The High Court quashed a criminal proceeding involving allegations of death by torture. The court held that the lower Magistrate failed to apply judicial mind by ignoring medical records indicating cardiac arrest as the cause of death.
Order dated 22.02.2007 quashed and set aside; matter remanded to pass fresh order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 427 of 2007
CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY
--For the Petitioners : Mr. B. M. Tripathi, Sr. Advocate & Mr. Mahesh Kumar Sinha, Advocate & For the State : Mr. Rajesh Kumar Mishra, APP For the O.P. 2 : None
Order No. 07 Dated 08th May, 2018
1 Heard Mr. B. M. Tripathi, learned senior counsel appearing for the petitioners and Mr. Rajesh Kumar Mishra, learned counsel appearing for the State. No one appears on behalf of opposite party No. 2.
having not been disbelieved by the opposite party No. 2, would lead to an irresistible conclusion that the deceased died on account of cardio pulmonary arrest, which can occur at any stage irrespective of the age or gender of the patient. Learned senior counsel has attacked the order taking cognizance dated 22.02.2007 by submitting that the same smacks of nonapplication of judicial mind on the part of the learned Magistrate as he had taken into consideration facts which are not germane for the purpose of taking of cognizance or otherwise. It has been stated that according to the witnesses after the death of the deceased he was cremated but the learned Magistrate has referred to a postmortem report which is never in existence. Learned senior counsel has also stated that admittedly the petitioners had acted in his official capacity in discharge of his duty, but no sanction was taken in terms of Section 197 Cr.P.C. Learned senior counsel submits that even if it is assumed that the petitioners had acted in excess of their official duties but the same would not mean to proceed against the petitioners without obtaining the valid sanction from the competent authority. Learned senior counsel has referred to the case of K. Kalimuthu v. State by D.S.P. reported in [2005 (2) East Cr C 328 (SC)] in support of his contention.
different police station including Kutumba Police Station of Bihar. Acting on such tip-off, the house of the Gafar Mian was raided and four persons were apprehended including the husband of the complainant and in course of chase some of the parsons had sustained injuries. The husband of the complainant was subsequently handed over by the petitioner No. 2 to Kutumba Police. Since the deceased was suffering from high blood pressure he was referred to Sadar Hospital, Aurangabad for better treatment and thereafter he was shifted to ANM Medical College and Hospital, Gaya.
swayed by the allegations made in the complaint petition that the death had occurred on account of inhuman torture committed upon the deceased at the time of his apprehension.
“7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and 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, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. 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 his 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 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.”
It was further held that the question relating to the need of sanction
u/s 197 of the Code of Criminal Procedure is not necessarily be considered
as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding.
(Rongon Mukhopadhyay, J)
MK
3 issues framed by the court
Whether there was an excess of jurisdiction in the Magistrate in taking cognizance without considering conflicting medical evidence regarding the cause of death.
Whether the lower court applied its judicial mind while evaluating the complaint regarding the death of the accused.
Whether the petitioners are entitled to protection under Section 197 of Cr.P.C. regarding the apprehension of the deceased.
Colour shows how this judgement treated each authority
K. Kalimuthu v. State by D.S.P.Referred¶11
(2005 (2) East Cr C 328 (SC))
2 provisions across 2 enactments
Ashwini Kumar Sinha
Mani Lal Rana
The State of Jharkhand
Mrs. Halima Bibi
Rongon Mukhopadhyay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
