REPORT BY- RIDDHIMA BHADAURIA 

The supreme court in June has asserted that a criminal protest against a police officer or a public servant cannot be engaged without previous sanction or assent from the government as is said under section 197 of the code of criminal procedure. The bench comprising Justice R Banumathi and Indira Banerjee held that the law on the question is settled and has been set down. The judgement takes note of that if a challenge is mounted under section 482 of Crpc to a decision of the trial court to engage an objection against a public servant without authorization, the high court should practice its jurisdiction to suppress such a grievance.

Appellant’s contention

1.  The appealing party in this case was a deputy commissioner against whom the respondent has filed a complaint of sick treatment and police excesses during custody.
2. 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 various cases under IPC.
3. 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. 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.
4. The father of respondent filed a petition of habeas corpus and allegations made by the respondent and/or his father, of ill-treatment of the respondent, by the Police. The respondent was taken to hospital for check-up and treatment. The doctors gave a detailed report ruling out any abnormalities and injuries on the respondent.The Karnataka High Court later dismissed the Habeas Corpus Petition being filed by the respondent’s father, observing that eight criminal cases were pending against the respondent and that he had been produced before the jurisdictional Magistrate in accordance with law.
5. 3rd Additional Chief Metropolitan Magistrate, Bengaluru, was pleased to take cognizance against the appellant even though no previous sanction had been obtained from the Government. The accused appellant filed Criminal Petition under Section 482 of the Code of Criminal Procedure in the Karnataka High Court at Bengaluru inter alia for quashing the order.
6. Mr. Saajan Poovayya the learned counsel of appeallent submitted that the private complaint as also the Magistrate taking cognizance of the private complaint, ought to have been quashed by the High Court, in the absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963.
7. Mr. Poovayya argued that even otherwise there was no case against the accused appellant. Even assuming that there was any ill treatment meted out to the appellant, while he was in police custody, there was no specific allegation against the accused appellant, who was not the Investigating Officer, but the Deputy Commissioner of Police.
8. Mr. Poovayya also argued that the respondent was arrested and produced before the Magistrate on which date he was remanded to police custody with the finding that there was no ill-treatment by the police. Even after the respondent’s father filed the Habeas Corpus Petition in the High court and there was no record of ill treatment by the police.
9. He also contended that allegation of police excesses in the course of investigation, and police custody of the respondent, has a reasonable nexus with the duty of the appellant as a police officer. Even if the act was in dereliction of duty or in excess of duty, it was nevertheless 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 an offence. The excesses alleged were in the course of discharge of such official duty of investigating into an offence and 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 even any act done under the exercise of duty.
10. Hence, the criminal complaint against the accused appellant should, therefore, have been quashed under Section 482 of the Criminal Procedure Code for want of sanction under Section 197 of the Code of Criminal Procedure 1973, read with Section 170 of the Karnataka Police Act, 1963.
11. Mr. Poovayya argued that the accused appellant had been arrayed as accused vindictively, out of vengeance, since the accused appellant had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the Habeas Corpus Petition filed by the respondent’s father in the Karnataka High Court. The said affidavit led to the dismissal of the Habeas Corpus Petition. Case referred to(State of Haryana and Others v. Bhajan Lal and Others)

Case  laws cited by appellant’s counsel

• D.T.Virupakshappa v. C. Subash
• Virupaxappa Veerappa Kadambur v. State of Mysore,
• Sankaran Moitra v. Sadhna Das and Another
•  K.K. Patel and Another v. State of Gujarat and Another
•  State of Orissa v. Ganesh Chandra Jew

Respondent’s contention

1. Mr. Sidharth Luthra, Senior Advocate appearing on behalf of the respondent argued that, whether sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which, in this case, was of physical torture and illtreatment of the respondent. Ill-treatment and torture could never be in exercise of official duty, or even under the colour of official duty.

2. Mr. Luthra further argued that, in any case, whether sanction was necessary or not, would have to be determined in course of the trial. A complaint should not be denied in the earlier stage on the ground of want of sanction.

3. He also submitted that, an order of a Magistrate, taking cognizance of a complaint was not amenable to challenge under Section 482 of the Code of Criminal Procedure. The High Court rightly remanded the complaint to the Trial Court.

4. Mr. Luthra concluded with the argument that the accused appellant can have no grievance against the judgment and order under appeal, since the High Court has given the accused appellant the liberty to apply for discharge under Section 245 of the Code of Criminal Procedure and has directed the Trial Court to decide such

application, if made, before recording evidence on the merit of the

allegations made against him.

Cases cited by respondent’s counsel

• Devinder Singh & Ors. v. State of Punjab
• State of Maharashtra v. Atma Ram
•  Bhanuprasad Hariprasad Dave v. State of Gujarat
•  State of Andhra Pradesh v. N. Venugopal and Others
•  Satyavir Singh Rathi, Assistant Commissioner of Police

            & Ors. v. State

•  Bakhshish Singh Brar v. Gurmej Kaur & Anr.
•  Om Prakash & Ors. v. State of Jharkhand & Anr.

Judgement

The Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court however left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure Code.The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.

The appeal is allowed. The judgment and order under appeal is set aside and the complaint is quashed. The supreme court recently reiterated that a criminal complaint against a police officer or a public servant cannot be entertained without prior sanction from the government, as is mandated under Section 197 of the Code of Criminal Procedure (CrPC).

Other cases referred from-

1.B. Saha v. M.S. Kochar

2.Rizwan Ahmed Javed Shaikh and others v. Jammal

   Patel and Others

3.Pukhraj v. State of Rajasthan

4.Om Prakash and others v. State of Jharkhand and

   Anr.

5.Bakhshish Singh Brar v. Gurmej Kaur

6.State of Maharashtra v. Atma Ram

7.Bhanuprasad Hariprasad Dave v. State of Gujarat

8.State of Andhra Pradesh v. N. Venugopal

9.Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr.

CBI

10. Devinder Singh & Ors. v. State of Punjab through CBI