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2020 (6) TMI 802 - SC - Indian LawsWhether the learned Magistrate could, at all, have taken cognizance against the Appellant, in the private complaint, in the absence of sanction Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963, as amended by the Karnataka Police (Amendment) Act, 2013? - whether the High Court should have quashed the impugned order of the Magistrate concerned, instead of remitting the complaint to the Magistrate concerned and requiring the Accused Appellant to appear before him and file an application for discharge? - HELD THAT:- The object of sanction for prosecution, whether Under Section 197 of the Code of Criminal Procedure, or Under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. In STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND ORS. VERSUS GANESH CHANDRA JEW [2004 (3) TMI 824 - SUPREME COURT], this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the Section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty. This Court held that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done "'under" a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law. It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Code of Criminal Procedure or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Code of Criminal Procedure authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court - Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected Under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law - If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained Under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act. It is well settled that an application Under Section 482 of the Code of Criminal Procedure is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power Under Section 482 of the Code of Criminal Procedure would have to be exercised to quash the proceedings, to prevent abuse of process of court. The High Court has by its judgment and order observed "it is well recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal therefore an order too overcome any illegality the duty of the magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider" - the High Court clearly erred in law in refusing to exercise its jurisdiction Under Section 482 of the Code of Criminal Procedure to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. The appeal is allowed.
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