A Supreme Court Bench comprising of Justice Anil Dave and Justice Kurian Joseph has held that exercising power of investigation of a criminal case and assaulting a person in order to extract information has an essential connection with discharge of official duty. Consequently, in such cases of ‘police excess’, prosecution without sanction would be illegal.
The allegation before the Court was that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct had an essential connection with the discharge of the official duty.
Under Section 197 of Cr.P.C, in case a Government servant is accused of an offence, alleged to have been committed by him while acting or purporting to act in discharge of his official duty, previous sanction is necessary.
The Bench referred to the guidelines laid down in the case of Om Prakash and others v. State of Jharkhand, (2012) 12 SCC 72, and stated that these guidelines would apply to the case at hand. In the case of Om Prakash, the Court had observed, “The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Cod has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection”
Relying on the factual matrix of the case, the Court observed that the Magistrate could not have taken cognizance of the case without the previous sanction of the State Government.
The appellant, D.T. Virupakshappa was an accused in a private complaint filed by the respondent, C. Subhash. Summons were issued by the JMFC after taking cognizance of the case.
The case involved allegations of police excess while discharging their duty. The complainant had alleged that he was picked up from his garden land at 10 in the morning and was detained till 10 at night. The petitioner directed that the respondent should not be let-out till he reveals or confesses that he is involved in the murder of one Sannamma.
The High Court subsequently refused to interfere under Section 482 of the Cr.P.C. The main contention of the appellant before the Supreme Court was that the Magistrate could not have taken cognizance of the alleged offence and issued process to the appellant without sanction from the State Government under Section 197 of Cr.P.C, and that on that sole ground, the High Court should have quashed the proceedings.
The Court first made it clear that the question whether sanction is necessary or not, may arise on any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by the Supreme Court in Om Prakash and others v. State of Jharkhand.
Ruling that sanction was necessary, the apex Court set aside the order of the High Court as also the proceedings initiated by the Civil Judge and JMFC.
The Bench clarified that a Government sanction can still be obtained and then the Magistrate may proceed further in the case in accordance with law.
Read the Judgment here.