PETITIONER: PP UNNIKRISHNAN AND ANOTHER Vs. RESPONDENT: PUTTIYOTTIL ALIKUTTY ANR ANOTHER DATE OF JUDGMENT: 05/09/2000 BENCH: K.T. THOMAS, J. & R.P. SETHI, J. JUDGMENT:
T THOMAS, J.@@ JJJJJJJJJJ
Leave granted.
L…I…T…….T…….T…….T…….T…….T…….T..J
Two cops who are caught in the dock of a criminal court
want to pre-empt the trial on the ground of limitation. But
the trial court and the High Court did not accede to their
plea. Hence they are now before the Supreme Court
challenging the order of the High Court. How they got
themselves enmeshed in the cobweb of the criminal
proceedings can be narrated in brief: First appellant was
the Sub-Inspector of Police and second appellant was a
Police Constable attached to Perambra Police Station
situated in a moffusil centre within the Calicut district
(Kerala). First respondent, a middle aged shopkeeper of
Perambra, was living with his wife and three children within
the limits of the said Police Station. On 1.9.1995 the
first respondent (hereinafter referred to as the
complainant) filed a complaint against the two appellants
before the Judicial Magistrate of First Class Perambra
complaining that the appellants have committed offences
under Sections 325, 342, 330 and 506(1) IPC. The First
Class Magistrate after examining the complaint on oath and
after taking cognizance of the said offences issued process
to the appellants. They entered appearance in the
Magistrates court and raised preliminary objection that the
magistrate should not have taken cognizance of the offences
in view of the bar contained in Section 64(3) of the Kerala
police Act (for short the KP Act) which fixed a period of
six months from the date of commission of the offence for
taking cognizance thereof. The magistrate over-ruled the
objections. Appellants then moved the High Court under
Section 482 of the Code of Criminal Procedure (For short
the Code) for quashing the criminal proceeding initiated
by the complainant. They contended that the Magistrate
could not take cognizance of the offences as the complaint
was filed only after the expiry of six months of the alleged
commission of the offences. A learned single judge of the
High Court dismissed the petition as per the impugned order.
For dealing with the question raised in this appeal it
is necessary to extract, at least briefly, the allegations
made in the complaint. They are the following:
On the evening of 23.12.1994 the complainant was called
to the police station, he was asked to remain therein till
the arrival of the first appellant. But appellants did not
arrive at the police station on that evening nor was the
complainant permitted to leave the police station. Hence he
had to remain inside the police station overnight. On the
next morning, both the appellants reached the station. They
put the complainant in the lock up room, and first appellant
asked him did you not steal the articles from the next
shop? and so asking he started beating the complainant.
Thereafter both the appellants together showered a volley of
blows all over his body. He fell down. Appellants kept him
inside the lock-up room and left the police station. By
evening they returned to the police station and resumed
their assault operation during which they inflicted lots of
blows on different portions of his body by uttering the
words if you do not tell the truth you will be killed.
Thereafter the complainant was asked to sit on the floor and
then both the appellants stood on his legs and in that
posture they inflicted blows on him with hands as well as
lathi. He again fell down and this time he became
unconscious. He was kept in the lock up room from 24th
December, 95 till the morning of 27th December, 95. He was
released from the confinement of police station on the
morning of 27th after administering a warning that if he
divulged to any person outside of what happened he would be
trapped in a false case. The above is in substance the
allegations in the complaint.
Section 64 of the K.P.Act deals with initiation of legal
proceedings against police officers or magistrates. The
first two sub-sections are intended to afford protection
against any penalty or action for damages on account of any
act, done by such officers in good faith in pursuance of any
duty imposed or any authority conferred. Sub-section (3),
which is relied on by the appellants as the sheet anchor for
their safety, is extracted below:
No court shall take cognizance of any suit or
complaint, in respect of any offence or wrong alleged to be
committed or done by a Magistrate, Police Officer or other
person on account of any act done in pursuance of any duty
imposed or authority conferred on him by this Act or any
other law for the time being in force or any rule, order or
direction lawfully made or given thereunder unless the suit
or complaint is filed within six months of the date on which
the offence or wrong is alleged to have been committed or
done.
Learned Single Judge of the High Court repelled the
contention based on the sub-section on two premises. For
the first premise he made the following observations:
From the allegation made in the Annexure-A complaint it
is clear that the allegation made against the petitioner are
with regard to the commission of several offences punishable
under the IPC. By no stretch of imagination it can be said
that the offence alleged to have committed is in the
discharge of the official duties of the petitioners so as to
attract the protection under sec.64 (3) of the Police Act in
favour of the petitioners. Therefore, the contention of the
petitioners that since Annexure-A complaint is barred by
time the cognizance of the offence taken by the learned
Magistrate is illegal, is not sustainable.
The second premise is based on Section 473 of the Code.
Learned Single Judge has observed thus on that aspect:
Under Sec.473 of the Cr.P.C. the courts have got
jurisdiction not only in cases where applications are filed
to condone the delay by explaining the delay occurred
properly but also in appropriate cases even without any
application to condone the delay in order to meet the ends
of justice. In this case the petitioner has alleged the
reasons for the delay in filing the complaint. It is for
the trial court to consider whether there are sufficient
reasons to condone the delay in filing the complaint at the
appropriate stage merely because of the fact that the
complaint was filed after the lapse of six months from the
date of alleged offence committed or acts done the complaint
filed against the police officials cannot be thrown out
under Section 64(3) of the Police Act. If such contention
is accepted, the unscrupulous police officials can drag the
investigation for six months and contend that the complaint
filed subsequent thereto is barred by time.
Section 473 of the Code is the last of the provisions
subsumed in Chapter XXXVI of the Code. The title of that
Chapter is Limitation for taking cognizance of certain
offences. The Chapter contains a fasciculus of only seven
sections starting with Section 467. It is necessary to
extract that commencing provision which is as under:
467. Definitions.- For the purpose of this Chapter,
unless the context otherwise requires, period of
limitation means the period specified in section 468 for
taking cognizance of an offence.
It is clear from a reading of the said opening provision
that the entire Chapter concerns only with the period of
limitation prescribed in the succeeding provisions. Of
course the usual play at the joints is provided therein by
using the words unless the context otherwise requires.
But on reading Section 473 it would become crystally clear
that it is intended to be applied only with reference to the
period fixed in Section 468 of the Code. Now we extract
below Section 473 of the Code:
473. Extension of period of limitation in certain
cases. – Notwithstanding anything contained in the
foregoing provisions of this Chapter, any Court may make
cognizance of an offence after the expiry of the period of
limitation, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly
explained or that it is necessary so to do in the interests
of justice.
The extension of period contemplated in the said Section
is only by way of an exception to the period fixed as per
the provisions of Chapter XXXVI of the Code. Section 473 of
the Code therefore cannot operate in respect of any period
of limitation prescribed under any other enactment. Hence
we are unable to uphold the view adopted by the learned
Single Judge of the High Court that Section 473 of the Code
can appropriately be invoked by the complainant for
circumventing the bar contained in Section 64(3) of the K.P.
Act.
Shri L.N. Rao, learned counsel for the complainant made
an endeavour to support the impugned order of the High Court
by contending that the bar contained in Section 64(3) of the
K.P. Act would be restricted to the offences specified in
that Act and it cannot encompass any other offence under any
enactments, particularly the penal code offences.
To bolster up the contention learned counsel invited our
attention to the decision of this Court in Maulud Ahmad vs.
State of Uttar Pradesh {1963 Supp.(2) SCR 38}. In that case
one Police Head constable challenged his conviction and
sentence under Section 218 of the IPC. As the High Court
confirmed the conviction he approached this Court by special
leave. One of the grounds urged in this Court was based on
Section 42 of the Indian Police Act which says that all
actions and prosecutions against any person, which may be
lawfully brought for anything done or intended to be done
under the provisions of this Act, or under the general
police powers hereby given shall be commenced within three
months after the act complained of shall have been
committed, and not otherwise.
Subba Rao, J. (as the learned Chief Justice then was)
felt that Section 42 of the Indian Police Act does not apply
to prosecutions against any person for anything done under
the provisions of any other Act. The reasoning for adopting
the said legal position is quite obvious from the section
itself. Learned Judge has stated as follows:
Under S.36 nothing contained in the Police Act shall be
construed to prevent any person from being prosecuted under
any Regulation or Act for any offence made punishable by
this Act or for being liable under any other Regulation or
Act or any other or higher penalty or punishment than is
provided for such offence by this Act. This section makes
it clear that the provisions of the Act including s.42 do
not preclude a person from being prosecuted for an offence
under any other Act. A combined reading of these provisions
leads to the conclusion that s.42 only applies to a
prosecution against a person for an offence committed under
the Police Act.
The aforesaid provision is not identically worded as
Section 64(3) of the K.P. Act. The words any offence
mentioned in the said sub-section indicate that the
provision is not restricted to the offences specified in the
K.P. Act. It is advantageous in this context to refer to
Section 2(n) of the Code which is the definition for the
word offence. It means any act or omission made
punishable by any law for the time being in force.
Even otherwise there is nothing in Section 64 (3) of the
KP Act which would warrant a construction that the ban
therein is intended only with reference to the offences
mentioned in that Act.
Ms.M. Jayshree, learned counsel for the appellants
contended that Section 64(3) of the K.P. Act contains words
which are analogous to the words employed in Section 197(1)
of the Code and on that premise learned counsel requested us
to follow certain decisions for understanding the scope of
the sub-section concerned in the K.P. Act. Even assuming
that the words employed in those two different sub-sections
(one in the K.P. Act and the other in the Code) are the
same it has to be pointed out that the context envisaged in
Section 197(1) of the Code or the purpose of providing a
filter therein is demonstrably different from the object of
Section 64(3) of the K.P. Act. Section 197(1) of the Code
does not impose any absolute ban against taking cognizance
of the offence, but it only says that the sanction
contemplated therein is a condition precedent for taking
such cognizance. It obviously is for preventing public
servants from being subjected to frivolous prosecutions for
discharging their official duties. On the other hand,
Section 64(3) of the K.P. Act incorporates an absolute ban
against taking cognizance of the offences of the type
mentioned therein on the expiry of the period specified
therein.
That apart the words used in Section 197(1) of the Code
for qualifying the offence are seemingly wider. Those words
are these: any offence alleged to have been committed by
him while acting or purporting to act in the discharge of
his official duty. In Section 64(3) of the K.P. Act the
offence is qualified as the offence committed by a police
officer on account of any act done in pursuance of any duty
imposed or authority conferred on him, by this Act or any
other law for the time being in force or any rule, order of
direction lawfully made or given thereunder.
The commission of an offence, while acting or purporting
to act in the discharge of his official duty is of a wider
radius when compared with an offence committed on account of
an act done in pursuance of any duty or authority. In the
latter, the act done itself should be an exercise in
discharge of his duty or authority and that act should
amount to an offence. It is not enough that the act
complained of was only purported to be in exercise of his
duty though it maybe sufficient under the former. So the
scope under Section 64(3) of the K.P. Act is much narrower
than the amplitude of Section 197(1) of the Code for a
public servant to claim protection.
Even under Section 197 of the Code no protection has
been granted to public servants for the type of acts alleged
in the case against the appellants. Decisions are a legion
relating to the scope of the protection under Section 197(1)
of the Code. In Matakpg Dpneu vs. H.C. Bhari{1955 (2) SCR
925} this Court made a slight deviation from the view
adopted by the Judicial Committee of the Privy Council in
Gills case (1948 Law Reports 75). This Court after
referring to earlier decisions summed up the scope of
Section 197(1) of the Code thus:
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, that he
did it in the course of the performance of his duty.
While following the said decision this Court has found,
on a subsequent occasion, that a superior officer who
assaulted his subordinate for defying his orders could not
be said to have acted in the course of performance of his
duty, (vide Pukhraj vs. State of Rajasthan and Anr. {1974
(1) SCR 559}.
If a police officer dealing with law and order duty uses
force against unruly persons, either in his own defence or
in defence of others and exceeds such right it may amount to
an offence. But such offence might fall within the
amplitude of Section 197 of the Code as well as Section
64(3) of the K.P. Act. But if a police officer assaults a
prisoner inside a lock-up he cannot claim such act to be
connected with the discharge of his authority or exercise of
his duty unless he establishes that he did such acts in his
defence or in defence of others or any property. Similarly,
if a police officer wrongfully confines a person in the
lock-up beyond a period of 24 hours without the sanction of
a magistrate or an order of a court it would be an offence
for which he cannot claim any protection in the normal
course, nor can he claim that such act was done in exercise
of his official duty. A policeman keeping a person in the
lock-up for more than 24 hours without authority is not
merely abusing his duty but his act would be quite outside
the contours of his duty or authority.
Ms. M. Jayshree, learned counsel for the appellants,
made a last attempt to salvage the appellant from criminal
proceedings on the strength of a recent decision rendered by
this Court in K.K. Patel & anr. vs. State of Gujarat &
anr. {2000 (6) SCC 195}. That decision was rendered in
consideration of Section 161(1) of the Bombay Police Act.
The phraseology used in that sub-section is far wider than
Section 64(3) of the K.P. Act. Under the former protection
is given for acts done under colour or in excess of duty or
authority by providing that action should be initiated
within a particular period and if it is not so initiated
within that period the action can be initiated only with the
sanction of the Government. The said decision is of no help
to the appellants as the sub-section (3) of Section 64 of
the K.P. Act is differently worded.
If sub-section (3) of Section 64 of the K.P. Act is
given the interpretation sought for by the learned counsel
for the appellants, it may give rise to calamitous
consequences, e.g. if a police officer inflicts torture on
a prisoner inside the lock up and he knows that the right of
the prisoner to move within the time prescribed for such
acts would stand permanently debarred after the expiry of
six months, he might inflict such sorts of physical harm to
the prisoner as to disable him from moving out for the next
6 months so that the offending policeman would stand
permanently immuned from any prosecution proceedings in
respect of the offences committed by him. This may be only
an illustration in fiction but such fiction may turn out to
be reality, at least in exceptional cases. So the
interpretation which may lead to such dangerous consequences
should be averted.
For the aforesaid reasons we are not inclined to afford
the benefit envisaged in Section 64(3) of the K.P. Act to
the appellants. The appeal is hence dismissed.
