Vishnu Pratap Singh v. Surendra Pratap Singh and

herein in connivance with Mr. Surendra Pratap (Gram Pradhan) had insulted him and forcefully taken him to police station Reusa (Rausa), Sitapur from the crossroad on 08.10.2022 at about 4:00 P.M. In the complaint it was further stated that the Gram Pradhan had enmity towards the complainant and inasmuch as he wanted to use up his land and construct a one- meter pathway forcefully and at his instance, the applicants had hurled abuses on the complainant and threatened him for his life and assaulted him and forced him to sign a settlement under the threat of implication in a false case.

4. The said complaint was filed under Sections 500, 323, 504, 506, 427, 384 IPC. The Chief Judicial Magistrate after recording statements under Section 200 CrPC was of the view that the allegations levelled in the complaint are prima facie made out and accordingly had issued summons to the applicants vide order dated 01.02.2023. It has been submitted that on receipt of the said summons, the applicants have firstly filed an application for recall of the order dated 01.02.2023, which was dismissed on 08.05.2023 subsequent to which they had filed a revision which was withdrawn. They subsequently preferred a revision against the order dated 01.02.2023 after a period of seven months which according to the Chief Judicial Magistrate was beyond the period of limitation before the Additional Session Judge, Court No.14/ Special Judge (POCSO Act), Sitapur, who rejected the application on the ground of limitation holding that the applicants could not satisfactorily explain the delay in filing the said revision by means of the order dated

24.05.2024.

5. In the present petition under Section 482 IPC/ 528 BNSS the entire proceedings have been challenged apart from the order dated 24.05.2024. Apart from the above I have also considered application for condonation of delay where statement was made that the wife of the counsel engaged by the applicants had undergone a heart surgery due to which revision could not be filed in time and reports were annexed to justify the grounds taken therein. For the aforesaid reasons and also considering that the delay is of 27 months, I condone the delay and set aside the order dated 24.05.2024 of the Additional Session Judge, Court No.14/ Special Judge (POCSO Act), Sitapur.

6. It is submitted by learned counsel for the petitioners that no sanction of prosecution has been obtained by the complainant prior to issuing of summons. It was submitted that as per the provisions of Section 171 CrPC before taking cognizance the Magistrate is restrained from issuing summons without there being a valid sanction for prosecution. It has been submitted that the applicants are posted as Constables in the U.P. Police and the incident, on the basis of which the complaint has been filed, pertains to a discharge of duty under Section 197 of CrPC.

7. Learned A.G.A. on the other hand has opposed the said contentions and submitted that at a given point of time the complainant was neither an accused nor were the applicants investigating any case against the complainant and consequently, there was no occasion to have accosted him or take him to a police station forcibly in search for documents asking it to be security in favour of another person. He submits that the act done by the investigating officer is not in discharge of power and consequently removing the requirement of obtaining any sanction of prosecution and hence, there was no infirmity in issuance of summons and prayed for rejection of the said contention.

8. I have heard the rival contentions and perused the record, it is noticed that there was some previous enmity between the complainant and the Gram Pradhan and the applicants were allegedly acting in pursuance to assist the Gram Pradhan in securing for which the land owned by the complainant. It is in this backdrop that according to the complainant on 08.10.2022, he was accosted by the applicants who verbally abused him and forcefully taken to the police station where they forced him to sign certain documents which was a form for settlement in favour of the Gram Pradhan.

9. It is also not disputed that a complaint was lodged against the complainant on 16.10.2022 which was eight days subsequent to the said incident and accordingly, on the date of the said incident there was no occasion for the applicants, who have acted under the colour of the duty to seek to apprehend the complainant. It is further not the case of the applicants that the complainant was taken to police station for any interrogation or in regard to the official duties conducted by them.

10. Apart from the above, it seems that under the colour of the office, they may have been acting to assist the Gram Pradhan. Hence, in the present circumstance we do not find any provision for the complaint to obtain the sanction of the prosecution prior to issue of the processes against the applicants.

11. Section 197 is intended to guard against vexatious proceedings against public servants not removable from office except by or with the sanction of the government or higher authorities. For the application of section 197, the act which constitutes the offence must be in respect of an act done or purported to be done in the discharge of an official duty. The law in this regard is settled through numerous cases. Hon'ble Supreme Court in the case of Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624, has held that: "54. A careful reading of the above would show that protection against prosecution will be available only if the following ingredients are satisfied: (i) The person concerned is or was a Judge or Magistrate or public servant. (ii) Such person is not removable from his office save by the sanction of the Government. (iii) Such person is accused of commission of an offence. (iv) Such offence is committed while the person concerned was acting or purporting to act in the discharge of his official duties.

59. The expression "official duty" would in the absence of any statutory definition, therefore, denote a duty that arises by reason of an office or position of trust or authority held by a person. It follows that in every case where the question whether the accused was acting in discharge of his official duty or purporting to act in the discharge of such a duty arises for consideration, the court will first examine whether the accused was holding an office and, if so, what was the nature of duties cast upon him as holder of any such office. It is only when there is a direct and reasonable nexus between the nature of the duties cast upon the public servant and the act constituting an offence that the protection under Section 197 CrPC may be available and not otherwise. Just because the accused is a public servant is not enough. A reasonable connection between his duties as a public servant and the acts complained of is what will determine whether he was acting in discharge of his official duties or purporting to do so, even if the acts were in excess of what was enjoined upon him as a public servant within the meaning of that expression under Section 197 of the Code.

60. We are supported in that view by the decision of this Court in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where a three-Judge Bench of this Court held: (AIR p. 778, para 6) "6. … It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. … It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

61. The legal position was further elaborated and explained by another three-Judge Bench decision of this Court in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] , wherein this Court held that while Section 197 CrPC was capable of both liberal and narrow interpretations, a moderate and balanced approach was the correct way to interpret that provision to avoid an unfair advantage or disadvantage to the accused. This Court, therefore, evolved the test of a "direct and reasonable" connection between the official duty of the accused and the acts constituting the commission of offence. The Court observed: (SCC pp. 184-85, para 17) "17. 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) of the Code, are capable of a narrow as well as a 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, [Ed.: The matter between the two asterisks has been emphasised in original as well.] directly and reasonably [Ed.: The matter between the two asterisks has been emphasised in original as well.] connected with his official duty will require sanction for prosecution and the said provision.""

12. Considering the fact that neither the accused nor any investigation was handed over to the applicants. The applicants in the colour of the office acting as Constables are not required to abuse or accost or insult any member of general public nor nor force to take any person to the police station unless there is any apprehension of breach of any need to maintain law and order in their area. Such powers are not granted to police officers in a democratic system and certainly not under any provisions of law. Accordingly, this Court is of the considered view that their actions did not fall under the ambit that the act was done in discharge of their duty.

13. The second ground raised by the applicants is that the affidavit accompanying the complaint had a seal of Oath Commissioner Bar Association which the applicant apprehends as false and fictitious. There is no averment that this fact was verified from the appointing authority of the Oath Commissioner, which may either be the High Court or District Courts or any other authority. It is merely on his apprehension that he has stated that the affidavit is not being sworn before a competent authority.

14. A perusal of the complaint may indicate that the complaint was accompanied by affidavit and in case the said affidavit has certain defects if a question pertains which can be raised by the applicants before the trial court at the appropriate stage but such an objection cannot be very reasoned in itself to interfere with the summoning order. Apart from the above, defects in the affidavit are curable defects and merely because the affidavit has defects cannot be a reason for dismissal of the complaint.

15. In the light of the above, no other grounds was urged by the applicants during the impugned proceedings for the reasons stated above, I do not find any merit to the summoning order the petition may be devoid of merits and is accordingly dismissed. Order Date :- 20.3.2025 Mohd. Sharif [Alok Mathur,J.] MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench

herein in connivance with Mr. Surendra Pratap (Gram Pradhan) had insulted him and forcefully taken him to police station Reusa (Rausa), Sitapur from the crossroad on 08.10.2022 at about 4:00 P.M. In the complaint it was further stated that the Gram Pradhan had enmity towards the complainant and inasmuch as he wanted to use up his land and construct a one- meter pathway forcefully and at his instance, the applicants had hurled abuses on the complainant and threatened him for his life and assaulted him and forced him to sign a settlement under the threat of implication in a false case.

4. The said complaint was filed under Sections 500, 323, 504, 506, 427, 384 IPC. The Chief Judicial Magistrate after recording statements under Section 200 CrPC was of the view that the allegations levelled in the complaint are prima facie made out and accordingly had issued summons to the applicants vide order dated 01.02.2023. It has been submitted that on receipt of the said summons, the applicants have firstly filed an application for recall of the order dated 01.02.2023, which was dismissed on 08.05.2023 subsequent to which they had filed a revision which was withdrawn. They subsequently preferred a revision against the order dated 01.02.2023 after a period of seven months which according to the Chief Judicial Magistrate was beyond the period of limitation before the Additional Session Judge, Court No.14/ Special Judge (POCSO Act), Sitapur, who rejected the application on the ground of limitation holding that the applicants could not satisfactorily explain the delay in filing the said revision by means of the order dated

24.05.2024.

5. In the present petition under Section 482 IPC/ 528 BNSS the entire proceedings have been challenged apart from the order dated 24.05.2024. Apart from the above I have also considered application for condonation of delay where statement was made that the wife of the counsel engaged by the applicants had undergone a heart surgery due to which revision could not be filed in time and reports were annexed to justify the grounds taken therein. For the aforesaid reasons and also considering that the delay is of 27 months, I condone the delay and set aside the order dated 24.05.2024 of the Additional Session Judge, Court No.14/ Special Judge (POCSO Act), Sitapur.

6. It is submitted by learned counsel for the petitioners that no sanction of prosecution has been obtained by the complainant prior to issuing of summons. It was submitted that as per the provisions of Section 171 CrPC before taking cognizance the Magistrate is restrained from issuing summons without there being a valid sanction for prosecution. It has been submitted that the applicants are posted as Constables in the U.P. Police and the incident, on the basis of which the complaint has been filed, pertains to a discharge of duty under Section 197 of CrPC.

7. Learned A.G.A. on the other hand has opposed the said contentions and submitted that at a given point of time the complainant was neither an accused nor were the applicants investigating any case against the complainant and consequently, there was no occasion to have accosted him or take him to a police station forcibly in search for documents asking it to be security in favour of another person. He submits that the act done by the investigating officer is not in discharge of power and consequently removing the requirement of obtaining any sanction of prosecution and hence, there was no infirmity in issuance of summons and prayed for rejection of the said contention.

8. I have heard the rival contentions and perused the record, it is noticed that there was some previous enmity between the complainant and the Gram Pradhan and the applicants were allegedly acting in pursuance to assist the Gram Pradhan in securing for which the land owned by the complainant. It is in this backdrop that according to the complainant on 08.10.2022, he was accosted by the applicants who verbally abused him and forcefully taken to the police station where they forced him to sign certain documents which was a form for settlement in favour of the Gram Pradhan.

9. It is also not disputed that a complaint was lodged against the complainant on 16.10.2022 which was eight days subsequent to the said incident and accordingly, on the date of the said incident there was no occasion for the applicants, who have acted under the colour of the duty to seek to apprehend the complainant. It is further not the case of the applicants that the complainant was taken to police station for any interrogation or in regard to the official duties conducted by them.

10. Apart from the above, it seems that under the colour of the office, they may have been acting to assist the Gram Pradhan. Hence, in the present circumstance we do not find any provision for the complaint to obtain the sanction of the prosecution prior to issue of the processes against the applicants.

11. Section 197 is intended to guard against vexatious proceedings against public servants not removable from office except by or with the sanction of the government or higher authorities. For the application of section 197, the act which constitutes the offence must be in respect of an act done or purported to be done in the discharge of an official duty. The law in this regard is settled through numerous cases. Hon'ble Supreme Court in the case of Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624, has held that: "54. A careful reading of the above would show that protection against prosecution will be available only if the following ingredients are satisfied: (i) The person concerned is or was a Judge or Magistrate or public servant. (ii) Such person is not removable from his office save by the sanction of the Government. (iii) Such person is accused of commission of an offence. (iv) Such offence is committed while the person concerned was acting or purporting to act in the discharge of his official duties.

59. The expression "official duty" would in the absence of any statutory definition, therefore, denote a duty that arises by reason of an office or position of trust or authority held by a person. It follows that in every case where the question whether the accused was acting in discharge of his official duty or purporting to act in the discharge of such a duty arises for consideration, the court will first examine whether the accused was holding an office and, if so, what was the nature of duties cast upon him as holder of any such office. It is only when there is a direct and reasonable nexus between the nature of the duties cast upon the public servant and the act constituting an offence that the protection under Section 197 CrPC may be available and not otherwise. Just because the accused is a public servant is not enough. A reasonable connection between his duties as a public servant and the acts complained of is what will determine whether he was acting in discharge of his official duties or purporting to do so, even if the acts were in excess of what was enjoined upon him as a public servant within the meaning of that expression under Section 197 of the Code.

60. We are supported in that view by the decision of this Court in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where a three-Judge Bench of this Court held: (AIR p. 778, para 6) "6. … It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. … It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

61. The legal position was further elaborated and explained by another three-Judge Bench decision of this Court in B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] , wherein this Court held that while Section 197 CrPC was capable of both liberal and narrow interpretations, a moderate and balanced approach was the correct way to interpret that provision to avoid an unfair advantage or disadvantage to the accused. This Court, therefore, evolved the test of a "direct and reasonable" connection between the official duty of the accused and the acts constituting the commission of offence. The Court observed: (SCC pp. 184-85, para 17) "17. 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) of the Code, are capable of a narrow as well as a 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, [Ed.: The matter between the two asterisks has been emphasised in original as well.] directly and reasonably [Ed.: The matter between the two asterisks has been emphasised in original as well.] connected with his official duty will require sanction for prosecution and the said provision.""

12. Considering the fact that neither the accused nor any investigation was handed over to the applicants. The applicants in the colour of the office acting as Constables are not required to abuse or accost or insult any member of general public nor nor force to take any person to the police station unless there is any apprehension of breach of any need to maintain law and order in their area. Such powers are not granted to police officers in a democratic system and certainly not under any provisions of law. Accordingly, this Court is of the considered view that their actions did not fall under the ambit that the act was done in discharge of their duty.

13. The second ground raised by the applicants is that the affidavit accompanying the complaint had a seal of Oath Commissioner Bar Association which the applicant apprehends as false and fictitious. There is no averment that this fact was verified from the appointing authority of the Oath Commissioner, which may either be the High Court or District Courts or any other authority. It is merely on his apprehension that he has stated that the affidavit is not being sworn before a competent authority.

14. A perusal of the complaint may indicate that the complaint was accompanied by affidavit and in case the said affidavit has certain defects if a question pertains which can be raised by the applicants before the trial court at the appropriate stage but such an objection cannot be very reasoned in itself to interfere with the summoning order. Apart from the above, defects in the affidavit are curable defects and merely because the affidavit has defects cannot be a reason for dismissal of the complaint.

15. In the light of the above, no other grounds was urged by the applicants during the impugned proceedings for the reasons stated above, I do not find any merit to the summoning order the petition may be devoid of merits and is accordingly dismissed. Order Date :- 20.3.2025 Mohd. Sharif [Alok Mathur,J.] MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench