IMPORTANT POINT
Complaint of police excess in connection with the investigation of a criminal case is reasonably connected with performance of official duty of the appellant police officer. Hence the Magistrate could not have take cognizance without previous sanction of State Government.

Judgment

Kurian, J.

Leave granted.

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 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 another, (2012) 12 SCC 72. 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 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,