Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 627 (KAR)

HANUMANTHAPPA v. S. B. MASTAMARADI

2003-07-31

K.RAMANNA

body2003
K. RAMANNA, J. ( 1 ) ALL these seven criminal revision petitions are filed by the respective revision petitioners under S. 397 Cr. P. C. against the orders dated 12-6-2001, 7-7-2001, 26-5-2001, 26-5-2001, 7-7-2001, 7-7-2001 and 5-7-2001 passed by the II Addl. Civil Judge (Jr. Dn.) and JMFC, Ranebenur in Private Complaint Nos. 25/95, 30/95, 31/95, 28/95, 27/95, 29/95 and 32/95, respectively, whereby the Court below returned the complaints on the ground that the respective complainants have not obtained the prior sanction as per the provisions of S. 197 of Cr. P. C. and S. 170 of the Karnataka Police Act to take cognizance of the case. ( 2 ) SINCE the respondent in all these cases are common and common question of fact and law are involved, all of them are clubbed and heard together and are being disposed of by this common order. ( 3 ) THE brief facts that are to be noted are as follows :- on 1-4-1995 at about 11. 20 p. m. when the respective petitioners were in their house, at Sunkalbidari village of Rane-bennur Taluk/the respondent accused took them forcibly by saying that he wants to take their statement and get medical treatment, even though the complainants were suffering with pain on account of the grievous injuries sustained by them. Thereafter, they were produced before the Medical Officer, General Hospital, Ranebennur and then took them to the Police Station and illegally confined them in the Police station from 1-4-1995 to 3-4-1995, without allowing them to go out and then produced them before the Court on the evening of 3-4-1995. Even though, the respondent/accused was aware that his act was illegal and out of purview of his duty, the petitioners/complainants were wrongfully confined in the Police Station and that the respondent/accused threatened them. Further case of the petitioners is that they came to know that they were produced before the Magistrate in Crime No. 50/95 and at that time all the petitioners in the aforesaid cases, brought to the notice of the Court that by saying that they were illegally confined from the night of 1-4-1995 till 3-4-1995 and their say has been recorded by the learned Magistrate and advised them to file a complaint and then they undergone treatment. The illegal act of the respondent has been witnessed by their respective family members. The illegal act of the respondent has been witnessed by their respective family members. ( 4 ) IN this behalf, learned counsel for the revision petitioners submitted that in order to file a complaint against a public servant, no prior permission or sanction from the appointing authority to prosecute the respondent is necessary, if the illegal act of the respondent does not require any prior sanction to prosecute him. Therefore, returning of the complaints by the Magistrate before the issuance of summons to the accused is perverse, illegal and uncalled for and therefore, the perverse finding recorded by the learned Magistrate is only on the ground that prior sanction is necessary to take cognizance of the case. In support of the aforesaid contention he has relied on a decision reported in (1973)1 Mad LJ 94 in the case of G. Govindaraju v. Babu Poojary wherein it was held thus :"the Sub-Inspector was not entitled to the protection conferred by S. 170 (1) of the Mysore Police Act and no previous sanction of the Government was, therefore, necessary for prosecuting him. Ss. 161 and 163 Cr. P. C. prohibit police officers from beating and confining persons with a view to induce them to make statements. In view of this statutory prohibition, it cannot be said that the acts complained of by the complainant were acts done by the accused under the colour of his duty or authority. The alleged acts of beating and confinement fell completely outside the scope of the duties of the Police Officer. " ( 5 ) ON the other hand, Sri V. M. Hiremath, learned counsel for respondent accused submitted that since the respondent is a public servant, in order to prosecute him, a prior sanction is required from the appointing authority. Therefore, in the instant case a private complaint filed by the petitioners in the aforesaid cases is without prior sanction and therefore, the trial Court has rightly come to the conclusion and returned the complaint on the ground that the prior sanction is a must. It is further contended that in such cases, it is the bounden duty of the petitioners/complainants to show that there was no nexus between the alleged act of wrongful confinement for three days. There must be reasonable connection or nexus in between the alleged act of wrongful confinement and the duty or authority imposed upon the officer. It is further contended that in such cases, it is the bounden duty of the petitioners/complainants to show that there was no nexus between the alleged act of wrongful confinement for three days. There must be reasonable connection or nexus in between the alleged act of wrongful confinement and the duty or authority imposed upon the officer. ( 6 ) I have carefully perused the record. In para 7 of the impugned order under challenge, the trial Court has specifically observed that the predecessor in office has taken the cognizance and registered the case and thereafter, sworn statement of the complainants were recorded. But, some how the trial Court has taken a view that prior sanction has not been obtained by the petitioners to prosecute the public servant viz. , respondent/accused herein. In order to appreciate the contention of both parties, it is just and proper to cull out S. 197 of Cr. P. C. and S. 170 of the Karnataka Police Act:-"section 197 of Cr. P. C. :- When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction. " "section 170 of the Karnataka Police Act, 1963 :- Suits or Prosecutions in respect of Acts done under colour of duty as aforesaid not to be entertained without sanction of Government. " ( 7 ) IT is a fact that the revision petitioners herein were arrested in Cr. No. 50/95 of Halageri Police Station and produced them before the Magistrate. According to them, when they were produced before the concerned Magistrate they complained before the Court that they were illegally detained. It is a well settled law that if any person accused of an offence arrested he shall be produced before the Magistrate within 24 hours from the time of arrest. In the instant case, at the threshold, the trial Court has returned the private complaints filed against the respondent on the ground that prior sanction is necessary to take cognizance of the offences. In the instant case, at the threshold, the trial Court has returned the private complaints filed against the respondent on the ground that prior sanction is necessary to take cognizance of the offences. In the instant case, no such order has been passed to show that after recording the sworn statement and after considering the materials placed on record by the revision petitioners, the Court found that a prior sanction is required to take cognizance, which amounts to perverse finding recorded by the trial Court. Hence, it is just and proper to set aside the impugned order under revision and remand the same to the trial Court with a direction to give an opportunity to the revision petitioners to prove about the allegations made by them against the respondent for their illegal detention in the Police Station for more than 24 hrs. ( 8 ) IT is undisputed fact that after presentation of the complaint the trial Court took the cognizance of the case and thereafter recorded the statement of the complainant and passed the impugned order only on the ground that the prior sanction to prosecute the respondent is not obtained. It is undisputed that the respondent herein is a PSI of the aforesaid police station and he produced before the Magistrate all the petitioners in Crime No. 50/95 which clearly shows that the petitioners in all the cases were accused in Crime No. 50/95. Therefore, the decision relied on by the revision petitioners is not applicable to the facts of the case on hand. In that case the PSI illegally assaulted the complainant and wrongfully confined them in the police station. In the aforesaid case this Court has come to the conclusion that acts done by the respondents-PSI under the colour of his duty or authority does not require any prior sanction for prosecution. Whereas, in the instant case the PSI of a particular station said to have detained all the petitioners in the police station even though they had sustained injuries and produced before the Magistrate after treatment. But the trial Court has returned the complaints for want of sanction under S. 197 Cr. P. C. read with S. 170 of the Karnataka Police Act. The proper course to the Magistrate was to keep open the question of sanction till the appearance of the accused. But the trial Court has returned the complaints for want of sanction under S. 197 Cr. P. C. read with S. 170 of the Karnataka Police Act. The proper course to the Magistrate was to keep open the question of sanction till the appearance of the accused. In this behalf a reference may be made to a decision reported in H. Shavappa v. Puttaswamy 1992 Cri LJ 167 wherein it has been held that sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Therefore the Magistrate is not justified in dismissing the complaint on the ground of want of sanction without examining the necessary ingredients of the offences with reference to the allegations made in the complaint. ( 9 ) WHEREAS in the instant case, without examining the allegations made in the complaints as well the sworn statements of the revision petitioners the Magistrate returned the said complaints filed by the respective petitioners. If the learned Magistrate thought it fit that the materials placed on record are not sufficient to consider the complaints he should have dismissed them but he cannot return the complaints. The order of returning of complaints by the learned Magistrate for want of sanction of the Government to prosecute the respondent accused is perverse and illegal. Hence the order under revision passed by the trial Court is liable to be set aside, accordingly it is set aside. ( 10 ) WITH the above observations, all these revision petitions are allowed; the order under revision passed by the trial Court is set aside and the learned Magistrate is directed to dispose of the complaints in accordance with law, after hearing the revision petitioners. Petitions allowed. --- *** --- .