Bettegowda vs Seetharam

K.N. Phaneendra, J.—This petition is filed seeking quashing of the entire proceedings in C.C. No. 684/1995 pending on the file of the Special Court for Economic Offences at Bangalore registered against the petitioner and others for the offences punishable under Sections 326, 327, 345, 338, 355, 357, 367, 368, 395, 397, 500 and 120B read with Section 34 of the Indian Penal Code.

The records disclose that at the earliest point of time, accused No. 6 appeared before the trial Court and filed an application for dismissal of the complaint on the ground that the complainant has not obtained a valid sanction u/s 170 of the Karnataka Police Act, 1963 and also u/s 197 of the Criminal Procedure Code. The said application was contested and the learned Magistrate considering all the details of the case as well as the contentions raised by the petitioner herein (accused No. 6) and the complainant, has dismissed the said application on the ground that the sanction is not at all required under the above said provisions. Therefore, accused No. 6 was directed to pay Rs. 1,000/- to the complainant towards cost of vexatious application being filed by him. The said order of the learned Magistrate was subjected to challenge before the Fast Track Court-XIII, Bangalore, in Crl.R.P. No. 236/2012. The Revisional Court meticulously considered the order of the trial Court and having regard to the facts and circumstances of the case, came to the conclusion that no sanction is required to prosecute accused No. 6 petitioner herein for the above said offences. The said criminal revision petition came to be dismissed as per order dated 28.02.2013. Calling in question the above said two orders of the Courts below as well as seeking quashing of the entire proceedings, petitioner (accused No. 6) is before this Court.

The contention of the learned counsel for the petitioner is that the allegations made in the complaint by the complainant-respondent herein attracts the provisions of Section 197 of Cr.P.C., as well as Section 170 of the Karnataka Police Act. He categorically states that the allegations made in the complaint refer to the acts alleged to have been done by accused No. 6 while discharging his duty as a Police Officer under the guise and colour of his office. Therefore, when it is said that accused No. 6, as a Police officer, has done those particular acts, it is pertinent to note that Section 197 of Cr.P.C., and Section 170 of the Karnataka Police Act, demands a valid sanction before lodging any prosecution and this aspect has not been properly considered by the trial Court. As could be seen from the records, the trial Court has categorically considered the facts and circumstances of the case at paragraph No. 9 of the order dated 25.06.2012 and also observed that the acts committed by accused No. 6 does not fall within the purview of either official duties discharged by him as a public servant or under the colour of his office. Therefore, relying upon several rulings of the Hon''ble Supreme Court, the trial Court has come to the conclusion that the sanction is not required.

Revisional Court considered once again the factual aspects of the case as also the contents of Section 197 of Cr.P.C., and Section 170 of the Karnataka Police Act and re-evaluated the material on record and came to the conclusion that at the stage of taking cognizance and issuing process, the said provisions are not attracted. However, at paragraph No. 21 of the order dated 28.02.2013, Revisional Court has observed that after recording of the evidence, if the party is able to show that all the acts alleged against the accused falls within the four corners of his official duties and he has done that under the colour of his office, the point with regard to sanction can be urged at any stage of the proceedings. Revisional Court has relied upon the ruling of the Hon''ble Supreme Court in the matter of Bakhshish Singh Brar Vs. Gurmej Kaur and Another, , wherein the Supreme Court in similar facts and circumstances with reference to a complaint against Police officer has held that at the initial stage, provisions of Section 197 of Cr.P.C., or 170 of the Karnataka Police Act need not be considered and at a later stage, if the Court finds that there are sufficient materials placed before the Court to show that the alleged acts are done by the Police officer while discharging his official duty as a public servant and the same definitely fall under the colour of his office, then the Court can consider the question of sanction and has held that the trial Court has not committed any error in rejecting the application filed by accused No. 6 and has also put its seal of affirmation to the order of the trial Court dated 25.06.2012.

Having gone through the orders passed by the trial Court and revisional Court, now let me also have a brief look at the contentions made by the complainant in the complaint in C.C. No. 684/1995. It is alleged by the complainant that accused Nos. 1 and 2 by name, Sandeep and Shamiur Rahman are the employees of the complainant. Accused Nos. 1 and 2 with an intention to harass the complainant, filed a false complaint in Crime No. 115/1993 before Peenya Police Station. The complainant was enlarged on bail. The complainant proceeded to eke out his livelihood by doing his regular work. In order to harass the complainant again, another complaint was lodged in Crime No. 223/1993 by accused No. 2 alleging trespass and criminal intimidation inflicted against accused No. 1. In this context, it is alleged that on 04.07.1993, when the complainant was proceeding to E.S.I. hospital on his Scooter, accused Nos. 4 and 5, who were the A.S.I., and Head Constable respectively, intercepted his way, bet him with batons and assaulted him on his head and near his eyes. Thereafter, they took the amount of Rs. 1,000/- and scooter from the complainant, later was taken to accused No. 3. On 05.07.1993 at about 10:30 a.m., accused No. 6 along with accused No. 3 came to the Police Station and they took the complainant out of the lock-up and kicked him on his stomach, back and ribs and abused him using filthy language (filthy language has been specifically averred in the complaint). It is further alleged at paragraph No. 10 of the complaint that accused Nos. 3 to 6 along with several other police Constables took the complainant in a Police Van to Apex Garments, A.B.C. Factory and several other places near Peenya Police Station and as the complainant could not walk, they got inserted two long lathis under his both armpits and two Constables were carrying him like a carcass from place to place. The accused was only given a two inch wide underwear during the said ordeal. They used to throw the complainant at different places and were hurling with filthy language:

"Ivune Seetharam, Kalla Soole maga, innondhu sari illi bandare, hodidhu, kai kalu muridhu haki, namage thilisi".

At paragraph No. 11 of the complaint, it is further stated that on the same day at about 5:30 p.m. once again, accused No. 6 along with accused Nos. 4 and 5 and other constables took the complainant in a Police Van. The complainant was paraded naked in the vicinity of his residence and scores of other places in Mahalaxmi Police Station limits. While parading the complainant accused Nos. 4, 5 and 6 were shouting:

"Nodi dodda rowdy agidha, bolimagane, ivaga yaaru bennu male bilathane"

and the said allegations have been reiterated by the complainant in his sworn statement. Looking to the above said allegations and sworn statement, Courts below have come to the conclusion that the said allegations do not refer to the acts done by accused No. 6 while discharging his official duty and under the colour of his office. It is not the duty of a Police Officer to treat the accused persons when they are arrested in such an inhuman manner and the same do not fall under his official duties and colour of his office. Therefore, both the Courts below have held that Section 197 of Cr.P.C., and Section 170 of the Karnataka Police Act are not attracted at the stage when charges have been framed and evidence has not been recorded.

Learned counsel for the petitioner has relied upon the decision of this Court in the matter of N. Shiva Kumar and another Vs. N. Ramanna Adyanthaya, , wherein this Court while referring to Section 197 of Cr.P.C. and Section 170 of the Karnataka Police Act with regard to sanction to prosecute has held that:

"Petitioners, police officers alleged to have demanded money from the complainant party for showing official favour-Also made false entries in register to suppress the truth for not producing accused before Court within 24 hours-Manipulated records and detained son of complainant in police custody-Petitioners working as Police officers are public servants-Alleged offences committed during course of discharging their official duties-Sanction is mandatory."

Moreover, keeping a person in the custody for various valid reasons comes within the four corners of the duty of Police and therefore, this Court held that sanction is necessary. In a ruling of the Apex Court reported in State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, , it is held that u/s 197 of Cr.P.C., with regard to sanction required to prosecute, protection is afforded to public servant and the expression ''no Court shall take cognizance of such offence except with the previous sanction'' makes protection mandatory. However, reading of the said judgment clearly establishes that Section 197 of Cr.P.C., not only specifies the persons to whom the protection is afforded, but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. In the said circumstances, the Apex Court has held that the offences alleged must have been committed by Police officer while discharging his official duties. Therefore, sanction was held to be mandatory in cases where the offence committed by a Police officer falls under the category of offences, which could have been committed by him while exercising his power as a Police Officer and under the colour of his office. If the Court is of the opinion that the said act falls outside the purview of the duty of the Police Officer, then the Court for the tentative reasons and limited purpose, can hold that sanction at that stage is not necessary.

It is worth to repeat the ruling of the Hon''ble Supreme Court cited by the revisional Court, which is aptly applicable to the facts and circumstances of the present case and involves the same question of law as in this petition and which is reported in Bakhshish Singh Brar Vs. Gurmej Kaur and Another, , wherein the Apex Court has held that:

The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. Therefore, the trial should proceed. If necessary the question of sanction u/s 197 may be agitated after some evidence have been noted by the trial Court.

Looking into the above said facts and circumstances of the case, the trial Court and the Revisional Court have tentatively come to the conclusion that the allegations made against accused No. 6, petitioner herein, does not fall under the purview of his official duties and also under the colour of his office. Therefore, it is incumbent upon the accused to prove to the satisfaction of the Court during the course of evidence that he was legally entitled to do the said acts in the facts and circumstances of the case. Those allegations, if they are accepted by the Court, would fall under the definition of Section 197 of Cr.P.C. and Section 170 of the Karnataka Police Act said to have committed by accused No. 6 during discharge of his official duties or under the colour of his office. Therefore, by means of giving earnest face value to the contents and averments of the complaint, at this stage, I do not find any strong reasons to quash the entire proceedings. However, it is open to the trial Court after recording of the evidence to consider as to whether the acts of accused No. 6, petitioner herein, fall under the colour of his office or whether he has done that particular act while discharging his duty as a public servant.

In view of my above said observations, I do not find any strong reason to interfere with the proceedings pending in C.C. No. 684/1995 on the file of the Special Court for Economic Offences at Bangalore. The trial shall go on.

With these observations, the petition stands dismissed. I.A.I./2013 for stay does not survive for consideration and the same stands disposed of.