“Acts of assault, torture, illegal detention, custodial violence, or ‘marpeet’ inside the police station have repeatedly been held NOT to fall within the scope of official duty,” the court said.
Background
One Pooja Kushwah alleged that on October 12, 2019, her brother Dhirendra was stopped near Partwada village in Sheopur district. She alleged that sub-inspector Mamta Gurjar slapped Dhirendra and hit him with a stick.
He was taken to Bargawan police station, where he was allegedly stripped, beaten again and locked up, with threats that the police will “encounter” him.
When Pooja reached the police station to question the assault, she too was allegedly abused and beaten.
The complaint also stated that she was slapped multiple times, hit with sticks on different parts of her body, her dupatta was pulled off and thrown away, and another accused bit her shoulder and mouth with ‘ill intention’.
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Both siblings sustained injuries and underwent medical examination. Despite complaints to senior police officers and authorities, no action was taken, following which the complainant approached the trial court.
On February 6, 2024, the trial court took cognisance of offences, Sections 294 (obscene actions and words), 342 (wrongful confinement), 323 (voluntarily causing hurt) and part I of 506 (criminal intimidation).
An application was filed by the accused under section 218 of the BNSS 2023 (section 197 CrPC of the CrPC) on January 30, which was dismissed on February 10 by the trial court.
According to this section, prior government sanction is required to prosecute certain public servants (judges, magistrates, and officials not removable without government approval) for alleged offenses committed while performing official duties.
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Aggrieved by the trial court’s dismissal, Gurjar filed a revision before the sessions judge, which was also dismissed on May 27.
Following this, Gurjar moved the high court.
Arguments
Advocate Arun Katare, appearing for Gurjar, argued that the alleged incident occurred while she along with other police personnel was discharging official duties and that prosecution without prior government sanction under Section 197 CrPC was not maintainable.
The counsel contended that the trial court and sessions court had erred in refusing to grant them protection.
Advocate Manvardhan Singh Tomar representing Pooja Kushwah opposed the submissions.
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Observations
“There must be a “reasonable connection” between the act and the relevant official duty. If such nexus is absent i.e. custodial torture, third degree treatment, abuse, false case filing, fabrication of evidence then protection fails,” the bench said.
Stating that the protection under the Section 197 is not “absolute”, the bench said if a police officer exceeds his powers, protection may apply but only if there is a “reasonable connection” between the act and official duty.
“Not every offence committed by a police officer automatically gets official-duty protection the impugned act must be reasonably connected to his duties,” the court said.
Citing several Supreme Court judgments, the bench emphasised that abuse of power and violence in custody are unconstitutional and outside the domain of police duty.
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“The protection under Section 197 is not automatic. It applies only when there is a reasonable connection between the act and official duty. Such nexus is absent in cases of custodial torture, third-degree treatment or abuse,” the court held.
Asserting that the complainant and her brother were not any accused or offender of any offence which had been registered prior to the instant incident, the court said that the alleged assault by the police officials was not the requirement/demand of the movement.
“The act of the petitioner, in the opinion of this Court does not fall under the discharge of official duties,” the court said.
Finding no illegality in the orders passed by the trial court and sessions court, the high court dismissed the petition and directed the trial court to proceed with the case in accordance with law, without being influenced by any observations made in the order.
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The high court noted that neither the complainant nor her brother were accused in any prior case or required for interrogation at the relevant time.
