Illegal detention, custodial violence not discharge of 'public duty'; cannot claim protection under Section 197 CrPC: Karnataka High Court

The Karnataka High Court recently held that illegal detention of an innocent person and subsequent custodial violence and torture cannot be termed as act done in connection with discharge of public duty by a police officer (S Shivakumar v. State of Karnataka). .Single-judge Justice HP Sandesh ruled that if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Code of Criminal Procedure (CrPC) and have to be considered dehors the duties which a public servant is required to discharge or perform.."When an innocent person was taken to the police station without arresting him and detained illegally in the custody and that apart, he was subjected to torture, no criminal antecedents against him, the act of the police officers cannot be termed as the act done in connection with discharge of public duty as it is nothing but misuse of powers vested with the petitioners, who are the police officials," the order said. The Court, therefore, dismissed a plea filed by seven police personnel under Section 482 CrPC seeking to quash proceedings before the Principal District and Sessions Judge, Chickballapur for offences punishable under Sections 167, 330, 342, 348, 307 read with Section 149 of Indian Penal Code. By way of background, on May 14, 2010, accused No.2, Police inspector along with a few constables came to the complainant's house and asked him to bring his son to the police station in connection with a gold snatching case. Later, it was informed that one of the friends had called the complainant on his mobile to inform that he had received a call from Circle Inspector i.e., accused No.1 enquiring about the complainant and his reputation. The complainant went to the police station along with his son.At the police station, his son was illegally detained and subjected to brutal torture and assault for 2 days. Later, he was released but not before he was coerced and threatened not to reveal the arrest and torture to anybody. They also threatened him that if he does reveals the same, they would put him behind bars permanently and also foist false cases against him for robbery and dacoity.Few days following the police station incident, the son went into depression and attempted to commit suicide by consuming poison. This prompted the complainant to file a case against the police officials before Dodballapur police but no case was registered. He even took up the issue with the Human Rights Commission but to no avail. Therefore, he filed a compliant before the Principal District and Sessions Judge, Chickballapur.The Magistrate allowed the petition by the complainant. The accused police officers then filed a petition made before the High Court seeking to quash the entire proceedings before the Sessions Judge, Chickballapur.The petitioners placed reliance on Section 197 CrPC as per which government sanction is required to be taken before a court can take cognizance of offence allegedly committed by a public servant while discharging public duty. It was contended that no such sanction was taken in the present case and the Magistrate also failed to take note of the said fact.It was also submitted that the Magistrate recorded the sworn statement without taking cognizance of the offence and said defect cannot be cured. The counsel appearing for the respondent-complainant, said that an enquiry was conducted and in the said enquiry, Deputy Superintendent of Police, Chinthamani has given a report dated June 25, 2010, wherein it was stated that these petitioners are guilty for the torture meted out to the complainant’s son.The Court after examining the rival contentions, rejected the contention of the petitioners that the Magistrate had proceeded to record the sworn statement without taking cognizance. There is no dispute with regard to the fact that before recording the sworn statement, the learned Magistrate has to take cognizance, the Court conceded. However, the Court said as per its decision in Bangalore Metropolitan Transport Corporation, Bangalore v. D Kempanna, if the order does not reveal taking of cognizance and if the Magistrate proceeds to record the sworn statement, that would be sufficient to create a presumption of Magistrate having taken cognizance. The same principle was reiterated in Shivraj v. State of Karnataka, the Court noted. With regard to requirement of sanction to initiate the criminal prosecution against the police officials, the Court noted that the departmental enquiry that was conducted prima facie disclosed that the police had exceeded their powers. Further, it was noted that the son of the complainant was not arraigned as an accused in the said case and neither was he identified with regard to the said case. "When such being the case, the protection envisaged under Section 197 of CrPC or Section 170 of Karnataka Police Act cannot be extended to the petitioners herein," the Court said. After referring to numerous judicial decisions, the Court opined that the protection under Section 197 will not be available for doing things which are otherwise not permitted under law. "However, as indicated above, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned," the Court made it clear. .The Court further noted that there are ample materials against the accused which had been considered by the Magistrate and also the Revisional Court. "Hence, I do not find any merit in the petition to exercise the powers under Section 482 of CrPC in quashing the proceedings initiated against the petitioners herein," the Court said while rejecting the petitioner's plea.[Read Order]