TaxTMI 
TaxTMI 
2020 (6) TMI 802
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....PCR No. 17214 of 2013 inter alia against the Accused Appellant, for offences punishable Under Sections 120-B, 220, 323, 330, 348, 506B read with Section 34 of the Indian Penal Code. The High Court did not quash the impugned order of the Additional Chief Metropolitan Magistrate dated 27.12.2006, but remitted the complaint back to the Learned Additional Chief Metropolitan Magistrate instead, with inter alia liberty to the Accused Appellant to apply for discharge. 3. The Accused Appellant is a police officer of the rank of Superintendent of Police. On or about 10-8-2012, when the Accused Appellant was posted as Deputy Commissioner of Police (Crime), Bangalore city, the Commissioner of Police, Bangalore passed an order transferring a case being Crime No. 12/2012 registered at the Ulsoor Police Station, Bangalore, to the Central Crime Branch, Bangalore. 4. After the aforesaid order was passed, the Deputy Commissioner of Police (Eastern Division) Bangalore City directed the Inspector of Police, Ulsoor Police Station to transmit the entire case records relating to Crime No. 12/2012 to the Crime Branch. 5. The Accused Appellant, who was posted as Deputy Commissioner of Police (Cri....
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.... 8. On receipt of information that 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 poli....
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....o take cognizance against the Appellant 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 o....
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....ll be annexed to the plaint endorsed or accompanied 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....
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....theless in exercise of authority as a police officer, in connection with investigation 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 th....
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....dicate the issues raised in this appeal, it is necessary to examine the scope and effect of Section 197 of the Code of Criminal 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 ....
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..... R AIR 1948 PC 128 and held: ...The result of the authorities may thus be summed up: It is not every offence committed by a public servant 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....
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....nd 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. 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 h....
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.... the official duty, there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.... 40. In B. Saha 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 c....
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....04) 8 SCC 40]). 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. 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 t....
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....egal direction concerning the way in which he should have conducted as such public servant. For the offences Under Section 167 and 219 Indian Penal Code the pivotal ingredient is the same as for the offence Under Section 166 Indian Penal 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 Metro....
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....te of Haryana (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, V.C. Shukla v. State through CBI 1980 Supp SCC 92 and Rajendra Kumar Sitaram Pande v. Uttam (1999) 3 SCC 134). The feasible test is whether by upholding the objections 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....
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....ed to a police station had without warrant illegally detained the complainant for interrogation Under Section 161 of the Code of Criminal Procedure in connection with a private complaint of house break and theft, assaulted him along with the private complainant 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 Procedu....
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....cution of the police officer, at the preliminary stage, observing that criminal trial should not be stayed at the preliminary stage in every case, as it might cause damage to the evidence. The Court observed that if necessary the question of sanction might 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....
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....gainst attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea 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 pol....
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....ce 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. 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 ind....
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....Dobey (supra) this Court held it is not always necessary that the need for sanction Under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be 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 cour....