1. The revisional application has been preferred praying for quashing of proceeding in connection with Kurseong Police Station Case No. 21/2019 dated 05.02.2019 under Sections 143/447/341/325/354/427/506/34 of the Indian Penal Code, 1860, (G. R. Case No.26 of 2019 (State Vs. Lt. Col Diwakar Kumar & Anr.)).
2. The petitioner’s case is that they were instructed by the higher officials to resist the unauthorized and illegal construction at the defence land and having discharged the duties as commanded, they have been falsely implicated in the said case. It is further submitted that all Sections except Section 354 of the Indian Penal Code are bailable offence.
3. However, it was submitted on behalf of the State at the time of bail hearing that the materials collected during the investigation does not point out any alleged overt act of the petitioner under Section 354 of the Indian Penal Code.
4. The petitioner submits that in the month of June, 2019, the petitioner no.2 was transferred to Command HQ, Udhampur, J & K and promoted as Major. The petitioner no.2 subsequently was posted at Ordinance Depot, Pune, Maharashtra. The petitioners further submit that they have discharged his official duty under command of higher officials and have not acted in their personal/individual capacity.
5. The case as made out in the written complaint is as follows:-
“That last midnight at about 1-10 a.m. of 5th February a group of army people under the leadership of captain Sachin 7033 EME Battalions and Col Diur Station H.Q, 33 core Sukna entered the village Panikumari and shouting “Akraman” started hitting the village leaving 4 people badly injured. My mother (illegible) Maya Sharma is severely injured with head injuries along with others.
As far as I know yesterday i.e. on 4th February, 2019 army people mentioned above raised objections against a foot track re-maintained by the villagers through which all people walk through towards the locality. Amicably settlement was done in the evening. But unfortunately many people entered the village in the mid night and made several male-females injured and also threat the women to be raped.”
6. Charge sheet has been submitted for offence punishable under Sections 447/341/427/506/34 of the Indian Penal Code.
7. Written notes of argument filed on behalf of the petitioner states that the complainant's actions, including the filing of the FIR, are not only malicious and baseless but are also part of a deliberate and premeditated scheme to harass, cover up the illegal acts of trespass and illegal construction by encroaching A1 defence land.
8. That the FIR has been filed with malicious intent to harass the Army Officers and to cover the illegal and unauthorized construction encroaching the Al defence land, as evident from the complainant's prior conduct and the sequence of events.
9. It is further stated that the timing of the FIR, filed on 05.02.2019, is immediately after the Army authority intimating and lodging FIR against the illegal and unauthorized construction before the Guridhari Out Post Police Station on 04.02.2019, strongly indicates that it is a retaliatory measure. The FIR is aimed at diverting attention from the complainant's own unlawful acts.
10. It is further submitted on behalf of the petitioner that Section 197(2) Cr.P.C clearly stipulates that "no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed forces of the Union while acting or purporting to act in discharge of his official duty, except with the previous sanction of the Central Government".
11. That without obtaining sanction from the Competent Authority and continuation of the proceedings based on such a frivolous and baseless FIR amounts to a miscarriage of justice.
12. The petitioner relies upon the following judgments:-
i. Baij Nath Prasad Tripathi vs State of Bhopal and Anr. (1957) 1 SCC 338.
ii. Rambhai Nathabhai Gadhvi and Ors. vs State of Gujarat (1997) 7 SCC 744.
iii. Nanjappa vs State of Karnataka (2015) 14 SCC 186.
iv. Mansukhlal Vithaldas Chauhan vs State of Gujarat (1997) 7 SCC 622.
v. Zandu Pharmaceutical Works Ltd. And Ors. vs Mohd. Sharaful Haque and Anr. (2005) 1 SCC 122.
13. On relying upon the said judgments, it is argued by the learned counsel for the petitioner that:-
i. In Baij Nath Prasad Tripathi Va State of Bhopal, (1957) 1 SCC 338, the Court went to the extent of quashing a criminal trial under Section 161 of IPC and Section 5 of the Prevention of Corruption Act, 1988, in the absence of a valid sanction, and held, "that if cognizance is taken without complying with the requirement of valid sanction, entire trial shall stand vitiated, and the conviction or acquittal recorded would not be by court of competent jurisdiction".
ii. In Rambhai Nathabhai Gadhvi & Ors. Vs State of Gujarat, (1997) 7 SCC 744, Paragraph 8, the Hon'ble Supreme Court while adjudicating on the similar provisions of TADA, held that a valid sanction is sine qua non for enabling the prosecuting agency to approach the Court in order to enable the Court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction, the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the Court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted there under will also be without jurisdiction."
iii. In Nanjappa Vs State of Karnataka (2015) 14 SCC 186, the Hon'ble Supreme Court, in a case under the Prevention of Corruption Act, held that a trial with invalid sanction is null and void. In this judgment, the Court observed, "that the question, regarding validity of a sanction for taking cognizance of the complaint against a public servant, can be raised at any stage of the proceedings. "If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution".
iv. In Mansukhlal Vithaldas Chauhan Vs State of Gujarat (1997) 7 SCC 622, the Hon'ble Supreme Court has laid as under:-
"17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions.
Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty". The Hon'ble Supreme Court has also noted that the specific legislative intent stating that use of words like 'no' and 'shall' in Section 6 of the AFSPA, 1958 denotes the mandatory requirement of obtaining prior sanction of the Central Government before the institution of the prosecution, suit, or legal proceedings and that, Section 197(2) CrPC and Section 6 of theAFSPA, 1958, makes it clear that prior sanction is a condition precedent before the institution of any of the afore said legal proceedings.”
14. It is thus submitted that in view of the said decisions of the Supreme Court, if the trial of the accused proceeds in the present case without a valid sanction, the same would stand vitiated by virtue of being in contradiction to Hon'ble rulings of the Apex Court considering that the petitioner herein in the present case, was acting in course of his official duty.
15. The list of dates filed by the petitioner shows as follows:-
2nd February 2019- That at approximately 1800 hours on 2nd February 2019, 7033 EME BN Unit QRT reported construction of cross over bridge using cement pipes and cement bags filled with sand to cross nala in Al defence land by the residents of Village Panikumari.
03 Feb 2019-That at approximately on 03 February 2019, Commanding Officer 7033 EME BN, Sector Cdr "B" visited the site and reported about the construction to Stn HQ Sukna through aLog Message. A Quick Response Team (QRT) was activated and placed to prevent any further action by the villagers.
04.02.2019- on 04.02.2019 at 0900 hours, the details of illegal construction was intimated to Station HQ vide unit letter no- 61401/PK/QM dated 04.0.2019. On the same day, a written complaint was also forwarded by SHQ to Garidhara Out Post under Kurseong Police Station for lodging a FIR against unidentified pers of Village Panikumari. Copy of the said letter was given to Station HQ Sukna and HQ 33 Corps. (EME).
05.02.2019-FIR Lodged.
16. From the materials in the case diary it appears that:-
I. In the present case admittedly the petitioner on the date and time of incident, was on duty at the place of occurrence.
II. At the time of incident, there was reported construction of a cross over bridge using cement pipe and cement bags filled with sand to cross in A1 of the defence land at the place of occurrence.
III. Senior officials had also visited the site on the next date, that is 3rd February, 2019 and reported about the said construction. A quick response team was activated and placed to prevent any further action by the villagers.
IV. On 4.2.2019 at 09.00 hours the details of illegal construction was intimated to the station Head Quarter in writing and a written complaint was forwarded by the SHQ to Garidhara Out Post under Kurseong Police Station for lodging a FIR against the unidentified persons of the village Panikumari (place of occurrence).
V. The present case has been registered on 05.02.2019, for the offences alleged, wherein it appears that the materials required to constitute the said offences are prima facie absent in the case diary. The State has also admitted before the division bench while considering the prayer for bail of the petitioner that there was no ingredient to constitute the offence under Section 354 of the IPC as alleged in the FIR.
17. It appears from the materials on record and the medical reports that the injuries as sustained has been mainly noted as simple and in some of the persons examined “no external injury” was found.
18. The Karnataka High Court in Smt. Shreeroopa vs The State of Karnataka, WP No. 20132 of 2023, decided on 4th October, 2023, held:-
“36. At this stage, the stark and striking difference between the granting of a "sanction to prosecute" and "according an approval to investigate" to an Investigating Officer would have to be elaborated. The grant of "sanction to prosecute" and the "grant of approval to investigate" are two very different concepts and would be governed by completely different parameters. At the stage of seeking sanction to prosecute, the Investigating Officer would have completed the investigation and would also have collected material, which, in his opinion, would prove that the public servant is guilty of the offence(s) alleged against him. In other words, at that stage of seeking sanction to prosecute, the Investigating Officer is well armed and certain that there is material which would establish the guilt of the public servants.
40. To summarize, the law has conferred a two-fold protection vis-à-vis the public servants for offences under the Act. The first layer of protection is even before an investigation is conducted, where a prior approval is needed under Section 17A of the Act. The second layer of protection is after the completion of investigation, where sanction to prosecute the public servant is required under Section 19 of the Act.
42. It should also not be forgotten that merely because an approval is accorded to conduct an investigation, the Investigating Officer cannot proceed to prosecute the public servant and he is still required to obtain prior sanction of the Government to prosecute the public servant under Section 19 of the Act.
43. Section 19 of the Act, in fact, prohibits a Court from taking cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, unless there is prior sanction by the respective Government.
45. The last proviso to Section 19 of the Act enables the Central Government to prescribe guidelines for the purpose of granting sanction to prosecute a public servant. Similarly, Section 29A of the Act also enables Rules to be framed in the matter of granting sanction to prosecute under Section 19 of the Act. This clearly indicates that the law has made it clear that the granting of sanction to prosecute would have to be guided by Rules or guidelines so that sanctions are not simply granted for requests made by an Investigating Officer.
46. However, in respect of Section 17A of the Act, there is no such proviso or an enabling provision for the Government to frame Rules or guidelines for the purpose of according approval to conduct investigation. This, therefore, indicates that the law accepts that there would be different standards for granting approval to investigate and for granting of a sanction to prosecute, and one cannot be equated with the other. To put it differently, the parameters that are to be applied for according approval to investigate a public servant are not as stringent as the parameters which provide for granting sanction to prosecute a public servant.”
19. In A. Sreenivasa Reddy vs Rakesh Sharma & Anr., in Criminal Appeal No. 2339 of 2023, (arising out of SLP (Criminal) No. 7542 of 2022), decided on 8th August, 2023, the Supreme Court held:-
“59. From the aforesaid, it can be said that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only prerequisite. If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects. The test in the latter case is of the “nexus” between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the CrPC on such reasoning. The “safe and sure test”, is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted “in excess of his duty”, but if there is a “reasonable connection” between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts.
60. Before, we close this matter, we would like to observe something which, this Court may have to consider sooner or later. The object behind the enactment of Section 19 of the PC Act, 1988 is to protect the public servants from frivolous prosecutions. Take a case wherein, the sanctioning authority at the time of declining to accord sanction under Section 19 of the PC Act, 1988 observes that sanction is being declined because the prosecution against the accused could be termed as frivolous or vexatious. Then, in such circumstances what would be its effect on the trial so far as the IPC offences are concerned? Could it be said that the prosecution for the offences under the PC Act, 1988 is frivolous but the same would not be for the offences under the IPC? We are not going into this question in the present matter as sanction initially was not declined on the ground that the prosecution against the appellant herein is frivolous or vexatious but the same was declined essentially on the ground that what has been alleged is mere procedural irregularities in discharge of essential duties. Whether such procedural irregularities constitute any offence under the IPC or not will be looked into by the trial court. What we have highlighted may be examined by this Court in some other litigation at an appropriate time.”
20. Section 197 of Code of Criminal Procedure, 1973 provides:-
“197. Prosecution of Judges and public servants. (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 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 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: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.]
………………………............”
21. The underlying principle of Section 197 is that public servants are treated as special class of person enjoying the protection that they can perform their duties without fear and favour and threats of malicious prosecution. (Manorama Tiwari and Ors. Vs. Surendra Nath Rai [(2016) 1 SCC 594).
22. In Matajog Dobey vs. H. C. Bhari, [AIR 1956 SC 44], the Supreme Court held:-
“…………. The minor contentions may be disposed of at the outset. Even if there was anything sound and substantial in the constitutional point about the vires of section 5(1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal. Article 14 does not render section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain, of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the govern- ment and not in a minor official. Further, we are not now concerned with any such question. We have merely to see whether the court could take cognisance of the case without previous sanction and for this purpose the court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.
Slightly differing tests have been laid down in the decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection' between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh v. The Crown(1), Sulaiman, J. observes:
"The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction".
The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observe in Gill's case(1) "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to (1) [1939] F.C.R. 159,178.
(2) [1948] L.R. 75 I.A. 41.
lie within the scope of his official duty .... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". Hori Ram's case(1) is referred to with approval in the later ease of Lieutenant Hector Thomas Huntley v. The King-Emperor(1) but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. The King(1) does not carry us any further; it adopts the reasoning in Gill's case(1). There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. The State of Bombay(1), Bose, J. observes as follows: "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. The State of PEPSU(6). A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".
The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such (1) [1939] F.C.R. 159,178, (2) [1944] F.C.R. 262.
(3) [1948] L.R. 75 I.A. 185.
(4) [1948] L.R. 75 I.A. 41. (
5) [1955] 1 S.C.R 1177, 1186.
(6) [1955] 1 S.C.R. 1302, 1307, 1308.
relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram's case and also in Sarjoo Prasad v. The King-Emperor(1). Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty". It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.
We are not prepared to concede in favour of the (1) [1945] F.C.R. 227, appellants the correctness of the extreme proportion advanced by Mr. Isaacs on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials conducting the - search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint. Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc.. might be secreted or destroyed in the interval; and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject-matter for inquiry during the proceedings; it would not make the act of removal improper or unlawful. It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, sub- section (9) of the Investigation Commission Act makes the provisions relating to searches applicable only "go far as they can be made applicable".
The two English cases relied on are scarcely of any help. In Jones v. Owen"), a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside. Hatton v. Treeby(2) was a case where the Act of Parliament which created a new offence did not in itself provide for a power of detention of the offender.
Where a power is conferred or a duty imposed by statute or otherwise' and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance (1) [1823] L.J. Reports (K.B.) 139; 2 D. & R. 600. (2) [1897] L.R.2 Q.B.D. 452.
of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with commonsense and does not seem contrary to any principle -of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Ed., at page 312: "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command".
Let us however assume that Mr. Isaacs is right in his contention. Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and entirely divorced from or unconnected with the dig' charge of their duty that it was an independent act maliciously done or perpetrated., They. could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be wellfounded or not……………..”
23. In Amod Kumar Kanth vs Association of Victim of Uphaar Tragedy and Anr., 2023 SCC OnLine SC 578, decided on April 20, 2023, the Supreme Court held:-
“32. Here we may notice one aspect. When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr. P.C. It all depends on the facts and therefore, would have to be decided on a case to case basis.”
24. In the instant case, it is not in dispute that the Petitioner was discharging his public duty at the place of occurrence on the date and time of the alleged incident in this case as there is a “reasonable connection” between the impugned act and the performance of the official duty. Therefore, taking cognizance of the offences as alleged against the Petitioner without sanction order is barred. As such the offences alleged against the present Petitioner are liable to be quashed.
25. The instant revisional application is thus allowed.
26. The proceedings in connection with Kurseong Police Station Case No. 21/2019 dated 05.02.2019 under Sections 143/447/341/325/354/427/506/34 of the Indian Penal Code, 1860, (G. R. Case No.26 of 2019 (State Vs. Lt. Col Diwakar Kumar & Anr.)). including the charge sheet filed under Sections 447/34/427/506/34 of the Indian Penal Code, is hereby quashed.
27. All applications connected thereto stand disposed of.
28. Interim order, if any, stands vacated.
29. Let a copy of the Judgment be sent to the learned trial court for compliance.
30. Urgent Xerox certified copies of this Judgment, if applied for, shall be supplied to the learned counsel for the parties as expeditiously as possible, in compliance of usual formalities.
