Indian Kanoon - Search engine for Indian Law

iv) It is argued that the reasoning assigned by the Special Court to differ with the view taken by the Investigating agency is perverse and is not based on the evidence collected by the Investigating agency and for all these reasons, the impugned order as well as the proceedings initiated against the petitioners deserve to be quashed.

v) Finally, placing reliance on the ratio laid down in D.DEVARAJA vs. OWAIS SABEER HUSSAIN, 2020 SCC Online SC 517, it is contended that in view of the allegations that the accused Nos.2 and 3 had acted in excess of duty, issuance of process to them without prior sanction under section 197 of the Code of Criminal Procedure, 1972 and/or Section 170 of the Karnataka Police Act is wholly illegal and without jurisdiction.

18. On the question of requirement of sanction, learned counsel referred to para 69 of the decision in D.DEVARAJA VS. OWAIS SABEER HUSSAIN, 2020 SCC ONLINE SC 517, which reads, "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.". Thus he prayed for dismissal of the petitions.

30. Added to that, in para 56, learned Special Judge has further observed "therefore, at this stage, there is no reason to believe that there is prima facie material forthcoming against the accused No.1 to 3 to show that they abetted the deceased to commit suicide, even though there was no immediate act committed by them for such abetment'.

31. Finally with regard to the requirement of sanction for the prosecution of accused Nos.2 and 3 under section 197 Cr.P.C and section 170 of Police Act and with regard to applicability of section 34 IPC are concerned, the learned Special Judge has observed that "in order to convict a person vicariously liable under sec. 34 or sec.149 of IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. In the case on hand, it is pertinent to note at this stage that even though the accused No.2 and 3 are not the higher officers of the deceased at the time of his interview to the media, the deceased made allegations against the accused No.1 to 3 together. The point as to whether there was any common intention or not in the accused No.1 to 3 in committing the alleged act of abetment to commit suicide is the matter to be considered while framing charge". With this reasoning, the learned Special Judge rejected the final report filed by the CBI and took cognisance of the alleged offence under section 306 r/w 34 IPC against all the three accused persons and issued summons.