Telangana High Court
Sri. Lateef Mohammed Khan vs The State Of Telangana And 2 Others on 24 September, 2025
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
HIGH COURT FOR THE STATE OF TELANGANA
*****
CRIMINAL PETITION No.2761 of 2022
Between:
Lateef Mohammed Khan ...Petitioner
AND
The State of Telangana, Rep. by its Public Prosecutor, High Court,
Hyderabad and others
...Respondents
DATE OF ORDER: 24th September, 2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgment?
2 Whether the copies of judgment may
be marked to Law Yes/No
Reporters/Journals
3 Whether HER Lordship wish to see
the fair copy of the Judgment? Yes/No
___________________
JUVVADI SRIDEVI, J
2
* THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
+ Criminal Petition No.2761 of 2022
% Date: 24th September, 2025
Between:
Lateef Mohammed Khan ...Petitioner
AND
The State of Telangana, Rep. by its Public Prosecutor, High Court,
Hyderabad and others
...Respondents
! Counsel for the Petitioner: Sri Mohammed Ismail Khan
! Assistant Public Prosecutor for
the Respondent No.1-State: Smt.S.Madhavi
! Counsel for the Respondent Nos.2 & 3: Sri C. Pratap Reddy,
learned Senior Counsel
>HEAD NOTE:
? Cases referred
1. 1988 AIR 257 = 1988 SCR (1) 450
2. 2024 INSC 967
3. (2020) 7 Supreme Court Cases 695
3
THE HONOURABLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL PETITION No.2761 of 2022
O R D E R:
This Criminal Petition is filed by the petitioner-de facto complainant assailing the order dated 24.09.2021 passed in Criminal Revision Petition No.23 of 2019 by the learned Principal Sessions Judge, Medak at Sangareddy (for short "the Revisional Court"), whereby the order dated 30.09.2019 passed in Crl.M.P.No.733 of 2019 in Crime No.19 of 2008 by the learned Judicial Magistrate of First Class, Zaheerabad (for short "the Magistrate"), taking cognizance against respondent Nos.2 and 3, was set aside. The petitioner seeks quashing of the order of the Revisional Court and prays that accused Nos.1 and 2 be committed to trial for the offence punishable under Section 302 read with Section 34 IPC.
02. Heard Sri Mohammed Ismail Khan, learned counsel for the petitioner, Sri C. Pratap Reddy, learned Senior Counsel for respondent Nos.2 and 3, and Mrs. S. Madhavi, learned Assistant Public Prosecutor for the State. Perused the material record.
403. On the intervening night of 20/21.05.2003, while the respondent No.3 and other police personnel were on patrolling duty in Zaheerabad, they were informed that thieves had entered certain shops. On proceeding to the spot, two persons were seen fleeing.
On entry into Rose Confectionary and Kirana General Stores, an altercation occurred. It is alleged that one of the offenders the deceased Mohd. Shafi snatched hold of respondent No.3, stabbed him, snatched his rifle and pointed it at him. Respondent No.2 (a police officer) is said to have fired four rounds, resulting in the death of the deceased. Initially, the Crime No.71 of 2003 was registered and investigations were carried out. Postmortem report attributed death to multiple bullet injuries. A Magisterial Enquiry conducted by the Collector and District Magistrate, Medak vide report dated 30.09.2004 recorded that the firing by the respondent No.2 was in protection of life and justified and not excessive.
04. Subsequently, on a complaint/protest by an NGO and later on protest by the present petitioner, CB-CID took up investigation in Crime No.19 of 2008. The CB-CID final report recorded that the action was to be treated as 'action dropped' on the 5 ground that the firing was an act of private defence falling within the ambit of Section 97 of the Indian Penal Code. The petitioner filed a protest petition before the learned Magistrate, who on consideration of the protest petition took cognizance by order dated 30.09.2019 and directed issue of process. Thereafter, respondent Nos.2 and 3 filed Criminal Revision before the learned Sessions Judge, which was allowed by the Revisional Court by order dated 24.09.2021 setting aside the Magistrate's order. The petitioner has approached this Court challenging the Revisional Court's order.
05. Learned counsel for the petitioner contended that the CB-CID investigation was perfunctory and biased and there was sufficient material on record including statements recorded under Section 164 Cr.P.C. to warrant trial. The Magistrate was justified in taking cognizance on the protest petition and that the Revisional Court erred in setting aside the Magistrate's order. While praying to set aside the Order passed by the Revisional Court and to restore the cognizance order of the learned Magistrate, he relied upon a 6 decision in Bakhshish Singh Brar v. Smt. Gurmej Kaur and another 1 wherein it was held at penultimate paragraph that:
"It is necessary to protect the public servant in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind section 196 and section 197 of the Cr. P.C. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
06. Learned Assistant Public Prosecutor for the State-
respondent No.1 as well as learned Senior Counsel appearing on 1 1988 AIR 257 = 1988 SCR (1) 450 7 behalf of the respondent Nos.2 and 3 submitted that there is no illegality or irregularity in the order passed by the learned Revisional Court. The Magisterial Enquiry, post-mortem report and the CB-CID final report together show that the firing was in private defence and no prima facie case of murder is made out against the respondent Nos.2 and 3. The respondent Nos.2 and 3 are public servants performing official duty when the incident occurred and, in any event, there is a reasonable nexus with official duty, hence sanction under Section 197 Cr.P.C. would be required before prosecution.
The protest petition filed by the petitioner is not supported by material sufficient to require issuance of process. In the statements of the family members of the deceased recorded under Section 164 of the Code of Criminal Procedure, they did not raise any suspicion against the respondent Nos.2 and 3. With the above submissions, the learned Senior Counsel while praying to confirm the orders passed by the learned Revisional Court, relied upon a decision in Gurmeet Kaur v. Devender Gupta 2 wherein the Hon'ble Supreme Court held at Paragraph Nos.10, 23 and 32 that:
"10. It was therefore submitted that the sanction for prosecution within the scope and ambit of Section 2 2024 INSC 967 8 197 of the CrPC, which is a mandatory requirement, had to be taken from the State Government before the initiation of criminal proceedings even though the criminal proceedings in the instant case is under Section 200 of the CrPC by way of a private complaint. In this regard our attention was also drawn to Sections 20 and 21 of the Act to contend that no suit, prosecution and other legal proceedings would lie against any person in respect of anything which has been done in good faith or intended to be done in pursuance of the Act or the rules made thereunder. Further, no Civil Court would have any jurisdiction to entertain or decide any question relating to matters under the Act or the rules made thereunder. It was submitted that the object and purpose of obtaining sanction under Section 197 of the CrPC is in order to protect the bona fide acts of officers and officials done during the discharge of their official duties and that the salutary intent of the said provision must be realised and hence, before initiation of any criminal proceeding, the condition precedent of obtaining a sanction is a mandatory requirement and hence, in the instant case the absence of any sanction order being issued by the State Government has vitiated the very initiation of the criminal complaint against the appellant herein. In support of this submission, reliance was placed on the following decisions of this Court: (1) D.T. Virupakshappa vs. C. Subhash, (2015) 12 SCC 231 ("D.T. Virupakshappa"); (2) Abdul Wahab Ansari vs. State of Bihar, (2000) 8 SCC 500 ("Abdul Wahab Ansari") (3) D. Devaraja vs. Owais Sabeer Hussain, (2020) 7 SCC 695 ("D. Devaraja") (4) Amod Kumar Kanth vs. Association 9 of Victim of Uphaar Tragedy and Anr., Crl. Appeal No.1359/2017 disposed of on 20.04.2023.
23. Learned senior counsel and learned counsel for the appellant have submitted the following judgments which indicate that Section 197(1) would apply prior to the initiation of a criminal proceeding under Section 197 of the CrPC. On the basis of the said judgments they have contended that it is during the discharge of her official duty that the demolition had taken place in the instant case and therefore, the necessity of an order of sanction being passed by the Government was a sine qua non prior to initiation of the criminal proceeding. The judgments relied upon by the learned senior counsel for the appellant herein could be adverted to at this stage.
a) In D.T. Virupakshappa vs. C. Subhash, (2015) 12 SCC 231 ("D.T. Virupakshappa"), the appellant therein was accused in a private complaint before the Civil Judge (Junior Division) and JMFC, on which the learned Magistrate took cognizance, registered Criminal Case No.74 of 2009 and issued summons to the appellant therein. The offences alleged were under Sections 323, 324, 326, 341, 120, 114, 506 read with Section 149 of the IPC. The appellant therein moved the High Court under Section 482 of the CrPC which was declined by the impugned order therein. The main contention of the appellant therein was that the learned Magistrate could not have taken cognizance of the alleged offences and issued process to the appellant without sanction from the State Government under Section 197 of CrPC, and on that sole ground, the High Court should have quashed the proceedings. It 10 was alleged that the appellant therein exceeded in exercising his power during investigation of a criminal case and assaulted the respondent therein in order to extract some information with regard to the death of a person, and in that connection, the respondent therein was detained in the police station for some time. Therefore, the allegation of the appellant therein had an essential connection with the discharge of the official duty and therefore, the previous sanction was necessary. The issue of "police excess" during investigation and requirement of sanction for prosecution in that regard, was also a subject matter in State of Orissa vs. Ganesh Chandra Jew, (2004) 8 SCC 40 ("Ganesh Chandra Jew") which was relied upon. There was also reliance on Om Prakash vs. State of Jharkhand, (2012) 12 SCC 72 ("Om Prakash"). The Court held that the ratio of the aforesaid two judgments squarely apply to the case of the appellant therein and having regard to the factual matrix of that case, it was observed that the offensive conduct was reasonably connected with the performance of the official duty of the appellant therein. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government and the High Court had missed this crucial point in the impugned order. This Court observed that in case such sanction is obtained and the same is produced before the learned Magistrate, the matter could be proceeded further before the learned Magistrate in accordance with law.
b) In Abdul Wahab Ansari vs. State of Bihar, (2000) 8 SCC 500 ("Abdul Wahab Ansari"), the facts were 11 that the son of the deceased, who was respondent No.2 therein, had filed a complaint before the Chief Judicial Magistrate, alleging commission of offences by the appellant therein under Sections 302, 307, 380, 427, 504, 147, 148 and 149 of the IPC as well as Section 27 of the Arms Act. The Chief Judicial Magistrate was of the opinion that the provisions of Section 197 of the CrPC would have no application to the facts of the case. Further, there was sufficient evidence available to establish a prima facie case and therefore had directed issuance of non-bailable warrants against the appellant therein and other accused persons. The appellant therein moved the High Court under Section 482 of the CrPC praying, inter alia, that no cognizance could be taken without a sanction of the appropriate Government, as required under Section 197 of the CrPC as the appellant was discharging his official duty pursuant to an order of the competent authority. The High Court opined that all the questions could be raised at the time of framing of charge and disposed the application filed by the appellant therein. Before this Court, two questions were raised and it was observed that previous sanction of the competent authority being a precondition for the Court taking cognizance of the offences if the offences alleged had been committed by the accused was in discharge of his official duty, the question touched upon the jurisdiction of the Magistrate in the matter of taking cognizance and therefore, there was no requirement that an accused should wait for taking such plea till the charges were framed. Placing reliance on certain decisions of this Court, it was observed in this case that the appellant therein had 12 been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in the course of discharge of his duty to control the mob, he had directed for opening of fire, which was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate.
Hence, Section 197(1) of the CrPC applied to the facts of the case. Since no sanction had been taken, the cognizance by the Magistrate was bad in law and therefore, the same was quashed qua the appellant therein and the appeal was allowed.
c) In D. Devaraja vs. Owais Sabeer Hussain, (2020) 7 SCC 695 ("D. Devaraja"), the facts were that the High Court had disposed of the application under Section 482 of the CrPC which was filed for quashing the order passed by the Additional Chief Metropolitan Magistrate III, Bengaluru City in taking cognizance of a private complaint, inter alia, against the appellant-accused therein, for offences punishable under Sections 120-B, 220, 323, 330, 348 and 506-B read with Section 34 of the IPC. 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 appellant- accused therein to apply for discharge. The question considered by this Court was whether the learned Magistrate could, at all, have taken cognizance against the appellant therein, in the private complaint, in the absence of a sanction under Section 197 of the CrPC read with Section 170 of the Karnataka Police Act, 1963, as amended 13 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 appellant- accused therein to appear before him and file an application for discharge. Referring to several judgments of this Court, Indira Banerjee, J. speaking for the Bench observed in paragraph 66 to paragraph 71 as under:
"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.
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 14 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 15 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.
71. 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." It was concluded that the High Court had erred in law refusing to exercise its jurisdiction under Section 482 of the CrPC to set aside the impugned order of the learned Magistrate 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. This Court allowed the appeal and set aside the judgment and order under appeal and the complaint was quashed for want of sanction.
d) In Amod Kumar Kanth vs. Association of Victim of Uphaar Tragedy, Criminal Appeal No.1359 of 2017 disposed of by three-Judge Bench of this Court on 20.04.2023 of which one of us (Nagarathna, J.) was a member, it was observed that the question of cognizance being taken in the absence of sanction and thereby Section 197 of the CrPC being flouted is not to be conflated and thereby confused with the question as to whether an offence has been committed. The salutary purpose behind Section 197 of the CrPC is protection being 16 accorded to public servants. In paragraphs 28, 29 and 31, it was observed as under:
"(28) The State functions through its officers.
Functions of the State may be sovereign or not sovereign. But each of the functions performed by every public servant is intended to achieve public good. It may come with discretion. The exercise of the power cannot be divorced from the context in which and the time at which the power is exercised or if it is a case of an omission, when the omission takes place.
(29) The most important question which must be posed and answered by the Court when dealing with the argument that sanction is not forthcoming is whether the officer was acting in the exercise of his official duties. It goes further. Even an officer who acts in the purported exercise of his official power is given the protection under Section 197 of the Cr.P.C.
This is for good reason that the officer when he exercises the power can go about exercising the same fearlessly no doubt with bona fides as public functionaries can act only bona fide. In fact, the requirement of the action being bona fide is not expressly stated in Section 197 of the Cr.P.C., though it is found in many other statutes protecting public servants from action, civil and criminal against them.
x x x x (31) One ground which has found favour with the High Court against the appellant is that the appellant, according to the High Court, could raise the issue before the Magistrate. Here we may notice one aspect. When the question arises as to whether an act or omission which constitutes an 17 offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts and therefore, would have to be decided on a case-to-case basis." It was concluded that learned Magistrate had erred in the facts of the said case in taking cognizance against the appellant therein contrary to the mandate of Section 197 of the CrPC and on that short ground alone, the appeal was allowed and the proceedings challenged in Section 482 were quashed. However, it was observed that the same would not stand in the way of the competent authority taking a decision in the matter and/or granting sanction for prosecuting the appellant therein in accordance with law.
32. We find that the facts of the present case would clearly indicate that the appellant herein who is accused of carrying out the demolition was doing so within the scope and ambit of her authority. We find that this is not a case where the appellant herein carried out the demolition dehors any legal backing or basis; neither was the said act of carrying out of 18 the demolition outside the scope of her authority as the District Town Planner in the Enforcement Division. The appellant was carrying out the orders of the superior officers. There is a correlation between the act of demolition and the discharge of official duty. The demolition was carried out during the course of performance of appellant's official duties. The fact that an application was filed seeking regularisation of the construction put up by the first respondent would indicate that even according to the first respondent, there was a digression and other irregularities in the construction put up which required regularisation. However, the contention of learned counsel for the first respondent is that when such an application was pending, the appellant had no authority to demolish the construction. We do not think that such an argument would impress us for the reason that the mere pendency of the application seeking regularisation before another department would have been an impediment for carrying out the demolition inasmuch as there was sufficient basis for doing so and was done under the orders of the superior authority and not independently as such. The fact that an application for regularization of the construction put up was filed implied that there was a deficiency/irregularity in the construction put up by the respondent No.1 herein. The impugned demolition cannot also be termed as an "excess"."
1907. Further, he relied upon a decision in Devaraja v. Owais Sabeer Hussain 3 wherein the Hon'ble Supreme Court at Paragraph Nos.61 and 68 held that:
"61. 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 3 (2020) 7 Supreme Court Cases 695 20 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 SC 44), 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.
21There 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, malafide 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 22 the proceedings initiated against the police personnel need to be quashed."
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 government sanction for initiation of criminal action against him."
08. It is pertinent to note that when a Magistrate receives a protest petition against a police closure report, he is duty-bound to examine and consider the material placed before him. If, upon such consideration, the learned Magistrate finds sufficient material to proceed, he may take cognizance of the offence and issue process.
However, the exercise of such power cannot be mechanical or routine. Where the material before the learned Magistrate including the investigation report, magisterial enquiry, medical evidence, and statements recorded under Section 164 Cr.P.C. reasonably demonstrates that the acts attributed to the accused fall within the ambit of private defence or otherwise negate the commission of the alleged offence, or where the relevant sanction contemplated under law is absent, the Magistrate is not justified in issuing process merely on the basis of the protest petition. The order of the 23 Magistrate must be founded on prima facie material capable of sustaining the allegations.
09. In the present case, the Magisterial Enquiry Report dated 30.09.2004, conducted by the Collector and District Magistrate, records the conclusion of the Executive Magistrate that the firing by respondent No.2 was in protection of life, justified, and not excessive. The post-mortem report attributes the cause of death to multiple bullet injuries. It is significant to note that the Magisterial Enquiry constitutes an independent administrative inquiry which, together with the police investigation in Crime No.71 of 2003, the medical records, and the CB-CID investigation culminating in a closure report recording "action dropped," forms part of the primary material. Furthermore, although certain witnesses recorded their statements under Section 164 Cr.P.C., the cumulative effect of the material on record indicates that the deceased was in an aggressive posture, a struggle ensued, and the rifle of respondent No.3, a constable, was allegedly snatched and pointed at him. The Magisterial Enquiry thus concluded that the firing was an act in exercise of the right of private defence and not excessive, and the investigating agency (CB-CID), upon re-investigation, filed a final 24 report treating the incident as one not warranting criminal prosecution.
10. The Magistrate, before taking cognizance, is required to record reasons demonstrating that the material placed before her was such that a reasonable person could infer the existence of a prima facie case warranting trial. In the present case, the Magistrate appears to have relied only on the protest petition without considering the CB-CID final report, the Magisterial Enquiry, and other relevant materials available on record. The Revisional Court, however, upon consideration of the entire material, has rightly concluded that there was no substance in the protest petition to justify issuance of process.
11. The respondent Nos.2 and 3 are Police officers. Where criminal allegations arise out of acts done in discharge of official duty or in connection with the performance of official duty and there is a reasonable nexus between the act complained of and the official duty, the prosecution of a public servant requires prior sanction as contemplated by law. In the present case the material on record particularly the Magisterial Enquiry and the nature of the 25 incident which occurred while the police personnel were on patrolling duty and engaged in apprehension of offenders, shows such nexus. In those circumstances, the absence of required sanction under Section 197 of Cr.P.C. is a relevant circumstance against proceeding with criminal prosecution. Even the question of sanction to be considered ultimately by a trial court, the absence of such sanction is a factor which the learned Magistrate should have borne in mind when considering whether to take cognizance at the stage of a protest petition.
12. The contention of the petitioner that the firing of four rounds necessarily indicates use of excessive force is not borne out by the material on record. The Magisterial Enquiry specifically evaluated the sequence of events and concluded that the response was justifiable. It is well settled that whether the force used in self-
defence was excessive is a mixed question of fact and law, to be determined in the light of the totality of circumstances; such a question ordinarily warrants a full-fledged trial only where there exists credible material forming a reasonable basis to believe that the accused exceeded the limits of self-defence. In the present 26 case, the material on record does not disclose any such credible basis. In D. Devaraja's case referred above, the Hon'ble Supreme Court held that if in discharging an official duty a policeman has acted in excess of such duty, but there exists 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, by itself, deprive the policeman of the protection of prior sanction required for initiation of criminal proceedings. Therefore, sanction under Section 197 Cr.P.C. is mandatory, and in the absence of such sanction, the respondent Nos.2 and 3 cannot be subjected to criminal prosecution.
13. Learned Senior Counsel for the respondents has pointed out that the petitioner was, in large measure, a third party and not an eyewitness to the incident; the complaint appears to have been initiated in part following newspaper reports. Even assuming for a moment that the petitioner had locus to file a protest petition, the question of locus is not determinative where the material on record is plainly insufficient to form a prima facie case.
In short, the petitioner's protest petition does not supply the 27 independent material necessary to dislodge the conclusion recorded by the Magisterial Enquiry and the CB-CID final report.
14. Upon a careful perusal of the record, including the Magisterial Enquiry Report, the CB-CID final report, the post-
mortem report, and other material documents, it is evident that the cognizance taken by the learned Magistrate against respondent Nos.2 and 3 on the basis of the protest petition was unsustainable, inasmuch as there was no prior sanction as contemplated under law. Furthermore, there was no credible material on record to form a prima facie opinion that respondent Nos.2 and 3 had committed the offence of murder; on the contrary, the material strongly indicates that the incident occurred in circumstances of private defence while the police officers were discharging their official duties. The Revisional Court, having undertaken an appropriate review of the entire record, was therefore justified in setting aside the order of the learned Magistrate, as the said order suffered from procedural irregularity.
15. Having regard to the facts and circumstances of the case, and in light of the settled principles of law laid down by the 28 Hon'ble Supreme Court in the decisions referred to above, this Court is of the considered view that the learned Magistrate erred in taking cognizance against respondent Nos.2 and 3 in the absence of sanction as mandated under Section 197 Cr.P.C., and that the learned Revisional Court rightly set aside the said order.
Accordingly, this Court finds no grounds in the present Criminal Petition to interfere with the order passed by the learned Revisional Court.
16. Accordingly, this Criminal Petition is dismissed.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________ JUVVADI SRIDEVI, J Date: 24-SEP-2025 KHRM