Andhra Pradesh High Court - Amravati
K.Rama Subbaiah vs The State Of Andhra Pradesh And Another on 5 August, 2024
APHC010517002018
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3333]
(Special Original Jurisdiction)
MONDAY ,THE FIFTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE V.SUJATHA
CRIMINAL PETITION NO: 7345/2018
Between:
K.rama Subbaiah ...PETITIONER/ACCUSED
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT(S)
And Another and Others
Counsel for the Petitioner/accused:
1. J UGRANARASIMHA
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
2. RAVINDRA KUMAR RAMARAJU
The Court made the following:
2
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ORDER:
This criminal petition is filed under Section 482 of Criminal
Procedure Code (for short "Cr.P.C.") to quash the complaint in
C.C.No.380 of 2018 on the file of the Judicial First Class Magistrate
at Dhone, registered for the offences punishable under Sections
323, 342 and 177 of Indian Penal Code (for short "I.P.C.").
2) Petitioner herein is the accused. Respondent No.2 is the
complainant. Respondent No.2 filed a complaint before the Judicial
First Class Magistrate, Dhone alleging that himself, his mother and
brothers filed a suit before the Junior Civil Judge's Court at Dhone
on 22.09.2017 in O.S.No.443 of 2017 for permanent injunction and
also filed an I.A.No.527 of 2017 for temporary injunction against one
Golla Jonnagorla Kistanna and 2 others, wherein interim injunction
was granted in his favour, on serving the said order to the opposite
party, they appeared through counsel namely one
M.Nagabhushan Reddy and took time for filing counter and the
written statement in the said case, therefore, the said case was
posted from 24.10.2017 to 29.11.2017. During pendency of the said
interlocutory application, on 26.10.2017 the respondents therein
highhandedly trespassed into the petition schedule property at
11:30 a.m., on receiving the said information, the complainant, his
mother and brother went to their land and resisted the respondents
in the said interlocutory application, then they beat the complainant,
his mother and brother with sticks and threatened with dire
consequences, then he, his mother and brother left the scene
helplessly. On 27.10.2017 the complainant, his elder brother and his
mother went to Dhone Rural Police Station at 12:00 noon to give
complaint, but due to non availability of S.I. of Police the Police
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Constable sent them back by directing them to come after the S.I.
returns to Police Station in the evening. Then in the evening the
complainant, his elder brother and mother again went to Rural
Police Dhone to give written complaint, then the SI of Police Rural
Police Station received his complaint and beat him with hands and
legs and detained him in police station from 8:00 p.m. on
27.10.2017 till he was produced by the Advocate Commissioner and
Court clerk, who was entrusted with the search warrant by the
Judicial First Class Magistrate, Dhone, at about 8:00 pm on
30.10.2017. It is further alleged that, the petitioner prepared the FIR
and remand report against the complainant in the police station for
producing him before Magistrate by the Advocate Commissioner.
The said act done by the petitioner accused would constitute
offence punishable under Section 323 and 342 of I.P.C.
3) Learned counsel for the petitioner contended that the
petitioner arrested the complainant on 30.10.2017 by following due
procedure in connection with Crime No.198 of 2017 lodged by one
Golla Jonnagorla Shasikal and produced him before the Magistrate,
such production of respondent No.2/complainant is in discharge of
his duties, as such prior sanction under Section 197 of Cr.P.C. is
necessary before taking cognizance of the offence against the
accused, therefore, continuation of criminal proceedings against the
petitioner is nothing but abuse of process of Court. In support of his
contentions, he relied on the judgments of the various High Courts
and the Supreme Court, which will be referred to at appropriate
stage.
4) Learned counsel for respondent No.2/complainant contended
that the petitioner/accused bet the complainant, confined him in the
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police station for a period of 3 days i.e. from 08.00 p.m. on
27.10.2017 to 08.00 p.m. on 30.10.2017 and submitted the F.I.R.
and remand report falsely to the Magistrate, Dhone as if he
committed the offence punishable under Sections 323 and 342 of
I.P.C. and as the said act done by the accused is not part of official
duty discharged by him, the question of sanction order from the
competent authority does not arise for taking cognizance against the
accused. Therefore, the accused is liable to be punished in
accordance with law and requested to dismiss the criminal petition.
In support of his contentions, he relied on some judgments, which
will be referred to at appropriate stage.
5) Having heard the submissions made by the learned counsel
representing both parties and on perusal of the material available on
record, the point that arises for consideration is as follows:
"Whether failure to obtain sanction under Section 197 of
Cr.P.C. to prosecute the petitioner for the offences
punishable under the provisions of Indian Penal Code is
sufficient to quash the proceedings against the
petitioner?"
P O I N T:
6) The present petition has been filed under Section 482 of
Cr.P.C.
7) Section 482 of Cr.P.C saves the inherent powers of the High
Court to make such orders as may be necessary to give effect to
any order under the Code or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice. It is an obvious
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proposition that when a Court has authority to make an order, it
must have also power to carry that order into effect. If an order can
lawfully be made, it must be carried out; otherwise it would be
useless to make it. The authority of the Court exists for the
advancement of justice, and if any attempt is made to abuse that
authority so as to produce injustice, the Court must have power to
prevent that abuse. In the absence of such power the administration
of law would fail to serve the purpose for which alone the Court
exists, namely to promote justice and to prevent injustice. Section
482 of Cr.P.C confers no new powers but merely safeguards
existing powers possessed by the High Court. Such power has to be
exercised sparingly in exceptional cases and this power is external
in nature to meet the ends of justice.
8) Time and again, the scope of powers of this Court under
Section 482 of Cr.P.C. were highlighted by the Apex Court in long
line of perspective pronouncements, which are as follows:
9) Section 482 of the Code of Criminal Procedure empowers the
High Court to exercise its inherent power to prevent abuse of the
process of Court. In proceedings instituted on complaint exercise of
the inherent power to quash the proceedings is called for only in
cases where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which cognizance is taken
by the Magistrate it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482. It is not,
however, necessary that there should be a meticulous analysis of
the case, before the trial to find out whether the case would end in
conviction or not. The complaint has to be read as a whole. If it
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appears on a consideration of the allegations, in the light of the
statement on oath of the complainant that ingredients of the
offence/offences are disclosed, and there is no material to show that
the complaint is mala fide, frivolous or vexatious. In that event there
would be no justification for interference by the High Court as held
by the Apex Court in "Mrs.Dhanalakshmi v. R.Prasanna Kumar1"
10) In "State of Haryana v. Bhajan Lal 2 " the Apex Court
considered in detail the powers of High Court under Section 482
and the power of the High Court to quash criminal proceedings or
FIR. The Apex Court summarized the legal position by laying down
the following guidelines to be followed by High Courts in exercise of
their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non- cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code.
AIR 1990 SC 494
1992 Supp (1) SCC 335
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(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
11) Keeping in view the above principles, I would like to examine
the case on hand.
12) The main contention of the petitioner/accused is that he
produced respondent No.2 upon a warrant under Section 97 of
Cr.P.C. issued by the Court, such production of respondent No.2 is
in discharge of his official duties, and unless previous sanction is
given by the State Government under Section 197 Cr.P.C., the
Court cannot take cognizance against him.
13) According to the learned counsel for the petitioner, the
petitioner allegedly committed the offences referred supra while
discharging his duties as Government Servant as defined under
Section 21 of I.P.C. If there is any nexus between the commission of
offence and discharging his duties, the investigating agency is
bound to obtain sanction from the competent authority as required
under Section 197 of Cr.P.C. to prosecute the petitioner.
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14) Section 197 of Cr.P.C. deals with prosecution of Judges and
public servants, which reads thus:
"197. Prosecution of Judges and public servants.
(1)When any person who is or was a Judge or
Magistrate or a public servant not removable from his officer
save by or with the sanction of the Government, is accused
of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
duty, no Court shall take cognizance of such offence except
with the previous sanction-
(a)in the case of a person who is employed or, as the
case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of the
Union, of the Central Government;
(b)in the case of a person who is employed or, as the
case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State of
the State Government :
[Provided that where the alleged offence was
committed by a person referred to in clause (b) during the
period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in a State, clause
(b) will apply as if for the expression "State Government"
occurring therein, the expression "Central Government"
were substituted.] [Added by Act 43 of 1991, Section 2
(w.e.f. 2-5-1991).]"
15) The object and purpose underlying Section 197 Cr.P.C is to
afford protection to public servants against frivolous, vexatious or
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false prosecution for offences alleged to have been committed by
them while acting or purporting to act in the discharge of their official
duty. The larger interest of the efficiency of State administration
demands that public servants should be free to perform their official
duty fearlessly and undeterred by apprehension of their possible
prosecution at the instance of private parties to whom annoyance of
injury may have been caused by their legitimate acts done in the
discharge of their official duty. Section 197 Cr.P.C is designed to
facilitate effective and unhampered performance of their official duty
by public servants by providing for scrutiny into the allegations of
commission of offence by them by their superior authorities and
prior sanction for their prosecution as condition precedent to the
cognizance of the offence against them by Court. (vide B.P.
Srivastava Vs. N.D. Mishra3)
16) Thus, the Court must scrutinise the allegations in the
complaint and find out whether those omissions or commissions
allegedly committed by the petitioner while discharging his official
duties based on nexus test. But, at what stage, such question can
be considered is again difficult to decide, because of the law
declared by the Apex Court in long line of perspective
pronouncements.
17) In "D.T.Virupakshappa Vs. C.Subash 4 ", relied on by the
learned counsel for the petitioner, the Apex Court held as follows:
"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
AIR 1970 SC 1661
(2015) 12 SCC 231
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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 Code of Criminal Procedure, 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."
18) In the said case, the appellant therein exceeded in exercising
his power during investigation of a criminal case and assaulted the
respondent therein in order to extract some information with regard
to the death of one Sannamma, and in that connection, the
respondent therein was detained in the police station for some time.
19) But, in the present case, the petitioner/accused stated in his
petition that he arrested and produced the complainant before the
Magistrate in connection with Crime No.198 of 2017, which was
registered for the offence punishable under Section 448, 323 and
506 of I.P.C.
20) In "Indra Devi Vs. State of Rajasthan 5 ", relied on by the
learned counsel for the petitioner, the Apex Court held that Section
197 of the Code of Criminal Procedure seeks to protect an officer
from unnecessary harassment, who is accused of an offence
committed while acting or purporting to act in the discharge of his
official duties and, thus, prohibits the court from taking cognisance
of such offence except with the previous sanction of the competent
AIR2021SC3549
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authority. Public servants have been treated as a special category in
order to protect them from malicious or vexatious prosecution. At
the same time, the shield cannot protect corrupt officers and the
provisions must be construed in such a manner as to advance the
cause of honesty, justice and good governance.
21) In "Paleti Anil Babu Vs. State 6 " relied on by the learned
counsel for the petitioner, this Court observed that the Police
Officers are duty bound and they are expected to be diligent in
serving the summons on the witnesses so as to enable the Criminal
Courts to effectively discharge their duties. It is highly essential for
the proper and effective functioning of the concerned Criminal
Courts. The important role to be played by the police wing and the
investigating agency in the administration of criminal justice delivery
system needs no emphasis at the hands of this Court.
22) In "Bypu Subbarao Vs. Dasari Sudhakar Babu @ Sudhakar
(Criminal Revision Case No.271 of 2013)" relied on by the learned
counsel for the petitioner, this Court held that taking cognizance of
offence without previous sanction as required under Section 197 of
Cr.P.C. is not legally sustainable. When taking of cognizance of
offence itself is unsustainable, forcing the accused to face the rigour
of criminal trial is only a futile exercise.
23) In the present case, as per the allegations made in the
complaint, petitioner arrested the complainant, who is respondent
No.2 herein, on 27.10.2017 at 08.00 p.m. and produced him before
the Judicial First Class Magistrate, Dhone on 30.10.2017 at 08.00
(2006) 2 ALT (Crl.) 463
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p.m. i.e. after three days of arrest, on search warrant issued by the
Magistrate.
24) Section 76 of Cr.P.C. is relevant to decide the controversy in
this case, which reads thus:
"Section 76: Person arrested to be brought before Court without
delay:
The police officer or other person executing a warrant of arrest
shall (subject to the provisions of Section 71 as to security) without
unnecessary delay bring the person arrested before the Court before
which he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty-
four hours exclusive of the time necessary for the journey from the place
of arrest to the Magistrate's Court."
25) This provision mandates that the arrested person should be
produced within twenty-four hours exclusive of the time taken for
journey before the Court which issued the warrant. When such is
the law, petitioner should not have detained the
complainant/respondent No.2 beyond twenty-four hours in any case.
In the present case, the petitioner detained respondent No.2 illegally
for three days and produced him before the Magistrate on search
warrant issued by the Magistrate, which cannot be treated as a part
of the discharge of his official duty. It is clearly a violation of
mandatory provisions provided under law. So also it was not the
duty of the petitioner to beat the complainant. Thus, this Court is of
the opinion that, there was no nexus between the discharge of the
duty by the petitioner and the acts complained against him.
Therefore, the law laid down in the said judgments, relied on by the
learned counsel for the petitioner, is not in dispute, but the same is
not applicable to the present facts of the case.
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26) In "S.A.Azeez Vs. Pasam Hari Babu 7 " relied on by the
learned counsel for respondent No.2, this Court while referring to
"P.K.Pradhan Vs. State of Sikkim 8 "held that there must be a
reasonable connection between the act and the official duty and it
does not matter even if the act exceeds what is strictly necessary for
the discharge of duty as this question will arise only at a later stage
when the trial proceeds on merits. Therefore, the question whether
the act complained of against the petitioner is in excess of the
discharge of his public duty is a question of fact to be determined at
the time of trial only. So, merely on the ground of want of sanction,
the proceedings cannot be quashed against the petitioner.
27) In "Sakthivel Vs. Murugesa Sundara Pandiyan9" relied on
by the learned counsel for respondent No.2, the High Court of
Madras held that a public servant is entitled to protection under
Section 197 of Cr.P.C. for obtaining sanction before prosecution
only if he is removable from his office by the Central or State
Government, as the case may be. The petitioner therein is a Sub-
Inspector of Police, therefore, the Inspector-General, Deputy
Inspector-General may dismiss or reduce to a lower post, or time
scale, or to a lower stage in time scale, any officer of the
Subordinate police whom they shall think remise or negligent in the
discharge of his duty. Therefore, no sanction of the State
Government for the prosecution is necessary.
28) The law laid down in the said case is not applicable to the
present case as the State of Andhra Pradesh through
G.O.Ms.No.406, Home (Courts-B) dated 30.04.1974 has extended
2003 CriLJ 2462
AIR 2001 Supreme Court 2547
1992 LawSuit (MAD) 356
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the application of Section 197 of Cr.P.C. to all the Police Officers
including Sub-Inspectors, Head-Constables and Constables by
virtue of the powers conferred by Sub-Section (3) of Section 197 of
Code of Criminal Procedure. Thus, in view of the said G.O.,
applicability of Section 197 of Cr.P.C. to the petitioner is beyond the
theme of controversy, of course subject to the conditions that the
acts complained is satisfied, required or otherwise. However,
whether the acts complained against the petitioner are in excess of
the discharge of his public duty is a question of fact to be
determined at the time of trial only.
29) In "Devinder Singh Vs. State of Punjab through CBI 10 "
relied on by the learned counsel for respondent No.2, the Apex
Court referred the judgment of "Matajog Dobey Vs. H.C. Bhari11
held that "in case the version of prosecution is found to be correct,
there is no requirement for sanction, as a public servant is not
entitled to indulge in criminal activities. It was further held that
question of sanction can be considered at any stage of the
proceedings. Necessity for sanction may reveal itself in the course
of the progress of the case and it would be open to the accused to
place material during the course of trial for showing what his duty
was as the accused has the right to lead evidence in support of his
case on merits.
30) In "Joji Joseph Vs. State of Kerala (Crl.Appeal No.377 of
2011), the High Court of Kerala at Ernakulam held that, even in a
case where a person is taken into custody as part of duty and
strictly in accordance with law, police have no authority to
AIR 2016 SC 2090
1955(2) SCR 925
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manhandle or detain him illegally. If manhandled or detained
illegally, the erring police personnel are liable for prosecution. That
does not mean that if such an act is done as part of official duty, no
sanction is required to prosecute the police personnel.
31) In Matajog Dobey v. H.C. Bhari (referred supra), the
Constitution Bench had further observed that the necessity for
sanction may reveal itself in the course of the progress of the
case and it would be open to the accused to place the material
on record during the course of trial for showing what his duty
was and also the acts complained of were so interrelated with
his official duty so as to attract the protection afforded by
Section 197 of the Code of Criminal Procedure.
32) In the present case, petitioner arrested the complainant, who
is respondent No.2 herein, on 27.10.2017 at 08.00 p.m. and
produced him before the Judicial First Class Magistrate, Dhone on
30.10.2017 at 08.00 p.m. i.e. after three days of arrest in pursuance
of the search warrant issued by the Magistrate. So, the petitioner
detained the complainant for a period of three days without
registering the F.I.R., which is in violation of Section 76 of Cr.P.C.
The case of the petitioner is that he has arrested the complainant in
connection with Crime No.198 of 2017 on the file of Dhone Rural
Police Station on the complaint lodged by one Golla Jonnagorla
Shasikal. Therefore, it is for the petitioner/accused to establish that
he has arrested the complainant and produced him before the
Magistrate after three days of arrest as a part of his official duty.
Unless, the petitioner/accused faces the trial, it is difficult to decide
whether the act committed by the accused is in relation to discharge
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of his official duties or not, and then only the question as to whether
sanction under Section 197 of Cr.P.C. is necessary or not, arises.
Therefore, this Court cannot quash the proceedings by exercising
power under Section 482 Cr.P.C due to lack of sanction, as required
under Section 197 Cr.P.C. since the law permits the petitioner to
raise such contention at any stage and the Court has to decide
whether the act done by the petitioner is in relation to his official
duties or purported to have been done in relation to official duties
only after adducing evidence in the trial. In the present case, the trial
is not yet commenced, therefore, at this stage, this Court cannot
conclude that the act done by the petitioner was in relation to or
purported to have been done in discharge of official duty. Therefore,
the criminal petition is liable to be dismissed.
33) Accordingly, the criminal petition is dismissed.
34) The miscellaneous petitions pending, if any, shall also stand
closed.
________________________
JUSTICE V.SUJATHA
05.08.2024
Ksp
