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2021 Supreme(Gau) 621

IN THE HIGH COURT OF GAUHATI
SANJAY KUMAR MEDHI, J.
Tulumoniduarah - Petitioner
Versus
State of Assam and Others - Respondent
Crl. Pet. No. 607 of 2016
Decided on : 26-03-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. N. Dutta and Mr. S. Borthakur
For the Respondent: Mr. Z. Kamar and Mr. H. Sarma

Headnote:

The High Court quashed the cognizance taken by the Magistrate under Section 302 of the IPC and the criminal proceedings initiated against the petitioner, a police officer, for causing the death of a person in custody, holding that the requirement of prior sanction under Section 197 of the CrPC was mandatory and had not been complied with.

Fact of the Case:

The petitioner, a police officer, was charged with causing the death of a person in custody. The Magistrate took cognizance of the case under Section 302 of the IPC without obtaining prior sanction from the appropriate authority as required under Section 197 of the CrPC. The petitioner challenged the Magistrate's order and the criminal proceedings initiated against him.

Finding of the Court:

The High Court held that the requirement of prior sanction under Section 197 of the CrPC was mandatory and had not been complied with. The Court observed that the offence alleged against the petitioner was committed while he was acting in discharge of his official duties and, therefore, the protection under Section 197 of the CrPC was available to him. The Court further held that the Magistrate had failed to consider the requirement of prior sanction before taking cognizance of the case, and that this failure rendered the impugned order and the subsequent criminal proceedings void ab initio.

Issues: 1. Whether the requirement of prior sanction under Section 197 of the CrPC was mandatory in the present case? 2. Whether the Magistrate had erred in taking cognizance of the case without obtaining prior sanction?

Ratio Decidendi: 1. The Court held that the requirement of prior sanction under Section 197 of the CrPC was mandatory in the present case because the offence alleged against the petitioner was committed while he was acting in discharge of his official duties. The Court relied on the provisions of Section 197(2) and 197(3) of the CrPC, as well as the notification issued by the State Government bringing all members of the Assam Police Force within the ambit of Section 197. 2. The Court held that the Magistrate had erred in taking cognizance of the case without obtaining prior sanction. The Court observed that the Magistrate had failed to consider the requirement of prior sanction before taking cognizance of the case, and that this failure rendered the impugned order and the subsequent criminal proceedings void ab initio.

Final Decision: The High Court quashed the cognizance taken by the Magistrate under Section 302 of the IPC and the criminal proceedings initiated against the petitioner. The Court held that the requirement of prior sanction under Section 197 of the CrPC was mandatory and had not been complied with.

JUDGMENT :

1. The Hon'ble Supreme Court in the celebrated case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, after discussing various interpretations of the relevant provisions of the Code of Criminal Procedure, 1973 (‘Cr.PC’) under Chapter-XIV and the principles of law laid down in a catena of decisions qua the exercise of the inherent powers under section 482 of the Cr.PC as well as article 226 of the Constitution of India had laid down certain categories of cases by way of illustrations with a caveat that it may not be possible to lay down any precise, clearly defined and sufficiently channellized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised. The said illustrations are extracted herein below:

    “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channellised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizabie offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

2. What is to be noted that immediately after the said paragraph, the hon'ble Supreme Court had also put a note of caution regarding sparring exercise of such powers in the following manner:

    “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR

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