D. Devaraja vs Owais Sabeer Hussain

1.2 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. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 Cr.P.C. read with Section 170 of the Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government. [Para 68][482-F-H]

1.3 Every offence committed by a police officer does not attract Section 197 Cr. P.C. read with Section 170 of the Act. The protection given under Section 197 Cr.P.C. read with Section 170 of the 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. [Para 69] [483-A-B]

1.4 An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. [Para 70, 71][483-C-D]

1.5 The language and tenor of Section 197 Cr. P.C. and Section 170 of the Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. [Para 72][483-E-F]

1.6 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. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. [Para 73][483-F-G]

1.7 If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 Cr.P.C. and/or Section 170 of the Act. Whether sanction is necessary or not may have to be determined at any stage of the proceedings. [Paras 74 & 76][483-H; 484-A, D] Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 : [1955]

2 SCR 925 – followed.

Pukhraj v. State of Rajasthan and Another (1973) 2 SCC 701 : [1974] 1 SCR 559; Amrik Singh v. State of Pepsu AIR 1955 SC 309 : [1955] 1 SCR 1302; State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 : [2004] 3 SCR 504; Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287 : [1955] 1 SCR 1177; P. Arulswami v. State of Madras AIR 1967 SC

776 : [1967] 1 SCR 201; B. Saha and Others v. M.S. Kochar (1979) 4 SCC 177 : [1980] 1 SCR 111;

Virupaxappa Veerappa Kadampur v. State of Mysore AIR 1963 SC 849 : [1963] Suppl. SCR 6; Om Prakash & Ors. v. State of Jharkhand & Anr. (2012) 12 SCC

72 : [2012] 9 SCR 125; Sankaran Moitra v. Sadhna Das and Another (2006) 4 SCC 584 : [2006] 3 SCR 305; K.K. Patel and Another v. State of Gujarat and Another (2000) 6 SCC 195 : [2000] 1 Suppl. SCR 312; D.T. Virupakshappa v. C. Subash (2015) 12 SCC 231 : [2015] 5 SCR 534; Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and Others (2001) 5 SCC 7 : [2001] 3 SCR 766 – relied on.

Devinder Singh & Ors. v. State of Punjab through CBI (2016) 12 SCC 87 : [2016] 6 SCR 295; Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr. CBI (2011) 6 SCC 1 : [2011] 6 SCR 138; State of Andhra Pradesh v. N. Venugopal and Others AIR 1964 SC 33 : [1964] 3 SCR 742 – distinguished.

Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43; H.H.B. Gill v. Emperor AIR 1947 FC 9; H.H.B. Gill v. R AIR 1948 PC 128; Bhanuprasad Hariprasad Dave v. State of Gujarat AIR 1968 SC 1323 : [1969] 1 SCR 22; State of Maharashtra v. Atma Ram AIR 1966 SC 1786; Bakhshish Singh Brar v. Gurmej Kaur & Anr. (1987) 4 SCC 663 : [1988] 1 SCR 450; Om Prakash & Ors. v. State of Jharkhand & Anr. (2012) 12 SCC 72 : [2012]

9 SCR 125 – referred to.

2.1 An application under Section 482 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 a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 Cr.P.C. would have to be exercised to quash the proceedings, to prevent abuse of process of court. [Para 77][484-E-F]

2.2 The records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty. [Para 78][485-H]

2.3 The High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section

245 Cr.P.C. to seek discharge. [Para 80][485-C-D]

State of Haryana and Ors. v. Bhajan Lal and others (1992) Suppl. 1 SCC 335 : State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 : [2004] 3 SCR 504 – referred to.