Cops Entitled To Protection If Act Is Reasonable, Even If In Excess Of Duty: Bombay HC [Read Judgment]
"It is true that, protection given under section 197 of the Code has certain limitations and is available only when the alleged act of the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act", said the Court.
The Bombay High Court (Aurangabad Bench) in Asif Yusuf Patel v. The State of Maharashtra & others, has decided that police officers must be given protection under the section 197 of the CrPC even if they acted in excess of their duty and, thus, dismissed the petition filed by Asif.
The petitioner in the case, Asif Yusuf Patel was an accused charged under sections 147, 148, 307 and 436 of IPC at Newasa Police Station and when the police went to arrest him from the place he was residing at in Bidkin, Patel submitted that he was beaten up brutally and sustained severe injuries on his hand and left leg and even a gunfire by the police officers, which had torn his mouth apart. He thus, filed a petition against these officers on duty and prayed that they had acted in excess of their duty and should not be protected under section 197 of CrPC.
The magistrate issued process against the police officers concerned on duty for the offences punishable under Section 330 read with 34 of IPC by registering regular criminal case. The officers filed an application for discharge, which was allowed, and hence, Patel appealed against this discharge in the High Court.
The medical certificate issued after Patel’s examination upon his complaint against the police officials indicated that the possibility of Patel receiving the injuries in the process of evading arrest could not be ruled out.
Upon perusal of the documents, the bench of Justice V. K. Jadhav found that the allegations of Patel were baseless and the injuries sustained by him were of simple nature, and not severe, as claimed by him. Further, on the same day when he was examined, the medical examiner examined two of the police officers against whom the accused Yusuf Patel has petitioner, who had sustained injuries in the encounter. It was concluded that the injuries were sustained as the accused was evading arrest and under Section 46(2) of CrPC, if the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
Various documents were presented to substantiate the contention that there is a reasonable nexus in the act complained by accused Asif Patel and official duties of the police officers. Relying on the Supreme Court’s decision in Omprakash and others vs. State of Jharkhand, through the Secretary, Department of Home, Ranchi 1 and another [(2012) 12 SCC 72] the two important findings that were reproduced were:
- Question of sanction whether is necessary or not arose at the inception and there were unassailable and unimpeachable circumstances on record which could establish at the outset that the police officer or public servant was acting in performance of his official duty and was thus entitled to protection given under Section 197 of CrPC.
- The court could look into any documents produced by the accused or the public servant concerned at the inception.
To examine the issue of “police excess”, the apex court's judgment in State of Orissa Through Raghvendra Kumar and others v. Ganesh Chandra Jew [(2004) 8 SCC 40] was referred to by the high court.
After reproduction of the relevant paras, the court in this case said:
“It is true that, protection given under Section 197 of the Code has certain limitations and is available only when the alleged act of the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. It has also observed that, if a police officer in doing his official duty, acted in excess of his duty but there is reasonable connection between the act and performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the said protection.”
In this case, the court observed that there was prima facie no evidence to support the claims of the petitioner that he had been beaten up while in custody of the police and the medical examiner’s report gave a clear indication that the accused was evading arrest and even caused hurt to two police officers in the process, hence, the police officials were entitled to protection under section 197 CrPC in the case. With this, the petition was disposed of due to lack of merit.
Read the Judgment here.
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