TMI Blog2020 (6) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, who was posted as Deputy Commissioner of Police (Crime) received the case records and handed over investigation of the case to the Inspector of Police by a memo dated 2-1-2013. Thereafter, the Inspector of Police, being the 3rd Accused took up investigation under the guidance of the Assistant Commissioner of Police being the 2nd Accused, with the assistance of the Sub-Inspector of Police being the Accused No. 4. 6. The Accused Appellant has stated that police officers of the Crime Department enquired into the history of the Respondent and his family and found that the Respondent was involved in the following cases. Cases against Owais Sabeer Hussain/Respondent Sl. No. Date Police Station FIR Number Sections 1 26.02.2013 HSR Layout, Bengaluru 110/2013 420, 465, 468 of Indian Penal Code 2 03.05.2013 Subramanyanagar, Bangalore 44/2013 420 of Indian Penal Code 7. There were also o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Respondent was involved in Crime No. 12/2012 of Ulsoor Police Station, the Inspector of Police being the 3rd Accused, along with Sub-Inspector of Police and other personnel raided House No. 116 1st Floor, 1st Cross, New BEL Road, Bangalore belonging to the Respondent. The Respondent was also detained in connection with the aforesaid case, and later arrayed as Accused in the aforesaid case (Crime No. 12/2012) 9. The Respondent was arrested under panchnama on 27-2-2013, after which he was produced before the jurisdictional Magistrate being the Additional Chief Metropolitan Magistrate I at Bengaluru on 28-2-2013. By an order dated 28-2-2013, the learned Additional Chief Metropolitan Magistrate I, Bengaluru remanded the Respondent to police custody, observing that the Respondent had not complained of any ill-treatment by the Police. 10. On 1-3-2013, the Investigating Officer seized a stolen car being Tata Manza car which was parked on the road adjacent to the Respondent's house, allegedly pursuant to a voluntary statement of the Respondent. Inquiry revealed that the car was related to Crime No. 110 of 2013 registered with HSR Layout police station. 11. On or about 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant in P.C.R. No. 17214 of 2013, even though no previous sanction had been obtained from the Government. The Accused Appellant filed Criminal Petition No. 319 of 2017 Under Section 482 of the Code of Criminal Procedure in the Karnataka High Court at Bengaluru inter alia for quashing the order dated 27-12-2016 in P.C.R. No. 17214 of 2013. 16. By the impugned order dated 31-1-2018, the Karnataka High Court was pleased to hold that it was a well recognised principle of law, that sanction was a legal requirement, which empowered the Court to take cognizance of a private criminal complaint against a public servant. After recording its finding, as aforesaid, the High Court proceeded to observe that the Magistrate had tentatively opined that sanction was not necessary to proceed against the Accused Appellant, having regard to the documents produced by the complainant before him, and remanded the complaint back to the Trial Court, with a direction on the Accused Appellant to appear before the Trial Court and file an application Under Section 245 of the Code of Criminal Procedure for discharge. The Magistrate was directed to pass an appropriate order on the application for discharge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with declaration by the Plaintiff of the time and manner of service thereof. 20. Section 197 of the Code of Criminal Procedure 1973 is set out hereinbelow for convenience: 197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is Accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an alleged crime in which the Respondent was alleged to be involved. The police officers were duty bound to investigate into an offence. The excesses alleged were in course of discharge of such official duty of investigating into an offence. 25. Mr. Poovayya emphatically argued that Under Section 170 of the Karnataka Police Act, no prosecution is to be entertained against a Police Officer, except with the previous sanction of the Government, in case of any wrong alleged to have been done by such officer, by any act in pursuance of any duty imposed or authority conferred on him by any provision of the Karnataka Police Act, 1963, or any other law for the time being in force, or even any act done under colour of or in excess of any such duty or authority. The criminal complaint against the Accused Appellant should, therefore, have been quashed Under Section 482 of the Code of Criminal Procedure for want of sanction Under Section 197 of the Code of Criminal Procedure 1973, read with Section 170 of the Karnataka Police Act, 1963. In support of his argument, Mr. Poovayya cited the judgments of this Court in D.T. Virupakshappa v. C. Subash (2015) 12 SCC 231, Virupaxappa Veerappa Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure and/or Section 170 of the Karnataka Police Act, 1963. It is necessary to examine whether want of sanction would vitiate criminal proceedings against a police officer, in all cases? If not, what are the circumstances in which sanction is necessary. 32. 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. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 held: ...Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard........... There is no question of any discrimination between one person and Anr. in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction... 33. In Pukhraj v. State of Rajasthan and Anr. (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that requires sanction for prosecution Under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution... 35. Section 197 of the Code of Criminal Procedure 1898, hereinafter referred to as the old Code of Criminal Procedure, which fell for consideration in Matajog Dobey (supra), Pukhraj (supra) and Amrik Singh (supra) is in pari materia with Section 197 of the Code of Criminal Procedure 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure. 36. In Ganesh Chandra Jew (supra) this Court held: 7. The protection given Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 38. In Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 this Court explained the scope and object of Section 197 of the old Code of Criminal Procedure, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held: 18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning. What it says is-- When any public servant ... is Accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.... We have therefore first to concentrate on the word 'off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. v. M.S. Kochar (1979) 4 SCC 177 this Court held: 18. In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. 41. In Virupaxappa Veerappa Kadampur v. State of Mysore (supra) cited by Mr. Poovayya, a three Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase under colour of duty to mean acts done under the cloak of duty, even though not by virtue of the duty . 42. In Virupaxappa Veerappa Kadampur (supra) this Court referred to the meaning of the words colour of office in Wharton's Law Lexicon, 14th Ed. Which is as follows: Colour of office When an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour. 43. This Court also referred to the meaning of colour of office in Stroud's Judicial Dictionary, 3rd Edition, set out hereinbelow: Colou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted Under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood. 46. In Sankaran Moitra v. Sadhna Das and Anr. (2006) 4 SCC 584 the majority referred to H.H.B. Gill v. R AIR 1948 PC 128, H.H.B. Gill v. Emperor AIR 1947 FC 9; Shreekantiah Ramayya Munippali v. State of Bombay AIR 1955 SC 287; Amrik Singh v. State of Pepsu AIR 1955 SC 309; Matajog Dobey v. H.C. Bhari AIR 1956 SC 44; Pukhraj v. State of Rajasthan (1973) 2 SCC 701; B. Saha and Ors. v. M.S. Kochar (1979) 4 SCC 177; Bakhshish Singh Brar v. Gurmej Kaur (1987) 4 SCC 663; Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. (2001) 5 SCC 7 and held: 25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Code. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which the Appellants held. 49. Mr. Poovayya argued that the complaint filed by the Respondent against the Accused Appellant was in gross abuse of process, frivolous and malafide. Controverting the allegation of the Respondent in his complaint, of police excesses while the Respondent was in police custody between 27th February, 2013 and 14th March, 2013 in connection with Crime No. 12/2012, Mr. Poovayya referred to the order of the learned Chief Metropolitan Magistrate dated 28th February, 2013 in the said crime case, observing that the Respondent had not complained of any ill-treatment by the police. 50. Mr. Poovayya submitted that the learned Chief Metropolitan Magistrate had, in any case, passed an order for medical examination of the Respondent in view of his complaint of ill-treatment, but the medical reports, upon such examination, showed that there was no injury on the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the Appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. 12. Therefore, the High Court went wrong in holding that the order impugned before the Sessions Court was not revisable in view of the bar contained in Section 397(2) of the Code. 54. In D.T. Virupakshappa v. C. Subash (supra), cited by Mr. Poovayya, the question raised by the Appellant before this Court was, whether the learned Magistrate could not have taken cognizance of the alleged offence which was of police excess in connection with investigation of the criminal case, without sanction from the State Government Under Section 197 of the Code of Criminal Procedure and whether the High Court should have quashed the proceedings on that ground alone. 55. This Court held that the whole allegation of police excess in connection with the investigation of the criminal cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant to extract statements and left him in an injured condition. 59. In the context of aforesaid, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht be agitated at a later stage. 63. In Om Prakash and Ors. v. State of Jharkhand and Anr. (supra) this Court held: 34. In Matajog Dobey (AIR 1956 SC 44) the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty occurring in Section 197 of the Code of Criminal Procedure (5 of 1898). The Constitution Bench observed that no question of sanction can arise Under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the Accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea regarding sanction can be raised at the inception. 43. In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Ltd. [(2005) 1 SCC 122] this Court has held that the power Under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power Under Section 482 of the Code must be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed. 64. In Pukhraj v. State of Rajasthan (supra) the Accused Post Master General, Rajasthan had allegedly kicked and abused a union leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, 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. 69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. 70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 71. If in doing an officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e done in the discharge of official duty and/or under colour of duty. However the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings. 77. 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. 78. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that ..... 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