D. T. VIRUPAKSHAPPAversusC. SUBASH

                          [2015] 5 S.C.R. 534


A                       D. T. VIRUPAKSHAPPA

                                    V.

                              C.SUBASH
B                 (Criminal Appeal No. 722 of2015)

                            APRIL 27, 2015.

           [ANIL R. DAVE AND KURIAN JOSEPH, JJ.]
c         Code of Criminal Procedure, 1973: ss.482, 197 -
  Quashing of proceedings - Summons issued against
  appellant-police official on the ground that appellant
  exceeded in exercising his power during investigation of a
D criminal case and assaulted the respondent in order to extract
  some information with regard to death of one person and in
  that connection, detained the respondent in the police station
  for sometime - High Court refused to quash the criminal
  proceedings - Plea of appellant that magistrate could not
E have taken cognizance of offence and issued summons to
  the appellant without sanction uls.197- Held: Going by the
  factual matrix, it is evident that the whole a/legation is on police
  excess in connection with the investigation of a criminal case
  - The said offensive conduct is reasonably connected with
F the performance of the official duty of the appellant -
  Therefore, the Magistrate could not have taken cognizance
  of the case without the previous sanction of the State
  Government - High Court missed this crucial point in the
G impugned order- Impugned order by High Court is set aside
  as also the proceedings initiated by the Magistrate taking
  cognizance and issuing process to the appellant.

       Om Prakash and Ors. v. State of Jharkhand Through
       The Secretary, Department of Home, Ranchi and Anr.
H
                              534
          D. T. VIRUPAKSHAPPA v. C. SUBASH                      535


  (2012) 12 SCC 72: 2012 (9) SCR 125; State of Orissa            A
  Through Kumar Raghvendra Singh and Ors. v. Ganesh
  Chandra Jew (2004) 8 SCC 40: 2004 (3) SCR 504 -
  relied on.

                   Case Law Reference                            B

       2012 (9) SCR 125            relied on.     Para 6
       2004 (3) SCR 504            relied on.     Para 8

      CRIMINAL APPELLATE JURISDICTION : Criminal C
Appeal No. 722 of2015

      From the Judgment and Order dated 05.06.2013 of the
High Court of Karnataka at Bangalore in Criminal Petition No.
2057 of2009
                                                                 D
       C. B. Gururaj (For B. Subrahmanya Prasad) for the
Appellant.

       The Judgment of the Court was delivered by
                                                                 E
       KURIAN, J. 1. Leave granted.

        2. Appellant is the accused in a private complaint filed
by the respondenVcomplainant before Civil Judge (Jr.Div) and
JMFC at Chikkanayakanahalli, Karnataka, on which the F
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').                     G

       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
o~e~                                                             H
536         SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A             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
B        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-
c        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.
D
        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.
E       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
F       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
G       before the learned Magistrate. It is too 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. ... "
H           5. The main contention of the appellant is that the
          D. T. VIRUPAKSHAPPA v. C. SUBASH                        537
                      [KURIAN, J.]

learned Magistrate could not have taken cognizance of the A
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.
                                                               B
       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 C
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               D
  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              E
  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         F
  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 .... "                             G

       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
, c2012) 12 sec 72                                                 H
538            SUPREME COURT REPORTS                  [2015] 5 S.C.R.


A 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
B 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.

C          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
    Raghvendra Singh and others v. Ganesh Chandra Jew2,
    wherein, at paragraph-?, it has been held as follows:
0
        "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
E       acting or purporting to act as public servants. The policy
        of the legislature is to afford adequate protection to public
        seryarfts to ensure that they are not prosecuted for
       -a'nything done by them in the discharge of their official
F      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
G      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
H
    2 (2004)   s sec 40
          D. T. VIRUPAKSHAPPA v. C. SUBASH                           539
                      [KURIAN, J.]

  be a sufficient ground to deprive the public servant of the         A
  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        B
  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
                                                                      c
  requires examination so much as the act, because the
  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            D
  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.... "
                                                                      E
                                         (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 F
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
                                                                      G
  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           H
540       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A      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
B     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
c     because the acts complained of are so 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
D     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
E 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
F 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.

G         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
H clear that our judgment is only on the issue of sanction and we
            D. T. VIRUPAKSHAPPA v. C. SUBASH                      541
                        [KURIAN, J.]

have not considered the matter on merits and that this judgment A
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.                            B

Devika Gujral                                   Appeal allowed.



                                                                   c