Indira Banerjee, J.

Leave granted.

2. This appeal is against a judgment and order dated 31-1-2018 passed by the Karnataka High Court, disposing of the application of the appellant under Section 482 of the Code of Criminal Procedure for quashing an order dated 27-12-2016 passed by the Additional Chief Metropolitan Magistrate III, Bengaluru City in PCR No.17214 of 2013, taking cognizance of a private complaint being PCR No.17214 of 2013 Signature Not Verified Digitally signed by MAHABIR SINGH inter alia against the accused appellant, for offences punishable Date: 2020.06.18 17:41:15 IST Reason: under Sections 120-B, 220 , 323 , 330 348 , 506B read with Section 34 2 of the Indian Penal Code. The High Court did not quash the impugned order of the Additional Chief Metropolitan Magistrate dated 27.12.2006, but remitted the complaint back to the Learned Additional Chief Metropolitan Magistrate instead, with inter alia liberty to the accused appellant to apply for discharge.

3. The accused appellant is a police officer of the rank of Superintendent of Police. On or about 10-8-2012, when the accused appellant was posted as Deputy Commissioner of Police (Crime), Bangalore city, the Commissioner of Police, Bangalore passed an order transferring a case being Crime No.12/2012 registered at the Ulsoor Police Station, Bangalore, to the Central Crime Branch, Bangalore.

4. After the aforesaid order was passed, the Deputy Commissioner of Police (Eastern Division) Bangalore City directed the Inspector of Police, Ulsoor Police Station to transmit the entire case records relating to Crime No.12/2012 to the Crime Branch.

5. The accused appellant, who was posted as Deputy Commissioner of Police (Crime) received the case records and handed over investigation of the case to the Inspector of Police by a memo dated 2-1-2013. Thereafter, the Inspector of Police, being the 3 rd accused took up investigation under the guidance of the Assistant Commissioner of Police being the 2nd accused, with the assistance of the Sub-Inspector of Police being the accused No.4.

6. The accused appellant has stated that police officers of the Crime Department enquired into the history of the respondent and his 3 family and found that the respondent was involved in the following cases.

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

7. There were also other cases registered against the brothers of the respondent under various sections of the Indian Penal Code . According to the accused appellant, as per available information the respondent and the members of his family were involved in 13 cases, in all. Particulars of the other cases are given below:

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 5 learned Magistrate passed an order for medical examination of the respondent in view of allegations made by the respondent and/or his father, of ill-treatment of the respondent, by the Police. The respondent was taken to Jayadev Institute of Cardiology and later to Victoria hospital for check-up and treatment. The doctors gave a detailed report ruling out any abnormalities and injuries on the respondent, after perusal of which, the learned 1 st Additional Chief Metropolitan Magistrate, Bengaluru passed an order dated 4-3-2013, observing that there were no abnormalities and injuries found on the respondent.

12. On 6-3-2013 the accused appellant, as Deputy Commissioner of Police (CCB), Bangalore filed an affidavit in WP(HC) No.57 of 2013 in the Karnataka High Court at Bengaluru. An enquiry report was filed along with the said affidavit, stating that the Investigating Officer had apprehended the respondent, Sabir Hussain @ Uwaiz Hussain in relation to Crime No.12/2012 registered in Halasuru Police Station, for offence under Section 381 of IPC and produced him before the Court of the jurisdictional Magistrate in accordance with law.

13. By an order dated 8-03-2013, the Karnataka High Court dismissed the Habeas Corpus Petition being WP(HC) No.57 of 2013 filed by the respondent’s father, observing inter alia that eight criminal cases were pending against the respondent and that he had been produced before the jurisdictional Magistrate in accordance with law.

14. On 18-3-2013, Crime No.110 of 2013 HSR Layout Police Station was transferred to the Central Crime Branch. After the respondent was released from judicial custody, he filed the aforesaid private complaint being P.C.R. No.17214 of 2013 against the accused appellant and other police officials, in the Court of the learned IIIrd Additional Chief Metropolitan Magistrate at Bengaluru alleging ill- treatment and police excesses while the respondent was in police custody from 27-2-2013 to 4-3-2013.

15. By an order dated 27-12-2016, the IIIrd Additional Chief Metropolitan Magistrate, Bengaluru, was pleased to take cognizance against the appellant in P.C.R. No. 17214 of 2013, even though no previous sanction had been obtained from the Government. The accused appellant filed Criminal Petition No.319 of 2017 under Section 482 of the Code of Criminal Procedure in the Karnataka High Court at Bengaluru inter alia for quashing the order dated 27-12- 2016 in P.C.R. No.17214 of 2013.

16. By the impugned order dated 31-1-2018, the Karnataka High Court was pleased to hold that it was a well recognised principle of law, that sanction was a legal requirement, which empowered the Court to take cognizance of a private criminal complaint against a public servant. After recording its finding, as aforesaid, the High Court proceeded to observe that the Magistrate had tentatively opined that sanction was not necessary to proceed against the accused appellant, having regard to the documents produced by the complainant before him, and remanded the complaint back to the 7 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:-

20. Section 197 of the Code of Criminal Procedure 1973 is set out hereinbelow for convenience:

(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 10 28.02.2013, on which date he was remanded to police custody with the finding that there was no ill-treatment by the police. Even after the respondent’s father filed the Habeas Corpus Petition in the High Court, there was no finding of any ill-treatment by the High Court.

24. Mr. Poovayya argued that the allegation of police excesses in course of investigation, and police custody of the respondent, has a reasonable nexus with the duty of the appellant as a police officer. Even if the act was in dereliction of duty or in excess of duty, it was nevertheless in exercise of authority as a police officer, in connection with investigation of an alleged crime in which the respondent was alleged to be involved. The police officers were duty bound to investigate into an offence. The excesses alleged were in course of discharge of such official duty of investigating into an offence.

25. Mr. Poovayya emphatically argued that under Section 170 of the karnataka Police Act , no prosecution is to be entertained against a Police Officer, except with the previous sanction of the Government, in case of any wrong alleged to have been done by such officer, by any act in pursuance of any duty imposed or authority conferred on him by any provision of the Karnataka Police Act, 1963 , or any other law for the time being in force, or even any act done under colour of or in excess of any such duty or authority. The criminal complaint against the accused appellant should, therefore, have been quashed under Section 482 of the Criminal Procedure Code for want of sanction under Section 197 of the Code of Criminal Procedure 1973, read with Section 170 of the Karnataka Police Act, 1963. In support of 11 his argument, Mr. Poovayya cited the judgments of this Court in D.T. Virupakshappa v. C. Subash1 , Virupaxappa Veerappa Kadampur v. State of Mysore2 , Sankaran Moitra v. Sadhna Das and Another3 and K.K. Patel and Another v. State of Gujarat and Another4 . Mr. Poovayya also cited State of Orissa v. Ganesh Chandra Jew5 .

26. On the other hand, Mr. Sidharth Luthra, Senior Advocate appearing on behalf of the respondent argued that, whether sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which, in this case, was of physical torture and ill- treatment of the respondent. Ill-treatment and torture could never be in exercise of official duty, or even under the colour of official duty.

27. Mr. Luthra further argued that, in any case, whether sanction was necessary or not, would have to be determined in course of the trial, having regard to the materials brought on record by the respective parties. A complaint should not be nipped in the bud on the ground of want of sanction.

28. Mr. Luthra also submitted that, an order of a Magistrate, taking cognizance of a complaint was not amenable to challenge under Section 482 of the Code of Criminal Procedure. The High Court rightly remanded the complaint to the Trial Court. 1 (2015) 12 SCC 231 2 AIR 1963 SC 849 3 (2006) 4 SCC 584 4 (2000) 6 SCC 195 5 (2004) 8 SCC 40 12

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:

31. To effectively adjudicate the issues raised in this appeal, it is necessary to examine the scope and effect of Section 197 of the Criminal Procedure Code and/or Section 170 of the Karnataka Police

6. (2016) 12 SCC 87

7. AIR 1966 SC 1786

8. AIR 1968 SC 1323

9. AIR 1964 SC 33

10. (2011) 6 SCC 1

11. (1987) 4 SCC 663

12. (2012) 12 SCC 72 13 Act, 1963. It is necessary to examine whether want of sanction would vitiate criminal proceedings against a police officer, in all cases? If not, what are the circumstances in which sanction is necessary.

32. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari13 held:

Emperor16; H.H.B. Gill v. Emperor17 and the judgment of the Privy Council in H.H.B. Gill v. R18 and held:

Shreekantiah Ramayya Munippali v. State of Bombay 25; Amrik Singh v. State of Pepsu26 ; Matajog Dobey v. H.C. Bhari27 ; Pukhraj v. State of Rajasthan 28; B. Saha and Others v. M.S. Kochar29 ; Bakhshish Singh Brar v. Gurmej Kaur 30; Rizwan Ahmed Javed Shaikh and Others v. Jammal Patel and Others 31 and held :

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:-

49. Mr. Poovayya argued that the complaint filed by the respondent against the accused appellant was in gross abuse of process, frivolous and malafide. Controverting the allegation of the

32. (2000) 6 SCC 195 22 respondent in his complaint, of police excesses while the respondent was in police custody between 27 th February, 2013 and 14th March, 2013 in connection with Crime No12/2012, Mr. Poovayya referred to the order of the learned Chief Metropolitan Magistrate dated 28 th February, 2013 in the said crime case, observing that the respondent had not complained of any ill-treatment by the police.

50. Mr. Poovayya submitted that the learned Chief Metropolitan Magistrate had, in any case, passed an order for medical examination of the respondent in view of his complaint of ill-treatment, but the medical reports, upon such examination, showed that there was no injury on the respondent. Mr. Poovayya argued that the accused appellant had been arrayed as accused vindictively, out of vengeance, since the accused appellant had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the Habeas Corpus Petition filed by the respondent’s father in the Karnataka High Court. The said affidavit led to the dismissal of the Habeas Corpus Petition.

51. Citing the judgment of this Court in State of Haryana and Others v. Bhajan Lal and Others 33, Mr. Poovayya argued that where a criminal proceeding is manifestly prompted by malafides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of Court and/or to secure the ends of justice.

33. 1992 Suppl. (1) SC 335 23

52. In State of Orissa vs. Ganesh Chandra Jew (supra) cited by Mr. Poovayya, this Court had, in similar circumstances, referred to and followed Bhajan Lal (supra) and held:

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

54. In D.T. Virupakshappa v. C. Subash (supra), cited by Mr. Poovayya, the question raised by the appellant before this Court was, whether the learned Magistrate could not have taken cognizance of the alleged offence which was of police excess in connection with investigation of the criminal case, without sanction from the State Government under Section 197 of the Code of Criminal Procedure and whether the High Court should have quashed the proceedings on that ground alone.

55. This Court held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the concerned policeman under Section 482 of the Code of Criminal Procedure.

56. In Ganesh Chandra Jew (supra), the Magistrate had, as in this case, specially recorded that there was no complaint of any ill- treatment. This Court was of the view that continuance of the proceeding would amount to the abuse of the process of law. Accordingly, this Court set aside the judgment of the High Court whereby the High Court refused to exercise its power under Section 25 482 of the Criminal Procedure Code to quash an order of sub- Divisional Judicial Magistrate, in a complaint against police officials, without sanction under Section 197 of the Criminal Procedure code.

57. Devinder Singh & Ors. v. State of Punjab through CBI (supra) cited by Mr. Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr. CBI (supra) also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police, that the police had been attacked first and had retaliated, was found to be false. In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression “colour of duty”. This Court dismissed the appeals of the concerned policemen against conviction, inter alia, under section 302 of Indian Penal Code, which had duly been confirmed by the High Court. The judgment is clearly distinguishable.

58. The Judgment of this Court in State of Andhra Pradesh v. N. Venugopal (supra) is distinguishable in that the policemen concerned, being the Sub Inspector, Head Constable and a Constable attached to a police station had without warrant illegally detained the complainant for interrogation under Section 161 of the Criminal Procedure Code in connection with a private complaint of house break and theft, assaulted him along with the private complainant to extract statements and left him in an injured condition. 26

59. In the context of aforesaid, this Court held that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done "'under"

60. In Bhanuprasad Hariprasad Dave v. State of Gujarat (supra) the Head Constable concerned was accused of preparing a false report with the dishonest intention of saving a person from whom ganja had been seized, after obtaining illegal gratification. The Court held that demand and/or acceptance of illegal gratification could not be said to be an act done under colour of duty. Significantly, the concerned policemen had been tried and convicted 27 and their conviction was affirmed by the High Court. The concerned Head Constable was seeking bail in this Court.

61. The Judgment in State of Maharashtra v. Atma Ram (supra), was rendered in an appeal from a judgment and order of the High Court, whereby the High Court had reversed the conviction of the concerned policemen under Sections 330 , 342 , 343 and 348 of the Indian Penal Code, holding the prosecution to be barred under Section 161(1) of the Bombay Police Act. Allowing the appeal of the State, this Court held that Section 64(b) which confers duty on every police officer to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to take such other steps to bring offenders to justice or to prevent the commission of cognizable and non cognizable offences, did not authorise any police officer to beat persons in the course of examination for the purpose of inducing them to make any particular statement or to detain such persons. The acts complained were factually found not to have been done under colour of any duty or authority. The Order of the High Court acquitting the concerned policemen was thus, set aside.

62. In Bakhshish Singh Brar v. Gurmej Kaur (supra), the question raised before this Court was, whether while carrying out investigation in performance of duty as a policeman, it was necessary for the concerned policeman to conduct investigation in such a manner as would result in injury and death. This Court held that trial of a police officer accused of causing grievous injury and 28 death in conducting raid and search, need not to be stayed for want of sanction for prosecution of the police officer, at the preliminary stage, observing that criminal trial should not be stayed at the preliminary stage in every case, as it might cause damage to the evidence. The Court observed that if necessary the question of sanction might be agitated at a later stage.

63. In Om Prakash and others v. State of Jharkhand and Anr. (supra) this Court held:

The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or 29 not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground.

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

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

64. In Pukhraj v. State of Rajasthan (supra) the accused Post Master General, Rajasthan had allegedly kicked and abused a union 30 leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court however left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure Code.

65. In Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and Others34 , this Court held that where the gravamen of the charge was failure on the part of the accused policemen to produce the complainants, who were in their custody, before the Judicial Magistrate, the offence alleged was in their official capacity, though it might have ceased to be legal at a given point of time, and the accused police officers would be entitled to the benefit of Section 197(2) of the Criminal Procedure Code.

66. The Judgment in B. Saha v. M.S. Kochar (supra) was rendered in the context of allegations against Customs Authorities of misappropriation or conversion of goods. This Court held that while the seizure of goods by the concerned custom officers was an act committed in discharge of official duty, the subsequent acts of misappropriation or conversion of the goods could not be said to be viewed as under the colour of official duty. Accordingly this Court

34. (2001) 5 SCC 7 31 held that sanction for prosecution was not necessary.

67. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above .

68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available 32 only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a 33 policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

75. On the question of the stage at which the Trial Court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court.

76. While this Court has, in D.T. Virupakshappa (supra) held that the High Court had erred in not setting aside an order of the Trial Court taking cognizance of a complaint, in exercise of the power under Section 482 of Criminal Procedure Code, in Matajog Dobey (supra) this Court held it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However the facts subsequently coming 34 to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings.

77. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

78. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty.

79. Significantly, the High Court has by its judgment and order observed “it is well recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so 35 far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal therefore an order too overcome any illegality the duty of the magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider”.

80. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.

81. The appeal is allowed. The judgment and order under appeal is set aside and the complaint is quashed for want of sanction.

.................................J. [ R. BANUMATHI ] .................................J. [ INDIRA BANERJEE ] JUNE 18, 2020 NEW DELHI.