N Hanumanthappa vs Seetaram
2021 Latest Caselaw 1761 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF MARCH, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION NO.4512/2020

BETWEEN:

1.   N. HANUMANTHAPPA
     S/O LATE DODDANARASIMAIAH
     AGED ABOUT 67 YEARS
     R/AT NO 96, 2ND MAIN, 2ND STAGE
     VINAYAKA LAYOUT, VIJAYANAGAR
     BENGALURU - 560040

2.   G.C. MANJUNATH
     S/O LATE G.T. CHANNABASAPPA
     AGED ABOUT 65 YEARS
     R/AT No.71, K.P.A. BLOCK
     1ST MAIN, CHANDRA LAYOUT
     BENGALURU - 560040

3.   JAYADEV
     S/O LATE S.R.NANJAPPA
     AGED ABOUT 65 YEARS
     R/AT NO 822, 6TH CROSS
     2ND MAIN, GRUHALAKSHMI LAYOUT
     BENGALURU - 560073

4.   CHIKKAVEERABHADRAIAH
     (SHOWN AS VEERABHADRAIAH IN PCR)
     S/O LATE CHIKKA RUDRAIAH
     AGED ABOUT 60 YEARS
     R/AT No.19, J.B.KAVALU POLICE QUARTERS
                                    2



       NANDHINI LAYOUT
       BENGALURU - 560096.
                                             ... PETITIONERS
              (BY SRI KARTHIK YADAV U, ADVOCATE)
AND:

SEETARAM
S/O SEETHAIAH
AGED ABOUT 54 YEARS
R/AT No.332, 15TH CROSS, II STAGE
II PHASE, MAHALAKSHMI LAYOUT
BENGALURU - 560086.
                                                   ... RESPONDENT

              (BY SRI N.SRIRAM REDDY, ADVOCATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED IN
CRL.RP.NO.720/2017 BY AN ORDER DATED 11.06.2020 BY THE
LXI CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This petition is filed under Section 482 of Cr.P.C. by the

petitioners herein, who are the police officials, praying this Court

to set aside the order dated 07.05.2016 in taking cognizance of

offence punishable under Sections 326, 358, 500, 501, 502 and

506B read with Section 34 of IPC against the petitioners and

registering the case in C.C.No.368/2010 and issuing the

process/summons against the petitioners by VII Additional Chief

Metropolitan Magistrate, Bengaluru City and grant such other

orders as deem fit in the facts and circumstances of the case.

2. The factual matrix of the case is that the respondent

herein has filed the private complaint before the Trial Court

invoking Sections 190 and 200 of Cr.P.C, which is numbered as

P.C.R. No.6754/2007, wherein the allegations are made against

the petitioners herein that he was arrested in connection with

criminal cases which have been initiated and registered by

accused Nos.1 to 5 falsely and they also threatened him with

dire consequences. It is further alleged that on 10.04.1999 at

about 10.30 p.m., accused Nos.2, 3 and 5 trespassed into his

house and dragged him out of house and taken him to

Mahalakshmi Police Station, where he was assaulted and

fastened to the hook after removing his clothes throughout

night. On 11.04.1999, accused Nos.2, 3 and 5 prepared the

slate and forced him to hold the slate by writing his name and

accused No.6 clicked the photo of the complainant during that

time. Later, he was produced before the jurisdictional

Magistrate by registering the false case in Crime No.137 and 138

of 1999. During that time he showed the injuries inflicted on him

to the Magistrate. Immediately, the complainant was referred to

the hospital for treatment and after that he got released in the

said cases and later, he was acquitted in both the cases.

3. That on 27.10.1990 at about 9.45 p.m., accused

Nos.3 and 5 stopped him when he was going in the scooter,

slapped him and engaged the autorickshaw and took him to the

Mahalakshmi police station and produced before accused No.1,

who abused the complainant in a filthy language and asked him

to withdraw the writ petition filed by complainant against

accused Nos.1 and 2 and directed accused No.3 to take all the

valuables and his belongings, for which accused No.3 removed

his gold chain, wrist watch, valet and spectacles and the cash

amount of Rs.26,000/- and wrapped it in the kerchief and

handed over to accused No.1. After that his clothes were

removed and he was assaulted throughout the night with lathi

and iron rod, as a result, one of his teeth was dislodged and

started bleeding profusely. Even after that, they tortured him

and beaten up blue and produced him before the Magistrate by

registering the false case in Crime No.448/1999 alleging the

offence under Section 392 of IPC, where the complainant

reported the ill-treatment to the Magistrate, who directed the

Jailor to give the medical treatment. He got released in that

case and took treatment at Victoria Hospital on 04.11.1999.

Later, accused No.6 in order to ruin his life, published illegally

taken photographs of the complainant on 11.04.1999 and also

published the defamatory slogans in Bhruna Newspapers dated

25.01.2001, 10.09.2001 and 15.09.2002. Accused No.6 also

filed a case against the complainant in Crime No.146/2005 for

the offences punishable under Sections 504, 506(b) of IPC.

4. The accused Nos.1 to 6 threatened the complainant

by giving mental agony and also that they would kill him, if he

does not withdraw the complaint filed against them. Hence,

prayed the Court to take cognizance in the complaint. The Trial

Court, after recording the sworn statement of CWs.1 to 3,

proceeded to pass an order taking cognizance against these

petitioners that the complainant has produced sufficient

documents in support of his case. Learned Magistrate after

recording the sworn statement and considering the material,

took cognizance for the offences punishable under Sections 196,

199, 200, 201, 211, 326, 327, 345, 338, 357, 368, 395, 397,

500, 501, 502, 506(b) read with Section 120B of IPC only

against accused Nos.1 to 5 and the same was questioned before

the Revisional Court in Crl.R.P.No.720/2017. The Revisional

Court, after considering the material available on record, has

come to the conclusion that there is no merit in the Revision

Petition and accordingly, dismissed the Revision Petition. Hence,

the present petition is filed before this Court by the petitioners

herein.

5. Learned counsel for the petitioners would submit

that the first petitioner passed away during the pendency of this

petition. The consideration of the matter remains only in respect

of petitioner Nos.2, 3 and 4, who have been arrayed as accused

No.2, 3 and 5. Learned counsel for the petitioners also submits

that accused No.4 has also last his breath. Learned counsel for

the petitioners would vehemently contend that there is a

protection under Section 197 of Cr.P.C. as well as Section 170 of

the Karnataka Police Act (for short 'the KP Act') according to

which, without obtaining the sanction, if any private complaint is

filed, the learned Magistrate ought not to have received the

complaint and proceeded to take cognizance.

6. Learned counsel in support of his arguments relied

upon the judgment of the Apex Court in the case of

D.DEVARAJA V. OWAIS SABEER HUSSAIN reported in 2020

SCC online SC 517 and brought to the notice of this Court

paragraph Nos.16, 18, 67, 68, 69, 71, 73, 75, 77 and 79,

wherein the Apex Court observed that before taking the

cognizance, there must be an order of sanction as contemplated

under Section 197 of Cr.P.C. read with Section 170 of the KP Act

and the same shall be in respect of an act relating to the

discharge of an official duty, even if the police officer has

exceeded his limits.

7. Learned counsel also relied upon the judgment of

this Court in the case of S.MARISWAMY AND ANOTHER V.

S.VENKANNA RAO reported in ILR 2007 KAR. 3040, wherein

this Court also exercised the powers under Section 482 of

Cr.P.C. and quashed the proceedings on the ground that

sanction is not obtained. Learned counsel also brought to the

notice of this Court paragraph Nos.11, 13 and 15, wherein this

Court discussed with regard to the protection given to the police

officer under Section 170 of the KP Act and also the protection

given under Section 197 of Cr.P.C.

8. Learned counsel for the petitioners referring to these

two judgments would vehemently contend that the cases are

registered against the respondent herein and he was acquitted in

2006 and immediately after his acquittal, the complaint is filed in

the year 2007. The acts which have been done by the

petitioners herein are in connection with the act purported to

have been done in discharge of the public duty. Hence, there

cannot be any proceedings against these petitioners.

9. Per contra, learned counsel appearing for the

respondent would vehemently contend that when respondent

was arrested in connection with criminal cases, he was subjected

to assault and the same was informed to the learned Magistrate

and the learned Magistrate on all occasions, directed the Jailor

as well as the I.O. to provide the medical treatment for having

subjected him to assault and causing injuries.

10. Learned counsel for the respondent in support of his

arguments relied upon the judgment of the Apex Court in the

case of BAKHSHISH SINGH BRAR v. GURMEJ KAUR AND

ANOTHER reported in (1987)4 SCC 663, wherein the Apex

Court held that Sections 197 and 196 of Cr.P.C. - Sanction for

prosecution of police officer accused of causing grievous injuries

and death in conducting raid and search - Whether the police

officer while acting in purported discharge of official duty

exceeded limits of his official capacity - For determination of the

question, cognizance of the offence has to be taken - In the

circumstances, held, trial need not be stayed for want of

sanction for prosecution of the accused officer.

11. Learned counsel referring this judgment would

contend that he has produced the documents before this Court

i.e., the wound certificate, which discloses that he has suffered

the grievous injuries and his teeth was broken and x-ray report

shows the missing of heeling socket and also that injury No.2 is

grievous in nature and the same is confirmed by the x-ray

report. The learned counsel also relied upon the document

produced before the Trial Court which are total 18 in number and

out of that, the medical documents are in 11 sheets. The wound

certificate was also produced before the Trial Court and the Trial

Court, considering the material available on record, has come to

the right conclusion that the matter needs to be tried and the

petitioners also to be tried for the offences invoked against

them. Both the orders of the Trial Court and the Revisional

Court are in conformity with the documents placed before the

Trial Court for taking cognizance and issue of process against the

petitioners herein.

12. Having heard the learned counsel for the petitioners

and learned counsel for the respondent, this Court has to

appreciate the material available on record as to whether it is a

fit case to exercise the powers under Section 482 of Cr.P.C. for

quashing of the proceedings initiated against the petitioners

herein. Having perused the records, admittedly, the petitioners,

who are before the Court are the police officers. It is also not in

dispute that the cases are registered against the respondent

herein. The main contention of the respondent herein is that

whenever he was arrested due to vengeance, he was assaulted

and the same is also reported to the learned Magistrate

whenever he was produced after his arrest. It is also not in

dispute that the respondent herein was acquitted for the said

cases registered against him.

13. Learned counsel appearing for the petitioners

pointed out that he was acquitted in the year 2006 and he filed

the complaint in the year 2007. Now the question before this

Court is whether the sanction is necessary as contemplated

under Section 197 of Cr.P.C. and Section 170 of the KP Act. It is

also not in dispute that the petitioners, who are before this Court

are the police officers and the protection is given to the police

officers for the act done or purported to have been done in the

discharge of his official duty.

14. Having perused the principles laid down in the

judgments referred supra by the learned counsel appearing for

the petitioners herein, the Apex Court in detail discussed with

regard to giving protection under Section 197 of Cr.P.C. and

Section 170 of the KP Act. In paragraph No.69, the Apex Court

has observed that every offence committed by a police officer

does not attract Section 197 of Cr.P.C. read with Section 170 of

the KP Act. The protection given under Section 197 of Cr.P.C.

read with Section 170 of the KP Act has its limitations. The

protection is available only when the alleged act done by the

public servant is reasonably connected with the discharge of his

official duty and the official duty is not merely a cloak for the

objectionable act.

15. It is also observed in paragraph No.71 that if in

doing an official duty a policeman has acted in excess of duty,

but there is a reasonable connection between the act and the

performance of the official duty, the fact that the act alleged is in

excess of duty will not be ground enough to deprive the

policeman of the protection of government sanction for initiation

of criminal action against him.

16. This Court also in the judgment reported in ILR

2007 KAR 3040 in paragraph Nos.11, 13 and 15, extended the

benefit of invoking Section 197 of Cr.P.C. and Section 170 of the

KP Act.

17. In the background of the principles laid down in the

judgments referred supra, and also the judgment of the Apex

Court reported in (1987) 4 SCC 663, this Court has to

appreciate the facts of the case on hand. As I have already

pointed out, the respondent herein has arrested and produced

before the Magistrate whenever he was arrested. It is also the

statement of the respondent and the averment in the complaint

that whenever he was arrested, he was subjected to assault and

treated inhumanly. In order to substantiate his contention, his

statement was recorded and two witnesses were also examined

before the Trial Court. Learned Magistrate after filing the

complaint proceeded to take cognizance and recorded the

statements of CWs.1 to 3 i.e., the complainant and other two

witnesses.

18. Having perused the materials available on record the

learned Magistrate vide detailed order dated 07.05.2016

discussed with regard to the statement of the witnesses i.e.,

PWs.1 to 3 in paragraph Nos.3, 4, 5 and 6. In paragraph No.6,

the learned Magistrate has come to the conclusion that the case

is not made out for the offences invoked in the complaint and

has taken cognizance for the other offences. Learned Magistrate

in order to come to such conclusion, has relied upon the

documents at page No.5 including the legal notice seeking

sanction to prosecute the accused dated 16.03.2002 and the

same is sent through RPAD, the letter dated 23.06.2005 sent

seeking permission to take action against the accused, the letter

dated 20.06.2003 regarding the inaction by the Byatarayanapura

P.S. written to the Principal Secretary to the Government and

also the letter dated 24.04.2003 addressed to the DGP and so

also the letter dated 16.12.2006 addressed to the DGP, COP,

DCP, ACP and PI. The records would disclose that the

complainant made all efforts from the year 2002 to 2006 before

filing of the complaint for obtaining for an order of sanction.

Hence, it is clear that the documents placed before the Court

disclose that he made all his efforts to get the order of sanction.

19. It is also important to note that the medical

documents relied upon by the respondent herein is 11 in number

and also the wound certificate, which has been placed before the

Court clearly discloses that as a result of the assault made on

him, he suffered breaking of his teeth and also grievous injuries.

Now the question that would arise before this Court is whether

assaulting a person causes grievous injuries when he was

apprehended and whether it comes within the purview of

discharging the official duty. Here it is not a case of exceeding

the powers of the police officer but an abuse of powers vested

with the police officer. No doubt, the protection is given under

Section 197 of Cr.P.C. against the public servant, who have

discharged the act which purported to have been done in

discharge of the official duties and the same cannot be extended

when the act has been done to the extent of causing injury by

breaking the teeth of a person and also causing grievous

injuries.

20. Having perused the materials available on record,

the complaint also discloses that whenever the complainant was

produced before the Magistrate he has reported the same before

the Magistrate, for which a direction was also issued to the I.O.

and also the Jail Superintendent to provide the medical

treatment for the assault and also for having taken the medical

treatment, he has produced the documents before the learned

Magistrate and the learned Magistrate considering the materials

available on record proceeded to pass the order of taking

cognizance and issued the process.

21. The Revisional Court also in detail discussed the case

available on record considering the scope of Section 197 of

Cr.P.C., which has been urged before the Revisional Court. No

doubt, it is rightly pointed out by the learned counsel appearing

for the petitioners herein that the Revisional Court has not

discussed anything about invoking Section 197 of Cr.P.C.

Having perused the materials available on record, the petitioners

herein have exceeded their limit and assaulted the complainant

mercilessly, that too, causing the breaking of teeth of the

complainant/respondent herein and causing grievous injuries and

the same cannot be termed as act done in discharge of the

official duty and the protection cannot be given under Section

197 of Cr.P.C. on the ground that the sanction has to be

obtained before prosecuting them.

22. In the case on hand, the learned Magistrate

considered the materials available on record which discloses that

the respondent/complainant made all his efforts from 2002 to

2006 in obtaining the sanction to prosecute them and even

wrote letters to the head of the department but no fruitful

results has reached its finality. It is clear that in the case on

hand all efforts have been made in obtaining the sanction and

that apart, for the very act of the petitioners herein, the

protection as envisaged under Section 197 of Cr.P.C. read with

Section 170 of the KP Act cannot be invoked. The brutal act

committed by the petitioners herein clearly depicts that they

have exceeded their limit not only to the extent of breaking the

teeth of the complainant but also to the extent of causing

grievous injuries. Under the said circumstances, the very

contention of the learned counsel for the petitioners that without

obtaining the sanction, there cannot be any criminal proceedings

against them cannot be accepted.

23. Taking into consideration of the principles laid down

in the judgments referred supra, in D.Devaraja's case at

paragraph No.69, the Apex Court has categorically held that the

protection given under Section 197 of Cr.P.C. and Section 170 of

the KP Act, has its limitations and it would be available for the

act done by the public servant in discharge of his official duty or

is reasonably connected with discharge of his official duty and

not like that of the nature in the case on hand. Hence, the

principles laid down in the decision referred supra will not come

to the aid of the petitioners herein in any way. Accordingly, I do

not find any merit in the petition to invoke Section 482 of Cr.P.C.

to quash the proceedings.

24. As held by the Apex Court in the judgment reported

in (1987) 4 SCC 663, it is clear that when the police officer

while acting in purported discharge of official duty exceeded

limits of his official capacity, the same has to be determined by

taking the cognizance of the offence and for having exceeded the

limits, the same has to be ascertained only during the course of

the trial by affording an opportunity to the parties.

25. In view of the discussion made above, I pass the

following :-

ORDER

The petition is hereby dismissed.

In view of the disposal of the main petition, I.A.1/2020

does not survive for consideration and the same stands disposed

of.

Sd/-

JUDGE

PYR