R.C.Deo Sharma - (1.) THE applicant was a Sub-Inspector of Police and was posted as Second Officer at Pdlice Station Jagdishpur in the district of Sultanpur. A complaint was lodged against him and two others by opposite party No. 2 Salig Ram for offences under Sections 302, 201, 120-B and 109 IPC. It was alleged by the complainant in that case that the present applicant and the local police were inimical towards the complainant's son Shitla Prasad who was falsely roped in by the police in various cases but had been acquitted. THE local police had therefore, decided and entered into a conspiracy with Raj Karan and Harakh Bahadur Singh who were also implicated as accused in the said complaint to cause the murder of Shitla Prasad. Accordingly Shitla Prasad was murdered on 27-9-1977 and a false encounter was shown by the police. THE complainant tried to lodge a report and initiate action but the local police would not do so and consequently he approached the higher authorities for an enquiry into the matter. A magisterial enquiry was accordingly held in the alleged occurrence of encounter. THE complainant was not satisfied with the progress of the enquiry and did not have faith in the proceedings and consequently he lodged the complaint in question before the Judicial Magistrate Su.tanpur. THE complaint is Annexure 1 to this petition and a list of twelve witnesses including the complainant was appended to that complaint.
(2.) THE learned Magistrate examined the complainant under section 200 of the CrPC and also examined six other witnesses under section 202 thereof and passed an order summoning the three accused persons including the present applicant for offences under the aforesaid sections. THE applicant felt aggrieved by the order and preferred a revision before the learned Sessions Judge. THE same was, however, dismissed. THE order of the learned Magistrate summoning the accused persons is Annexure 9 and that of the learned Additional Sessions Judge is Annexure 11. Feeling aggrieved by that order the applicant has filed this application under Section 482 CrPC praying that the criminal complaint and the proceedings started thereon and pending in the court of the Chief Judicial Magistrate Sultanpur be quashed. THE main grounds of contention raised on behalf of the applicant are that, in the first instance, the learned Magistrate was not competent to summon the accused persons merely after exam icing the complainant and six other witnesses when a list of twelve witnesses had been appended to the complaint and for this he has placed reliance on the proviso to sub section (2) of Section 202 CrPC. Another contention of the applicant was that he was a public servant and consequently without the sanction of the State Government under Section 197 of the Code of Criminal Procedure the learned Magistrate could not have taken cognizance of the matter. Finally, it was contended that on the basis of the entire evidence brought on record no case whatsoever had been made out against the applicant and that the magisterial enquiry report Annexure 10 in which the encounter was found to be genuine and the police action had been justified, had not been taken into consideration. Although appearance had been put in on behalf of opposite party No. 2 yet no body appeared to contest the application. I have accordingly heard the learned Counsel for the applicant and also for the State and have gone through the record. It cannot be denied that the applicant is a public servant and by virtue of the notification issued by the State Government under subsection (3) of Section 197 CrPC no court could take cognizance of an offence committed by him while acting or purporting to act in the discharge of his official duties. No sanction has, however, been obtained in this behalf. The question for consideration therefore, is whether section 197 applies to the facts of the case and the cognizance taken by the learned Magistrate was contrary to law. Another question to be considered is whether without examining ail the twelve witnesses cited by the complainant in his complaint the learned Magistrate was competent to summon the accused persons when the case was exclusively triable by a Court of Session. So far as the first point is concerned, it could be argued on behalf of the opposite party No. 2 that it was not part of the official duty of the applicant to have committed the murder of a person and consequently if he is being prosecuted on a complaint for such an offence, section 197 CrPC is not attracted. On the other hand, the contention of the learned counsel for the applicant was that the act resulting into the death of Shitla Prasad and the preparation of relevant documents at th: police Station were so intimately connected with the performance of official duties of the applicant that without obtaining the sanction under section 197 CrPC no cognizance for an offence of the nature complained of and particularly for the offence under Section 201 of the IPC could have been taken. Normally the allegations made in the complaint should determine whether the act complained of was committed in the official discharge of the duties of a public servant. But that cannot be said to be the sole criterion for deciding the applicability of Section 197 CrPC. Facts are sometimes suppressed or stated in a manner that the act complained of does not appear to be a part of official duty. It is also true that the contention of the accused person or the probable defence that could be raised by him subsequently is also not always a true guide to determine the applicability of Section 197. Each case is to be decided cm its own facts. In the instant case, the allegations were that the police was inimical towards Shitla Prasad and since he had been acquitted in a large number of cases the police had entered into a conspiracy with other accused persons to have him murdered by showing a false encounter. According to the complaint murder was committed by Harakh Bahadur Singh and Raj Karan by inflicting Pharsa blows and firing a shot from the gun respectively. The applicant Uma Shanker Misra was therefore not directly involved in the actual commission of the crime according to the allegations made in the complaint. There were however, allegations of conspiracy and further allegation of manipulating the documents maintained at the Police Station inasmuch as the body of the victim was taken away by the applicant and other police personnel and later documents were prepared at the police station to show that an encounter with the dacoits had taken place and it was in that encounter that Shitla Prasad had been killed. True that the actual act of causing murder of Shitla Prasad without an encounter having actually taken place cannot be said to be a part of official duty of the applicant, but if evidence was fabricated and in order to screen the offenders and conceal the crime, shape was given to the incident as if it were an encounter, it was certainly so intimately connected with the discharge of official duties of the applicant that this part of the offence cannot be separated from those duties. Unless documents were forged or manipulated so as to give it the colour of an encounter, offence under Section 201 or under Section 302 read with Section 120-B could be made out, and if this was the offence committed by the applicant, it cannot be said that it had nothing to do with the discharge of his official duties as a public servant even though it could be said that instead of the official duty being performed in a right manner it was a case of dereliction of duty. An official duty can be performed in a right manner as required by law ana it can also be performed in a wrong manner not warranted by law and consequently in the latter case it may be an abuse of power or dereliction of duty. All the same, if the act complained of is so intimately connected with official duties of a public servant that it cannot be easily separated though ultimately it would be a matter to be decided on the basis of the evidence brought on record on behalf of both the sides, then certainly section 197 CrPC should be held amply attracted. Preparation of records which according to the complaint were false documents of a fabricated case of encounter will have to be said to be done in the performance of official duties although it may be a performance of the duty in a wrong manner. Reliance was placed by the applicant's learned counsel on the case of Benoy Chakravarty v. State, 1972 CrLJ 680 (Calcutta High Court). After a discussion of various authorities of the Privy Council and the Supreme Court it was found that ultimately each case will have to be decided on its own facts and after a consideration of the fact whether the act complained of was so intimately connected with the discharge of official duties of a public servant that section 197 would be attracted. Although the facts in that case were somewhat different and may not apply to the instant case, but the principle laid down and the yardstick to determine the applicability of Section 197 when applied to the facts of the instant case would show that without sanction of the State Government under Section 197 CrPC cognizance of the offence complained of and particularly of Section 201 IPC could not have been taken by the learned Magistrate.
(3.) AS regards the applicability of the proviso to sub-section (2) of Section 202 CrPC reliance has been placed on Division Bench decision of this Court in Dinesh Chand v. Rahmatullah, 1981 AWC 210. It was held that although it may not be necessary to examine all the witnesses mentioned in the complaint if the case was triable exclusively by a Sessions Cou'rt yet all the witnesses who were sought to be produced on behalf of the prosecution and were not specifically given up should be examined before an accused could be summoned. In the present case, besides the complainant six other witnesses had been examined out of the list of twelve witnesses appended to the com- i plaint. There is nothing to indicate that the complainant had given up the remaining five witnesses either orally or by making an application to the effect that he was relying only on the evidence of six witnesses besides himself. That being so, the said proviso had not been complied with. The order summoning the applicant therefore was clearly in violation of Section 197 and the proviso to sub-section (2) of Section 202 CrPC and it has therefore, to be quashed. So far as the other two accused persons are concerned who are not parties to this petition, the order summoning them also suffers from the non- observance of the provisions of the proviso to sub-section (2) of Section 202 CrPC. In addition, so far as the applicant is concerned, the bar of Section 197 CrPC is also applicable to his case. The prayer made in the application was for the quashing of the criminal complaint and the proceedings instituted against the applicant. There was however, no reason to quash the criminal complaint itself as it was in any case maintainable against the other two accused persons who are not parties to these proceedings although the order summoning them was bad under Section 202 (2) proviso of the Code of Criminal Procedure.;