[Police Officer] Sanction is compulsory for taking cognizance by Magistrate in private complaint alleging police excess, Supreme Court

The SC on June 18, 2020 {D. DEVARAJA vs OWAIS SABEER HUSSAIN} held that the object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. 

It was further held by the Bench, comprising of Justice R. Banumathi and Justice Indira Banerjee, that the Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. 

The short question involved in this appeal before the SC was, whether the learned Magistrate could, at all, have taken cognizance against the appellant, in the private complaint, in the absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963, and if not, whether the High Court should have quashed the impugned order of the Magistrate concerned, instead of remitting the complaint to the Magistrate concerned and requiring the accused appellant to appear before him and file an application for discharge.

It was held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. It was held that the learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government.

It was also held that it could not be said that the provisions of Section 161 of the Criminal Procedure Code authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement.

It was further held that Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. It was held that the requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. It was held that at the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

It was held that it is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. It was also held that if, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

The SC held that the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. It was held that the Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge. Accordingly, the appeal was allowed by the SC. The judgment and order under appeal was set aside and the complaint was quashed for want of sanction.