PRESENT HON BLE MR. JUSTICE B D AGARWAL

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH) Criminal Petition No. 433/2011 Chitta Ranjan Purkayastha Sub Inspector of Police, Golokganj Police Station, S/o Lt. Harendra Ch. Purkayastha PO & P.S. Golokganj Dist-Dhubri (Assam) -Versus- 1. The State of Assam, Represented by the P.P. Assam 2. Anser Ali Sk. Son of Late Bahadur Ali Sk. R/o Vill-Paschim Kanuri Pt-II P.O. Ratiadaha, PS Golokganj, Disterict- Dhubri (Assam) Petitioner. Opposite Parties Advocate for the petitioner : Mr. M.U. Mondal Advocate for the respondents: Mr. MU Mahmud and Mr. BB Gogoi, Addl. PP. Assam. PRESENT HON BLE MR. JUSTICE B D AGARWAL Date of hearing : 28.02.2012. Date of Judgment : 22.03.2012 Crl. Pet. No. 433of 2011 Page 1 of 1

JUDGEMENT AND ORDER (CAV) The petitioner herein is the accused in Complaint Case No. 1420/11 under Section 171 (E) and 506 of the Indian Penal Code in the court of learned Addl. Chief Judicial Magistrate, Dhubri. He has filed this application u/s 482 of the Code of Criminal Procedure Code, 1973 praying for quashing the criminal proceeding on the ground that cognizance of the offence has been taken without prior sanction of the Government of Assam. Although, during the course of hearing, the learned counsel for the petitioner also argued that a false case has been framed against the accused after his arrest in Golokganj PS Case No. 173/11 u/ss 420/408/468/506 IPC, the said ground was not pleaded in the criminal petition. 2. Heard Mr. MU Mondal, learned counsel for the petitioner and Mr MU Mahmud for the OP No. 2 and the Learned Addl PP, Assam represented the State (Opposite party No.1). 3. Before analyzing the issue raised in this criminal petition it would be appropriate to have a birds eye view of the case which is as below : 3.1. On 21.3.2011 an Asstt. Teacher of Kanuro Char LP School had filed a complaint in the court of CJM, Dhubri alleging that the Headmaster of the school (OP No.2) had Crl. Pet. No. 433of 2011 Page 2 of 2

mis-appropriated the amount of financial assistance received by him in the name of the complainant. The said complaint was forwarded to the police station whereupon Golokganj PS Case No.173/11 was registered. The petitioner was entrusted with the aforesaid case for investigation. Accordingly, the petitioner visited the school and recorded the statements of as many as 12 witnesses on 19.4.2011. During the course of investigation, the petitioner/io asked the Headmaster to furnish documentary evidence like resolution book, teachers attendance register, disbursement register, mid-day meal register etc. The Headmaster did not produce some registers on the ground that those were not in his custody. Hence, the I.O. seized only mid-day meal register and left the school premises. 3.2. The counter complaint against the I.O. was lodged by the school Headmaster (OP No.2) on 26.4.2011 alleging that while seizing the register the accused had physically assaulted the complainant in the presence of students and accused had also assaulted a lady teacher, namely Anowara Khatun. The complainant further alleged that on 23.4.2011 the I.O. contacted the Headmaster of the school over mobile phone and called him to the police station to take back the register. As alleged, when the complainant visited the police station, accompanied by witnesses, the accused/io demanded bribe of Rs.10,000/- to give the school registers on jimma. On the premises of the aforesaid allegations, the instant complaint was lodged, which is the subject matter of this criminal petition. Crl. Pet. No. 433of 2011 Page 3 of 3

4. Initial statements of two witnesses were recorded by the Judicial Magistrate under Section 200 Cr.P.C. Both are witnesses, husband and wife, have by and large not supported the allegations made in the complaint petition. In the complaint it has been alleged that the register was forcefully snatched whereas in the initial statement PW 1 has stated that he got scared and handed over the register to the I.O. The complainant is totally silent in his statement about his physical assault or any assault upon the person of his wife. With regard to demand of bribe a very casual statement has been made that the I.O. had demanded Rs.10,000/- to return the register. The complainant is also silent as to who had accompanied him to the police station, as stated in the complaint petition. 5. CW 2 Smti. Anowara Khatun is the wife of the complainant. There is an allegation in the complaint petition that she was also beaten by the I.O. However, she is totally silent about her manhandling by the I.O. CW 2 has no doubt also alleged that when they went to collect the seized register in the police station the I.O. demanded bribe of Rs. 10,000/- However, her husband (CW 1) has not stated that his wife had accompanied him to the police station. 6. I have already made it clear at the outset that I will not go into the merit of the case. In other words, I will confine only to the legal issue raised by the petitioner that the order of taking cognizance of the complaint on 17.6.2011 is unsustainable in law without obtaining prior sanction from the Government. Crl. Pet. No. 433of 2011 Page 4 of 4

7. Referring to Section 197 Cr.P.C. Sri Mandal, learned counsel for the petitioner submitted that seizure of the register was out and out a part of the investigation and the petitioner had visited the school of the complainant in discharge of the official duty and, as such, the learned Magistrate should not have taken cognizance of the offence, except with the previous sanction of the Government. In support of this submission, the leaned counsel referred the decision of the Hon ble Supreme Court rendered in the case of State of Orissa-Vs- Ganesh Ch. Jew; (2004) 8 SCC 40 and the judgment rendered in the case of Rakesh Kumar Mishra Vs- State of Bihar; (2006) 1 SCC 557. 8. On the other hand Sri Mahmud, learned counsel for the OP No.2 submitted that neither the I.O/petitioner handed over a copy of the seizure list as required under section 100(5) of the Cr.P.C. nor the seizure memo was forwarded to the concerned Judicial Magistrate as required under Section 165 Cr.P.C. The learned counsel also submitted that demand of bribe and physical manhandling of witnesses cannot be construed as a part of official duty and, as such, there is no legal infirmity in taking cognizance of the offence. In support of this submission, the learned counsel relied upon certain decisions of the Gauhati High Court viz Abdul Gaffer Vs- Ramen Das; 2003 (2) GLT 17, State of Asam Vs- Dineswar Deka; 2005(1) GLT 42 and Swaroop Kanti Dey -Vs- PK Mishra ; 2012 (1) GLT 189. Crl. Pet. No. 433of 2011 Page 5 of 5

9. Apparently, obtaining prior sanction of the Government to prosecute a public servant is the law and taking cognizance of offences without prior approval of the Government should be the exception. It is because Section 197 acts as an umbrella to protect honest officers and it is also a protection and assurance to the public servants to perform their public duties honestly and to the best of their ability. Section 197 has been enacted to protect Judges and other public servants against irresponsible, frivolous or vexatious proceeding for the acts done in good faith in discharge of official duty. In a catena of decisions, the Apex Court has held that the threat of prosecution demoralizes honest officers and as such the law has to be applied in true spirit. 10. As to what would amount to an offence in discharge of official duty and outside the official duty has been deliberated by the Hon ble Supreme Court of India in a number of cases. In the case of B Saha Vs- MS Kocher (AIR 1979 SC 184); (1979) 4 SCC 177, the Hon ble Supreme Court has given the following guidelines : 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 official duty is performed or purports Crl. Pet. No. 433of 2011 Page 6 of 6

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 Ramaswami J. in Baijnath v.state of Madhya Pradesh AIR 1966 SC 220 at p 222 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. 20. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically and depends on the facts of each case, one broad test for this purpose first deduced by Varadachariar J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159 is generally applied with advantage. After referring with approval to those observations of Varadachariar J,. Lord Simonds in H.B Gills Vs. The Kind AIR 1948 PC 128 tersely reiterated that the test may will be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office. 11. The aforesaid views have been approved and reiterated by the Apex Court in the case of State of Bihar -Vs- PP Sarma ( AIR 1981 SC 1260); Ganesh Ch. Jew ( Supra) and Rakesh Kumar Mishra (Supra) and other judgments. Crl. Pet. No. 433of 2011 Page 7 of 7

12. In the case of Ganesh Chandra (Supra) the Hon ble Apex Court further widened the scope of protection. 11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly while determining its applicability to any act or omission in the course of service. Its operation 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 as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that the act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force, which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari thus: Crl. Pet. No. 433of 2011 Page 8 of 8

The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner, with the discharge of official duty There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. 13. The mandatory nature of the provision has also been spelt out by the Apex Court in the case of Rakesh Kumar Mishra (Supra) in this manner. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression no court shall Crl. Pet. No. 433of 2011 Page 9 of 9

take cognizance of such offence except with the previous sanction. Use of the words no 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 been committed during the discharge of his official duty. 14. Coming to the cases cited by the learned counsel for the OP No.2 I find that none of the decisions, the Gauhati High Court has taken any divergent view. However, all the cases are distinguishable in facts. In the case of Abdul Gaffer (Supra) the complainants allegation was that despite there being injunction in a civil suit the forest officials had trespassed in the land of the complainant and threatened him of arrest and also forcibly dragged him out of the suit land and kept him confined in the office and obtained his signatures on blank papers. In the case of Dineswar Deka (Supra), the excise staff had assaulted the complainant s brother, who later on succumbed to the injuries and the case was registered u/s 302 IPC. In the case of Swaroop Kanti Dey (Supra), the accused was a Provident Fund Commissioner and demanded Rs.20,000/- by holding a threat that the complainant would be sent to jail unless the demand is made. Crl. Pet. No. 433of 2011 Page 10 of 10

15. The facts and circumstances of the case in hand are totally different from the aforesaid authorities. No doubt, there is an allegation of demand of money to release the seized register, but, this allegation has to be looked into from the peculiar facts of the case. Apparently, the seizure of the register, was made on 19.1.2011 and on that day the police officer did not demand any money. As per the complainant the money was demanded on 23.1.2011 and that too in the police station, when the complainant went to bring the seized register. There is also no allegation that when the police officer called the complainant to the police station he had already indicated over phone that the complainant will have to satisfy some demand of the I.O. At the same time, there is no explanation as to why the complainant, being a Headmaster of the school did not submit any complaint to the higher authority before taking recourse to the law in the court. I have already noted earlier that the allegation of physical assault has not been re-iterated in the oral statements before the learned Magistrate. I am also of the view that procedural infirmities in the matter of seizure of a register can be taken care of during the trial of a case and it cannot be a ground to allow prosecution of a police officer. 16. Under the facts and circumstances of the case I hold that it is a fit case wherein the learned Judicial Magistrate ought to have asked for sanction of the Government before taking cognizance of the Offence. Consequently the impugned order 17.6.2011 is vitiated in the law and same is hereby set aside. Crl. Pet. No. 433of 2011 Page 11 of 11

17. In the result the criminal petition stands allowed. CR Case No. 1420/11 against the petitioner/accused in the file of learned Addl. CJM, Dhubri is hereby quashed. Liberty is given to the complainant to first obtain sanction from the Government of Assam and if sanction is accorded he will be at liberty to file a fresh complaint. Upadhaya JUDGE Crl. Pet. No. 433of 2011 Page 12 of 12