N. Chalapathi and Ors @APPELLANT@Hash State of Karnataka and Anr

The present petitioners, who are accused Nos.1 to 6 in C.C.No.723/2013, pending before the II Addl. Civil Judge and JMFC Court, Ballari

(hereinafter referred to as ‘the Court below’ for brevity), have filed this petition under Section 482 of the Cr.P.C. seeking to quash the order

dated 13.09.2017, passed by the Court below in C.C.No.723/2013 dismissing the applications filed by these petitioners under Section 203 of Cr.P.C.

The summary of the case as could be gathered from the materials placed before this Court is that, the Registrar, Rajiv Gandhi University of Health

Sciences, Bengaluru (hereinafter referred to as ‘the RGUH’, for brevity) lodged a complaint on 14.03.2011, against unknown persons relating to

the Post-Graduate Entrance Examination 2011 held at Vijayanagara Institute of Medical Sciences, Ballari (hereinafter referred to as ‘the

VIMS’, for brevity). It is alleged in the complaint that, some students who appeared in PGET examination at different centres filed a complaint to

the Vice Chancellor, RGHU, Bengaluru on 03.03.2011 complaining about the mal practices said to have been practiced by the candidates in collusion

with the invigilators. Two other persons also filed their complaints in that regard before the Lokayukta, Bengaluru.

The Cowl Bazaar police, Ballari registered a case in Crime No.56/2011 for the offences punishable under Sections 117, 121 and 138 of the Karnataka

Education Act, 1983 and Section 120B, 417, 418, 465, 468 and 409 of the IPC. After investigation, the complainant police filed ‘B’ report in that

matter. However, the Lokayukta Police, after holding some investigation, directed the Government to nullify the rank of the students who appeared in

the entrance examination. The unsuccessful candidates approached this Court through W.P.No.13774/2011. In the said writ petition, this Court

directed the Director General of Police, CID, Bengaluru, to hold further investigation and to submit a report.

In the said connection, the present respondent No.2, who apprehended his arrest, made an unsuccessful attempt to obtain the relief of anticipatory bail

and ultimately surrendered before the First Additional Civil Judge cum Judicial Magistrate First Class, Ballari on 25.10.2011 and was sent to judicial

custody. Thereafter, he was given to police custody by the Magistrate on 26.10.2011. According to the complainant police, they continued the

investigation after taking the present respondent No.2 in to police custody.

Subsequently, the present respondent No.2 filed a Private Complaint against the present petitioners under Section 200 Cr.P.C., in the Court below

contending that from 2011 he has been working as the Assistant Professor in the Department of Forensic Medicine at VIMS and the complainant

police, who had taken his custody by the order of the Magistrate, had ill-treated him. It is his specific allegation that, in the guise of investigation, the

complainant police forced him to sign some pre-written papers and also blank papers, which he refused to do. Then the police threatened him of dire

consequences. The present petitioner No.1 shouted at him and ordered to put him under handcuffs. The other co-accused persons conjointly followed

the directions of petitioner No.1. Thus the 2nd respondent was handcuffed and was paraded in front of the students and the staff. According to 2nd

respondent, the petitioners also invited the media people like the press and TV channels, who gathered and broadcasted the said scene of 2nd

respondent under handcuffs being paraded. It is also alleged by 2nd respondent that the petitioners also threatened to kill him by way of encounter and

contended that he has a good social and personal status; he is not a person who is violent in nature and had never tried to escape from the clutches of

the police, but was illegally put under handcuff, humiliated, defamed and ill-treated by the police.

 The Magistrate took cognizance of the private complaint filed by 2nd respondent, examined the complainant as CW1 and other witnesses as CW2

and CW4 and recorded their sworn statements. The learned Magistrate vide order dated 31.12.2012 answering the requirements of previous sanction

for prosecution under Section 197 of Cr.P.C., expressing his opinion that the accused cannot claim that they have done those acts during the course of

performance of their duty at that stage, but they can take that as a defence, which can be considered at a later stage, proceeded to issue process

against the accused persons i.e., the petitioners herein.

Against the said issuance of summons, the petitioners preferred a criminal petition before this Court in Criminal Petition No.100039/2014. This Court

vide its order dated 11.04.2014, passed in the said criminal Petition No.100039/2014, dismissed the criminal petition with following observations made

at para 20 of its order, which is reproduced hereinbelow:

“20. In this particular case, when the learned Magistrate has exercised his discretion expressing his inability to pass a final order with regard to the

sanction point at the time of taking of the cognizance, such discretionary order passed by the learned Magistrate should not be ordinarily interfered

with by this court by quashing the entire proceedings. Therefore, the accused persons are at liberty to place all the relevant materials and evidence

before the learned Magistrate to show that the act committed by them falls exactly within the four corners of their official duty and that, while they

were discharging their duties of their office and committed such an act and therefore, they are entitled to be protected u/s. 197 Cr.P.C. or u/s. 170 of

the KP Act.â€​

 After dismissal of the above said Criminal Petition No.100039/2014, the present petitioners filed an application in the Court below under Section 203

Cr.P.C. and sought to dismiss the complaint for want of sanction as per Section 197 of Cr.P.C. and under Section 170 of Karnataka Police Act, 1983

(hereinafter referred to as ‘the K.P. Act’, for brevity), before filing the complaint against them. The Court below by its order dated 13.09.2017,

dismissed the said application. Being aggrieved by the said order of the Court below, the accused Nos.1 to 6 have preferred this petition under Section

482 of Cr.P.C.

The learned counsel for the petitioners in his argument, while reiterating the contention taken up by the petitioners in their petition submitted that,

undisputedly the present petitioners, who are the police officials, are public servants, as such, the alleged acts complained by 2nd respondent even if it

is taken as having been committed by the petitioners, would stand as the acts committed by the public servants while discharging their duty, as such,

prior sanction under Section 197 of Cr.P.C. and under Section 170 of K.P. Act, was required to be taken before institution of the complaint. As such,

the impugned order deserves to be set aside and their application deserves to be allowed.

 In his support, the learned counsel for the petitioners relied upon a judgment of the Hon’ble Apex Court and another judgment of this Court.

 In the first judgment dated 27.04.2017, i.e., in D. T. Virupakshappa Vs. C. Subash passed in Criminal Appeal No.722/2015, in the paragraphs

towards which the attention of this Court was drawn by the learned counsel for the petitioners, the Hon’ble Apex Court has referred and

reiterated its earlier view taken in the case of State of Orissa Through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew[(2004) 8 SCC

40], and was pleased to reproduce para 7 of the said judgment of Ganesh Chandra Jew’s case. The particular portion of the judgment towards

which notice of this Court was drawn by the learned counsel is reproduced hereinbelow:

 “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………….

 (Emphasis supplied)â€​

 The learned counsel for the petitioner also drew attention of this Court to para 9 of the same judgment, wherein the Hon’ble Apex Court has

referred to paragraph 32 of its previous judgment in Om Prakash and others Vs. State of Jharkhand Through The Secretary, Department of Home,

Ranchi 1 and another [(2012) 12 SCC 72], which is reproduced hereinbelow:

“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.â€​

 (Emphasis supplied)â€​

 The second judgment relied upon by the learned counsel for the petitioner is, N. Shiva Kumar and another Vs. N. Ramanna Adyanthaya reported in

1998 Cri.LJ 1172, wherein a Co-ordinate Bench of this Court with respect to Section 197 Cr.P.C. and Section 170 of K.P. Act was pleased to

observe that, if one of the offences attract provisions of Section 197 Cr.P.C., it is necessary to obtain sanction in respect of the other offences, which

are connected to the main offence. By relying upon these two judgments, the learned counsel for the petitioner contended that, even though the

handcuffing of 2nd respondent by the petitioners is not disputed, but the same was necessitated since the police apprehended that 2nd respondent may

lay his hand to any of the weapons or chemicals stored in his Forensic Science Laboratory, in which case there was possibility of he causing any injury

either to himself or to some other persons, as such, as an abundant caution he was handcuffed. Therefore, the said act would fall within the scope of

the petitioners as police officers doing the said act as a part of their duty. Thus, to prosecute them, 2nd respondent who was the complainant, in his

private complaint ought to have obtained permission, as required under law.

Per contra, the 2nd respondent who is contesting the matter as a party-in-person, in his submissions, relied upon a judgment of the Hon’ble

Apex Court in Choudhury Parveen Sultana Vs. State of West Bengal and Another reported in (2009) 3 SCC 398, wherein the Hon’ble Apex

Court was pleased to observe that, for applying bar under Section 197 of Cr.P.C., each case has to be considered in its own facts situation in order to

arrive at a finding as to whether protection of Section 197 of Cr.P.C. could be given to a public servant.

 The 2nd respondent also relied upon a judgment of this Court in Ninge Gowda & Another Vs. S. Madhureswar reported in ILR 1999 KAR 197,

wherein, in a similar case, a co-ordinate Bench of this Court has observed that, the petitioners must be reserved with liberty to agitate the question of

non-obtaining prior sanction at the appropriate stage before the trial Court and the trial Court should consider the said question in accordance with law

from stage to stage by providing full opportunity to both parties.

 By citing these two cases, 2nd respondent submitted that the Court below has not denied the right of the petitioners to agitate their contention of not

obtaining the prior sanction before filing the complaint, but the same was to be agitated at a later stage.

In the case on hand, the application that was filed in the Court below by the present petitioners as accused therein, was under Section 203 of

Cr.P.C., seeking to dismiss the complaint for want of sanction. Though the provision of law mentioned in the said application for dismissing the

complaint for want of sanction was not a correct provision, still, the Court below considered the same as though it was an application under Section

197 Cr.P.C. and under Section 170 of K.P. Act, and on its merit dismissed the application. As already observed above, what made the present

petitioners to prefer the said application was the liberty reserved to them by this Court in the order dated 11.04.2014 in Criminal Petition

No.100039/2014. As already observed above, the said criminal petition No.100039/2014 was filed by the present petitioners in this Court seeking

quashing of the entire proceedings in C.C.No.723/2013 pending in the Court below, in taking cognizance of the complaint lodged by respondent No.2

herein. The very ground raised by the petitioners in the said petition was non-obtaining of prior sanction under Section 197 Cr.P.C. by the complainant

before filing the complaint against them who are the public servants. The reasoning given by this Court in dismissing the said petiton has already been

extracted above. This Court has clearly observed in the said reasoning that the Magistrate has exercised his discretion expressing his inability to pass

the final order with regard to sanction point at the time of taking of the cognizance, such discretionary order passed by the learned Magistrate should

not be ordinarily interfered with by this Court by quashing the entire proceedings. Thus, this Court did not opine that the accused had no right to make

an application or raise the question of non-obtaining of prior sanction under Section 197 Cr.P.C, but it held that the stage was premature and

discretionary power exercised by the Magistrate should not be interfered with.

 Further, this Court has expressly observed that the accused/petitioner was at liberty to place all the relevant materials and evidence before the

learned Magistrate to show that the act committed by them falls exactly within the four corners of their official duty and that while they are

discharging the duty of their office, they have committed such an act, as such, they are entitled to be protected under Section 197 Cr.P.C. or under

Section 170 of K.P. Act, which means, at the appropriate stage, the petitioners were at liberty to agitate the said contention in the Court below.

 Thereafter, the petitioners have filed the application under Section 203 Cr.P.C. in the Court below, invoking Section 197 Cr.P.C. and Section 170 of

K.P. Act, seeking for dismissal of the complaint for want of sanction. Even in the said case also, after relying upon various judgments of the

Hon’ble Apex Court as well of this Court, the Court below opined that, at that stage it was not possible to decide the question of sanction

effectively and finally without recording the evidence of both sides. Hence, it proceeded to dismiss the application.

As observed by their Lordships in Om Prakash’s case (supra), whether sanction is necessary or not has to be decided from stage to stage.

That question may arise at any stage of the proceeding. In a given case, that may arise at the inspection. There may be unassailable and

unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his

official duty and he is entitled to the protection given under Section 197 Cr.P.C. As such, it cannot be held that the Court cannot look into any

documents produced by the accused or the public servant concerned at the inception. At the same time, the person invoking Section 197 Cr.P.C.

before invoking the said Section is required to show that he (the official concerned), who is accused of an offence alleged to have been committed by

him while doing so, was acting or purporting to act in discharge of his official duties. It is not enough for the person invoking Section 197 Cr.P.C. or

170 of K.P. Act, merely taking a stand that prior sanction was not obtained. Either based on the materials already placed before the Court or by

producing sufficient materials and documents and/or by leading evidence i.e., by placing before the Court sufficient materials, convince the Court that

the alleged act said to have been committed by him was committed while acting or purporting to act in the discharge of his official duty or was done

under the colour of duty. It is based on the materials placed before it, the Court would consider them in its own fact situation, in order to arrive at a

finding as to whether protection of Section 197 Cr.P.C. or Section 170 of K.P. Act could be given to the public servant.

 It is also important to notice that, in D.T.Virupakshappa’s case (Supra) in paragraph 11, after setting aside the proceedings initiated by the Civil

Judge (Jr.Div.) and JMFC at Chikkanayakanahalli, Karnataka in C.C.No.74/2009, wherein, the JMFC Court had taken cognizance and issued process

to the appellant, the Hon’ble Apex Court also made it clear that its judgment was only on the issue of sanction and the Hon’ble Court had not

considered the matter on merits and that the judgment shall not stand in the way of respondent approaching the State Government for sanction under

Section 197 of Cr.P.C. It further observed that, in case, such sanction is obtained and the same is produced before the learned Magistrate, the

Magistrate may proceed further in the case, in accordance with law.

In the instant case, according to the complainant, he was subjected to severe ill-treatment by the present petitioners/police officials, while he was in

their police custody and also that, since he refused to sign certain blank papers and prewritten papers, which was ordered by the police to do, he was

handcuffed and paraded in front of the students and staff. Though such handcuffing has not been denied by the petitioners, rather in their statement of

objections in W.P.No.70317/2012, before this Court, at para No.15, State has admitted such handcuffing by the police, but the same is required to be

analysed and appreciated to consider whether such an act fall within the act of the petitioners in dischargal of their official duty only after analysing

the materials, if any, placed before them.

The Court below in the impugned order observing that without recording the evidence from both side, it was not possible to decide the question of

sanction effectively and finally, has shown that the materials placed before it were not sufficient to arrive at a decision regarding necessity of obtaining

previous sanction under Section 197 Cr.P.C. or under Section 170 of K.P. Act. Since the Court below has only stated that the stage to consider the

said question was too early, and has not stated that the accused before it had no right to make such an application, the said reasoning of the Court

below cannot be found fault with. As such, I do not find any merit in the present petition.

Accordingly, I proceed to pass the following order:

 ORDER

 Criminal petition is dismissed as devoid of merit for admission.