{"id":138266,"date":"2005-09-14T00:00:00","date_gmt":"2005-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-b-i-vs-dharampal-singh-and-anr-on-14-september-2005"},"modified":"2017-08-04T02:43:45","modified_gmt":"2017-08-03T21:13:45","slug":"c-b-i-vs-dharampal-singh-and-anr-on-14-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-b-i-vs-dharampal-singh-and-anr-on-14-september-2005","title":{"rendered":"C.B.I. vs Dharampal Singh And Anr. on 14 September, 2005"},"content":{"rendered":"
Delhi High Court<\/div>\n
C.B.I. vs Dharampal Singh And Anr. on 14 September, 2005<\/div>\n
Equivalent citations: 123 (2005) DLT 592, 2005 (84) DRJ 284<\/div>\n
Author: R Sodhi<\/div>\n
Bench: R Sodhi<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 R.S. Sodhi, J.   <\/p>\n
1. This criminal revision petition is directed  against  judgment dated 27.7.2000 of the Additional Sessions Judge in Criminal Revision No. 42 of 2000 whereby the learned Judge, while deciding the revision petition against  order dated  27.1.2000 of the Chief Metropolitan Magistrate, Delhi, whereby cognizance was taken under Section 304 IPC etc. against the petitioner, set aside  the Chief Metropolitan Magistrate’s order on the ground that sanction to prosecute the petitioner  was not in order.  The learned Additional Sessions Judge held that sanction under Section 140 of the Delhi Police Act was mandatory and that the same having not been taken would be a bar  for taking cognizance and further this sanction cannot be  obtained on account of limitation having run out in accordance with Section 140 of the Delhi Police Act.\n<\/p>\n
2. Brief facts of the case are  that on 8.12.1997 a stabbing incident took place under Hauz Quazi Police Station, Delhi, which gave rise to FIR No. 360\/97, under Section 307 IPC.  On 9.12.1997 at around 2.30 a.m. SHO Dharampal Singh and ASI Ramesh Chander  picked up  Hari Shankar and seven others when they could not find any clues of the assailant, allegedly the son of Hari Shankar.  In other words,  not being able to trace the accused, these police officers picked up the relatives of the accused  and brought them to the police station.  Hari Shankar and others were allegedly made to stand in  rain in the cold night and forced to beat each other with chappals.  They were not provided with food and clothes.  Hari Shankar and others were neither witnesses nor accused in the stabbing case but were being illegally detained by  SHO Dharampal Singh and ASI Ramesh Chander, the Investigating Officers of the stabbing case till 10.12.1997.  During this time,  it is alleged, that the detainees were  tortured in order to extract information about the whereabouts of the accused.  On 9.12.1997 at about 9.40 a.m. entries were made in the Daily Diary showing that the detainees were released which, on investigation, turned out to be false.  Documents were also prepared to show that notices under Section 160 Cr.P.C. were issued to Hari Shankar, Pyarelal and Hiralal while investigation showed that no such notices were issued and that the signatures obtained on the aforesaid notices were forged.  This was also the case that  notice issued to Hari Shankar.\n<\/p>\n
3. On 10.12.1997 at about 2.30 p.m. Accused-Dharampal Singh, SHO, beat up Hari Shankar and made him  ‘Murga’ in front of the room of  the SHO.  Hari Shankar was also kicked and beaten in this position.  At about  3.00 p.m. on 10.12.1997 Hari Shankar was brought back by a Constable and left in the room.  At this time, Hari Shankar could not stand and fell down on another detainee, Gurdyal Singh and Pyarelal.  Hari Shankar at that time  had become unconscious.  He passed stool and  urine too.  There was no movement in his body.  The co-detainees shouted for help and water but nobody came for their help. After about half-an-hour ASI Ramesh Chander came and told detainees, Gurdyal, Pyarelal etc. to take Hari Shankar to his house which they refused.  Then he told them to take him to a Nursing Home which also they refused.  The detainees requested  the ASI to take Hari Shankar to a Government hospital on which ASI Ramesh Chander closed the door from outside and went away.  He came back after sometime with an auto rikshaw and directed Gurdyal Singh, Pyarelal and Bharat to take Hari Shankar to the hospital.  On this, the three detainees took Hari Shankar to Lok Nayak Jai Prakash Hospital (for short LNJP).   At about 3.25 p.m. entry was made in the Daily Diary of the police station that Hari Shankar was handed over to Gurdyal and Pyarelal.  At about 5.05 p.m. on 10.12.1997, Hari Shankar was declared ‘brought  dead’ by the doctors ar LNJP Hospital. The hospital record mentions that Hari Shankar was repeatedly beaten up at the police station.  Shri Bhupesh Chander, brother of  Hari Shankar, made a complaint to the DCP that his brother had been tortured to death.\n<\/p>\n
4.  On 17.4.1998, on the request of Government of NCT of Delhi, the case was transferred to the CBI who registered R.C.5(S) 98, under Sections 342, 304, 302, 201 read with Section 34 IPC against SHO Dharampal Singh and others.  On 10.12.1999, CBI filed a challan against SHO Dharampal Singh and ASI Ramesh Chander under Sections 304, 342, 330, 201 read with Section 34 IPC.  This was filed after obtaining sanction from the Lt. Governor of Delhi.\n<\/p>\n
5. On 27.1.2000, the Chief Metropolitan Magistrate, Delhi, took cognizance of the offence under Sections 304, 342, 365, 323, 330, 201 IPC read with Section 34 IPC.  Being aggrieved of the cognizance taken, the respondents moved the Additional Sessions Judge by way of  a criminal revision petition, who, vide order dated 27.1.2000, discharged the accused-respondents on the ground that the charge-sheet was filed after expiry of limitation prescribed under Section 140 of the Delhi Police Act, therefore, the cognizance taken was illegal and not sustainable at law.\n<\/p>\n
6. It was contended by counsel for the petitioner-CBI that no sanction was required under Section 140 of the Delhi Police Act for the acts of the accused  since they did not fulfilll  the requisites therein which gave them protection for their official acts.  On the other hand, the respondent-accused contended that the CBI cannot be allowed to blow hot and cold.  Since the CBI did seek sanction and obtained one under Section 197 Cr.P.C., it was not open to the CBI to contend that no sanction was necessary and that the same had been obtained by  abundant caution and also to contend that the officials of the Delhi Police are not entitled to protection under Section 140 of Delhi Police Act.  It may be pointed out  that before arguments commenced, Shri Dharampal Singh-respondent discharged his counsel and chose to argue the matter himself.  His arguments were  more in the nature of merits of the case but did not touch upon the sanction aspect although in the written submissions made by him he did touch on the issue that was being looked into in the revision petition before this court.\n<\/p>\n
7. Having carefully examined the case in hand, it appears to me that this is a case which does not call for  nor qualify for the protection under Section 140 of the Delhi Police Act or  sanction under Section 197 Cr.P.C.  From the narration of  facts it is clearly made out that the  beating\/torture  inflicted on the deceased-Hari Shankar nor detaining  of Hari Shankar and other detainees was a part of official duty of the policemen.  In other words, it was a flagrant violation of the procedure established  by law which cannot be sanctified as a mere aberration   in the call of duty.\n<\/p>\n
8. Section 140 of Delhi Police Act, 1978, reads as under :\n<\/p>\n
 “140. Bar to suits and prosecutions<\/p>\n
(1)   In any case of alleged offence by a police officer or other person, or  of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority  or in excess of any such duty or authority, 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  and  if entertained shall be dismissed if it is instituted more than three months after the date of the act complained of;\n<\/p>\n
  Provided that any such prosecution against a police officer or  other person may be entertained by the court,  if instituted with  the previous sanction of  the Administrator, within one year from the date of the offence.\n<\/p>\n
(2)   In the case of an intended suit on  account of such a wrong as aforesaid the person intending to sue shall give to the alleged wrongdoer not less than one month’s notice of the intended suit with sufficient description of the wrong  complained of, and if  no such notice has been given before the institution of the suit, it shall be dismissed.\n<\/p>\n
(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 what tender of  amends, if any, has been made by the defendant and 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.”\n<\/p>\n
9. A reading of the section clearly makes out that what is necessary to invoke the protection there under is   ‘if the act is done under colour of duty  or in excess of such duty or authority’.  This section does not protect  every act of omission or commission  of a police officer in service.  The extent of  an act of omission or commission of a policeman in the discharge of his duties has been explained by the Supreme Court in K. Kalimuthu v. State by D.S.P.,  while dealing with Section 197 Cr.P.C. which sought to protect acts of public servants in the discharge of their duties. The Supreme Court has held –\n<\/p>\n
 “Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.  It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in  dereliction of it.  The act must  fall within the scope and range of the official  duties of the public servant concerned.  It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of  his official duty.  There cannot be any universal rule to determine  whether  there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule.  One safe and sure test  in this regard would be to consider  if the omission or neglect on the part of the public servant  to commit the act complained of could have made him answerable for  a charge of dereliction of his   official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty (under colour of duty) and there was every connection with the  act complained of and the official duty of the public servant.  This aspect makes it clear that the concept of Section 197 does not  get immediately attracted on institution of the complaint case.”\n<\/p>\n
10. From the aforesaid it is clear that not only is every act of  a policeman not covered for protection under Section 140 of the Delhi Police Act, 1958, but also must justify  that the colour of duty satisfies the  test i.e.  “if the omission or neglect on the part of the public servant  to commit the act complained of could have made him answerable for  a charge of dereliction of  official duty;  if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty (under colour of duty) and there was every connection with the  act complained of and the official duty of the public servant. – In the facts of the present case, as has already been stated, there is  no connection between the acts done and the  duty cast on the policemen.\n<\/p>\n
11. In that view of the matter, the order under challenge is set aside.  Crl. Rev. P. 522 of 2000 is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court C.B.I. vs Dharampal Singh And Anr. on 14 September, 2005 Equivalent citations: 123 (2005) DLT 592, 2005 (84) DRJ 284 Author: R Sodhi Bench: R Sodhi JUDGMENT R.S. Sodhi, J. 1. This criminal revision petition is directed against judgment dated 27.7.2000 of the Additional Sessions Judge in Criminal Revision No. 42 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-138266","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nC.B.I. vs Dharampal Singh And Anr. on 14 September, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-b-i-vs-dharampal-singh-and-anr-on-14-september-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.B.I. vs Dharampal Singh And Anr. on 14 September, 2005 - 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