JUDGMENT
I.A. Ansari, J.
1. The order under challenge in the present revision was passed by the learned Chief Judicial Magistrate, Nalbari, on 07.10.1994, directing issuance of summons to, amongst others, the accused petitioner under Sections 343/330/34 IPC.
2. The material facts and chronology of events, which led to making of the present revision, may, in brief, be set out as follows:
(i) The opposite party herein, viz., Golok Chandra Kalita lodged a complaint, on 06.09.1994, in the Court of the Chief Judicial Magistrate, Barpeta, which have rise to Complaint Case No. 1385c of 1994, the case of the complainant being, in brief, thus: On 15.07.1994 at about 12 noon, accused No. 1, (i.e., the petitioner herein), who is an inspector of Police and was, at relevant point of time, Officer-in-Charge of Nalbari Police Station, accompanied by accused No. 2, Viz., Sudhangsu Sukla Baidhya, an inspector of Police at the said Police Station, and other staff, came to the business premises of the complainant at Pathshala and conducted a search of the complainant’s said business premises including the shop as well as the store house without following the legal procedure and, then the accused persons, taking the complainant along with one Nanki Ram @ Nanki, a thelawalla (i.e., a person who pulls hand cart), went to the house of the complainant located at Mugaria Village and conducted a search there too; but on finding no incriminating materials as either of the said two places, the said two accused persons brought the complainant and the said Shri Nanki to Nalbari Police Station, where the accused No. 1 (i.e., the present petitioner) assaulted the complainant and also the said Shri Nanki by a lathi with a view to extort confession from them to the effect that they had received the properties, which had been looted by the dacoits in the dacoity, which had taken place, on 09.06.1994, near Akhara of the said Police Station. Though the complainant and the said thelawalla repeatedly expressed their innocence and ignorance in the matter, the accused persons repeatedly beat them and tortured them in order to extort confession from them. As a result of such beating and torture, the complainant and the said Shri Nanki sustained injuries and for the injuries so sustained by them, the complainant and the said thelawalla had to be, later on, treated by doctor. On 15.07.1994, at about 3 P.M., the complainant’s witnesses came to the said Police Station and, on finding the complainant and the said thelawalla inside the lock-up of the said Police Station, they requested the accused persons to release the complainant and also the said thelawalla, but the accused No. 1 ill-treated the witnesses too and refused to enlarge the complainant on bail. Since the complainant and the said thelawalla were not produced in the Court till 18.07.1994, the complainant’s brother-in-law, Atul Talukdar, filed a petition in the Court of the Chief Judicial Magistrate, Nalbari, regarding the non-production of the complainant and the said thelawalla in the Court, whereupon the Chief Judicial Magistrate, Nalbari, called for a report from the accused No. 1 fixing 19.07.1994 and it was on 19.07.1994 that the complainant and the said thelawalla were forwarded to the Court of the Chief Judicial Magistrate, Nalbari, showing their date of arrest as 18.07.1994. The accused had, thus, wrongfully detained the complainant and the said thelawalla at the said Police Station and beaten and tortured them as mentioned hereinbefore and, eventually, implicated them falsely in Nalbari Police Station No. 155/1994 under Section 395/397 IPC, though the accused as well as the said thelawalla were completely innocent and no incriminating article had been recovered from their possession.
(ii) The learned Judicial Magistrate, who came in seisin of the said complainant, examined the complainant and his witnesses and, then, ordered, on 07.10.1994, issuance of summons against the accused persons including the present petitioner, the summons having been directed to be issued under Sections 343/330/34 IPC on the ground that there were materials to proceed under the said penal provisions of law. It is this order which stands impugned in the present revision by the accused No. 1.
3. I have heard Mr. J. Roy, the learned Counsel for the accused-petitioner, and Mr. D. Das, learned Additional Public Prosecutor, Assam.
4. The order, dated 07.10.1994, aforementioned, whereby summons have been directed to be issued to the accused-petitioner, has been challenged, in the present revision, on, basically, two grounds, the grounds being (i) that on the basis of an information, received at the said Police Station on 09.06.1994, that a dacoity had taken place, the complainant and the said thelawalla had been arrested for interrogation and, in course of time, charge sheet had been submitted against both of them along with some others and it was to wriggle out of the said criminal proceeding that the present complaint had been lodged mala fide against the accused-petitioner and others by levelling against them false accusations, and (ii) that the learned trial Court had no jurisdiction to take cognizance of the offences against the accused-petitioner inasmuch as the act allegedly done by the accused petitioner was, in fact, done in the discharge of his official duties and it was not permissible to proceed against him without requisite sanction having been granted by the Government in terms of Section 197 Cr.P.C.
5. In the case at hand, the contents of the complaint as well as the statements of the complainant and his witnesses undisputedly, disclose commission of offences under Sections 343 and 330 IPC against the accused-petitioner inasmuch as the complainant and the said thelawalla, according to the materials aforementioned, were taken into custody and detained unlawfully at the said Police Station from 15.07.1994 to 19.07.1994 and that they were, in fact, forwarded to the Court of the Chief Judicial Magistrate, Nalbari, even on 19.07.1994, after a complaint, in this regard, had been made, in writing to the Chief Judicial Magistrate, Nalbari, and a direction calling for report had been issued by the learned Chief Judicial Magistrate, Nalbari, fixing 19.07.1994 as the date for the report from the police. The materials on record also disclose that the accused-petitioner had allegedly beaten and tortured the complainant and the said thelawalla with a view to forcing them to make confession. That is to say, the alleged beating and torture were resorted to in order to extort confessions from the complainant and the said thelawalla to the effect that they knew about the dacoity, which had taken place on 09.06.1994, and that they had received booty of the said dacoity.
6. In the face of the incriminating materials on record, as indicated hereinabove, it cannot be said that no offence was disclosed by the complaint and/or the statements aforementioned. The fact that there was delay in filing of the complaint is an aspect of the case, which can be determined only at the trial, for, the complainant has offered an explanation for the delay, the explanation for the delay being that on account of the beating, torture and wrongful confinement, the complainant had fallen sick and could not, therefore, lodge the complaint promptly. Whether this explanation is true or false is a question, which can be answered only at the trial and not in this revision, for, it is only at the trial that the evidence for and against such explanation can be considered or would be considered by the learned trial Court.
7. Turning to the question as to whether in the facts and circumstances of the present case, sanction under Section 197 Cr.P.C. was required, it is pertinent to note that sanction under Section 197 Cr.P.C. is required only in respect of persons, who are removable from office by or with the sanction of the Government. Without entering into the discussion of the question as to whether an inspector of Police is covered by the provisions of Section 197 Cr.P.C. or not, what is of utmost importance to determine is this: whether, in the facts and circumstances of the present case, the accused-petitioner can be said to have done what he has allegedly done, while acting or purporting to act, within the meaning of Section 197 Cr.P.C. in the discharge of his official duties?
8. While considering the scope and ambit of Section 197 Cr.P.C., it may be borne in mind that the protection conceived under Section 197 Cr.P.C. is meant to protect responsible public servants from being dragged to vexatious criminal proceedings for offences allegedly committed by them, while acting or purporting to act as public servants. The object behind Section 197 Cr.P.C. is to afford adequate protection to public sen/ants in order to ensure that they are not prosecuted for acts done by them in the discharge of their official duties without reasonable cause and without sanction having been obtained from the Government concerned for such prosecution. This protection has defined parameters and is limited to such acts, which have been done by a public servant in the discharge or in the purported discharge of his official duties. To put it differently, the protection, envisaged under Section 197 Cr.P.C, is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, a public servant acts in excess of his duty, but yet if there is a reasonable connection between the act done and the performance of the official duty, the excess will not deprive the public servant of the protection available to him under Section 197 Cr.P.C. (See Bakhshish Singh Brar v. Smt Gurmej Kaur and Anr. . See also State of Himachal Pradesh v. M.P. Gupta, ).
9. While considering the scope of Section 197 Cr.P.C. it is apposite to recall the law laid down in H.H.B. Gill and Anr. v. The King , wherein the Privy Council held:
A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such to lie within the scope of his official duty.
This view has been approved by the Privy Council in Albert West Meads v. The King .
10. The acts, which Section 197 Cr.P.C. seeks to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. Thus, the protective umbrella of Section 197 Cr.P.C. extends to only such acts, which fall within the scope and range of a public servant’s official duty. In other words, for availing protection under Section 197 Cr.P.C. the act of the public servant concerned must not only fall within the scope and range of his official duty, but that the offence must be connected with the official duty and not unconnected therewith. The necessary corollary flowing from this limitation is that when an act is prohibited to be done by a public servant in the discharge of official duty, such act of the public servant, though committed during the discharge of the official duty, will not be protected under Section 197 Cr.P.C.
11. Dealing with the above aspect of the matter, the Apex Court observed and held, in P. Arulswami v. State of Madras , thus:
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 the quality of the act that it important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.
12. From what has been laid down in P. Arulswami (supra), it clearly follows that in order to seek and receive protection under Section 197 Cr.P.C. the public servant, if questioned, shall be able to claim that whatever he did was done by him by virtue of his offence and in discharge of his official duties. In short, the act, constituting, the offence must directly or reasonably be connected with the official duty and must have been done in the discharge or purported discharge thereof. Section 197 Cr.P.C. does not extent its protective cover to every act or omission done by a public servant in service, but restricts its scope of operation to only those acts or omissions, which are done by a public servant in the discharge or purported discharge of official duty.
13. A close analysis of the provisions of Section 161 and 163 Cr.P.C. read with Section 24 of the Evidence Act clearly indicates that a police officer is prohibited from beating or confining any person with a view to, inter alia, induce and threaten such a person to make statement or confession. In fact Section 330 IPC makes the act of causing hurt, aimed at extorting confession, an offence punishable with imprisonment for a term, which may be extended to seven years. In view of such statutory prohibition, it cannot be argued that the acts complained of, in the present case, are acts done ‘by the accused-petitioner under the colour of his duty or authority. There is no legitimate and perceptible connection between the acts, which the accused-petitioner has allegedly done, and the duties and obligations cast upon him by law. When the law has prohibited an officer from doing what he has done, he cannot be heard to say that what he had done was in exercise of his duties or even purported exercise of his duties. It is no part of a duty of a Police Officer to beat a person at the Police Station to extort confession from him nor is it a part of the duty of a Police Officer to confine a person at the Police Station without having arrested him, for in the case at hand, the complaint discloses that the complainant was allegedly taken into custody as early as on 15.07.1994, but was produced before the chief Judicial Magistrate as late as on 19.07.1994 and that too, when a report was called for, in this regard, by the Chief Judicial Magistrate on the basis of a complaint made by the complaint’s brother-in-law to the effect that the complainant and the said thelawalla had been kept detained illegally and were being tortured at the said Police Station.
14. The facts of the present case aresubstantially covered by the Apex Court’s decision in State of Maharashtra v. Atma Ram and Ors. AIR 1966 SC 1786, where the Apex Court observed and held as follows:
In State of Maharashtra v. Barharrao Cri. Appeal No. 214 of 1966 : AIR 1966 SC 1983, judgment in which has been pronounced just now, we have considered the true legal effect of Section 161 (1) of the Bombay Police Act. We have expressed the view in that case that there must be a reasonable connection or nexus between the alleged act and the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment conferring powers on the police under the colour of which the act may be said to have been done.
It is apparent in this case that the First information report was recorded on September, 5,1962 on the enquiry report of respondent No. 1 and investigation commenced thereafter. There is nothing in the language of Section 64 (B) of the Bombay Police Act to suggest that the police officer is authorized to beat the persons examined or to confine them for the purpose of inducing them to make a particular statement. Section 161, Criminal Procedure Code empowers any police officer investigating a crime or any other police officer acting on his requisition to examine orally any person supposed to be acquainted with facts and circumstances of the case. That section further provides that such person shall be bound to answer to which would have tendency to expose him to a criminal charge or to a penalty or forfeiture. It is necessary, in this connection, to notice the provisions of Section 163, Criminal Procedure Code which is to the following effect.
163.(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in the Indian Evidence Act, 1872 Section 24.
(2) But no police officer or other person shall prevent, by any caution or otherwise any person from making in the course of any investigation under this chapter any statement which he may be disposed to make statement of his own free will.
The provisions of Sections 161 and 163 of the Criminal Procedure Code emphasize the fact that police officer is prohibited from beating or confining persons with a view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts complained of. in this case, are acts done by respondents under the colour of their duly or authority. In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act. This view is borne out by the decision of this Court in State of Andhra Pradesh v. N. Venugopal , in which the effect of Section 53 of the Madrass District Police Act was construed by this Court and it was held that the protection of that section cannot be extended to police officers accused of beating a person suspected of a crime or confining him in the course of investigation. A similar view has been expressed by full Bench of the Bombay High Court in Narayan Hari v. Yeshwant Raoji AIR 1928 Bom 352 (FB), in which a Sub-Inspector of Police while investigating a cognizable offence against two berads sent for the plaintiff and questioned him as to his connection with the berads. The plaintiff disclaimed all knowledge about the berads. Then it was alleged defendant No. 1 the Sub-Inspector, grew angry and abused the plaintiff and pulled him up by his moustache. It was further alleged that defendant No. 2 at the instance of defendant No. 1 beat the plaintiff. The plaintiff filed a suit to recover damages from the defendants for their alleged wrongful treatment of him. It was held by the Full Bench that the alleged assault or battery cannot be said to have been committed under colour or in excess of such duty or authority under Section 80(1) of the Bombay Police Act and that the defendants were not entitled to notice either Section 80(4), Bombay District Police Act or Section 80 of Civil Procedure Code.
4. For these reasons we hold that this appeal should be allowed, the judgment of the High Court acquitting the respondents should be set aside and the appeal is accordingly ordered to be remanded to the High Court for being dealt and disposed of in accordance with law.
15. From a careful reading of what has been observed in Atma Ram (supra), it is abundantly clear that though a Police Officer is entitled to interrogate any person, he is prohibited by law from beating or confining any person in order to force him to make statement or with a view to extort confession from him. Whether, as a matter of fact, what the complainant has alleged is true or not is a question, which can be determined at the trial and not in this revision. For determining the question as to whether, in the present case, sanction under Section 197 Cr.P.C. was required or not, we have to assume that the contents of the complaint are true and if so construed, it will clearly transpire that what the accused-petitioner had allegedly done were, in the light of the what has been laid down in Atma Ram (supra), prohibited by law.
16. The acts alleged against the accused-petitioner, thus, fall, same as in the case of Atma Ram (supra), completely outside the scope of the duties of the accused-petitioner and his case cannot, therefore, be said to be covered by the protection given under Section 197 Cr.P.C.
17. Following the decision in Atma Ram (supra), a Division Bench of this Court has decided, on 24.06.1997, Criminal Revision 221(J) of 1976 (Haricharan Kalita v. State of Assam and Ors). and Criminal Revision No. 1(J) of 1997 (Harekrishna Bharali v. Debabrata Choudhury and Ors.), wherein the complainant had allegedly been assaulted and injured by the Police Officers and it had been contended by the Police Officers that their acts were covered by the protection contained in Section 197 Cr.P.C. Taking note of the decision in Atma Ram (supra), the Division Bench observed, “In addition to the above case, which explain the proposition of law, it seems rewarding to refer, in particular, to the case of State of Maharashtra v. Atma Ram and Ors. AIR 1966 SC 1786 which was a case arising under the Bombay Police Act (22 of 1951) and involving alleged beating (assault) by policeman. Ramaswami, J. speaking for the Court was concerned with Section 161(1) and Section 46(b) of the said Act. It was observed that there was no connection between the alleged acts of beating and confinement and duties imposed on the police officer and the accused was not therefore entitled to the protection under Section 16(1) of the Bombay Police Act, a provision somewhat similar to Section 197, Cr.P.C. what is of particular importance to the present case are the observations of Ramaswami, J concerning Section 163 of the Cr.P.C. which reads as follows:
163(1): No police officer or other person in authority shall offer or make or cause to the offered or made, any such inducement, threat or promise as is mentioned in the Indian Evidence Act, 1872, Section 24.
(2) But no police officer or other person shall prevent by any caution or otherwise, any person from making in the course of any investigation under this chapter any statement which he may be disposed to make to of his own free will
It was pointed out that not only Section 163, quoted above, but also Section 161 of the Cr.P.C. emphasized the fact that police ‘is prohibited from beating or confining persons with a view to induce them to make statement” (emphasis added). The above observation concerning the above statutory prohibition against beating of persons with a view to inducing them to make statements seems apposite to the present situation in both these cases. In like manner, the alleged assaults by Shri Debabrata Choudhury in the room of the S.P’s office, on Shri Haricharan Kalita and Shri Hare Krishna Bharali after they had been taken there seems to be clearly “outside the scope of duties” of Shri Debabrata Choudhury. The reliance by Shri P.C. Kakati, learned Counsel for the State of Assam on Dubey’s case and the observations particularly in para 23 (extracted above) seem to be hardly of any avail in view of the principles which have been explained so clearly in that case itself.
18. From what has been observed above, it is clear that the primary test for determining if an act, which constitutes offence, is an act, which can be claimed to have been done in the discharge or purported discharge of the duty, is that when questioned, the officer must be able to say that whatever has been done by him is in the discharge or purported discharge of his duties. There is subtle, but definite distinction between the expression ‘during the discharge of official duties’ and ‘in discharge of official duty’. An Officer may be on duty; but what he might have done may be an offence, which will fall outside his duty.
19. For instance, when a Police Officer, on duty, commits offence of rape, he cannot say that since he was on duty, the act done by him is protected by Section 197 Cr.P.C. The test, therefore, is that the act, which an accused has allegedly done, must be shown to form part of his duty, though he may have exceeded his powers, while discharging his duties. In the case at hand, as is clearly seen, it is not the duty of a Police Officer to detain and beat any person in order to extort confession. Far from this, the law prohibits Police Officers from detaining and/or beating and/or coercing any person in order to induce or force such a person to make any statement, far less confession. What the accused-petitioner has allegedly done, in the present case, is an act prohibited by law and, hence, his said acts, having fallen outside the scope of his duty, cannot be said to have been done by him in the discharge or purported discharge of his duties.
20. What emerges from the above discussion is that neither the present complaint is of the nature, which can be quashed, nor can the impugned order directing issuance of process can be interfered with on the ground of absence of sanction for prosecution of the accused-petitioner under Section 197 Cr.P.C. Because of what have been discussed and pointed out above, I find absolutely no merit in the present revision. The revision shall, therefore, stand dismissed accordingly.