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D. Devaraja vs Owais Sabeer Hussain on 18 June, 2020

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 458 OF 2020
[ARISING OUT OF SLP (CRL.) NO.1882 OF 2018]

D. DEVARAJA …Appellant

VERSUS

OWAIS SABEER HUSSAIN …Respondent

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal is against a judgment and order dated 31-1-2018

passed by the Karnataka High Court, disposing of the application of

the 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
Signature Not Verified

Digitally signed by
MAHABIR SINGH
inter alia against the accused appellant, for offences punishable
Date: 2020.06.18
17:41:15 IST
Reason:

under Sections 120-B, 220, 323, 330 348, 506B read with Section 34
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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 the Learned

Additional Chief Metropolitan Magistrate instead, with inter alia liberty

to the accused appellant to apply for discharge.

3. The accused appellant is a police officer of the rank of

Superintendent of Police. On or about 10-8-2012, when the accused

appellant was posted as Deputy Commissioner of Police (Crime),

Bangalore city, the Commissioner of Police, Bangalore passed an

order transferring a case being Crime No.12/2012 registered at the

Ulsoor Police Station, Bangalore, to the Central Crime Branch,

Bangalore.

4. After the aforesaid order was passed, the Deputy

Commissioner of Police (Eastern Division) Bangalore City directed the

Inspector of Police, Ulsoor Police Station to transmit the entire case

records relating to Crime No.12/2012 to the Crime Branch.

5. The accused appellant, who was posted as Deputy

Commissioner of Police (Crime) received the case records and handed

over investigation of the case to the Inspector of Police by a memo

dated 2-1-2013. Thereafter, the Inspector of Police, being the 3 rd

accused took up investigation under the guidance of the Assistant

Commissioner of Police being the 2nd accused, with the assistance of

the Sub-Inspector of Police being the accused No.4.

6. The accused appellant has stated that police officers of the

Crime Department enquired into the history of the respondent and his
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family and found that the respondent was involved in the following

cases.

Cases against Owais Sabeer Hussain/ Respondent
Sl. Date Police Station FIR Sections
No. Number
1 26.02.2013 HSR Layout, 110/2013 420, 465, 468 of
IPC
Bengaluru
2 03.05.2013 Subramanyanagar, 44/2013 420 of
IPC
Bangalore

7. There were also other cases registered against the brothers of

the respondent under various sections of the Indian Penal Code.

According to the accused appellant, as per available information the

respondent and the members of his family were involved in 13 cases,

in all. Particulars of the other cases are given below:

CASES REGISTERED AGAINST THE BROTHERS OF RESPONDENT
Sl. Date Police Station FIR Sections
No. Number
1 01.09.2009 Andersonpet, KGF 3/2009 143, 149, 354,
504,506 of IPC
2 01.11.2009 Andersonpet, KGF 4/2009 107 of IPC
3 02.12.2009 Andersonpet, KGF 13/2009 379,427,447, 500 of
IPC
4 04.02.2009 Andersonpet, KGF 51/2009 107 of IPC
5 10.03.2011 High Grounds, 187/2011 506 of IPC
Bengaluru
6 03.02.2012 High Grounds, 57/2012 323, 324, 241, 353,
Bengaluru 506(B) of IPC
7 21.03.2012 Andersonpet,KGF 27/2012 107 of IPC
8 02.01.2013 Ashoknagar, 52/2013 417, 419, 420, 465,
Bangalore 468, 471, 120(B), r/w
34 of IPC
9 25.05.2012 High Grounds, 135/2012 423, 404, 465, 468,
Bengaluru 471, 472, 474, 475,
476, 463, 464 of IPC
10 03.05.2013 Sanjaynagar, 75/2013 420, 468, 471, 506
Bengaluru r/w 34 of IPC
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11 21.08.2011 High Grounds, 153/2011 468, 471, 420, 506 of
Bengaluru IPC

8. On receipt of information that the respondent was involved in

Crime No.12/2012 of Ulsoor Police Station, the Inspector of Police

being the 3rd accused, along with Sub-Inspector of Police and other

personnel raided House No.116 1st Floor, 1st Cross, New BEL Road,

Bangalore belonging to the respondent. The respondent was also

detained in connection with the aforesaid case, and later arrayed as

accused in the aforesaid case (Crime No. 12/2012)

9. The respondent was arrested under panchnama on 27-2-2013,

after which he was produced before the jurisdictional Magistrate

being the Additional Chief Metropolitan Magistrate I at Bengaluru on

28-2-2013. By an order dated 28-2-2013, the learned Additional

Chief Metropolitan Magistrate I, Bengaluru remanded the respondent

to police custody, observing that the respondent had not complained

of any ill-treatment by the Police.

10. On 1-3-2013, the Investigating Officer seized a stolen car

being Tata Manza car which was parked on the road adjacent to the

respondent’s house, allegedly pursuant to a voluntary statement of

the respondent. Inquiry revealed that the car was related to Crime

No.110 of 2013 registered with HSR Layout police station.

11. On or about 2-3-2013, K. M. Hussain, father of the respondent,

filed a Habeas Corpus Petition being WP(HC) No. 57 of 2013 in the

karnataka High Court at Bengaluru, seeking an order for production of

the respondent from alleged illegal detention. On 4-3-2013, the
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learned Magistrate passed an order for medical examination of the

respondent in view of allegations made by the respondent and/or his

father, of ill-treatment of the respondent, by the Police. The

respondent was taken to Jayadev Institute of Cardiology and later to

Victoria hospital for check-up and treatment. The doctors gave a

detailed report ruling out any abnormalities and injuries on the

respondent, after perusal of which, the learned 1 st Additional Chief

Metropolitan Magistrate, Bengaluru passed an order dated 4-3-2013,

observing that there were no abnormalities and injuries found on the

respondent.

12. On 6-3-2013 the accused appellant, as Deputy Commissioner

of Police (CCB), Bangalore filed an affidavit in WP(HC) No.57 of 2013

in the Karnataka High Court at Bengaluru. An enquiry report was filed

along with the said affidavit, stating that the Investigating Officer had

apprehended the respondent, Sabir Hussain @ Uwaiz Hussain in

relation to Crime No.12/2012 registered in Halasuru Police Station, for

offence under Section 381 of IPC and produced him before the Court

of the jurisdictional Magistrate in accordance with law.

13. By an order dated 8-03-2013, the Karnataka High Court

dismissed the Habeas Corpus Petition being WP(HC) No.57 of 2013

filed by the respondent’s father, observing inter alia that eight

criminal cases were pending against the respondent and that he had

been produced before the jurisdictional Magistrate in accordance with

law.

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14. On 18-3-2013, Crime No.110 of 2013 HSR Layout Police

Station was transferred to the Central Crime Branch. After the

respondent was released from judicial custody, he filed the aforesaid

private complaint being P.C.R. No.17214 of 2013 against the accused

appellant and other police officials, in the Court of the learned IIIrd

Additional Chief Metropolitan Magistrate at Bengaluru alleging ill-

treatment and police excesses while the respondent was in police

custody from 27-2-2013 to 4-3-2013.

15. By an order dated 27-12-2016, the IIIrd Additional Chief

Metropolitan Magistrate, Bengaluru, was pleased to take cognizance

against the appellant in P.C.R. No. 17214 of 2013, even though no

previous sanction had been obtained from the Government. The

accused appellant filed Criminal Petition No.319 of 2017 under

Section 482 of the Code of Criminal Procedure in the Karnataka High

Court at Bengaluru inter alia for quashing the order dated 27-12-

2016 in P.C.R. No.17214 of 2013.

16. By the impugned order dated 31-1-2018, the Karnataka High

Court was pleased to hold that it was a well recognised principle of

law, that sanction was a legal requirement, which empowered the

Court to take cognizance of a private criminal complaint against a

public servant. After recording its finding, as aforesaid, the High

Court proceeded to observe that the Magistrate had tentatively

opined that sanction was not necessary to proceed against the

accused appellant, having regard to the documents produced by the

complainant before him, and remanded the complaint back to the
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Trial Court, with a direction on the accused appellant to appear before

the Trial Court and file an application under Section 245 of the Code

of Criminal Procedure for discharge. The Magistrate was directed to

pass an appropriate order on the application for discharge, if filed,

before recording evidence on the merits of the allegations.

17. Being aggrieved by the aforesaid order dated 31-1-2018, to

the extent that the appellant has been remanded back to the learned

Magistrate and directed to file a discharge application under Section

245 of the Code of Criminal Procedure, the appellant has filed this

appeal.

18. The short question involved in this appeal is, whether the

learned Magistrate could, at all, have taken cognizance against the

appellant, in the private complaint being P.C.R No.17214 of 2013, in

the 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

the Magistrate concerned, instead of remitting the complaint to the

Magistrate concerned and requiring the accused appellant to appear

before him and file an application for discharge.

19. Section 170 of the Karnataka Police Act, 1963 provides as

follows:-

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

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

(3) The plaint shall set forth that a notice as aforesaid has been
served on the defendant and the date of such service, and shall
state whether any, and if so, what tender of amends has been
made by the defendant. A copy of the said notice shall be
annexed to the plaint endorsed or accompanied with declaration
by the plaintiff of the time and manner of service thereof.”

20. Section 197 of the Code of Criminal Procedure 1973 is set out

hereinbelow for convenience:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with
the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court
shall take cognizance of such offence except with the previous
sanction-

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

(b) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the
State Government: Provided that where the alleged offence
was committed by a person referred to in clause (b) during the
period while a Proclamation issued under clause (1) of
article
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356 of the Constitution was in force in a State, clause (b) will
apply as if for the expression” State Government” occurring
therein, the expression” Central Government” were
substituted.

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

(3) The State Government may, by notification, direct that the
provisions of sub- section (2) shall apply to such class or
category of the members of the Forces charged with the
maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions
of that sub- section will apply as if for the expression” Central
Government” occurring therein, the expression” State
Government” were substituted.

21. Learned Senior Counsel appearing on behalf of the appellant,

Mr. Saajan Poovayya submitted that the private complaint as also the

order dated 27-12-2016 of the Magistrate taking cognizance of the

private complaint, ought to have been quashed by the High Court, in

the absence of sanction under Section 197 of the Code of Criminal

Procedure read with Section 170 of the Karnataka Police Act, 1963.

22. Mr. Poovayya argued that even otherwise there was no case

against the accused appellant. Even assuming that there was any ill-

treatment meted out to the appellant, while he was in police custody,

there was no specific allegation against the accused appellant, who

was not the Investigating Officer, but the Deputy Commissioner of

Police.

23. Mr. Poovayya also emphatically argued that the respondent

was arrested on 27.02.2013, and produced before the Magistrate on
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28.02.2013, on which date he was remanded to police custody with

the finding that there was no ill-treatment by the police. Even after

the respondent’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 in

course of investigation, and police custody of the respondent, has a

reasonable nexus with the duty of the appellant as a police officer.

Even if the act was in dereliction of duty or in excess of duty, it was

nevertheless in exercise of authority as a police officer, in connection

with investigation of an alleged crime in which the respondent was

alleged to be involved. The police officers were duty bound to

investigate into an offence. The excesses alleged were in course of

discharge of such official duty of investigating into an offence.

25. Mr. Poovayya emphatically argued that under Section 170 of

the karnataka Police Act, no prosecution is to be entertained against

a Police Officer, except with the previous sanction of the Government,

in case of any wrong alleged to have been done by such officer, by

any act in pursuance of any duty imposed or authority conferred on

him by any provision of the Karnataka Police Act, 1963, or any other

law for the time being in force, or even any act done under colour of

or in excess of any such duty or authority. The criminal complaint

against the accused appellant should, therefore, have been quashed

under Section 482 of the Criminal Procedure Code for want of

sanction under Section 197 of the Code of Criminal Procedure 1973,

read with Section 170 of the Karnataka Police Act, 1963. In support of
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his argument, Mr. Poovayya cited the judgments of this Court in D.T.

Virupakshappa v. C. Subash1, Virupaxappa Veerappa

Kadampur v. State of Mysore2, Sankaran Moitra v. Sadhna

Das and Another3 and K.K. Patel and Another v. State of

Gujarat and Another4. Mr. Poovayya also cited State of Orissa v.

Ganesh Chandra Jew5.

26. On the other hand, Mr. Sidharth Luthra, Senior Advocate

appearing on behalf of the respondent argued that, whether sanction

was necessary or not, had to be decided, keeping in mind the nature

of the complaint, which, in this case, was of physical torture and ill-

treatment of the respondent. Ill-treatment and torture could never be

in exercise of official duty, or even under the colour of official duty.

27. Mr. Luthra further argued that, in any case, whether sanction

was 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 of sanction.

28. Mr. Luthra also submitted that, an order of a Magistrate,

taking cognizance of a complaint was not amenable to challenge

under Section 482 of the Code of Criminal Procedure. The High Court

rightly remanded the complaint to the Trial Court.

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
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29. Mr. Luthra concluded with the argument that the accused

appellant can have no grievance against the judgment and order

under appeal, since the High Court has given the accused appellant

the liberty to apply for discharge under Section 245 of the Code of

Criminal Procedure and has directed the Trial Court to decide such

application, if made, before recording evidence on the merit of the

allegations made against him.

30. In support of his arguments, Mr. Sidharth Luthra has cited

following cases:

(1) Devinder Singh Ors. v. State of Punjab through CBI6

(2) State of Maharashtra v. Atma Ram 7

(3) Bhanuprasad Hariprasad Dave v. State of Gujarat8

(4) State of Andhra Pradesh v. N. Venugopal and Others9

(5) Satyavir Singh Rathi, Assistant Commissioner of Police

Ors. v. State Thr. CBI10

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

(7) Om Prakash Ors. v. State of Jharkhand Anr.12

31. To effectively adjudicate the issues raised in this appeal, it is

necessary to examine the scope and effect of Section 197 of the

Criminal Procedure Code and/or Section 170 of the Karnataka Police

6. (2016) 12 SCC 87

7. AIR 1966 SC 1786

8. AIR 1968 SC 1323

9. AIR 1964 SC 33

10. (2011) 6 SCC 1

11. (1987) 4 SCC 663

12. (2012) 12 SCC 72
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Act, 1963. It is necessary to examine whether want of sanction would

vitiate criminal proceedings against a police officer, in all cases? If

not, what are the circumstances in which sanction is necessary.

32. The object of sanction for prosecution, whether under Section

197 of the Code of Criminal Procedure, or under Section 170 of the

Karnataka Police Act, is to protect a public servant/police officer

discharging official duties and functions from harassment by initiation

of frivolous retaliatory criminal proceedings. As held by a Constitution

Bench of this Court in Matajog Dobey v. H.C. Bhari13 held:

“…Public servants have to be protected from harassment in
the discharge of official duties while ordinary citizens not so
engaged do not require this safeguard.………. There is no
question of any discrimination between one person and
another in the matter of taking proceedings against a public
servant for an act done or purporting to be done by the public
servant in the discharge of his official duties. No one can take
such proceedings without such sanction…”

33. In Pukhraj v. State of Rajasthan and Another14 this

Court held:

“2. ..While the law is well settled the difficulty really arises in
applying the law to the facts of any particular case. The
intention behind the section is to prevent public servants from
being unnecessarily harassed. The section is not restricted
only to cases of anything purported to be done in good faith,
for a person who ostensibly acts in execution of his duty still
purports so to act, although he may have a dishonest
intention. Nor is it confined to cases where the act, which
constitutes the offence, is the official duty of the official
concerned. Such an interpretation would involve a
contradiction in terms, because an offence can never be an
official duty. The offence should have been committed when an
act is done in the execution of duty or when an act purports to
be done in execution of duty. The test appears to be not that

13 AIR 1956 SC 44
14 (1973) 2 SCC 701
14

the offence is capable of being committed only by a public
servant and not by anyone else, but that it is committed by a
public servant in an act done or purporting to be done in the
execution of duty. The section cannot be confined to only such
acts as are done by a public servant directly in pursuance of
his public office, though in excess of the duty or under a
mistaken belief as to the existence of such duty. Nor need the
act constituting the offence be so inseparably connected with
the official duty as to form part and parcel of the same
transaction. What is necessary is that the offence must be in
respect of an act done or purported to be done in the
discharge of an official duty. It does not apply to acts done
purely in a private capacity by a public servant. Expressions
such as the ‘capacity in which the act is performed’, ‘cloak of
office’ and ‘professed exercise of the office’ may not always be
appropriate to describe or delimit the scope of section. An act
merely because it was done negligently does not cease to be
one done or purporting to be done in execution of a duty…”

34. In Amrik Singh v. State of Pepsu 15 this Court referred to

the judgments of the Federal Court in Dr. Hori Ram Singh v.

Emperor16; H.H.B. Gill v. Emperor17 and the judgment of the

Privy Council in H.H.B. Gill v. R18 and held:

“…The result of the authorities may thus be summed up: It is
not every offence committed by a public servant that requires
sanction for prosecution under
Section 197(1) of the Code of
Criminal Procedure; nor even every act done by him while he
is actually engaged in the performance of his official duties;

but if the act complained of is directly concerned with his
official duties so that, if questioned, it could be claimed to
have been done by virtue of the office, then sanction would be
necessary; and that would be so, irrespective of whether it
was, in fact, a proper discharge of his duties, because that
would really be a matter of defence on the merits, which
would have to be investigated at the trial, and could not arise
at the stage of the grant of sanction, which must precede the
institution of the prosecution…”

15 AIR 1955 SC 309
16 AIR 1939 FC 43
17 AIR 1947 FC 9
18 AIR 1948 PC 128
15

35. Section 197 of the Code of Criminal Procedure 1898,

hereinafter referred to as the old Criminal Procedure Code, which fell

for consideration in Matajog Dobey (supra), Pukhraj (supra) and

Amrik Singh (supra) is in pari materia with Section 197 of the Code

of Criminal Procedure 1973. The Code of Criminal Procedure, 1973

has repealed and replaced the old Code of Criminal Procedure.

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

“7. The protection given under Section 197 is to protect
responsible public servants against the institution of
possibly vexatious criminal proceedings for offences
alleged to have been committed by them while they are
acting or purporting to act as public servants. The policy of
the legislature is to afford adequate protection to public
servants to ensure that they are not prosecuted for
anything done by them in the discharge of their official
duties without reasonable cause, and if sanction is granted,
to confer on the Government, if they choose to exercise it,
complete control of the prosecution. This protection has
certain limits and is available only when the alleged act
done by the public servant is reasonably connected with
the discharge of his official duty and is not merely a cloak
for doing the objectionable act. If in doing his official duty,
he acted in excess of his duty, but there is a reasonable
connection between the act and the performance of the
official duty, the excess will not be a sufficient ground to
deprive the public servant of the protection. The question is
not as to the nature of the offence such as whether the
alleged offence contained an element necessarily
dependent upon the offender being a public servant, but
whether it was committed by a public servant acting or
purporting to act as such in the discharge of his official
capacity. Before
Section 197 can be invoked, it must be
shown that the official concerned was accused of an
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
duties. It is not the duty which requires examination so
much as the act, because the official act can be performed
both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and
range of the official duties of the public servant concerned.
It is the quality of the act which is important and the
protection of this section is available if the act falls within
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the scope and range of his official duty.”(emphasis
supplied)

37. In State of Orissa v. Ganesh Chandra Jew (supra) this

Court interpreted the use of the expression “ official duty” to imply

that the act or omission must have been done by the public servant

in course of his service and that it should have been in discharge of

his duty. Section 197 of the Code of Criminal Procedure does not

extend its protective cover to every act or omission done by a public

servant while in service. The scope of operation of the Section is

restricted to only those acts or omissions which are done by a public

servant in discharge of official duty.

38. In Shreekantiah Ramayya Munipalli v. State of

Bombay19 this Court explained the scope and object of Section 197

of the old Criminal Procedure Code, which as stated hereinabove, is in

pari materia with Section 197 of the Code of Criminal Procedure. This

Court held:

“18. Now it is obvious that if Section 197 of the Code of
Criminal Procedure is construed too narrowly it can never
be applied, for of course it is no part of an official’s duty
to commit an offence and never can be. But it is not the
duty we have to examine so much as the act, because an
official act can be performed in the discharge of official
duty as well as in dereliction of it. The section has
content and its language must be given meaning. What it
says is—
‘When any public servant … is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty….’
We have therefore first to concentrate on the word ‘offence’.

19 AIR 1955 SC 287
17

19. Now an offence seldom consists of a single act. It is
usually composed of several elements and, as a rule, a
whole series of acts must be proved before it can be
established. In the present case, the elements alleged
against the second accused are, first, that there was an
‘entrustment’ and/or ‘dominion’; second, that the
entrustment and/or dominion was ‘in his capacity as a
public servant’; third, that there was a ‘disposal’; and
fourth, that the disposal was ‘dishonest’. Now it is
evident that the entrustment and/or dominion here were
in an official capacity, and it is equally evident that there
could in this case be no disposal, lawful or otherwise,
save by an act done or purporting to be done in an
official capacity. Therefore, the act complained of,
namely, the disposal, could not have been done in any
other way. If it was innocent, it was an official act; if
dishonest, it was the dishonest doing of an official act,
but in either event the act was official because the
second accused could not dispose of the goods save by
the doing of an official act, namely, officially permitting
their disposal; and that he did. He actually permitted
their release and purported to do it in an official capacity,
and apart from the fact that he did not pretend to act
privately, there was no other way in which he could have
done it. Therefore, whatever the intention or motive
behind the act may have been, the physical part of it
remained unaltered, so if it was official in the one case it
was equally official in the other, and the only difference
would lie in the intention with which it was done: in the
one event, it would be done in the discharge of an official
duty and in the other, in the purported discharge of it.”

39. The scope of Section 197 of the old Code of Criminal

Procedure, was also considered In P. Arulswami vs. State of

Madras20 where this Court held:

“…It is the quality of the act that is important and if it falls
within the scope and range of his official duties the protection
contemplated by
Section 197 of the Criminal Procedure Code
will be attracted.”
If the act is totally unconnected with the official duty, there
can be no protection. It is only when it is either within the
scope of the official duty or in excess of it that the
protection is claimable….”

20 AIR 1967 SC 776
18

40. In B. Saha and Others v. M.S. Kochar21 this Court held:

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

41. In Virupaxappa Veerappa Kadampur v. State of Mysore

(supra) cited by Mr. Poovayya, a three Judge Bench of this Court had,

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 “acts done under the cloak of

duty, even though not by virtue of the duty”.

42. In Virupaxappa Veerappa Kadampur (supra) this Court

referred to the meaning of the words “colour of office” in Wharton’s

Law Lexicon, 14th Ed. Which is as follows:

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

43. This Court also referred to the meaning of “colour of office in

Stroud’s Judicial Dictionary, 3rd Edition, set out hereinbelow:

Colour: “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 a dissembling face of the right of the office, whereas
the office is but a veil to the falsehood, and the thing is
grounded upon Vice, and the Office is as a shadow to it. But
‘by reason of the office’ and ‘by virtue of the office are taken
always in the best part.”

21 (1979) 4 SCC 177
19

44. After referring to the Law Lexicons referred to above, this

Court held:

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

45. In Om Prakash and others vs. State of Jharkhand and

Anr. (supra) this Court, after referring to various decisions,

pertaining to the police excess, explained the scope of protection

under Section 197 of the Code of Criminal Procedure as follows:

“32. The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether the
act complained of was directly connected with his official duties
or it was done in the discharge of his official duties or it was so
integrally connected with or attached to his office as to be
inseparable from it (K. Satwant Singh [AIR 1960 SC 266]). The
protection given under
Section 197 of the Code has certain limits
and is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his official
duty and is not merely a cloak for doing the objectionable act. If
in doing his official duty, he acted in excess of his duty, but there
is a reasonable connection between the act and the performance
of the official duty, the excess will not be a sufficient ground to
deprive the public servant of the protection (Ganesh Chandra Jew
[(2004) 8 SCC 40]). If the above tests are applied to the facts of
the present case, the police must get protection given under
Section 197 of the Code because the acts complained of are so
integrally connected with or attached to their office as to be
inseparable from it. It is not possible for us to come to a
conclusion that the protection granted under
Section 197 of the
Code is used by the police personnel in this case as a cloak for
killing the deceased in cold blood.”(emphasis supplied)
20

46. In Sankaran Moitra v. Sadhna Das and Another 22 the

majority referred to H.H.B Gill v. R23, H.H.B Gill v. Emperor24;

Shreekantiah Ramayya Munippali v. State of Bombay 25; Amrik

Singh v. State of Pepsu26; Matajog Dobey v. H.C. Bhari27;

Pukhraj v. State of Rajasthan 28; B. Saha and Others v. M.S.

Kochar29; Bakhshish Singh Brar v. Gurmej Kaur 30; Rizwan

Ahmed Javed Shaikh and Others v. Jammal Patel and Others 31

and held :

“25. The High Court has stated that killing of a person by use
of excessive force could never be performance of duty. It may
be correct so far as it goes. But the question is whether that
act was done in the performance of duty or in purported
performance of duty. If it was done in performance of duty or
purported performance of duty,
Section 197(1) of the Code
cannot be bypassed by reasoning that killing a man could
never be done in an official capacity and consequently
Section
197(1) of the Code could not be attracted. Such a reasoning
would be against the ratio of the decisions of this Court
referred to earlier. The other reason given by the High Court
that if the High Court were to interfere on the ground of want
of sanction, people will lose faith in the judicial process, cannot
also be a ground to dispense with a statutory requirement or
protection. Public trust in the institution can be maintained by
entertaining causes coming within its jurisdiction, by
performing the duties entrusted to it diligently, in accordance
with law and the established procedure and without delay.
Dispensing with of jurisdictional or statutory requirements
which may ultimately affect the adjudication itself, will itself
result in people losing faith in the system. So, the reason in

22. (2006) 4 SCC 584

23. AIR 1948 PC 128,

24. AIR 1947 FC 9

25. AIR 1955 SC 287

26. AIR 1955 SC 309

27. AIR 1956 SC 44

28. (1973) 2 SCC 701

29. (1979) 4 SCC 177

30. (1987) 4 SCC 663

31. (2001) 5 SCC 7
21

that behalf given by the High Court cannot be sufficient to
enable it to get over the jurisdictional requirement of a
sanction under
Section 197(1) of the Code of Criminal
Procedure. We are therefore satisfied that the High Court was
in error in holding that sanction under
Section 197(1) was not
needed in this case. We hold that such sanction was necessary
and for want of sanction the prosecution must be quashed at
this stage. It is not for us now to answer the submission of
learned counsel for the complainant that this is 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, we are bound by the majority view. Further more even the

dissenting view of C.K. Thakkar, J was in the context of an extreme

case of causing death 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)

and held:-

“17. The indispensable ingredient of the said offence is that
the offender should have done the act “being a public
servant”. The next ingredient close to its heels is that such
public servant has acted in disobedience of any legal direction
concerning the way in which he should have conducted as
such public servant. For the offences under
Section 167 and
219 IPC the pivotal ingredient is the same as for the offence
under
Section 166 IPC. The remaining offences alleged in the
complaint, in the light of the averments made therein, are
ancillary offences to the above and all the offences are parts of
the same transaction. They could not have been committed
without there being at least the colour of the office or authority
which the appellants held.”

49. Mr. Poovayya argued that the complaint filed by the

respondent against the accused appellant was in gross abuse of

process, frivolous and malafide. Controverting the allegation of the

32. (2000) 6 SCC 195
22

respondent in his complaint, of police excesses while the respondent

was in police custody between 27 th February, 2013 and 14th March,

2013 in connection with Crime No12/2012, Mr. Poovayya referred to

the order of the learned Chief Metropolitan Magistrate dated 28 th

February, 2013 in the said crime case, observing that the respondent

had not complained of any ill-treatment by the police.

50. Mr. Poovayya submitted that the learned Chief Metropolitan

Magistrate had, in any case, passed an order for medical examination

of the respondent in view of his complaint of ill-treatment, but the

medical reports, upon such examination, showed that there was no

injury on the respondent. Mr. Poovayya argued that the accused

appellant had been arrayed as accused vindictively, out of

vengeance, since the accused appellant had, in his capacity as

Deputy Commissioner of Police (Central Crime Branch), submitted an

affidavit in the Habeas Corpus Petition filed by the respondent’s

father in the Karnataka High Court. The said affidavit led to the

dismissal of the Habeas Corpus Petition.

51. Citing the judgment of this Court in State of Haryana and

Others v. Bhajan Lal and Others 33, Mr. Poovayya argued that

where a criminal proceeding is manifestly prompted by malafides and

instituted with the ulterior motive of vengeance due to private or

personal grudge, power under Section 482 of the Criminal Procedure

Code ought to be exercised to prevent abuse of the process of Court

and/or to secure the ends of justice.

33. 1992 Suppl. (1) SC 335
23

52. In State of Orissa vs. Ganesh Chandra Jew (supra) cited

by Mr. Poovayya, this Court had, in similar circumstances, referred to

and followed Bhajan Lal (supra) and held:

“..the factual scenario as indicated above goes to show that on
28-2-1991 the respondent was produced before the
Magistrate. He was specifically asked as to whether there was
any ill-treatment. Learned SDJM specifically records that no
complaint of any ill-treatment was made. This itself strikes at
the credibility of the complaint.. though there are several other
aspects highlighted in the version indicated in the complaint
and the materials on record are there, we do not think it
necessary to go into them because of the inherent
improbabilities of the complainant’s case and the patent male
fides involved”

53. In K.K. Patel and Anr. vs. State of Gujarat and Anr. this

Court held:

“11. That apart, the view of the learned Single Judge of the
High Court that no revision was maintainable on account of the
bar contained in
Section 397(2) of the Code, is clearly
erroneous. It is now well-nigh settled that in deciding whether
an order challenged is interlocutory or not as for
Section
397(2) of the Code, the sole test is not whether such order was
passed during the interim stage (vide
Amar Nath v. State of
Haryana (1977) 4 SCC 137,
Madhu Limaye v. State of
Maharashtra (1977) 4 SCC 551,
V.C. Shukla v. State through
CBI 1980 Supp SCC 92 and
Rajendra Kumar Sitaram Pande v.
Uttam (1999) 3 SCC 134). The feasible test is whether by
upholding the objections raised by a party, it would result in
culminating the proceedings, if so any order passed on such
objections would not be merely interlocutory in nature as
envisaged in
Section 397(2) of the Code. In the present case, if
the objection raised by the appellants were upheld by the
Court the entire prosecution proceedings would have been
terminated. Hence, as per the said standard, the order was
revisable.

12. Therefore, the High Court went wrong in holding that the
order impugned before the Sessions Court was not revisable in
24

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

the alleged offence which was of police excess in connection with

investigation of the criminal case, without sanction from the State

Government under Section 197 of the Code of Criminal Procedure and

whether the High Court should have quashed the proceedings on that

ground alone.

55. This Court held that the whole allegation of police excess in

connection with the investigation of the criminal case, was

reasonably connected with the performance of the official duty of the

appellant. The learned Magistrate could not have, therefore, taken

cognizance of the case, without previous sanction of the State

Government. This Court found that the High Court had missed this

crucial point in passing the impugned order, dismissing the

application of the concerned policeman under Section 482 of the

Code of Criminal Procedure.

56. In Ganesh Chandra Jew (supra), the Magistrate had, as in

this case, specially recorded that there was no complaint of any ill-

treatment. This Court was of the view that continuance of the

proceeding would amount to the abuse of the process of law.

Accordingly, this Court set aside the judgment of the High Court

whereby the High Court refused to exercise its power under Section
25

482 of the Criminal Procedure Code to quash an order of sub-

Divisional Judicial Magistrate, in a complaint against police officials,

without sanction under Section 197 of the Criminal Procedure code.

57. Devinder Singh Ors. v. State of Punjab through CBI

(supra) cited by Mr. Luthra is clearly distinguishable as that was a

case of killing by the police in fake encounter. Satyavir Singh

Rathi, Assistant Commissioner of Police Ors. v. State Thr.

CBI (supra) also pertains to a fake encounter, where the deceased

was mistakenly identified as a hardcore criminal and shot down

without provocation. The version of the police, that the police had

been attacked first and had retaliated, was found to be false. In the

light of these facts, that this Court held that it could not, by any

stretch of imagination, be claimed by anybody that a case of murder

could be within the expression “colour of duty”. This Court dismissed

the appeals of the concerned policemen against conviction, inter

alia, under section 302 of Indian Penal Code, which had duly been

confirmed by the High Court. The judgment is clearly distinguishable.

58. The Judgment of this Court in State of Andhra Pradesh v.

N. Venugopal (supra) is distinguishable in that the policemen

concerned, being the Sub Inspector, Head Constable and a Constable

attached to a police station had without warrant illegally detained

the complainant for interrogation under Section 161 of the Criminal

Procedure Code in connection with a private complaint of house

break and theft, assaulted him along with the private complainant to

extract statements and left him in an injured condition.
26

59. In the context of aforesaid, this Court held that an act is not

“under” a provision of law merely because the point of time at which

it is done coincides with the point of time when some act in the

exercise of the powers granted by the provision or in performance of

the duty imposed by it. To be able to say that an act is done “‘under”

a provision of law, one must discover the existence of a reasonable

relationship between the provisions and the act. In the absence of

such a relation, the act cannot be said to be done under the

particular provision of law. It cannot be said that beating a person

suspected of a crime or confining him or sending him away in an

injured condition, at a time when the police were engaged in

investigation, were acts done or intended to be done under the

provisions of the Madras District Police Act or the Criminal Procedure

Code or any other law conferring powers on the police. It could not

be said that the provisions of Section 161 of the Criminal Procedure

Code authorised the police officer examining a person to beat him or

to confine him for the purpose of inducing him to make a particular

statement.

60. In Bhanuprasad Hariprasad Dave v. State of Gujarat

(supra) the Head Constable concerned was accused of preparing a

false report with the dishonest intention of saving a person from

whom ganja had been seized, after obtaining illegal gratification. The

Court held that demand and/or acceptance of illegal gratification

could not be said to be an act done under colour of duty.

Significantly, the concerned policemen had been tried and convicted
27

and their conviction was affirmed by the High Court. The concerned

Head Constable was seeking bail in this Court.

61. The Judgment in State of Maharashtra v. Atma Ram

(supra), was rendered in an appeal from a judgment and order of the

High Court, whereby the High Court had reversed the conviction of

the concerned policemen under Sections 330, 342, 343 and 348 of

the Indian Penal Code, holding the prosecution to be barred under

Section 161(1) of the Bombay Police Act. Allowing the appeal of the

State, this Court held that Section 64(b) which confers duty on every

police officer to obtain intelligence concerning the commission of

cognizable offences or designs to commit such offences and to take

such other steps to bring offenders to justice or to prevent the

commission of cognizable and non cognizable offences, did not

authorise any police officer to beat persons in the course of

examination for the purpose of inducing them to make any particular

statement or to detain such persons. The acts complained were

factually found not to have been done under colour of any duty or

authority. The Order of the High Court acquitting the concerned

policemen was thus, set aside.

62. In Bakhshish Singh Brar v. Gurmej Kaur (supra), the

question raised before this Court was, whether while carrying out

investigation in performance of duty as a policeman, it was

necessary for the concerned policeman to conduct investigation in

such a manner as would result in injury and death. This Court held

that trial of a police officer accused of causing grievous injury and
28

death in conducting raid and search, need not to be stayed for want

of sanction for prosecution of the police officer, at the preliminary

stage, observing that criminal trial should not be stayed at the

preliminary stage in every case, as it might cause damage to the

evidence. The Court observed that if necessary the question of

sanction might be agitated at a 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 Constitution Bench
of this Court was considering what is the scope and meaning
of a somewhat similar expression “any offence alleged to have
been committed by him while acting or purporting to act in the
discharge of his official duty” occurring in
Section 197 of the
Criminal Procedure Code (5 of 1898). The Constitution Bench
observed that no question of sanction can arise under
Section
197 unless the act complained of is an offence; the only point
to determine is whether it was committed in the discharge of
official duty. On the question as to which act falls within the
ambit of abovequoted expression, the Constitution Bench
concluded that there must be a reasonable connection
between the act and the discharge of official duty; the act
must bear such relation to the duty that the accused could lay
a reasonable, but not a pretended or fanciful claim that he did
it in the course of performance of his duty. While dealing with
the question whether the need for sanction has to be
considered as soon as the complaint is lodged and on the
allegations contained therein, the Constitution Bench referred
to Hori Ram Singh (AIR 1939 FC 43) and observed that at first
sight, it seems as though there is some support for this view in
Hori Ram Singh (AIR 1939 FC 43) because Sulaiman, J. has
observed in the said judgment that as the prohibition is
against the institution itself, its applicability must be judged in
the first instance at the earliest stage of institution and
Varadachariar, J. has also stated that: (Matajog Dobey case
(AIR 1956 SC44), AIR p. 49, para 20)
“20. … the question must be determined with reference to
the nature of the allegations made against the public
servant in the criminal proceedings.”
………..

The legal position is thus settled by the Constitution Bench
in the above paragraph. Whether sanction is necessary or
29

not may have to be determined from stage to stage. If, at
the outset, the defence establishes that the act purported to
be done is in execution of official duty, the complaint will
have to be dismissed on that ground.

………

42. It is not the duty of the police officers to kill the accused
merely because he is a dreaded criminal. Undoubtedly, the
police have to arrest the accused and put them up for trial.
This Court has repeatedly admonished trigger-happy police
personnel, who liquidate criminals and project the incident as
an encounter. Such killings must be deprecated. They are not
recognised as legal by our criminal justice administration
system. They amount to State-sponsored terrorism. But, one
cannot be oblivious of the fact that there are cases where the
police, who are performing their duty, are attacked and killed.
There is a rise in such incidents and judicial notice must be
taken of this fact. In such circumstances, while the police have
to do their legal duty of arresting the criminals, they have also
to protect themselves. The requirement of sanction to
prosecute affords protection to the policemen, who are
sometimes required to take drastic action against criminals to
protect life and property of the people and to protect
themselves against attack. Unless unimpeachable evidence is
on record to establish that their action is indefensible, mala
fide and vindictive, they cannot be subjected to prosecution.
Sanction must be a precondition to their prosecution. It affords
necessary protection to such police personnel. The plea
regarding sanction can be raised at the inception.

43. In our considered opinion, in view of the facts which we
have discussed hereinabove, no inference can be drawn in this
case that the police action is indefensible or vindictive or that
the police were not acting in discharge of their official duty. In
Zandu Pharmaceutical Works Ltd. [(2005) 1 SCC 122] this
Court has held that the power under
Section 482 of the Code
should be used sparingly and with circumspection to prevent
abuse of process of court but not to stifle legitimate
prosecution. There can be no two opinions on this, but, if it
appears to the trained judicial mind that continuation of a
prosecution would lead to abuse of process of court, the power
under
Section 482 of the Code must be exercised and
proceedings must be quashed. Indeed, the instant case is one
of such cases where the proceedings initiated against the
police personnel need to be quashed.”

64. In Pukhraj v. State of Rajasthan (supra) the accused Post

Master General, Rajasthan had allegedly kicked and abused a union
30

leader who had come to him when he was on tour, to submit a

representation. This Court held that Section 197 of the 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. This Court however left it open to the

accused public servant to place materials on record during the trial

to show that the acts complained of were so interrelated with his

official duty as to attract the protection of Section 197 of the Criminal

Procedure Code.

65. In Rizwan Ahmed Javed Shaikh and others v. Jammal

Patel and Others34, this Court held that where the gravamen of the

charge was failure on the part of the accused policemen to produce

the complainants, who were in their custody, before the Judicial

Magistrate, the offence alleged was in their official capacity, though it

might have ceased to be legal at a given point of time, and the

accused police officers would be entitled to the benefit of Section

197(2) of the Criminal Procedure Code.

66. The Judgment in B. Saha v. M.S. Kochar (supra) was

rendered in the context of allegations against Customs Authorities of

misappropriation or conversion of goods. This Court held that while

the seizure of goods by the concerned custom officers was an act

committed in discharge of official duty, the subsequent acts of

misappropriation or conversion of the goods could not be said to be

viewed as under the colour of official duty. Accordingly this Court

34. (2001) 5 SCC 7
31

held that sanction for prosecution was not necessary.

67. The law relating to the requirement of sanction to entertain

and/or take cognizance of an offence, allegedly committed by a police

officer under Section 197 of the Code of Criminal Procedure read with

Section 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 a police officer, for

any act related to the discharge of an official duty, is imperative to

protect the police officer from facing harassive, retaliatory,

revengeful and frivolous proceedings. The requirement of sanction

from the government, to prosecute would give an upright police

officer the confidence to discharge his official duties efficiently,

without fear of vindictive retaliation by initiation of criminal action,

from which he would be protected under Section 197 of the Code of

Criminal Procedure, read with Section 170 of the Karnataka Police Act.

At the same time, if the policeman has committed a wrong, which

constitutes a criminal offence and renders him liable for prosecution,

he can be prosecuted with sanction from the appropriate

government.

69. Every offence committed by a police officer does not attract

Section 197 of the Code of Criminal Procedure read with Section 170

of the Karnataka Police Act. The protection given under Section 197

of the Criminal Procedure Code read with Section 170 of the

Karnataka Police Act has its limitations. The protection is available
32

only when the alleged act done by the public servant is reasonably

connected with the discharge of his official duty and official duty is

not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of

the police officer, would certainly not require sanction. To cite an

example, a police man assaulting a domestic help or indulging in

domestic violence would certainly not be entitled to protection.

However if an act is connected to the discharge of official duty of

investigation of a recorded criminal case, the act is certainly under

colour of duty, no matter how illegal the act may be.

71. If in doing an official duty a policeman has acted in excess of

duty, but there is a reasonable connection between the act and the

performance of the official duty, the fact that the act alleged is in

excess of duty will not be ground enough to deprive the policeman of

the protection of government sanction for initiation of criminal action

against him.

72. The language and tenor of Section 197 of the Code of Criminal

Procedure and Section 170 of the Karnataka Police Act makes it

absolutely clear that 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.

73. To decide whether sanction is necessary, the test is whether

the act is totally unconnected with official duty or whether there is a

reasonable connection with the official duty. In the case of an act of a
33

policeman or any other public servant unconnected with the official

duty there can be no question of sanction. However, if the act

alleged against a policeman is reasonably connected with discharge

of his official duty, it does not matter if the policeman has exceeded

the scope of his powers and/or acted beyond the four corners of law.

74. 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.

75. On the question of the stage at which the Trial Court has to

examine whether sanction has been obtained and if not whether the

criminal proceedings should be nipped in the bud, there are diverse

decisions of this Court.

76. While this Court has, in D.T. Virupakshappa (supra) held

that the High Court had erred in not setting aside an order of the Trial

Court taking cognizance of a complaint, in exercise of the power

under Section 482 of Criminal Procedure Code, in Matajog Dobey

(supra) this Court held it is not always necessary that the need for

sanction under Section 197 is to be considered as soon as the

complaint is lodged and on the allegations contained therein. The

complainant may not disclose that the act constituting the offence

was done or purported to be done in the discharge of official duty

and/or under colour of duty. However the facts subsequently coming
34

to light in course of the trial or upon police or judicial enquiry may

establish the necessity for sanction. Thus, whether sanction is

necessary or not may have to be determined at any stage of the

proceedings.

77. It is well settled that an application under Section 482 of the

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 the face of the complaint, the act alleged appears to

have a reasonable relationship with official duty, where the criminal

proceeding is apparently prompted by mala fides and instituted with

ulterior motive, power under Section 482 of the Criminal Procedure

Code would have to be exercised to quash the proceedings, to

prevent abuse of process of court.

78. There is also no reason to suppose that sanction will be

withheld in case of prosecution, where there is substance in a

complaint and in any case if, in such a case, sanction is refused, the

aggrieved complainant can take recourse to law. At the cost of

repetition it is reiterated that the records of the instant case clearly

reveal that the complainant alleged of police excesses while the

respondent was in custody, in the course of investigation in

connection with Crime No.12/2012. Patently the complaint pertains

to an act under colour of duty.

79. Significantly, the High Court has by its judgment and order

observed “it is well recognized principle of law that sanction is a

legal requirement which empowers the Court to take cognizance so
35

far as the public servant is concerned. If at all the sanction is

absolute requirement, if takes cognizance it becomes illegal therefore

an order too overcome any illegality the duty of the magistrate is

that even at any subsequent stages if the sanction is raised it is the

duty of the Magistrate to consider”.

80. In our considered opinion, the High Court clearly erred in law

in refusing to exercise its jurisdiction under Section 482 of the

Criminal Procedure Code to set aside the order of the Magistrate

impugned taking cognizance of the complaint, after having held that

it was a recognized principle of law that sanction was a legal

requirement which empowers the Court to take Cognizance. The

Court ought to have exercised its power to quash the complaint

instead of remitting the appellant to an application under Section 245

of the Criminal Procedure Code to seek discharge.

81. The appeal is allowed. The judgment and order under appeal

is set aside and the complaint is quashed for want of sanction.

……………………………J.

[ R. BANUMATHI ]

……………………………J.

[ INDIRA BANERJEE ]
JUNE 18, 2020
NEW DELHI.

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