Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage - 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. - Apex court set aside the orders of High court and orders of Trail court taking cognizance of the case - 2015 S.C. MSKLAWREPORTS
Sec.197 Cr.P.C. - Sanction whether can be considered at the inception stage or at any stage ? - Apex court held that when the allegations are in excess of official duties - Sanction is a conditional precedent for taking cognizance - in other cases it can be considered at any stage - 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. - Apex court set aside the orders of High court and orders of Trail court taking cognizance of the case - 2015 S.C. MSKLAWREPORTS
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
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
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 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. ...”
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
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
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 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. ...”
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.
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.
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 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. - 2015 S.C. MSKLAWREPORTS
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.
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.
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 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. - 2015 S.C. MSKLAWREPORTS
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