IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE R DEVDAS CRIMINAL PETITION NO.8171/2017 BETWEEN 1 . SRI U P SHIVARAMA REDDY S/O LATE V R PILLARANGAIAH AGED ABOUT 64 YEARS RETIRED SUPERINTENDENT OF POLICE RESIDING AT NO 1303, 7TH MAIN, A BLOCK, II STAGE, RAJAJINAGAR BENGALURU - 560010 2 . SRI N RUDRAMUNI S/O N R NAGARAJAPPA AGED ABOUT 57 YEARS WORKING AS ADDL. SUPERINTENDENT OF POLICE MYSORE DISTRICT MYSORE RESIDING AT J C O - 04 SENIOR POLICE OFFICER QUARTERS JALAPURI, MYSORE- 570019 3 . SRI MOHAMAD RAFI S/O LATE SHAIK CHAND AGED ABOUT 46 YEARS WORKING AS POLICE INSPECTOR KARNATAKA LOKAYUKTA BENGALURU RESIDING AT NO 9/2, TASKER TOWN NEAR DELHI PRESS OFFICE BALAPPA GARDEN SHIVAJINAGAR BENGALURU - 560001 (BY SRI T SESHAGIRI RAO, ADVOCATE) AND 1 . THE STATE OF KARNATAKA BY CHITRADURGA POLICE CHITRADURGA POLICE,(TOWN) CHITRADURGA - 577501 REP. BY STATION HOUSE OFFICER 2 . SRI SHIVUYADAV S/O CHITTHAIAH AGED ABOUT 44 YEARS ADVOCATE RESIDING AT MADHUSRI NILAYA, 6TH CROSS, I U D P LAYOUT, CHITRADURGA - 577501 (BY SRI MAHESH SHETTY, HCGP FOR R1 R2 SERVED BUT UNREPRESENTED) ...PETITIONERS RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 01.06.2016 ONE PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, CHITRADURGA, IN P.C.NO.231/2012, CORRESPONDING C.C.NO.657/2017, TAKING COGNIZANCE AGAINST THE PETITIONERS FOR THE OFFENCES P/U/S 504, 323, 324, 506(2), 341, 500 R/W 34 OF IPC, CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS IN P.C. NO.231/2012, CORRESPONDING C.C.NO.657/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, CHITRADURGA.
THIS CRIMINAL PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
The petitioners are Police Officers calling in question the cognizance taken by the Principal Civil Judge & JMFC, Chitradurga in C.C.No.657/2017 for the offences punishable under Sections 504, 323, 324, 506(2), 341 and 500 of the Indian Penal Code. The second respondent-complainant, an Advocate has remained absent after service of notice.
2. The background in which the case arises is that on 08.10.2009 there was a bandh call given at Chitradurga and in that regard, a protest march was taken with regard to a decision taken by the Government for construction of S.P.Quarters in the place of Old District Surgeon Quarters and the demand of the protestors was to construct a Mini Vidhana Soudha in that place. Since the information regarding the protest march was given in advance, the District Administration had made arrangements with approximately 100 police personnel and District Armed Forces in Chitradurga town.
3. At about 10.00 a.m. on 08.10.2009 the protestors numbering between 100-120 gathered at Gandhi Circle, Chitradurga by about 11.00 a.m. The protestors started marching towards Deputy Commissioner’s Office. It appears that the protest became boisterous and the police arrested the leaders of the mob under Section 71 of The Karnataka Police Act, 1963 and took them to the Police Station. However, they were immediately released. It appears that while the protestors, after their leaders were released, were marching back. At that time, at around 12.15 in the noon, the second respondent, after speaking to the protestors instigated the protestors and started shouting slogans against the Police. The Police personnel seem to have warned the respondent from instigating the mob but when the respondent continued with his tirade, the petitioner No.1, the then Additional Superintendent of Police, directed petitioner No.2, the then Deputy Superintendent of Police and petitioner No.3 the then Sub-Inspector of Police, to arrest the second respondent and took him into preventive custody.
4. It is the case of the petitioners-Police Officers that the respondent was taken into custody at around 12.15 in the noon and was released by 1.00 p.m. It is also the case of the petitioners that the allegations made against them that they used abusive language and assaulted the second respondent is not correct.
5. On 21.10.2009 the second respondent filed a private complaint under Section 200 Cr.P.C. against the petitioners contending that the petitioners while going along with his friend Sri Palegowda towards Deputy Commissioner’s Office, the petitioners came and surrounded him and abused him in filthy language and arrested him for no fault of his. The private complaint complained of offences punishable under Sections 504, 323, 324, 506(2), 341 and 500 of IPC. The very same day, the learned Magistrate referred the matter to the Deputy Superintendent of Police, Town Police Station, Chitradurga, for investigation under Section 156(3) of Cr.P.C and to report. It is pertinent to mention here that the Deputy Superintendent of Police, Town Police Station, is not one of the petitioners. On 04.11.2009 the Deputy Superintendent of Police to whom the matter was referred, registered a case against the petitioners in Crime No.310/2010 for the offences punishable under Sections 504, 323, 324, 506(2), 341 and 500 of IPC and after registering the case, he investigated the matter and on 08.02.2010 filed a ‘B’ report stating that no case has been made out against the petitioners. After receipt of the ‘B’ report, the learned Magistrate issued notice to respondent No.2 on 12.11.2010. Respondent No.2 appeared and filed a protest petition disagreeing with the ‘B’ report submitted by the Investigating Officer.
6. The learned Magistrate, after taking the protest petition on record, posted the matter for enquiry. On 07.02.2014 the learned Magistrate recorded the sworn statement of respondent No.2 and after recording the sworn statement, posted the matter for further evidence of respondent No.2. The respondent No.2 examined one B.T.Jagadish as PW2. After recording the evidence of the said B.T.Jagadish, the matter was posted for hearing. Thereafter on hearing the complainant, the learned Magistrate took cognizance against the petitioners for offences punishable under Sections 504, 323, 324, 506(2), 341 and 500 of the Indian Penal Code and ordered issuance of process for their appearance. This criminal petition is filed under Section 482 Cr.P.C. calling in question the cognizance by the Magistrate and for quashing the proceedings against the petitioners.
7. Learned Counsel for the petitioners, at the outset submits that it was incumbent upon the learned Magistrate before taking cognizance to direct the complainant to follow the procedure contemplated under Section 132 of Cr.P.C. and Section 170 of the Karnataka Police Act, 1963. It is submitted that Section 132 of Cr.P.C. provides that no prosecution against any person for any act purporting to be done under Section 129, Section 130 or Section 131 shall be instituted in any criminal Court except with the prior sanction of the State Government. Similarly it was pointed out that Section 170 of the Karnataka Police Act, was also provided that in case of alleged offence by a Police Officer or of a wrong alleged to have been done by any Police Officer, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution shall not be entertained except with the previous sanction of the Government.
8. In this regard, the learned Counsel places reliance on a judgment of a Division Bench of the Kerala High Court in the case of Sankarankutty Menon and Ors. Vs. Deputy Superintendent of Police, Trichur and Ors. reported in AIR 1961 Ker 260.
9. Heard the learned Counsel for the petitioners, perused the writ papers and the decision cited by the learned Counsel. It is noticeable that this Court, by order dated 10.01.2018 stayed further proceedings. Inspite of the same, the 2nd Respondent has not entered appearance in this matter.
10. It is seen that the Division Bench in the case of Sankarankutty Menon (supra) has referred to several decisions of the Federal Court, Supreme Court of India and several other decisions including the decisions of the Privy Council. It is profitable to notice that there are two observations of the Hon’ble Supreme Court in two cases and an observation of the Federal Court. In one case referred to in the said decision to the effect that, when an official commits an offence under Section 409 IPC, he cannot generally be said to be acting in his official capacity. The particular facts of each case have to be looked into to find out whether there is a reasonable connection between the act complained of and his official duty while adverting to the facts of the case. The Division Bench of the Kerala High Court has observed that in that case, the complaint discloses that there was picketing by two boys by lying flat in front of the State Transport Bus, that there was a crowd collected at the scene and that the complainant was in the crowd. In such circumstances, it was held that the acts of the Police officers are only acts purporting to have been done under Chapter 9 of the Code of Criminal Procedure and in that view, the Division Bench held that sanction is necessary in such cases.
11. In the present case too, it is clear from the complaint that there was a crowd gathered and there were slogans being shouted and the Police administration was in place since they had received prior intimation that a bandh call was given and a protest march was to be taken from the bus stand to the Deputy Commissioner’s office. It is also an admitted fact that several of the leaders of the protest party were taken into preventive custody and released immediately. The incident as narrated by the complainant himself would clearly show that when the protestors were coming back, the complainant spoke to the mob and it was at that juncture that the police surrounded the complainant.
12. At any rate, it cannot be denied that the police were on duty and by any stretch of imagination, it cannot be said that the action was totally outside the purview of their duty. Even if it were to be held that the petitioners have acted in excess of their duty, Section 170 of the Karnataka Police Act, very clearly provides that even if it is an act done under colour or in excess of any such duty or authority, then the prosecution cannot be maintained except with the previous sanction of the Government.
13. In the light of the above, this Court is of the opinion that the decision of the Magistrate to take cognizance and to reject the ‘B’ report filed by the Dy.S.P. is contrary to the provisions of Section 170 of the Karnataka Police Act and Section 132 of the Code of Criminal Procedure. The words used in Section 170 of the Karnataka Police Act, is ‘prior sanction of the Government’ and therefore it was incumbent upon the learned Magistrate to return the complaint since there was no compliance of Section 170 of the Karnataka Police Act.
14. For the reasons stated above, the petition is allowed. The cognizance taken by the Principal Civil Judge in C.C.No.657/2017 and all further proceedings in C.C.No.657/2017 are hereby quashed and set aside.
It is ordered accordingly.
JT/-
Sd/- JUDGE