While coming down very hard on police cops who file false cases, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Om Prakash Yadav v. Niranjan Kumar Upadhyay and Others in Criminal Appeal Nos. 5267-5268 OF 2024 (Arising out of S.L.P. (Crl.) Nos. 8239-8240 of 2018) and cited in Neutral Citation No.: 2024 INSC 979 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on December 15, 2024 minced just no words to hold that a police official who lodges a false case against an individual cannot claim immunity from prosecution under the guise of official duty. It needs mentioning that a Bench comprising of Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice Manoj Misra explicitly held that protection of Section 197 of Code of Criminal Procedure (CrPC) cannot be extended to such officers who misuse or abuse their powers. It must be noted that the top court reasoned rationally that it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same.
It must be disclosed here that the Apex Court held so while dealing with a case in which officials of Madhya Pradesh (MP) Police stood accused of registering a false case to create an alibi for a man who was accused of murder in Uttar Pradesh. A teacher named Suman Prakash Yadav was allegedly killed by Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Dixit and three others on October 12, 2007. On the same day, MP Police arrested Ashok Dixit in a case under Excise Act for carrying 12 bottles of illegal foreign liquor. He was later released on bail the same day.
In its investigation, the UP Police later found that the Excise Act case was fabricated to create a false alibi for Ashok Dixit who is a relative of one of the cops in MP. In 2012, the Trial Court in Firozabad found 12 accused including Ashok Dixit guilty of murder. Meanwhile, the vexed issue pertaining to prosecution of the MP police officials continued to remain pending.
It was in 2018 that the Allahabad High Court quashed the criminal proceedings against them for lack of sanction under Section 197 CrPC. The murder victim’s brother then approached the Supreme Court. The Apex Court opined clearly that no cogent evidence was presented by three accused police officials to support their bonafides.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice JB Pardiwala for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Manoj Misra sets the ball in motion by first and foremost putting forth in para 2 that, “These appeals arise out of the common Judgment and Order passed by a learned Single Judge of the High Court of Judicature at Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 respectively filed by the respondent nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of Criminal Procedure, 1973 (for short, the “CrPC”) whereby the High Court allowed the applications and quashed the proceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others) pending before the CJM, Firozabad, both arising out of Case Crime No. 617 of 2007 registered for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for short, the “IPC”) with the Dakshin Police Station, District Firozabad, Uttar Pradesh.”
To put things in perspective, the Bench envisages in para 3 that, “On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the “appellant”) lodged a First Information Report (hereinafter, “FIR”) as Case Crime No. 617 of 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307of IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Dixit and three others. The FIR alleged that the appellant’s brother, Suman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad, was killed and his brother’s son Harsh aged about 4 ½ years was grievously injured by the aforesaid accused persons by indiscriminately firing with their handguns near the Suhagnagar Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that the incident was witnessed by him and several others.”
As it turned out, the Bench enunciates in para 4 that, “On the same day, another FIR was registered as Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh, for the offence punishable under Section 34 of the Madhya Pradesh Excise Act, 1915 (hereinafter, the “Excise Act”) against Ashok Dixit who is the main accused of Case Crime No. 617 of 2007. The FIR which was lodged by Head Constable Ram Baran Singh Yadav (hereinafter, “respondent no.5”) stated that based on the information received from an informant while patrolling the area, the accused Ashok Dixit was arrested for carrying 12 bottles of illegal foreign liquor near the Thatipur Crossing. It was stated therein that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar (hereinafter, “respondent no. 4”) and Head Constable Vijay Bahadur Singh (hereinafter, “respondent no. 3”) of the Thatipur Chauki, Murar Police Station, had seized the illegal liquor and arrested the accused at around 09:30 am on 12.10.2007. It was further added that the accused, Ashok Dixit, was later released on bail by the Station House Officer (hereinafter, “SHO”), D.S. Khushawa of the Murar Police Station, on the same day, upon furnishing the necessary surety since the offence under Section 34 of the Excise Act was a bailable one. On 26.10.2007, the concerned IO is said to have submitted a Charge Sheet in connection with Case Crime No. 967 of 2007 against Ashok Dixit before the Chief Judicial Magistrate (hereinafter, “CJM”), Gwalior.”
Most remarkably, the Bench propounds in para 65 postulating that, “Thus, the legal position that emerges from a conspectus of all the decisions referred to above is that it is not possible to carve out one universal rule that can be uniformly applied to the multifarious facts and circumstances in the context of which the protection under Section 197 CrPC is sought for. Any attempt to lay down such a homogenous standard would create unnecessary rigidity as regards the scope of application of this provision. In this context, the position of law may be summarized as under: –
(i) The object behind the enactment of Section 197 CrPC is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity. It is to ensure that the public servants are not prosecuted for anything which is done by them in the discharge of their official duties, without any reasonable cause. The provision is in the form of an assurance to the honest and sincere officers so that they can perform their public duties honestly, to the best of their ability and in furtherance of public interest, without being demoralized.
(ii) The expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” in Section 197 CrPC must neither be construed narrowly nor widely and the correct approach would be to strike a balance between the two extremes. The section should be construed strictly to the extent that its operation is limited only to those acts which are discharged in the “course of duty”. However, once it has been ascertained that the act or omission has indeed been committed by the public servant in the discharge of his duty, then a liberal and wide construction must be given to a particular act or omission so far as its “official” nature is concerned.
(iii) It is essential that the Court while considering the question of applicability of Section 197 CrPC truly applies its mind to the factual situation before it. This must be done in such a manner that both the aspects are taken care of viz., on one hand, the public servant is protected under Section 197 CrPC if the act complained of falls within his official duty and on the other, appropriate action be allowed to be taken if the act complained of is not done or purported to be done by the public servant in the discharge of his official duty.
(iv) 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 that it lies within the scope and range of his official duties. The act complained of must be integrally connected or directly linked to his duties as a public servant for the purpose of affording protection under Section 197 CrPC. Hence, it is not the duty which requires an examination so much as the “act” itself.
(v) One of the foremost tests which was laid down in this regard was – whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
(vi) Later, the test came to be re-modulated. It was laid down that there must be a reasonable connection between the act done and the discharge of the official duty and the act must bear such relation to the duty such that the accused could lay a reasonable, but not a pretended or fanciful claim, that his actions were in the course of performance of his duty. Therefore, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be committed by the public servant either in his official capacity or under the color of the office held by him such that there is a direct or reasonable connection between the act and the official duty.
(vii) If in performing his official duty, the public servant acts in excess of his duty, the excess by itself will not be a sufficient ground to deprive the public servant from protection under Section 197 CrPC if it is found that there existed a reasonable connection between the act done and the performance of his official duty.
(viii) It is the “quality” of the act that must be examined and the mere fact that an opportunity to commit an offence is furnished by the official position would not be enough to attract Section 197 CrPC.
(ix) The legislature has thought fit to use two distinct expressions “acting” or “purporting to act”. The latter expression means that even if the alleged act was done under the color of office, the protection under Section 197 CrPC can be given. However, this protection must not be excessively stretched and construed as being limitless. It must be made available only when the alleged act is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.
(x) There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down such a rule. However, a “safe and sure test” would be to consider if the omission or neglect on the part of the public servant to commit the act complained of would have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, the protection under Section 197 CrPC can be granted since there was every connection with the act complained of and the official duty of the public servant.
(xi) The provision must not be abused by public servants to camouflage the commission of a crime under the supposed color of public office. The benefit of the provision must not be extended to public officials who try to take undue advantage of their position and misuse the authority vested in them for committing acts which are otherwise not permitted in law. In such circumstances, the acts committed must be considered dehors the duties which a public servant is required to discharge or perform.
(xii) On an application of the tests as aforesaid, if on facts, it is prima facie found that the act or omission for which the accused has been charged has a reasonable connection with the discharge of his official duty, the applicability of Section 197 CrPC cannot be denied.”
It is worth noting that the Bench notes in para 66 that, “At the cost of repetition, we say that the position of law on the application of Section 197 CrPC is clear – that it must be decided based on the peculiar facts and circumstances of each case. This Court has held in a legion of decisions that any misuse or abuse of powers by a public servant to do something that is impermissible in law like threatening to provide a tutored statement or trying to obtain signatures on a blank sheet of paper; causing the illegal detention of an accused; engaging in a criminal conspiracy to create false or fabricated documents; conducting a search with the sole object of harassing and threatening individuals, amongst others, cannot fall under the protective umbrella of Section 197 CrPC.”
Most significantly and as a corollary, the Bench mandates in para 67 holding that, “In light of the same, it follows that when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same. On examining the quality of the act, it is evident that there exists no reasonable or rational nexus between such an act and the duties assigned to the public servant for the claim that it was done or purported to be done in the discharge of his official duty. The mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply Section 197 CrPC. Allowing so, would enable the accused to use their status as public servants as a facade for doing an objectionable, illegal and unlawful act and take undue advantage of their position. If the Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior, by respondent nos. 3, 4 and 5 respectively, was a false case, then there is no doubt that the refusal to grant sanction would not operate as a bar for their prosecution. Moreover, as far as the case of respondent no. 1 is concerned, it is an undisputed fact that he was not even posted as the S.H.O or T.I at the Murar Police Station when the said false case was registered. The same is evident from the affidavit submitted by the IO at Firozabad before the High Court. Additionally, the respondent no. 1 has himself admitted in his submissions before us that he was in fact posted at District Shivpuri which is 120 kms away from Gwalior during the relevant time. Therefore, any act or offence committed by the respondent no. 1 in the present case can safely be said to have been outside the scope of his official duty which obviates the question of sanction for his prosecution.”
Do note, the Bench notes in para 83 that, “As far as respondent no. 1 is concerned, it is made clear that there would be no requirement for sanction since he was not acting in the discharge of his official duty by virtue of not being posted at Murar Police Station, Gwalior at the relevant time when the alleged false case was registered. As a consequence, the extent of the involvement of respondent no. 1 in the alleged conspiracy to murder can be determined by the Trial Court upon a further examination of the evidence adduced before itself. However, so far as the respondent nos. 3, 4 and 5 respectively are concerned, if the case of the prosecution that they had also played a dubious role in registering a false case is correct then the requirement of sanction would not be a sin qua non for proceeding further with the criminal proceedings. However, the defence must be given an opportunity to rebut the same by leading appropriate evidence.”
Most forthrightly, the Bench points out in para 84 that, “At this juncture on a prima facie examination of the materials adduced before us, we are of the opinion that the criminal proceedings pending before the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009 should not have been quashed at such a preliminary stage. In cases where there is a legitimate doubt as regards whether sanction for prosecution under Section 197 CrPC is required or not, the progress of the trial must not be hampered or unnecessarily delayed. Therefore, the CJM, Firozabad had rightly taken cognizance of the two charge sheets vide its orders dated 24.11.2008 and 10.08.2009 respectively. The High Court committed an error in failing to consider this aspect while quashing the proceedings in Case No. 67 of 2008 and 67A of 2009 respectively vide its impugned order.”
Be it noted, the Bench notes in para 85 that, “In view of the aforesaid discussion, the Trial Court is directed to proceed with the trial and at any stage of the trial if the evidence suggests that the acts complained of were indeed done or purported to be done in the discharge of official duty by respondent nos. 3, 4 and 5 respectively or that the FIR registered by them was not bogus, the trial may be stayed for want of sanction. Therefore, the question of sanction only qua respondent nos. 3, 4 and 5 respectively is left open to be appropriately decided by the Trial Court at a suitable stage, in accordance with the law, without being prejudiced by any of the observations made in this order as well as in the order passed by the High Court. As these proceedings arise from a case registered more than 16 years ago, the Trial Court is directed to proceed with the trial & conclude it expeditiously preferably within one year from today.”
Finally and resultantly, the Bench then concludes by holding in para 86 that, “In light of the aforesaid, the appeals filed by the appellant are allowed and the impugned order passed by the High Court is set aside.”
In sum, we thus see that the Apex Court has made it indubitably clear that government sanction is not needed to prosecute cops who file false cases. It very rightly held that, “This Court has held in a legion of decisions that any misuse or abuse of powers by a public servant to do something that is impermissible in law like threatening to provide a tutored statement or trying to obtain signatures on a blank sheet of paper; causing the illegal detention of an accused; engaging in a criminal conspiracy to create false or fabricated documents; conducting a search with the sole object of harassing and threatening individuals, amongst others, cannot fall under the protective umbrella of Section 197 CrPC.” Very rightly so!
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