IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7297 OF 2013 BETWEEN:
SRI MALLESH S/O SRI MAREGOWDA, AGED ABOUT 39 YEARS, INSPECTOR OF POLICE, JIGANI POLICE STATION, ANEKAL TALUK, BANGALORE RURAL DISTRICT-562 106 ... PETITIONER (BY SRI: C R GOPALASWAMY, ADVOCATE) AND:
1. STATE BY HOSKOTE POLICE BANGALORE, REPT.BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BANGALORE-560 001 2. SRI THIMMARAYAPPA S/O SRI RAMANNA, AGED ABOUT 48 YEARS, R/AT VABASANDRA VILLAGE, KASABA HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT-562 114 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: G.NATARAJ, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CRIMINAL PROCEEDINGS INITIATED IN C.C.NO.313/2008 (ARISING OUT OF PCR NO.17/2013) PENDING ON THE FILE OF THE C.J. (JR. DN.) AND J.M.F.C., HOSKOTE IN PURSUANT TO THE COGNIZANCE TAKEN BY THE LRD. JUDGE VIDE ORDER DATED 28.06.2008.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner, learned Additional SPP for respondent No.1 and learned counsel for respondent No.2.
2. Petitioner has called in question the order taking cognizance by the learned Magistrate for the offences punishable under sections 323, 331, 342 and 506 of Indian Penal Code.
3. The undisputed facts are that one Guttappa lodged a complaint against Respondent No.2 [hereinafter referred to as ‘Complainant’]. Petitioner herein who was Sub Inspector of Hoskote Police Station summoned the Respondent No.2 to the Police Station. It is alleged that Respondent No.2 was detained in the Police Station till 6 pm. He was declothed and he was also made to remain in bare body. In the presence of aforesaid Guttappa, petitioner scolded and abused Respondent No.2 in foul and filthy words and hit him on cheek and warned him not to come in the way of enjoyment of the property by said Guttappa. Respondent No.2 fell down and at that time, he was threatened that if he obstructed aforesaid Guttappa in any manner, he shall make him to die in lock up.
4. The above facts indicate that Respondent No.2 was summoned in connection with the complaint lodged by one Guttappa. Petitioner herein had taken up investigation and in the process, he summoned Respondent No.2 for enquiry. Therefore, the acts performed by petitioner having emanated in the course of discharge of his official duties, any excesses committed by petitioner in my view gets protection under section 197 of Cr.PC.
5. Dealing with the requirement of prior sanction for prosecution of a public servant under Section 197 Cr.P.C., the Hon’ble Supreme Court in ‘STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND OTHERS vs. GANESH CHANDRA JEW, (2004) 8 SCC 40, wherein it is held that, “This protection 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.”
In the said case, the accusations against the appellant before the Hon’ble Supreme Court was that he exceeded in exercising his powers 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. Considering the said allegations, in the light of the principles laid down in the earlier case, the Hon’ble Supreme Court has held that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant and in that view of the matter, the proceedings against the appellant therein were quashed.
6. The facts narrated in the compliant manifestly discloses that the alleged acts were perpetrated by the petitioner in the course of discharge of his official duty. The alleged acts are reasonably connected with the performance of the official duty of the petitioner.
7. Learned counsel for Respondent No.2 has placed reliance upon another decision of the Hon’ble Supreme Court in ‘SHAMBHOO NATH MISRA v. STATE OF U.P. AND OTHERS’ reported in 1997 Crl. L.J. 2491.
Even in the said decision, very same proposition has been reiterated and at paragraph-4 it is held that essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant’s act is in furtherance of his official duties. If the act/omission is integral to performance of public duty, public servant is entitled to protection under section 197 of Cr.PC.
8. In the said case, allegations made against public servant was that he fabricated records and misappropriated public funds. The said case undoubtedly fell outside the scope of section 197 of Cr.PC and in the said circumstances, the Hon’ble Supreme Court has held that prosecution of public servant without prior sanction is maintainable. But, in the instant case, facts reflected in the complaint indicate that in the course of investigating into the complaint lodged against respondent No.2 herein, petitioner has committed excess and therefore protection under section 197 of Cr.PC as well as section 170 of the Karnataka Police Act, 1963 is available to the petitioner. As prosecution of petitioner is initiated without prior sanction under section 197 of Cr.PC as well as section 170 of the Karnataka Police Act, 1963, the impugned proceedings are liable to be quashed.
9. Accordingly, petition is allowed. Proceedings initiated against the petitioner in C.C. No. 313/2008 are hereby quashed.
Liberty is reserved to Respondent No.2 to proceed against the petitioner on the very same allegations after obtaining necessary sanction.
Sd/- JUDGE AN/-