The Supreme Court on Thursday reiterated that a criminal complaint against a police officer or a public servant cannot be entertained without prior sanction from the government, as is mandated under Section 197 of the Code of Criminal Procedure (CrPC) (D Devaraja v. Owais Sabeer Hussain).
The Bench of Justices R Banumathi and Indira Banerjee held that the law on the question is well established and has been laid down in various judgments of the Court.
The judgment notes that if a challenge is mounted under Section 482 of the CrPC to a decision of the trial court to entertain a complaint against a public servant without sanction, the High Court should exercise its jurisdiction to quash such a complaint.
"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..."
Supreme Court
Factual Matrix:
The appellant in the instant case was a Deputy Commissioner, against whom the respondent had filed a private complaint alleging ill-treatment and police excesses during custody. The Magistrate took cognizance of this complaint and directed the appellant to appear before it. Aggrieved by this order of the Magistrate, the appellant had moved the Karnataka High Court under Section 482 of the CrPC seeking quashing of the complaint.
The High Court noted the well-established legal requirement of obtaining sanction before proceeding against a public servant. However, after noting the same, the High Court also took on record the opinion expressed by the Magistrate that tentatively, based on the documents produced before the Court, sanctions were not needed to proceed against the appellant.
Therefore, the High Court remitted the case to the trial court and granted liberty to the appellant to move a discharge application under Section 245 of the CrPC. This order of the High Court was under challenge before the Supreme Court.
The questionbefore the Supreme Court was whether the Magistrate could have taken cognizance of the complaint against the appellant, who is a public servant, in the absence of the sanction as required under Section 197 of the CrPC read with Section 170 of the Karnataka Police Act, 1963.
The Court was also examining the issue of whether the High Court should have quashed the complaint in exercise of its jurisdiction under Section 482 of CrPC instead of remitting the case to the trial court.
Arguments advanced before the Court:
Senior Advocate Sajan Poovayya, representing the appellant, submitted that the order of the Magistrate taking cognizance of the complaint in the absence of the sanction ought to have been quashed by the High Court.
Additionally, the ApexCourt was told that the appellant is aDCP and was not the investigating officer in the case concerning the complainant. Therefore, even assuming that there was any ill-treatment meted out to the complainant, there were no specific allegations against the appellant.
Section 170 of the Karnataka Police Act specifically provides that no prosecution against any police officer is to be entertained without the previous sanction from the government, even if the allegation is that of police excesses carried out under the garb of duty. Therefore, the High Court should have quashed the order of the Magistrate taking cognizance of the complaint, the appellant argued.
The respondent, represented by Senior Advocate Sidharth Luthra, argued that the want of sanction was to be decided by the Court keeping in mind the nature of the ill-treatment alleged, which was physical torture. Ill-treatment and torture could never be in exercise of official duty, or even under the colour of official duty, Luthra submitted before the Court.
The need for prior sanction was a question to be decided during the course of the trial, Luthra contended. He added that want of sanction could not be a reason to nip the complaint in the bud. Luthra also argued that a mere order of taking cognizance could not have been amenable to a challenge under Section 482 of the CrPC. In fact, the appellant was given relief by the High Court in the form of liberty to move the trial court for discharge, he contended.
What the Supreme Court held
The Court observed that the need for obtaining prior sanction before prosecuting a police officer instills confidence in the upright police personnel to carry out their duties without fear of vindictive action, and effectively and efficiently. Retaliatory and vindictive action is what the police personnel are protected from under Section 197 of the CrPC, the Court went on to underline.
This does not give impunity to the police given that in case a wrongful act is committed by any police personnel, they can be prosecuted still, albeit with prior sanction from the appropriate government.
The protection granted under the Sections mentioned also have their limitations, given that the police are protected under these provisions only with respect to the acts allegedly committed in relation to their official duty, the Court highlighted.
Elaborating further, the Bench said that any act or offence committed which is not in connection with the official duty would not require prior sanction for prosecuting the police personnel. It is only when the alleged act is done in discharge of official duty would the requirement of prior sanctions come into play.
At the same time, merely if an alleged act is done in excess of official duty, the police personnel cannot be denied protection under Section 197 of the CrPC, the Court held.
“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.”
The test for concluding whether sanction is necessary or not is to see if there exists a direct nexus between the alleged act and the prescribed duty of the public servant. Cognizance of an alleged act cannot be taken without sanction if the act is done, whether in excess or not, in discharge of duty, the Court stressed.
Whether or not a complaint can be nipped in the bud, the Court said that the application of Section 482 of the CrPC is maintainable when proceedings are found to be ex facie bad in law for want of sanction.
It thus held that the High Court erred in law by refusing to exercise its jurisdiction under Section 482 to set aside the order of the Magistrate.
Therefore, the Court set aside the order passed by the High Court and proceeded to quash the complaint against the appellant for want of sanction.
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