D. DEVARAJA versus OWAIS SABEER HUSSAIN

[2020] 6 S.C.R. 453

D. DEVARAJA

OWAIS SABEER HUSSAIN

(Criminal Appeal No. 458 of 2020)

JUNE 18, 2020

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973:

s.197 r/w s.170 of Karnataka Police Act, 1963 – Scope andeffect of – Held: Every offence committed by police officer doesnot attract s.197 r/w s.170 – The provisions in ss.197 Cr.P.C ands.170 of the Act are attracted only when the acts (offence) are donein discharge of official duty or the act done under the colour of, orin excess of such duty or authority.

s.482 – Scope of – Held: An application u/s.482 ismaintainable to quash proceedings which are ex facie bad for wantof sanction u/s.197 Cr.P.C. or s.170 of Karnataka Police Act or arefrivolous or in abuse of process of law.

s.482 and s.197 r/w s.170 of Karnataka Police Act – Complaintagainst police officer alleging police excesses while the complainantwas in police custody in the course of investigation in case –Application u/s.482 by police officer seeking quashing of theproceedings – High Court remitted the complaint requiring theaccused to file an application for discharge u/s.245 Cr.P.C. – Appealto Supreme Court – Held: The complaint pertains to an act undercolour of duty – Sanction was legal requirement– High Courtshould have exercised its power to quash the complaint instead ofremitting it requiring the appellant to seek discharge.

Allowing the appeal, the Court

HELD: 1.1. The object of sanction for prosecution, whetherunder Section 197 Cr. P.C. or under Section 170 of the KarnatakaPolice Act, is to protect public servant/police officer dischargingofficial duties and functions from harassment by initiation offrivolous retaliatory criminal proceedings. [Para 32][466-F-G;467-A]

A1.2 Sanction of the Government, to prosecute policeofficer, for any act related to the discharge of an official duty, isimperative to protect the police officer from facing harassive,retaliatory, revengeful and frivolous proceedings. Therequirement of sanction from the Government, to prosecute wouldBgive an upright police officer the confidence to discharge hisofficial duties efficiently, without fear of vindictive retaliation byinitiation of criminal action, from which he would be protectedunder Section 197 Cr.P.C. read with Section 170 of the Act. Atthe same time, if the policeman has committed wrong, whichconstitutes criminal offence and renders him liable forCprosecution, he can be prosecuted with sanction from theappropriate Government. [Para 68][482-F-H]

1.3 Every offence committed by police officer does notattract Section 197 Cr. P.C. read with Section 170 of the Act. Theprotection given under Section 197 Cr.P.C. read with Section 170Dof the Act has its limitations. The protection is available onlywhen the alleged act done by the public servant is reasonablyconnected with the discharge of his official duty and official dutyis not merely cloak for the objectionable act. [Para 69][483-A-B]E

1.4 An offence committed entirely outside the scope of theduty of the police officer, would certainly not require sanction. Tocite an example, police man assaulting domestic help orindulging in domestic violence would certainly not be entitled toprotection. However if an act is connected to the discharge ofFofficial duty of investigation of recorded criminal case, the actis certainly under colour of duty, no matter how illegal the actmay be. If in doing an official duty policeman has acted in excessof duty, but there is reasonable connection between the act andthe performance of the official duty, the fact that the act alleged isGin excess of duty will not be ground enough to deprive thepoliceman of the protection of government sanction for initiationof criminal action against him. [Para 70, 71][483-C-D]

1.5 The language and tenor of Section 197 Cr. P.C. andSection 170 of the Act makes it absolutely clear that sanction isrequired not only for acts done in discharge of official duty, it isH

also required for an act purported to be done in discharge ofofficial duty and/or act done under colour of or in excess of suchduty or authority. [Para 72][483-E-F]

1.6 To decide whether sanction is necessary, the test iswhether the act is totally unconnected with official duty or whetherthere is reasonable connection with the official duty. In the caseof an act of policeman or any other public servant unconnectedwith the official duty there can be no question of sanction.However, if the act alleged against policeman is reasonablyconnected with discharge of his official duty, it does not matter ifthe policeman has exceeded the scope of his powers and/or actedbeyond the four corners of law. [Para 73][483-F-G]

1.7 If the act alleged in complaint purported to be filedagainst the policeman is reasonably connected to discharge ofsome official duty, cognizance thereof cannot be taken unlessrequisite sanction of the appropriate government is obtainedunder Section 197 Cr.P.C. and/or Section 170 of the Act. Whethersanction is necessary or not may have to be determined at anystage of the proceedings. [Paras 74 & 76][483-H; 484-A, D]

Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 : [1955]2 SCR 925 – followed.

Pukhraj v. State of Rajasthan and Another (1973) 2SCC 701 : [1974] 1 SCR 559; Amrik Singh v. State ofPepsu AIR 1955 SC 309 : [1955] 1 SCR 1302; State ofOrissa v. Ganesh Chandra Jew (2004) 8 SCC 40 :[2004] 3 SCR 504; Shreekantiah Ramayya Munipalliv. State of Bombay AIR 1955 SC 287 : [1955] 1 SCR1177; P. Arulswami v. State of Madras AIR 1967 SC776 : [1967] 1 SCR 201; B. Saha and Others v. M.S.Kochar (1979) 4 SCC 177 : [1980] 1 SCR 111;Virupaxappa Veerappa Kadampur v. State of MysoreAIR 1963 SC 849 : [1963] Suppl. SCR 6; Om Prakash& Ors. v. State of Jharkhand & Anr. (2012) 12 SCC72 : [2012] 9 SCR 125; Sankaran Moitra v. SadhnaDas and Another (2006) 4 SCC 584 : [2006] 3 SCR

A305; K.K. Patel and Another v. State of Gujarat andAnother (2000) 6 SCC 195 : [2000] 1 Suppl. SCR 312;D.T. Virupakshappa v. C. Subash (2015) 12 SCC 231 :[2015] 5 SCR 534; Rizwan Ahmed Javed Shaikh andothers v. Jammal Patel and Others (2001) 5 SCC 7 :[2001] 3 SCR 766 – relied on.B

Devinder Singh & Ors. v. State of Punjab through CBI(2016) 12 SCC 87 : [2016] 6 SCR 295; Satyavir SinghRathi, Assistant Commissioner of Police & Ors. v. StateThr. CBI (2011) 6 SCC 1 : [2011] 6 SCR 138; State ofAndhra Pradesh v. N. Venugopal and Others AIR 1964C–SC 33 : [1964] 3 SCR 742 distinguished.

Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43; H.H.B.Gill v. Emperor AIR 1947 FC 9; H.H.B. Gill v. R AIR1948 PC 128; Bhanuprasad Hariprasad Dave v. Stateof Gujarat AIR 1968 SC 1323 : [1969] 1 SCR 22;DState of Maharashtra v. Atma Ram AIR 1966 SC 1786;Bakhshish Singh Brar v. Gurmej Kaur & Anr. (1987) 4SCC 663 : [1988] 1 SCR 450; Om Prakash & Ors. v.State of Jharkhand & Anr. (2012) 12 SCC 72 : [2012]9 SCR 125 – referred to.E

2.1 An application under Section 482 Cr.P.C. is maintainableto quash proceedings which are ex facie bad for want of sanction,frivolous or in abuse of process of court. If, on the face of thecomplaint, the act alleged appears to have reasonablerelationship with official duty, where the criminal proceeding is

Fapparently prompted by mala fides and instituted with ulteriormotive, power under Section 482 Cr.P.C. would have to beexercised to quash the proceedings, to prevent abuse of processof court. [Para 77][484-E-F]

2.2 The records of the instant case clearly reveal that theGcomplainant alleged of police excesses while the respondent wasin custody, in the course of investigation in connection with CrimeNo.12/2012. Patently the complaint pertains to an act under colourof duty. [Para 78][485-H]

2.3 The High Court clearly erred in law in refusing toHexercise its jurisdiction under Section 482 of the Criminal

Procedure Code to set aside the order of the Magistrateimpugned taking cognizance of the complaint, after having heldthat it was recognized principle of law that sanction was legalrequirement which empowers the Court to take Cognizance. TheCourt ought to have exercised its power to quash the complaintinstead of remitting the appellant to an application under Section245 Cr.P.C. to seek discharge. [Para 80][485-C-D]

State of Haryana and Ors. v. Bhajan Lal and others(1992) Suppl. 1 SCC 335 : State of Orissa v. GaneshChandra Jew (2004) 8 SCC 40 : [2004] 3 SCR 504 –referred to.

A[2012] 9 SCR 125referred toPara 63[2001] 3 SCR 766relied onPara 65

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.458 of 2020.

BFrom the Judgment and Order dated 31.01.2018 of the High Courtof Karnataka at Bengaluru in CRLP No. 319 of 2017.

Sajjan Poovayya, Sidharth Luthra, Sr. Advs., Pratibhanu Singh,Balaji Srinivasan, Ms. Pallavi Sengupta, Ms. Garima Jain, Ms. LakshmiRao, Hussain Mueen Farooq, Smt. B. Sudha, Sahil Bhalaik, Tushar Giri,CSiddharth Gautam, A. Imran, Karan Sharma, Aroon Menon, Ms. AnkitaTiwari, Advs. for the appearing parties.

The Judgment of the Court was delivered by

INDIRA BANERJEE, J.

1. Leave granted.D

2. This appeal is against judgment and order dated 31-1-2018passed by the Karnataka High Court, disposing of the application ofthe appellant under Section 482 of the Code of Criminal Procedure forquashing an order dated 27-12-2016 passed by the Additional ChiefMetropolitan Magistrate III, Bengaluru City in PCR No.17214 of 2013,Etaking cognizance of private complaint being PCR No.17214 of 2013inter alia against the accused appellant, for offences punishable underSections 120-B, 220, 323, 330 348, 506B read with Section 34of theIndian Penal Code. The High Court did not quash the impugned order ofthe Additional Chief Metropolitan Magistrate dated 27.12.2006, butFremitted the complaint back to the Learned Additional Chief MetropolitanMagistrate instead, with inter alia liberty to the accused appellant toapply for discharge.

3. The accused appellant is police officer of the rank ofSuperintendent of Police. On or about 10-8-2012, when the accusedGappellant was posted as Deputy Commissioner of Police (Crime),Bangalore city, the Commissioner of Police, Bangalore passed an ordertransferring case being Crime No.12/2012 registered at the UlsoorPolice Station, Bangalore, to the Central Crime Branch, Bangalore.

D. DEVARAJA v. OWAIS SABEER HUSSAIN

[INDIRA BANERJEE, J.]

4. After the aforesaid order was passed, the Deputy Commissionerof Police (Eastern Division) Bangalore City directed the Inspector ofPolice, UlsoorPolice Station to transmit the entire case records relatingto Crime No.12/2012 to the Crime Branch.

5. The accused appellant, who was posted as DeputyCommissioner of Police (Crime) received the case records and handedover investigation of the case to the Inspector of Police by memodated 2-1-2013. Thereafter, the Inspector of Police, being the 3[rd] accusedtook up investigation under the guidance of the Assistant Commissionerof Police being the 2[nd] accused, with the assistance of the Sub-Inspectorof Police being the accused No.4.

6. The accused appellant has stated that police officers of theCrime Department enquired into the history of the respondent and hisfamily and found that the respondent was involved in the following cases.

7. There were also other cases registered against the brothers ofthe respondent under various sections of the Indian Penal Code.According to the accused appellant, as per available information therespondent and the members of his family were involved in 13 cases, inall. Particulars of the other cases are given below:

8. On receipt of information that the respondent was involved inCrime No.12/2012 of Ulsoor Police Station, the Inspector of Police beingCthe 3[rd] accused, along with Sub-Inspector of Police and other personnelraided House No.116 1[st] Floor, 1[st] Cross, New BEL Road, Bangalorebelonging to the respondent. The respondent was also detained inconnection with the aforesaid case, and later arrayed as accused in theaforesaid case (Crime No. 12/2012)

D9. The respondent was arrested under panchnama on 27-2-2013,after which he was produced before the jurisdictional Magistrate beingthe Additional Chief Metropolitan Magistrate I at Bengaluru on28-2-2013. By an order dated 28-2-2013, the learned Additional ChiefMetropolitan Magistrate I, Bengaluru remanded the respondent to policecustody, observing that the respondent had not complained of any ill-Etreatment by the Police.

10. On 1-3-2013, the Investigating Officer seized stolen carbeing Tata Manza car which was parked on the road adjacent to therespondent’s house, allegedly pursuant to voluntary statement of therespondent. Inquiry revealed that the car was related to Crime No.110Fof 2013 registered with HSR Layout police station.

11. On or about 2-3-2013, K. M. Hussain, father of the respondent,filed Habeas Corpus Petition being WP(HC) No. 57 of 2013 in thekarnataka High Court at Bengaluru, seeking an order for production ofthe respondent from alleged illegal detention. On 4-3-2013, the learnedGMagistrate passed an order for medical examination of the respondentin view of allegations made by the respondent and/or his father, of ill-treatment of the respondent, by the Police. The respondent was taken toJayadev Institute of Cardiology and later to Victoria hospital for check-up and treatment. The doctors gave detailed report ruling out anyHabnormalities and injuries on the respondent, after perusal of which, the

D. DEVARAJA v. OWAIS SABEER HUSSAIN

learned 1[st] Additional Chief Metropolitan Magistrate, Bengaluru passedan order dated 4-3-2013, observing that there were no abnormalities andinjuries found on the respondent.

12. On 6-3-2013 the accused appellant, as Deputy Commissionerof Police (CCB), Bangalore filed an affidavit in WP(HC) No.57 of 2013in the Karnataka High Court at Bengaluru. An enquiry report was filedalong with the said affidavit, stating that the Investigating Officer hadapprehended the respondent, Sabir Hussain @ Uwaiz Hussain in relationto Crime No.12/2012 registered in Halasuru Police Station, for offenceunder Section 381 of IPC and produced him before the Court of thejurisdictional Magistrate in accordance with law.

13. By an order dated 8-03-2013, the Karnataka High Courtdismissed the Habeas Corpus Petition being WP(HC) No.57 of 2013filed by the respondent’s father, observing inter alia that eight criminalcases were pending against the respondent and that he had been producedbefore the jurisdictional Magistrate in accordance with law.

14. On 18-3-2013, Crime No.110 of 2013 HSR Layout PoliceStation was transferred to the Central Crime Branch. After the respondentwas released from judicial custody, he filed the aforesaid private complaintbeing P.C.R. No.17214 of 2013 against the accused appellant and otherpolice officials, in the Court of the learned IIIrd Additional ChiefMetropolitan Magistrate at Bengaluru alleging ill-treatment and policeexcesses while the respondent was in police custody from 27-2-2013 to4-3-2013.

15. By an order dated 27-12-2016, the IIIrd Additional ChiefMetropolitan Magistrate, Bengaluru, was pleased to take cognizanceagainst the appellant in P.C.R. No. 17214 of 2013, even though noprevious sanction had been obtained from the Government. The accusedappellant filed Criminal Petition No.319 of 2017 under Section 482 ofthe Code of Criminal Procedure in the Karnataka High Court at Bengaluruinter alia for quashing the order dated 27-12-2016 in P.C.R. No.17214of 2013.

16. By the impugned order dated 31-1-2018, the Karnataka HighCourt was pleased to hold that it was well recognised principle of law,that sanction was legal requirement, which empowered the Court totake cognizance of private criminal complaint against public servant.After recording its finding, as aforesaid, the High Court proceeded to

Aobserve that the Magistrate had tentatively opined that sanction was notnecessary to proceed against the accused appellant, having regard tothe documents produced by the complainant before him, and remandedthe complaint back to the Trial Court, with direction on the accusedappellant to appear before the Trial Court and file an application underSection 245 of the Code of Criminal Procedure for discharge. TheBMagistrate was directed to pass an appropriate order on the applicationfor discharge, if filed, before recording evidence on the merits of theallegations.

17. Being aggrieved by the aforesaid order dated 31-1-2018, tothe extent that the appellant has been remanded back to the learnedCMagistrate and directed to file discharge application under Section 245of the Code of Criminal Procedure, the appellant has filed this appeal.

18. The short question involved in this appeal is, whether the learnedMagistrate could, at all, have taken cognizance against the appellant, inthe private complaint being P.C.R No.17214 of 2013, in the absence ofDsanction under Section 197 of the Code of Criminal Procedure read withSection 170 of the Karnataka Police Act, 1963, as amended by theKarnataka Police (Amendment) Act, 2013, and if not, whether the HighCourt should have quashed the impugned order of the Magistrateconcerned, instead of remitting the complaint to the Magistrate concernedEand requiring the accused appellant to appear before him and file anapplication for discharge.19. Section 170 of the Karnataka Police Act, 1963 provides asfollows:-

“170. Suits or prosecutions in respect of acts done under colourFof duty as aforesaid not to be entertained without sanction ofGovernment. –(1) In any case of alleged offence by theCommissioner, Magistrate, Police Officer or Reserve PoliceOfficer or other person, or of wrong alleged to have beendone by such Commissioner, Magistrate, Police Officer orGReserve Police Officer or other person, by any act done undercolour or in excess of any such duty or authority as aforesaid,or wherein it shall appear to the court that the offence orwrong if committed or done was of the character aforesaid,the prosecution or suit shall not be entertained except withthe previous sanction of the Government.H

(2) In the case of an intended suit on account of such wrongas aforesaid, the person intending to sue shall be bound togive to the alleged wrongdoer one month’s notice at least ofthe intended suit with sufficient description of the wrongcomplained of, failing which such suit shall be dismissed.

(3) The plaint shall set forth that notice as aforesaid hasbeen served on the defendant and the date of such service,and shall state whether any, and if so, what tender of amendshas been made by the defendant. copy of the said noticeshall be annexed to the plaint endorsed or accompanied withdeclaration by the plaintiff of the time and manner of servicethereof.”

20. Section 197 of the Code of Criminal Procedure 1973 is set outhereinbelow for convenience:

197. Prosecution of Judges and public servants.

(1) When any person who is or was Judge or Magistrate ora public servant not removable from his office save by orwith the sanction of the Government is accused of any offencealleged to have been committed by him while acting orpurporting to act in the discharge of his official duty, no Courtshall take cognizance of such offence except with the previoussanction-

(a) in the case of person who is employed or, as the casemay be, was at the time of commission of the alleged offenceemployed, in connection with the affairs of the Union, of theCentral Government;

(b) in the case of person who is employed or, as the casemay be, was at the time of commission of the alleged offenceemployed, in connection with the affairs of State, of theState Government: Provided that where the alleged offencewas committed by person referred to in clause (b) duringthe period while Proclamation issued under clause (1) ofarticle 356 of the Constitution was in force in State, clause(b) will apply as if for the expression” State Government”occurring therein, the expression” Central Government” weresubstituted.

A(2) No Court shall take cognizance of any offence alleged tohave been committed by any member of the Armed Forces ofthe Union while acting or purporting to act in the dischargeof his official duty, except with the previous sanction of theCentral Government.

B(3) The State Government may, by notification, direct that theprovisions of sub- section (2) shall apply to such class orcategory of the members of the Forces charged with themaintenance of public order as may be specified therein,wherever they may be serving, and thereupon the provisionsof that sub- section will apply as if for the expression” CentralCGovernment” occurring therein, the expression” StateGovernment” were substituted.

21. Learned Senior Counsel appearing on behalf of the appellant,Mr. Saajan Poovayya submitted that the private complaint as also theorder dated 27-12-2016 of the Magistrate taking cognizance of the privateDcomplaint, ought to have been quashed by the High Court, in the absenceof sanction under Section 197 of the Code of Criminal Procedure readwith Section 170 of the Karnataka Police Act, 1963.

22. Mr. Poovayya argued that even otherwise there was no caseagainst the accused appellant. Even assuming that there was any ill-Etreatment meted out to the appellant, while he was in police custody,there was no specific allegation against the accused appellant, who wasnot the Investigating Officer, but the Deputy Commissioner of Police.

23. Mr. Poovayya also emphatically argued that the respondentwas arrested on 27.02.2013, and produced before the Magistrate onF28.02.2013, on which date he was remanded to police custody with thefinding that there was no ill-treatment by the police. Even after therespondent’s father filed the Habeas Corpus Petition in the High Court,there was no finding of any ill-treatment by the High Court.

24. Mr. Poovayya argued that the allegation of police excesses inGcourse of investigation, and police custody of the respondent, has areasonable nexus with the duty of the appellant as police officer. Evenif the act was in dereliction of duty or in excess of duty, it wasnevertheless in exercise of authority as police officer, in connectionwith investigation of an alleged crime in which the respondent was allegedto be involved. The police officers were duty bound to investigate intoH

D. DEVARAJA v. OWAIS SABEER HUSSAIN

[INDIRA BANERJEE, J.]

an offence. The excesses alleged were in course of discharge of suchofficial duty of investigating into an offence.

25. Mr. Poovayya emphatically argued that under Section 170 ofthe karnataka Police Act, no prosecution is to be entertained against aPolice Officer, except with the previous sanction of the Government, incase of any wrong alleged to have been done by such officer, by any actin pursuance of any duty imposed or authority conferred on him by anyprovision of the Karnataka Police Act, 1963, or any other law for thetime being in force, or even any act done under colour of or in excess ofany such duty or authority. The criminal complaint against the accusedappellant should, therefore, have been quashed under Section 482 of theCriminal Procedure Code for want of sanction under Section 197 of theCode of Criminal Procedure 1973, read with Section 170 of theKarnataka Police Act, 1963. In support of his argument, Mr. Poovayyacited the judgments of this Court in D.T. Virupakshappa v. C. Subash[1],Virupaxappa Veerappa Kadampur v. State of Mysore[2], SankaranMoitra v. Sadhna Das and Another[3] and K.K. Patel and Another v.State of Gujarat and Another[4]. Mr. Poovayya also cited State of Orissav. Ganesh Chandra Jew[5].

26. On the other hand, Mr. Sidharth Luthra, Senior Advocateappearing on behalf of the respondent argued that, whether sanctionwas necessary or not, had to be decided, keeping in mind the nature ofthe complaint, which, in this case, was of physical torture and ill-treatmentof the respondent. Ill-treatment and torture could never be in exercise ofofficial duty, or even under the colour of official duty.

27. Mr. Luthra further argued that, in any case, whether sanctionwas necessary or not, would have to be determined in course of the trial,having regard to the materials brought on record by the respective parties.A complaint should not be nipped in the bud on the ground of want ofsanction.

28. Mr. Luthra also submitted that, an order of Magistrate, takingcognizance of complaint was not amenable to challenge under Section

1 (2015) 12 SCC 231

2 AIR 1963 SC 849

3 (2006) 4 SCC 584

4 (2000) 6 SCC 195

5 (2004) 8 SCC 40

A482 of the Code of Criminal Procedure. The High Court rightly remandedthe complaint to the Trial Court.

29. Mr. Luthra concluded with the argument that the accusedappellant can have no grievance against the judgment and order underappeal, since the High Court has given the accused appellant the libertyBto apply for discharge under Section 245 of the Code of CriminalProcedure and has directed the Trial Court to decide such application, ifmade, before recording evidence on the merit of the allegations madeagainst him.

30. In support of his arguments, Mr. Sidharth Luthra has citedCfollowing cases:

(1) Devinder Singh & Ors. v. State of Punjab through CBI[6]

(2) State of Maharashtra v. Atma Ram [7]

(3) Bhanuprasad Hariprasad Dave v. State of Gujarat[8]

D(4) State of Andhra Pradesh v. N. Venugopal and Others[9]

(5) Satyavir Singh Rathi, Assistant Commissioner of Police& Ors. v. State Thr. CBI[10]

(6) Bakhshish Singh Brar v. Gurmej Kaur & Anr.[11]

E(7) Om Prakash & Ors. v. State of Jharkhand & Anr.[12]

31. To effectively adjudicate the issues raised in this appeal, it isnecessary to examine the scope and effect of Section 197 of the CriminalProcedure Code and/or Section 170 of the Karnataka Police Act, 1963.It is necessary to examine whether want of sanction would vitiate criminalFproceedings against police officer, in all cases? If not, what are thecircumstances in which sanction is necessary.

32. The object of sanction for prosecution, whether under Section197 of the Code of Criminal Procedure, or under Section 170 of theKarnataka Police Act, is to protect public servant/police officer

G6 (2016) 12 SCC 877 AIR 1966 SC 17868 AIR 1968 SC 13239 AIR 1964 SC 3310 (2011) 6 SCC 111 (1987) 4 SCC 663H12 (2012) 12 SCC 72

discharging official duties and functions from harassment by initiation offrivolous retaliatory criminal proceedings. As held by Constitution Benchof this Court in Matajog Dobey v. H.C. Bhari[13 ]held:

“...Public servants have to be protected from harassment inthe discharge of official duties while ordinary citizens not soengaged do not require this safeguard.………. There is noquestion of any discrimination between one person andanother in the matter of taking proceedings against publicservant for an act done or purporting to be done by the publicservant in the discharge of his official duties. No one cantake such proceedings without such sanction...”

33. In Pukhraj v. State of Rajasthan and Another[14] this Court

held:

“2. ..While the law is well settled the difficulty really arises inapplying the law to the facts of any particular case. Theintention behind the section is to prevent public servants frombeing unnecessarily harassed. The section is not restrictedonly to cases of anything purported to be done in good faith,for person who ostensibly acts in execution of his duty stillpurports so to act, although he may have dishonest intention.Nor is it confined to cases where the act, which constitutesthe offence, is the official duty of the official concerned. Suchan interpretation would involve contradiction in terms,because an offence can never be an official duty. The offenceshould have been committed when an act is done in theexecution of duty or when an act purports to be done inexecution of duty. The test appears to be not that the offenceis capable of being committed only by public servant andnot by anyone else, but that it is committed by public servantin an act done or purporting to be done in the execution ofduty. The section cannot be confined to only such acts as aredone by public servant directly in pursuance of his publicoffice, though in excess of the duty or under mistaken beliefas to the existence of such duty. Nor need the act constitutingthe offence be so inseparably connected with the official dutyas to form part and parcel of the same transaction. What is

13 AIR 1956 SC 44

14 (1973) 2 SCC 701

Anecessary is that the offence must be in respect of an actdone or purported to be done in the discharge of an officialduty. It does not apply to acts done purely in private capacityby public servant. Expressions such as the ‘capacity inwhich the act is performed’, ‘cloak of office’ and ‘professedexercise of the office’ may not always be appropriate toBdescribe or delimit the scope of section. An act merely becauseit was done negligently does not cease to be one done orpurporting to be done in execution of duty...”34. In Amrik Singh v. State of Pepsu[15 ]this Court referred to thejudgments of the Federal Court in Dr. Hori Ram Singh v. Emperor[16];CH.H.B. Gill v. Emperor[17 ]and thejudgment of the Privy Council in

H.H.B. Gill v. R[18] and held:

“...The result of the authorities may thus be summed up: It isnot every offence committed by public servant that requiressanction for prosecution under Section 197(1) of the CodeDof Criminal Procedure; nor even every act done by him whilehe is actually engaged in the performance of his officialduties; but if the act complained of is directly concerned withhis official duties so that, if questioned, it could be claimed tohave been done by virtue of the office, then sanction wouldEbe necessary; and that would be so, irrespective of whether itwas, in fact, proper discharge of his duties, because thatwould really be matter of defence on the merits, which wouldhave to be investigated at the trial, and could not arise at thestage of the grant of sanction, which must precede theinstitution of the prosecution...”F

35. Section 197 of the Code of Criminal Procedure 1898,hereinafter referred to as the old Criminal Procedure Code, which fellfor consideration in Matajog Dobey (supra), Pukhraj (supra) andAmrik Singh (supra) is in pari materia with Section 197 of the Code ofCriminal Procedure 1973. The Code of Criminal Procedure, 1973 hasGrepealed and replaced the old Code of Criminal Procedure.

15 AIR 1955 SC 30916 AIR 1939 FC 4317 AIR 1947 FC 9H18 AIR 1948 PC 128

36. In Ganesh Chandra Jew (supra) this Court held:

“7. The protection given under Section 197 is to protectresponsible public servants against the institution of possiblyvexatious criminal proceedings for offences alleged to havebeen committed by them while they are acting or purportingto act as public servants. The policy of the legislature is toafford adequate protection to public servants to ensure thatthey are not prosecuted for anything done by them in thedischarge of their official duties without reasonable cause,and if sanction is granted, to confer on the Government, ifthey choose to exercise it, complete control of the prosecution.This protection has certain limits and is available only whenthe alleged act done by the public servant is reasonablyconnected with the discharge of his official duty and is notmerely cloak for doing the objectionable act. If in doinghis official duty, he acted in excess of his duty, but there is areasonable connection between the act and the performanceof the official duty, the excess will not be sufficient groundto deprive the public servant of the protection. The questionis not as to the nature of the offence such as whether thealleged offence contained an element necessarily dependentupon the offender being public servant, but whether it wascommitted by public servant acting or purporting to act assuch in the discharge of his official capacity. Before Section197 can be invoked, it must be shown that the officialconcerned was accused of an offence alleged to have beencommitted by him while acting or purporting to act in thedischarge of his official duties. It is not the duty which requiresexamination so much as the act, because the official act canbe performed both in the discharge of the official duty aswell as in dereliction of it. The act must fall within the scopeand range of the official duties of the public servantconcerned. It is the quality of the act which is important andthe protection of this section is available if the act falls withinthe scope and range of his official duty.”(emphasis supplied)

37. In State of Orissa v. Ganesh Chandra Jew (supra) thisCourt interpreted the use of the expression “official duty” to imply thatthe act or omission must have been done by the public servant in course

Aof his service and that it should have been in discharge of his duty.Section 197 of the Code of Criminal Procedure does not extend itsprotective cover to every act or omission done by public servant whilein service. The scope of operation of the Section is restricted to onlythose acts or omissions which are done by public servant in dischargeof official duty.B

38. In Shreekantiah Ramayya Munipalli v. State of Bombay[19]

this Court explained the scope and object of Section 197 of the oldCriminal Procedure Code, which as stated hereinabove, is in pari materiawith Section 197 of the Code of Criminal Procedure. This Court held:

C“18. Now it is obvious that if Section 197 of the Code ofCriminal Procedure is construed too narrowly it can never beapplied, for of course it is no part of an official’s duty tocommit an offence and never can be. But it is not the duty wehave to examine so much as the act, because an official actcan be performed in the discharge of official duty as well asDin dereliction of it. The section has content and its languagemust be given meaning. What it says is—

‘When any public servant … is accused of any offencealleged to have been committed by him while acting orpurporting to act in the discharge of his official duty….’

We have therefore first to concentrate on the word ‘offence’.

19. Now an offence seldom consists of single act. It is usuallycomposed of several elements and, as rule, whole seriesof acts must be proved before it can be established. In thepresent case, the elements alleged against the second accusedFare, first, that there was an ‘entrustment’ and/or ‘dominion’;second, that the entrustment and/or dominion was ‘in hiscapacity as public servant’; third, that there was ‘disposal’;and fourth, that the disposal was ‘dishonest’. Now it is evidentthat the entrustment and/or dominion here were in an officialGcapacity, and it is equally evident that there could in this casebe no disposal, lawful or otherwise, save by an act done orpurporting to be done in an official capacity. Therefore, theact complained of, namely, the disposal, could not have beendone in any other way. If it was innocent, it was an official

H19 AIR 1955 SC 287

act; if dishonest, it was the dishonest doing of an official act,but in either event the act was official because the secondaccused could not dispose of the goods save by the doing ofan official act, namely, officially permitting their disposal;and that he did. He actually permitted their release andpurported to do it in an official capacity, and apart from thefact that he did not pretend to act privately, there was noother way in which he could have done it. Therefore, whateverthe intention or motive behind the act may have been, thephysical part of it remained unaltered, so if it was official inthe one case it was equally official in the other, and the onlydifference would lie in the intention with which it was done:in the one event, it would be done in the discharge of anofficial duty and in the other, in the purported discharge ofit.”

39. The scope of Section 197 of the old Code of CriminalProcedure, was also considered In P. Arulswami vs. State of Madras[20]where this Court held:

“...It is the quality of the act that is important and if it fallswithin the scope and range of his official duties the protectioncontemplated by Section 197 of the Criminal Procedure Codewill be attracted.”

If the act is totally unconnected with the official duty, therecan be no protection. It is only when it is either within thescope of the official duty or in excess of it that the protectionis claimable….”

40. In B. Saha and Others v. M.S. Kochar[21 ]this Court held:

“18. In sum, the sine qua non for the applicability of this sectionis that the offence charged, be it one of commission or omission,must be one which has been committed by the public servanteither in his official capacity or under colour of the office held byhim.”

41. In Virupaxappa Veerappa Kadampur v. State of Mysore(supra) cited by Mr.Poovayya, three Judge Bench of this Court

20 AIR 1967 SC 776

21 (1979) 4 SCC 177

Ahad, in the context of Section 161 of the Bombay Police Act,1951, which is similar to Section 170 of the Karnataka Police Act,interpreted the phrase “under colour of duty” to mean “actsdone under the cloak of duty, even though not by virtue ofthe duty”.

B42. In Virupaxappa Veerappa Kadampur (supra) this Courtreferred to the meaning of the words “colour of office” inWharton’s Law Lexicon, 14[th] Ed. Which is as follows:

“Colour of office”

“When an act is unjustly done by the countenance of anCoffice, being grounded upon corruption, to which theoffice is as shadow and colour.”

43. This Court also referred to the meaning of “colour of office inStroud’s Judicial Dictionary, 3[rd] Edition, set out hereinbelow:

DColour: “Colour of office” is always taken in the worst part,and signifies an act evil done by the countenance of an office,and it bears dissembling face of the right of the office,whereas the office is but veil to the falsehood, and the thingis grounded upon Vice, and the Office is as shadow to it.But ‘by reason of the office’ and ‘by virtue of the office areEtaken always in the best part.”44. After referring to the Law Lexicons referred to above, thisCourt held:

“It appears to us that the words under colour of duty havebeen used in s.161(1) to include acts done under the cloak ofFduty, even though not by virtue of the duty. When he (thepolice officer) prepares false Panchnama or false reporthe is clearly using the existence of his legal duty as cloakfor his corrupt action or to use the words in stroud’sDictionary as veil to his falsehood. The acts thus done inGdereliction of his duty must be held to have been done “undercolour of the duty”.”

45. In Om Prakash and others vs. State of Jharkhand andAnr. (supra) this Court, after referring to various decisions, pertainingto the police excess, explained the scope of protection under SectionH197 of the Code of Criminal Procedure as follows:

“32. The true test as to whether public servant was actingor purporting to act in discharge of his duties would bewhether the act complained of was directly connected withhis official duties or it was done in the discharge of his officialduties or it was so integrally connected with or attached tohis office as to be inseparable from it (K. Satwant Singh [AIR1960 SC 266]). The protection given under Section 197 ofthe Code has certain limits and is available only when thealleged act done by the public servant is reasonably connectedwith the discharge of his official duty and is not merely acloak for doing the objectionable act. If in doing his officialduty, he acted in excess of his duty, but there is reasonableconnection between the act and the performance of the officialduty, the excess will not be sufficient ground to deprive thepublic servant of the protection (Ganesh Chandra Jew[(2004) 8 SCC 40]). If the above tests are applied to the factsof the present case, the police must get protection given underSection 197 of the Code because the acts complained of areso integrally connected with or attached to their office as tobe inseparable from it. It is not possible for us to come to aconclusion that the protection granted under Section 197 ofthe Code is used by the police personnel in this case as acloak for killing the deceased in cold blood.”(emphasissupplied)

46. In Sankaran Moitra v. Sadhna Das and Another[22 ]themajority referred to H.H.B Gill v. R[23], H.H.B Gill v. Emperor[24];Shreekantiah Ramayya Munippali v. State of Bombay[25]; AmrikSingh v. State of Pepsu[26]; Matajog Dobey v. H.C. Bhari[27]; Pukhrajv. State of Rajasthan[28]; B. Saha and Others v. M.S. Kochar[29];Bakhshish Singh Brar v. Gurmej Kaur[30]; Rizwan Ahmed JavedShaikh and Others v. Jammal Patel and Others[31 ]and held :

22 (2006) 4 SCC 58423 AIR 1948 PC 128,24 AIR 1947 FC 925 AIR 1955 SC 28726 AIR 1955 SC 30927 AIR 1956 SC 4428 (1973) 2 SCC 70129 (1979) 4 SCC 17730 (1987) 4 SCC 66331 (2001) 5 SCC 7

ABC

A“25. The High Court has stated that killing of person byuse of excessive force could never be performance of duty. Itmay be correct so far as it goes. But the question is whetherthat act was done in the performance of duty or in purportedperformance of duty. If it was done in performance of dutyor purported performance of duty, Section 197(1) of the CodeBcannot be bypassed by reasoning that killing man couldnever be done in an official capacity and consequently Section197(1) of the Code could not be attracted. Such reasoningwould be against the ratio of the decisions of this Courtreferred to earlier. The other reason given by the High CourtCthat if the High Court were to interfere on the ground of wantof sanction, people will lose faith in the judicial process,cannot also be ground to dispense with statutoryrequirement or protection. Public trust in the institution canbe maintained by entertaining causes coming within itsjurisdiction, by performing the duties entrusted to it diligently,Din accordance with law and the established procedure andwithout delay. Dispensing with of jurisdictional or statutoryrequirements which may ultimately affect the adjudicationitself, will itself result in people losing faith in the system. So,the reason in that behalf given by the High Court cannot besufficient to enable it to get over the jurisdictional requirementEof sanction under Section 197(1) of the Code of CriminalProcedure. We are therefore satisfied that the High Court wasin error in holding that sanction under Section 197(1) wasnot needed in this case. We hold that such sanction wasnecessary and for want of sanction the prosecution must beFquashed at this stage. It is not for us now to answer thesubmission of learned counsel for the complainant that thisis an eminently fit case for grant of such sanction.”

47. The dissenting view of C.K. Thakkar J. in Sankaran Moitra(supra) supports the contention of Mr. Luthra to some extent. However,Gwe are bound by the majority view. Further more even the dissentingview of C.K. Thakkar, J was in the context of an extreme case of causingdeath by assaulting the complainant.

48. In K.K. Patel and Another vs. State of Gujarat and Anr.[32]this Court referred to Virupaxappa Veerappa Kadampur (supra) andheld:-H32 (2000) 6 SCC 195

“17. The indispensable ingredient of the said offence is thatthe offender should have done the act “being publicservant”. The next ingredient close to its heels is that suchpublic servant has acted in disobedience of any legal directionconcerning the way in which he should have conducted assuch public servant. For the offences under Section 167 and219 IPC the pivotal ingredient is the same as for the offenceunder Section 166 IPC. The remaining offences alleged inthe complaint, in the light of the averments made therein, areancillary offences to the above and all the offences are partsof the same transaction. They could not have been committedwithout there being at least the colour of the office or authoritywhich the appellants held.”

49. Mr. Poovayya argued that the complaint filed by the respondentagainst the accused appellant was in gross abuse of process, frivolousand malafide. Controverting the allegation of the respondent in hiscomplaint, of police excesses while the respondent was in police custodybetween 27[th] February, 2013 and 14[th] March, 2013 in connection withCrime No12/2012, Mr. Poovayya referred to the order of the learnedChief Metropolitan Magistrate dated 28[th] February, 2013 in the said crimecase, observing that the respondent had not complained of any ill-treatment by the police.50. Mr. Poovayya submitted that the learned Chief MetropolitanMagistrate had, in any case, passed an order for medical examination ofthe respondent in view of his complaint of ill-treatment, but the medicalreports, upon such examination, showed that there was no injury on therespondent. Mr. Poovayya argued that the accused appellant had beenarrayed as accused vindictively, out of vengeance, since the accusedappellant had, in his capacity as Deputy Commissioner of Police (CentralCrime Branch), submitted an affidavit in the Habeas Corpus Petitionfiled by the respondent’s father in the Karnataka High Court. The saidaffidavit led to the dismissal of the Habeas Corpus Petition.

51. Citing the judgment of this Court in State of Haryana andOthers v. Bhajan Lal and Others[33], Mr. Poovayya argued that wherea criminal proceeding is manifestly prompted by malafides and institutedwith the ulterior motive of vengeance due to private or personal grudge,power under Section 482 of the Criminal Procedure Code ought to be

33 1992 Suppl. (1) SC 335

Aexercised to prevent abuse of the process of Court and/or to secure theends of justice.

52. In State of Orissa vs. Ganesh Chandra Jew (supra) citedby Mr. Poovayya, this Court had, in similar circumstances, referred toand followed Bhajan Lal (supra) and held:

“..the factual scenario as indicated above goes to show thaton 28-2-1991 the respondent was produced before theMagistrate. He was specifically asked as to whether therewas any ill-treatment. Learned SDJM specifically records thatno complaint of any ill-treatment was made. This itself strikesCat the credibility of the complaint.. though there are severalother aspects highlighted in the version indicated in thecomplaint and the materials on record are there, we do notthink it necessary to go into them because of the inherentimprobabilities of the complainant’s case and the patent malefides involved”D53. In K.K. Patel and Anr. vs. State of Gujarat and Anr. thisCourt held:

“11. That apart, the view of the learned Single Judge of theHigh Court that no revision was maintainable on account ofEthe bar contained in Section 397(2) of the Code, is clearlyerroneous. It is now well-nigh settled that in deciding whetheran order challenged is interlocutory or not as for Section397(2) of the Code, the sole test is not whether such orderwas passed during the interim stage (vide Amar Nath v. Stateof Haryana (1977) 4 SCC 137, Madhu Limaye v. State ofFMaharashtra (1977) 4 SCC 551, V.C. Shukla v. State throughCBI 1980 Supp SCC 92 and Rajendra Kumar Sitaram Pandev. Uttam (1999) 3 SCC 134). The feasible test is whether byupholding the objections raised by party, it would result inculminating the proceedings, if so any order passed on suchGobjections would not be merely interlocutory in nature asenvisaged in Section 397(2) of the Code. In the present case,if the objection raised by the appellants were upheld by theCourt the entire prosecution proceedings would have beenterminated. Hence, as per the said standard, the order wasrevisable.

12. Therefore, the High Court went wrong in holding that theorder impugned before the Sessions Court was not revisablein view of the bar contained in Section 397(2) of the Code.”

54. In D.T. Virupakshappa v. C. Subash (supra), cited by Mr.Poovayya, the question raised by the appellant before this Court was,whether the learned Magistrate could not have taken cognizance of thealleged offence which was of police excess in connection withinvestigation of the criminal case, without sanction from the StateGovernment under Section 197 of the Code of Criminal Procedure andwhether the High Court should have quashed the proceedings on thatground alone.

55. This Court held that the whole allegation of police excess inconnection with the investigation of the criminal case, was reasonablyconnected with the performance of the official duty of the appellant.The learned Magistrate could not have, therefore, taken cognizance ofthe case, without previous sanction of the State Government. This Courtfound that the High Court had missed this crucial point in passing theimpugned order, dismissing the application of the concerned policemanunder Section 482 of the Code of Criminal Procedure.

56. In Ganesh Chandra Jew (supra), the Magistrate had, as inthis case, specially recorded that there was no complaint of any ill-treatment. This Court was of the view that continuance of the proceedingwould amount to the abuse of the process of law. Accordingly, this Courtset aside the judgment of the High Court whereby the High Court refusedto exercise its power under Section 482 of the Criminal Procedure Codeto quash an order of sub-Divisional Judicial Magistrate, in complaintagainst police officials, without sanction under Section 197 of the CriminalProcedure code.

57. Devinder Singh & Ors. v. State of Punjab through CBI(supra) cited by Mr. Luthra is clearly distinguishable as that was caseof killing by the police in fake encounter. Satyavir Singh Rathi, AssistantCommissioner of Police & Ors. v. State Thr. CBI (supra) also pertainsto fake encounter, where the deceased was mistakenly identified as ahardcore criminal and shot down without provocation. The version ofthe police, that the police had been attacked first and had retaliated, wasfound to be false. In the light of these facts, that this Court held that itcould not, by any stretch of imagination, be claimed by anybody that acase of murder could be within the expression “colour of duty”. This

ACourt dismissed the appeals of the concerned policemen againstconviction, inter alia, under section 302 of Indian Penal Code, whichhad duly been confirmed by the High Court. The judgment is clearlydistinguishable.

58. The Judgment of this Court in State of Andhra Pradesh v. N.BVenugopal (supra) is distinguishable in that the policemen concerned,being the Sub Inspector, Head Constable and Constable attached to apolice station had without warrant illegally detained the complainant forinterrogation under Section 161 of the Criminal Procedure Code inconnection with private complaint of house break and theft, assaultedhim along with the private complainant to extract statements and leftChim in an injured condition.

59. In the context of aforesaid, this Court held that an act is not“under” provision of law merely because the point of time at which itis done coincides with the point of time when some act in the exercise ofthe powers granted by the provision or in performance of the duty imposedDby it. To be able to say that an act is done “‘under” provision of law,one must discover the existence of reasonable relationship betweenthe provisions and the act. In the absence of such relation, the actcannot be said to be done under the particular provision of law. It cannotbe said that beating person suspected of crime or confining him orEsending him away in an injured condition, at time when the police wereengaged in investigation, were acts done or intended to be done underthe provisions of the Madras District Police Act or the Criminal ProcedureCode or any other law conferring powers on the police. It could not besaid that the provisions of Section 161 of the Criminal Procedure Codeauthorised the police officer examining person to beat him or to confineFhim for the purpose of inducing him to make particular statement.

60. In Bhanuprasad Hariprasad Dave v. State of Gujarat(supra) the Head Constable concerned was accused of preparing afalse report with the dishonest intention of saving person from whomganja had been seized, after obtaining illegal gratification. The CourtGheld that demand and/or acceptance of illegal gratification could not besaid to be an act done under colour of duty. Significantly, the concernedpolicemen had been tried and convicted and their conviction was affirmedby the High Court. The concerned Head Constable was seeking bail inthis Court.

61. The Judgment in State of Maharashtra v. Atma Ram (supra),was rendered in an appeal from judgment and order of the High Court,whereby the High Court had reversed the conviction of the concernedpolicemen under Sections 330, 342, 343 and 348 of the Indian PenalCode, holding the prosecution to be barred under Section 161(1) of theBombay Police Act. Allowing the appeal of the State, this Court heldthat Section 64(b) which confers duty on every police officer to obtainintelligence concerning the commission of cognizable offences or designsto commit such offences and to take such other steps to bring offendersto justice or to prevent the commission of cognizable and non cognizableoffences, did not authorise any police officer to beat persons in the courseof examination for the purpose of inducing them to make any particularstatement or to detain such persons. The acts complained were factuallyfound not to have been done under colour of any duty or authority. TheOrder of the High Court acquitting the concerned policemen was thus,set aside.

62. In Bakhshish Singh Brar v. Gurmej Kaur (supra), thequestion raised before this Court was, whether while carrying outinvestigation in performance of duty as policeman, it was necessaryfor the concerned policeman to conduct investigation in such manneras would result in injury and death. This Court held that trial of policeofficer accused of causing grievous injury and death in conducting raidand search, need not to be stayed for want of sanction for prosecutionof the police officer, at the preliminary stage, observing that criminal trialshould not be stayed at the preliminary stage in every case, as it mightcause damage to the evidence. The Court observed that if necessarythe question of sanction might be agitated at later stage.63. In Om Prakash and others v. State of Jharkhand and Anr.(supra) this Court held:

“34. In Matajog Dobey(AIR 1956 SC 44) the ConstitutionBench of this Court was considering what is the scope andmeaning of somewhat similar expression “any offencealleged to have been committed by him while acting orpurporting to act in the discharge of his official duty”occurring in Section 197 of the Criminal Procedure Code (5of 1898). The Constitution Bench observed that no questionof sanction can arise under Section 197 unless the actcomplained of is an offence; the only point to determine is

whether it was committed in the discharge of official duty. Onthe question as to which act falls within the ambit ofabovequoted expression, the Constitution Bench concludedthat there must be reasonable connection between the actand the discharge of official duty; the act must bear suchrelation to the duty that the accused could lay reasonable,but not pretended or fanciful claim that he did it in thecourse of performance of his duty. While dealing with thequestion whether the need for sanction has to be consideredas soon as the complaint is lodged and on the allegationscontained therein, the Constitution Bench referred to HoriRam Singh (AIR 1939 FC 43) and observed that at first sight,it seems as though there is some support for this view in HoriRam Singh (AIR 1939 FC 43) because Sulaiman, J. hasobserved in the said judgment that as the prohibition is againstthe institution itself, its applicability must be judged in thefirst instance at the earliest stage of institution andVaradachariar, J. has also stated that: (Matajog Dobey case(AIR 1956 SC44), AIR p. 49, para 20)

“20. … the question must be determined with reference tothe nature of the allegations made against the publicservant in the criminal proceedings.”

The legal position is thus settled by the Constitution Bench inthe above paragraph. Whether sanction is necessary or notmay have to be determined from stage to stage. If, at the outset,the defence establishes that the act purported to be done is inexecution of official duty, the complaint will have to bedismissed on that ground.

42. It is not the duty of the police officers to kill the accusedmerely because he is dreaded criminal. Undoubtedly, thepolice have to arrest the accused and put them up for trial.This Court has repeatedly admonished trigger-happy policepersonnel, who liquidate criminals and project the incidentas an encounter. Such killings must be deprecated. They arenot recognised as legal by our criminal justice administration

system. They amount to State-sponsored terrorism. But, onecannot be oblivious of the fact that there are cases where thepolice, who are performing their duty, are attacked and killed.There is rise in such incidents and judicial notice must betaken of this fact. In such circumstances, while the policehave to do their legal duty of arresting the criminals, theyhave also to protect themselves. The requirement of sanctionto prosecute affords protection to the policemen, who aresometimes required to take drastic action against criminals toprotect life and property of the people and to protectthemselves against attack. Unless unimpeachable evidenceis on record to establish that their action is indefensible, malafide and vindictive, they cannot be subjected to prosecution.Sanction must be precondition to their prosecution. It affordsnecessary protection to such police personnel. The plearegarding sanction can be raised at the inception.43. In our considered opinion, in view of the facts which wehave discussed hereinabove, no inference can be drawn inthis case that the police action is indefensible or vindictive orthat the police were not acting in discharge of their officialduty. In Zandu Pharmaceutical Works Ltd. [(2005) 1 SCC122] this Court has held that the power under Section 482 ofthe Code should be used sparingly and with circumspectionto prevent abuse of process of court but not to stifle legitimateprosecution. There can be no two opinions on this, but, if itappears to the trained judicial mind that continuation of aprosecution would lead to abuse of process of court, thepower under Section 482 of the Code must be exercised andproceedings must be quashed. Indeed, the instant case is oneof such cases where the proceedings initiated against thepolice personnel need to be quashed.”

64. In Pukhraj v. State of Rajasthan (supra) the accused PostMaster General, Rajasthan had allegedly kicked and abused unionleader who had come to him when he was on tour, to submit arepresentation. This Court held that Section 197 of the Code of CriminalProcedure, which is intended to prevent public servant from beingharassed does not apply to acts done by public servant in his privatecapacity. This Court however left it open to the accused public servant

ABC

Ato place materials on record during the trial to show that the actscomplained of were so interrelated with his official duty as to attract theprotection of Section 197 of the Criminal Procedure Code.

65. In Rizwan Ahmed Javed Shaikh and others v. JammalPateland Others[34], this Court held that where the gravamen of theBcharge was failure on the part of the accused policemen to produce thecomplainants, who were in their custody, before the Judicial Magistrate,the offence alleged was in their official capacity, though it might haveceased to be legal at given point of time, and the accused police officerswould be entitled to the benefit of Section 197(2) of the CriminalProcedure Code.C66. The Judgment in B. Saha v. M.S. Kochar (supra) wasrendered in the context of allegations against Customs Authorities ofmisappropriation or conversion of goods. This Court held that while theseizure of goods by the concerned custom officers was an act committedin discharge of official duty, the subsequent acts of misappropriation orDconversion of the goods could not be said to be viewed as under thecolour of official duty. Accordingly this Court held that sanction forprosecution was not necessary.

67. The law relating to the requirement of sanction to entertainand/or take cognizance of an offence, allegedly committed by policeEofficer under Section 197 of the Code of Criminal Procedure read withSection 170 of the Karnataka Police Act, is well settled by this Court,inter alia by its decisions referred to above.

68. Sanction of the Government, to prosecute police officer, forany act related to the discharge of an official duty, is imperative to protectFthe police officer from facing harassive, retaliatory, revengeful andfrivolous proceedings. The requirement of sanction from the government,to prosecute would give an upright police officer the confidence todischarge his official duties efficiently, without fear of vindictive retaliationby initiation of criminal action, from which he would be protected underGSection 197 of the Code of Criminal Procedure, read with Section 170of the Karnataka Police Act.

At the same time, if the policeman has committed wrong, whichconstitutes criminal offence and renders him liable for prosecution, hecan be prosecuted with sanction from the appropriate government.H34 (2001) 5 SCC 7

[INDIRA BANERJEE, J.]

69. Every offence committed by police officer does not attractSection 197 of the Code of Criminal Procedure read with Section 170 ofthe Karnataka Police Act. The protection given under Section 197 ofthe Criminal Procedure Code read with Section 170 of the KarnatakaPolice Act has its limitations. The protection is available only when thealleged act done by the public servant is reasonably connected with thedischarge of his official duty and official duty is not merely cloak forthe objectionable act.

70. An offence committed entirely outside the scope of the dutyof the police officer, would certainly not require sanction. To cite anexample, police man assaulting domestic help or indulging in domesticviolence would certainly not be entitled to protection. However if an actis connected to the discharge of official duty of investigation of recordedcriminal case, the act is certainly under colour of duty, no matter howillegal the act may be.

71. If in doing an official duty policeman has acted in excess ofduty, but there is reasonable connection between the act and theperformance of the official duty, the fact that the act alleged is in excessof duty will not be ground enough to deprive the policeman of theprotection of government sanction for initiation of criminal action againsthim.

72. The language and tenor of Section 197 of the Code of CriminalProcedure and Section 170 of the Karnataka Police Act makes itabsolutely clear that sanction is required not only for acts done in dischargeof official duty, it is also required for an act purported to be done indischarge of official duty and/or act done under colour of or in excess ofsuch duty or authority.

73. To decide whether sanction is necessary, the test is whetherthe act is totally unconnected with official duty or whether there is areasonable connection with the official duty. In the case of an act of apoliceman or any other public servant unconnected with the official dutythere can be no question of sanction. However, if the act alleged againsta policeman is reasonably connected with discharge of his official duty,it does not matter if the policeman has exceeded the scope of his powersand/or acted beyond the four corners of law.

74. If the act alleged in complaint purported to be filed againstthe policeman is reasonably connected to discharge of some official

Aduty, cognizance thereof cannot be taken unless requisite sanction of theappropriate government is obtained under Section 197 of the Code ofCriminal Procedure and/or Section 170 of the Karnataka Police Act.

75. On the question of the stage at which the Trial Court has toexamine whether sanction has been obtained and if not whether theBcriminal proceedings should be nipped in the bud, there are diversedecisions of this Court.

76. While this Court has, in D.T. Virupakshappa (supra) heldthat the High Court had erred in not setting aside an order of the TrialCourt taking cognizance of complaint, in exercise of the power underCSection 482 of Criminal Procedure Code, in Matajog Dobey (supra)this Court held it is not always necessary that the need for sanctionunder Section 197 is to be considered as soon as the complaint is lodgedand on the allegations contained therein. The complainant may notdisclose that the act constituting the offence was done or purported tobe done in the discharge of official duty and/or under colour of duty.DHowever the facts subsequently coming to light in course of the trial orupon police or judicial enquiry may establish the necessity for sanction.Thus, whether sanction is necessary or not may have to be determinedat any stage of the proceedings.77. It is well settled that an application under Section 482 of theECriminal Procedure Code is maintainable to quash proceedings whichare ex facie bad for want of sanction, frivolous or in abuse of process ofcourt. If, on the face of the complaint, the act alleged appears to have areasonable relationship with official duty, where the criminal proceedingis apparently prompted by mala fides and instituted with ulterior motive,Fpower under Section 482 of the Criminal Procedure Code would have tobe exercised to quash the proceedings, to prevent abuse of process ofcourt.

78. There is also no reason to suppose that sanction will be withheldin case of prosecution, where there is substance in complaint and inGany case if, in such case, sanction is refused, the aggrieved complainantcan take recourse to law. At the cost of repetition it is reiterated that therecords of the instant case clearly reveal that the complainant alleged ofpolice excesses while the respondent was in custody, in the course ofinvestigation in connection with Crime No.12/2012. Patently the complaintpertains to an act under colour of duty.H

79. Significantly, the High Court has by its judgment and orderobserved “it is well recognized principle of law that sanction is alegal requirement which empowers the Court to take cognizance sofar as the public servant is concerned. If at all the sanction isabsolute requirement, if takes cognizance it becomes illegal thereforean order too overcome any illegality the duty of the magistrate isthat even at any subsequent stages if the sanction is raised it is theduty of the Magistrate to consider”.

80. In our considered opinion, the High Court clearly erred in lawin refusing to exercise its jurisdiction under Section 482 of the CriminalProcedure Code to set aside the order of the Magistrate impugned takingcognizance of the complaint, after having held that it was recognizedprinciple of law that sanction was legal requirement which empowersthe Court to take Cognizance. The Court ought to have exercised itspower to quash the complaint instead of remitting the appellant to anapplication under Section 245 of the Criminal Procedure Code to seekdischarge.

81. The appeal is allowed. The judgment and order under appealis set aside and the complaint is quashed for want of sanction.

Kalpana K. Tripathy

Appeal allowed.