K.P. Gopal Reddy vs Anjanamma

A.N. Venugopal Gowda, J.—The petitioner is aggrieved by the order dated 06.05.2006 passed in P.C.R. No. 22443/2004 by the VI ACMM, Bengaluru. By the said Order, cognizance for the offences under Ss. 448 , 323 and 506 of IPC was taken, C.C. No. 11521/2006 was registered and summons was issued. The petitioner is an Inspector of Police. In the year 2004, he was posted as Inspector of Police, to the Wilson Garden Police Station. Husband of the respondent-Muniswamy (Mali Muniswamy), was shown as a ''Rowdy'', in the rowdy-sheet maintained in the Wilson Garden Police Station. Hence, the petitioner being the Inspector of Police, was expected to keep tabs on Sri Muniswamy alias Mali Muniswamy.

The petitioner, on the evening of 13.12.2004, visited the house of respondent''s husband. Watchman having stopped the petitioner''s entry, the respondent arrived on the scene and demanded to know, on what authority, he could enter her house and she allegedly threatened him, that being a lady, would be able to lodge a complaint to the ACP and the DCP and teach a lesson. According to the petitioner, he informed the respondent, that he being a Police Inspector, is on lookout of her husband, who is a rowdy and for the past 1 1/2 months, though he was required to come to the Station, as he has not turned up, he came in search of him.

The respondent having lodged a Private Complaint, on 24.12.2004, alleging that the petitioner, on 13.12.2004, had barged into her house and abused her verbally and also kicked her on the chest and abdomen and, as her relative tried to stop the assault, he was also beaten up and the petitioner indecently behaved with her and threatened of dire consequences if the incident is reported to the higher authorities. It was further alleged that she approached the ACP and gave a written complaint of the incident and by further alleging that the ACP has not taken any action and that, there was threat by some unknown police personnel, PCR No. 22443/2004 was filed, alleging commission of offences punishable under Ss. 354 , 352 , 448 , 323 , 324 and 506 of IPC. Complaint was registered on 27.12.2004. Sworn statement of the complainant was recorded on 28.01.2005. An application filed for recording of further statement having been allowed, complainant''s further statement and that of the two witnesses was recorded on 28.01.2005. By an order dated 06.05.2006, despite finding that the accused is a Police Officer of Wilson Garden Police Station, being of the opinion, that there is no necessity of sanction to prosecute the accused and finding that sufficient ground has not been made out to proceed against the accused for the offences under Ss. 354 , 353 of IPC, complaint in respect of the said offences was dismissed. However, the Magistrate being of the view that the complainant has made out sufficient grounds to proceed against the accused for the offences punishable under Ss. 448 , 323 and 506 of IPC, the aforesaid order dated 06.05.2006 was passed.

The main contention of Sri N.S. Sanjay Gowda, learned advocate, is that the learned Magistrate could not have taken cognizance of the alleged offences and issued process to the petitioner i.e., without sanction being obtained under S. 197 of Cr.P.C. He further contended that there being clear bar under S. 170 of the Karnataka Police Act, 1963, the learned Magistrate has committed illegality in entertaining the complaint, without the previous sanction of the Government. In support of the submission, reliance was placed on the decision in D.T. Virupakshappa Vs. C. Subash .

Learned advocate for the respondent remained absent.

The petitioner, admittedly is a public servant. From the allegations made in the complaint, it is clear that he is said to have misused his position as an Inspector of Police. S. 197 , Cr.P.C., and S. 170 of Karnataka Police Act, 1963, stipulate the requirement of obtaining an order of sanction from the competent authority, if any act is committed by the public servant/Police Officer, in discharge of his official duty.

In Om Prakash and Others Vs. State of Jharkhand and Another, , Apex Court, at para 41, has held that "question whether sanction is necessary or not, may arise at any stage of the proceedings and in a given case, it may arise at the stage of inception".

In the present case, the allegation is that, on 13.12.2004, when the husband of the complainant had been to Doddaballapur and the complainant was at home with her children, at about 06.15 p.m., accused, an Inspector of Police, attached to the Wilson Garden Police Station, gate crushed into her premises and being disturbed with his sudden entry, she tried to resist the entry of the accused into the house by saying that her husband is not at home and despite that, he pushed her back and entered the house forcibly and kicked her at her chest and abdomen and her relative, a certain Ravi, intervened and he was also beaten. It has been alleged that the petitioner called her as the wife of a rowdy, goonda etc., and that filthy language was employed.

On 04.09.2012, learned HCGP was directed to secure Station House Diary of Wilson Garden Police Station, for the month of December, 2004. On 05.06.2015, finding that the State Government has not been made a party-respondent, learned HCGP was directed to secure the Station House Diary relating to the entries dated 13.12.2004. On 10.06.2015, learned HCGP made available the Station House Diary of Wilson Garden Police Station. When perused, it was found that, Muniswamy alias Mali Muniswamy S/o. Nanjappa i.e., husband of the respondent in this petition, was shown as a "Rowdy Sheeter" in the A Class List. Thus, it is clear that, in order to keep tabs on the activities of the person shown as a "Rowdy Sheeter" i.e., the husband of the respondent, the petitioner has visited her house and the alleged excess act of assault was committed.

The alleged conduct of the petitioner has an essential connection with the discharge of his official duty. S. 170 of Karnataka Police Act, 1963 mandates that prosecution in respect of an act under the colour of duty, not to be entertained, without sanction of Government. S. 197 of Cr.P.C., mandates that in case a Government servant, accused of an offence, which is alleged to have been committed by him, while acting or purporting to act in discharge of his official duty, for prosecution, the previous sanction is necessary.

The issue of "Police Excess" during investigation and the requirement of sanction for prosecution, in that regard, has been considered by the Apex Court, in the case of State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, and it has been held as follows:

"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. There cannot be any universal rule to determine whether mere is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."

After referring to various decisions, particularly pertaining to "Police Excess" in the case of Om Prakash (supra), it has been summed up as follows:

"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). 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). 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."

The present case being identical to the case in D.T. Virupakshappa Vs. C. Subash , the said decision squarely applies. Hence, the learned Magistrate has committed illegality in taking cognizance of the offences i.e., in the absence of sanction, mandated under S. 170 of the Karnataka Police Act, 1963 and S. 197 of Cr.P.C. The case falls under the first part of illustration 6, shown in para 102 of the decision in State of Haryana and others Vs. Ch. Bhajan Lal and others, . Hence, there is need to interfere, in exercise of inherent power, under S. 482 of Cr.P.C.

In the result, the petition is allowed and order dated 06.05.2006 passed in PCR No. 22443/2004 by the VIACMM, Bengaluru, taking cognizance of the offences under Ss. 448 , 323 , 506 of IPC and registration of C.C. No. 11521/2006 and the consequential issuance of summons against the accused, is quashed. However, this order would not stand in the way of the respondent/complainant obtaining the sanction of the competent authority for prosecution of the petitioner. If sanction is obtained and produced, it is open to the learned Magistrate to proceed further in the matter.