Sri. S. Shivakumar vs The State Of Karnataka
2021 Latest Caselaw 1954 Kant

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                                                   R
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 24TH DAY OF MAY, 2021

                         BEFORE

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

              CRIMINAL PETITION NO.996/2021

BETWEEN:

1.   SRI S. SHIVAKUMAR
     AGED ABOUT 49 YEARS,
     DY.S.P. C.I.D, BENGALURU

2.   SRI MUNIREDDY
     AGED ABOUT 44 YEARS
     POLICE INSPECTOR
     MICO LAYOUT POLICE STATION
     BENGALURU CITY

3.   SRI BALAJI SINGH
     AGED ABOUT 48 YEARS,
     POLICE HEAD CONSTABLE
     NANDHI POLICE STATION
     CHIKKABALLAPUR

4.   SRI ANAND
     AGED ABOUT 48 YEARS
     POLICE HEAD CONSTABLE
     GUDIBANDE POLICE STATION
     GUDIBANDE TALUK-561209
     CHICKBALLAPUR DISTRICT

5.   SRI T. VENKATESH
     AGED ABOUT 55 YEARS
     HEAD CONSTABLE
     CHIKKABALLAPUR TOWN P.S
     CHIKKABALLAPUR
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6.     SRI MUNIYAPPA
       AGED ABOUT 66 YEARS
       RETD. HEAD CONSTABLE
       MANCHENAHALLI POLICE STATION
       GOURIBIDANUR TALUK
       NOW R/O PRASHATH NAGAR
       CHICKBALLAPURA

7.     SRI MOHAN
       AGED ABOUT 36 YEARS
       DISTRICT ARMED RESERVE POLICE (JEEP DRIVER)
       CHICKBALLAPUR POLICE STATION
       NOW WORKING AT DAR HQ
       CHICKBALLAPUR-562101
                                           ... PETITIONERS
              (BY SRI S.P.KULKARNI, ADVOCATE)
AND:

1.     THE STATE OF KARNATAKA
       BY CHICKABALLAPUR RURAL POLICE
       CHICKABALLPUR
       REPRESENTED BY STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA BUILDING
       BENGALURU-560001

2.     JANARDHAN M
       S/O LATE MARAPPA
       AGED ABOUT 66 YEARS
       R/AT HEGGADAHALLI
       DODDABALLAPUR TALUK-561203
                                          ... RESPONDENTS
        (BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1;
           SRI S.SHANKARAPPA, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
S.C.NO.145/2019 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 167, 330, 342, 348,
307 R/W SECTION 149 OF IPC (ARISING OUT OF
C.C.NO.572/2014 ON THE FILE OF THE ADDITIONAL JMFC,
CHIKKABALLAPURA)
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     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.04.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                             ORDER

This petition is filed under Section 482 of Cr.P.C, praying

this Court to quash the entire proceedings in S.C.No.145/2019

on the file of Principal District and Sessions Judge, Chickballapur

for the offence punishable under Sections 167, 330, 342, 348,

307 read with Section 149 of IPC (arising out of

C.C.No.572/2014 on the file of Additional JMFC, Chikkaballapur

and grant such other reliefs as deem fit in the facts and

circumstances of the case.

2. The factual matrix of the case is that respondent

No.2 herein had lodged the complaint before the learned

Magistrate and the same is numbered as PCR No.215/2013. The

learned Magistrate, after receiving the complaint proceeded to

record the sworn statement and after recording the sworn

statement, issued the process against these petitioners. The

complainant in the complaint made a specific allegation against

these petitioners that on 14.05.2010, at about 5.30 a.m.,

accused No.2 along with his constables came to his house and at

that time, his son was not in the house. Hence, the police

instructed to bring his son to Chikkaballapur Police Station for

some enquiry. On the same day, one of the friends by name

N. Byregowda has called the complainant on his mobile to inform

that he had received the call from Circle Inspector i.e., accused

No.1 enquiring about the complainant and his reputation and

accordingly, the complainant went to the police station along

with his son. The complainant was also called in connection with

the case, which was registered for snatching of the gold chain, in

Crime No.169/2010 for the offence punishable under Section

392 of IPC.

3. The complainant in the said complaint had appeared

before the police but not identified the son of the complainant

and after making the enquiry of the complainant's son, the

complainant was relieved with the assurance that they would

send his son back after further enquiry, but his son was not sent

back and instead, he was detained in the police station in illegal

custody for a period of 2 days and he was subjected to all sorts

of torture and assault. The petitioners herein subjected the

complainant's son for mental as well as physical torture. It is

also the allegation in the complaint that on 15.05.2010, the

complainant met Mr. Burman, the police officer and explained

the attitude of the petitioners. Inspite of his advice, the

complainant's son was not released from the illegal custody and

instead all sorts of torture were given to him. That on

16.05.2010 at about 2.30 p.m. the complainant went to the

police station again and met accused No.1 and told him that his

son is innocent. Accused No.1 assured that he would release the

complainant's son and asked accused Nos.3 to 6 to bring his son

and forcibly took his signature on blank paper in the Register

maintained at the police station and on white paper as well as on

the brown paper book. Accused No.1 even not allowed the

complainant to verify the contents of the Register. Subsequently,

the said Manu was released from the illegal custody. He was

humiliated, assaulted and coerced and further threatened not to

reveal the same to anybody. They also threatened him that if he

does so, they would put him behind bars permanently and also

foist false cases against him for robbery and dacoity.

4. That on 16.05.2010, his son was released at 3.00

p.m. and reached home at 6.00 p.m. On 17.05.2010, the

complainant's wife noticed the injuries on the body of his son

and took him to Janatha Nursing Home for treatment wherein on

examination wound certificate was issued. That on 18.05.2010,

the complainant's son went into depression, for which, again he

was taken to RMV hospital, where he was treated as an out

patient and also on 19.05.2010, as he was suffering from

injuries. The complainant's son left the home at around 4.30

p.m. and went to the house of Madhu and at that time, the said

Madhu was not in his house. He consumed poison in front of his

house and left a letter at home and Balraju, who is the uncle of

Madhu called the complainant and told him that Manu was

unconscious as he consumed poison. Therefore he was again

hospitalized to Janatha Nursing Home, Dodballapur and got

treated till 20.05.2010 and thereafter, he was shifted to

Columbia Asia Hospital and discharged on 27.05.2010 and

thereby, he spent an amount of Rs.80,000/- and the copy of the

letter addressed by his sons is also produced before the Trial

Court. The Doctor of Janatha Nursing Home intimated the Rural

Police Station, Dodaballapur on 20.05.2010 to Janatha Nursing

Home and Dodballapur Police had not registered a case but in

turn adviced the complainant to drop the matter. Therefore, he

gave the complaint to higher ups and also Human Rights

Commission but no action was taken. Hence, he was forced to

file a complaint before the learned Magistrate.

5. Now the learned counsel appearing for the

petitioners would vehemently contend that the very initiation of

the private complaint is against the petitioners, who had

discharged their duties in connection with their official capacity,

for which no sanction has been obtained as contemplated under

Section 197 of Cr.P.C. and the learned Magistrate also failed to

take note of the said fact. Learned counsel would vehemently

contend that before taking cognizance of the offence, the

sanction is necessary and the provisions of Sections 200 to 204

of the Cr.P.C. has not been complied with.

6. Learned counsel for the petitioners also would

vehemently contend that the learned Sessions Judge while

exercising the Revisional powers failed to take note of the fact

that the learned Magistrate has recorded the sworn statement of

the complainant and other witnesses after 1 year 10 months of

the date of complaint. Learned Magistrate, thereafter, on

28.06.2014, took cognizance of the offence invoked against the

petitioners and issued the process. The chain of date of events

depicts the inordinate and unexplained delay/laches not only in

filing the complaint but also in taking cognizance of the case

against these petitioners, who being the police officers

discharged their duties in accordance with law.

7. Learned counsel for the petitioners also would

vehemently contend that the learned Magistrate, erred in

recording the sworn statement without taking cognizance and

the same cannot be cured. Learned counsel would further

vehemently contend that the police officials were suspended

based on the complaint and thereafter, a departmental enquiry

was conducted. In the department enquiry, charges were not

proved against them and hence, the same was dropped. Despite

filing the present complaint, the learned Magistrate proceeded to

take the cognizance as against the law established. Learned

counsel would contend that the Revisional Court, though passed

a detailed order failed to take note of the protection provided

under Section 197 of Cr.P.C. and has erroneously dismissed the

Revision Petition. Learned counsel also would contend that both

the Courts failed to take note of the fact that these petitioners

have not exceeded their limits and they have discharged their

duties in connection with their official capacity in performing the

public duty.

8. Learned counsel, in support of his arguments, relied

upon the judgment of this Court in the case of S.Mariswamy

and Another v. Venkanna Rao reported in 2007 (3) KCCR

1751, wherein this Court held that previous sanction for

prosecution of Government servants is necessary and held that

petition filed under Section 482 of Cr.P.C. is liable to be allowed

and accordingly quashed the proceedings on the ground for want

of sanction.

9. Learned counsel also relied upon the judgment of the

Apex Court in the case of Anil Kumar and Others v.

M.K.Aiyappa and Another reported in 2013 (5) KCCR 4222

(SC), wherein the Apex Court also dealt with regard to Section

19 of the Prevention of Corruption Act and held that the finding,

sentence or order which has already been rendered by the

Special Judge shall not be reversed or altered by a Court in

appeal, confirmation or revision on the ground of absence of

sanction. That does not mean that the requirement to obtain

sanction is not a mandatory requirement. Once it is noticed that

there was no previous sanction, as already indicated in various

judgments referred to, the learned Magistrate cannot order

investigation against a public servant while invoking the powers

under Section 156(3) of Cr.P.C.

10. Learned counsel also relied upon the judgment of the

Apex Court in the case of D.T.Virupakshappa v. C.Subhash

reported in 2015 (3) KCCR 2145 (SC), wherein the Apex Court

discussed with regard to Section 197 of Cr.P.C. and requirement

of sanction to prosecute - the police officer involving in excesses,

and detaining the complainant in police station during the

investigation - issue of "police excess" and guidelines issued by

Supreme Court in (2004) 8 SCC 40- Action of accused/police

officer has nexus with his official duty/investigation - sanction is

necessary.

11. Learned counsel also relied upon the judgment of

this Court in the case of Vittal Kumar and Another v. State of

Karnataka and Another reported in 2019 (2) KCCR 1608

with regard to quashing of criminal proceedings. The allegation

against the police officers of dereliction of duty in not informing

their activities to SHO and that they demanded bribe. The

protection without sanction to prosecute cannot be sustained.

Hence, proceedings quashed.

12. Learned counsel also relied upon the judgment of the

Apex Court in the case of D.Devaraja v. Owais Sabbeer

Hussain reported in AIR 2020 SC 3292. The learned counsel

referring this judgment brought to the notice of this Court para

Nos.67 to 80, wherein the Apex Court discussed the requirement

of sanction under Section 197 of Cr.P.C. read with Section 170 of

the Karnataka Police Act and held that if a police officer

exercises excess powers while discharging the public duty, the

sanction is required.

13. Learned counsel also relied upon the judgment of the

Apex Court in the case of State of Haryana and others v.

Ch.Bhajan Lal and others reported in AIR 1992 SC 604 (1)

and brought to the notice of this Court the guidelines laid down

by the Apex Court in this judgment.

14. Learned counsel also relied upon the judgment of the

Apex Court in the case of M/s Pepsi Foods Limited and

Another v. Special Judicial Magistrate and others reported

in AIR 1998 SC 128 with regard to invoking of jurisdiction

under Section 482 of Cr.P.C. In this judgment, the Apex Court

comes to the conclusion that no material showing the

appellant/accused were either manufacturer of holding licence

for manufacture of offending bevarages. Complaint and

preliminary evidence making out no case against accused and

the complaint is liable to be quashed.

15. Per contra, learned counsel appearing for the

respondent-complainant, in his arguments, would vehemently

contend that an enquiry is conducted and in the said enquiry,

Deputy Superintendent of Chinthamani has given the report

dated 25.06.2010, wherein it is held that these petitioners are

guilty for the torture meted out to the complainant's son.

Learned counsel also would vehemently contend that it is not in

dispute that he was illegally confined from 14.05.2010 to

16.05.2010. The medical officer was also examined before the

Magistrate and considering the sworn statement of 7 witnesses,

learned Magistrate passed a detailed order, which is a reasoned

order. Though it is not necessary to pass any detailed order

while issuing the process, the learned Magistrate has considered

each of the allegations made in the complaint and also the sworn

statement of witnesses, who have been examined before the

Trial Court. When the reasoned order has been passed,

question of interfering with the order of the learned Magistrate in

issuance of process does not arise.

16. Learned counsel also would vehemently contend that

in the Revision Petition also, the learned Judge gone in detail

and passed the detailed and reasoned order appreciating each

and every legal aspect by discussing in detail and comes to the

conclusion that learned Magistrate has not committed any error

in issuing the process. The order passed by the learned

Magistrate has attained its finality and earlier also the

Crl.P.No.1714/2019 was filed before this Court and the same

was withdrawn. Now the matter is committed to the Sessions

Court and the Sessions Court has to conduct the trial.

17. Learned counsel also brought to the notice of this

Court Ex.P.28, which was marked before the Trial Court which

discloses that the complainant's son attempted to commit suicide

on 19.05.2010, for which he took treatment in Janatha Nursing

Home for more than 8 days and also in other different hospitals.

Ex.P.20 is the medical records. Learned counsel would

vehemently contend that the complainant in the chain snatching

case was called to the police station, and he has not identified

the son of the complainant herein. Despite, he was detained in

illegal custody for a period of two days and subjected to physical

torture. Learned counsel also would submit that the sworn

statement of P.Ws.1 to 7 was very clear with regard to the

excesses of the petitioners herein.

18. Learned counsel would vehemently contend that the

principles laid down by the Apex Court in Devaraja's case is not

applicable to the case on hand and in that case also, the Apex

Court discussed with regard to excesses of police officials and

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

Act was also discussed. Hence, it is not a fit case to exercise the

powers under Section 482 of Cr.P.C. to quash the proceedings.

19. Learned counsel, in support of his arguments, relied

upon the judgment of the Apex Court in the case of Surinderjit

Singh Mand and Another v. State of Punjab and Another

reported in (2016) 8 SCC 722 and brought to the notice of this

Court para No.2, wherein the factual aspects of the case has

been discussed. Learned counsel submits that in this judgment,

the Apex Court also discussed the scope of Section 197 of

Cr.P.C. in para No.8 of the judgment. Learned counsel also

brought to the notice of this Court para No.12, wherein the Apex

Court discussed the principles laid down in the case of

P.K.Pradhan v. State of Sikkim at para No.5 of the said

judgment, where it is held that the words occurring in Section

197 of Cr.P.C. mean any offence alleged to have been committed

by him while acting or purporting to act in the discharge of his

official duty. It is also observed that offence alleged to have

been committed must have something to do or must be related

in some manner, with the discharge of official duty. No question

of sanction can arise under Section 197, unless the act

complained of is an offence; the only point for determination is

whether it was committed in the discharge of official duty. There

must be a reasonable connection between the act and the official

duty. It does not matter even if the act exceeds what is strictly

necessary for the discharge of the duty, as the question will arise

only at a later stage when the trial proceeds on the merits.

20. Learned counsel also brought to the notice of this

Court para No.23, wherein the Court also discussed the

principles laid down in P.P.Unnikrishnan's case and discussed

the scope of Section 197 of Cr.P.C. Learned counsel referring to

this judgment and also the factual aspects of the case would

vehemently contend that it is not a case for quashing of the

proceedings. There cannot be any protection under Section 197

of Cr.P.C. or Section 170 of the KP Act as the allegations are

made against the petitioners herein is not in connection with the

discharge of their public duty and no case has been registered

against the son of the complainant. Detaining the complainant's

son in the illegal custody for a period of two days and subjecting

him for mental and physical torture on the guise of enquiring

him, is not in connection with public duty as the petitioners are

seeking the protection invoking Section 197 of Cr.P.C. and

Section 170 of KP Act.

21. Having heard the learned counsel for the respective

parties and also on perusal of the materials available on record,

before appreciating the same, this Court would like to make it

clear that this Court is exercising the powers under Section 482

of Cr.P.C. While exercising the powers under Section 482 of

Cr.P.C., if this Court comes to a conclusion that it is a case of

abuse of powers, which leads to miscarriage of justice, the Court

can exercise the jurisdiction under Section 482 of Cr.P.C. and

the same also has to be exercised sparingly in order to prevent

the abuse of process and miscarriage of justice. In the light of

the scope of Section 482 of Cr.P.C., this Court has to evaluate

the materials available on record.

22. Before evaluating the material, this Court would like

to sum up the factual aspects of the case in brief. It is clear that

the chain snatching case was registered in Crime No.169/2010.

It is also not in dispute that the son of the complainant was

secured in this connection. It is evident in the complaint that

these petitioners went to the house of the complainant at 5.30

a.m. in search of the son of the complainant and he was not

found. Hence, instructed his father i.e., the complainant herein

to bring his son and the friend of the complainant was also

intimated. Hence, the complainant took his son to the police

station. It is not in dispute that the complainant's son was in the

illegal custody of these petitioners for a period of two days and

also enquiry was conducted against them. It is the contention of

the learned counsel of the respondent-complainant that a

departmental enquiry was conducted against the petitioners

herein and the report dated 25.06.2010, was submitted stating

the excesses on the part of these petitioners. It is also not in

dispute that again the matter was entrusted for further enquiry.

In the further enquiry, the report was submitted in favour of

these petitioners. Hence, it is clear that at the first instance,

report was against these petitioners. The learned counsel for

the petitioners also not disputes the fact that the departmental

enquiry report was given initially on 25.06.2010, but he more

stresses on the subsequent report.

23. It is the main contention of the learned counsel for

the complainant/respondent that the complainant's son was

subjected to physical assault by the petitioners herein. In order

to substantiate the same, the document-Ex.P20 was marked

before the learned Magistrate and medical records reveals that

he was inflicted with injuries. In the complaint also, it is specific

that those injuries are noticed by the wife of the complainant

and thereafter, he was taken to Janatha Nursing Home, where

he took treatment. It is also important to note that due to

humiliation caused to him, he took extreme step of committing

suicide on 19.05.2010 within 2 days of letting him free by the

police officers after the torture and detaining him in illegal

custody from 14.05.2010 to 16.05.2010. The document Ex.P.28

also discloses that he attempted to commit suicide and he took

treatment for a period of 10 days in different hospitals including

Janatha Nursing Home and Columbia Asia Hospital. It is also

important to note that when the complaint is filed, learned

Magistrate has to look into the contents of the complaint. In the

case on hand, the learned Magistrate after receiving the

complaint proceeded to record the sworn statement.

24. The main contention of the learned counsel for the

petitioners is that before recording the sworn statement, the

learned Magistrate has to take the cognizance. He relied upon

the several judgments in this regard. There is no dispute with

regard to the fact that before recording the sworn statement, the

learned Magistrate has to take cognizance. It has to be noted

that this Court in the case of Bangalore Metropolitan

Transport Corporation, Bangalore v. D.Kempanna reported

in 2006 SCC online KAR 118 held that if the order does not

reveal taking of cognizance and if the learned Magistrate

proceeds to record the sworn statement that would suffice to say

that learned Magistrate has deemed to have been taken

cognizance. This Court also in detail discussed regarding the said

aspect in the case of Shivraj v. State of Karnataka reported in

2019 (7) KLJ 44, wherein the said principles has been

reiterated. Hence, the very contention of the learned counsel for

the petitioners that the learned Magistrate proceeded to record

the sworn statement without taking cognizance cannot be

accepted.

25. The second contention of the learned counsel for the

petitioners is that it requires sanction to initiate the criminal

prosecution against the police officials. Learned counsel also

relied upon the several judgments in this regard. The Apex

Court in its recent decision in Devaraja's case discussed in

detail regarding the protection given under Section 197 of

Cr.P.C. read with 170 of KP Act. In para No.68, the Apex Court

held that the sanction of the Government to prosecute a police

officer, for any act related to the discharge of an official duty, is

imperative to protect the police officer from facing harassive,

retaliatory, revengeful and frivolous proceedings. However,

discussed that at the same time, if the policeman has committed

a wrong, which constitute a criminal offence and renders him

liable for prosecution, he can be prosecuted with sanction from

the appropriate government.

26. It is further observed in para No.69 that every

offence committed by a police officer does not attract Section

197 of Cr.P.C. read with Section 170 of KP Act. The protection

given under Section 197 of Cr.P.C. read with Section 170 of 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 official duty is not

merely a cloak for the objectionable act. An offence committed

entirely outside the scope of the duty of the police officer, would

certainly not requires sanction. In para No.73, it is observed

that to decide whether sanction is necessary, the test is whether

the act is totally unconnected with official duty or whether there

is a reasonable connection with the official duty. It is further

observed in para No.77 that it is well-settled that an application

under Section 482 of Cr.P.C. is maintainable to quash

proceedings which are ex facie bad for want of sanction,

frivolous or in abuse of process of Court. If, on the face of the

complaint, the act alleged appears to have reasonable

relationship with the official duty, where the criminal proceedings

is apparently prompted by mala fides and instituted with ulterior

motive, power under Section 482 of Cr.P.C. would have to be

exercised to quash the proceedings, to prevent the abuse of

process of Court.

27. In the light of the principles laid down in the

judgment referred supra, this Court has to analyse the materials

on record. I have already pointed out that the complainant's son

was detained in illegal custody for a period of 2 days is not in

dispute and also he was summoned to enquire is also not in

dispute. It is also to be noted that I have already pointed out

the medical evidence with regard to the fact that he was

subjected to physical torture and document of Ex.P.28 is clear

that he was subjected to man handling and as a result, he took

treatment at Janatha Nursing Home. It is also important to note

that on account of said humiliation, he took the extreme step of

committing suicide as he was tortured, assaulted and detained in

illegal custody for a period of 2 days in the police station. It is

also apparent prima facie on record that departmental enquiry

was conducted and at the fist instance the report was given

against these petitioners vide report dated 25.06.2010 and the

same would prima facie discloses that the police had excesses

their powers. It is also not in dispute that ultimately the son of

the complainant was not arraigned as an accused in the said

case. It is also not in dispute that the very complainant in the

said chain snatching case, has not identified the son of the

complainant and there are no criminal antecedents against him.

When such being the case, the protection envisaged under

Section 197 of Cr.P.C. or Section 170 of KP Act cannot be

extended to the petitioners herein.

28. Learned Magistrate, in detail considered the

statement of witnesses, who have been examined i.e., 7 in

number and also while passing a detailed order, assigned the

reasons. Learned Revisional Judge also examined the legal

aspect and also the factual aspect of the case and passed a

detailed reasoned order and comes to the conclusion that there

is no merit in the revision. The Court also while issuing the

process against the petitioners herein considered the sworn

statement as well as allegations made in the complaint and has

rightly come to the conclusion that it is a fit case to proceed

against the petitioners herein.

29. This Court also would like to refer to the judgment of

the Apex Court in the case of Choudhury Parveen Sultana v.

State of West Bengal and Another reported in (2009) 2 SCC

(Cri) 122 regarding Section 197 of Cr.P.C, wherein the object,

nature and scope of Section 97 of Cr.P.C. has been reiterated.

Wherein it is held that all acts done by a public servant in the

purported discharge of his official duties cannot as a matter of

course be brought under the protective umbrella of Section 197

of Cr.P.C. Further, there can be cases of misuse and/or abuse of

powers vested in a public servant which can never be said to be

a part of the official duties required to be performed by him. The

underlying object of Section 197 Cr.P.C. is to enable the

authorities to scrutinize the allegations made against a public

servant to shield him/her against frivolous, vexatious or false

prosecution initiated with the main object of causing

embarrassment and harassment to the said official. However, as

indicated hereinabove, if the authority vested in a public servant

is misused for doing things which are not otherwise permitted

under the law, such acts cannot claim the protection of Section

197 Cr.P.C. and have to be considered dehors the duties which a

public servant is required to discharge or perform. Hence, in

respect of prosecution for such excesses or misuse of authority,

no protection can be demanded by the public servant concerned.

30. The Apex Court also in the judgment of

P.P.Unnikrishnan v. Puttiyottil Alikutty reported in (2000) 8

SCC 131, wherein the Apex Court observed as follows:-

"21. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court it

would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman peeping a person in the-lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority."

31. Having taken note of the principles laid down in the

judgments referred supra and also the documents relied upon by

the learned counsel for the petitioners and so also the learned

counsel appearing for the respondent No.2, it is clear that the

son of the complainant was detained in the police custody for a

period of two days illegally. He was not only detained but also

subjected to physical torture, which is evident as per document

Ex.P20 marked before the learned Magistrate. When the

complainant's son was subjected to humiliation, he took extreme

step of committing suicide and immediately, he was taken to the

hospital, and he took treatment for almost 10 days in different

hospitals and his health was deteriorated and the same is

evident from the document Ex.P28, which was marked before

the learned Magistrate.

32. It is also important to note that it is not in dispute

that the case has been registered against the unknown person,

who snatched the chain. The petitioners herein are also not

disputing the fact that the son of the complainant was secured to

the police station. It is also important to note that he was not

identified by the complainant in the chain snatching case and

that he has not been arraigned in the case subsequent to the

investigation also but he was in illegal custody of the petitioners

herein and subjected him for physical torture. When an innocent

person was taken to the police station without arresting him and

detained illegally in the custody and that apart, he was subjected

to torture, no criminal antecedents against him, the act of the

police officers cannot be termed as the act done in connection

with discharge of public duty as it is nothing but misuse of

powers vested with the petitioners, who are the police officials.

The Court also has to take note of the result of detaining an

innocent person in the illegal custody and subjecting him for

physical torture, which is not reasonably connected with the

official duty. When such being the case, the protection as

contended by the learned counsel for the petitioners cannot be

extended and there cannot be quashing of any criminal

prosecution against the petitioners herein for want of sanction.

There is ample materials against the petitioners herein, which

has been considered by the learned Magistrate and also the

Revisional Court and both the Courts, while issuing the process

and confirming the order of issuance of process, taken note of

the question of fact as well as the question of law and passed a

reasoned order. Hence, I do not find any merit in the petition to

exercise the powers under Section 482 of Cr.P.C. in quashing the

proceedings initiated against the petitioners herein.

33. In view of the discussions made above, I pass the

following:

ORDER

The petition is hereby rejected.

In view of rejection of the main petition, I.A.No.1/2021

does not survive for consideration and the same stands disposed

of.

Sd/-

JUDGE

PYR