2020 Supreme(SC) 413

SUPREME COURT OF INDIA
R. Banumathi, Indira Banerjee, JJ.
D. DEVARAJA – Appellant
VERSUS
OWAIS SABEER HUSSAIN – Respondent
Criminal Appeal No. 458 of 2020 [Arising out of SLP (CRL.) No. 1882 of 2018]
Decided on : 18-06-2020

IMPORTANT POINTS
(1) Protection given under Section 197 of Criminal Procedure Code read with Section 170 of Karnataka Police Act has its limitations.
(2) If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between act and performance of official duty, fact that act alleged is in excess of duty will not be ground enough to deprive policeman of protection of government sanction for initiation of criminal action against him.
(3) Application under Section 482 of Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 197 – Karnataka Police Act, 1963 – Section 170 – Sanction for prosecution of Police Officer – To be able to say that an act is done "under a provision of law, one must discover existence of a reasonable relationship between provisions and the act – Section 197 of 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 – Every offence committed by a police officer does not attract Section 197 of Code of Criminal Procedure read with Section 170 of Karnataka Police Act – Protection given under Section 197 of Criminal Procedure Code read with Section 170 of Karnataka Police Act has its limitations – Protection is available only when alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for objectionable act – An offence committed entirely outside scope of duty of police officer, would certainly not require sanction – If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between act and performance of official duty, fact that act alleged is in excess of duty will not be ground enough to deprive policeman of protection of government sanction for initiation of criminal action against him. (Paras 59, 64, 68, 69, 70 and 71)

(B) Criminal Procedure Code, 1973 – Section 197 – Karnataka Police Act, 1963 – Section 170 – Sanction for prosecution of Police Officer – 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 – Policeman or any other public servant unconnected with official duty there can be no question of sanction – However, if act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if policeman has exceeded scope of his powers and/or acted beyond four corners of law – If act alleged in a complaint purported to be filed against policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of appropriate government is obtained under Section 197 of Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act – It is not always necessary that need for sanction under Section 197 is to be considered as soon as complaint is lodged and on allegations contained therein – Complainant may not disclose that act constituting offence was done or purported to be done in discharge of official duty and/or under colour of duty – However, facts subsequently coming to light in course of trial or upon police or judicial enquiry may establish necessity for sanction – Whether sanction is necessary or not may have to be determined at any stage of proceedings. (Paras 72, 73, 74 and 76)

(C) Indian Penal Code, 1860 – Sections 120-B, 220, 323, 330 348, 506B read with Section 34 – Criminal Procedure Code, 1973 – Sections 197 and 482 – Karnataka Police Act, 1963 – Section 170 – Conspiracy, hurt, illegal detention and criminal intimidation – Common intention – Cognizance of offence – Accused appellant is a police officer of rank of Superintendent of Police – Application under Section 482 of Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court – If, on face of complaint, act alleged appears to have a reasonable relationship with official duty, where criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of Criminal Procedure Code would have to be exercised to quash proceedings, to prevent abuse of process of court – There is also no reason to suppose that sanction will be withheld in case of prosecution where there is substance in a complaint – In any case if, in such a case, sanction is refused, aggrieved complainant can take recourse to law – Records of instant case clearly reveal that complainant alleged of police excesses while respondent was in custody, in course of investigation in connection with crime case – Patently complaint pertains to an act under colour of duty – High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of Criminal Procedure Code to set aside order of Magistrate impugned taking cognizance of complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers Court to take Cognizance – Court ought to have exercised its power to quash complaint instead of remitting appellant to an application under Section 245 of Criminal Procedure Code to seek discharge – Judgment and order under appeal set aside and complaint quashed for want of sanction. (Paras 77, 78, 80 and 81)

Facts of the case:

Present appeal is against a judgment and order dated 31-1-2018 passed by the Karnataka High Court, disposing of the application of appellant under Section 482 of the Code of Criminal Procedure for quashing an order dated 27-12-2016 passed by the Additional Chief Metropolitan Magistrate III, Bengaluru City in PCR No.17214 of 2013, taking cognizance of a private complaint being 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 Additional Chief Metropolitan Magistrate instead, with inter alia liberty to the accused appellant to apply for discharge. Short question involved in this appeal is, whether Magistrate could, at all, have taken cognizance against appellant, in the private complaint being P.C.R No.17214 of 2013, in absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963, as amended by the Karnataka Police (Amendment) Act, 2013, and if not, whether the High Court should have quashed the impugned order of Magistrate concerned, instead of remitting the complaint to Magistrate concerned and requiring the accused appellant to appear before him and file an application for discharge.

Findings of the Court:

If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

Result : Appeal allowed.