D. DEVARAJA versus OWAIS SABEER HUSSAIN
[2020] 6 S.C.R. 453, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
453
D. DEVARAJA
v.
OWAIS SABEER HUSSAIN
(Criminal Appeal No. 458 of 2020)
JUNE 18, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973:
s.197 r/w s.170 of Karnataka Police Act, 1963 – Scope and
effect of – Held: Every offence committed by a police officer does
not attract s.197 r/w s.170 – The provisions in ss.197 Cr.P.C and
s.170 of the Act are attracted only when the acts (offence) are done
in discharge of official duty or the act done under the colour of, or
in excess of such duty or authority.
s.482 – Scope of – Held: An application u/s.482 is
maintainable to quash proceedings which are ex facie bad for want
of sanction u/s.197 Cr.P.C. or s.170 of Karnataka Police Act or are
frivolous or in abuse of process of law.
s.482 and s.197 r/w s.170 of Karnataka Police Act – Complaint
against police officer alleging police excesses while the complainant
was in police custody in the course of investigation in a case –
Application u/s.482 by police officer seeking quashing of the
proceedings – High Court remitted the complaint requiring the
accused to file an application for discharge u/s.245 Cr.P.C. – Appeal
to Supreme Court – Held: The complaint pertains to an act under
colour of duty – Sanction was a legal requirement– High Court
should have exercised its power to quash the complaint instead of
remitting it requiring the appellant to seek discharge.
Allowing the appeal, the Court
HELD: 1.1. The object of sanction for prosecution, whether
under Section 197 Cr. P.C. 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. [Para 32][466-F-G;
467-A]
[2020] 6 S.C.R. 453
453
A
B
C
D
E
F
G
H
454
SUPREME COURT REPORTS
[2020] 6 S.C.R.
1.2 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 Cr.P.C. read with Section 170 of the 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. [Para 68][482-F-H]
1.3 Every offence committed by a police officer does not
attract Section 197 Cr. P.C. read with Section 170 of the Act. The
protection given under Section 197 Cr.P.C. read with Section 170
of the 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. [Para 69]
[483-A-B]
1.4 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. 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. [Para 70, 71][483-C-D]
1.5 The language and tenor of Section 197 Cr. P.C. and
Section 170 of the Act makes it absolutely clear that sanction is
required not only for acts done in discharge of official duty, it is
A
B
C
D
E
F
G
H
455
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. [Para 72][483-E-F]
1.6 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 policeman has exceeded the scope of his powers and/or acted
beyond the four corners of law. [Para 73][483-F-G]
1.7 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 Cr.P.C. and/or Section 170 of the Act. Whether
sanction is necessary or not may have to be determined at any
stage of the proceedings. [Paras 74 & 76][483-H; 484-A, D]
Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 : [1955]
2 SCR 925 – followed.
Pukhraj v. State of Rajasthan and Another (1973) 2
SCC 701 : [1974] 1 SCR 559; Amrik Singh v. State of
Pepsu AIR 1955 SC 309 : [1955] 1 SCR 1302; State of
Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 :
[2004] 3 SCR 504; Shreekantiah Ramayya
Munipalli
v. State of Bombay AIR 1955 SC 287 : [1955] 1 SCR
1177; P. Arulswami v. State of Madras AIR 1967 SC
776 : [1967] 1 SCR 201; B. Saha and Others v. M.S.
Kochar (1979) 4 SCC 177 : [1980] 1 SCR 111;
Virupaxappa Veerappa Kadampur v. State of Mysore
AIR 1963 SC 849 : [1963] Suppl. SCR 6; Om Prakash
& Ors. v. State of Jharkhand & Anr. (2012) 12 SCC
72 : [2012] 9 SCR 125; Sankaran Moitra v. Sadhna
Das and Another (2006) 4 SCC 584 : [2006] 3 SCR
D. DEVARAJA v. OWAIS SABEER HUSSAIN
A
B
C
D
E
F
G
H
456
SUPREME COURT REPORTS
[2020] 6 S.C.R.
305; K.K. Patel and Another v. State of Gujarat and
Another (2000) 6 SCC 195 : [2000] 1 Suppl. SCR 312;
D.T. Virupakshappa v. C. Subash (2015) 12 SCC 231 :
[2015] 5 SCR 534; Rizwan Ahmed Javed Shaikh and
others v. Jammal Patel and Others (2001) 5 SCC 7 :
[2001] 3 SCR 766 – relied on.
Devinder Singh & Ors. v. State of Punjab through CBI
(2016) 12 SCC 87 : [2016] 6 SCR 295; Satyavir Singh
Rathi, Assistant Commissioner of Police & Ors. v. State
Thr. CBI (2011) 6 SCC 1 : [2011] 6 SCR 138; State of
Andhra Pradesh v. N. Venugopal and Others AIR 1964
SC 33 : [1964] 3 SCR 742 – distinguished.
Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43; H.H.B.
Gill v. Emperor AIR 1947 FC 9; H.H.B. Gill v. R AIR
1948 PC 128; Bhanuprasad Hariprasad Dave v. State
of Gujarat AIR 1968 SC 1323 : [1969] 1 SCR 22;
State of Maharashtra v. Atma Ram AIR 1966 SC 1786;
Bakhshish Singh Brar v. Gurmej Kaur & Anr. (1987) 4
SCC 663 : [1988] 1 SCR 450; Om Prakash & Ors. v.
State of Jharkhand & Anr. (2012) 12 SCC 72 : [2012]
9 SCR 125 – referred to.
2.1 An application under Section 482 Cr.P.C. 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 Cr.P.C.
would have to be
exercised to quash the proceedings, to prevent abuse of process
of court. [Para 77][484-E-F]
2.2 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. [Para 78][485-H]
2.3 The High Court clearly erred in law in refusing to
exercise its jurisdiction under Section 482 of the Criminal
A
B
C
D
E
F
G
H
457
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 Cr.P.C. to seek discharge. [Para 80][485-C-D]
State of Haryana and Ors. v. Bhajan Lal and others
(1992) Suppl. 1 SCC 335 : State of Orissa v. Ganesh
Chandra Jew (2004) 8 SCC 40 : [2004] 3 SCR 504 –
referred to.
Case law Reference
[1955] 2 SCR 925
followed
Para 32
[1974] 1 SCR 559
relied on
Para 33
[1955] 1 SCR 1302
relied on
Para 34
[2004] 3 SCR 504
relied on
Para 36
referred to
Para 52
[1955] 1 SCR 1177
relied on
Para 38
[1967] 1 SCR 201
relied on
Para 39
[1980] 1 SCR 111
relied on
Para 40
[1963] Suppl. SCR 6
relied on
Para 41
[2012] 9 SCR 125
relied on
Para 45
[2006] 3 SCR 305
relied on
Para 46
[2000] 1 Suppl. SCR 312
relied on
Para 48
[2015] 5 SCR 534
relied on
Para 54
[2016] 6 SCR 295
distinguished
Para 57
[2011] 6 SCR 138
distinguished
Para 57
[1964] 3 SCR 742
distinguished
Para 58
[1969] 1 SCR 22
referred to
Para 60
[1988] 1 SCR 450
referred to
Para 62
D. DEVARAJA v. OWAIS SABEER HUSSAIN
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2020] 6 S.C.R.
[2012] 9 SCR 125
referred to
Para 63
[2001] 3 SCR 766
relied on
Para 65
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
458 of 2020.
From the Judgment and Order dated 31.01.2018 of the High Court
of Karnataka at Bengaluru in CRLP No. 319 of 2017.
Sajjan Poovayya, Sidharth Luthra, Sr. Advs., Pratibhanu Singh,
Balaji Srinivasan, Ms. Pallavi Sengupta, Ms. Garima Jain, Ms. Lakshmi
Rao, Hussain Mueen Farooq, Smt. B. Sudha, Sahil Bhalaik, Tushar Giri,
Siddharth Gautam, A. Imran, Karan Sharma, Aroon Menon, Ms. Ankita
Tiwari, Advs. for the appearing parties.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. 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
inter alia against the accused appellant, for offences punishable under
Sections 120-B, 220, 323, 330 348, 506B read with Section 34of 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.
A
B
C
D
E
F
G
H
459
4. After the aforesaid order was passed, the Deputy Commissioner
of Police (Eastern Division) Bangalore City directed the Inspector of
Police, UlsoorPolice 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 3rd 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
family and found that the respondent was involved in the following cases.
Cases against Owais Sabeer Hussain/ Respondent 
Sl. 
No. 
Date 
Police Station 
FIR Number
Sections 
1
26.02.2013
HSR Layout, Bengaluru 110/2013
420, 465, 468 of IPC
2
03.05.2013
Subramanyanagar, 
Bangalore 
44/2013
420 of IPC
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. 
No. 
Date 
Police Station 
FIR 
Number 
Sections 
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, 
Bengaluru 
187/2011
506 of IPC
6
03.02.2012
High Grounds, 
Bengaluru 
57/2012
323, 324, 241, 353, 506(B) 
of IPC 
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2020] 6 S.C.R.
7
21.03.2012
Andersonpet,KGF
27/2012
107 of IPC
8
02.01.2013
Ashoknagar, Bangalore
52/2013
417, 419, 420, 465, 468, 
471, 120(B), r/w 34 of IPC
9
25.05.2012
High Grounds, 
Bengaluru 
135/2012
423, 404, 465, 468, 471, 
472, 474, 475, 476, 463, 
464 of IPC 
10
03.05.2013
Sanjaynagar, Bengaluru
75/2013
420, 468, 471, 506 r/w 34 
of IPC 
11
21.08.2011
High Grounds, 
Bengaluru 
153/2011
468, 471, 420, 506 of 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 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
A
B
C
D
E
F
G
H
461
learned 1st 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.
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
462
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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 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
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.
A
B
C
D
E
F
G
H
463
(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 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.
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
464
SUPREME COURT REPORTS
[2020] 6 S.C.R.
(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
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
A
B
C
D
E
F
G
H
465
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 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
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
466
SUPREME COURT REPORTS
[2020] 6 S.C.R.
482 of the Code of Criminal Procedure. The High Court rightly remanded
the complaint to the Trial Court.
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 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
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
A
B
C
D
E
F
G
H
467
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 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
13 AIR 1956 SC 44
14 (1973) 2 SCC 701
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
468
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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 Pepsu15 this Court referred to the
judgments of the Federal Court in Dr. Hori Ram Singh v. Emperor16;
H.H.B. Gill v. Emperor17 and thejudgment 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...”
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.
15 AIR 1955 SC 309
16 AIR 1939 FC 43
17 AIR 1947 FC 9
18 AIR 1948 PC 128
A
B
C
D
E
F
G
H
469
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
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
470
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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. 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
19 AIR 1955 SC 287
A
B
C
D
E
F
G
H
471
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….”
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
20 AIR 1967 SC 776
21 (1979) 4 SCC 177
A
B
C
D
E
F
G
H
472
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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.”
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:
A
B
C
D
E
F
G
H
473
“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)
46. In Sankaran Moitra v. Sadhna Das and Another22 the
majority
referred to H.H.B Gill v. R23, H.H.B Gill v. Emperor24;
Shreekantiah Ramayya Munippali v. State of Bombay25; Amrik
Singh v. State of Pepsu26; Matajog Dobey v. H.C. Bhari27; Pukhraj
v. State of Rajasthan28; B. Saha and Others v. M.S. Kochar29;
Bakhshish Singh Brar v. Gurmej Kaur30; Rizwan Ahmed Javed
Shaikh and Others v. Jammal Patel and Others31 and held :
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
474
SUPREME COURT REPORTS
[2020] 6 S.C.R.
“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 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:-
32 (2000) 6 SCC 195
A
B
C
D
E
F
G
H
475
“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 respondent in his
complaint, of police excesses while the respondent was in police custody
between 27th 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 28th 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 Others33, 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
33 1992 Suppl. (1) SC 335
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
476
SUPREME COURT REPORTS
[2020] 6 S.C.R.
exercised to prevent abuse of the process of Court and/or to secure the
ends of justice.
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.
A
B
C
D
E
F
G
H
477
12. Therefore, the High Court went wrong in holding that the
order impugned before the Sessions Court was not revisable
in 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 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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
478
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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.
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 and their conviction was affirmed
by the High Court. The concerned Head Constable was seeking bail in
this Court.
A
B
C
D
E
F
G
H
479
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 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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
480
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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 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
A
B
C
D
E
F
G
H
481
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
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
482
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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
Pateland 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 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.
34 (2001) 5 SCC 7
A
B
C
D
E
F
G
H
483
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 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
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
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]
A
B
C
D
E
F
G
H
484
SUPREME COURT REPORTS
[2020] 6 S.C.R.
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 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.
A
B
C
D
E
F
G
H
485
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
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.
Kalpana K. Tripathy
Appeal allowed.
D. DEVARAJA v. OWAIS SABEER HUSSAIN
[INDIRA BANERJEE, J.]