N.L. Tibrewal, J.
1. The petitioner is aggrieved against the order of the Additional Munisf and Judicial Magistrate, Laxmangarh, by which the applications of the petitioner and of other co-accused persons to drop Criminal proceedings against them for want of sanction Under Section 197 Code of Criminal Procedure (for short 'the Code'), were rejected. After being unsuccessful in the revision in the Court of Additional Sessions Judge No. 1, Alwar, the present petition Under Section 482 of the Code has been filed. In the normal course, I would not have entertained this petitioner after the right of revision having been exercised by the petitioner, but the question involved in the matter goes to the root of the case and is jurisdictional one, I propose to decide the same.
To appreciate the question of law which calls for consideration, it is necessary to narrate the facts in brief.
2. Non-petitioner Tikka Kan Singh filed a complaint on 14.6.82 against the petitioner and three other police constables in the Court of Judicial Magistrate, Lalgarh, with regard to an incident alleged to have taken place at 10 A.M. on June 12, 1982. At the relevant time, the petitioner Rameshwar Dayal was Assistant Sub-Inspector at Police Station Govind Garh, while the co-accused Shivlal was Head Constable and other two accused Balbir Singh and Poonam Chand were Constables there. The allegations against the accused persons, detailed out in the complaint, are that the complainant had come Govindgarh from his village to make some purchases at about 10 A.M. on June 12, 1982 when he was taken to the Police Station by the accused persons. His brother Ajit Singh, who was a teacher at that time, was also called at the Police Station. It is alleged that when the complainant asked about his fault for which he was brought at the Police Station, the accused petitioner abused and threatened him to put in jail and gave beating telling him (complainant) that he had made a complaint against him to the Circle Officer. Then he called the other three co-accused persons to whom the complainant was handed over. All the four accused then gave beating to the petitioner and the witnesses Jagjit Singh and Harbhajan Singh. Then the accused petitioner asked the other co-accused to put the complainant behind the bars.
The learned Magistrate after recording the statements of the complainant Under Section 200 of the Code and of the witnesses Bakshi Singh and Atam Singh, ordered to issue process against all the accused persons after being satisfied that there was sufficient ground for proceeding against them Under Section 323 IPC. This order was passed on 1.2.83.
3. It appears that summons were issued for securing the attendance of the accused persons. Inspite of the fact that the petitioner was posted as Assistant Sub-Inspector at Police Station Govindgarh and other co-accused were also posted there as Constables, the summons could not served upon them for a considerable long time. Then the learned Magistrate issued bailable warrants to secure the attendance of the accused persons. The learned Magistrate in his order dated 12.7.84 expressed great anxiety that the accused persons, even being police personnels, were not being served and the summons sent to the police for service were not beintg returned. He further directed that non-bailable warrant be issued through S.P. Alwar to secure the attendance of the accused persons. Subsequently, bailable warrants were issued for seeking attendance of the accused persons. Then, only one accused Shivlal appeared in the Court on 25.10.84 and other accused, including the petitioner, were still to appear in the Court. The co-accused Shivlal too absented to appear in the Court on October 30, 1984, as such, the Court directed to issue a non-bailable warrant against him. It appears that thereafter bailable warrants were issued from time to time to secure the attendance of the accused persons, but they did not appear in the Court.
On July 22, 1985, the petitioner appeared in the Court and he was released on bail on furnishing his personal bond. The petitioner, thereafter, moved an application before the learned Magistrate on September 10, 1985 seeking protection Under Section 197(3) of the Code. In the said application it was alleged that the complainant Tikka Kan Singh and his 25-30 associates were indulged in rioting and alter being armed with deadly weapons, they made an attack on their opponents at village Aldhani. It was further stated in the said application that the petitioner was directed by the Station House Officer, Police Station, Govindgarh, to reach at the place to maintain law and order and prevent breach of peace and he arrested the complainant and his associates Under Sections 107/151 of the Code. With regard to the injuries sustained by the complainant and two other persons, an explanation was given in the said application that they sustained the said injury when they were engaged in demolishing the 'pakka wall' and destroying the doors.
As other co-accused were not served upon, the said application could not be heard and decided by the learned Magistrate. Ultimately the other accused persons also appeared sometime in the year 1987 and they also move similar applications Under Section 197(3) of the Code with a prayer to drop the proceedings against them. The learned Magistrate heard arguments on these applications on July 19, 1988 and the same were rejected on the same day holding that the act of the accused persons giving beating to the complainant and his associates was not in the discharge of their official duty. The revision preferred against the said order was also dismissed by the Additional Sessions Judge No. 1, Alwar vide his judgment dated 20.7.90.
4. The learned Counsel for the petitioner vehemently urged that the accused petitioner was discharging his duties as Assistant Sub-Inspector at Police Station Govindgarh. Similarly other accused persons were Head Constables/Constables at the said Police Station and for the incident of June 12, 1982 they arrested the complainant and his associates Under Section 107/151 of the Code. According to the learned Counsel, all the accused persons are police officials charged with the maintenance of public order, as such, they are entitled to get the protection Under Section 197 of the Code and in the absence of proper sanction of the State Government the proceedings initiated against them deserve to be dropped. The learned Counsel further argued, that the view of the learned Courts below that the action of the petitioner and the co-accused was not a part of their 'official duty', is erroneous. The learned Counsel further drew my attention to the complaint Under Sections 107-116/151 of the Code, filed by the petitioner, as Assistant Sub-Inspector and Incharge Police Station Govindgarh in the Court of S.D.M. Rajgarh against the complainant non-petitioner and eight other persons to show that there was a strong dispute between the two rival factions with regard to a piece of land, the details of which have been given in the complaint. An incident had taken place between the members of two groups few days earlier also about which cross complaints were made by them and that on June 12, 1982 the complainant alongwith his associates made an attempt to forceably occupy the plot in question by demolishing the constructions etc. and also injured some members of the opposite group. On getting the information at the Police Station, the petitioner alongwith the Head Constable and other Constables reached at the spot. The complainant Tikka Kan Singh, Jagjit Singh, Harbhajan Singh and Jarnail Singh remained there while their other associates succeeded to have an escape from that place. From the said report it further appears that so far the injuries sustained by the complainant and his two associates, an explanation has been given that the same were received at the hands of the members of the opposite group who were also pelting stones at the time of the incident.
On the other hand, Mr. Rafiq, the learned Counsel for non-petitioner No. 2, argued that the three Constables do not fall in the definition of `police officials', as such, they cannot claim any protection of Section 197 of the Code. He further submitted that at the relevant time, the accused persons were not charged with the maintenance of public order so as to claim the above protection. Lastly, it was argued that at this stage there is no material on record to show that the alleged offences have been committed by the accused persons while acting or purporting to act in the discharge of their official duty. To substantiate this argument, the learned Counsel argued that as per the averments made in the applications by the accused persons, the complainant and his two associates sustained the injuries while they were demolishing the 'Pakka wall' and as per the complaint Under Sections 107-116/151 of the Code, filed by the petitioner against the complainant and other persons, at the hands of the members of the opposite party. The learned Counsel submitted that the above defence taken by the accused persons can be decided only after recording the evidence in the trial of the case, but from the above assertions made by the accused persons, it cannot be said that they are pleading to have caused the injuries to the complainant and his associates while acting or purporting to act in the discharge of their official duty.
5. Section 197 of the Code embodies one of the exceptions to the general rule laid down in Section 190 of the Code that any offence may be taken cognizance of by the Magistrate enumerated therein. The object of this Section is to guard against vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before a prosecution is launched against them. Section 197 of the Code runs as under:
(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 offical 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.
(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 charged with the maintenance of public order as may be specified therein, wherever they may be serving & thereupon the provisions of that Sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(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.
The above section in terms does not apply to the accused petitioner, who was holding the substantive rank of a Sub-Inspector of Police. No doubt, a Sub-Inspector of Police is a public servant, but he is not removable from his office save by or with the sanction of the State Government. Similar is the position of other co-accused persons who are Head Constables/Constables. As such, the provisions of Sub-section (1) offers them no shelter. Sub-section (3) of Section 197 lays down that the State Government may by notification direct that the provision of Sub-section (2) shall apply to such classes or categories of the members of the forces charged with the maintenance of public order as may be specified therein. If the State Government so desires, may issue a notification giving the protective umbrella to the members of the forces so that the members of the forces may not be prosecuted without sanction of the State Government.
6. The State Government, vide notification dated July 31, 1974 (S.O. 89) made the following provisions:
S.O. 89--In exercise of the powers conferred upon it Under Sub-Section (3) of Section 197 of the Code of Criminal Procedure, 1973, the State Government hereby direct that the provisions of Sub-section (2) of the said section shall apply to police officials, of all ranks, charged with the maintenance of public order, wherever they may be serving.
The Police Act, 1861 (Act No. 5 of 1861) was enacted to re-organise the police and to make it more efficient instrument for the prevention and detention of crime. The word 'police' has been defined under the said Act to include all persons who shall be enrolled under this Act. Section 2 provides constitution of the force as under:
The entire police-establishment under a State Government shall, for the purposes of this Act, be deemed to be one police force and shall be formally enrolled; and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.
Section 23 of the Act defines the duties of the police officers as under:
It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exist; and it shall be lawful for every police-officer for any of the purpose mentioned in this section, without to enter and inspect any drinking shop, gaming-house or other place of resort of loose and disorderly characters.
So, even a Police Constable has been regarded under the provisions of the above Act to be a police officer for the purpose of the Police Act, 1861. A similar view has been taken by a Division Bench of Gujarat High Court in Bhikhaji Vaghaji V. L.K. Barot and Ors. (1982 Cri. LJ 2014), where a similar notification Under Section 197(3) of the Code has been issued by the State Government.
A similar notification issued by Lt Governor Delhi Under Section 197(3) of the Code was considered by the Apex Court of this country in Balbir Singh V. D.N. Kadian and Anr. . It was held:
Reading these two notifications together, it is crystal clear that to start a proceeding against the members of all ranks of Delhi Police Officials in a Criminal Court, previous sanction of the Lt. Governor is imperative, provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
Therefore, the contention of the learned Counsel for the complainant that the three Constables do not fall in the purview of 'police officials' has no force and it is hereby held that they can also claim protection Under Section 197 of the Code provided the offence alleged is committed while acting or purporting to act in the discharge of their official duty.
7. Now I may examine the second contention raised by the learned Counsel for the complainant that the petitioner and the three Constables at the time of commission of offence cannot be said to be presons 'charged with the maintenance of public order' so as to attract the provisions of the above notification. In other words, the argument is that such members should be engaged in the maintenance of public order, and not when they are engaged in the functions relating to law and other situations.
The phrase 'charged with the maintenance of public order' occurring in the above Government Notification and also in Sub-section (3) of Section 197 of the Code is obviously an adjectival phrase and it cannot be interpreted to mean a phrase suggesting the time when such members of the police force are to avail of the exemption of protection contemplated by Sub-section (2) of Section 197 of the Code. This phrase in my view clothes the Government with the authority to apply the provisions of Section 197(2) in respect of such class or category of police officers which under law are charged with the maintenance of public order though they may be additionally charged with the maintenance of law and order also. After a perusal of the preamble of the Police Act and its various sections, it cannot be said that the members of the police force are not persons charged with the maintenance of public order. Section 23 of the Act is clear in this regard. Then Sections 30, 30A and 31 of the Act prescribes the powers and duties of the police force which are connected with public order. It is the duty of every member of the police force to see that public order is maintained. This is the general duty of every member of the police force styled as the 'police' in the Police Act 1861.
In the same sequence the argument of Mr. Rafiq that protection of Sub-section (3) of Section 197 of the Code can be extended only when the members of the police force are actually discharging the functions related to the maintenance of public order, is difficult to entertain. Similar argument has been rejected by the Gujarat High Court in Bhikhaji Vaghaji V. L.K. Barot and Ors. (supra)
8. Now the last but foremost question about the application of Section 197 of the Code needs serious consideration. To ascertain the scope and the meaning of the relevant words occuring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his offical duly", I may refer certain decided cases. In Hori Ram Singh V. Emperor (AIR 1939 FC 43 at p. 51) Sulaiman J. observed as under:
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.
This view has been confirmed by the Judicial Committee of the Privy Counsel in H.H.B. Gill V. The King (AIR 1948 PC 128) "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The test may well be whether the public, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
In Shreekantiah Ramayya Munipalli V. Slate of Bombay , it has been observed as follows:
Now it is obvious that if Section 197 of the Code of Criminal Procedure 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 official 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.
Again in Amrik Singh V. State of Pepsu , after
discussion of the authorities, it was observed as follows:
If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction Under Section 197(1) would be necessary but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
In Matajog Dubey V. H.C. Bhari it has been observed as under:
The result of the foregoing discussion is this: 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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
In Baijnath V. State of Madhya Pradesh the Hon'ble Supreme Court ruled that what was important was the quality of the act, and the protection contemplated by Section 197 of the Code of Criminal Procedure would be attracted where the act falls within the scope and range of the official duties of the public servant.
In Pukhraj V. State of Rajasthan , the Post Master General gave a kick to a Clerk, it was held that the act of the public servant so alleged could not be said to have been done in purporting exercise of his duty and to such a case, Section 197 of the Code of Criminal Procedure perse could not be attracted. However, it reaffirmed that facts subsequently coming to light during the course of the trial may establish the necessity for sanction and whether or not the sanctionis necessary will depend from stage to stage.
In S.B. Saha and Ors. V. M.S. Kochar it has been held as under:
The sine qua non for the applicability of Section 197 is that the offence charged, be it one of commission, or omission, must be one committed by the public servant either in his official duty or under colour of his office held by him.
In State (Delhi Administration) V. Sube Singh (1985 Cri. L.J. 1190), a Division Bench of Delhi High Court considered the phrase. The facts were that a constable serving under the Delhi Police came to be prosecuted on a complaint instituted by a S.H.O. The allegation against him was that on the night intervening 20th/21st of February 1980 he was found under the influence of liquor and was found misbehaving, abusing and creating nuisance in a residential area. The information in respect of this event was transmitted to the Police Station. The S.H.O. of that Police Station along with other police officers, reached on the spot of the scene and they noticed that the constable was in a drunken state and found him abusing and creating nuisance. It was held;
The simple fact that he was in uniform and he was In possession of a warrant would not confer a licence upon him to behave in any manner he likes. We cannot take wooden attitude in such matters and it can never be said that a police officer is at liberty to abuse and use indecent language and behave in disorderly manner while he is supposed to be on duty. If that view of the matter is taken it would only amount to giving them a licence for commission of offences and that would be an end of rule of law. To our mind the accused in the present case cannot take shelter behind Section 197, Cr. PC.
Then it was further observed:
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) are capable of a narrow as well as 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 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. 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 will be attracted.
Having examined the meaning and the scope of the pharse 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", a further question arises for determination is the stage when the question of sanction should be considered.
It is true that the prohibition contained in Section 197 of the Code is against the institution itself and its applicability may be judged in the first instance at the earliest stage of institution. If from the averments made in the complaint it is clearly made out that the act and the official duty is so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty. At this stage the Court has to see whether the case alleged against the appellant or 'sought to be proved' against him relates to acts done or purporting to be done by him in the execution of his duty.
If at that stage the acts complained of do not appear to be connected with the duties attaching to the office, then, the necessity of sanction may be determined from stage to stage as held by the Hon'ble Supreme Court in Matajog Dobey V. H. C. Bhari's case (supra), which is as under:
Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force etc., alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case for sanction.
The injuries--a couple of abrasions and a swelling on Nandram Agarwala and two ecchymosis on Matajog--indicate nothing more that a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded.
In The State of Andhra Pradesh V. Venugopal and Ors. the question of applicability of Section 53 of the Police Act of the Andhra Pradesh was considered by the Supreme Court. The facts of this case were that one Venugopal, who was the Sub-Inspector of Police, Rangaswamy, a Head Constable and Subbaiah, a Police Constable were tried along with one Mittala Kamal Sab by the Session Judge, Anantapur Division, on a number of charges including Section 302/34 IPC. They were acquitted of the charge Under Section 302/34 IPC but convicted Under Sections 348, 331 and 201 read with Section 109 IPC. Venugopal was further convicted Under Section 343 of the IPC. However, their conviction and sentences were set aside by the High Court of Andhra Pradesh in appeal.
The prosecution case was that these persons caused injuries to one Arige Ramanna, acting in concert for the purpose of extorting from him information which might lead to the detection of an offence and restoration of stolen property. It was also the prosecution case that for this purpose these accused wrongfully confined Arige Ramanna in a room at the Kadiri Police Station and it was there when he was thus confined that the injuries were caused. The Session Judge convicted these persons Under Sections 348, 331 and 201 read with Section 109 IPC. In the High Court when the appeal came for hearing, the following question was framed:
In the circumstances of this case, is the prosecution of the appellants barred by limitation by reason of the provision of Section 53 of the Madras District Police Act, 1859?
This question was referred for determination by a Division Bench. The Division Bench in turn referred this question for determination by a Full Bench. The Full Bench gave the following answer:
We would therefore answer the first question referred to us by saying that the bar of limitation presecribed by Section 53 of the Act would be available to an accused officer only when the act complained of has been committed in the discharge of his official duties. We have already laid down that the question as to whether a particular act would be regarded as having been done in the discharge of one's official duties would have to be determined on the facts and particular circumstances of the case. It is unnecessary for us to answer the second question. This will be decided by a Single Judge.
After the opinion of the Full Bench the Session Judge acquitted the accused persons holding that Section 53 of the Police Act was applicable and the accused were entitled to an acquittal. The effect of section 53 of the Police Act is that of all prosecutions whether against a Police officer or a person other that a police officer (e.g. a member of the Madras fire service, above the rank, of a fireman acting Under Section 42 of the Act) must be commenced within three months after the act complained of, if this act is one which has been done or intended to be done "under" any of the provisions detailed above. The Supreme Court held as under:
The act of beating or the act of confining was, it is true alleged to be done at a time when Venugopal, was engaged in investigation. But it is not possible to see what reasonable connection these acts had with the process of investigation. Nor can one see how the act of sending away the injured person had any relation to the process of investigation.
The High Court fell into the error of thinking that whatever a police officer does to a person suspected of a crime at a time when the officer is engaged in investigating the crime should be held to be done in the discharge of his official duties to investigate and as such under the provisions of the law that imposed this duty on him. This view is wholly unwarranted in law.
In our opinion, it cannot possibly be said that the acts complained of in the present case were done or intended to be done under any provision of the Police Act or the Code of Criminal Procedure or any other law conferring powers on the police. Section 53 of the Police Act had therefore no aplication to this case.
In Nagraj V. Stale of Mysore the accused challenged the order of Magistrate committing the accused for trial to the Sessions of offences Under Sections 307 and 326 IPC, on the ground that the Magistrate could not have taken cogniznance of the offence without the sanction of the State Government in view of the provisions of Sections 132 and 197 of the Cr. PC. The relevant portion of Section 132 of the Code provides protection against prosecution of any person for any act purporting to be done Under Section 129, section 130 or 131 except with the sanction of the Central Government or of the State Government as the case may be. While considering this aspect, the Supreme Court observed as under:
If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person.
It was further observed as under:
It is contended for the appellant that if the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of Section 132 of the Code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose that necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. Just as a complainant is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction. It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations-made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded
9. From the above discussions, the net result is as under:
(i) The State Government's Notification dated July 31, 1974 provides protection to Police Officials of all ranks, which includes even a Constable also;
(ii) The members of the Police Force are charged with the maintenance of public order as occuring in the above Notifiction and in Sub-section (3) of Section 197 of the Code;
(iii) For the protection Under Sub-section (3) of Section 197 of the Code it is not necessary that the members of the Police Force are actually discharging functions related to the maintenance of public order at the time of the alleged offence;
(iv) The test for application of Section 197 of the Code is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty, and it does not matter even if the matter exceeds what is strictly necessary for the discharge of the duty;
(v) The jurisdiction of the Court to proceed with the complaint imanates from the allegations made in the complaint and not from what is alleged by the accused if the allegations in the complaint do not indicate such facts necessitating sanction of the Government Under Section 197 of the Code, it must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person;
(vi) If the complaint does not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty, the necessity for sanction may be established from the facts subsequently coming to light on a police or a judicial inquiry or even in the course of the prosecution evidence at the trial. In such case whether sanction is necessary or not, may have to be determined from stage to stage. The necessity may reveal itself at the progress of the case.
10. In the instant case, applying the above principles, the facts narrated in the complaint do not disclose that the offence was committed by the petitioner while acting or purporting to act in the discharge of his official duty. From the averments made in the applications moved by the accused persons Under Section 197 of the Code also it does not appear that they have taken the plea that they committed the offence in the discharge of their official duty. On the contrary their plea is that the complainant and his two associates sustained the injuries by the fail of a 'pakka wall' which they were demolishing. This is the defence which they can establish only at the stage of trial, but on this plea they can hardly claim any protection of sanction Under Section 197 of the Code.
11. The learned Counsel for the petitioner also made a feeble attempt to drop the proceedings on the ground that the incident is of the year 1982 and nine years have already passed, specially keeping in view the nature of the offence. In the normal course, this submission might have got favour. But in the instant case, I have cited certain order sheets to indicate that the accused persons, including the petitioner, are responsible for this delay. They avoided the service inspite of the fact that the summons or warrants were being sent through the police. The accused petitioner is holding a responsible post of S.H.O. at present. Similarly the co-accused persons are Head Constable/Constable and they are also responsible for maintenance of law and order. We expect them to be disciplined officials as an irresponsible police official is unworthy to remain in Police Force. If they don't show any respect and regard to the Court proceedings and avoid service because they happen to occupy the post in police department, their conduct deserves to be examined by a responsible police officer so that such irresponsible acts on the part of a police officers in avoiding the service of summons/warrants and further their non-appearance in the Courts on various dates of hearing without any reasonable cause may not hamper the judicial proceedings not only in this case but in other cases also. Hence, a copy of this judgment be sent to the Director General of Police to get an inquiry held against the petitioner and the other co-accused police officials about their alleged irresponsible act of avoiding service of summons/warrants and their subsequent non-appearance in the Court causing inordinate delay in the decision of the case. The Director General of Police may also issue a circular to all the police officials to act like disciplined officers and be particular in the service of summons/warrants, as well as in appearing in the Court as and when called upon to do so.
12. Resultantly, this petition has no merit and the same is dismissed. The record of the Trial Court be sent immediately and the Trial Court is directed to proceed with the case with utmost expedition.