Monday, 21 December 2015

Whether Magistrate can take cognizance of offence against police officer without sanction for prosecution issued by govt?

In Om Prakash (supra), this Court, after referring to
various decisions, particularly pertaining to the police excess,
summed-up the guidelines at paragraph-32, which reads as
follows:
“32. The true test as to whether a public
servant was acting or purporting to act in
discharge of his duties would be whether the
act complained of was directly connected with
his official duties or it was done in the discharge
of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh). The
protection given under Section 197 of the Code
has certain limits and 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 (Ganesh
Chandra Jew). If the above tests are applied to
the facts of the present case, the police must
get protection given under Section 197 of the
Code because the acts complained of are so

integrally connected with or attached 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.”
(Emphasis supplied)
10. In our view, the above guidelines squarely apply in the
case of the appellant herein. Going by the factual matrix, it is
evident that the whole allegation is on police excess in
connection with the investigation of a criminal case. The said
offensive conduct is reasonably connected with the
performance of the official duty of the appellant. Therefore, the
learned Magistrate could not have taken cognizance of the case
without the previous sanction of the State Government. The
High Court missed this crucial point in the impugned order.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 722 OF 2015
(Arising from S.L.P. (Criminal) No. 6684/2013)
D. T. Virupakshappa … Appellant (s)
Versus
C. Subash … Respondent (s)
Citation;2015(4) crimes 214 SC

2. Appellant is the accused in a private complaint filed by
the respondent/complainant before Civil Judge (Jr.Div) and JMFC
at Chikkanayakanahalli, Karnataka, on which the learned
Magistrate took cognizance, registered the case as C.C. No.
74/2009 and issued summons to the appellant. The case was
registered under Sections 323, 324, 326, 341, 120,
114, 506 read with Section 149 of the Indian Penal Code (45 of
1860) (hereinafter referred to as ‘IPC’).

3. The appellant moved the High Court under Section 482
of The Code of Criminal Procedure, 1973 (hereinafter referred to
as ‘CrPC’), which was declined by the impugned order.
4. The facts and reasons, as stated in the impugned order,
read as follows:
“6. A perusal of the averments in the
complaint, sworn statement of the complainant
and his witnesses go to show that the
complainant was picked up from his garden land
at about 10.00 a.m. on 6/6/2006 in the morning.
Further averment reveals that this petitioner
came to the police station later in the evening
and detained him till 10.00 p.m. and also
directed that he should not be let-out till he
reveals or confesses that he is involved in the
murder of one Sannamma. These allegations in
the complaint are further corroborated in the
sworn statement of the complainant which is
further fortified from the sworn statement of his
two witnesses, namely, PWs. 2 and 3. The Court
at this stage is required to consider only the
sworn statement of the complainant and his
witnesses to come to a conclusion whether a
prima facie case is made out for registering the
case and issuing summons. It is not the stage
for the Court to consider the defence of the
accused as the same is well settled by the Apex
Court as long as in the year 1976 in the case of
Nagawwa Vs. V.S. Kojalgi reported in (1976) 3
SCC 736. In the present case, the allegation in
the complaint, sworn statement of the
complainant and his two witnesses clearly make
out the offences alleged against the petitioner
and other accused. If according to the
petitioner, it is a false and fictitious complaint, it
is for him to bring those materials when the said
case is set down for hearing before charge
before the learned Magistrate. It is too
2Page 3
premature at this stage to consider the case of
the petitioner while looking into the material
whether the prima facie case is made out or not
as alleged by the complainant. …”
5. The main contention of the appellant is that the
learned Magistrate could not have taken cognizance of the
alleged offence and issued process to the appellant without
sanction from the State Government under Section 197 of CrPC,
and that on that sole ground, the High Court should have
quashed the proceedings.
6. The question, whether sanction is necessary or not,
may arise on any stage of the proceedings, and in a given case,
it may arise at the stage of inception as held by this Court in
Om Prakash and others v. State of Jharkhand Through
The Secretary, Department of Home, Ranchi 1 and
another1
. To quote:
“41. The upshot of this discussion is that
whether sanction is necessary or not has to be
decided from stage to stage. This question may
arise at any stage of the proceeding. In a given
case, it may arise at the inception. There may
be unassailable and unimpeachable
circumstances on record which may establish at
the outset that the police officer or public
servant was acting in performance of his official
duty and is entitled to protection given under
1
(2012) 12 SCC 72
3Page 4
Section 197 of the Code. It is not possible for us
to hold that in such a case, the court cannot
look into any documents produced by the
accused or the public servant concerned at the
inception. The nature of the complaint may
have to be kept in mind. It must be
remembered that previous sanction is a
precondition for taking cognizance of the
offence and, therefore, there is no requirement
that the accused must wait till the charges are
framed to raise this plea. ...”
7. In the case before us, the allegation is that the
appellant exceeded in exercising his power during investigation
of a criminal case and assaulted the respondent in order to
extract some information with regard to the death of one
Sannamma, and in that connection, the respondent was
detained in the police station for some time. Therefore, the
alleged conduct has an essential connection with the discharge
of the official duty. Under Section 197 of CrPC, in case, the
Government servant accused of an offence, which is alleged to
have been committed by him while acting or purporting to act
in discharge of his official duty, the previous sanction is
necessary.
8. The issue of ‘police excess’ during investigation and
requirement of sanction for prosecution in that regard, was also
the subject matter of State of Orissa Through Kumar

Raghvendra Singh and others v. Ganesh Chandra Jew
(2004) 8 SCC 40
wherein, at paragraph-7, it has been held as follows:
“7. The protection given under Section 197 is
to protect responsible public servants against
the institution of possibly vexatious criminal
proceedings for offences alleged to have been
committed by them while they are acting or
purporting to act as public servants. The policy
of the legislature is to afford adequate
protection to public servants to ensure that they
are not prosecuted for anything done by them
in the discharge of their official duties without
reasonable cause, and if sanction is granted, to
confer on the Government, if they choose to
exercise it, complete control of the prosecution.
This protection has certain limits and 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. The
question is not as to the nature of the offence
such as whether the alleged offence contained
an element necessarily dependent upon the
offender being a public servant, but whether it
was committed by a public servant acting or
purporting to act as such in the discharge of his
official capacity. Before Section 197 can be
invoked, it must be shown that the official
concerned was accused of an offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official
duties. 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. The act must fall within the
scope and range of the official duties of the
public servant concerned. It is the quality of the
act which is important and the protection of this
section is available if the act falls within the
scope and range of his official duty. …”
(Emphasis supplied)
9. In Om Prakash (supra), this Court, after referring to
various decisions, particularly pertaining to the police excess,
summed-up the guidelines at paragraph-32, which reads as
follows:
“32. The true test as to whether a public
servant was acting or purporting to act in
discharge of his duties would be whether the
act complained of was directly connected with
his official duties or it was done in the discharge
of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh). The
protection given under Section 197 of the Code
has certain limits and 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 (Ganesh
Chandra Jew). If the above tests are applied to
the facts of the present case, the police must
get protection given under Section 197 of the
Code because the acts complained of are so

integrally connected with or attached 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.”
(Emphasis supplied)
10. In our view, the above guidelines squarely apply in the
case of the appellant herein. Going by the factual matrix, it is
evident that the whole allegation is on police excess in
connection with the investigation of a criminal case. The said
offensive conduct is reasonably connected with the
performance of the official duty of the appellant. Therefore, the
learned Magistrate could not have taken cognizance of the case
without the previous sanction of the State Government. The
High Court missed this crucial point in the impugned order.
11. The appeal is hence allowed. The impugned order by
the High Court is set aside, so also, the proceedings initiated by
the Civil Judge (Jr.Div) and JMFC at Chikkanayakanahalli,
Karnataka in C.C. No. 74/2009 taking cognizance and
issuing process to the appellant. It is made clear that our
judgment is only on the issue of sanction and we have not
considered the matter on merits and that this judgment shall
not stand in the way of respondent approaching the State

Government for sanction under Section 197 of CrPC. In case
such sanction is obtained and the same is produced before the
learned Magistrate, the Magistrate may proceed further in the
case in accordance with the law.


....…….…..…………J.
 (ANIL R. DAVE)

...……………………J.
 (KURIAN JOSEPH)
New Delhi;
April 27, 2015.

Print Page

No comments:

Post a Comment