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2023 DIGILAW 563 (KER)

A. Anoop v. Baby Joseph, W/o. Joseph

2023-07-21

A.BADHARUDEEN

body2023
ORDER : 1. This petition has been filed under Section 482 of the Criminal Procedural Code (for short ‘the Cr.P.C’ hereinafter). The prayer in this petition is to quash Annexure-A1 complaint and further proceedings thereafter, now pending as C.C. No. 1584/2015, before the Judicial First Class Magistrate Court, Kalady. 2. Heard the learned counsel for the petitioner, learned counsel appearing for the defacto complainant and the learned Public Prosecutor in detail. 3. Background facts: The complainant lodged complaint alleging commission of offences punishable under Sections 341, 447, 452, 294(b), 506(ii) and 509 r/w 34 of Indian Penal Code, by accused Nos.1 and 2. The precise allegation led to filing of the complaint runs on the premise that at about 12.15 a.m, on 10.02.2015, the 1st accused, who is the Sub Inspector of Police, Kalady, along with another policemen (A2) of Kalady Police Station, reached the residence of the complainant and broke open the house, trespassed upon the house and searched about Mr. Shyjo, who is the son of the complainant. Further allegation is that, accused Nos. 1 and 2 searched Mr. Shyjo by using a torch light and pulled down the bed. The learned Magistrate took cognizance for the said offences, following enquiry under Section 202 of the Cr.Pc and now the matter has been pending as C.C.No. 1584/2015. 4. The petitioner who is arrayed as the 1st accused in this Crime seeks to quash the complaint and further proceedings thereafter and it is submitted by the learned counsel for the petitioner that the 1st petitioner/accused is a public servant and the allegation in the complaint is one arose out of his official duty. Therefore, in order to prosecute the 1st accused, sanction provided under Section 197 (1) Cr.P.C should have been obtained and the prosecution now pending without due sanction under Section 197 (1) of the Cr.P.C is bad in law. Further it is pointed out that there is nothing in this matter to take cognizance for the above said offences. Hence, the learned counsel sought quashment of proceedings as prayed for. 5. The counsel for the petitioner placed the latest decision of apex Court in A. Srinivasulu Vs. The State Rep. Further it is pointed out that there is nothing in this matter to take cognizance for the above said offences. Hence, the learned counsel sought quashment of proceedings as prayed for. 5. The counsel for the petitioner placed the latest decision of apex Court in A. Srinivasulu Vs. The State Rep. By the Inspector of Police (2023 LiveLaw (SC) 485) to canvass the contention that if the act alleged to be done in discharge of the official duty of a public servant, sanction and parameters laid in Section 197(1) of the Cr.PC are mandatory. 6. While opposing the contentions raised by the learned counsel for the petitioner, by reading the allegations in the present case in segregation from the official duty of the petitioner, the learned counsel for the first respondent submitted that, when public servant exceeds his official duty and do something, then, the sanction provided under Section 197(1) of the Cr.PC, is not either mandatory or necessary. Therefore, for want of sanction, the present complaint is not liable to be quashed. In support of his argument, the learned counsel for the 1st respondent placed three Bench decision of the Apex Court reported in Amod Kumar Kanth Vs. Association of Victims of Uphaar Tragedy & anr ( 2023 ICO 892), wherein it was held as under; “When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts and therefore, would have to be decided on a case to case basis.” 7. In view of the rival arguments, the question poses is, how far protection in the form of sanction under Section 197 (1) Cr.P.C is available to a public servant, when there is allegation that a public servant committed an offence? While addressing this query, it is apposite to refer Section 197(1) of the Cr.P.C, which reads as under; “(1) 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- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government….” 8. In the decision in A. Srinivasulu (supra), the Apex Court considered various earlier decisions of the Apex Court including the decision in Devinder Singh v. State of Punjab through CBI ( 2016 (12) SCC 87 ). 9. In A. Srinivasulu (supra), the Apex Court also referred the decision in Parkash Singh Badal Vs. State of Punjab [ (2007) 1 SCC 1 ], wherein the Apex Court held as under; “50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.” 10. Then the Apex Court held that: The observations contained in paragraph 50 of the decision in Parkash Singh Badal’s case (supra), are too general in nature and cannot be regarded as the ratio flowing out of the said case. In such cases, official status only provides an opportunity for commission of the offence.” 10. Then the Apex Court held that: The observations contained in paragraph 50 of the decision in Parkash Singh Badal’s case (supra), are too general in nature and cannot be regarded as the ratio flowing out of the said case. If by their very nature, the offences under Sections 420, 468, 471 and 120B cannot be regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty, the same logic would apply with much more vigour in the case of offences under the PC Act. It has been held further that, Section 197 of the Code did not carve out any group of offences that would fall outside its purview. Therefore, the observations contained in para 50 of the decision in Parkash Singh Badal cannot be taken as carving out an exception judicially, to a statutory prescription. In fact, Parkash Singh Badal cites with approval the other decisions (authored by the very same learned Judge) where this Court made a distinction between an act, though in excess of the duty, was reasonably connected with the discharge of official duty and an act which was merely a cloak for doing the objectionable act. Interestingly, the proposition laid down in Rakesh Kumar Mishra (Supra) was distinguished in paragraph 49 of the decision in Parkash Singh Badal (Supra), before the Court made the observations in paragraph 50 extracted above. 11. Finally it was held in A. Srinivasulu (Supra), that a public servant would be considered to have acted in the discharge of his official duty at the time of commission of an alleged offence, if the public servant could take over, rightly or wrongly, under any existing policy, and as such would be gathered protection under Section 197 of Cr.P.C. 12. Tracing the judicial precedents, in regard to the question posed; In [ 1955 (2) SCR 925 : ( AIR 1956 SC 44 ), Matajog Dobey v. H.C.Bhari the Constitution Bench of the Hon’ble Supreme Court has held as under: “20. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in [(1939) FCR 159, 178 : (AIR 1939 FC 43)], Hori Ram case and also in [(1945) FCR 227 : (AIR 1946 FC 25)], Sarjoo Prasad v. King – Emperor, Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at P -179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: “Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground”. The other learned Judge also states at p. 185, “At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty”. It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether 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.” 13. In [ 1979 (4) SCC 177 : ( AIR 1979 SC 1841 ), B.Saha and Ors. v. M.S.Kochar, the Hon’ble Supreme Court has held that the question of sanction for prosecution under S.197, Cr.P.C can be raised and considered at any stage of the proceedings. The necessity may reveal itself in the course of the progress of the case.” 13. In [ 1979 (4) SCC 177 : ( AIR 1979 SC 1841 ), B.Saha and Ors. v. M.S.Kochar, the Hon’ble Supreme Court has held that the question of sanction for prosecution under S.197, Cr.P.C can be raised and considered at any stage of the proceedings. While considering the question as to whether the sanction for prosecution is required, it is not necessary for the Court to confine itself to the allegation made in the complaint, rather it can take into account all the materials available on record at the time when the said question falls for consideration. 14. In [ AIR 1967 SC 776 : 1967 CriLJ 665], P. Arulswami v. State of Madras, the Apex Court held as under: (AIR p. 778, para 6): “It is not therefore every offence committed by a public servant that requires sanction for prosecution under S.197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S.197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable." 15. In the case of B. Saha ( AIR 1979 SC 1841 ) (supra), the Hon'ble Supreme Court at paragraph No.17 has held as under: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in S.197(1) of the Code, are capable of a narrow as well as a wide interpretation. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in S.197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of S.197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P. [ AIR 1966 SC 220 , 227 : 1966 (1) SCR 210 : 1966 CriLJ 179], "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by S.197 of the Criminal Procedure Code will be attracted." 16. In [ 2001 (6) SCC 704 : ( AIR 2001 SC 2547 )], P.K. Pradhan v. State of Sikkim, represented by the Central Bureau of Investigation, the Hon'ble Supreme Court has held as under: "5. The legislative mandate engrafted in sub-section (1) of S.197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in S.197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The 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 S.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 this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation." 17. In [ 2016 (12) SCC 87 : ( AIR 2016 SC 2090 )], Devinder Singh and Ors. v. State of Punjab, the Hon'ble Supreme Court summarised 9 principles when considering the question of sanction. 18. When answering the legal question, posed herein, it has to be held that, when a question arose as to whether an act or omission which constitutes an offence in law has been done in discharge of official functions by a public servant, for which sanction under Section 197 of Cr.P.C is mandatory, the said question to be considered based on the facts of the case and overall analysis of the materials available would decide the question and the decision must be on a case to case basis. The principles governing necessity of sanction can be summarized as under: 1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 2. The principles governing necessity of sanction can be summarized as under: 1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent S.197, Cr.P.C. has to be construed narrowly and in a restricted manner. 3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under S.197, Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under S.197, Cr.P.C., but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of S.197, Cr.P.C. would apply. 5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. There is no requirement that the accused must wait till charges are framed. 7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 10. Whether 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. 11. While considering the question as to whether the sanction for prosecution is required, it is not necessary for the Court to confine itself to the allegation made in the complaint, rather it can take into account all the materials available on record at the time when the said question falls for consideration. 12. It is not therefore every offence committed by a public servant that requires sanction for prosecution under S.197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S.197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. 13. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in S.197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be." 19. Holding the legal position as such, when evaluating the facts of this case, the counter statement filed by the Sub Inspector of Police, Kalady Police Station, dated 04.07.2016, is very relevant. In para 4 it has been submitted as under: “Mr. Shyjo, S/o Joseph, Payyappilly house, Pothiyekkara, Mattoor village is involved in several cases in connection with assaults, house trespass, attempt to murder, counterfeiting currency, Kidnapping in Kalady Police Station and neighboring police stations. He was a station rowdy and Rowdy history sheet is opened on 09.01.2015 as per the order of DySP Perumbavoor in No. 11/Rowdy HS/SDP/2015. And as per this order he was to be closely watched for is current activities. And later KAAPAS report was initiated against him for his several anti social activities and KAAPA order was sanctioned from the office of the Inspector General, Kochi Range as per the order No. 08(N)/camp/2015 KOR dated 19.11.2015 for not entering in Ernakulam District.” 20. On perusal of the statement, it is crystal clear that the 1st accused herein, along with the other police man (A2) reached the house of defacto complainant, in search of Mr. Shyju, the son of the complainant having rowdy history and a habitual offender, against whom KAAPA proceedings were initiated on 09.01.2015. On perusal of the statement, it is crystal clear that the 1st accused herein, along with the other police man (A2) reached the house of defacto complainant, in search of Mr. Shyju, the son of the complainant having rowdy history and a habitual offender, against whom KAAPA proceedings were initiated on 09.01.2015. If so, it is difficult to carve out a difference in this particular case to hold that the Sub Inspector exceeded the limits of his power, since his attempt was to arrest a criminal who is none other than the son of the defacto complainant. If so, sanction provided under Section 197 (1) of Cr.PC is mandatory in the facts of the present case. Therefore, in order to protect the petitioner herein, sanction under Section 197(1) of the CrPC is mandatory. 21. To sum up, this petition succeeds upholding the contentions raised by the learned counsel for the petitioner. In the result, this petition stands allowed and as a sequel thereof Annexure A1 complaint and further proceedings as C.C.No. 1584/2015 before the Judicial First Class Magistrate Court, Kalady stand quashed.