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Monday, April 27, 2015

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. ...”

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

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