A Delhi Court (Saket Court) has dismissed an application by Jamia Millia Islamia seeking FIR against Delhi Police for barging into the University campus and assaulting students and others, while also destroying property, citing that the police are protected from prosecution under section 197 of CrPC for acts done in discharging official duty.
The application was filed by Jamia Millia Islamia seeking direction from the court to file FIR against Delhi police for breaking into University campus without seeking any sanction and for using excessive and arbitrary force on security personnel as well as students and also for causing destruction of property, firing tear gas shells and lathi charge on persons within campus.
The application stated that the Police also hurt religious sentiments of locals of the area by entering into the University Mosque. A complaint was given, on December 16, 2019 to SHO, Jami Nagar police station as well as ACP and DCP but since no action was taken, the application was filed.
Action Taken report
The court called for an Action Taken report (ATR) from the police in which it was stated that around 3,500 students had gathered to protest the Citizenship Amendment Act (CAA) on being instigated by local leaders and politicians. The ATR stated that deployment of anti-riot staff was done as per the standard protocol and that the said crowd was armed and set several vehicles on fire. The mob then went inside campus and started pelting stones on the police and raised provocative slogans and hence, police had to enter to contain the mob.
Court’s observations
The court observed that since all allegations were levelled against police personnel who are public servants, it must be seen whether the matter falls under section 197 of CrPC. This provision protects public servants from prosecution if they are accused of any offence alleged to have been committed while discharging their duty.
The court relied upon judgment in State of Orissa v Ganesh Chandra Jew [(2004) 8 SCC 40] whereby the Supreme Court held that the protection under section 197 of CrPC is “available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act”.
“If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection… It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it,” states the judgment.
The court observed that if there is a reasonable nexus between the alleged act and official duties of the public servant then even if the act might have been in excess of or in derogation of prescribed scope of duties, the protection under section 197 CrPC applies.
The court observed that it cannot be denied that police were trying to maintain law and order and that students were protesting and that the protests had taken a violent turn.
The court considered the applicant’s argument that students’ protests were peaceful and some anti-social elements had caused violence but stated that it was not for the court to determine this in the current case.
“Though it could be argued that while so acting, the police/ respondents had allegedly exceeded their jurisdiction and used more force than necessary in some instances, it cannot be said, by any stretch of imagination, that the said acts allegedly committed by the respondents were wholly unconnected to their official duty,” stated the court.
The court admitted that it may be argued that the police could have shown some restraint and differentiated between peaceful student protesters and antisocial elements but the lack of restraint and excesses are both related to the official duties of the police.
The court held that even if their actions may be questionable, they are protected under section 197 CrPC and hence, dismissed the application.
The complete order may be read here.
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