Karnataka High Court
Dhanaraj. D. P vs Kalaiah on 10 July, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:30172
CRL.P No. 1777 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 1777 OF 2023
BETWEEN:
DHANARAJ. D. P.
S/O PUTTEGOWDA,
AGED ABOUT 42 YEARS,
SUB-INSPECTOR,
HALGUR P.S., HALGUR,
MALAVALLI TALUK
PRESENT WORKING IN
INTERNAL SECURITY DIVISION,
OLD COMMISSIONER OFFICE,
ANNEXURE BUILDING,
MIRZA ROAD,
NAZARBAD, MYSURU - 570 010.
...PETITIONER
(BY SRI. SREENIVASAN M.Y., ADVOCATE)
Digitally signed AND:
by NAGAVENI
Location: HIGH
COURT OF KALAIAH
KARNATAKA
S/O KARIYAIAH
AGED ABOUT 47 YEARS
R/AT MARGOWDANAHALLI VILLAGE
N.KODAHALLI POST
HALAGURU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571 430.
...RESPONDENT
(BY SRI. BASAVARAJU S.K., ADVOCATE-ABSENT)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
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NC: 2024:KHC:30172
CRL.P No. 1777 of 2023
C.C.NO.179/2016 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND J.M.F.C., MALAVALLI FOR THE OFFENCES
P/U/S.342, 504, 324, 323, 355, 506 R/W SEC.34 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.179 of 2016 before the Principal Civil Judge and JMFC, Malavalli for offences punishable under Sections 342, 504, 324, 323, 355, 506 r/w Section 34 of the IPC.
2. Heard Sri M.Y. Sreenivasan, learned counsel appearing for the petitioner. Learned counsel, Sri S.K. Basavaraju, appearing for the respondent is absent.
3. Facts, in brief, germane are as follows:-
A complaint comes to be registered against the petitioner and two others invoking Section 200 of the CrPC before the learned Magistrate in P.C.R.No.13 of 2012 for the offences as afore-quoted. The learned Magistrate takes cognizance of the -3- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 offence, registers C.C.No.179 of 2016 and issues summons to the petitioner and others. The petitioner appears before the Court and the proceedings go on. The subject petition is preferred on the score that the petitioner is a public servant and cognizance against the petitioner could not have been taken, without a sanction being placed for his prosecution before the concerned Court. Since it cuts at the root of the matter, the petition was entertained and further proceedings qua the public servant had been stalled.
4. The learned counsel for the petitioner would submit that though he has approached the Court with certain delay, the proceedings have not advanced further. Cognizance is taken on 14-01-2016 without a sanction for prosecution as obtaining under Section 197 of the CrPC. It is his submission that the allegations against the petitioner clearly relate to discharge of official function or has nexus to such discharge.
5. The learned counsel for the respondent has remained absent throughout. Several dates were granted awaiting appearance of the learned counsel for the respondent/ complainant. The matter was once heard and the order dictated. It was recalled for the reason that the counsel for the -4- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 respondent was not heard. Later the matter was posted twice but the counsel remained absent. Therefore, the learned counsel for the petitioner is heard and re-heard.
6. The issue that brings the petitioner to this Court is registration of criminal case. The ground projected in this case is want of sanction under Section 197 of the CrPC. The allegation is that on 10-10-2011 a crime comes to be registered about theft of cash and gold jewels from the house of one Lokesh. The petitioner being in-charge of the Police Station conducted inquiry of the respondent and other villagers. While conducting the inquiry, it is alleged, the petitioner has beaten the complainant with wood and iron sticks causing injuries on the body of the complainant. Based upon the said incident, the complaint comes to be registered. The concerned Court, on 14-01-2016, while taking cognizance of the offence, records the plea of the petitioner with regard to Section 197 of the CrPC. The said finding reads as follows:
"11. It is another important and relevant thing to consider the provision of Section 197 of CrPC as the accused are public servants. As it is a mandatory provision of law which safeguards the public servants from removing them from their office except by or with the sanction of the Government. It is a settled law that so far as public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of -5- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 CrPC. But, it is also well established law that all acts doe by public servant in the purported discharge of his official duties, cannot as a matter of course be brought under the protective umbrella of Section 197 of CrPC. On the other hand, there can be cases of misuse and/or abuse of power vested to a public servant which can never be said to be part of his official duties required to be performed by him. At the same time, it is also relevant to consider that to apply the bar of Section 197 of CrPC each case has to be considered in its own fact situations in order to arrive at a finding as whether the protection of Section 197 of CrPC could be given to the public servant or not. In view of this, the present case has to be considered on the basis of prima facie materials and as such, I am of the opinion that the applicability of Section 197 of CrPC is a question of fact and it can be raised and considered at any stage of the proceedings and in this regard, the accused is also not debarred from producing the relevant documents and materials for the adjudication of such a question of fact. By keeping in view of all these points, I am of the opinion that at this stage the court can take the cognizance of offences alleged in the complaint and issue process against the accused as required under Section 198 ad Section 200 of CrPC. Hence, I answer these two points in the affirmative."
The Court holds that abuse of power was writ large, as the allegation is that the complainant was beaten and Section 197 of the CrPC would not become applicable to the case at hand, as beating was not in the discharge of official duty. The order impugned runs foul of plethora of judgments of the Apex Court.
7. On identical facts where a Police officer was alleged of beating an accused, this Court also had taken the view that assault on the accused at the time of investigation would not come within the parameters of discharge of official duty. The -6- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 Apex Court upturns the said judgment in the case of D.DEVARAJA v. OWAIS SABEER HUSSAIN1 wherein it is held as follows:
"30. 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. Bhari [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 :
1956 Cri LJ 140] : (AIR p. 48, para 15) "15. ... 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."
31. In Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] this Court held: (SCC p. 703, para 2) "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 1 (2020)7 SCC 695 -7- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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 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."
32. In Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309 : 1955 Cri LJ 865] this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2: AIR 1939 FC 43]; H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9] and the judgment of the Privy Council in Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-48) 75 IA 41: AIR 1948 PC 128] and held:
(Amrik Singh case [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] , AIR p. 312, para 8) "8. 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 -8- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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."
33. 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 [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44: 1956 Cri LJ 140], Pukhraj [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] and Amrik Singh [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] 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.
34. In Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court held : (SCC pp. 46-47, para 7) "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 -9- NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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 the scope and range of his official duty."
(emphasis supplied)
35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40: 2004 SCC (Cri) 2104] 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.
36. In Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287 : 1955 Cri LJ 857] 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: (AIR pp. 292-93, paras 18-19)
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 "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. 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 Accused 2 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 Accused 2 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
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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."
37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where this Court held : (AIR p. 778, para 6) "6. ... 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...."
38. In B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court held : (SCC p. 185, para 18) "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."
39. In Virupaxappa Veerappa Kadampur v. State of Mysore [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] 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".
40. In Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 1963 SC 849 : (1963) 1 Cri LJ 814] this Court referred (at AIR p. 851, para 9) to the meaning of the words "colour of office" in Wharton's Law Lexicon, 14th Edn., 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."
41. This Court also referred (at AIR p. 852, para
9) to the meaning of "colour of office" in Stroud's Judicial Dictionary, 3rd Edn., 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."
42. After referring to the Law Lexicons referred to above, this Court held : (Virupaxappa Veerappa Kadampur case [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] , AIR p. 852, para
10) "10. It appears to us that the words "under colour of duty" have been used in Section 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"."
43. In Om Prakash v. State of Jharkhand [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 : (2013) 3 SCC (Cri) 472] this Court, after referring to various decisions, pertaining to the police excess, explained the
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 scope of protection under Section 197 of the Code of Criminal Procedure as follows : (SCC p. 89, para 32) "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 [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] ). 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 [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 :
2004 SCC (Cri) 2104] ). 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)
44. In Sankaran Moitra v. Sadhna Das [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584:
(2006) 2 SCC (Cri) 358] the majority referred to Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-48) 75 IA 41: AIR 1948 PC 128], H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9]; Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287: 1955 Cri LJ 857]; Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] ; Matajog Dobey v. H.C. Bhari [Matajog Dobey v. H.C. Bhari, AIR
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 1956 SC 44 : 1956 Cri LJ 140]; Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944]; B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177: 1979 SCC (Cri) 939]; Bakhshish Singh Brar v. Gurmej Kaur [Bakhshish Singh Brar v. Gurmej Kaur, (1987) 4 SCC 663 : 1988 SCC (Cri) 29]; Rizwan Ahmed Javed Shaikh v. Jammal Patel [Rizwan Ahmed Javed Shaikh v. Jammal Patel, (2001) 5 SCC 7] and held: (Sankaran Moitra case [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584: (2006) 2 SCC (Cri) 358] , SCC pp. 602-603, para 25) "25. The High Court has stated [Sankaran Moitra v. Sadhana Das, 2003 SCC OnLine Cal 309 :
(2003) 4 CHN 82] 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 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
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 this stage. It is not for us now to answer the submission of the learned counsel for the complainant that this is an eminently fit case for grant of such sanction."
45. The dissenting view of C.K. Thakker, J. in Sankaran Moitra [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 : (2006) 2 SCC (Cri) 358] supports the contention of Mr Luthra to some extent. However, we are bound by the majority view. Furthermore even the dissenting view of C.K. Thakker, J. was in the context of an extreme case of causing death by assaulting the complainant.
46. In K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] this Court referred to Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] and held :
(K.K. Patel case [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] , SCC p. 203, para 17) "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 Sections 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."
... ... .. ..
55. Devinder Singh v. State of Punjab [Devinder Singh v. State of Punjab, (2016) 12 SCC 87: (2016) 4 SCC (Cri) 15: (2017) 1 SCC (L&S) 346] cited by Mr Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi v. State [Satyavir Singh Rathi v. State, (2011) 6 SCC 1:
(2011) 2 SCC (Cri) 782] also pertains to a fake encounter,
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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 policemen concerned against conviction, inter alia, under Section 302 of the Penal Code, which had duly been confirmed [Satyavir Singh Rathi v. State, 2009 SCC OnLine Del 2973] by the High Court. The judgment is clearly distinguishable.
.... .... ....
61. In Om Prakash v. State of Jharkhand [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 :
(2013) 3 SCC (Cri) 472] this Court held : (SCC pp. 90-
91 & 95, paras 34 & 42-43) "34. In Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] 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 [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2 : 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 [Hori Ram
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 Singh v. Crown, 1939 SCC OnLine FC 2 : 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 [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] , 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 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
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 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. [Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 : 2005 SCC (Cri) 283] 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."
... ... ...
65. 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.
66. 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.
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67. 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 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. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman 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.
68. 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 the government sanction for initiation of criminal action against him.
69. 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.
70. 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 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
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NC: 2024:KHC:30172 CRL.P No. 1777 of 2023 policeman has exceeded the scope of his powers and/or acted beyond the four corners of law."
(Emphasis supplied) The facts obtaining in the subject case are identical to the facts that were obtaining before the Apex Court in the afore-
mentioned case. The Apex Court holds that sanction would cut at the root of the matter if it has nexus with the discharge of official duties. Nexus with discharge of official duties is, on the face of it, present in the case at hand. Therefore, for want of sanction further proceedings before the concerned Court cannot be permitted to be continued. However, it would not obliterate what has happened prior to taking of cognizance.
8. Therefore, it is open to the Investigating Officer or the complainant to obtain sanction from the hands of the Competent Authority to prosecute the petitioner. Till such time, further proceedings cannot continue and if no sanction is granted, the proceedings would stand obliterated.
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09. For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is allowed.
(ii) The order of taking cognizance in C.C. No. 179 of 2016 by the Principal Civil Judge and JMFC, Malavalli stands quashed qua the petitioner, with the observations in the course of the order.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP List No.: 1 Sl No.: 1