2025 INSC 439
SUPREME COURT OF INDIA
(HON’BLE
B.V. NAGARATHNA, J. AND HON’BLE SATISH CHANDRA SHARMA, JJ.)
G.C. MANJUNATH
& OTHERS
Appellant
VERSUS
SEETARAM
Respondent
Criminal Appeal No. 1759 OF 2025 (Arising
out of Special Leave Petition (Criminal) No.6053 of 2021)-Decided on 03-04-2025
Criminal,
Quashing
Criminal Procedure
Code, 1973, Section 197, 482 - Penal Code, 1860, Sections 326, 358, 500, 501,
502, 506 (b) read with Section 34 – Karnataka Police Act, 1963, Section 170 – Quashing
of Summoning - Sanction for prosecution - Whether, the
learned VII Additional Chief Metropolitan Magistrate was legally justified in
taking cognisance of the offences alleged against the accused persons in P.C.R.
No.6754/2007, in the absence of the prior sanction contemplated under Section
197 of the CrPC read with Section 170 of the Police Act - 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
vendetta; (2) physical assault and ill-treatment of the complainant by the
accused persons, constituting acts of alleged police excess; (3) wrongful
confinement of the complainant; and (4) criminal intimidation of the
complainant - Held that the said
acts squarely fall within the ambit of
"acts done under colour of, or in excess of, such duty or authority,"
and "acting or purporting to act in the discharge of his official
duty," as envisaged under Section 170 of the Police Act and Section 197 of
the CrPC respectively - 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 - The
absence of the necessary sanction vitiates the very initiation of criminal
proceedings against the accused persons - Impugned order passed by the High
Court preferred under Section 482 of the CrPC liable to be set aside -
Summoning order passed by the learned VII Additional Chief Metropolitan
Magistrate against accused Nos.2 and 5, as well as the order passed by the
learned LXI City Civil and Sessions Judge, in affirming the same liable to be
quashed.
(Para
37 to 42)
JUDGMENT
Nagarathna, J. :-
Leave granted.
2. Being aggrieved by the order
passed by the High Court of Karnataka dated 17.03.2021 in Criminal Petition
No.4512 of 2020 in refusing to quash the order dated 11.06.2020 passed by the
learned LXI City Civil and Sessions Judge, Bengaluru City affirming the
summoning order dated 07.05.2016 passed by the learned VII Additional Chief
Metropolitan 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 torture him throughout
the night.
5. On 11.04.1999, accused Nos.2,
3, and 5 allegedly procured a slate, forced the complainant to hold it with his
name written on it, and accused No. 6 took his photograph at that time.
Subsequently, the complainant was produced before the Magistrate after registering
false cases in Crime Nos. 137 and 138 of 1999. The complainant showed his
injuries to the learned Magistrate, who referred him to a hospital. He was
later released and eventually acquitted in the above cases.
6. It was further averred that on
27.10.1999, at about 9:45 p.m., accused Nos.3 to 5 stopped the complainant
while he was riding his scooter. They slapped him, engaged an autorickshaw, and
took him to the Mahalakshmi Layout Police Station. Accused No.1 was present at
the station and abused the complainant in filthy language, demanding that he
should withdraw the case filed by him. It was further alleged that accused No.1
then instructed accused No.3 to take possession of the complainant's
belongings. Accused No.3 removed his gold chain, wristwatch, purse, spectacles,
and Rs.26,000/- in cash, wrapped them in a handkerchief,
and handed over the same to accused No.1. Thereafter, they stripped the
complainant of his clothes and assaulted him throughout the night using a lathi
and an iron rod causing dislodgement of his tooth leading to profuse bleeding.
7. The complainant further stated
that the accused persons continued to torture the complainant and later
produced him before the Magistrate, registering a false case under Crime No.448
of 1999 for the offences under Section 392 of the IPC. The complainant reported
the ill-treatment to the learned Magistrate, who directed the jail authorities
to provide him with medical treatment. He was released from custody and sought
treatment at Victoria Hospital on 04.11.1999.
8. Subsequently, accused No.6,
with the intent to defame and ruin the complainant's life, published the illegally
taken photographs along with defamatory slogans in the Bruna Weekly Magazine on
25.01.2001, 10.09.2001, and 15.09.2001. Accused No.6 also filed a case against
the complainant in Crime No. 146 of 2005. The complainant alleged that accused
Nos.1 to 6 have continuously threatened him, causing him mental agony, and have
even threatened to kill him if he does not withdraw the complaints filed
against them.
9. Therefore, 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
offences under Sections 326, 358, 500, 501, 502, 506 (b) read with Section 34
of the IPC and accordingly ordered to register a criminal case against accused
Nos.1 to 5 as well as issued summons against accused Nos.1 to 5. However, in
the said order, the learned VII Additional Chief Metropolitan Magistrate, found
that the materials on record are insufficient to take cognisance of the offence
punishable under Sections 196, 199, 200, 201, 211, 34, 338, 357, 367, 368, 395
and 397 of the IPC. Insofar as the aspect of delay in filling the private
complaint is concerned, the learned VII Additional Chief Metropolitan
Magistrate observed that sufficient material was produced to prove that the
complainant was pursuing this case by way of writing letters/complaints to the
Higher Officials. Further, the charges against accused No.6 were dropped.
12. Being aggrieved by the order
dated 07.05.2016 passed by the learned VII Additional Chief Metropolitan Magistrate, accused Nos.1 to 3 and 5 approached the Court of
LXI City Civil and Sessions Judge, Bengaluru City by way of filing Criminal
Revision Petition No.720 of 2017. By order dated 11.06.2020, the learned LXI
City Civil and Sessions Judge, Bengaluru City dismissed the Criminal Revision
Petition No.720 of 2017 filed by the accused Nos.1 to 3 and 5.
13. Being aggrieved, the accused
Nos.1 to 3 and 5 approached the High Court by way of filing Criminal Petition
No.4512 of 2020 praying to set aside the order dated 07.05.2016 passed by the
learned VII Additional Chief Metropolitan Magistrate, Bengaluru in taking
cognisance of offences punishable under Sections 326, 358, 500, 501, 502 and
506(b) read with Section 34 of the IPC against them and in registering the case
in C.C. No.368 of 2010 and issuing summons against them as well as the order
dated 11.06.2020 passed by the learned LXI City Civil and Sessions Judge,
Bengaluru City predominantly on the ground that a prior order of sanction under
Section 197 of the Code of Criminal Procedure, 1973 (for short
"CrPC") and Section 170 of the Karnataka Police Act, 1963 (for short
"Police Act") was not obtained from the Government before prosecuting
the accused persons.
14. During the pendency of the
Criminal Petition No.4512 of 2020 before the High Court, accused No.1 passed
away. By impugned order dated 17.03.2021, the High Court dismissed the Criminal
Petition No.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 Hussain, (2020) 7 SCC
695 ("D. Devaraja") relied upon by the accused persons cannot come to
their rescue. The High Court observed that the Supreme Court in the said
judgment has categorically held that the protection given under Section 197 of
the CrPC and Section 170 of the Police Act has its own limitation and that the
said protection would be available only for the acts done by the public servant
in discharge of his official duty or if it is reasonably connected with the
discharge of his official duties and not in instances such as the present case.
Being aggrieved, accused Nos.2, 3, and 5 have preferred the present appeal
before this Court.
15. During the pendency of the
present proceedings, the learned senior counsel appearing for the accused
persons submitted that accused Nos.1, 3, and 4 have passed away, resulting in
abatement of the criminal proceedings against them. Consequently, the present
appeal survives only insofar as accused Nos.2 and 5 are concerned. It was
further submitted that accused Nos.2 and 5 have attained superannuation from
their posts in the years 2015 and 2020, respectively.
16. We have heard the learned senior
counsel for the appellants/accused No.2 and 5 and the learned counsel for the
respondent/ complainant. We have perused the material on record.
17. Learned senior counsel appearing
for the appellants/ accused persons submitted that there has been an inordinate
and unexplained delay in filing the present complaint. In this regard, it was
contended that the complaint was lodged only on 21.04.2007, pertaining to an
alleged incident that is stated to have occurred during the period 1999-2000,
while the accused were in active police service. Learned senior counsel further
argued that several criminal cases had been registered against the complainant,
in which he was ultimately acquitted in the year 2006. It was pointed out that
immediately following his acquittal, the present
complaint came to be filed in 2007. In this backdrop, it was submitted that the
present complaint is nothing but a retaliatory measure, filed vindictively against
the accused persons solely for having discharged their official duties as
police officials.
18. Learned senior counsel
further contended that, admittedly, the complaint was filed without obtaining
the requisite prior sanction as mandated under Section 197 of the CrPC and
Section 170 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 of duty" encompasses acts done by police officers ostensibly in the
discharge of their official functions, even if they exceeded the authority
vested in them under the Act.
20. Learned senior counsel
further contended that the High Court misinterpreted the ratio laid down by
this Court in D. Devaraja. In this regard, it was submitted that in the said judgment,
this Court unequivocally held that even if a police officer acts in excess of
the scope of his official duties, so long as there exists a reasonable nexus
between the act complained of and the discharge of his official functions, the
mere fact of exceeding authority would not, by itself, disentitle the officer
from the statutory safeguard of obtaining prior government sanction before
initiation of criminal proceedings. In view of the foregoing submissions, the
learned senior counsel submitted that the impugned order passed by the High
Court is liable to be set aside.
21. Per contra, learned counsel appearing
for the respondent/ complainant vehemently contended that, at the time of the
complainant's arrest in connection with certain criminal cases, he was
subjected to physical assault at the hands of the accused persons. It was
further submitted that this fact was duly brought to the attention of the
learned Magistrate, who, on each occasion, issued directions to both the Jailor
and the Investigating Officer to ensure that the complainant was provided with necessary
medical treatment for the injuries allegedly sustained during the said assault.
22. Learned counsel further
submitted that he has placed relevant documents on record before this Court, including
the wound certificate, which clearly reflects that the complainant sustained
grievous injuries, including broken teeth. Additionally, it was pointed out
that the X-ray report corroborates the medical findings, indicating the presence
of a healing socket and confirming that Injury No. 2 is grievous
in nature. In light of these materials, learned counsel for the complainant
argued that a prima facie case was clearly made out against the accused persons.
Consequently, learned VII Additional Chief Metropolitan Magistrate, Bengaluru
took cognisance of the offences against them by order dated 07.05.2016, which
was subsequently affirmed by the learned LXI City Civil and Sessions Judge,
Bengaluru City, by order dated 11.06.2020, and further upheld by 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 allowed by the law. The act of raid and seizure is part of
official duties but the further acts of the accused persons cannot fall within
the scope of official duty. It was argued that even the High Court noted that
the brutal conduct of the accused persons, which included not only breaking the
complainant's teeth but also causing grievous injuries, clearly demonstrates
that they far exceeded the bounds of their official duties. Accordingly, learned
counsel for the complainant submitted that the High Court was justified in
holding that criminal proceedings could have been initiated without prior
sanction.
25. It was argued that this Court
in Bakhshish Singh Brar vs. Gurmej Kaur, (1987) 4 SCC 663 ("Bakhshish
Singh") dealt with the issue of sanction under Sections 197 and 196 of the
CrPC. It was submitted that the said case involved a police officer accused of
causing grievous injuries and death during the course of a raid and search. It
was submitted that in the said judgment, this Court noted that, in order to
determine whether the officer, while ostensibly acting in the discharge of his
official duties, had exceeded the limits of his official capacity, the court
must first take cognisance of the offence. Accordingly, this Court observed
that, in such circumstances, the trial need not be stayed merely due to the
absence of sanction for prosecution at the initial stage. Hence, learned
counsel for the complainant submitted that the High Court was justified in
holding that a prior sanction was not necessary in this case thereby dismissing
the criminal petition filed by the accused persons.
26. Upon hearing the learned
counsel for the rival parties and after a thorough examination of the material
available on record, the core issue that emerges for determination is, whether,
the learned VII Additional Chief Metropolitan Magistrate was legally justified
in taking cognisance of the offences alleged against the accused persons in
P.C.R. No.6754/2007, in the absence of the prior sanction contemplated under
Section 197 of the CrPC read with Section 170 of the Police Act. The real
question, therefore, is whether the acts complained of are reasonably connected
to, or performed, in the purported discharge of the official duties of the
accused persons, so as to attract the statutory protection afforded by the said
provisions.
27. Section 170 of the Karnataka
Police 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, and shall state whether any, and if so,
what tender of amends has been made by the defendant. A copy of the said notice
shall be annexed to the plaint endorsed or accompanied with a declaration by
the plaintiff of the time and manner of service thereof."
28. Section 197 of the CrPC 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
cognisance 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:"
29. A plain reading of Section
170 of the Police Act reveals that the legislature, in its wisdom, has sought
to afford a statutory safeguard to certain public functionaries, including
Commissioners, Magistrates, Police Officers, and Reserve Police Officers. The
provision is categorical in its stipulation that where any offence is alleged
to have been committed, or any wrong alleged to have been occasioned, by such officials
in the discharge of their duties or in the exercise of their lawful authority,
no court shall entertain any prosecution or suit against them without the prior
sanction of the Government. Importantly, the protective umbrella of Section 170
is not confined solely to acts strictly within the bounds of authority but
extends to acts done ostensibly in excess of such authority, so long as there exists a reasonable nexus between the act complained of and
the discharge of official functions.
30. A careful reading of Section
197 of the CrPC unequivocally delineates a statutory bar on the Court's
jurisdiction to take cognisance of offences alleged against public servants,
save without the prior sanction of the appropriate government. The essential
precondition for the applicability 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 purported discharge of, their official
duties, thereby ensuring that the fear of litigation does not impede the
efficient functioning of public administration.
32. This Court in B. Saha vs.
M.S. Kochar, (1979) 4 SCC 177 ("B. Saha") observed that the words
"any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty" employed in
Section 197 of the CrPC, are capable of a narrow as well as a wide
interpretation. This Court observed that if these words are construed too
narrowly, the section will be rendered altogether sterile, for, "it is no
part of an official duty to commit an offence, and never can be". In the
wider sense, these words will take under their umbrella every act constituting
an offence, committed in the course of the same transaction in which the
official duty is performed or purports to be performed. The right approach to
the import of these words lies between these two extremes. While on the one
hand, it is not every offence committed by a public servant while engaged in
the performance of his official duty, that is entitled to the
protection of Section 197 of the CrPC, an act constituting an offence,
directly and reasonably connected with his official duty will require sanction
for prosecution under the said provision. As pointed out by Ramaswami, J. in
Baijnath vs. State of Madhya Pradesh, (AIR 1966 SC 220), "it is the
quality of the act that is important and if it falls within the scope and range
of his official duties, the protection contemplated under Section 197 CrPC will
be attracted".
33. This Court in Amod Kumar
Kanth vs. Association of Victim of Uphaar Tragedy, (2023) 16 SCC 239 held that
the State performs its obligations through its officers/public servants and
every function performed by a public servant is ultimately aimed at achieving
public welfare. Often, their roles involve a degree of discretion. But the
exercise of such discretion cannot be separated from the circumstances and
timing in which it is exercised or, in cases of omission, when the omission
occurs. In such circumstances, the courts must address, whether the officer was
acting in the discharge of official duties. It was observed that even when an
officer acts under the purported exercise of official powers, they are entitled
to protection under Section 197 of the CrPC. This protection exists for a 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 exceeds his
official powers, as long as there is a reasonable connection between the act
and his duty, they are still entitled to the protection requiring prior
sanction. Excessiveness alone does not strip them of this safeguard. The language
of both Section 197 of the CrPC and Section 170 of the Police Act is clear that
sanction is required not only for acts done in the discharge of official duty
as well as for the acts purported to be done in the discharge of official duty
and/or acts done "under colour of or in excess of such duty or
authority". Sanction becomes mandatory if there is a reasonable connection
between the act and the officer's official duties, even if the officer acted
improperly or exceeded his authority. Therefore, if a complaint against a
police officer involves actions reasonably related to his official role, the Court
cannot take cognisance unless sanction from the appropriate Government has been
obtained under Section 197 of the CrPC and Section 170 of the Police Act. The
relevant portion from the abovementioned judgment is as follows:
"66.
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.
67.
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 Criminal Procedure Code 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. 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 excess of such duty or authority.
70. 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 the law.
35. Recently, this Court in
Gurmeet Kaur vs. Devender Gupta, 2024 SCC OnLine SC 3761 dealt with the object
and purpose of Section 197 of the CrPC which reads as follows:
"22.
... the object and purpose of the said provision is to protect officers and
officials of the State from unjustified criminal prosecution while they
discharge their duties within the scope and ambit of their powers entrusted to
them. A reading of Section 197 of the CrPC would indicate that there is a bar
for a Court to take cognisance of such offences which are mentioned in the said
provision except with the previous sanction of the appropriate government when
the allegations are made against, inter alia, a public servant. There is no
doubt that in the instant case the appellant herein was a public servant but
the question is, whether, while discharging her duty as a public servant on the
relevant date, there was any excess in the discharge of the said duty which did
not require the first respondent herein to take a prior sanction for
prosecuting the appellant herein. In this regard, the salient words which are
relevant under subsection (1) of Section 197 are "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 cognisance of such
offence except with the previous sanction". Therefore, for the purpose of
application of Section 197, a sine qua non is that the public servant is
accused of any offence which had been committed by him in "discharge of
his official duty". The said expression would clearly indicate that
Section 197 of the CrPC would not apply to a case if a public servant is
accused of any offence which is de hors or not connected to the discharge of
his or her official duty."
36. 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 vendetta; (2) physical assault and ill-treatment
of the complainant by the accused persons, constituting acts of alleged police
excess; (3) wrongful confinement of the complainant; and (4) criminal
intimidation of the complainant.
38. In the circumstances at hand,
we are of the considered opinion that the allegations levelled against the
accused persons, though grave, squarely fall within the ambit of "acts
done under colour of, or in excess of, such duty or authority," and
"acting or purporting to act in the discharge of his official duty,"
as envisaged under Section 170 of the Police Act and Section 197 of the CrPC
respectively. This Court, while adjudicating on instances of alleged police
excess, has consistently held in Virupaxappa and D. Devaraja, that where a
police officer, in the course of performing official duties, exceeds the bounds
of such duty, the protective shield under the relevant statutory provisions
continues to apply, provided there exists a reasonable nexus between the
impugned act and the discharge of official functions. It has been categorically
held that transgression or overstepping of authority does not, by itself,
suffice to displace the statutory safeguard of requiring prior government
sanction before prosecuting the public servant concerned.
39. In the present case, it is an
admitted position that the complainant was declared a rowdy sheeter by the
Deputy Commissioner of Police, Law and Order (West), Bengaluru City, pursuant
to a request made by the Mahalakshmi Layout Police Station, Bengaluru, upon due
consideration of the criminal cases registered against the complainant, vide
order dated 23.08.1990. Subsequently, multiple criminal cases have been instituted
against the complainant. It is in the course of the investigation of these
cases that the instant allegations have been levelled against the accused
persons. As noted above, any action undertaken by a public officer, even if in
excess of the authority vested in them or overstepping the confines of their
official duty, would nonetheless attract statutory protection, provided there
exists a reasonable nexus between the act complained of and the officer's
official functions.
40. In the present case, it is
evident that the actions attributed to the accused persons emanate from the
discharge of their official duties, specifically in connection with the
investigation of criminal 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 superannuation; accused No.2
superannuated in the year 2015 and is presently 71 years of age, while accused
No.5 retired in the year 2020 and is now 64 years old. In these circumstances,
we are of the considered view that no meaningful purpose would be served by
prolonging the criminal prosecution against them. Accordingly, we are satisfied
that the ends of justice would be adequately met in the instant case by
quashing the proceedings against accused Nos.2 and 5.
42. In view of the foregoing
discussion, we are of the considered opinion that the appeal deserves to
succeed. Accordingly, the appeal is allowed. The impugned order dated 17.03.2021
passed by the High Court in Criminal Petition No.4512 of 2020, preferred under
Section 482 of the CrPC is hereby set aside. Consequently, Criminal Petition
No.4512 of 2020 stands allowed. As a result, the summoning order dated
07.05.2016 passed by the learned VII Additional Chief Metropolitan Magistrate,
Bengaluru against accused Nos.2 and 5, as well as the order dated 11.06.2020
passed by the learned LXI City Civil and Sessions Judge, Bengaluru City in
affirming the same are hereby quashed.
The appeal is allowed in the
aforesaid terms.
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