Point of law: Question of sanction for prosecution under S.197, Cr.P.C can be raised and considered at any stage of the proceedings.

ORDER :

1. This petition has been filed under Section 482 of the Criminal Procedural Code (for short ‘the Cr.P.C’ hereinafter). The prayer in this petition is to quash Annexure-A1 complaint and further proceedings thereafter, now pending as C.C. No. 1584/2015, before the Judicial First Class Magistrate Court, Kalady.

2. Heard the learned counsel for the petitioner, learned counsel appearing for the defacto complainant and the learned Public Prosecutor in detail.

3. Background facts:

The complainant lodged complaint alleging commission of offences punishable under Sections 341, 447, 452, 294(b), 506(ii) and 509 r/w 34 of Indian Penal Code, by accused Nos.1 and 2. The precise allegation led to filing of the complaint runs on the premise that at about 12.15 a.m, on 10.02.2015, the 1st accused, who is the Sub Inspector of Police, Kalady, along with another policemen (A2) of Kalady Police Station, reached the residence of the complainant and broke open the house, trespassed upon the house and searched about Mr. Shyjo, who is the son of the complainant. Further allegation is that, accused Nos. 1 and 2 searched Mr. Shyjo by using a torch light and pulled down the bed. The learned Magistrate took cognizance for the said offences, following enquiry under Section 202 of the Cr.Pc and now the matter has been pending as C.C.No. 1584/2015.

4. The petitioner who is arrayed as the 1st accused in this Crime seeks to quash the complaint and further proceedings thereafter and it is submitted by the learned counsel for the petitioner that the 1st petitioner/accused is a public servant and the allegation in the complaint is one arose out of his official duty. Therefore, in order to prosecute the 1st accused, sanction provided under Section 197 (1) Cr.P.C should have been obtained and the prosecution now pending without due sanction under Section 197 (1) of the Cr.P.C is bad in law. Further it is pointed out that there is nothing in this matter to take cognizance for the above said offences. Hence, the learned counsel sought quashment of proceedings as prayed for.

5. The counsel for the petitioner placed the latest decision of apex Court in A. Srinivasulu Vs. The State Rep. By the Inspector of Police (2023 LiveLaw (SC) 485) to canvass the contention that if the act alleged to be done in discharge of the official duty of a public servant, sanction and parameters laid in Section 197(1) of the Cr.PC are mandatory.

6. While opposing the contentions raised by the learned counsel for the petitioner, by reading the allegations in the present case in segregation from the official duty of the petitioner, the learned counsel for the first respondent submitted that, when public servant exceeds his official duty and do something, then, the sanction provided under Section 197(1) of the Cr.PC, is not either mandatory or necessary. Therefore, for want of sanction, the present complaint is not liable to be quashed. In support of his argument, the learned counsel for the 1st respondent placed three Bench decision of the Apex Court reported in Amod Kumar Kanth Vs. Association of Victims of Uphaar Tragedy & anr ( 2023 ICO 892), wherein it was held as under;

“When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts