Supreme Court of India
URMILA DEVIversusYUDHVIR SINGH
- Citation
- 2013 INSC 714
- Decided
- 23 October 2013
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
A magistrate's order to issue summons is an intermediate/quasi‑final order amenable to revision under Section 397 CrPC (and Section 482), and the respondent's alleged acts were not performed in discharge of official duty, so Section 197 protection does not apply.
Summary
The Supreme Court examined whether a magistrate's order to issue summons is an interlocutory or intermediate order and whether it can be challenged under Section 397 of the CrPC. It held that such an order is intermediate/quasi‑final and therefore revisable under Section 397 (and also under the inherent jurisdiction of Section 482). The Court further considered whether the alleged acts of the Sub‑Divisional Magistrate were committed while he was acting or purporting to act in discharge of official duty, a prerequisite for protection under Section 197 CrPC. Finding no direct and reasonable nexus between his official duties and the alleged harassment, search, and forced medical examination, the Court ruled that Section 197 protection did not apply. Consequently, the earlier orders recalling the summons were set aside and the summons issued by the trial court was restored. The appeal was allowed with costs awarded to the appellant.
Issues considered
- Whether an order of a magistrate directing issuance of summons is an interlocutory or an intermediate/quasi‑final order for purposes of revision under Section 397 CrPC.
- Whether such an order can be challenged under the inherent jurisdiction of the High Court under Section 482 CrPC.
- Whether the offences alleged against the Sub‑Divisional Magistrate were committed while he was acting or purporting to act in discharge of his official duty, invoking Section 197 CrPC.
- Whether sanction under Section 197 CrPC is required for the prosecution of the public servant in the present facts.
- Whether the complainant qualifies as an aggrieved person under Section 198 CrPC for offences under Chapter XX of the IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 103, s. 107, s. 197, s. 198, s. 200, s. 201, s. 202, s. 203, s. 204, s. 397, s. 482, s. 53, s. 54, s. 91, s. 92, s. 93, s. 94
- Indian Penal Code, 1860s. 120, s. 323, s. 34, s. 354, s. 389, s. 452, s. 458, s. 493, s. 494, s. 495, s. 496, s. 497, s. 498, s. 500, s. 506
Subjects
Criminal Procedure CodeSection 397 revisionSection 482 inherent jurisdictionSection 197 sanctionExecutive MagistrateSummons orderintermediate orderpublic servant protectionIPC offencessearch and seizuremedical examinationabuse of poweraggrieved personSection 198Chapter XX IPC
Judgment
(2013] 16 S.C.R. 542
A URMILA DEVI
v.
YUDHVIR SINGH
(Criminal Appeal No. 1822 of 2013)
OCTOBER 23, 2013
B
[T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM
KALIFULLA, JJ.]
Criminal Trial - Summoning order - Nature of - How to
C construe order passed by a Magistrate in exercise of its power
u/ss. 200 and 202 CrPC when it decides to issue process as
against the accused - Whether such an order could be the
subject matter of challenge by way of revision u!s. 397 CrPC
- Held: The order issued by the Magistrate deciding to
D summon an accused in .exercise of his power u!ss. 200 to 204
CrPC would be an order of intermediatory or quasi-final in
nature• and not interlocutory in nature - In view of the said
position viz., such an order is intermediatory order or quasi-
fina/ order, the revisionary jurisdiction provided u/s.397 CrPC,
E either with the District Court or with the High Court can be
worked out by the aggrieved party·- Such an order of a
Magistrate deciding to isst..ie process or summons to an
accused in exercise of his power u/ss.200 to 204 CrPC, can
always be subject matter of challenge under the .inherent
F jurisdiction of the High Court u/s. 482 CrPC -·Code of Criminal
Procedure, 1973 - ss.200 to 204, 397 and 482.
Code of Criminal Procedure, 1973 - s. 397 - Order of
Magistrate, directing issuance of summons - Challenge to -
Scope of power and jurisdiction of the Revisional court
G exercising jurisdiction uls.397 CrPC - Held: Revisional
jurisdiction uls.397 CrPC is available to the aggrieved party
in challenging the order of the Magistrate, directing issuance
of summons - Revision.
H 542
URMILA DEVI v. YUDHVIR SlNGH 543
Code of Criminal Procedure, 1973 - ss.197, 198 and 53, A
54 - Sanction for prosecution - Protection of s.197 CrPC if
available - Test of direct and reasonable connection between
official duty of the accused and the offences allegedly
committed - According to appellant, based on a complaint
preferred by 'M' alleging that the appellant and 'R' were living B
in an illicit relationship, the respondent Executive Magistrate!
SOM, acted without authority of law and without any lawful
justification, harassed the complainant-appellant, violated her
right to privacy, and subjected her to an unwarranted public
humiliation - Whether offences allegedly committed by the c
respondent were committed while he was 'acting or purporting ·
to act in the discharge of his official duty'; and whether sanction
uls. 197 CrPC was necessary for prosecuting him- Held: The
offences alleged by 'M' against the appellant, if to be taken
cognizance of, could have fallen under any of the offences D
falling under Chapter XX of /PC - For all or any of the
offences falling in Chapter XX, an aggrieved person can be
either the husband or the wife and none else other than those
falling under the proviso to sub-section (2) of s. 198 CrPC -
'M' not an aggrieved person falling u!s. 198(1) CrPC or E
governed by proviso to s.198(2) CrPC - Therefore, it cannot
be held that respondent validly exercised his authority as
Executive Magistrate/SOM when he acted on the complaint
of 'M' - No scope to bring the action of respondent uls.198
CrPC - Further, no scope for respondent to contend that he
acted by virtue of the authority vested in him uls.107 CrPC - F
Also there was no scope for anyone, inuch less for the
respondent in the capacity of an Executive Magistrate to order
for forcible medical examination of appellant and 'R' prior to
their arrest and in absence of any alleged offence requiring
such medical examination - Even assuming the allegation G
of 'M' was true on its face value, respondent-SOM could not
have taken a decision to barge into the house of appellant-
lady, that too at the odd hours of 10 pm accompanied by a
posse of police officers under the guise of ascertaining the
H
544 SUPREME COURT REPORTS [2013] 16 S.C.R.
A truthfulness or otherwise of such a complaint and for that
purpose engage the services of two cameramen also with
video cameras - Such behaviour of respondent, if ultimately
found to be true, can only be held to be a high handed one
bordering on indecency of the highest order, wholly abusing
B his status as SOM - Since none of the actions alleged against
the respondent by the appellant can be held to be one in which
he acted 1n his capacity as the Executive Magistrate,
invocation of s.197 CrPC wholly uncalled for - Plea of
respondent that prosecution barred u/s.197 CrPC rejected -
c Resultantly, summons issued by trial Court and the order by
which the Magistrate declined to recall the issuance of
summons, restored - Penal Code, 1860 - Chapter XX; ss.
323, 354, 389, 452, 458, 500 and 506 r/w ss.34 and 120-8.
Words and Phrases - Expression "official duty" -
D Meaning of
The appellant filed complaint against the respondent,
a Sub-Divisional Magistrate, alleging that he had
threatened the appellant and 'R' to withdraw the
E complaint filed by them earlier as against 'M' under
Section 500 IPC. According to the appellant, based on a
complaint preferred by 'M' alleging that the appellant and
'R' were living in an illicit relationship, the respondent
directed the Tehsildar to enquire into the matter and also
F directed the DSP to conduct special investigation. The
respondent also allegedly accompanied the investigation
team alongwith two other accused persons with video
cameras and carried out search in the house of the
appellant. It was further alleged that the respondent
G threatened the appellant and 'R' to withdraw the case filed
against 'M'; that 'R' was made to strip off his clothes
before others and thereby he was humiliated and that
both the appellant and 'R' were forced to undergo a
medical examination in the civil hospital against their will.
H
URMILA DEVI v. YUDHVIR SINGH 545
The respondent and the other accused persons were A
summoned by the Judicial Magistrate to face trial for
offences under Sections 323, 354, 389, 452, 458, 500 and
506, read with Sections 34 and 120-B of IPC. The
respondent filed application to recall the summoning
order. The application was dismissed by the Judicial B
Magistrate. The respondent preferred revision before the
Sessions Judge, who held that in view of the bar enjoined
under Section 197 CrPC, the respondent, a Sub-
Divisional Magistrate, could not be summoned to·face the
trial. The High Court declined to interfere with the order c
of the Sessions Judge.
In the instant appeal, the appellant inter a/ia
contended that the order of the Judicial Magistrate being
an interim order, there w~s no jurisdiction in the Sessions
Judge to entertain the revision under Section 397 CrPC; D
and if at all the respondent was aggrieved, he could have
only approached the High Court under Section 482 CrPC.
The appellant further contended that none of the acts
complained of against the respondent would amount to
exercise of any powers in his offjcial capacity as SOM E
and, therefore, he could not have taken umbrage under
Section 197 CrPC; and therefore, the order of the
Sessions Judge and the confirmation of the same by the
High Court in having held that for want of sanction under
Section 197 Cr.P.C the whole complaint of the appellant F
was not maintainable was thoroughly illegal and liable to
be set aside.
The following questions therefore arose for
consideration before this Court: 1) whether the order G
issuing summons can be construed as an interim order
or an intermediate order and 2) what is the scope of
challenging such an order by way of revision under
Section 397 CrPC; 3) whether the offences allegedly
committed by the respondent pu~lic servant were
H
546 SUPREME COURT REPORTS [2013] 16 S.C.R.
A committed while he was 'acting or purporting to act in the
discharge of his official duty'; and 4) whether sanction
under Section 197 CrPC was necessary for prosecuting
the respondent public servant.
Allowing the appeal with costs payable by the
8
respondent to the appellant, the Court
Per Kalifulla, J.
HELD:1. The order issued by the Magistrate deciding
c to summon an accused in exercise of his power under
Sections 200 to 204 Cr.P.C. would be an order of
intermediatory or quasi-final in nature and not
interlocutory in nature. In view of the said position viz.,
such an order is intermediatory order or quasi-final order,
0 the revisionary jurisdiction provided under Section 397,
either with the District Court or with the High Court can
be worked out by the aggrieved party. Such an order of
a Magistrate deciding to issue process or summons to
an accused in exercise of his power under Section 200
E to 204 Cr.P.C., can always be subject matter of challenge
under the inherent jurisdiction of the High Court under
Section 482 Cr.P.C. The position has now come to rest
to the effect that the revisional jurisdiction under Section
397 Cr.P.C. is available to the aggrieved party in
challenging the order of the Magistrate, directing
F issuance of summons. [Paras 22, 24] [565-C-F; 566-D]
Rajendra Kumar Sitaram Pande and others vs. Uttam
and another AIR 1999 SC 1028: 1999 (1) SCR 580; K.K.
Patel and another vs. State of Gujarat and another AIR 2000
G SC 3346: 2000 (1) Suppl. SCR 312; Om Kumar Dhankar vs.
State of Haryana and another (2012) 11 sec 252 and
Subramanium Sethuraman vs. State of Maharashtra and
another (2004) 13 sec 324 - relied on.
Ada/at Prasad vs. Roop/al Jindal and others (2004) 7
H
URMILA DEVI v. YUDHVIR SINGH 547
sec 338; Bholu Ram vs. State of Punjab and another (2008) A
9 SCC 140: 2008 (12) SCR 959; N.K. Sharma vs.
Abhimanyu (2005) 13 SCC 213: 2005 (4) Suppl. SCR 207; .
Amar Nath and others vs. State of Haryana (1977) 4 SCC
137: 1978 (1) SCR 222; Madhu Lima ye vs. State of
Maharashtra (1977) 4 SCC 551: 1978 (1) SCR 7 49; V. C. B
Shakia vs. State through CBI 1980 2 SCR 380; Dharimal
Tobacco Products Ltd. and others vs. State of Maharashtra
and another AIR 2909 SC 1032: 2008 (17) SCR 844; K.M.
Mathew vs. State of Kera/a and another (1992) 1 SCC 217:
1991 (2) Suppl. SCR 364; Nilamani Routray vs. Bennett c
Coleman and Co. Ltd. (1998) 8 SCC 594 and Rakesh Kumar
Mishra vs. State of Bihar and others (2006) 1 SCC 557: 2006
(1) SCR 124 - referred to.
2.1. With reference to the complaint allegedly lodged
by 'M' against the appellant, the alleged offence, if to be D
taken cognizance of, could have fallen under any of"the
offences falling under Chapter XX of° IPC. Under Section
198(1) of the CrPC it is specifically stipulated that no Court
shall take cognizance of an offence punishable under
Chapter XX of IPC except upon a complaint made by · E
some person aggrieved by the offence. Sub-section (2)
further states that for the purpose of sub-section (1 ), no
person other than the husband of the woman shall be
deemed to be aggrieved by any offence punishable
under section 497 or section 498 of the said Code. and F
the proviso to the said section makes it clear that in the
absence of the husband, some person who had care of
the woman on his behalf at the time when such offence
was committed may, with the leave of the Court, make a
complaint on his behalf. Under Chapter XX of the IPC, G
Sections 493 to 498 have been set out. For all or any of
the offences falling under Sections 493 to 498 IPC in
Chapter XX, an aggrieved person can be either the
husband or the wife and none else other than those who
H
548 SUPREME COURT REPORTS [2013] 16 S.C.R.
A would fall under the proviso to sub-section (2) of Section
198 Cr.P.C. [Paras 33, 34 and 35] [570-H; 571-A-F]
2.2. In the circumstances of the case, when the offence
complained of by 'M' is taken into account, she cannot be
8 held to be an aggrieved person falling under Section 198(1)
Cr.P.C. or for that matter governed by the proviso to
Section 198(2). The responden·t entered the house of the
appellant on 26.06.1997 pursuant to the complaint made
by 'M'. If the said complaint of 'M' cannot validly form the
basis for the respondent to exercise his power and
C authority as an Executive Magistrate/SOM, one is at a loss
to understand as to through what other source, the
respondent acquired the power or was empowered to
barge into the house of the appellant under the garb of an
Executive Magistrate. Therefore, it cannot be held that the
D respondent validly exercised his authority as an Executive
Magistrate when he acted based on the complaint of 'M'.
[Para 35] [571-G-H; 572-A-B]
2.3. If there is no scope to bring the action of the
E respondent under Section 198 Cr.P.C, the only other
provision under which the respondent could have acted
while ordering a search could have been only. under
Section 107 Cr.P .C. Section 107 relates to breach of
peace or disturbing the public tranquility or to do any
F wrongful act that may probably occasion a breach of
peace or disturb the public tranquility. When the simple
allegation of 'M' against the appellant was that the
appellant was having some illegal relationship with 'R' in
the premises in which the appellant was residing, there
G. is absolutely no scope for the respondent to invoke
Section 107 Cr.P.C and contend that he acted by virtue
of the authority vested in him under the said provision.
[Para 36] [572-C-F]
3.1. The only other aspect to be examined is the
H conduct of medical examination on the appellant and 'R'.
URMILA DEVI v. YUDHVIR SINGH 549
A
The alleged medical examination was stated to have been
conducted prior to the arrest of appellant and 'R'. Under
Sections 53 and 54 CrPC, the scope of holding a medical
examination on an accused is provided for. Reading,
Sections 53 and 54 together, prior to the arrest of a person B
and in th_e absence of any alleged offence which would
require such medical examination there was no scope for
anyone, much less for a person in the capacity of an
Executive Magistrate to order for a forcible medical
examination. [Paras 37, 38] [572-G-H; 573-E-F]
c
3.2. The allegations complained of against the
respondent at the instance of the appellant in the present
proceedings if found to be true, the resultant position
would be, that the respondent cannot be said to have
legally acted in his official capacity as Executive D
Magistrate while ordering for the search and inquiry by
the Tehsildar, the DSP and the other police officers along
with the two video cameramen. Again, the only basis for
the respondent to act was the so called complaint of 'M'
alleging that the appellant was having illicit relationship E
with 'R'. Assuming such an allegation of 'M' was true on
its face value, one wonders, how a person in the rank of
an SDM took a decision to barge into the house of a lady,
that too at the odd hours of 10 pm accompanied by a
posse of police officers under the guise of ascertaining F
the truthfulness or otherwise of such a complaint and for
that purpose engage the services of two cameramen also
with video cameras. Such a behaviour of the respondent
as narrated in the complaint of the appellant, if ultimately
found to be true, can only be held to be a high handed G
one bordering on indecency of the highest order, wholly
abusing his status as SDM and can never be held to have
acted within the statutory framework of law. [Para 39]
[573-G.-H; 574-A-C]
4. The respondent though might have been holding H
550 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the post of an Executive Magistrate, none of the acts
alleged against him can by any stretch of imagination be
held to have been carried out iri his capacity as an
Executive Magistrate. When the said conclusion based
on the allegations set out in the complaint and 11oted by
B the Courts b~low are inescapable, it will have to be held
that invocation of Section 197 of Cr.P.C. was wholly
uncalled for and consequently the impugr:ied orders of
the Sessions Judge as well as the High Court cannot be
sustained. Resultantly, the summons issued by the trial
c Court dated 30.07.2001 and the order dated 17.04.2007 by
which the Magistrate declined to recall the issuance of
summons on 30.07.2001 should stand restored. [Para 41°)
[574-G-H; 575-A-B]
Per Thakur, J. [Concurring)
D
HELD:1. Excesses by those in authority affect not
only the immediate victims who suffer them, but should
such excesses go unnoticed and unpunish~d, they have
a more pernicious effect in that they tend to erode the
E Rule of Law, violate fundamental rights and shake the
faith and the confidence of the people in the efficacy and
the credibility of the institutions that are meant to protect
the citizens against them and eventually lead to
catastrophic results like anarchy and the return of dark
F days of barbarism. [Para 6] [580-D]
D.K. Basu v. State of West Bengal (1997) 1 SCC 416:
1996 (10) Suppl. SCR 284; Smt. Shakila Abdul Gafar Khan
v. Vasant Raghunath Dhoble and Anr. (2003) 7 SCC 749:
2003 (3) Suppl. SCR 426; Sube Singh v. State of Haryana
G and Ors. (2006) 3 sec 178: 2006 (2) SCR 67; State of M.P.
v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262: 1995
(1) Suppl. SCR 44; State of Punjab v. Baldev Singh, etc. AIR
1999 SC 2378: 1999 (3) SCR 977 and State of Maharashtra
and Ors. etc. v. Saeed Sohail Sheikh etc. AIR 2013 SC 168:
H 2012 SCR 916 - referred to.
URMILA DEVI v. YUDHVIR SINGH 551
2.1. The protection of Section 197, Cr.P.C. will be A
available only if the following ingredients are satisfied: (a)
The person concerned is or was a judge or magistrate
or public servant; (b) Such person is not removable from
his office save by the sanction of the Government; (c)
Such person is accused of commission of an offence B
and (d)Such offence is committed while the person
concerned was acting or purporting to act in the
discharge of his official duties. [Para 9] [582-B-D]
2.2. In the instant case, the first three of the four
requirements set out above are satisfied inasmuch as the C
respondent public servant was not removable from the
office held by him save by or with the sanction of the
Government and he is accused of the commission of
offences punishable under the Indian Penal Code. What
constituted the essence of the forensic debate at the bar D
was whether the offences allegedly committed by the
respondents were committed while he was 'acting or
purporting to act in the discharge of his official duty'. The
words "acting or purporting to act in the discharge of his
official duty" appearing in Section 197 are critical not only E
in .the case at hand but in every other case where the
accused invokes the protection of that provision. The
expression "official duty'' appearing in Section 197 has
not been defined. The dictionary meaning of the
expression would, therefore, be useful for understanding F
the expression both literally and contextually. [Para 10]
[582-E-H; 583-A-B]
2.3. The expression "official duty" would in the
absence of any statutory definition denote a duty that G
arises by reason of an office or position of trust or
authority held by a person. It follows that in every case
where the question whether the accused was acting in
discharge of his official duty or purporting to act in the
discharge of such a duty arises for consideration, the
H
552 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Court will first examine whether the accused was holding
an office and, if so, what was the nature of duties cast
upon him as holder of any such office. It is only when
th1~re is a direct and reasonable nexus between the nature
of the duties cast upon the public servant and the ~ct
8 constituting an offence that protection under Section 197
Cr.P.C may be available and not otherwise. Just because
the accused is a public servant is not enough. A
reasonable connection between his duties as a public
servant and the acts complained of is what will determine
C whether he was acting in discharge of his official duties
or purporting to do so, even if the acts were in excess of
what was enjoined upon him as a public servant within
the meaning of that expression under Section 197 of the
Code. [Para 14) [583-F-H; 584-A-B]
D 2.4. The test of direct and reasonable connection
between the official duty of the accused and the acts
allegedly committed by them is the true test to be applied
while deciding whether the protection of Section 197 of
the Cr.P.C. is available to a public servant accused of the
E commission of an offence. The High Court has not
adverted to this test nor has it held that there existed a
direct and reasonable connection between the official
duty being discharged by the accused public servant and
the acts committed by him. The High Court has on the
F contrary misdirected itself when it said that the accused
had only committed an act of omission towards his official
duties which entitled him to the protection of Section 197
of the Code. [Para 17) [586-E-F]
G 2.5. It is difficult to appreciate what the High Court
meant by saying that the acts of the accused were "at best
acts of omission towards official duty". It was not the case
of the respondent before the High Court nor is it his case
before this Court that the complaint filed by 'M' disclosed
any offence which could be taken cognizance of by him
H
URMILA DEVI v. YUDHVIR SINGH 553
as an Executive Magistrate or investigated by the police. A
Assuming that the complainant-appellant and 'R' were
living together even when they were not married to each
other, the complaint regarding any such relationship could
be filed only by the wife of 'R', or the husband of the
complainant. The complaint filed by 'M' could not provide B
a valid basis for the SOM, the Tehsildar or the Deputy
Superintendent of Police concerned to barge into the
house of the complainant, humiliate or harass her or drag
her to the police station without the registration of any
case or subject her to an uncalled for medical examination. C
The test of direct and reasonable connection between the
official duty of the respondent Sub Divisional Magistrate
and the police officers concerned and the acts complained
of thus fails in the present case especially because there
is not even a semblance of a lawful justification
forthcoming from the respondent for what he did. Entering D
the house of a woman, after sunset with a posse of police
force, carrying video cameras conducting ~n unwarranted
search of the house, humiliating and invading the privacy
of the complainant, insulting and humiliating 'R' by asking
him to undress and dragging both of them to the police E
station for medical examination against their wishes,
especially when male doctors were asked to examine the
complainant which adde<:f insult to injury, all remain
unsupported by any lawful justification and have no
connection with the duties that were cast upon the F
respondent as a public servant, even if a complaint
alleging an adulterous relationship between the appellant
and 'R' had been received by the SOM. The alleged acts
of the respondent cannot, therefore, be said to be in
discharge of his official duties or in the purported G
discharge of such duties. Public functionaries cannot
under the cloak of purported discharge of official duties
resort to harassment and humiliation of the citizens on the
pretext of a complaint having been received by them,
especially when the same does no~ disclose the H
554 SUPREME COURT REPORTS [2013] 16 S.C.R.
A commission of any offence triable by the Executive
Magistrate or cognizable by the police; nor was there any
other proceeding in connection with which such conduct
could be justified in law. The plea of the respondent that
the prosecution was barred under Section 197 Cr.P.C. has,
8 therefore, to be rejected. [Para 18] [587-F-H; 588-A-G]
P. Arulswami v. State of Madras AIR 1967 SC 776: 1967
SCR 201; B. Saha and Ors. v. M. S. Kochar (1979) 4 SCC
177: 1980 (1) SCR 111 and General Officer Commanding
etc. v. CBI and Anr. etc. (2012) 6 sec 228: 2012 (5) SCR
C 599 - relied on.
Black's Law Dictionary and Law Lexicon - referred to.
First Hamlyn Lecture of 1949 by Lord Denning under
the title "Freedom under the Law" - referred to.
D
Case Law Reference:
In the judgment of Fakkir Mohamed Ibrahim Kalifulla, J.
(2004) 1 sec 338 referred to Para 11
E
2008 (12) SCR 959 referred to Para 11
2005 (4) Suppl. SCR 207 referred to Para 11
(2004) 13 sec 324 relied on Para 11
F 2000 (1) Suppl. SCR 312 relied on Para 12
1978 (1) SCR 222 referred to Para 12
1978 (1) SCR 749 referred to Para 12
G Hl80 2 SCR 380 referred to Para 12
1999 (1) SCR 580 relied on Para 12
2008 (17) SCR 844 referred to Para 12
1991 (2) Suppl. SCR 364 referred to Para 14
H
URMILA DEVI v. YUDHVIR SINGH 555
(1998) 8 sec 594 referred to Para 17 A
(2012) 11 sec 252 relied on Para 23
2006 (1) SCR 124 referred to Para 23
In the judgment of T.S. Thakur, J. B
1996 (10) Suppl. SCR 284referred to Para 3
200·3 (3) Suppl. SCR 426 referred to Para 4
2006 (2) SCR 67 referred to Para 4
c
1995 (1) Suppl. SCR 44 referred to Para 4
1999 (3) SCR 977 referred to Para 5
2012 SCR 916 referred to Para 5
1967 SCR 201 relied on Para 14 D
1980 (1) SCR 111 relied on Para 15
2012 (5) SCR 599 relied on Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E
No. 1822 of 2013.
Fro"m the Judgment & Order dated 20.07.2011 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. M-
9585/08 (O&M).
' . F
Rishi Malhotra for the Appellant.
Dr. Bairam ·Gupta, Manjeet Singh, Sudhir Bisla, Sanjit
Singh, Nikhil Jain for the Respondent.
G
The Judgments of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
granted.
2. This appeal at the instance of the complainant is H
556 SUPREME COURT REPORTS [2013] 16 S.C.R.
A directed against the judgment of the High Court of Punjab and
Haryana at Chandigarh, in Criminal Miscellaneous Petition
No.9585-M of 2008. The High Court, by the order impugned in
this appeal, confirmed the order of the learned Additional
Sessions Judge, Panchkula dated 10.03.2008, in and by which,
B the learned Additional Sessions Judge reversed the orders of
the learned Chief Judicial Magistrate, Panchkula dated
30.07.2001 and 17.04.2007.
3. The brief facts, which are required to be stated are that
C the appellant herein filed a complaint against the respondent,
alh:ging that the respondent threatened the appellant and one
Shri. R.C. Chopra that if they did not withdraw the complaint
filed by them earlier as against one Smt.Maya Rani, under
Section 500 l.P.C., both of them will not remain in service. By
an order dated 30.07.2001, the learned Chief Judicial
D Magistrate, Panchkula summoned the accused 1 to 10 and 12
to face the trial for the offences under Sections 323, 354, 389,
452, 458, 500 and 506, read with Sections 34 and 120-B of
1.P.C.
E 4. The first accused who is the sole respondent herein,
filed an application to recall the summoning order dated
30.07.2001. The said application was dismissed by the learned
Chief Judicial Magistrate by an order dated 04.07.2007, on the
ground that the summoning order, which was passed-way back
F on 30.07.2001 and that recalling the order, would amount to
reviewing of the order, which was not permissible in law.
5. The respondent preferred a revision before the learned
Additional Sessions Judge, who by an order dated 10.03.2008,
while accepting the revision, set aside both the orders dated
G 30.07.2001 and 17.04.2007, holding that in view of the bar
enjoined under Section 197 Cr.P.C., the respondent herein who
is a Sub-Divisional Magistrate, could not be summoned to face
the trial. It is the said order of the learned Additional Sessions
Judge, which was the subject matter of challenge before the
H
URMILA DEVI v. YUDHVIR SINGH 557
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
High Court and the High Court by the impugned order, declined A
to interfere with the order of the learned Additional Sessions
Judge, Panchkula.
6. We have heard Mr. Rishi Malhotra, learned counsel for
the appellant and Dr. Bairam Gupta, learned Senior counsel for
8
the respondent.
7. The learned counsel appearing for the appellant
contended that the learned Chief Judicial Magistrate had no
power under the provisions of the Criminal Procedure Code to
recall or review its own order summoning the accused, including C
the respondent herein. There was no jurisdiction in the learned
Additional Sessions Judge, Panchkula to entertain the revision
under Section 397 of Cr.P.C. According to the learned counsel,
neither the order issuing summons to the respondent dated
30.07.2001, nor the order dated 17.04.2007, or any other order, D
can be challenged by way of revision under Section 397 of
Cr.P .C. It was contended that both the orders viz., 30.07.2001,
as well as 17.04.2007, were only interim orders and therefore,
the bar under Section 397(2) of Cr.P.C. would operate for the
learned Additional Sessions Judge to entertain the revision E
petition. The contention of the learned counsel was that if at all
the respondent was aggrieved as against the orders dated
30.07.2001 and' 17.04.2007, he could have only approached
the High Court under-Section 482 of the Code of Crim.inal
a
Procedure and not by way of revision under Section 397 of
F
Cr.P.C.
8. It was also contended that since the sole issue raised
before the learned Chief Judicial Magistrate, while seeking to
recall the order dated 30.07.2001, was that the respondent
being a Sub Divisional Magistrate and the action complained G
of by the appellant was in the course of discharge of his
functions as Sub Divisional Magistrate, the appellant ought to
have sought for the necessary sanction under Section 197 of
the Code of Criminal Procedure, before preferring a complaint
H
558 SUPREME COURT REPORTS [2013] 16 S.C.R.
A before the learned Chief Judicial Ma91strate. It was also
contended that it would be a question, which could have qeen
gone into by the learned Trial Judge at the time of trial in as
much as, according to the appellant the manner in which the
respondent and the other accused behaved in the house of the
appellant would be a relevant factor to determine the said
8
question.
9. According to the appellant, on 26.06.1997, Shri R.C.
Chopra came to her house at about 09.30 P.M. to discuss
about the evidence to be adduced in the Court relati~g to the
C complaint filed by the appellant, as against one Smt. Maya Rani
in the Court of the learned Chief Judicial Magistrate,
Panchkula, that when they were discussing about the same, at
the instance of the respondent herein, the Tehsildar, the second
acc:used, DSP the third accused, ASI the fourth accused, Head
D Constable the fifth accused, along with accused No.7 and 8 who
were having video cameras, forcibly entered the appellant's
house in civil dress, woke up the children of the appellant and
questioned them with a view to insult them in the presence of
the children as to what R.C. Chopra was doing in her residence.
E It was further alleged that R.C. Chopra was directed to pull
down his clothes and while sucb activities were going on, the
appellant was pleading for mercy ~nd the second accused
directed for a thorough search of the suitcase, trunks, almirah
and the personal belongings of the appellant and thus, created
F a nasty scene in her house. It was alleged that Shri. R.C.
Chopra and the appellant were made to board a jeep brought
by the third accused and were taken to the Civil Hospital, Kalka,
where the appellant was forcibly examined by a male doctor
and was also not allowed to contact her friends through
G telephone. According to the appellant, even though R.C. Chopra
had an order of anticipatory bail granted by the learned
Additional Sessions Judge, Ambala, the first accused declined
to abide by the said order and therefore, the appellant had to
prefer a complaint before the learned Chief Judicial Magistrate,
H Panchkula. It was contended that the above conduct of the
URMILA DEVI v. YUDHVIR SINGH 559
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
respondent and other accused cannot be construed as on,e A
performed in the course of discharge of their official duties and
therefore, the learned Chief Judicial Magistrate, Panchkula
rightly issued summons in the cor.. ..,laint preferred by the
appellant and also declined to recall the same holding that once
summons were issued, there was no power vested in the Chief B
Judicial Magistrate to review his own order. Therefore, it was
contended on behalf of the appellant that the said order of the
learned Chief Judicial Magistrate, Panchkula being an interim
order, revision under Section 397 Cr.P.C. before the learned
Additional Sessions Judge was not maintainable and c
consequently, the order of the High Court in declining to interfere
with the same is liable to be set aside and the order of the
learned Additional Sessions Judge dated 10.03.2008, is also
liable to be set aside.
10. As against the above submissions, the learned senior D
counsel appearing for the respondent contended that this Court
has held in innumerable decisions that an order-issuing
summons is not an interim order, but an intermediate order and
therefore, the jurisdiction of the revisional Court under Section
397 of Cr.P.C. was not ousted. It was also contended that in E
any event, when the inherent jurisdiction of the High Court was
invoked by the appellant herself, the whole issue as regards
the validity of the issuance of summons by the learned Chief
Judicial Magistrate, which was the subject matter of challenge
was open, that the High Court could validly examine the F
correctness of the issuance of summons by the learned Chief
Judicial Magistrate and therefore no fault can be found with the
order of the High Court impugned in this appeal.
11. The learned counsel for the appellant by relying upon G
the decisions in Ada/at Prasad vs. Roop/al Jindal and others
- (2004) 7 SCC 338, Bho/u Ram vs. State of Punjab and
another - (2008) 9 SCC 140, N.K. Sharma vs. Abhimanyu -
(2005) 13 SCC 213 and Subramanium Sethuraman vs. State
of Maharashtra and another - (2004) 13 sec 324, contended
H
560 SUPREME COURT REPORTS [2013] 16 S.C.R.
A that only the jurisdiction of the High Court under Section 482
Cr.P.C. alone could have been invoked, as against the order
of the learned Chief Judicial Magistrate deciding to issue
summons against the respondent and not by way of revision
under Section 397 Cr.P.C.
B
12. The learned counsel for the respondent relied upon the
decisions in K. K. Patel and another vs. State of Gujarat and
another reported in AIR 2000 SC 3346, where the earlier
decisions of this Court in Amar Nath and others vs. State of
C Ha1yana - (1977) 4 SCC 137, Madhu Limaye vs. State of
Maharashtra - (1977) 4 SCC 551, V.C. Shukla vs. State
through CBI - 1980 2 SCR 380 and Rajendra Kumar Sitaram
Pande and others vs. Uttam and another-AIR 1999 SC 1028,
were followed, which was reiterated in Adalat Prasad (supra) .
.Reliance was also placed upon the recent decision of this Court
D in Dharimal Tobacco Products Ltd. and others vs. State of
Maharashtra and another reported in AIR 2009 SC 1032.
13 Having heard the learned counsel for the appellant, as
well as the respondent and having perused the orders of the
E learned Chief Judicial Magistrate, Panchkula, the learned
Additional Sessions Judge, Panchkula, as well as the judgment
of the High Court impugned in this appeal, we feel that the
minute distinction as between the two sets of decisions dealing
with the question as to whether the order issuing summons can
F be construed as an interim order or an intermediate order on
the one hand and what is the scope of challenging such an
order by way of revision under Section 397 Cr.P.C needs to
be highlighted. We feel that having regard to the above
mentioned decisions, which dealt with the said question, it has
G become imperative for this Court to give an authoritative
pronouncement by reconciling the above decisions, which have
dealt with the jurisdictional issue raised under section 397
Cr.P.C. and the nature of the order and also as to how to
construe an order passed by the learned Judicial Magistrate,
H while deciding to issue summons to a party under Section 202
Cr.P.C.
URMILA DEVI v. YUDHVIR SINGH 561
[FAKKIR MOHAMED· IBRAHIM KALIFULLA, J.]
14. In the decision in K.M. Mathew vs. State of Kera/a and A
another reported in (1992) 1 sec 217, it was held that'the
order issuing the process is an interim order and not a judgm~nt
and it can be varied or recalled. It was held in paragraph 8 that
the fact that the process has already been issued is no bar to
drop the proceedings if the complaint on the very face of it does B
not disctose any offence against the accused. Here and now,
we want to make it abundantly clear that in the said decision,
this Court did not examine the question about the reviseability
of an order passed under Section 204 Cr.P.C., either by the
Sessions Judge or by the High Court in exercise of its revisional c
jurisdiction under Section 397 Cr.P.C. On the other hand in the
decision in Rajendra Kumar Sitaram Pande (supra) this
Court after referring to the earlier decisions in Amar Nath
(supra), Madhu Limaye (supra) and V.C. Shukla (supra) held
as under in paragraph 6:
D
"6 ..... this Court has held that the term 'interlocutory order'
used in the Code of Criminal Procedure has to be given
a very liberal construction in favour of the accused in order
to ensure complete fairness of the trial and the revisional
power of the High Court or the Sessions Judge could be E
attracted if the order was not purely interlocutory but
intermediate· or quasi final. This being the position of
law, it would not be appropriate to hold that an order
directing issuance of proce.sS is purely interlocutory and,
therefore, the bar under sub-section (2) of Section 397 F
would apply. On the other hand, it must be held to be
intermediate or quasi final and, therefore. the
revisional jurisdiction under Section 397 could be
exercised against the same. The High Court, therefore,
was not justified in coming to the conclusion that the G
Sessions Judge had no jurisdiction to interfere with the
order in view of the bar under sub-section (2) of Section
397 of the Code." (Emphasis added)
15. This decision makes it clear that an order directing
H
562 SUPREME COURT REPORTS [2013] 16 S.C.R.
A issuance of process is an intermediate or quasi final order and
therefore, the revisional jurisdiction under Section 397 Cr.P.C.
can be exercised against the said order. This view was
subsequently reiterated by this Court in K.K. Patel (supra).
After making reference to the cases of Madhu Limaye (supra},
B V.C. Shukla (supra), as well as Rajendra Kumar Sitaram
Pande (supra}, this Court laid down the test for finding out as
to what order can be construed as an interim order in order to
find out the exercisability of the revisional jurisdiction under
Section 397 (2) of Cr.P.C. The said part of the order contained
C in Para 12 can be usefully referred to which reads as under:
"12 ..... The feasible test is whether by upholding the
objections raised by a party, would it result in culminating
the proceedings, if so any orqer passed on such
objections would not be merely interlocutory in nature as
D envisaged in S.397(2) of the Code. In the present case,
if the objection raised by the appellants were upheld
by the Court the entire prosecution proceedings
would have been terminated. Hence, as per the said
standard, the order was revisable." (Emphasis added)
E
16. A perusal of the above referred two decisions
discloses that the reviseability of the or~er passed under
Section 204 Cr.P.C. either by the Sessions Judge or the High
Court, was never challenged and the decision that such an
F order is revisable under Section 397 Cr.P.C. therefore, continue
to remain even as on date. It is also necessary to point out that
the ratio of the decision in K.M. Mathew (supra) that the power
of the Criminal Court to review its own order passed under
Section 204 Cr.P .C. was inherent in the absence of any
G specific provision in the Cr.P.C. was referred for consideration
by a larger Bench of three-Judge in the decision in Adalat
Prasad (supra).
17. In fact, the said issue was referred to a larger Bench
even in an earlier case of Nilamani Routray vs. Bennett
H Coleman and Co. Ltd. reported in (1998) 8 SCC 594. However,
URMILA DEVI v. YUDHVIR SINGH 563
[FAKKIR MOHAMED ~BRAHIM KALIFULLA, J.]
the said case got settled out of Court and hence, the issue A
involved in K. M. Mathew (supra) was not decided by the Larger
Bench. The said issue was therefore, considered only in the
case of Ada/at Prasad (supra). This Court ultimately held that
in the absence of any review power or inherent power with the
subordinate criminal Court, there was no jurisdiction or power B
vested in the Magistrate to review or recall its order deciding
to issue summons. It was however held that in the absence of
any review power or inherent power in the subordinate criminal
Court, the remedy is by invoking Section 482 of Cr. P. C.
Ultimately, in paragraph 17 of the Ada/at Prasad (supra), this c
Court held that it was not necessary for this Court to go into
the question as to whether an order issuing process would
amount to interim order or not. Having regard to the scope of
consideration made by this Court in Ada/at Prasad (supra), the
only question posed for consideration was whether the Court, D
which decides to issue summons, did possess the power to
review under the provisions of the Code of Criminal Procedure
or by way of exercise of its inherent power, where the question
was ultimately answered to the effect that such. power was
neither inherent in the Magistrate to decide to issue process,
E
nor was there any statutory provision available either to recall
or review such a decision to issue process. Therefore, it has
become incumbent upon this Court to make the position clear,
as to how to construe an order passed by a Magistrate in
exercise of its power under Sections 200 and 202 Cr.P.C. when
it decides to issue the process as against the accused F
concerned and whether such an order could be the subject
matter of challenge by way of revision under. Section 397
Cr.P.C.
18, At the risk of repetition, we make it clear that when the G
Larger Bench of this Court in Ada/at Prasad (supra)
considered the earlier law declared by this Court in K.M.
Mathew (supra), that there was neither inherent power nor
statutory power either to recall or review the order passed by
the Magistrate to issue summons, the question which we have H
564 SUPREME COURT REPORTS [2013] 16 S.C.R.
A decided to examine was never considered and therefore, it
would be appropriate for this Court to decide as regards the
nature of such an order and the scope of power and jurisdiction
of the revisional Court exercising jurisdiction under Section 397
Cr.P.C.
8
19. After the decision in Ada/at Prasad (supra) wherein,
the ratio in K.M. Mathew (supra) was reversed, the issue was
once again considered by the Larger Bench in Subramaniam
Sethuraman (supra). Afte.r making reference to Ada/at Prasad
C (supra), this Court has held in Subramaniam Sethuraman
(supra) as under in paragraph 1·9:
"19. We see that this Court while dismissing earlier S.L.P.
as withdrawn had left the question of legality df the notice
open to be decided at the trial. Therefore, legitimately the
D appellant should raise this issue to be decided at the trial.
Be that as it may, we cannot prevent an accused person
from taking recourse to a remedy which is available in law.
In Adalat Prasad case we have held that for ao aggrieved
person the only course available to challenge the issuance
E of process under Section 204 of the Code is by way of a •
petition under Section 482 of the Code. Hence, while we
go not grant any permission to the appellant to file a
petition under Section 482, we cannot also deny him.
the statutory right available to him in law ........ "
F
(Emphasis added)
20. It has been virtually held that apart from the remedy
available under Section 482, the aggrieved party can also
workout the other remedies available in law.
G
21. When we examine the said ratio laid down in
Subramaniam Sethuraman (supra), considering the earlier
view of this Court rendered in umpteen number of judgments,
including the one mentioned in K.K. Patel (supra), wherein a
H test was laid down to ascertain, which order can be construed
URMILA DEVI v. YUDHVIR SINGH 565
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
as an interlocutory order or intermediatory order, it was held A
thereunder to the effect that the order deciding to issue
summons would be only intermediatory or quasi final order,
which would be subject to the revisional jurisdiction under
Section 397 Cr.P.C.
B
22. Having regard to the said categorical position stated
by this Court in innumerable decisions resting with the decision
in Rajendra Kumar Sitaram Pande (supra), as well as the
decision in K.K. Patel (supra), it will be in order to state and
declare the legal position as under:
c
(i) The order issued by the Magistrate deciding to
summon an accused in exercise of his power under
Sections 200 to 204 Cr.P.C. would be an order of
intermediatory or quasi~final in nature and not
interlocutory in nature. D
(ii) Since the said position viz., such an order is
intermediatory order or quasi-final order, the ·
revisionary jurisdiction provided under Section 397,
either with the District Court or with the High Court E
can be worked out by the aggrieved party.
(iii) Such an order of a Magistrate deciding to issue
process or summons to an accused in exercise of
his power u'nder Section 200 to 204 Cr.P.C., can
always be subject matter of challenge under the F
inherent jurisdiction of the High Court under Section
482 Cr.P.C.
23. When we declare the above legal position without any
·ambiguity, we also wish to draw support to our above G
conclusion by referring to some of the subsequent decisions.
In a recent decision of this Court in Om Kumar Dhankar vs.
State of Haryana and another reported in (2012) 11 sec 252,
the decisions in Madhu Limaye (supra), V. C. Shukla (supra),
K.M. Mathew (supra), Rakesh Kumar Mishra vs. State of Bihar H
566 SUPREME COURT REPORTS (2013] 16 S.C.R.
A and others reported in (2006) 1 sec 557 ending with
Rajendra Kumar Sitaram Pande (supra), was considered and
by making specific reference to paragraph 6 of the judgment
in Rajendra Kumar Sitaram Pande, this Court has held as
under in paragraph 10:
B "10. In view of the above legal position, we hold, as it must
be, that revisional jurisdiction under Section 397 Cr.P.C.,
w;is available to the Respondent No.2 in challenging the
order of the Magistrate directing issuance of summons.
The first question is answered against ·the appellant
c accordingly."
24. Therefore, the position has now come to rest to the
effect that the revisional jurisdiction under Section 397 Cr.P.C.
is available to the aggrieved party in challenging the order of
o the Magistrate, directing issuance of.summons.
25. With this whe·n we proceed to examine the
correctness of the orders impugned by the appellant, we find
that the High Court after examining the facts in issue held that
the initiative taken by the respondent herein by directing the third
E accused along with the other official accused was in exercise
of his statutory power under the provisions of t~e Code of
Criminal Procedure and, therefore, the requirement of the
compliance of Section 197 of Cr.P.C. was paramount. The High
Court, therefore, held that the conclusions of the learned
F Additional Sessions Judge that the issuance of the summons
by the Magistrate lacked in jurisdiction was correct and upheld
the said order.
26. In order to appreciate the above conclusions reached
G by the learned Additional Sessions Judge as well as by the High
Court and to examine whether such a conclusion can be
sustained it will be necessary to reiterate brief facts which
culminated in the issuance of the summons to the respondent.
The appellant is a Pharmacist and is working in ESI dispensary
H situated in the premises of HMT Pinjore for the last about 20
URMILA DEVI v. YUDHVIR SINGH 567
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
years. She is stated to have been living along with her two A
daughters and a son in an official accommodation allotted to
her by the dispensary authorities in Quarter's No.8-4, ESI
Dispensary, HMT, Pinjore situated in the first floor. In the same
premises one Maya Rani was living in the ground floor. The
appellant is stated to have filed a complaint against the said B
Smt. Maya Rani under Section 500 IPC alleging that she
authored a letter using objectionable and filthy language against
t.he appellant. The complaint of the appellant was being enquired
into by the learned Chief Judicial Magistrate, Panchkula where
Smt. Maya Rani and others were summoned to face the trial. c
According to the appellant a day prior to the recording of
evidence before the learned Chief Judicial Magistrate on the
complaint filed by the appellant against Smt. Maya Rani (i.e.)
on 26.6.1997 one Shri R.C. Chopra visited the house of the
appellant, and that on that date at 10 pm a team consisting of
0
ASI Onkar Singh, Head Constable Om Prakash and two other
persons with video cameras barged into the house of the
appellant in civil dress. The abovesaid persons were stated to
have been followed by DSP Mrs. Rajshri Singh and that a little
while later the Tehsildar along with the respondent, who was the
E
SOM Kalka, also entered the appellant's house who directed
the search of the appellant's house. It is the further case of the
appellant that the respondent herein, who was the Sub-
Divisional Magistrate and who has been arrayed as accused
no.1, threatened the appellant and Shri R.C. Chopra to withdraw
the case .filed against Smt. Maya Rani pending before the F
Chief Judicial Magistrate, Panchkula. Based on the above
allegations, the appellant preferred the complaint dated
30.07.2001 before the Chief Judicial Magistrate, in which the
respondent and the other accused were summoned to face the
trial for offences under Sections 323, 354, 452, 458, 389, 500, G
506 read with Sections 34 and 120-B IPC. The respondent filed
an application for recalling the summoning order dated
30.07.2001 which was dismissed by the learned Chief Judicial
Magistrate on 04.07.2001 holding that the summoning order
H
568 SUPREME COURT REPORTS [2013] 16 S.C.R.
A had been passed as early as on 30.07.2001 and recalling the
same would amount to review of its own order which was not
permissible in law.
27. The appellant also alleged that there was no occasion
B for the respondent and other persons who accompanied him
to forcibly enter her house on the fateful night and question the
relationship of the appellant with R.C. Chopra. It was further
alleged that appellant and R.C. Chopra were harassed by the
police officials along with accused 7 and 8 who had come with
video cameras which amounted to further harassment.
C According to the appellant, 'Mr. R.C. Chopra was forced to
remove his clothes in front of other officials and that both of them
were taken to the civil hospital where the appellant was
examined by a male doctor, namely, Dr. S.K. Gupta and Dr.
Dewan which was again not in consonance with law. In the
D above stated background, it was contended that none of the
acts complained of against the respondent would amount to
exercise of any powers in his official capacity as SOM and,
therefore, he could not have taken umbrage under Section 197
Cr.P.C. It was, therefore, contended that the order of the learned
E Additional Sessions Judge and the confirmation of the same
by the High Court in having held that for want of sanction under
Section 197 Cr.P.C the whole complaint of the appellant was
not maintainable was thoroughly illegal and the same is liable
to be set aside.
F
28. When we examine the above stand of the appellant, it
is necessary to note the relevant provisions under the Criminal
Procedure Code as well as Indian Penal Code to find out
whether it can be held that the act complained of against the
G respondent and the various allegations relating to him along with
the other respondents, some of whom were police officials, can
be construed as one in exercise of his official duties or
responsibilities and thereby invocation of Section 197 Cr.P.C
would be attracted.
H
URMILA DEVI v. YUDHVIR SINGH 569
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
29. Sub-section 4(b) of Section 3 of Cr.P.C specifically A
stipulated as to the functions exercisable by an Executive
Magistrate which reads as under:
"3(4)(b) Which are administrative or executive in nature,
such as, the granting of a licence, the suspension or
8
cancellation of a licence, sanctioning a prosecution or
withdrawing from a prosecution, they shall, subject as
aforesaid, be exercisable by an Executive Magistrate."
The other relevant sections are Sections 20 to 23 of Cr.P.C
which refers to Executive Magistrates, Special Executive C
Magistrates, the local jurisdiction of Executive Magistrates and
the subordination of Executive Magistrates.
30. As far as issuance of search warrants are concerned,
it is governed by Sections 91 to 94 of the Cr.P.C. Section 93 0
of the Code empowers a Court for issuance of warrant of
search. However, such issuance of search warrant can be
made only in respect of the requirement and fulfillment of
Section 91 or sub-section 1 of Section 92. The only other
provision relating to warrant of search or the power of search E
by a Magistrate is provided under Section 103 which states
"any Magistrate may direct a search to be made in his presence
of any place for the search of which he is competent to issue a
search warrant". Apart from Section 103, under Section 107
an Executive Magistrate has been empowered to require a
F
person to show cause why he should. not be ordered to execute
a bond with or without sureties for keeping peace for such
period, not exceeding one year, as the Magistrate thinks fit. The
said provision can be invoked by an Executive Magistrate only
when he receives information that any person is likely to commit
a breach of peace or disturb public tranquility or to do any G
wrongful act that may probably occasion.a breach of peace or
disturb public tranquility. In such situation if the Executive
Magistrate is of the opinion that there is sufficient ground for
proceeding then he should issue a show cause notice and
thereafter pass necessary orders, in order to ensure that no H
570 SUPREME COURT REPORTS [2013] 16 S.C.R.
A such apprehended breach of peace or disturbance within his
local jurisdiction is allowed to take place.
31. Keeping the above statutory provisions in mind when
we examine the allegations levelled against the respondent by
the appellant it transpires that according to the appellant based
8
on a complaint preferred by Smt. Maya Rani alleging that the
appellant and one R.C. Chopra were living in an illicit
relationship, the respondent directed the Tehsildar to enquire
into the matter and also directed the DSP to conduct special
investigation. The respondent is also alleged to have
C accompanied the investigation team along with two other
persons, namely, accused 7 and 8 with video cameras and
carried out the search in the house of the appellant. It is also
alleged that the respondent threatened the appellant and R.C.
Chopra to withdraw the case filed against Smt. Maya Rani. The
D further allegation was that R.C. Chopra was made to strip off
his clothes before others and thereby he was humiliated and
that both the appellant and the said R.C. Chopra were forced
to undergo a medical examination in the civil hospital against
their will.
E
32. In the first place, we wish to ascertain whether there
was any semblance of an official act in whatever act in which
the respondent was alleged to have been involved as
complained of by the appellant. In other words, it is necessary
F to examine and find out whether the respondent alleged to have
exercised his official authority and power entrusted to him
under the provisions of the Code of Criminal Procedure while
claiming to have acted as an Executive Magistrate for ordering
searching operation of the premises of the appellant and
G having issued certain directions to physically examine the
appellant and Shri R.C. Chopra.
33. The various provisions which we have referred to
above when examined with reference to the complaint alleged
to have been lodged by Maya Rani against the appellant, we
H find that the said alleged offence if to be taken cognizance of
URMILA DEVI v. YUDHVIR SINGH ·571
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
could have fallen under any of the offences falling .under Chapter A
XX of Indian Penal Code. Under Section 198(1) of the Cr.P.C.
it is specifically stipulated that no Court shall take cognizance
of an offence punishable under Chapter XX of the Indian Penal
Code except upon a complaint made by some person
aggrieved by the offence. Sub-section (2) further states that for· B
the purpose of sub-section (1 ), no person other than the
husband of the woman shall be deemed to be aggrieved by
any offence punishable under section 497 or section 498 of the
said Code and the proviso to the said section makes it clear
that in the absence of the husband, some person who had care c
of the woman on his behalf at the time when such offence was
committed may, with the leave of the Court, make a complaint
on his behalf.
34. Under Chapter XX of the Indian Penal Code, Sections
493 to 498 -have been set out. Section 493 relates to D
cohabitation caused by a man deceitfully inducing a belief of
lawful marriage. Section 494 relates to a person marrying again
during the lifetime of husband or wife. Section 495 relates to
the same offence with concealment of former marriage from a
person with whom subsequent marriage is contracted. Section E
496 refers to marriage ceremony fraudulently gone through
without lawful marriage. Section 497 is the offence relating to
adultery and Section 498 relates to enticing or taking away or
detaining with criminal intent a married woman. Therefore, for
all or any of the above offences falling under Sections 493 to F
498 IPC in Chapter XX an aggrieved person can be either the
husband or fhe wife and none else other than those who would
fall under the proviso to sub-section (2) of Section 198 Cr.P.C.
35. In the circumstances when the offence complained of G
by Maya Rani is taken into account, we find that she cannot be
held to be an aggrieved person falling under Section 198(1)
Cr.P.C. or for that matter governed by the proviso to Section
198(2). There is no dispute about the fact of the respondent in
having entered the house of the appellant on 26.06.1997
H
572 SUPREME COURT REPORTS (2013] 16 S.C.R.
A pursuant to the complaint made by Sm!. Maya Rani. Therefore,
if the said complaint of Sm!. Maya Rani cannot validly form the
basis for the respondent to exercise his power and authority
as an Executive Magistrate/SOM, we are at a loss to
understand as to through what other source, the respondent
B acquired the power or was empowered to barge into the house
of the appellant under the garb of an Executive Magistrate.
Therefore, it cannot be held that the respondent validly exercised
his authority as an Executive Magistrate when he acted based
on the complaint of Smt. Maya Rani.
c 36. If there is no scope to bring the action of the
respondent under Section 198 Cr.P.C, the only other provision
under which the appellant could have acted while ordering a
search Gould have been only under Section 107 Cr.P.C.
Indisputably the only allegation which could be culled out from
D the facts pleaded was that the respondent acted based on the
complaint of Smt. Maya Rani. Section 107 relates to breach
of peace or disturbing the public tranquility or to do any wrongful
act that may probably occasion a breach of peace or disturb
the public tranquility. When the simple allegation of Sm!. Maya
E Rani against the appellant was that the appellant was having
some illegal relationship with R.C. Chopra in the premises in
which the appellant was residing, there is absolutely no scope
for the respondent to invoke Section 107 Cr.P.C and contend
that he acted by virtue of the authority vested in him under the
F said provision.
37. Therefore, when the above provisions pursuant to which
the respondent could have acted was not available to support
the stand of the respondent, only other aspect to be examined
G is the conduct of medical examination on the appellant and R.C.
Chopra which according to the appellant was also not in
consonance with the provisions of the Code. Under Sections
53 and 54 of Cr.P.C. the scope of holding a medical
examination on an accused is provided for. Under Section
H 53(1) when a person is arrested on a charge of committing an
URMILA DEVI v. YUDHVIR SINGH 573
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
offence of such a nature and alleged to have been committed A
under such circumstances that reasonable grounds for believing
that an examination of his person will afford evidence as to the ·
commission of an offence, such medis:::il examination can be
carried out. As highlighted above, none of the offences falling
under Sections 493 to 498 of Indian Penal Code could be B
related or proceeded against the appellant or R.C. Chopra
based on the alleged complaint of _Smt. Maya Rani.
38. That apart, the alleged medical examination was
stated to have been conducted prior to the arrest of the
appellant and R.C. Chopra. The provisions of the Code is clear C
to the pointer that a person suspected or accused of having
committed an offence cannot be forcibly subjected to a medical
examination and in fact it can be stated that if police officers
use force for that purpose the person aggrieved can lawfully
exercise such right of private defence to resist such force. The D
scope of medical examination provided for under Section 54
of Cr.P.C. is that when a person is arrested, he shall be
examined by a medical officer in the service of Central or State
Governments and in case he is not avaiiable, by a registered
medical practitioner soon after the arrest is made. Therefore, E
reading Sections 53 and 54 together, prior to the arrest of a
person and in the absence of any alleged offence which would
require such medical examination there was no scope for
anyone, much less for a person in the capacity of an Executive
Magistrate to order"for a forcible medical examination. F
39. The allegations complained of against the respondent
at the instance of the appellant in the present proceedings if
found to be true, the resultant position would be, that the
respondent cannot be said to have. legally acted in his official G
capacit.y as Executive Magistrate while ordering for the search
and inquiry by·the Tehsildar, the DSP and the other police
officers along with the two video cameramen. It is again relevant
to keep in mind that the only basis for the respondent to act
was the so called complaint of Smt. Maya Rani alleging that
H
574 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the appellant was having illicit relationship with R.C. Chopra.
Assuming such an allegation of Smt. Maya Rani was true on
its face value, we wonder, how a person in the rank of an SOM
took a decision to barge into the house of a lady, that too at
the odd hours of 1O pm accompanied by a pose of police
B officers under the guise of ascertaining the truthfulness or
otherwise of such a complaint and for that purpose engage the
ser-Vices of two cameramen also with video cameras. In our
considered opinion such a behaviour of the respondent as
narrated in the complaint of the appellant, if ultimately found to
c be true, can only be held to be a high handed one bordering
on indecency of the highest order, wholly abusing his status as
SOM and can never be held to have acted within the statutory
framework of law.
40. At the risk of repetition it will have to be stated that when
O such an allegation could not have formed the basis for
prosecution of an offence falling under Section 198 Cr.P .C.
read along with the provisions contained in Chapter XX of the
Indian Penal Code, none of the actions alleged against the
respondent by the appellant can be held to be one in which he
E acted in his capacity as the Executive Magistrate. We are
constrained to examine the above factors and steer clear of the
factual position in order to state whether or not the conclusions
reached by the Additional Sessions Judge and the High Court
in the orders impugned to the effect that the invocation of
F Section 197 Cr.P.C became imperative before proceeding
against the respondent based on the complaint lodged by the
appellant.
41. In our considered opinion, having regard to our above
G conclusions, it will have to be held that the respondent though
might have been holding the post of an Executive Magistrate,
none of the acts alleged against him can by any stretch of
imagination be held to have been carried out in his capacity
as an Executive Magistrate. When the said conclusion of ours
based on the allegations set out in the complaint and noted by
H
URMILA DEVI v. YUDHVIR SINGH 575
the Courts below are inescapable, it will have to be held that A
invocation of Section 197 of Cr.P.C. was wholly uncalled for
and consequently the impugned orders of the learned Additional
Sessions Judge as well as the High C"urt,cannotbe sustained.
Resultantly, the summons issued by the learned trial Court
dated 30.07.2001 and the order dated 17.04.2007 by which B
the Magistrate declined to recall the issuance of summons on
30.07.2001 should stand restored. The appeal stands allowed
with costs payable by the respondent in ·a sum of Rs.25,000/-
(Rupees Twenty Five Thousand Only) to the appellant.
42. Since, the complaint is of the year 2001, we only direct C
the trial Court to proceed with the hearing of the case on day
to day basis and conclude the same expeditiously preferably
within three months from the date of production of copy of this
order. We, however, make it clear that whatever stated by us
in this judgment is only for the purpose of examining the D
correctness of the judgment of the learned Additional Sessions
Judge and the High Court and we have not dealt with the merits
of the case which shall be examined by the trial Court in
accordance with law.
E
T.S. THAKUR, J. 1. I have had the advantage of going
through the order proposed by my esteemed and noble Brother
Kalifulla J. While I entirely agree with the conclusions arrived
at by His Lordship, I propose to add a few lines of my own.
2. The draft order has painstakingly and with remarkable F
lucidity dealt with the question of maintainability of a revision
petition before the High Court and concluded that such a
revision petition was indeed maintainable. I can make no
addition to what Kalifulla, J. has said on that count except to
place on record my deep appreciation for an articulate and G
erudite statement of the legal position on the subject. What has
impelled me to add to what is already said is the importance
of the second issue that falls for our consideration touching the
true and correct interpretation of Section 197 of the Code of
Criminal Procedure, 1973. Incidents of abuse of authority by H
576 SUPREME COURT REPORTS [2013] 16 S.C.R.
A public servants, despite several pronouncements of this Court
in which such abuse has been deprecated, and the effect which
such abuse has on the confidence of. the people in the Rule of
Law to which we- are committed and the credibility of the
institutions that are meant to preserve and nurture that
B confidence is what, in my opinion, calls for some elaboration.
There is no gainsaying that excesses by those vested with
power and abuse of official position by those who hold public.
offices cannot easily be eliminated, especially when respect for
law is on the decline and enforcement machinery either
C insensitive or inadequate. Even when complete eradication of
such excesses and abuse may be a far cry, the mechanism for
redressal against such abuse ought to be efficient. Absence or
failure of any such mechanism can lead to disturbing and in
extreme cases disastrous consequences as was aptly
prophesied by Lord Denning in his first Hamlyn Lecture of 1949
under the title "Freedom under the Law" when he said:
"No one can suppose that the executive will never be guilty
of the sins that are common to all of us. You may be sure
that they will sometimes do things which they ought not to
E do: and will not do things that they ought to do. But if and
when wrongs are thereby suffered by any of us what is the
remedy? Our procedure for securing our personal freedom
is efficient, our procedure for preventing the abuse of
power is not. Just as the pick and shovel is no longer
F suitable for the winning of coal, so also the procedure of
mandamus, certiorari, and actions on the case are not
suitable for the winning of freedom in the new age. They
must be replaced by new and up-to date machinery, by
declarations, injunctions and actions for negligence ... This
G is not the task of parliament. ... The courts must do this. Of
all the great tasks that lie ahead this is the greatest.
Properly exercised the new powers of the executive lead
to the welfare state; but abused they lead to a totalitarian
state. None such must ever be allowed in this country."
H
URMILA DEVI v. YUDHVIR SINGH 577
[TS. THAKUR, J.]
3. The above was said about civilized, highly developed A
countries with credible institutional backup. It is more so in the
case of nascent democracies around the world. Experience in
this country has shown that excesses are often committed by
those in power. This Court has in several pronouncements
expressed grave concern over the insensitivity of state B
authorities in protecting the basic rights of citizens and even
gone to the extent of laying down principles that would bind such
authorities to act humanely in situations that keep recurring. Of
these decisions, cases dealing with custodial violence stand
out in bold relief where this Court has deprecated incidents of C
torture and other inhuman, cruel or degrading treatment
declaring such acts to be clear violations of citizens'
fundamental right to life guaranteed under Article 21 of the
Constitution of India. For instance in O.K. Basu v. State of West
Bengal (1997) 1 SCC 416, this Court came down heavily on D
custodial torture and resultant death when it said:
" ... Custodial violence, including torture and death in the
lock ups, strikes a blow at the Rule of Law. which
demands that the powers of the executive should not only
be derived from law but also that the same should be E
limited by law ...... It is aggravated by the fact that it is
committed by the persons who are supposed to be the
protectors of the citizens. It is committed under the shield
of uniform and authority in the four walls of a police station
or lock-up, the victim being totally helpless. The protection
F
of an individual from torture and abuse by the police and
other law enforcing officers is a matter of deep concern in
a free society. These petitions raise important issues
concerning police powers, including whether monetary
compensation should be awarded for established
infringement of the Fundamental Rights guaranteed by G.
Articles 21 and 22 of the Constitution of India. The issues
are fundamental.
xxx xxx xxx
... Any form of torture or cruel, inhuman or degrading H
578 SUPREME COURT REPORTS [2013] 16 S.C.R.
A treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation,
interrogation or otherwise. If the functionaries of the
Government become law breakers. it is bound to breed
contempt for law and would encourage lawlessness and
8 every man would have the tendency to become law unto
himself thereby leading to anarchism. No civilised nation
can permit that to happen."
(emphasis supplied)
4. The decisions of this Court in Smt. Shakita Abdul Gafar
C Khan v. Vasant Raghunath Dhoble and Anr. (2003) 7 SCC
749 and Sube Singh v. State of Haryana and Ors. (2006) 3
sec 178, among several other pronouncements, reiterate what
was stated in D.K. Basu's case (supra) and declare in
unequivocal terms that police excesses are not only
D impermissible in law but are in complete violation of citizens'
rights and that such excesses need to be dealt with effectively
so that the confidence of the people in the Rule of Law and the
institutions that are meant to uphold the same is not shaken.
A.S. Anand, J. as His Lordship then was, sounded a note of
E caution that unless stern measures are taken to check the
malady of the 'fence eating the crop', the foundations of the
criminal justice system would be shaken taking the country
towards decay, anarchy and authoritarianism. Speaking for the
Court in State of M.P. v. Shyamsunder Trivedi and Ors. (1995)
F 4 SCC 262, His Lordship observed:
"Police excesses and the maltreatment of detainees/
under- trial prisoners or suspects tarnishes the image of
any civilised nation and encourages the men in ·Khaki' to
consider themselves to be above the law and sometimes
G even to become law unto themselves. Unless stern
measures are taken to check the malady of the very fence
eating the crops, the foundations of the criminal justice
delivery system would be shaken and the civilization itself
would risk the consequence of heading, towards total
H decay resulting in anarchy and authoritarianism
URMILA DEVI v. YUDHVIR SINGH 579
[T.S. THAKUR, J.]
reminiscent of barbarism. The courts must, therefore, deal A
with such cases in a realistic manner and with the
sensitivity which they deserve, otherwise the common man
may tend to gradually lose faith in the efficacy of the system
of judiciary itself, which, if it happens, will be a sad day,
for any cine to reckon with." B
5. A reference may also be made to State of Punjab v.
Baldev Singh, etc. AIR 1999 SC 2378 where this Court held
that legitimacy of judicial process may itself come under cloud
if this Court were seen to be condoning acts of lawlessness
conducted by the investigating agency during search c
operations which may in turn undermine respect for law and
compromise the administration of justice. In State of
Maharashtra and Ors. etc. v. Saeed Sohail Sheikh etc. AIR
2013 SC 168 this Court had another occasion to emphasise
the importance of the Rule of Law and to declare that police D
excesses, whether inside or outside the jail could never be
countenanced in the name of maintaining discipline or dealing
with anti-national elements. Accountability, observed this Court,
was one of the facets of the Rule of Law and anyone found to
have acted in breach of law could be punished for any such E
breach. This Court observed:
"In a country governed by the rule of law police excesses
whether inside or outside the jail cannot be countenanced
in the name of maintaining discipline or dealing with anti-
national elements. Accountability is one'Of the facets of the F
rule of law. If anyone is found to have ~cted in breach of
law or abused his position while exercising powers that
must be exercised only within the parameters of law, the
breach and the abuse can be punished. That is especially
so when the abuse is alleged to have been committed G
under the cover of authority exercised by people in uniform.
Any such action is also open to critical scrutiny and
examination by the Courts. Having said that we cannot
ignore the fact that the country today faces challenges and
threats from extremist elements operating from within and
H
580 SUPREME COURT REPORTS [4013] 16 S.C.R.
A outside India. Those dealing with such elements have at
times to pay a heavy price by sacrificing their lives in the
discharge of their duties. The glory of the constitutional
democracy that we have adopted, however, is that
whatever be the challenges posed by such dark forces, the
B country's commitment to the Rule of Law remains
steadfast. Courts in this country have protected and would
continue to protect the ideals of the rights of the citizen
being inviolable except in accordance with the procedure
established by law."
C 6. We have referred to the pronouncements of this Court
only to show that excesses by those in authority affect not only
the immediate victims who suffer them, but should such
excesses go unnoticed and unpunished, they have a more
pernicious effect in that they tend to erode the Rule of Law,
o violate fundamental rights and shake the faith and the
confidence of the people in the efficacy and the credibility of
the institutions that are meant to protect the citizens against
them and eventually lead to catastrophic results like anarchy and
the return of dark days of barbarism.
E 7. It is in the above backdrop that we need to examine the
question that falls for determination in the present case which
is in essence yet another case accusing the functionaries of the
State machinery of highhanded, insensitive and unwarranted
acts of misbehavior, that the same constitute offences
F punishable under the Indian Penal Code. The question precisely
is whether sanction under Section 197 of the Cr.P.C. was
necessary for prosecuting the respondent public servant who
is alleged to have acted without the authority of law and without
any lawful justification, harassed the complainant, violated her
G right to privacy, and subjected her to an unwarranted public
humiliation in -
(a) having entered the house of the complainant-
Urmila Devi after sunset equipped, as it were, with
video cameras;
H (b) having asked Mr. R.C. Chopra who was present
URMILA DEVI v. YUDHVIR SINGH 581
[T.S. THAKUR, J.]
in the house of the complainant to undress; A
.(c) having taken the complainant and Mr. Chopra
to the Police Station without any reasonable cause
and without disclosing to them the offence for which
they were being forced to do so;
B
(d) having subjected them to medical examination
without their consent and without there being any
cause whatsoever for such an examination;
(e) having threatened them with dire consequences
if the complainant did not withdraw the complaint c
filed by her against one Maya Rani.
8. The High Court has taken the view that the prosecution
launched by the appellant against the respondent was legally
impermissible without· the sanction of the State Government.
That view has been assailed before us primarily on the ground o
that the respondent was neither acting nor could be said to be
acting in the purported discharge of his official duty so as to
entitle. him to the protection of Section 197, Cr.P.C. which to
the extent the same is relevant for our purposes reads as under:
"197. Prosecution of Judges and public servants.- E
(1) When any person who is or was a Judge or Magistrate
or a public servant not removable from his office save by
or with the sanction of the Government is accused of any
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official F
duty, no Court shall take cognizance of such offence except
with the previous sanction-
(a) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of the G
Union, of the Central Government;
(b) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State,
of the State Government. H
582 SUPREME COURT REPORTS (2013] 16 S.C.R.
A (2) xxxxx
(3) )()()()()(
(4) xxxxx"
9. A careful reading of the above would show that
B protection against prosecution will be available only if the
following ingredients are satisfied:
(a) The person concerned is or was a judge or
magistrate or public servant.
(b) Such person is not removable from his office
c save by the sanction of the Government.
(c) Such person is accused of commission of an
offence and
(d) Such offence is committed while the p!')rson
0 concerned was acting or purporting to act in the
discharge of his official duties.
10. There is in the instant case no dispute that the first
three of the four requirements set out above are satisfied
inasmuch as the respondent public servant was not removable
E from the office held by him save by or with the sanction of the
Government and that he is accused of the commission of
offences punishable under the Indian Penal Code. What
constituted the essence of the forensic debate at the bar was
whether the offences allegedly committed by the respondents
F were committed while he was 'acting or purporting to act in the
discharge of his official duty'. The words "acting or purporting
to act in the discharge of his official duty" appearing in Section
197 (supra) are critical not only in the case at hand but in every
other case where the accused invokes the protection of that
G provision. What is the true and correct interpretation of that
provision is no longer res integra. The provision has fallen for
consideration on several occasions before this Court.
Reference to all those decisions may be unnecessary for the
law has been succinctly summed up in the few decisions to
H
URMILA DEVI v. YUDHVIR SINGH 583
[T.S. THAKUR, J.]
which we shall presently refer. But before we do so we may A
point out that the expression "officialduty" appearing in Section
197 has not been defined. The dictionary meaning of the
expression would, therefore, be useful for understanding the
expression both literally and contextually. The term "official" has · B
been defined in Black's Law Dictionary as under:
"Official ... Of or relating to an office or position of trust or
authority <official duties>."
11. The term "office" is defined in the same dictionary as
under: C
"Office : A position of duty, trust, or authority, esp. one
conferred by a governmental authority for a public
purpose<the office of attorney general>."
12. Law Lexicon also gives a similar meaning to the
D
expression "official" and "office" as under
"Official.. .. As adjective, belonging to an officer: of a public
officer; in relation to the duties of office."
"Office ... The word "office" refers to the place where
business is transacted." E
13. The term "duty" is defined by Black's Law Dictionary
in the following words:
"Duty. 1. A legal obligation that is owed or due to another
and that needs to be satisfied; an obligation for which
'somebody else has a corresponding right." F
14. The expression "official duty" would in the absence of
any statutory definition, therefore,.denote a duty that arises by
reason of an office or position of trust or authority held by a
person. lt'follows that in every case where the question whether
G
the accused was acting in discharge of his official duty or
purporting to act in the discharge of such a duty arises for
consideration, the Court will first examine whether the accused
was holding an office and, if so, what was the nature of duties
cast upon him as holder of any such office. It is only when there
is a direct and reasonable nexus between the nature of the H
584 SUPREME COURT REPORTS [2013] 16 S.C.R.
A duties cast upon the public servant and the act constituting an
offence that protection under Section 197 Cr.P.C may be
available and not otherwise. Just because the accused is a
public servant is not enough. A reasonable connection between
his duties as a public servant and the acts complained of is what
B will determine whether he was acting in discharge of his official
duties or purporting to do so, even if the acts were in excess
of what was enjoined upon him as a public servant within the
meaning of that expression under Section 197 of the Code. We
are supported in that view by the decision of this Court in P.
C Arulswami v. State of Madras AIR 1967 SC 776 where a three-
Judge bench of this Court held:
"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
D 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 only when it is either within the scope of
E
the official duty or in excess of it that the protection is
claimable."
(emphasis supplied)
15. The legal position was further elaborated and explained
F by another three Judge Bench decision of this Court in 8.
Saha and Ors. v. M.S. Kochar (1979) 4 SCC 177, where
this Court held that while Section 197 Cr.P.C. was capable
of both liberal and narrow interpretations, a moderate and
balanced approach was the correct way to interpret that
G provision to avoid an unfair advantage or disadvantage to.
the accused. This Court, therefore, evolved the test of a
"direct and reasonable" connection between the official
duty of the accused and the acts constituting the
commission of offence. The Court observed:
H "The words 'any offence alleged to have been committed
URMILA DEVI v. YUDHVIR SINGH 585
[T.S. THAKUR, J.]
by him while acting or purporting to act in the discharge A
of his official duty' employed in Section 197(1) of the Code,
are capable of a narrow as well as a wide interpretation.
If these words are construed too narrowly, the section will
be rendered altogether sterile, for, 'it is no part of an official
duty to commit an offence, and never can be'. In the wider B
sense, these words will take under their umbrella every act
constituting an offence, committed in the course of the
same transaction in which the official duty is performed or
purports to be performed. The right approach to the import
of these words lies between two extremes. While on the C
one hand. it is not every offence committed by a public
servant while engaged in the performance of his official
duty, which is entitled to the protection of Section 197 (1 ),
an Act constituting an offence. directly and reasonably
connected with his official duty will require sanction for
0
prosecution and the said provision."
(emphasis supplied)
16. The law was reviewed once again by this Court in
General Officer Commanding etc. v. CBI and Anr. etc. (2012)
6 sec 228, where this "court relying upon the decisions in E
P.Arulswami and B. Saha's cases (supra) summed up the
legal position in the following words:
"The protection given Under Section 197 Code of Criminal
Procedure is to protect responsible public servants against
the· institution of possibly vexatious criminal proceedings F
for offences alleged to have been committed by them while
they are acting or purporting to act as public servants. The
po_licy 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 G
duties withbut 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
H
586 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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. Use.of the
expression "official duty" implies that the act or omission
must have been done by the public servant in the course
B of his service and that it should have been done in
discharge of his duty. The section does not extend 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
c servant in discharge of official duty. If on facts. therefore.
it is prima facie found that the act or omission for which
the accused was charged had reasonable connection with
discharge of his duty, then it must be held to be official to
which applicability of Section 197 Code of Criminal
Procedure cannot be disputed."
D
(emphasis supplied)
17. The test of direct and reasonable connection between
the official duty of the accused and the acts allegedly committed
by them is, therefore, the true test to be applied while deciding
E whether the protection of Section 197 of the Cr.P.C. is
available to a public servant accused of the commission of an
offence. The High Court has not adverted to this test nor has it
held that there existed a direct and ·reasonable connection
between the official duty being discharged by the accused
F public servant and the acts committed by him. The High Court
has on the contrary misdirected itself when it said that the
accused had only committed an act of omission towards his
official duties which entitled him to the protection of Section 197
of the Code. The High Court observed:
G "After going through the facts of the above case, one thing
is clear that there was an on-going rift between Smt. Maya
Devi and Smt. Urmila Devi. They are both quarrelsome in
nature and have been instigating each other on a number
of occasions. On a complaint made by Smt. Maya Devi,
H who is a widow, inquiry was conducted by Tehsildar who
URMILA DEVI v. YUDHVIR SINGH 587
[T.S. THAKUR, J.]
concluded that Smt. Urmila Devi was residing with Shri A
RC.Chopra without being legally wedded to him. To verify
this fact the SOM had referred an inquiry to the DSP. In
pursuance to this, a team had visited the house of Smt.
Urmila Devi at 10:00 P.M. led by DSP Mrs. Rajshri Singh,
ASI Onkar Singh and HC Om Parkash to verify the contents B
of the complaint made by Maya Devi. Shri R.C. Chopra
was found residing with Smt. Urmila Devi. They were
medically examined. No case was registered and they
were not arrested. In a complaint by Maya Rani it was
alleged that a divorce petition was pending between Shri
R.C. Chopra and his wife Savitri. Shri R.C. Chopra and
c
Smt. Urmila Devi had given false statements to the police
in investigation that they did not know each other at all. The
allegation that the SOM was present when the investigation
team visited the house is not being denied. After marking
an inquiry, SOM was ceased of the complaint and his D
presence at best can be an act of omission towards his
official duty. It cannot be said that his presence was not in
the course of his service. The allegation in the complaint
that he harassed the complainant Smt. Urmila Devi and
Shri R.C. Chopra when the investigating team was doing E
their work can at best be termed as act of omission while
doing official duty."
18. It is difficult to appreciate what the High Court meant
by saying that the acts of the accused were "at best acts of
omission towards official duty". It was not the case of the F
respondent before the High Court nor is it his case before us
that the complaint filed by Maya Devi disclosed any offence
which could be taken cognizance of ·by him as an Executive
Magistrate or investigated by the police. Assuming that the
complainant and R.C. Chopra were living together even when
they were not married to each other, the complaint regard!ng G
any such relationship could be filed only by the wife of R.C.
Chopra, or the husband of the complainant-Urmila Devi. The
complaint filed by Maya Devi could not provide a valid basis
for the SDM, the Tehsildar or the Deputy Superintendent of
Police concerned to barge into the house of the complainant, H
588 SUPREME COURT REPORTS [2013] 16 S.C.R.
A humiliate or harass her or drag her to the police station without
the registration of any case or subject her to an uncalled for
medical examination. The test of direct and reasonable
connection between the official duty of the respondent Sub
Divisional Magistrate and the police officers concerned and the
B acts complained of thus fails in the present case especially
because there is not even a semblance of a lawful justification
forthcoming from the respondent for what he did. Entering the
house of a woman, after sunset with a posse of police force,
carrying video cameras conducting an unwarranted search of
the house, humiliating and invading the privacy of the
C complainant, insulting and humiliating R.C. Chopra by asking
him to undress and dragging both of them to the police station
for medical examination against their wishes, especially when
male doctors were asked to examine the complainant which
added insult to injury, all remain unsupported by any lawful
D justification and have no connection with the duties that were
cast upon the respondent as a public servant, even if a
complaint alleging an adulterous relationship between the
appellant and R.C. Chopra had been received by the SOM. The
alleged acts of the respondent cannot, therefore, be said to be
E in discharge of his official duties or in the purported discharge
of such duties. Public functionaries cannot under the cloak of
purported discharge of official duties resort to harassment and
humiliation of the citizens on the pretext of a complaint having
been received by them, especially when the same does. not
F disclose the commission of any offence triable by the Executive
Magistrate or cognizable by the police; nor was there any other
proceeding in connection with which such conduct could be
justified in law. The plea of the respondent that the prosecution
was barred under Section 197 Cr.P.C. has, therefore, to be
rejected:
G 19. With the above observations, I agree that the appeal
be allowed with the directions contained in the order proposed
by my esteemed Colleague Kalifulla, J.
Bibhuti Bhushan Bose Appeal dismissed.
H
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