The court establishes that the sanction under Section 197 of Cr.P.C. is not required when the offence committed by a public servant is not in the discharge of official duty.

ORDER :

This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the order of taking cognizance by the JMFC-III, Mysore in respect of Crime No.98/2015 after rejecting the 'B' final report.

2. Heard the arguments of learned counsel for the petitioner, learned SPP-I for respondent No.1-State and learned counsel for the respondent No.2.

3. The case of the prosecution is that on the first information filed by respondent No.2 through his wife one Anitha, the Nazrabad Police, Mysore registered a case in Crime No.98/2015 on 12.03.2015 for the offences punishable under Sections 323, 341, 355, 504, 506 read with Section 34 of IPC alleging that on 05.03.2015, the informant received a phone call from Poonacha, the Police Inspector of Hunsur Police station informing that he should be brought before the Superintendent of Police, Mysore District. When the first informant sought the reason, the Police Inspector told that he should comply the order of the Superintendent of Police (the present petitioner) and when he was near the Nalapak Hotel, Ontikoplu, the Police Inspector came in his Department vehicle, the complainant sat in the car, the complainant was taken to office of the Superintendent of Police and thereafter, the complainant was asked to come on Sunday i.e., on 08.03.2015 at 5.00 p.m., and when the complainant went to the S.P. office, the door was closed and a woman was sitting in front of the door. At that time, the Sub-Inspector-Poonacha and Constable-Manjunath came there and the complainant was sitting in his car and the said police officials informed about the complainant and arrival of S.P. When the complainant went inside the S.P. office, one Reeta a woman aged about 50 to 55 years was also inside the S.P. office, at that time, the S.P.-the present petitioner abused him in filthy language and told that the complainant required to pay money to Reeta and he has also compelled him to pay the money immediately. When the complainant was talking with the S.P.-the present petitioner, he took his footwear, assaulted with the same and made him to fall down, then he kicked him and also assaulted with chappal in presence of the said Reeta. When the complainant raised alarm, the police constables came inside and rescued him. Then he was sent by his car and then the complainant went to the K.R. Hospital, took the treatment as in-patient and thereafter, he filed the complaint. After receiving the complaint, the police registered the FIR against the present petitioner who is S.P. and after the investigation, the Police have filed 'B' final report. Then the notice was issued to the defacto-complainant, a protest petition was filed. Then the learned Magistrate had rejected the protest petition and on 05.04.2022, took the cognizance against the petitioner and issued summons, which is under challenge.

4. The learned counsel for the petitioner has contended that the learned Magistrate committed error in taking cognizance against the petitioner. The order is opposed to the facts and contrary to the law and the order has passed without judicial mind. The learned Magistrate by dealing with the protest petition has adopted a procedure which is contrary to the law. There is no ingredient to attract the offence against the petitioner. The protest petition cannot be construed as the complaint is filed under Section 2(d) of Cr.P.C. The protest petition filed by the advocate but not by the complainant. Therefore, the Magistrate should not have taken cognizance. The learned Magistrate permitted respondent No.2 to file an affidavit in view of sworn statement which is contrary to the law. It is further contended that the petitioner was on leave to his office on 08.03.2015, therefore, the question of committing offence on 08.03.2015 does not arise. The petitioner has produced the medical records to show that he was on sick leave which was not considered by the Magistrate and the protection under Section 197 of Cr.P.C. is availab