Judges Bench of Apex Court held that sanction under Section 107 of the Code of Criminal Procedure must be obtained while prosecuting a public servant for commission of offence punishable under Sections 166 and 167 of the Indian Penal Code.
21. The observation of Hon'ble Supreme Court as recorded in para 11 of the aforementioned decision is set out below:
11. Far more important, however, is the question of non-grant of sanction. Appellant admittedly is a public servant. He is said to have misused his position as a public servant. Section 197 of the Code of Criminal Procedure lays down requirements for obtaining an order of sanction from the competent authority, if in committing the offence, a public servant acted or purported to act in discharge of his official duty. As the offences under Section 166 and 167 of the Indian Penal code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was pre-requisite before the learned Judicial Magistrate could issue summons upon the appellant.
22. Mr. Ranjan Roy, learned advocate appearing for Opposite Party. C.B.I, submitted that so far as the present case is concerned, the evidence collected during investigation clearly shows the manner in which the deceased met his unfortunate end at the hand of the accused persons including the petitioner herein. It is contended that in the Post Mortem report as many as 22 injuries could be found on the body of the deceased and as such the plea raised by the accused persons including the petitioner herein that such injury took place on the person of deceased when he tried to escape from the custody of the police personnel after jumping from the police vehicle, must be held to be an afterthought to cover the misdeed of the accused persons including the petitioner herein.
23. It is further contended that during the course of investigation the investigating officer perused the record in connection with three cases registered against the deceased and could gather materials which show prima facie that records in all these three cases are subsequently manufactured in order to shield the accused persons for commission of offence punishable under Section 302 Indian Penal Code.
24. Mr. Roy vehemently contended that the petitioner herein cannot seek protection under Section 197 of the Code of Criminal Procedure as the act complained against the petitioner for commission of offence under Section 302 and other related sections of Indian Penal Code cannot have any nexus with the official act of the petitioner herein.
25. Learned advocate for the C.B.I. has referred to the following decisions of the Supreme Court:
1. Bakhshish Singh Brar v. Smt. Gurmej Kaur reported in : AIR 1988 SC 257 : 1988 Cri LJ 419.
2. P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation reported in : 2001 SCC (Cri) 1234 : 2001 Cri LJ 3505.
3. Pukhraj v. State of Rajasthan reported in : AIR 1973 SC 2591 : 1973 Cri LJ 1795
4. A.K. Singh v. Uttarakhand Jan Morcha reported in : AIR 1999 SC 2193 : 1999 Cri LJ 3500.
5. S.B. Saha v. M.S. Kochar reported in : AIR 1979 SC 1841 : 1979 Cri LJ 1367.
6. P. Arulswami (in both the appeals) v. State of Madras (in both the appeals) reported in : AIR 1967 SC 776 : 1967 Cri LJ 665.
7. Centre for Public Interest Litigation v. Union of India reported in : AIR 2005 SC 4413.
8. D.K. Basu v. State of West Bengal reported in : AIR 1997 SC 610 : 1997 Cri LJ 743.
9. Parkash Singh Badal v. State of Punjab reported in : AIR 2007 SC 1274.
10. K. Kalimuthu v. State reported in : AIR 2005 SC 2257 : 2005 Cri LJ 2190.
11. Chowdhury Parveen Sultana v. State of West Bengal and Criminal Appeal No. 8/2009 arising out of SLP (Cri) No. 2864/2007 reported in : 2009 Cri LJ 1318 (SC).
12. D.V. Venkateswara Rao v. State of A.P. reported in : 1997 Cri LJ 919 (AP).
26. In Bakhshish Singh Brar v. Smt. Gurmej Kaur : 1988 Cri LJ 419 (supra), two-Judge Bench of Hon'ble Supreme Court while considering the scope of Section 197 of the Code of Criminal Procedure observed as follows:
It is necessary to protect the public servants 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. 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 circumstances 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.
27. In this case the Hon'ble Supreme Court refused to interfere with the order of the learned Magistrate and High Court when the Trial Court took the view that only after gathering materials and some evidence, it would be possible to determine whether the accused were acting in discharge of his duty as police officer.
28. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation : 2001 Cri LJ 3505 (supra), three Judges Bench of Hon'ble Apex Court while explaining the scope of Section 197 of the Code of Criminal Procedure held:
No question of sanction can arise under Section 197(1), unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation. 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, and the official status furnished only the occasion or opportunity for the acts, then no sanction would be required.
It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time or conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.
29. In Pukhraj v. State of Rajasthan : 1973 Cri LJ 1795 (supra), the Hon'ble Supreme Court held that mere fact that the accused proposes to raise a defence of the act having purported to be done in exercise of duty will not in itself be sufficient to justify the case being thrown out for want of sanction. Facts subsequently coming to light during the course of the trial may establish the necessity for sanction. Whether or not sanction is necessary will depend from stage to stage.
30. In A.K. Singh v. Uttarakhand Jan Morcha : 1999 Cri LJ 3500 (supra), the Supreme Court disapproved the decision of the High Court where the High Court recorded the finding that no sanction is required. The Supreme Court held that the question as to necessity of sanction is required to be decided by the Sessions Judge if and when raised by the accused. The question as to sanction has to be decided after taking into account various considerations including the fact situation of each case.
31. In S.B. Saha v. M.S. Kochar : 1979 Cri LJ 1367 (supra). Three Judges Bench of Hon'ble Apex Court while explaining the scope of Section 197 of the Code of Criminal Procedure observed at paras 18 and 19 of the decision and the same are reproduced below:
18. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile for 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the officials is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswamy J. in Baijnath v. State of Madhya Pradesh : AIR 1966 SC 220 at p. 222 : 1966 Cri LJ 179 at p. 186 '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 Section 197 of the Criminal Procedure Code will be attracted.
19. In sum the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
32. In P. Arulswami (in both the appeals) v. State of Madras (in both the appeals) : 1967 Cri LJ 665 (supra), the Hon'ble Supreme Court explained the scope of application of Section 197 of the code of Criminal Procedure and the relevant portion of the observation is set out below:
It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 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 Section 197 of the Criminal Procedure Code will be attracted. An office 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.
33. In Center for Public Interest Litigation v. Union of India : AIR 2005 SC 4413 (supra), three Judges Bench of Hon'ble Supreme Court observed that the concept of Section 197 of the Code of Criminal Procedure does not get immediately attracted on institution of complaint case. The Hon'ble Supreme Court observed the following while explaining the scope of Section 197 of the Code of Criminal Procedure:
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. But 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. 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 this 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. Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty.
34. In D.K. Basu v. State of West Bengal : 1997 Cri LJ 743 (supra), the Hon'ble Supreme Court expressed serious concern about the custodial death which according to Hon'ble Supreme Court is one of the worst crime in a civilized society governed by the rule of law. However, in this decision the Hon'ble Court recorded certain guidelines while explaining the scope of Article 21 of the Constitution.
35. In Parkash Singh Badal v. State of Punjab : AIR 2007 SC 1274 (supra), the Hon'ble Supreme Court dealt with the scope of sanction in terms of provision under Section 197 of the Prevention of Corruption Act, 1988.
36. In K. Kalimuthu v. State : 2005 Cri LJ 2190 (supra), the Hon'ble Supreme Court while explaining the scope of Section 197 held that the application of Section 197 of the Code of Criminal Procedure need not necessarily be considered as soon as the complaint is lodged and on the allegations contained therein. The application under Section 197 of the Code of Criminal Procedure may be considered at subsequent stage.
37. In Chowdhury Parveen Sultana v. State of West Bengal : 2009 Cri LJ 1318 (supra), two Judges Bench of Hon'ble Supreme Court after relying on the earlier decision of the Supreme Court in Bhagwan Prasad Srivastava's case observed as follows (para 14):
The direction which has been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava's case : 1970 Cri LJ 1401 (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 (supra), 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.
38. In D.V. Venkateswara Rao v. State of A.P. : 1997 Cri LJ 919 (supra), the learned single Judge of Andnra Pradesh High Court in connection with a case under Section 218 of the Indian Penal Code and in the fact situation of that particular case is of the view that issuing false certificate by the Deputy Civil Surgeon cannot be an official act and as such no sanction under Section 197 of the Code of Criminal Procedure is required.
39. Learned advocate for the Private Opposite Party representing the defacto complainant more or less supports the contention of learned advocate appearing for the CBI and submitted that the fact situation of the case makes it absolutely clear that the acts complained against the petitioner cannot and does not fall within the scope of his official duty and as such he is not entitled to seek protection under Section 197 of the Code of Criminal Procedure.
40. Learned advocate representing the de facto complainant has referred to the following decisions:
1. Dr. Z.U. Ahmad v. State of U.P. reported in : 1998 Cri LJ 2100.
2. P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation, reported in : 2001 C Cr LR (SC) 545 : 2001 Cri LJ 3505.
3. Sankaran Moitra v. Sadhna Das reported in : (2006) 1 C Cr LR (SC) 641 : AIR 2006 SC 1599.
4. P.K. Chowdhury v. Commander, 48 BRTF (GREF) reported in : (2008) 1 C Cr LR (SC) 801 : AIR 2008 SC 1937.
5. Rakesh Kumar Mishra v. State for Bihar reported in : (2006) 1 C Cr LR (SC) 552 : 2006 Cri LJ 808.
41. In Dr. Z. U. Ahmad v. State of U.P. : 1998 Cri LJ 2100 (supra), the learned single Judge of Allahabad High Court while dealing with the scope of Section 197 of the Code of Criminal Procedure was of the view that when a public servant entered into conspiracy to fabricate records, commit fraud or misappropriate etc. no sanction is necessary.
42. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation : 2001 Cri LJ 3505 (supra), this decision is also referred by learned advocate appearing for C.B.I. and as such the same is not required to discuss separately.
43. In Sankaran Moitra v. Sadhna Das : AIR 2006 SC 1599 (supra), this decision is also referred by the learned advocate for the petitioner and as such does not require any separate discussion.
44. In P.K. Chowdhury v. Commander, 48 BRTF (GREF) : AIR 2008 SC 1937 (supra), this decision is also referred to by the learned advocate for the petitioner and as such the same does not require a separate discussion.
45. In Rakesh Kumar Mishra v. State for Bihar : 2006 Cri LJ 808 (supra). The Hon'ble Supreme Court while explaining the scope of Section 197, of the Code of Criminal Procedure as follows:
The section has thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operative has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned.
46. The scope of present discussion is in connection with the application of the provision under Section 197 of the Code of Criminal Procedure in the fact situation of the case. The said Section is set out below:
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 the State, of the State Government.
(Provided that where the alleged offence was committed by a person referred to in Clause (b) during the, period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply if for the expression 'State Government' occurring therein, the expression 'Central Government' were substituted.)
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of Sub-section (2) shall apply to such class or category of the members of the Forces charges with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression 'Central Government' occurring therein, the expression 'State Government' were substituted.
(3A) Notwithstanding anything contained in Sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect: to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
47. The word 'public servant' is defined under Section 21 Indian Penal Code which specified number of persons falling within the ambit of the said definition. But in my view every public servant coming within the purview of Section 21 of the Indian Penal Code, cannot and does not fall within the ambit of Section 197 of the Code of Criminal Procedure. In order to come within the category of public service within the meaning of Section 197 of the Code of Criminal Procedure, the protection is applicable to such class of public servant who is not removable from his office have by or with the sanction of the Government. The word 'Government' means either the State Government or the Central Government as the case may be. Secondly merely because a person is public servant not removable from office save and except by or with the sanction of the Government, the same does not necessarily mean that protection under Section 197 of the Code of Criminal Procedure is available to all such classes of public servant as indicated under Section 197 of the Code. It has to be further seen whether the act complained against has been committed by such public servant while acting or purporting to act in the discharge of his official duty.
48. So far as the present case is concerned, annexure P-2 which is a notification dated 3-2-1999 clearly shows that petitioner herein was appointed by the order of Governor as Deputy Superintendent of Police as he successfully completed the examination conducted by Public Service Commission, West Bengal in connection with W.B.C.S. (Exe.) Commission, 1997. This clearly indicates that petitioner is removable from office by the order of the State Government and as such he falls within the category of public servant within the meaning of Section 197 of the Code of Criminal Procedure.
49. The question now arises is whether the act complained against the petitioner falls within the purview of as acting or purporting to act in the discharge of his official duty.
50. In this connection, I may point out the nature and gravity of the offence cannot be the criteria to decide the issue whether the act as alleged against the petitioner was in discharge of his public duty.
51. It may be pointed Out that the Section 197 took into its fold not only the act of the public servant but also includes the act which the public servant purported to do in discharger of his official duty.
52. According to Concise Oxford English Dictionary the word 'purport' means 'appear or claim to be or do, especially falsely.'
53. So even act which is purported to be done by the public servant in discharge of his duty comes within the purview of the protection granted under Section 197 of the Code of Criminal Procedure.
54. So far as the present case is concerned, learned advocate for the petitioner made strong reliance on the three Judges decision of Supreme Court in Shree Kantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 865 (supra), Hon'ble Justice Vivian Bose (As His Lordship then was) speaking on behalf of the Bench explained that Section 197 cannot be construed too narrowly and such narrow construction can never be applied as because it is not part of the official duty to commit an offence. The Hon'ble Supreme Court explained that act in question may be performed in discharge of duty as well as in dereliction of duty. So far as the present case is concerned, certain factual aspect of the matter is required to be highlighted.
55. It is the complaint against the petitioner herein as disclosed in the charge-sheet submitted by CBI that the deceased was arrested from his residence as he was shown to be involved in connection with three different cases as mentioned above.
56. It may be pointed out that all the three cases respectively case No. 140/2003, 182/2004 and 167/2004 dealt with cognizable offence and as such the police officer in terms of provision under Section 2(c) read with Section 154 of the Code of Criminal Procedure is entitled to arrest a person without warrant and at the same time empower to investigate such offence without any order from the Magistrate.
57. So the initial arrest of the deceased by the police personnel including the petitioner herein must be deemed to be in exercise of their statutory' power vested under law. It is altogether another matter that the officer conducting investigation on behalf of the CBI found several discrepancy in those records in connection with the three cases as mentioned above did not reflect the correct picture and subsequently created to protect the accused persons involved in connection with the murder of the deceased.
58. In the charge-sheet so far as the present case is concerned, the officer submitting the report has highlighted, the specific role played by the petitioner herein in connection with the above mentioned case. It is categorically stated in the charge-sheet, 'investigation has revealed that Soumendu Mandal (deceased) Was shown arrested by S.I. Apurba Nag under the supervision of S.D.P.O., Jayanta Mukherjee in connection with the following three cases.'
59. I have already mentioned the three cases in which the deceased was shown to be arrested relates to commission of cognizable offences and as such it cannot be stated that the arrest of the deceased was not in discharge of official duty by the petitioner. The petitioner herein being a superior officer in the rank of S.D.P.O. was certainly entitled to supervise such arrest and here again the act cannot be said to be beyond the scope of official duty of the petitioner.
60. In the charge-sheet the following specific act has been mentioned. They are as follows:
1. He led the police party for arresting Soumendu (Jhuma) Mondal.
2. He had visited Kharagpore Local Police Station on 7-7-2004 evening and interrogated Soumendu.
3. He led the police party for conducting raid with Soumendu on 7-7-2004.
4. He called S.I., Akinchan Pal and show visited Nirmala Nursing Home with injured Soumendu.
61. All the overt act on the part of the petitioner as highlighted in the charge-sheet does not fall beyond the scope of the authority of petitioner herein in his capacity as S.D.P.O. and as such here again it cannot be said that the act of the petitioner herein has no connection with his official duty. I am in agreement with the view expressed by the learned advocate for the C.B.I. as well as by learned advocate for the respondent that the protection under Section 197 is not applicable when the act complained is completely separate from the official act of the petitioner in his capacity as public servant. Much argument is advanced about the offence of Section 302 stated to have been committed by the petitioner herein along with other. The nature of offence or the gravity of the offence cannot be an important consideration to decide the application of Section 197 in the fact situation of the case. This Court is required to examine and then to decide about the act stated to have been performed by the petitioner herein which have ultimately resulted in the commission of offence as projected by the prosecution.
62. I have already pointed out from the recital in the charger-sheet that the specific act of the petitioner herein as disclosed in the charge-sheet cannot be said to be completely separated either from the official act or purported official act, of the petitioner herein.
63. In S. B. Saha v. M.S. Kochar : 1979 Cri LJ 1367 (supra), the Hon'ble Supreme Court observed that the sine qua non for the applicability of the Section is that the offence be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
64. So, the act which is complained against the petitioner herein cannot be committed by the petitioner save and except in discharge of his official capacity or purported discharge of his official capacity. This fact has to be borne in mind while deciding the issue under Section 197 of the Code of Criminal Procedure.
65. I have already pointed out that the charge-sheet is submitted against the petitioner for commission of offence punishable under Section 120B/302/201/218, IPC. It is pointed out in this context that according to the prosecution case all the acts leading to commission of various offence alleged to have been committed by the petitioner herein was committed during the course of same transaction.
66. Offence under Section 218 of the Indian Penal Code deals with public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture. Section 218 of the Indian Penal Code is set out below:
218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture!- Whoever, being a public servant, and being as such public servant, charged with preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cauge, or knowing it to be likely that he will thereby cause, loss or injury to the public, or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be published with imprisonment of either description for a term which may extend to three years, or with fine', or with both.
67. The ingredient to constitute the offence under Section 218 of the Indian Penal Code would be as follows:
1. Accused was a public servant;
2. He was entrusted with preparation of any record or writing in his capacity as public servant;
3. He framed the record and writing incorrectly.
4. He did it intentionally,
5. He did so with the intention or knowledge that it will.
i. cause loss or injury to someone,
ii. Save any person from legal punishment and,
iii. Save from property from forfeiture or other charges.
68. The offence under Section 218 of the Indian Penal Code, in my humble view can only be committed by a public servant, such act of the public servant which constitute the offence can only be committed in his capacity as public servant or in the colourable of exercise of the act as a public servant.
69. So far as the offence under Section 218 of the Indian Penal Code is concerned, the same relates to alleged falsification of records in connection with three cases registered against the deceased. Such falsification of records according to the prosecution case was committed by the police personnel charge-sheeted in this case along with the petitioner. If that be so then to my view, petitioner herein can be prosecuted for commission of offence under Section 218 of the Indian Penal Code only after obtaining prior sanction from the State Government.
70. However, the learned advocate for the Opposite Party, C.Q.I., as well as Private Opposite Party disputed this' contention in view of the decision by learned' single Judge of A.P. High Court in D.V. Venkateswara Rao v. State of A.P. : 1997 Cri LJ 919 {supra), the learned Single Judge of Allahabad High Court in Dr. Z. U. Ahniad v. State of U.P. : 1998 Cri LJ 2100 (supra), I am unable to accept the reasoning of the learned Judges of Allahabad and A. P. High Court.
71. In support of my contention the decision of the Hon'ble Supreme Court in P.K. Chowdhury v. Commander, 48 BRTF (GREF) : 2001 Cri. LJ 3505 (supra), referred to by learned advocate for the petitioner would be relevant and in my view applicable in the fact situation of the case. The Hon'ble Supreme Court while considering the scope of Section 197 of the Code of Criminal Procedure in connection with offence under Section 166/167 of the Indian Penal Code as referred to above observed that the commission of those offence have a direct nexus with commission of a criminal misconduct on the part of a, public servant and indisputably an order of sanction was pre-requisite before the learned Magistrate could issue summons upon the appellant.
72. Offence under Section 166 and Section 167 of the Indian Penal Code falls under Chapter IX of the Indian Penal Code which deals with offences by or relating to public servant. Offence under Section 166 of the Indian Penal Code deals with public servant disobeying law with intent to cause injury to any person. Section 167 deals with offence by public servant framing an incorrect document with intent to cause injury. Section 218 of the Indian Penal Code deals with offence committed by public servant in framing incorrect record. The word incorrect record only means a record which the public servant is capable to frame. Such act on the part of the public servant which culminates into commission of offence under Section 218 of the Indian Penal Code is similar to commission of offence by the public servant in terms of Section 167 of the Indian Penal Code.
73. In view of the decision of the Hon'ble Supreme Court as referred to above, I am unable to agree with the decision of learned single Judge of Allahabad and A.P. High Court as referred to above. So far as the present case is concerned, I have already pointed out that the entire occurrence leading to commission of several offences including the offence under; Section 302 of the Indian Penal Code took place during the course of same transaction. As such the commission of one offence cannot be separated from the commission of other offences in which the prosecution is instituted against the petitioner herein. In other words all the offences for which petitioner herein is charged, are interrelated and took place during the course of same transaction. Such being the position, so far as the present case is concerned, it cannot be stated that offence under Section 218, IPC stands completely separate from commission of the offence under Section 302 and other provisions of Indian Penal Code.
74. I do not find any logic that commission of offence under Section 218 of the Indian Penal Code can be separated from the commission of offence under Section 302 of the Indian Penal Code in the fact situation of this case, in order to consider applicability of Section 197 of the Code of Criminal Procedure.
75. The Hon'ble Supreme Court in Rakesh Kumar Mishra v. State for Bihar : 2006 Cri LJ 808 (supra), categorically observed that use of word 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of the offence is absolute and complete.
76. So far as the present case is concerned, order taking cognizance and warrant of arrest was issued by the learned Magistrate against the accused persons including the petitioner herein was passed unmindful of the fact that question as to grant of sanction in terms of Section 197 is required so far as the petitioner herein is concerned. The Hon'ble Supreme Court in Sankaran Moitra v. Sadhna Das : AIR 2006 SC 1599 (supra) after rejecting the submission by learned advocate for the complainant observed that postponing a decision on the applicability or otherwise of Section 197(1) of the Code of Criminal Procedure can only lead to the proceeding being dragged on in the trial Court and a decision by this Court, here and now, would be more appropriate in the circumstance of the case especially when the accused involved are police personnel and the nature of complaint made is kept in mind.
77. In Sankaran Moitra v. Sadhna Das (supra) the Hon'ble Supreme Court dealt with a case where the petitioner before the Hon'ble Supreme Court was also involved in connection with charge under Section 302 of the Indian Penal Code along with other provisions of Indian Penal Code.
78. In this connection, I may point out that in the absence of sanction, the aforementioned proceeding against the petitioner cannot continue. It may also be pointed out that even if the proceeding against the petitioner cannot continue in the absence of sanction, then the same by itself does not mean that the petitioner herein is acquitted from the charge. The prosecution agency is at liberty to proceed against the petitioner after obtaining necessary sanction by the State Government in terms of provision under Section 197 of the Code of Criminal Procedure.
79. The revisional application is disposed of with the direction that the aforementioned proceeding now pending before the learned Court below stands quashed so far as the petitioner is concerned on the ground of lack of sanction under Section 197 of the Code of Criminal Procedure.
80. The application is disposed of accordingly.
81. There shall be no order as to costs.
82. Criminal section is directed to forward a copy of the order to the learned Court below.
83. Criminal section is also directed to supply urgent photostat copy of the order to the parties as and when applied for.