S. Shivakumar & Others vs State Of Karnataka & Others

H.P. Sandesh, J

This petition is filed under Section 482 of Cr.P.C, praying this Court to quash the entire proceedings in S.C.No.145/2019 on the file of Principal

District and Sessions Judge, Chickballapur for the offence punishable under Sections 167, 330, 342, 348, 307 read with Section 149 of IPC (arising out

of C.C.No.572/2014 on the file of Additional JMFC, Chikkaballapur and grant such other reliefs as deem fit in the facts and circumstances of the

case.

The factual matrix of the case is that respondent No.2 herein had lodged the complaint before the learned Magistrate and the same is numbered as

PCR No.215/2013. The learned Magistrate, after receiving the complaint proceeded to record the sworn statement and after recording the sworn

statement, issued the process against these petitioners. The complainant in the complaint made a specific allegation against these petitioners that on

14.05.2010, at about 5.30 a.m., accused No.2 along with his constables came to his house and at that time, his son was not in the house. Hence, the

police instructed to bring his son to Chikkaballapur Police Station for some enquiry. On the same day, one of the friends by name N. Byregowda has

called the complainant on his mobile to inform that he had received the call from Circle Inspector i.e., accused No.1 enquiring about the complainant

and his reputation and accordingly, the complainant went to the police station along with his son. The complainant was also called in connection with

the case, which was registered for snatching of the gold chain, in Crime No.169/2010 for the offence punishable under Section 392 of IPC.

The complainant in the said complaint had appeared before the police but not identified the son of the complainant and after making the enquiry of

the complainant's son, the complainant was relieved with the assurance that they would send his son back after further enquiry, but his son was not

sent back and instead, he was detained in the police station in illegal custody for a period of 2 days and he was subjected to all sorts of torture and

assault. The petitioners herein subjected the complainant's son for mental as well as physical torture. It is also the allegation in the complaint that on

15.05.2010, the complainant met Mr. Burman, the police officer and explained the attitude of the petitioners. Inspite of his advice, the complainant's

son was not released from the illegal custody and instead all sorts of torture were given to him. That on 16.05.2010 at about 2.30 p.m. the complainant

went to the police station again and met accused No.1 and told him that his son is innocent. Accused No.1 assured that he would release the

complainant's son and asked accused Nos.3 to 6 to bring his son and forcibly took his signature on blank paper in the Register maintained at the police

station and on white paper as well as on the brown paper book. Accused No.1 even not allowed the complainant to verify the contents of the

Register. Subsequently, the said Manu was released from the illegal custody. He was humiliated, assaulted and coerced and further threatened not to

reveal the same to anybody. They also threatened him that if he does so, they would put him behind bars permanently and also foist false cases

against him for robbery and dacoity.

That on 16.05.2010, his son was released at 3.00 p.m. and reached home at 6.00 p.m. On 17.05.2010, the complainant's wife noticed the injuries on

the body of his son and took him to Janatha Nursing Home for treatment wherein on examination wound certificate was issued. That on 18.05.2010,

the complainant's son went into depression, for which, again he was taken to RMV hospital, where he was treated as an out patient and also on

19.05.2010, as he was suffering from injuries. The complainant's son left the home at around 4.30 p.m. and went to the house of Madhu and at that

time, the said Madhu was not in his house. He consumed poison in front of his house and left a letter at home and Balraju, who is the uncle of Madhu

called the complainant and told him that Manu was unconscious as he consumed poison. Therefore he was again hospitalized to Janatha Nursing

Home, Dodballapur and got treated till 20.05.2010 and thereafter, he was shifted to Columbia Asia Hospital and discharged on 27.05.2010 and

thereby, he spent an amount of Rs.80,000/- and the copy of the letter addressed by his sons is also produced before the Trial Court. The Doctor of

Janatha Nursing Home intimated the Rural Police Station, Dodaballapur on 20.05.2010 to Janatha Nursing Home and Dodballapur Police had not

registered a case but in turn adviced the complainant to drop the matter. Therefore, he gave the complaint to higher ups and also Human Rights

Commission but no action was taken. Hence, he was forced to file a complaint before the learned Magistrate.

Now the learned counsel appearing for the petitioners would vehemently contend that the very initiation of the private complaint is against the

petitioners, who had discharged their duties in connection with their official capacity, for which no sanction has been obtained as contemplated under

Section 197 of Cr.P.C. and the learned Magistrate also failed to take note of the said fact. Learned counsel would vehemently contend that before

taking cognizance of the offence, the sanction is necessary and the provisions of Sections 200 to 204 of the Cr.P.C. has not been complied with.

Learned counsel for the petitioners also would vehemently contend that the learned Sessions Judge while exercising the Revisional powers failed to

take note of the fact that the learned Magistrate has recorded the sworn statement of the complainant and other witnesses after 1 year 10 months of

the date of complaint. Learned Magistrate, thereafter, on 28.06.2014, took cognizance of the offence invoked against the petitioners and issued the

process. The chain of date of events depicts the inordinate and unexplained delay/laches not only in filing the complaint but also in taking cognizance

of the case against these petitioners, who being the police officers discharged their duties in accordance with law.

Learned counsel for the petitioners also would vehemently contend that the learned Magistrate, erred in recording the sworn statement without

taking cognizance and the same cannot be cured. Learned counsel would further vehemently contend that the police officials were suspended based

on the complaint and thereafter, a departmental enquiry was conducted. In the department enquiry, charges were not proved against them and hence,

the same was dropped. Despite filing the present complaint, the learned Magistrate proceeded to take the cognizance as against the law established.

Learned counsel would contend that the Revisional Court, though passed a detailed order failed to take note of the protection provided under Section

197 of Cr.P.C. and has erroneously dismissed the Revision Petition. Learned counsel also would contend that both the Courts failed to take note of the

fact that these petitioners have not exceeded their limits and they have discharged their duties in connection with their official capacity in performing

the public duty.

Learned counsel, in support of his arguments, relied upon the judgment of this Court in the case of S.Mariswamy and Another v. Venkanna Rao

reported in 2007 (3) KCCR 1751, wherein this Court held that previous sanction for prosecution of Government servants is necessary and held that

petition filed under Section 482 of Cr.P.C. is liable to be allowed and accordingly quashed the proceedings on the ground for want of sanction.

Learned counsel also relied upon the judgment of the Apex Court in the case of Anil Kumar and Others v. M.K.Aiyappa and Another reported in

2013 (5) KCCR 4222 (SC), wherein the Apex Court also dealt with regard to Section 19 of the Prevention of Corruption Act and held that the finding,

sentence or order which has already been rendered by the Special Judge shall not be reversed or altered by a Court in appeal, confirmation or revision

on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed

that there was no previous sanction, as already indicated in various judgments referred to, the learned Magistrate cannot order investigation against a

public servant while invoking the powers under Section 156(3) of Cr.P.C.

Learned counsel also relied upon the judgment of the Apex Court in the case of D.T.Virupakshappa v. C.Subhash reported in 2015 (3) KCCR

2145 (SC), wherein the Apex Court discussed with regard to Section 197 of Cr.P.C. and requirement of sanction to prosecute - the police officer

involving in excesses, and detaining the complainant in police station during the investigation - issue of ""police excess"" and guidelines issued by

Supreme Court in (2004) 8 SCC 40- Action of accused/police officer has nexus with his official duty/investigation - sanction is necessary.

Learned counsel also relied upon the judgment of this Court in the case of Vittal Kumar and Another v. State of Karnataka and Another reported

in 2019 (2) KCCR 1608 with regard to quashing of criminal proceedings. The allegation against the police 0officers of dereliction of duty in not

informing their activities to SHO and that they demanded bribe. The protection without sanction to prosecute cannot be sustained. Hence, proceedings

quashed.

Learned counsel also relied upon the judgment of the Apex Court in the case of D.Devaraja v. Owais Sabbeer Hussain reported in AIR 2020 SC

3292. The learned counsel referring this judgment brought to the notice of this Court para Nos.67 to 80, wherein the Apex Court discussed the

requirement of sanction under Section 197 of Cr.P.C. read with Section 170 of the Karnataka Police Act and held that if a police officer exercises

excess powers while discharging the public duty, the sanction is required.

Learned counsel also relied upon the judgment of the Apex Court in the case of State of Haryana and others v. Ch.Bhajan Lal and others reported

in AIR 1992 SC 604 (1) and brought to the notice of this Court the guidelines laid down by the Apex Court in this judgment.

Learned counsel also relied upon the judgment of the Apex Court in the case of M/s Pepsi Foods Limited and Another v. Special Judicial

Magistrate and others reported in AIR 1998 SC 128 with regard to invoking of jurisdiction under Section 482 of Cr.P.C. In this judgment, the Apex

Court comes to the conclusion that no material showing the appellant/accused were either manufacturer of holding licence for manufacture of

offending bevarages. Complaint and preliminary evidence making out no case against accused and the complaint is liable to be quashed.

Per contra, learned counsel appearing for the respondent-complainant, in his arguments, would vehemently contend that an enquiry is conducted

and in the said enquiry, Deputy Superintendent of Chinthamani has given the report dated 25.06.2010, wherein it is held that these petitioners are guilty

for the torture meted out to the complainant's son. Learned counsel also would vehemently contend that it is not in dispute that he was illegally

confined from 14.05.2010 to 16.05.2010. The medical officer was also examined before the Magistrate and considering the sworn statement of 7

witnesses, learned Magistrate passed a detailed order, which is a reasoned order. Though it is not necessary to pass any detailed order while issuing

the process, the learned Magistrate has considered each of the allegations made in the complaint and also the sworn statement of witnesses, who have

been examined before the Trial Court. When the reasoned order has been passed, question of interfering with the order of the learned Magistrate in

issuance of process does not arise.

Learned counsel also would vehemently contend that in the Revision Petition also, the learned Judge gone in detail and passed the detailed and

reasoned order appreciating each and every legal aspect by discussing in detail and comes to the conclusion that learned Magistrate has not committed

any error in issuing the process. The order passed by the learned Magistrate has attained its finality and earlier also the Crl.P.No.1714/2019 was filed

before this Court and the same was withdrawn. Now the matter is committed to the Sessions Court and the Sessions Court has to conduct the trial.

Learned counsel also brought to the notice of this Court Ex.P.28, which was marked before the Trial Court which discloses that the complainant's

son attempted to commit suicide on 19.05.2010, for which he took treatment in Janatha Nursing Home for more than 8 days and also in other different

hospitals. Ex.P.20 is the medical records. Learned counsel would vehemently contend that the complainant in the chain snatching case was called to

the police station, and he has not identified the son of the complainant herein. Despite, he was detained in illegal custody for a period of two days and

subjected to physical torture. Learned counsel also would submit that the sworn statement of P.Ws.1 to 7 was very clear with regard to the excesses

of the petitioners herein.

Learned counsel would vehemently contend that the principles laid down by the Apex Court in Devaraja's case is not applicable to the case on

hand and in that case also, the Apex Court discussed with regard to excesses of police officials and the scope of Section 197 of Cr.P.C. read with

Section 170 of KP Act was also discussed. Hence, it is not a fit case to exercise the powers under Section 482 of Cr.P.C. to quash the proceedings.

Learned counsel, in support of his arguments, relied upon the judgment of the Apex Court in the case of Surinderjit Singh Mand and Another v.

State of Punjab and Another reported in (2016) 8 SCC 722 and brought to the notice of this Court para No.2, wherein the factual aspects of the case

has been discussed. Learned counsel submits that in this judgment, the Apex Court also discussed the scope of Section 197 of Cr.P.C. in para No.8 of

the judgment. Learned counsel also brought to the notice of this Court para No.12, wherein the Apex Court discussed the principles laid down in the

case of P.K.Pradhan v. State of Sikkim at para No.5 of the said judgment, where it is held that the words occurring in Section 197 of Cr.P.C. mean

any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. It is also observed that

offence alleged to have been committed must have something to do or must be related in some manner, with the discharge of official duty. No

question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was

committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the

act exceeds what is strictly necessary for the discharge of the duty, as the question will arise only at a later stage when the trial proceeds on the

merits.

Learned counsel also brought to the notice of this Court para No.23, wherein the Court also discussed the principles laid down in

P.P.Unnikrishnan's case and discussed the scope of Section 197 of Cr.P.C. Learned counsel referring to this judgment and also the factual aspects of

the case would vehemently contend that it is not a case for quashing of the proceedings. There cannot be any protection under Section 197 of Cr.P.C.

or Section 170 of the KP Act as the allegations are made against the petitioners herein is not in connection with the discharge of their public duty and

no case has been registered against the son of the complainant. Detaining the complainant's son in the illegal custody for a period of two days and

subjecting him for mental and physical torture on the guise of enquiring him, is not in connection with public duty as the petitioners are seeking the

protection invoking Section 197 of Cr.P.C. and Section 170 of KP Act.

Having heard the learned counsel for the respective parties and also on perusal of the materials available on record, before appreciating the same,

this Court would like to make it clear that this Court is exercising the powers under Section 482 of Cr.P.C. While exercising the powers under Section

482 of Cr.P.C., if this Court comes to a conclusion that it is a case of abuse of powers, which leads to miscarriage of justice, the Court can exercise

the jurisdiction under Section 482 of Cr.P.C. and the same also has to be exercised sparingly in order to prevent the abuse of process and miscarriage

of justice. In the light of the scope of Section 482 of Cr.P.C., this Court has to evaluate the materials available on record.

Before evaluating the material, this Court would like to sum up the factual aspects of the case in brief. It is clear that the chain snatching case was

registered in Crime No.169/2010. It is also not in dispute that the son of the complainant was secured in this connection. It is evident in the complaint

that these petitioners went to the house of the complainant at 5.30 a.m. in search of the son of the complainant and he was not found. Hence,

instructed his father i.e., the complainant herein to bring his son and the friend of the complainant was also intimated. Hence, the complainant took his

son to the police station. It is not in dispute that the complainant's son was in the illegal custody of these petitioners for a period of two days and also

enquiry was conducted against them. It is the contention of the learned counsel of the respondent-complainant that a departmental enquiry was

conducted against the petitioners herein and the report dated 25.06.2010, was submitted stating the excesses on the part of these petitioners. It is also

not in dispute that again the matter was entrusted for further enquiry. In the further enquiry, the report was submitted in favour of these petitioners.

Hence, it is clear that at the first instance, report was against these petitioners. The learned counsel for the petitioners also not disputes the fact that

the departmental enquiry report was given initially on 25.06.2010, but he more stresses on the subsequent report.

It is the main contention of the learned counsel for the complainant/respondent that the complainant's son was subjected to physical assault by the

petitioners herein. In order to substantiate the same, the document-Ex.P20 was marked before the learned Magistrate and medical records reveals

that he was inflicted with injuries. In the complaint also, it is specific that those injuries are noticed by the wife of the complainant and thereafter, he

was taken to Janatha Nursing Home, where he took treatment. It is also important to note that due to humiliation caused to him, he took extreme step

of committing suicide on 19.05.2010 within 2 days of letting him free by the police officers after the torture and detaining him in illegal custody from

14.05.2010 to 16.05.2010. The document Ex.P.28 also discloses that he attempted to commit suicide and he took treatment for a period of 10 days in

different hospitals including Janatha Nursing Home and Columbia Asia Hospital. It is also important to note that when the complaint is filed, learned

Magistrate has to look into the contents of the complaint. In the case on hand, the learned Magistrate after receiving the complaint proceeded to

record the sworn statement.

The main contention of the learned counsel for the petitioners is that before recording the sworn statement, the learned Magistrate has to take the

cognizance. He relied upon the several judgments in this regard. There is no dispute with regard to the fact that before recording the sworn statement,

the learned Magistrate has to take cognizance. It has to be noted that this Court in the case of Bangalore Metropolitan Transport Corporation,

Bangalore v. D.Kempanna reported in 2006 SCC online KAR 118 held that if the order does not reveal taking of cognizance and if the learned

Magistrate proceeds to record the sworn statement that would suffice to say that learned Magistrate has deemed to have been taken cognizance. This

Court also in detail discussed regarding the said aspect in the case of Shivraj v. State of Karnataka reported in 2019 (7) KLJ 44, wherein the said

principles has been reiterated. Hence, the very contention of the learned counsel for the petitioners that the learned Magistrate proceeded to record

the sworn statement without taking cognizance cannot be accepted.

The second contention of the learned counsel for the petitioners is that it requires sanction to initiate the criminal prosecution against the police

officials. Learned counsel also relied upon the several judgments in this regard. The Apex Court in its recent decision in Devaraja's case discussed in

detail regarding the protection given under Section 197 of Cr.P.C. read with 170 of KP Act. In para No.68, the Apex Court held that the sanction of

the Government to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from

facing harassive, retaliatory, revengeful and frivolous proceedings. However, discussed that at the same time, if the policeman has committed a wrong,

which constitute a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

It is further observed in para No.69 that every offence committed by a police officer does not attract Section 197 of Cr.P.C. read with Section 170

of KP Act. The protection given under Section 197 of Cr.P.C. read with Section 170 of KP Act has its limitations. The protection is available only

when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak

for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not requires sanction. In

para No.73, it is observed that to decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether

there is a reasonable connection with the official duty. It is further observed in para No.77 that it is well-settled that an application under Section 482

of Cr.P.C. is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of Court. If, on the face

of the complaint, the act alleged appears to have reasonable relationship with the official duty, where the criminal proceedings is apparently prompted

by mala fides and instituted with ulterior motive, power under Section 482 of Cr.P.C. would have to be exercised to quash the proceedings, to prevent

the abuse of process of Court.

In the light of the principles laid down in the judgment referred supra, this Court has to analyse the materials on record. I have already pointed out

that the complainant's son was detained in illegal custody for a period of 2 days is not in dispute and also he was summoned to enquire is also not in

dispute. It is also to be noted that I have already pointed out the medical evidence with regard to the fact that he was subjected to physical torture and

document of Ex.P.28 is clear that he was subjected to man handling and as a result, he took treatment at Janatha Nursing Home. It is also important

to note that on account of said humiliation, he took the extreme step of committing suicide as he was tortured, assaulted and detained in illegal custody

for a period of 2 days in the police station. It is also apparent prima facie on record that departmental enquiry was conducted and at the fist instance

the report was given against these petitioners vide report dated 25.06.2010 and the same would prima facie discloses that the police had excesses their

powers. It is also not in dispute that ultimately the son of the complainant was not arraigned as an accused in the said case. It is also not in dispute that

the very complainant in the said chain snatching case, has not identified the son of the complainant and there are no criminal antecedents against him.

When such being the case, the protection envisaged under Section 197 of Cr.P.C. or Section 170 of KP Act cannot be extended to the petitioners

herein.

Learned Magistrate, in detail considered the statement of witnesses, who have been examined i.e., 7 in number and also while passing a detailed

order, assigned the reasons. Learned Revisional Judge also examined the legal aspect and also the factual aspect of the case and passed a detailed

reasoned order and comes to the conclusion that there is no merit in the revision. The Court also while issuing the process against the petitioners

herein considered the sworn statement as well as allegations made in the complaint and has rightly come to the conclusion that it is a fit case to

proceed against the petitioners herein.

This Court also would like to refer to the judgment of the Apex Court in the case of Choudhury Parveen Sultana v. State of West Bengal and

Another reported in (2009) 2 SCC (Cri) 122 regarding Section 197 of Cr.P.C, wherein the object, nature and scope of Section 97 of Cr.P.C. has been

reiterated. Wherein it is held that all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be

brought under the protective umbrella of Section 197 of Cr.P.C. Further, there can be cases of misuse and/or abuse of powers vested in a public

servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of Section 197 Cr.P.C. is to

enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution

initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested

in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197

Cr.P.C. and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for

such excesses or misuse of authority, no protection can be demanded by the public servant concerned.

The Apex Court also in the judgment of P.P.Unnikrishnan v. Puttiyottil Alikutty reported in (2000) 8 SCC 131, wherein the Apex Court observed

as follows:-

If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and

exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3)

of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority

or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer

wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court it would be an

offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A

policeman peeping a person in the-lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside

the contours of his duty or authority.

Having taken note of the principles laid down in the judgments referred supra and also the documents relied upon by the learned counsel for the

petitioners and so also the learned counsel appearing for the respondent No.2, it is clear that the son of the complainant was detained in the police

custody for a period of two days illegally. He was not only detained but also subjected to physical torture, which is evident as per document Ex.P20

marked before the learned Magistrate. When the complainant's son was subjected to humiliation, he took extreme step of committing suicide and

immediately, he was taken to the hospital, and he took treatment for almost 10 days in different hospitals and his health was deteriorated and the same

is evident from the document Ex.P28, which was marked before the learned Magistrate.

It is also important to note that it is not in dispute that the case has been registered against the unknown person, who snatched the chain. The

petitioners herein are also not disputing the fact that the son of the complainant was secured to the police station. It is also important to note that he

was not identified by the complainant in the chain snatching case and that he has not been arraigned in the case subsequent to the investigation also

but he was in illegal custody of the petitioners herein and subjected him for physical torture. When an innocent person was taken to the police station

without arresting him and detained illegally in the custody and that apart, he was subjected to torture, no criminal antecedents against him, the act of

the police officers cannot be termed as the act done in connection with discharge of public duty as it is nothing but misuse of powers vested with the

petitioners, who are the police officials. The Court also has to take note of the result of detaining an innocent person in the illegal custody and

subjecting him for physical torture, which is not reasonably connected with the official duty. When such being the case, the protection as contended by

the learned counsel for the petitioners cannot be extended and there cannot be quashing of any criminal prosecution against the petitioners herein for

want of sanction. There is ample materials against the petitioners herein, which has been considered by the learned Magistrate and also the Revisional

Court and both the Courts, while issuing the process and confirming the order of issuance of process, taken note of the question of fact as well as the

question of law and passed a reasoned order. Hence, I do not find any merit in the petition to exercise the powers under Section 482 of Cr.P.C. in

quashing the proceedings initiated against the petitioners herein.

In view of the discussions made above, I pass the following:

ORDER The petition is hereby rejected.

In view of rejection of the main petition, I.A.No.1/2021 does not survive for consideration and the same stands disposed of.