TaxTMI 
TaxTMI 
2025 (4) TMI 1670
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....etropolitan Magistrate, Bengaluru against the accused persons under Sections 326, 358, 500, 501, 502, 506 (b) read with Section 34 of the Indian Penal Code, 1860 (for short "IPC"), the appellants/accused Nos. 2, 3, and 5 have preferred this appeal. 3. Briefly stated facts of the case are that the complainant/respondent herein has been prosecuting certain police officers for their illegal activities. Due to this, the complainant alleged that some police officers had engaged accused Nos. 1 to 5, who were also police officers, to take revenge against him. Accused Nos. 1 to 5 were serving at the Mahalakshmi Layout Police Station, and accused No. 6 is the daughter of the proprietor of Bruna Weekly Magazine. 4. The complainant stated that in order to seek revenge, accused Nos. 1 to 5 lodged false complaints against the complainant and registered fabricated cases. They also threatened him with dire consequences. On 10.04.1999, at about 10:30 p.m., accused Nos. 2, 3, and 5 trespassed into his house, dragged him out, and forcibly took him to the Mahalakshmi Layout Police Station. There, the accused Nos. 1 to 5 allegedly assaulted him after stripping him of his clothes and continued to....
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....the complainant approached the Court of learned VII Additional Chief Metropolitan Magistrate, Bengaluru by filing a private complaint P.C.R. No. 6754 of 2007 dated 21.04.2007 and prayed for taking cognisance of the offences punishable under Sections 196, 199, 200, 201, 211, 326, 327, 345, 338, 357, 368, 395, 397, 500, 501, 502, 506(b) read with Section 120B of the IPC against accused Nos. 1 to 6. 10. The learned VII Additional Chief Metropolitan Magistrate by order dated 26.12.2009, recorded the sworn statement of the complainant, took cognisance of the complaint dated 21.04.2007 and issued summons to accused No. 1 to 6 in C.C No. 368 of 2010. Being aggrieved, accused No. 6 approached the High Court by way of filing Criminal Petition No. 4364 of 2010 challenging the order dated 26.12.2009. By order dated 30.03.2012, the High Court set aside the order dated 26.12.2009 insofar as accused No.6 is concerned and remanded the matter to the learned Magistrate for a fresh consideration. 11. Thereafter, by order dated 07.05.2016, the learned VII Additional Chief Metropolitan Magistrate, held that there was prima facie material to register the case against accused Nos. 1 to 5 for the o....
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..... 4512 of 2020 filed by accused No. 2, 3 and 5. The High Court observed that sufficient material was placed on record against the accused persons for facing criminal trial. As regards the plea of limitation under Section 197 of the CrPC read with Section 170 of the Police Act, the High Court further observed that the learned VII Additional Chief Metropolitan Magistrate, Bengaluru and the learned LXI City Civil and Sessions Judge, Bengaluru City have not gone into the aspect of obtaining a prior order of sanction. However, the High Court held that it was evident that the complainant made sufficient efforts to get the order of sanction. Further, the High Court noted that the accused persons exceeded their limits and assaulted the complainant resulting in grave injuries. Ergo, the High Court held that the same cannot be termed as an act done in the discharge of the official duty and protection cannot be given under Section 197 of the CrPC. In other words, the High Court held that an order of sanction under Section 197 of the CrPC and Section 170 of the Police Act was not necessary in the instant case. The High Court noted that the judgment of this Court in D. Devaraja vs. Owais Sabeer....
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.... of the Police Act. It was submitted that the High Court erroneously observed that the acts alleged against the accused persons bore no connection with their official duties. Accordingly, it was argued that the High Court committed an error in concluding that prior sanction was not necessary before initiating criminal proceedings against the accused persons. 19. Learned senior counsel further submitted that the expression "under colour or in excess of any such duty" employed in Section 170 of the Police Act is of particular significance. It was contended that the offences alleged against the accused persons would squarely fall within the ambit of the phrase "under colour or in excess of any such duty." Therefore, it was urged that obtaining prior sanction from the competent Government authority is an indispensable prerequisite before entertaining prosecution against the accused persons. In support of this contention, reliance was placed on the decision of this Court in Virupaxappa Veerappa Kadampur vs. State of Mysore, AIR 1963 SC 849 ("Virupaxappa"). In the said case, while interpreting Section 161(1) of the Bombay Police Act, 1951, this Court held that the phrase "under colour....
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....y the High Court in the impugned order. 23. It was further submitted that, in the present case, learned VII Additional Chief Metropolitan Magistrate duly considered the materials placed on record, which demonstrate that the complainant had made consistent efforts from the year 2002 to 2006 to obtain sanction for prosecution. The learned Magistrate has also noted that the complainant had addressed multiple representations to the head of the department seeking the requisite sanction; however, no conclusive or effective response was forthcoming from the authorities. Learned counsel for the complainant further pointed out that the High Court, in the impugned order, similarly recorded that all necessary steps were taken by the complainant to secure the sanction, but despite his earnest efforts, the competent authority failed to grant the same. 24. Learned counsel for the complainant submitted that the accused persons "under the colour of official duty" removed his clothes and had abused and assaulted him. These acts neither have any bearing on official duties nor are they connected remotely to official duties. Instead, it was submitted that the accused persons exceeded the limits ....
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....lice Act reads as follows: "170. Suits or prosecutions in respect of acts done under colour of duty as aforesaid not to be entertained without sanction of Government.- (1) In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police Officer or Reserve Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the Government. (2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrongdoer one month's notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed. (3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, an....
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....y of this provision is that the alleged offence must have been committed by the public servant while acting in the discharge of, or purported discharge of, their official duties. The protective mantle of Section 197 of the CrPC, however, is not absolute; it does not extend to acts that are manifestly beyond the scope of official duty or wholly unconnected thereto. Acts bereft of any reasonable nexus to official functions fall outside the ambit of this safeguard and do not attract the bar imposed under Section 197 of the CrPC. 31. Both the aforesaid provisions serve a similar protective function. While Section 170 of the Police Act mandates prior sanction for prosecuting a public official for "acts done under colour of, or in excess of, such duty or authority," Section 197 of the CrPC requires prior sanction where a public official is accused of having committed "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The underlying rationale of both these statutory provisions is to safeguard public functionaries from frivolous or vexatious prosecution for actions undertaken in good faith in the discharge of, or ....
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.... valid reason so that the public servants can perform their duties fearlessly, without constant apprehension of legal action, as long as they act in good faith. While Section 197 of the CrPC does not explicitly mention the requirement of good faith, such a condition is implied and is expressly included in several other statutes that offer protection to public servants from civil and criminal liability. 34. While dealing with the provisions of Section 197 of the CrPC, read with Section 170 of the Police Act, this Court in D. Devaraja observed that not every offence committed by a police officer automatically gets this protection. The safeguard under Section 197 of the CrPC and Section 170 of the Police Act is limited. It applies only if the alleged act is reasonably connected to the officer's official duties. The law does not offer protection if the official role is used as a mere excuse to commit wrongful acts. However, it was held that the protection of prior sanction will be available when there is a reasonable connection between the act and their duty. While enunciating when the protection of prior sanction will be applicable, this Court held that even if a police officer exc....
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....bjectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman 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. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in e....
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..... In light of the aforesaid judgments, the guiding principle governing the necessity of prior sanction stands well crystallised. The pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the CrPC and Section 170 of the Police Act is attracted. In such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted improperly while discharging his duty. 37. Turning to the case at hand, there is little doubt that the allegations levelled against the accused persons are grave in nature. Broadly classified, the accusations against the accused persons encompass the following: (1) abuse of official authority by the accused persons in allegedly implicating the complainant in fabricated criminal cases, purportedly driven by malice or v....
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....riminal cases pending against the complainant. As previously observed, a mere excess or overreach in the performance of official duty does not, by itself, disentitle a public servant from the statutory protection mandated by law. The safeguard of obtaining prior sanction from the competent authority, as envisaged under Section 197 of the CrPC and Section 170 of the Police Act cannot be rendered nugatory merely because the acts alleged may have exceeded the strict bounds of official duty. In view of the foregoing, we are of the considered opinion that the learned VII Additional Chief Metropolitan Magistrate erred in taking cognisance of the alleged offences against the accused persons without the requisite sanction for prosecution in the instant case. The absence of the necessary sanction vitiates the very initiation of criminal proceedings against the accused persons. 41. Admittedly, the alleged incident pertains to the period of 1999-2000. Accused Nos. 1, 3, and 4 have since passed away. The proceedings now survive solely against accused Nos. 2 and 5. It is pertinent to note that both accused No. 2 and accused No. 5 retired from service long ago on attaining the age of superann....