BALBIR SINGH DELHI ADMN. DELHIversusD.N. KADIAN, M.M. DELHI & ANR.

    812


A                    BAI.BIR SINGH DEU!l AI»!N. DEUII
                                   v.
                     D,N, KADIAN, M.M. DEUII &ANR.
                         D,N, KADIAN AND ORS.

                           DECEMBER 10, 1985
B
                       [A.P, SEN AND B.C. RAY, JJ,]

           Code of Criminal Procedure, 1973, s. 197(3) - Prosecution
    of member of Delhi Police Force - Prior sanction of the Govern-
    ment - Whether necessary and if so, when.
c          A Complaint was filed by the Special Railway Magistrate
    against the appellants, Balbir Singh and Ram Shankar, members of
    Delhi Police Force, alleging that the Search Memos which were
    signed by the sub-Inspector Balbir Singh did not bear any
    signature of the witness Ram Shankar at the time when the said
    Search memos were in the custody of the Court and that they were
    interpolated subsequently by getting the same signed by the
D   accused, Ram Shankar. The appellants contended before the Trial
    Court that the aforesaid complaint was not maintainable since
    prior sanction as required by s. 197(3) Cr.P.C. was not obtained
    by the complainant to prosecute them. The trial court rejected
    the contention and the High Court confirmed the same in appeal by
    the appellants. The High Court, however, held that the Notifica-
E   tion No. F.10/77/78-HP-ll dated 7th April 1980 issued by the Lt.
    Governor directing that the provisions of sub-s.(2) of s. 197
    "shall apply to serving police officials of all ranks of Delhi
    Police Force" charged with the maintenance of public order, was
    bad in law as the Lt. Governor had no authority to issue the said
    Notification under sub-s.(3) of s. 197 Cr.P.C.
F
          Allowing Criminal Appeal No. 845/85 partly and dismissing
    the other appeal,

          llEID: l (i) The Judgment and order of the High Court
    declaring the impugned notification dated 7th April 1980 issued
G   by the Lt. Governor of Delhi to be ultra ~ is set aside and
    the learned Magistrate is directed to proceed with the case in
    accordance with law. [817 Fl

          (ii) By virtue of the Notification No. S.0.183(E) dated
    20th March 19 74, the President empowered the Administrator of
H   Union Territories, i.e. Lt. Governor of Delhi to exercise the
                   BALBlR SINGH v. D,N, KADIAN                  813

                                                                      A
powers and functions of the State Government as provided in the
Code of Criminal Procedure except the powers and functions
provided in sections 8 and 477 of the said Act, The Notification
dated 7th April 1980 issued by the Lt. Governor was made in
exercise of powers conferred upon him under sub-section (3) of
Sec. 197 of the Code of Criminal Procedure read with the Govern-      B
ment of India Notification dated March fO, 1974 mentioned before.
Therefore, the Notification is not ultra vires the Constitution.
[815 IH]

      2. Reading the two notifications together, it is crystal
clear that to start a proceeding against the members of all ranks     c
of Delhi Police Officials in a Criminal Court, previous sanction
of the Lt. Governor is imperative, provided tile offence alleged          •
to have been colllllitted by such members of the D,lhi Police Force
has been comnitted while acting or purporting to act in discharge
of their official duty. [815 Fl
                                                                      D
      ln the instant case, the previous sanction of the Lt.
Governor as provided in Section 197(3) Criminal Procedure Code
was, not at all necessary for initiating the proceedings against
the two appellants, since the act of tampering of the Search
Memos by them cannot be said to have been done in discharge of
their official duties inasmuch as the said Search Memos were in       E
the custody of the Court. [817 E-F]

      Hatajc)g Dobey v. e..c. llbari, [1955] 2 s.c.R. 925; Pukhraj
V• State of Bajasthan & Anr., [1973] 2 s.c.c. 701; Bbagwan Prasad
Srivastava v. N.P.Hisra, [1971] 1 S.C.R. 317 and Darsban """'8r v.
Sushll Kamar Malhotra & Ors., 1980 Cr!. L.J. 154 relied upon.
                                                                      F
      Bbikhaji Vaghaji v. L.L Barot and Ors., 1982 Cr. L,J, 2014
approved.

      CRIMINAL APPELLATE JURISDICTION     :   Criminal Appeal Nos,
844-845 of 1985,
                                                                      G
      From the Judgment and Order dated 1.12.1982 of the Delhi
High Court in Crl. Misc. (Main) No. 551 of 1982,

     Anil Ileo Singh, R.N. Poddar and P,K, Mukharjee      for   the
Appellants,

      Anil Kumar Gupta, Amicus Curiae for the Respondents.            H

      lhe Judgment of the Court was delivered by
        814            SUPREME COURT REPORTS        (1985] SUPP. 3 s.c.R.
    A

              B.C.RAY, J.   The only question involved in these two
        appeals is whether the criminal proceedings initiated against the
        appellants, i.e. Balbir Singh Sub-Inspector and Ram Shanker,
        Constable of Delhi Police Force is maintainable in the absence of
    B
        any prior sanction obtained from the Lt. Governor as required
        under s.197 (3) of the Code of Criminal Procedure.

              Section 197(1) of the Code of Criminal Procedure envisages
        that no court can take cognizance of any offence alleged to have
        been committed by a Judge or Magistrate or a public servant while
        acting or purporting to act in the discharge of his official duty
    c   without previous sanction of }he Government. Sub-section (2) of
•       that Section further provides that 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 discharge of his official duty, without obtaining the prior
        sanction of the Central Government. Sub-section (3) of the said
        Section further provides that the State Government may by
    D
        notification direct that the provisions of Sub-section (2) shall
        apply, to such class or category of members of the Forces charged
        with the maintenance of public order as may be specified in the
        said order, and upon such notification being made, the provisions
        of Sub-section (2) will apply as if for the expression "Central
        Government" occurring therein, the expression "State Government
    E
        were substituted.

              The appellants are undoubtedly the members of Delhi Police
        Force. It is also not in dispute that these appellants do not
        fall within the category of officers mentioned in Sub-Section (1)
        of Sec. 197 of Criminal Procedure Code and as such no prior
    F
        sanction of the Government is necessary in order to launch a
        prosecution against these officers. The only question remains to
        be considered is whether the appellants being members of the
        Delhi Police Force are entitled to get the benefit of Sub-Section
        (3) of Section 197 of Criminal Procedure Code by virtue of the
        notification No. S.O. 183(E) dated 20th March, 1974 issued by the
    G
        Under Secretary of India read with the notification dated 7th
        April, 1980 issued by the Lt. Governor, Delhi under No.F.10/77/-
        78-HP-II. Delhi is a Union Territory within the meaning of Arti-
        cle.! read with the First Schedule to the Constitution as amended
        by the Constitution (7th amendment) Act 1956. The power to
        administer the Union Territory is vested in the Prestdent under
    H
        Article 239 of the Constitution and Clause l of the said Article
        empowers the President to administer the Union Territory through
           BALBIR SINGH v. D,N, KADIAN [B.C, RAY, J,]         815


and Administrator to be appointed by him. The Administrator
                                                                     A
appointed by the President under Art. 239(1) of the Constitution
with the designation of Lt. Governor of Delhi derives only such
powers, functions and duties as are entrusted to him by the
President under Art. 239(1), In accordance with the provisions of
this Art. 239(1) the aforesaid notification dated 20th March,
197 4 has been made whereby the President had directed that the
                                                                     B
Administrators of all the Union Territories other than Arunachal
Pradesh and Mizoram exercise, subject to the control of the
President, the powers and dishcarge the functions under the Code
of Criminal Procedure 1973 as mentioned in Schedule annexed
thereto, subject to the condition mentioned therein. The said
notification was enforced on lst April, 1974. In this Schedule
all powers and functions of the State Government except those
                                                                     c
conferred by Sections 8 and 477 of the Code were conferred on the
Administrator. Therefore, by virtue of this notification, the
President empowered the Administrator of Union Territories, i.e.
Lt. Governor of Delhi to m<ercise the powers and functions of the
State Government as provided in the Code of Criminal Procedure
                                                                     D
except the powers and functions provided in Sections 8 and 477 of
the said Act. It also appears from the notification dated 7th
April, 1980 that the Lt. Governor directed that the provisions of
Sub-Section (2) of Sec.197 "shall apply to serving police
officials of all ranks of Delhi Police Force" charged with the
maintenance of public order. Til.is notification was made in
                                                                     E
exercise of powers conferred upon the administrator under Sub-
section (3) of Sec. 197 of the Code of Criminal Procedure read
with the Government of India Notification Dated March 20, 1974
mentioned before, Reading these two notifications together, it is
crystal clear that to start a proceed~ng 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
                                                                     F
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.

      In the instant case the act of tampering of the Search
Memos by the two appellants i.e. Balbir Singh and Ram Shankar
                                                                     G
cannot be said to have been done in discharge of their official
duties inasmuch as the said Search Memos were in the custody of
the Court. The complaint was filed by the Special Railway
Magistrate alleging that Search Memos which were signed by the
Sub-Inspector Balbir Singh did not bear any signature of the
witness Ram Shank.ar at the time when the said Search Memos were
in the custody of the Court. Subsequently, it has beeri interpola-
                                                                     H
ted by getting the same signed by the accused Ram Shankar. This
    816             SUPREME COURT REPORTS        (1985] SUPP. 3 s.c.R.

A   act of tampering and interfering with the records of the Court by
    the two petitioners by any stretch of imagination cannot be said
    to have been done or purported to have. been done by the
    petitioners in discharge of their official duty. It is pertinent
    to refer in this connection to the decision of this Court in
    lfatajog Dobey v. u.c. llbari, [1955] 2 s.c.R. 925, where this
B   Court laid down the scope of the pro.tection afforded by Sec. 197
    of the Code of Criminal Procedure in the following terms :

               "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,
c              that he did it in the course of the performance of his
               duty."

    These observations have been followed by this Court in l'ukhraj v.
    State of llajastban &Anr., [1973] 2 s.c.c. 101.

         In that case the Post Master General of Rajasthan abused and
D   kicked a Clerk of the Head Post Office when a clerk of the Head
    Post Office of Jodhpur went to make some oral representations to
    the Post Master General. The clerk filed a complaint against the
    Post Master General under Sec. 323 and 504 I.P.C. before the
    Additional Munsif Magistrate of Jodhpur city. An application was
    filed praying that no cognizance of the offence would be taken
E   without the sanction of the Government under Sec. 197 of Criminal
    Procedure Code. It was held that the acts alleged were not done
    in due discharge of his official duty and so no prior sanction of
    the Government was necessary under Section 197 of the Code.

         In Bhagwan Prasad Srivastava v. N.P. Misra, [1971] 1 S.C.R.
F   317, the respondent filed a complaint alleging that the
    appellant, a Civil Surgeon used'defamatory and abusive words and
    got him pushed out by the cook of the hospital. It was found that
    the case was not covered by Sec. 197 of the said Act as those
    acts were not done in discharge of his official duty.

G        In the case of Darshan Kumar v. Susbil Kumar Malhotra &
    Ors., 1980 Cr. L.J. 154, it was found that the acts complained of
    against Respondents Nos. 1, 3 and 4 were purported to have been
    done by them in discharge of their official duties and it was
    reasonably connected with their official duties. As such it was
    held that prior sanction of the State Government was necessary in
H   prosecuting them in respect of the offence, if any, made out from    'j
    the con:mission of such acts.                                        1111
           BAI.BIR SINGH v. O.N. KADIAN [B.C. RAY, J.j       817


     As regards scope and ambit of Sec. 197(3) of the Code of       A
Criminal Procedure it has been rightly observed by the Division
Bench of the Gujarat High Court in Bhikhaji Vaghaji v. L.K. Barot
8lld Ors., 1982 Cr. L.J. 2014, that after the issuance of the
notification by the Government under Sec. 197(3) of the Criminal
Procedure Code directing that the provisions of Sub-Sec.(2) of
Sec. 197 shall apply to the Police Officers charged with the        B
maintenance of public order, the same could not be questioned on
the ground of non-application of mind as it is within the scope
and ambit of Sub-Sec. (3) of Sec. 197 of the Code. It was also
observed that :

           "Before the protection of sub-sec.(2) of Section 197     c
           of the Code could be had and the proceedings are
           dropped on that count, the learned Magistrate is under
           an obligation to decide that the alleged acts
           attributed to the members of the police force are acts
           done in the discharge of their official duties, or at
           any rate, they purport to be, or bear the colour or      D
           semblance of, the acts that could be done in the
           discharge of their official duties."

     We have already said that the alleged acts of tampering the
Search Memo while the same was in custody of the Court cannot be
deemed to be an act purported to have been done by these two        E
appellants in discharge of their official duties. Therefore, the
previous sanction of the Lt. Governor as provided in Section
197(3) Criminal Procedure Code was, in our considered opinion,
not at all necessary f~: initiating the proceedings against
these two appellants, who are members of the Delhi Police Force.
For the reasons stated hereinbefore the Appeal filed by the Delhi
Administration succeeds and is allowed and the Appeal filed by      F
the accused is dismissed. The Judgment and Order of the High
Court declaring the impugned notification dated 7th April, 1980
issued by the Lt. Governor of Delhi to be ultra vires is set
aside and the learned Magistrate is directed to proceed with the
case in accordance with law.
                                                                    G
     We are thankful to Sri Anil Kumar Gupta for the assistance
he has rendered as Amicus Curiae.



M.L.A.                        Criminal Appeal 844/85 dismissed.
                           Criminal Appeal 845/85 partly allowed.   H