Kashmiri Lal v. State & Anr.

9. It was urged that the caste-based abuses and the misuse of police machinery by the respondent attracted the provisions of Section 3(1)(p) of the SC/ST Act, which penalizes instituting false or vexatious proceedings against members of Scheduled Castes. It was further argued that Section 197 CrPC would not apply in the facts of this case since the alleged acts were not committed in discharge of official duties.

10. Per Contra, the learned Additional Public Prosecutor for the State opposed the petition and submitted that the acts attributed to Respondent No.2, including the lodging of the FIR, were performed in his capacity as a public servant in the discharge of official duties. Therefore, in the absence of prior sanction under Section 197 of the CrPC, no cognizance could be taken.

11. It was further argued that mere acquittal of the petitioner in a prior case does not automatically make the original complaint false or malicious. The petitioner has failed to bring on record any evidence to show that the respondent had acted with mala fide intent or that he was not discharging his official duty. Analysis

12. The principal issue arising for determination is whether the learned ASJ was justified in rejecting the petitioner’s complaint at the pre-summoning stage in the absence of prior sanction under Section 197 of the CrPC, and whether a prima facie case for prosecution was made out against the respondent.

13. Before delving into the question of the correctness of the impugned order, it is pertinent to briefly examine Section 197 of the CrPC and Section 140 of the Delhi Police Act, 1978.

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.] [Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, [Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB] or Section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. [(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”

14. Upon a conjoint reading of Section 197 of the CrPC and Section 140 of the Delhi Police Act, 1978 it is evident that a prior sanction is required to prosecute the public servant/police officer but for certain exceptions provided in Section 197 of the CrPC. Further, the language materialised under Section 140 of the Delhi Police Act, 1978 makes it clear that sanction is required not only for acts done in discharge of official duty but also for acts done in excess of such duty. The purpose of necessitating a prior sanction to prosecute public servants finds its genesis in the need to safeguard public interest and to ensure that official acts do not result in vexatious prosecutions.

15. For this reason, the Hon’ble Apex Court in the case of State of Orissa v. Ganesh Chandra Jew: (2004) 8 SCC 40 while delineating the scope of Section 197 of the CrPC noted that such acts that have a reasonable nexus with the performance of official duty would not be deprived of protection. The relevant observations are reproduced as:

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 acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official 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 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 be a sufficient ground to deprive the public servant of the 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 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 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 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. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. xxx xxx xxx

11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that the act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force, which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted….” (emphasis supplied)

16. The same was reiterated by the Hon’ble Apex Court in the case of

17. In the present case, it is not disputed that Respondent No.2 was a serving police officer at the time of the incident and FIR NO. 426/2010 was recorded on his complaint alleging that he had been assaulted while performing his official duties. The prosecution in that FIR culminated in the acquittal of the petitioner and his family, vide judgment dated 18.05.2022. The complaint filed by the petitioner under Section 156(3) of the CrPC now seeks to prosecute Respondent No.2 for allegedly lodging a false complaint, giving false evidence, and using caste-based slurs—offences punishable under Sections 182/193/211 of the IPC and Section 3(1)(p) of the SC/ST Act.

18. The act of lodging a complaint in relation to obstruction or assault on a police officer during the discharge of official duty is squarely within the purview of a public servant’s responsibilities. Even if it is assumed that the complaint was exaggerated or ultimately found untrue, it does not follow that the act was wholly unconnected with his official functions. At the very least, it must be regarded as an act ‘purporting to be in the discharge of official duty’, thereby attracting the bar under Section 197 of the CrPC.

19. The protection to police officers under Section 140 of the Delhi Police Act, 1978 also fortifies this conclusion. The provision clearly mandates that no prosecution shall be entertained against a police officer for any act done in the discharge or purported discharge of official duty, unless instituted within three months or with prior sanction of the competent authority. In the present case, the complaint was filed nearly twelve years after the incident, and there is no sanction on record. Hence, both Section 197 CrPC and Section 140 of the Delhi Police Act operate as a bar to the prosecution.

20. Even leaving aside the requirement of prior sanction, the complaint as filed fails to disclose any credible prima facie case that would justify invoking the jurisdiction under Section 156(3) of the CrPC or proceeding under Section 200 of the CrPC.

21. Mere acquittal in a criminal case does not automatically lead to the conclusion that the initial complaint was false or malicious. Petitioner was acquitted since the allegation could not be proved beyond reasonable doubt. The Trial Court did not reach a conclusion that the prosecution was malicious. The standard of proof for establishing offences under Sections 182/193/211 of the IPC is materially different. It requires a direct finding or independent evidence to the effect that the complaint was knowingly false and made with intent to injure.

22. The petitioner has not brought on record any material to suggest that the allegations made by Respondent No.2 in FIR No. 426/2010 were demonstrably false at the time they were made. Nor is there any adjudication to that effect by a competent Court. The learned Magistrate who tried the original case may have acquitted the petitioner and his family, but that judgment does not record any finding that the complaint was false or motivated.

23. As regards the invocation of the offence under SC/ST Act, the petitioner’s complaint refers vaguely to caste-based abuses but fails to provide any independent corroboration or witness support. The FIR registered in 2010 also does not make any reference to such allegations. The belated assertion made twelve years after the incident, and after acquittal in a different case, lacks sufficient probative value to proceed further.

24. There is, in sum, a complete absence of substantive evidence to suggest that Respondent No.2 had acted with intent to falsely implicate the petitioner or to cause wrongful loss or injury. The learned ASJ has rightly examined the materials on record and found them to be insufficient for issuing directions under Section 156(3) of the CrPC or taking cognizance under Section 200 of the CrPC.

25. In view of the foregoing discussion, this Court finds no infirmity or illegality in the impugned order. The present petition is dismissed. AMIT MAHAJAN, J MAY 7, 2025