Parvathamma vs Palamma

Rathnakala, J.—1. The petitioner herein is arrayed as 8th accused in a private complaint filed by the respondent herein in respect of the offence punishable under Sections 143, 147, 448, 323, 324, 427, 504 and 506 read with Section 149 of IPC.

Sri Y.M. Basavarajendra, learned counsel for the petitioner submits that the petitioner at the relevant point of time was working as PSI, Huliyur Police Station. On the complaint of one Gangamma, a case was registered against the respondent and others in a crime No. 31/2011. The petitioner went to the spot for investigation on 7.3.2011. While she was enquiring the matter the accused came to the spot made hue and cry against the complainant/Gangamma. She did not heed to the advise to contain. She abused in filthy language against the police and caused hindrance in discharge of PSI''s official duty. The police were able to apprehend one Sharadamma and others escaped.

A case in Crime No. 22/2011 was registered in respect of offence punishable under Sections 353, 504 read with Section 34 of IPC. In retaliation, these accused managed to file a complaint through second respondent herein against petitioner and others after a lapse of 45 days. When produced before the Court in respect of Crime No. 22/2011 she did not complain anything against the police. The present complaint is filed as a matter of counterblast to Crime No. 22/2011. The learned Magistrate could not have taken cognizance of the offence against the petitioner who is a Public Servant. Section 195(1) is a bar to prosecute her without previous sanction from the government. That is against the principles laid down by the Apex Court in case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. reported in , (2013) SCR 869 and also in the case of D.T. Virupakshappa Vs. C. Subash, reported in , 2015 AIR SCW 2643. Hence, the order of the learned Magistrate in issuance of summons and taking cognizance of the matter vitiates the proceedings and liable to be quashed.

Sri M. Vinaya Keerthy, learned counsel for the respondent, submits that the offence alleged since about excess of police power falling under IPC, no prior sanction under Section 195(1) of Cr.P.C. is required.

It is a private complaint against the petitioner and others in respect of the offence punishable under Sections 147, 448, 323, 324, 427, 504, 506 read with Section 149 of IPC. The allegation against the complainant is on 7.3.2011, she instigated the co-accused to put up fence by encroaching the road. In respect of incident of 11.03.2011, this petitioner has registered FIR against second respondent and others. Now charge sheet is filed in respect of offence punishable under Sections 353 and 504 of IPC. The learned Magistrate though writes an order under Section 204 of Cr.P.C. The learned Magistrate though writes an order under Sections 204 of Cr.P.C. running to more than 4 pages, nowhere tackles the question about role of this petitioner/PSI in the alleged offence. The order does not disclose the application of mind of the learned Magistrate as to whether or not prior sanction under Section 195(1) of Cr.P.C. was required to prosecute this petition, who is a public servant.

The ruling of the Apex Court in the case of D.T. Virupakshappa (Supra) squarely applies to the case on hand, wherein the Apex Court has observed at paras 6, 8, 9 as under:

The question, whether sanction is necessary or not, may arise on any stage of the proceedings, an in a given case, it may arise at the stage of inception as held by this Court in Om Prakash and Others Vs. State of Jharkhand through The Secretary, Department of Home, Ranchi 1 and another. To quote:

"41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. 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 is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complain may have to be kept in mid. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea......"

The issue of ''police excess'' during investigation and requirement of sanction for prosecution in that regard, was also the subject matter of State of Orissa Through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, wherein, at paragraph-7, it has been held as follows:

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 police 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 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........"

In Om Prakash (supra), this Court, after referring to various decisions, particularly pertaining to the police excess, summed-up the guidelines at paragraph-32, which reads 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 ort attached to his office as to be inseparable from (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 reasonable 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."

In the case of Anil Kumar & Ors. Vs. M.K. Aiyappa, reported in , (2013) 10 SCC 705, wherein the Apex Court has held at para-9 as under:

We will not examine whether the order directing investigation under Section 156(3) of Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance" appearing in Section 19(1) of the PC Act will have to be construed as post cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression "cognizance" which appears in Section 197 of Cr.P.C. came up for consideration before a three-judge Bench of this Court in State of Uttar Pradesh Vs. Paras Nath Singh , (2009) 6 SCC 372, and this Court expressed the following view:

"6..... And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section 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 character of the protection afforded to a public servant is brought out by the expression, ''no court shall take cognizance of such offence except with the previous sanction''. Use of the words ''no'' and ''shall'' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black''s Law Dictionary the word ''cognizance'' means ''jurisdiction'' or ''the exercise of jurisdiction'' or ''power to try and determine causes''. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

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In State of West Bengal and Another Vs. Mohd. Khalid and Others , (1995) 1 SCC 684, this Court has observed as follows:

"It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applied his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the materials placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out."

Learned Magistrate while taking cognizance and ordering summons to the accused persons has not gone into the crux of the matter, as to whether the acts alleged against petitioner/Police Inspector do not require previous sanction from the Government. There is no discussion about the bar contemplated under Section 197 of Cr.P.C. that makes it a non-speaking order in so far as this petitioner is concerned.

The order of the learned Magistrate being in gross disregard to the procedure mandated under Section 195(1) of Cr.P.C. continuation of criminal proceeding against this petitioner/public servant is necessarily abuse of process of law and liable to be asset-aside.

The petition is allowed. The order of the learned Magistrate dated 30.08.2013 so far as the petitioner is concerned, is quashed. The learned Magistrate is directed to re-consider the matter in the light of the observation made above.