RAMESH PAL Vs. AJHAR ALAM

JUDGEMENT

(1.) The complainant petitioner filed a criminal complaint against four police officers under sections 325/323/34 and 109, Indian Penal Code, before a Judicial Magistrate 1st Class, Barnala. One of the accused arraigned therein is Ajhar Alam, the then Assistant Superintendent of Police Barnala (now Superintendent of Police besides member of Indian Police Service). In the said complaint, all the four accused were summoned. While the matter was pending before the Court, the respondent moved an application that he be discharged, for under section 197, Criminal Procedure Code, the complaint could not proceed against him as the offence attributed to him had been committed while he was acting in the discharge of his official duties and the sanction of the Central Government was an essential prerequisite. The learned trial Magistrate vide his order dated 15-12-1981 dismissed the application observing as follows: At the stage, there is no material on the file from which it could be held that accused Ajhar Alam was conducting investigation against the complainant and his brother Parkash Chand in a murder case. The question whether the complaint can proceed without requisite sanction can be considered as and when some material comes on the file As there is no evidence on the file at this stage to hold that accused Ajhar Alam was conducting investigation of a murder case against the complainant and his brother, or that the accused had committed the alleged act in the discharge of his official duty, so the question whether sanction for the prosecution of the accused is required in this case cannot be considered at this stage. As and when some material will come on the record to the effect that the accused was acting or purporting to act in discharge of his official duty, the question of sanction will be considered thereafter.

(2.) Aggrieved against the said order, the respondent filed a revision petition before Shri M. S. Gill, Additional Sessions Judge, Barnala. He allowed the petition set aside the order of the learned Judicial Magistrate 1st Class, Barnala and dismissed the complaint against Ajhar Alam as premature and discharged him. He took the view that in the context, the learned Magistrate was hardly justified in taking cognizance of the offence without the sanction of the competent authorities under section 197 of the Code of Criminal Procedure. The complainant-petitioner has challenged that view in this Court.

(3.) Whether a police officer, inflicting or get inflicted under his order torture on a person during the course of an- investigation, is entitled to protection of sanction under section 197, Criminal Procedure Code, when prosecuted for the offence, is the significant question which has been raised in this petition. To answer that question, one has to discuss, analyse and differentiate the different strains of thought which prevail in judicial annals. It seems to me, there is a thin line of division earmarking the sources from which those strains have developed though they conclude at the same point, i.e. to confer immunity on public officers and judges from prosecution for offences committed while acting or purporting to act in the discharge of their official duties. I may broadly note those strains.