Complaint can be quashed if it is without sanction:SC
- shrey singh
- Jun 27, 2020
- 5 min read
D. Devaraja v. Owais Sabeer Hussain
Criminal Appeal No. 458 OF 2020
[Arising out of SLP (CRL.) NO.1882 OF 2018]
Bench: R. Banumathi, Indira Banerjee JJ.
Facts:
The appellant approached the Supreme Court against the order of Karnataka HC wherein, his application under Section 482 of the Code of Criminal Procedure was dismissed. The accused appellant was posted as Deputy Commissioner of Police, Bangalore city. The complainant alleged police excesses and ill-treatment against the accused appellant while he was in custody in the course of investigation in connection with a crime. IIIrd Additional Chief Metropolitan Magistrate took cognizance of the complaint without obtaining a sanction from the government. The accused appellant filed petition under Section 482 in Karnataka High Court for quashing the said order of Metropolitan Magistrate. The High Court, refusing to quash the proceedings, remitted the complaint back to the Metropolitan Magistrate instead, with liberty to the accused to apply for discharge. This order of High Court was challenged by the accused appellant in the apex court.
Question of Law:
Primarily, the bench was required to address the following issues:
a. Whether the learned Magistrate could 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? If not,
b. 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?
Arguments
Appellant
Respondent
Learned counsel for the accused appellant argued that the allegation of police excesses in course of investigation, and police custody of the respondent, has a reasonable nexus with the duty of the appellant as a police officer. Even if the act was in dereliction of duty or in excess of duty, it was nevertheless in exercise of authority as a police officer, in connection with investigation of an alleged crime in which the respondent was alleged to be involved. The excesses alleged were in course of discharge of such official duty of investigating into an offence.
Learned counsel also argued that under Section 170 of the Karnataka Police Act, no prosecution is to be entertained against a Police Officer, except with the previous sanction of the Government, in case of any wrong alleged to have been done by such officer, by any act in pursuance of any duty imposed or authority conferred on him by any provision of the Karnataka Police Act, 1963, or even any act done under color of or in excess of any such duty or authority. Hence, the criminal complaint against the accused should have been quashed under Section 482 of CrPC for want of sanction under Section 197 of CrPC.
Senior Advocate, Mr. Sidharth Luthra, appearing on behalf of the respondent argued that, whether sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which, in this case, was of physical torture and ill-treatment of the respondent. Ill-treatment and torture could never be in exercise of official duty, or even under the color of official duty.
Mr. Luthra also submitted that, an order of a Magistrate, taking cognizance of a complaint was not amenable to challenge under Section 482 of the Code of Criminal Procedure. The High Court rightly remanded the complaint to the Trial Court.
Mr. Luthra argued that the accused appellant can have no grievance against the judgment and order under appeal, since the High Court has given the accused appellant the liberty to apply for discharge under Section 245 of CrPC and has directed the Trial Court to decide such application, if made, before recording evidence on the merit of the allegations made against him
Held:
The Court allowed the appeal of accused appellant and quashed the criminal complaint for want of sanction. Addressing issue (a) and (b) together, the court observed that the complaint pertains to an act under color of duty. Therefore, the sanction was a legal requirement before proceeding with the case. The court observed that in the case of D.T. Virupakshappa (2015) 12 SCC 23, it was held that an application under Section 482 of CrPC is maintainable and proceeding can be quash which are ex facie bad for want of sanction or frivolous or in abuse of process of court. If the act in the complaint appears to be reasonably linked with the official duty, where the criminal proceeding is prompted by mala fides and instituted with ulterior motives, the power under Section 482 of CrPC would be exercised to quash the proceeding and prevent the abuse of process of court.
The court discussed various other judgements to settle the requirement of sanction to entertain and/or take cognizance of an offence allegedly committed by a police officer under Section 197 of the CrPC read with Section 170 of the Karnataka Police Act. The court remarked that the requirement of the sanction from the government, to prosecute would give police officers the confidence to discharge his official duties efficiently without fear of vindictive retaliation by initiation of criminal action.
The court observed that, however, not all offences committed by police officer attract Section 197 of CrPC read with Section 170 of Karnataka Police Act. The protection given under such reading has its limitations.
The court also mentioned that the test to determine the requirement of sanction is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. If the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law, the bench observed.
Thus, after the above discussion, the court decided that 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 Magistrate and remitting the complaint back to Magistrate with liberty to accused appellant to file for discharge. The court allowed the appeal and set aside the complaint.
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