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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 722  OF 2015 (Arising from S.L.P. (Criminal) No. 6684/2013)

D. T. Virupakshappa  … Appellant (s)   

Versus

C. Subash … Respondent (s)

J U D G M E N T  

KURIAN, J.:

 Leave granted.  

2.  Appellant is the accused in a private complaint filed by

the respondent/complainant before Civil Judge (Jr.Div) and JMFC

at  Chikkanayakanahalli,  Karnataka,  on  which  the  learned

Magistrate  took  cognizance,  registered  the  case  as  C.C.  No.

74/2009 and issued summons to the appellant. The case was

registered under                    Sections 323, 324, 326, 341, 120,

114, 506 read with Section 149 of the Indian Penal Code (45 of

1860) (hereinafter referred to as ‘IPC’).  

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REPORTABLE

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3. The appellant moved the High Court under Section 482

of The Code of Criminal Procedure, 1973 (hereinafter referred to

as ‘CrPC’), which was declined by the impugned order.

4. The facts and reasons, as stated in the impugned order,

read as follows:

“6. A  perusal  of  the  averments  in  the complaint, sworn statement of the complainant and  his  witnesses  go  to  show  that  the complainant was picked up from his garden land at about 10.00 a.m. on 6/6/2006 in the morning. Further  averment  reveals  that  this  petitioner came to the police station later in the evening and  detained  him  till  10.00  p.m.  and  also directed  that  he  should  not  be  let-out  till  he reveals or confesses that he is involved in the murder of one Sannamma. These allegations in the  complaint  are  further  corroborated  in  the sworn  statement  of  the  complainant  which  is further fortified from the sworn statement of his two witnesses, namely, PWs. 2 and 3. The Court at  this  stage  is  required  to  consider  only  the sworn  statement  of  the  complainant  and  his witnesses  to  come to  a  conclusion whether  a prima facie case is made out for registering the case and issuing summons. It is not the stage for  the  Court  to  consider  the  defence  of  the accused as the same is well settled by the Apex Court as long as in the year 1976 in the case of Nagawwa Vs. V.S.  Kojalgi  reported in (1976) 3 SCC 736. In the present case, the allegation in the  complaint,  sworn  statement  of  the complainant and his two witnesses clearly make out the offences alleged against the petitioner and  other  accused.  If  according  to  the petitioner, it is a false and fictitious complaint, it is for him to bring those materials when the said case  is  set  down  for  hearing  before  charge before  the  learned  Magistrate.  It  is  too

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premature at this stage to consider the case of the  petitioner  while  looking  into  the  material whether the prima facie case is made out or not as alleged by the complainant. …”

5.  The  main  contention  of  the  appellant  is  that  the

learned  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 CrPC,

and  that  on  that  sole  ground,  the  High  Court  should  have

quashed the proceedings.  

6. 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 this Court in

Om Prakash and others v.  State of Jharkhand Through

The  Secretary,  Department  of  Home,  Ranchi  1  and

another1. To quote:

“41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be  unassailable  and  unimpeachable circumstances on record which may establish at the  outset  that  the  police  officer  or  public servant was acting in performance of his official duty and is  entitled to protection given under

1 (2012) 12 SCC 72 3

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Section 197 of the Code. It is not possible for us to hold that  in  such a case,  the court  cannot look  into  any  documents  produced  by  the accused or the public servant concerned at the inception.  The  nature  of  the  complaint  may have  to  be  kept  in  mind.  It  must  be remembered  that  previous  sanction  is  a precondition  for  taking  cognizance  of  the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. ...”

7. In  the  case  before  us,  the  allegation  is  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 has an essential connection with the discharge

of  the official  duty.  Under  Section 197 of  CrPC,  in  case,  the

Government servant accused of an offence, which is alleged to

have been committed by him while acting or purporting to act

in  discharge  of  his  official  duty,  the  previous  sanction  is

necessary.

8. The  issue  of  ‘police  excess’  during  investigation  and

requirement of sanction for prosecution in that regard, was also

the  subject  matter  of  State  of  Orissa  Through  Kumar

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Raghvendra Singh and others v.  Ganesh Chandra Jew2,

wherein, at               paragraph-7, it has been held as follows:

“7. The protection given under Section 197 is to  protect  responsible  public  servants  against the  institution  of  possibly  vexatious  criminal proceedings for offences alleged to have been committed  by  them  while  they  are  acting  or purporting to act as public servants. The policy of  the  legislature  is  to  afford  adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer  on  the  Government,  if  they  choose  to exercise it, complete control of the prosecution. 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. The question is not as to the nature of the offence such as whether the alleged offence contained an  element  necessarily  dependent  upon  the offender being a public servant, but whether it was  committed  by  a  public  servant  acting  or purporting to act as such in the discharge of his official  capacity.  Before  Section  197  can  be invoked,  it  must  be  shown  that  the  official concerned was accused of an offence alleged to have been  committed  by  him while  acting  or purporting to act in the discharge of his official duties.  It  is  not  the  duty  which  requires examination so much as the act,  because the

2 (2004) 8 SCC 40 5

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official  act  can  be  performed  both  in  the discharge  of  the  official  duty  as  well  as  in dereliction  of  it.  The  act  must  fall  within  the scope  and  range  of  the  official  duties  of  the public servant concerned. It is the quality of the act which is important and the protection of this section  is  available  if  the  act  falls  within  the scope and range of his official duty. …”

(Emphasis supplied)

9. In  Om Prakash (supra),  this  Court,  after  referring to

various decisions, particularly pertaining to the police excess,

summed-up  the  guidelines  at  paragraph-32,  which  reads  as

follows:

“32. 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 Code 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 (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code  because  the  acts  complained  of  are  so

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integrally  connected with  or  attached to  their office  as  to  be  inseparable  from  it.  It  is  not possible for us to come to a conclusion that the protection  granted  under  Section  197  of  the Code  is  used  by  the  police  personnel  in  this case as a cloak for killing the deceased in cold blood.”

(Emphasis supplied)

10. In our view, the above guidelines squarely apply in the

case of the appellant herein. Going by the factual matrix, it is

evident  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. Therefore, the

learned Magistrate could not have taken cognizance of the case

without  the  previous  sanction  of  the  State  Government.  The

High Court missed this crucial point in the impugned order.

11. The appeal is hence allowed. The impugned order by

the High Court is set aside, so also, the proceedings initiated by

the  Civil  Judge  (Jr.Div)  and  JMFC  at  Chikkanayakanahalli,

Karnataka in              C.C. No. 74/2009 taking cognizance and

issuing  process  to  the  appellant.  It  is  made  clear  that  our

judgment  is  only  on  the  issue of  sanction  and we have not

considered the matter on merits and that this judgment shall

not  stand  in  the  way  of  respondent  approaching  the  State

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Government for  sanction under Section 197 of CrPC.  In case

such sanction is obtained and the same is produced before the

learned Magistrate, the Magistrate may proceed further in the

case in accordance with the law.  

....…….…..…………J.                  (ANIL R. DAVE)

...……………………J.               (KURIAN JOSEPH)

New Delhi; April 27, 2015.  

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ITEM NO.1A              COURT NO.4               SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal  Appeal   No(s).722  of  2015  @  SLP(Crl.)  No. 6684/2013

D T VIRUPAKSHAPPA                                  Appellant(s)

                               VERSUS C SUBASH                                           Respondent(s) [HEARD BY HON'BLE ANIL R.DAVE AND HON'BLE KURIAN JOSEPH, JJ.]

Date : 27/04/2015 This appeal was called on for  judgment today.

For Appellant(s) Mr. B. Subrahmanya Prasad,Adv.             For Respondent(s)           

Hon'ble  Mr.  Justice  Kurian Joseph pronounced the  judgment  of  the  Bench  comprising  Hon'ble  Mr. Justice Anil R. Dave and His Lordship.

For  the  reasons  recorded  in  the  Reportable judgment,  which  is  placed  on  the  file,  the  appeal  is allowed.  The impugned order by the High Court is set aside,  so  also,  the  proceedings  initiated  by  the  Civil Judge  (Jr.  Div)  and  JMFC  at  Chikkanayakanahalli, Karnataka  in  C.C.  No.  74/2009  taking  cognizance  and issuing process to the appellant.  It is made clear that our judgment is only on the issue of sanction and we have not considered the matter on merits and that this judgment  shall  not  stand  in  the  way  of  respondent approaching the State Government for sanction under Section 197 of Cr.P.C. In case such sanction is obtained and  the  same  is  produced  before  the  learned Magistrate, the Magistrate may proceed further in the case in accordance with the law.

(Parveen Kr. Chawla) (Renuka Sadana)     Court Master   Court Master

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