Absence Of Prior Sanction U/s 197 CrPC Renders Cognizance For Offences U/s 323 & 504 IPC By Magistrate For Initiating Criminal Prosecution Of Public Servant, Non-Est: Rajasthan High Court

Pankaj Bajpai

24 May 2024 1:30 PM GMT

  • Absence Of Prior Sanction U/s 197 CrPC Renders Cognizance For Offences U/s 323 & 504 IPC By Magistrate For Initiating Criminal Prosecution Of Public Servant, Non-Est: Rajasthan High Court

    Finding that the entire series of events have nexus with each other and the action of petitioner (SHO) was done in discharge of his official duties, the Rajasthan High Court (Jodhpur Bench) held that the cognizance for offences under Sections 323 and 504 IPC, taken by the Judicial Magistrate against a public servant, posted as Station House Officer (SHO), is unsustainable in law, in absence...

    Finding that the entire series of events have nexus with each other and the action of petitioner (SHO) was done in discharge of his official duties, the Rajasthan High Court (Jodhpur Bench) held that the cognizance for offences under Sections 323 and 504 IPC, taken by the Judicial Magistrate against a public servant, posted as Station House Officer (SHO), is unsustainable in law, in absence of prior sanction, which is a statutory requirement in view of Section 197 CrPC, for initiating criminal prosecution of a public servant.

    The High Court clarified that petitioner did acts being posted as SHO of Police Station, he should not be deprived from the protection of law as available to a public servant against his criminal prosecution by virtue of Section 197 CrPC.

    The underlying object of Section 197 CrPC is to enable the authorities to scrutinise 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.

    A Single Judge Bench of Justice Sudesh Bansal observed that “Merely based on remote presumption, the Judicial Magistrate erred in taking cognizance for offences under Sections 323 and 504 IPC against the petitioner that too without insisting for previous sanction in view of Section 197 CrPC, more particularly when the Judicial Magistrate himself agreed that the action of petitioner to arrest the complainant along with other two persons, was done in discharge of his official duty”. (Para 14)

    The brief facts were that during the posting of petitioner, as SHO, Police Station Masooda, District Ajmer, a criminal complaint was filed against him alleging that three persons were illegally detained for one day in the Police Station, and were abused, misbehaved and beaten up with a rubber belt by the petitioner, in utter misuse of his powers as SHO. Also, without undertaking their medical check-up, they were produced next day in the Court of SDM. Even though written complaint was made to the Assistant Superintendent of Police, Beawar, complaining about arbitrary and illegal acts of petitioner, done by him with complainant, no action was taken on this complaint. Thereafter, complaint was filed before Judicial Magistrate to criminally prosecute the petitioner for offences under Sections 323, 342, 365 and 504 IPC. The Police, after thorough investigation, submitted negative final report before the Judicial Magistrate.

    As per record, and true picture came to light that indeed complainant and other two persons were arrested by the Police u/s 151 CrPC in order to prevent commission of any cognizable offence by them, as they were found causing breach of peace and about to assault on the family of one Bhanwar Singh as also they attempted to assault on the Police party, who reached at the spot to control the situation of law & order. This complaint was registered on record in the Court of SDM after making compliance of Sections 111 and 112 CrPC, reading over the charge and order before the accused persons, all three accepted their guilt. Accordingly, the SDM passed an order allowing to release all three accused persons on furnishing of bail bonds. As per statements of complainant and witnesses, allegations against the petitioner in the criminal complaint, were found to be afterthoughts/fictitious and made just to harass the petitioner and to tarnish his image and position. However, the Judicial Magistrate passed an order taking cognizance for offences under Sections 323 and 504 IPC and issued process against the petitioner, to prosecute him.

    After considering the facts, the Bench noted that if complainant and other persons had suffered simple injuries of bruises, abrasions, swelling etc. on their body parts, while in lockup, they could complain before the SDM at the first instance itself, but it was not done.

    It is only based on subsequent injury report, a complaint has been filed by the complainant alleging misuse of power by the petitioner, before the Judicial Magistrate, added the Bench.

    The Bench also noted from the record of Judicial Magistrate, that arrest and detention of complainant with other two persons at Police Station Masooda was made by the Police in lawful exercise of powers u/s 151 CrPC in order to prevent commission of a cognizable offence and to prevent breach of peace and tranquility in the society by the culprits.

    Finding that Judicial Magistrate had clearly observed and held that the detention of complainant was not illegal detention, the Bench clarified as as far as allegation of complainant for his illegal detention is concerned, the same has been found to be false and contrary to record and no cognizance for offence under Sections 365 and 342 IPC has been taken by the Judicial Magistrate.

    However, the Judicial Magistrate draw a presumption that abrasions, bruises and swelling on the body parts of complainant and Mohan Singh, are result of beatings allegedly given to them by the petitioner during their detention in the police station, whereas the Magistrate himself has accepted that their detention was lawful and for valid reasons as much as a criminal complaint under Sections 107/116(3) read with 151 CrPC was filed by the Police against them before the Court of SDM, after completing the investigation, added the Bench.

    The Bench observed that cognizance of offence can be taken based on presumption or suspicion about occurrence of an offence, but in the present case, presumption of truthfulness of the allegations made by the complainant, may not be presumed because, the complainant did not produce correct and complete facts on record before the Judicial Magistrate.

    It was only after the investigation by the Police, complete facts came on record that a criminal complaint under Sections 107/116(3) read with 151 CrPC was filed by the Police against the complainant and other two persons, when they were produced before the Court of SDM, added the Bench.

    Therefore, the Bench stated that the complainant had deliberately and knowingly concealed the facts that he accepted his guilt and the allegations leveled against him by the Police in the criminal complaint filed under Sections 107/116(3) read with 151 CrPC.

    “Where the criminal complaint has been filed after 4-5 days from the incident on the basis of post injury report dated 24.05.2003, more over making out a false story of his illegal detention, possibility of involving the petitioner in the criminal litigation just to wreck vengeance, may not be ruled out”, observed the Bench.

    The High Court concluded that the action of Police including the petitioner, is nothing but the action, as a whole, falls within purview of words “while acting or purporting to act in the discharge of his official duty” and therefore, petitioner should be held entitled for statutory protection against the criminal prosecution as envisaged u/s. 197 CrPC.

    The High Court therefore allowed the criminal petition and held that prosecution of the petitioner is not liable to proceed further in absence of sanction u/s 197 CrPC and set aside the order of cognizance as also the order of revisional Court.

    Case Followed: D. Devaraja Vs. Owais Sabeer Hussain [(2020) 7 SCC 694]

    Case Distinguished: Shadakshari Vs. State of Karnataka [Criminal Appeal No.256/2024] / [2024 LiveLaw (SC) 42].

    Counsel for Petitioner: Senior Advocate A.K. Gupta and Advocate Saurabh Pratap Singh & Gaurav

    Counsel for Respondent: S.S. Mahla

    Dharamveer Singh vs State of Rajasthan

    S.B. Criminal Miscellaneous (Petition) No. 2146/2011

    Click here to read/ download the Judgment

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