NANDAKISHORE RAIKAR Vs. SRIRANG NARVEKAR

JUDGEMENT

(1.) THESE proceedings under Section 482 of the Criminal Procedure Code seek to quash the Criminal proceedings which have been filed against the petitioner on the ground that the proceedings constitute an abuse of the process of the court and will otherwise result inmiscarriage of justice. It is common ground that in a criminal case instituted by the respondent No. 1, it is averred that the petitioner, who is a police officer and was at the relevant time, attached to the Mapusa Police station, arrested him on 17th April 1989 and detained him in spite of the respondent No. 1 being armed with an order for anticipatory bail. This was held to be wrongful detention and wrongful confinement and that is how Section 342 of the Indian Penal Code was invoked. On examining the complainant, respondent No. 1 in these proceedings, the Judicial Magistrate, Mapusa, directed a process under Section 342 of the Indian Penal Code on 21st June, 1989. This direction of issue of process has provoked the petitioner to take up the present proceedings as mentioned earlier

(2.) THE sole question centres round that there is no sanction for prosecution obtained by the respondent No. 1. It is contended that in the absence of sanction under Section 197, Criminal Procedure Code there is no warrant for the Magistrate to have issued process under Section 342, Criminal Procedure Code. In support of this contention Mr. Lotlikar says that it is true that the respondent No. 1 was armed with an order for anticipatory bail and the learned Sessions Judge had made that order directing the petitioner to release the respondent No. 1 in the event he is arrested, but according to him that was on a complaint which had been lodged earlier in point of time. The petitioner was perforced to arrest and detain the respondent No. 1 in view of the subsequent complaint filed against him which had no connection with the order for anticipatory bail granted in favour of the Respondent No. 1. In any case therefore, the petitioner was acting under his duty on the basis of a subsequent complaint and even on the assumption that he was acting in excess of his duty or even on the assumption that the arrest and detention were illegal, Mr. Lotlikar says that Section 197, Criminal Procedure Code undoubtedly lays down that when any person who is 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 by acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such an offence except with the previous sanction in the case of a person employed or, as the case may be, was at the time of commission of the offence employed, in connection with the affairs of a State Government. There is no dispute that police officers of all classes and categories charged with the maintenance of public order and serving in connection with the affairs of the State of Goa are covered under Sub-section (2) of Section 197 by virtue of a Notification bearing No. 1/36/81-H. D.- (G) dated 9th February, 1992. Mr. Lotlikar says that whatever might have been stated in the complaint, insofar as the statement recorded on 21st June, 1989, the respondent No. 1 original complainant, has clearly admitted that he had gone to the police station at 5 p. m. pursuant to the directions of the Sessions Judge while granting order for anticipatory bail to allow himself to be formally arrested only to be released on bail as, directed under that order. The statement reads that petitioner held out to him that there was lot of trouble and there was pressure from top and therefore he had to be arrested. He then says that petitioner further told him that he would not arrest him but keep him sitting there and in the mean time the persons accompanying the respondent No. 1 should obtain fresh bail order from Malatdar and thereafter he will release him. He also said that this was in connection with involvement of the Respondent No. 1 under Section 151. It is equally common ground that after midnight the respondent No: 1 was released on a bond after some orders were obtained for his release from the Deputy Collector. Mr. Lotlikar now says that release of the petitioner on anticipatory bail is one thing and such duty demanded the petitioner arrest and detain the respondent No. 1 based on a subsequent complaint that too pursuant to an action under Section 151, Criminal Procedure Code. He therefore says that nothing can save the respondent No. 1 from the clutches of the provision of Section 197, Criminal Procedure Code in that unless the sanction is obtained, there is not even scope for issue of process. He relies upon the decision in Some hand Sanghvi v. Bibhutis Bhusan Chekrevarti. In this case the question arose whether on facts alleged as against the Assistant Commissioner of Police, who refused to grant bail in respect of offence under Section 420 of Indian Penal Code, unless the accused did something which the Assistant Commissioner of Police directed him to do and which he was not bound to do, sanction was at all necessary for prosecution of the Assistant Commissioner of Police for an offence under Section 348 of the Indian Penal Code. The ratio of the decision is that even when the act is illegal but as long as it is done in exercise of the duty of a public servant sanction is necessary. Mr. Lotlikar relies upon the next decision is of BL. Shukla and anr. v. Petmabai Ismail. This case arose out of Civil Proceedings instituted against a public officer in his official capacity. The matter that fell for consideration was Section 80 of the Civil Procedure Code which states that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered or, or left at the office of and, in a case of a public officer, delivered to him or left at his office, stating the cause of Action Whether in the absence of notice the suit could have been allowed to proceed. The question was viewed in the light of the facts, but then what is relevant to be noticed is that the causes of action which had arisen as a result of some offence alleged must be in respect of an act done or purported to be done in the discharge of official duty and it is further held that it does not apply to acts done purely in private capacity by public servants. Sometimes the question of good faith or bad faith is held to be irrelevant for consideration as to the necessity of requiring sanction. It is therefore, clear that though the law is well settled the difficulty arises in applying that the law to the facts of any particular case, for the intention behind Section 197, Criminal Procedure Code is that no public servants are being unnecessarily harassed. Mr. Lotlikar says that there is nothing to infer that the petitioner was keen in arresting and detaining respondent No. 1 and on the contrary, the disclosure of facts are abundantly in favour of the petitioner who clearly held out to the respondent No. 1 that he would keep him seated where he was and that he could ask hts friends accompanying him to obtain release order and this arrest and detention was based upon the subsequent complaint under Section 151, Criminal Procedure Code and which event was subsequent obtaining of the order for anticipatory bail which has no nexus therewith.

(3.) IN the light of this submission it is urged that there cannot be any further inquiry into the matter and the sole question to decide is whether the sanction was necessary and not whether the petitioner has prima facie committed an offence or not. Mr. G. U. Bhobe, learned Public Prosecutor has supported the petitioner and in that he pointed out that the petitioner was clearly acting within his powers under the Criminal Procedure Code and even on the assumption that he exceeded his powers in so much as he was discharging his duties, a sanction is a must in the present case.