Witness never gave any statement to the Police and his statement was made the part of record of investigation - Police Officer, thus, manipulated a false record of investigation to save somebody from being furnished

BOMBAY HIGH COURT

(Nagpur Bench) 

Before :- C. L. Pangarkar, J. 

Criminal Revision No. 86 of 2007. D/d. 26.7.2007.

Nandkumar S. Kale Versus Bhaurao Chandra-bhanji Tidke and Anr.

For the Petitioner :- S. V. Sirpurkar, Counsel.
For the Respondent No. 1 :- V. G. Bhambur-kar, Counsel.
For the Respondent No. 2 :- Y. B. Mandpe, A. P. P.

Cases referred :
Rakesh Kumar Mishra v. State of Bihar, (2006) 1 Supreme Court Cases 557.
Shambhoo Nath Misra v. State of U. P., AIR 1997 Supreme Court 2102,
Sankaran Motira v. Sadhna Das, (2006) 4 Supreme Court Case 584.

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JUDGMENT
C.L. Pangarkar, J. - Rule. Returnable forthwith. Heard finally with consent of parties.
2. This is a revision by an accused. A few facts may be stated thus:
The applicant is a police officer. At the relevant time he was working as in- charge of the Police Station Civil Lines, Akola.
On 2-12-96 the non-applicant No. 1 had lodged a report with the police station Civil Lines, Akola. He had alleged that his daughter-in-law along with her relative had committed robbery, trespass and theft. The police refused to take cognizance of the said complaint of Bhaurao i.e. non-applicant No. 1. Non-applicant No. 1, therefore, filed criminal complaint case bearing No. 1280/01 in the Court of Judicial Magistrate, First Class. The Judicial Magistrate First Class in the said criminal complaint passed an order under Section 156(3) of the Criminal Procedure Code and directed the police to investigate into the matter. On this an offence was registered by the police, initially the offence was investigated by P. Section 1. Aney and later since the offence is of a serious nature the investigation was taken over by the present applicant. The present applicant filed an application under Section 169 Criminal Procedure Code before the Magistrate after the investigation and prayed for discharge of the accused therein. The present applicant also filed a summary before the Judicial Magistrate. Judicial Magistrate First Class did not accept the summary and issued a process against the accused named in that complaint case. It is after that order was passed that Bhaurao die present non-applicant No. 1 instituted a criminal complaint against the present applicant under Sections 468, 471 and 218 of the Indian Penal Code.
3. In the said complaint case the present applicant filed an application to dismiss the complaint. The said application was dismissed on the ground that no sanction was obtained by the complainant to prosecute the present applicant. The Magistrate after hearing me parties dismissed the complaint on the ground that sanction was not obtained and the complaint was barred by limitation under Section 161 of the Bombay Police Act. The present non- applicant No. 1 therefore preferred a revision before the Sessions Judge. The revision was allowed and the matter was remanded back to the Magistrate with a direction that he will deal with the question of sanction under Section 197 Criminal Procedure Code and Section 161 of the Bombay Police Act after recording the evidence before charge and on hearing both the sides. Being aggrieved by that order the accuced/applicant has preferred this revision.
4. I have heard the learned counsel for the applicant and the non applicant.
5. From the facts narrated above it is clear that the complaint was referred to police under Section 156(3) of the Code of Criminal Procedure and an offence came to be registered against the present applicant/accused. It is also clear that one Sujata and Vijay were arrested in that case and later the investigation was taken over by the present applicant. It also appears that soon thereafter discharge report under Section 169 of Criminal Procedure Code was filed before the Magistrate and later B Summary was filed instead of a charge sheet. B Summary covers the following cases :

Class 'B' cases: Wherein no offence has been committed at all either by the accused or by any one else, but wherein the complaint is found to be "false and maliciously false".

Along with the said summary was sent a statement of one Deepak said to be recorded under Section 161. The learned Magistrate rejected the summary and recorded statement of complainant and his witnesses and issued process against the accused. It is the contention of the non-applicant that Deepak gave a statement before the Magistrate that no police officer had ever come to record his statement. It is the contention that although Deepak never gave a statement to police a statement purporting to be given by him was sent with B Summary. It is also contended that this was done wish a view to help the accused who are said to be relatives of the present applicant. The undisputed fact is that a complaint was sent to police station under Section 156(3) Criminal Procedure Code. It cannot be disputed that whenever such complaint is sent under Section 156(3) police officer is bound to register an offence and proceed to investigate into the crime. In this case after arrest of two accused the investigation, was taken over by the applicant herein. It is not disputed that he investigated the said offence and after completion of investigation he forwarded the statement purporting to be that of Deepak to the magistrate along with B Summary. Learned counsel for the applicant contended that this statement can be said to be recorded in discharge of the official duty or purported discharge of duty and as such provisions of Section 197 of the Code of Criminal Procedure are attracted. There is no doubt that whenever a statement is being recorded an officer the concerned officer must be said to be acting in discharge of duty. Their Lordships of the Supreme Court in Rakesh Kumar Mishra v. State of Bihar and others (2006) 1 Supreme Court Cases 557 : (AIR 2006 SC 820) have made the following observations:
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, which 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 the discharge of his duty then it must be given liberal and wide construction so far 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 an 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 the 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 the 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 the discharge of his duty can be deemed to be official was explained by this Court in Matyajog Dobey v. H. C. Bhari thus :

"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 aqct must bear such relation to the duty that the accused could lay a reasonable [claim], but nor a pretended or fanciful claim, that he did it in the course of the performance of his duty"

If on facts, therefore, it is Prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."

Obviously therefore if there is a reasonable connection of act done with discharge of his duty it must be held to be official duty. In the present case what is alleged against the applicant is that although witness Deepak never gave a statement to the police a statement said to be given by him in his name was made part of investigation. Obviously Deepak had not appeared before the investigating officer and he had not recorded any statement of Deepak. The statement said to be that of Deepak is therefore, not a statement and therefore the said statement which is on record can in no case be said to be recorded in discharge of the official duty. In fact this is therefore a case of preparation of false record of investigation and preparation of false record of investigation cannot be a part of the duty and it cannot be said to be done in discharge of the duty. If that is so treated then perhaps a police officer can show the investigation having been carried out even sitting at home.
6. Therefore, when any false document is prepared by the investigation officer during the course of investigation such an act would not be saved. He can be certainly said to be acting out of bounds and therefore this brings the case out of clutches of Section 197. It is different thing when there is wrong exercise or excessive exercise of power and it is a different thing to manipulate a record to save somebody from being punished. In a case reported in Shambhoo Nath Misra v. State of U. P. and other, AIR 1997 Supreme Court 2102, it is held that fabrication of record and misappropriation of public fund by public servant is not the official duty and therefore sanction is not necessary.
7. The learned counsel for the applicant contended that in the complaint itself respondent has pleaded that he has applied for sanction and the same is awaited. It was contended that even the applicant admits that sanction is necessary and now he cannot resile from the same. There cannot be any estoppel against law. If sanction is required it is required. The Court has to look into the question if such sanction is necessary or nor if the accused is a public servant, it contended on behalf of the respondent complainant that this question cannot be considered at the threshold but has to be considered along with the merits of the case. The contention is not correct. In a recent decision of the Supreme Court in Sankaran Motira v. Sadhna Das and another (2006) 4 Supreme Court Case 584 : (AIR 2006 SC 1599), it is observed as follows :

Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction, of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1) its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily nor at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question."

It is thus clear that the question can be decided at the threshold.
8. It was contended on behalf of the applicant that the Court could not take cognizance of the offence after a period of 6 months due to the prohibition contained in Section 161 of the Bombay Police Act. Section 161 reads thus :

161. Suits or prosecution in respect of acts done under colour of duty as aforesaid not to entertained, or to be dismissed if not instituted [within the prescribed period].

(1) In any case of alleged offence by [the Revenue Commissioner, the Commissioner], a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by [such Revenue Commissioner, Commissioner], Magistrate, Police Officer or other person, by any act done under colour or in excess of any such) duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the act complained of :

[Provided that, any such prosecution against a Police Officer may be entertained by the Court, if instituted with the previous sanction of the State Government within two years from the date of the offence.]

In suits as aforesaid one month's notice of suit to be given with sufficient description of wrong complained of

(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrong-doer one month's notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.

Plaint to set forth service of notice and render of amends

(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, and shall state whether any, and if any, what tender of amends has been made by the defendant.

A copy of the said, notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.
This section to my mind does not apply at all since it is found that the offence is nor committed in discharge of the official duty or purported discharge of the official duty. It is only if the action is required to be taken for offence committed in discharge of duty or purported discharge of the duty that the Section would apply. Hence I do not find any substance in the revision. It is dismissed. Magistrate shall now proceed to the accused.

Revision dismissed.

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