Gorkha Regiment personnel declined protection under Section 197(2) CrPC as acts done were not in discharge of official duty

Meghalaya High Court: Mohammad Yaqoob Mir, CJ. sitting in a criminal petition seeking to quash a case against the petitioners (army men), declined to provide the protection under Section 197(2) CrPC.

It was alleged against the petitioners (accused persons) that one of them, Sep Kamal Gurung, took up a fight with traffic police constables while they were doing their duty. The said petitioner was drunk at that time. He was taken to the police station to be sent for medical examination. However, in the meanwhile, the other petitioners (both Major in the army), reached the police station along with a troop of Gorkha Regiment; ordered the troop to load their sophisticated weapons; and took Kamal Gurung with them by causing criminal intimidation of death or grievous hurt. Consequently, a case was filed against them under Sections 353, 186, 323, 506(b), 225, 109  read with Section 34 IPC. Judicial Magistrate of First Class took cognizance of the offences. In the present petition, it was submitted that the trial court was in error as cognizance was taken without previous sanction as required as required in terms of Section 197(2) CrPC.

The High Court noted that the said section requires the previous sanction for taking cognizance of any alleged offence by army personnel for any act done in discharge of official duty. The Court observed that for the said protection, it was of paramount importance that the act was done in discharge of official duty. On the facts of the case, the Court held that act of the petitioners, precisely noted hereinabove, by any stretch of the imagination, could not be said to be an act done in discharge of official duty. Therefore, the protection under Section 197(2) was not available to the petitioners. Accordingly, the petition was dismissed. [Vikrant Sharma v. State of Meghalaya,2018 SCC OnLine Megh 89, decided on 13-07-2018]

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