Pradeep Bhimrao Bhosale & Ors. v. State of Maharashtra & Anr.

9. Ms. Bhosale, learned APP supported the impugned Orders.

VII. Thus, following points arise for determination in the present case:

A] What is the legal position concerning the circumstances requiring sanction under Section 197 of CrPC? B] Whether sanction under Section 197 of CrPC is necessary in the present case? REASONING:

VIII. Before considering the factual position, it is necessary to set out the legal position concerning the circumstances requiring sanction under Section 197 of CrPC. A] What is the legal position concerning the circumstances requiring sanction under Section 197 of CrPC?

10. Mr. Mundargi, learned Amicus Curiae has pointed out the Judgment of the Supreme Court in the case of D. Devaraja (supra). He has also pointed out the factual position in that case. In that case, the allegation was ill-treatment by Police while the Respondent was in Police custody. The learned Magistrate was pleased to take cognizance, even though no previous sanction had been obtained from the Government. In the said case of D. Devaraja (supra) the Supreme Court has considered Section 197 of CrPC and the decisions of various Courts concerning the issue of sanction. In that case, on behalf of the Accused- Police Officials it was argued that if the act was in dereliction of duty or in excess of duty, it was nevertheless in exercise of authority as a Police Officer, in connection with investigation of an alleged crime in which the Respondent was alleged to be involved. The Police Officers were duty bound to investigate into an offence. The excesses alleged were in course of discharge of such official duty of investigating into an offence and therefore sanction is necessary. On the other hand, it was argued that whether the sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which in the said case was of physical torture and ill-treatment of the Respondent. It was submitted that ill-treatment and torture could never be in exercise of official duty, or even under the colour of the official duty. It was further argued that whether the sanction was necessary or not would have to be determined in course of the trial having regard to the materials brought on record by the respective parties and the complaint should not be nipped in the bud on the ground of want of sanction. The Supreme Court after considering the various Judgments concerning the scope of Section 197 of CrPC has set out the law relating to the sanction.

11. The discussion of the Supreme Court in D. Devaraja (supra) in Paragraph Nos.65 to 77 is very relevant. The same is reproduced herein below for ready reference:- “65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.

66. 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. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government.

67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police 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 require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

68. 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 the government sanction for initiation of criminal action against him.

69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

70. 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. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

72. On the question of the stage at which the trial court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court.

73. While this Court has, in D.T. Virupakshappa [D.T. Virupakshappa v. C. Subash, (2015) 12 SCC 231: (2016) 1 SCC (Cri) 82] held that the High Court had erred [D.T. Virupakshappa v. C. Subash, 2013 SCC OnLine Kar 10774] in not setting aside an order of the trial court taking cognizance of a complaint, in exercise of the power under Section 482 of the Criminal Procedure Code, in Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44: 1956 Cri LJ 140] this Court held that it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings.

74. It is well settled that an application under Section 482 of the Criminal Procedure Code 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 a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

75. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition, it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime NO. 12/2012. Patently, the complaint pertains to an act under colour of duty.

76. Significantly, the High Court has by its judgment [H. Siddappa v. Owais Sabeer Hussain, 2018 SCC OnLine Kar 3805] and order observed: (H. Siddappa case [H. Siddappa v. Owais Sabeer Hussain, 2018 SCC OnLine Kar 3805], SCC OnLine Kar para 5)

5. … it is well-recognised principle of law that sanction is a legal requirement which empowers the court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal, therefore, an order to overcome any illegality the duty of the Magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider.

77. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognised principle of law that sanction was a legal requirement which empowers the court to take cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.”

12. Thus, the following principles can be culled out from the discussion of the Supreme Court in the case of D. Devaraja (supra). i. 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. The requirement of sanction from the Government, to prosecute would give an upright Police Officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of CrPC. ii. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government. iii. Every offence committed by a Police Officer does not attract Section 197 of CrPC. The protection given under Section 197 of CrPC 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. An offence committed entirely outside the scope of the duty of the Police Officer, would certainly not require sanction. iv. If an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. v. 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 the government sanction for initiation of criminal action against him. vi. The language and tenor of Section 197 of CrPC makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. vii. 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. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. viii. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of CrPC.

13. Thus, what the Supreme Court has held that protection under Section 197 of CrPC has its limitation and the protection is available 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 clock for the objectionable act. An offence committed by Police Officer entirely outside the scope of the duty of the Police Officer, would certainly not require sanction. However, if the act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 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 the government sanction for initiation of criminal action against him. It has been very specifically held that sanction is required not only for acts done in discharge of official duty, the same is also required for an act purported to be done in discharge of official duty and or act done under colour of or in excess of such duty or authority. It has been held that to decide whether the 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. Thus, what is important criteria to decide whether sanction under Section 197 of CrPC is necessary or not is that whether the act alleged is totally unconnected with the official duty or whether there is a reasonable connection with the official duty.

14. Mr. Mundargi, learned Amicus Curiae also pointed out the decision of the Supreme Court in the case of Gurmeet Kaur (supra) and more particularly Paragraph No.70 of the same, which reads as under:- “70. In the circumstances, we observe that the first respondent herein ought to have sought sanction for prosecution under Section 197 of the CrPC in the instant case. The same, not having been done vitiated the initiation of the criminal proceeding against the appellant herein. Consequently, the summoning order and the consequent steps taken by the trial court pursuant to the said summoning order are liable to be quashed and are thus quashed. Insofar as the very initiation of the complaint is concerned, we observe that since there was no prior order of sanction passed under Section 197 of the CrPC, the initiation of the complaint itself, is non est.”

15. Mr. Mundargi, learned Amicus Curiae, also pointed out the decision of the Supreme Court in the case of G.C. Manjunath v. and more particularly Paragraph Nos.30 and 36 to 40 of the same. The same are reproduced herein below:- “30. A careful reading of Section 197 of the CrPC unequivocally delineates a statutory bar on the Court's jurisdiction to take cognisance of offences alleged against public servants, save without the prior sanction of the appropriate Government. The essential precondition for the applicability of this provision is that the alleged offence must have been committed by the public servant while acting in the discharge of, or purported discharge of, their official duties. The protective mantle of Section 197 of the CrPC, however, is not absolute; it does not extend to acts that are manifestly beyond the scope of official duty or wholly unconnected thereto. Acts bereft of any reasonable nexus to official functions fall outside the ambit of this safeguard and do not attract the bar imposed under Section 197 of the CrPC.” “36. In light of the aforesaid judgments, the guiding principle governing the necessity of prior sanction stands well crystallised. The pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the CrPC and Section 170 of the Police Act is attracted. In such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted improperly while discharging his duty.

37. Turning to the case at hand, there is little doubt that the allegations levelled against the accused persons are grave in nature. Broadly classified, the accusations against the accused persons encompass the following: (1) abuse of official authority by the accused persons in allegedly implicating the complainant in fabricated criminal cases, purportedly driven by malice or vendetta; (2) physical assault and ill-treatment of the complainant by the accused persons, constituting acts of alleged police excess; (3) wrongful confinement of the complainant; and (4) criminal intimidation of the complainant.

38. In the circumstances at hand, we are of the considered opinion that the allegations levelled against the accused persons, though grave, squarely fall within the ambit of “acts done under colour of, or in excess of, such duty or authority”, and “acting or purporting to act in the discharge of his official duty”, as envisaged under Section 170 of the Police Act and Section 197 of the CrPC, respectively. This Court, while adjudicating on instances of alleged police excess, has consistently held in Virupaxappa [Virupaxappa Veerappa Kadampur v. State of Mysore, 1962 SCC OnLine SC 395: AIR 1963 SC 849] and D. Devaraja [D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695: (2020) 3 SCC (Cri) 442], that where a police officer, in the course of performing official duties, exceeds the bounds of such duty, the protective shield under the relevant statutory provisions continues to apply, provided there exists a reasonable nexus between the impugned act and the discharge of official functions. It has been categorically held that transgression or overstepping of authority does not, by itself, suffice to displace the statutory safeguard of requiring prior government sanction before prosecuting the public servant concerned.

39. In the present case, it is an admitted position that the complainant was declared a rowdy sheeter by the Deputy Commissioner of Police, Law and Order (West), Bengaluru City, pursuant to a request made by Mahalakshmi Layout Police Station, Bengaluru, upon due consideration of the criminal cases registered against the complainant, vide order dated 23.8.1990. Subsequently, multiple criminal cases have been instituted against the complainant. It is in the course of the investigation of these cases that the instant allegations have been levelled against the accused persons. As noted above, any action undertaken by a public officer, even if in excess of the authority vested in them or overstepping the confines of their official duty, would nonetheless attract statutory protection, provided there exists a reasonable nexus between the act complained of and the officer's official functions.

40. In the present case, it is evident that the actions attributed to the accused persons emanate from the discharge of their official duties, specifically in connection with the investigation of criminal cases pending against the complainant. As previously observed, a mere excess or overreach in the performance of official duty does not, by itself, disentitle a public servant from the statutory protection mandated by law. The safeguard of obtaining prior sanction from the competent authority, as envisaged under Section 197 of the CrPC and Section 170 of the Police Act cannot be rendered nugatory merely because the acts alleged may have exceeded the strict bounds of official duty. In view of the foregoing, we are of the considered opinion that the learned VII Additional Chief Metropolitan Magistrate erred in taking cognisance of the alleged offences against the accused persons without the requisite sanction for prosecution in the instant case. The absence of the necessary sanction vitiates the very initiation of criminal proceedings against the accused persons.” (Emphasis added)

16. Thus, it has been reiterated by the Supreme Court in G.C. Manjunath (supra) that the protective mantle of Section 197 of CrPC is not absolute and the same does not extend to acts that are manifestly beyond the scope of official duty or wholly unconnected thereto. Acts bereft of any reasonable nexus to official functions fall outside the ambit of this safeguard and do not attract the bar imposed under Section 197 of CrPC. The Supreme Court further held that pivotal enquiry which is necessary for determining necessity of prior sanction is whether the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, and in that case the requirement of sanction is obviated. It has been further held that where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of CrPC is attracted and in such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted improperly while discharging his duty.

17. Mr. Vaibhav Ugle, learned Amicus Curiae has relied on the decision of the Supreme Court in Rizwan Ahmed Javed Shaikh (supra). He pointed out the facts of the said case and also pointed out Paragraph Nos.15 and 16 of the same. The factual position as mentioned in Paragraph Nos.[1] and 2, is as under:- “One Faijuddin Jainuddin lodged a complaint against Rizwan Ahmed, Ramchandra Kasbe and Afzalkhan, the three appellants before us, complaining that the appellants and some other unknown persons had gathered dangerous weapons and abducted the complainant, Faijuddin Jainuddin and assaulted him. The police registered offences punishable under Sections 142, 144, 147, 148, 365, 368, 324/149 IPC against the appellants and commenced investigation. On 28- 3-1986 at about 8.30 p.m. Respondent 1 who was a Sub- Inspector attached to Chembur Police Station, along with other policemen, came to the residence of the appellants and forced the three appellants to accompany them to Chembur Police Station where they were put in the lock-up. At about 2 a.m. on 29-3-1986 they were put in a police van and brought to Bhandup Police Station and placed in the lock-up. On 30-3- 1986 the appellants were produced before the Holiday Magistrate at Bhoiwada (Dadar) who ordered them to be produced before the regular court on 31-3-1986. Later on they were released on bail. On 16-7-1986 the appellants filed a complaint before the Metropolitan Magistrate, XXVII Court, Mulund, Bombay impleading two Sub-Inspectors, two Senior Police Inspectors and a Police Inspector attached with Chembur and Bhandup Police Stations complaining of offences under Sections 220, 342 IPC and Sections 147(c),

(d) and 148 of the Bombay Police Act, 1951. The complaint also alleged the appellants having been “mercilessly beaten” while they were wrongfully confined at Chembur Police Station. The learned Magistrate in the enquiry held under Section 202 CrPC recorded the statement of the complainant and one witness, took cognizance under Sections 220 and 342 IPC and Sections 147 and 148 of the Bombay Police Act and directed the accused to be summoned.

2. The accused-respondents appeared before the learned Magistrate and raised an objection as to the maintainability of the complaint under Section 197(2) CrPC relying on a notification which will be reproduced shortly hereinafter. The learned Magistrate formed an opinion that the complaint could not have been filed without the requisite sanction and therefore directed the accused-respondents to be discharged. The appellants preferred a petition under Section 482 CrPC and Article 226 of the Constitution before the High Court of Bombay which was dismissed. The appellants have filed this appeal by special leave.”

18. After considering various Judgments concerning applicability of Section 197 (3) of CrPC, the Supreme Court in Rizwan Ahmed Javed Shaikh (supra) in Paragraph Nos.15 and 16, held as under:- “15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.

16. In the case at hand cognizance against the accused persons has not been taken under Section 323 IPC. It appears that the complaint stated the complainants to have been “mercilessly beaten” by one of the accused persons whilst in custody but when one of the complainants was examined by the learned Magistrate he stated only this much that one of the police officers had assaulted him. The statement was too vague to be acted upon and hence cognizance for causing hurt to any of the complainants has not been taken by the learned Magistrate. None of the complainants has made any grievance about it. The cognizance taken is only under Section 220 (commitment for trial or confinement by person having authority who knows that he is acting contrary to law) and Section 342 (wrongful confinement) of the Indian Penal Code, 1860. Cognizance has also been taken for offences under Section 147 (vexatious injury, search, arrest etc. by police officer) and Section 148 (vexatious delay in forwarding a person arrested) of the Bombay Police Act, 1951. Cognizable and non-bailable offences were registered against the appellants. They were liable to be arrested and detained. The gravamen of the charge is the failure on the part of the accused persons to produce them before a Magistrate within 24 hours of arrest. The complainants were in the custody of the police officers and at the police station. It cannot be denied that the custody which was legal to begin with became illegal on account of non-production of the complainants before the Magistrate by the police officers officially detaining the appellants at a place meant for detaining the persons suspected of having committed an offence under investigation. The act constituting an offence alleged to have been committed by the accused-respondents was certainly done by them in their official capacity though at a given point of time it had ceased to be legal in spite of being legal to begin with. On the totality of the facts and circumstances of the case in our opinion the learned Magistrate and the High Court have not erred in holding the accused-respondents entitled to the benefit of protection under Section 197(2) CrPC. We have felt it unnecessary to deal with the allegation made in the complaint relating to beating of the appellants whilst in police custody because no cognizance has been taken for an offence in that regard and no cognizance can now be taken because of the bar of limitation enacted by Section 468 CrPC.”

19. Thus, what is held by the Supreme Court in Rizwan Ahmed Javed Shaikh (supra) that the custody which was legal to begin with became illegal on account of non-production of the complainants before the Magistrate by the Police Officers officially detaining them at a place meant for detaining the persons suspected of having committed an offence under investigation. It has been further held that the act constituting an offence alleged to have been committed by the police personnel was certainly done by them in their official capacity though at a given point of time it had ceased to be legal in spite of being legal to begin with. It has been further held that on the totality of the facts and circumstances of the case, the learned Magistrate and the High Court have not erred in holding the police personnel entitled to the benefit of protection under Section 197(2) of CrPC.

20. Mr. Sudatta Patil, learned Counsel for the Petitioners has relied on the decision of the Supreme Court in Rizwan Ahmed Javed Shaikh (supra) as also on the decision of the Supreme Court in the case of G.C. Manjunath (supra). Both these decisions have been discussed elaborately herein above. He also relied on the decision of the Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat 10 and more particularly on Paragraph Nos.5, 38 and 39, which read as under:- “5. In the meantime, the appellant submitted an application (Ex. 45) to the Home Minister on 9-3-1984 for investigation being handed over to an independent officer. The Home Minister by his order dated 13-3-1984 directed fresh investigation of the case, in pursuance of which the investigation was taken up by the Assistant Director, Shri

Vaghela, who submitted a fresh report in December 1984 against the appellant. On the receipt of this report, the Secretary, Gujarat Vigilance Commission, by his letter dated 3- 1-1985, wrote to the Government to grant sanction for prosecuting the appellant as a prima facie case was made out against him after fresh investigation. The Government, however, did not immediately grant the sanction and consequently the complainant, Shri Harshadrai Laljibhai Kalathia, filed, in the name of the firm, M/s R.L. Kalathia & Company, a Special Civil Application No. 5126 of 1984 in the Gujarat High Court under Article 226 of the Constitution for a direction to the respondents, namely the State of Gujarat and others, to sanction prosecution of the appellant for offences punishable under Section 161 IPC and Section 5(2) of the Act. The Gujarat High Court, by its order dated 2-1-1985, partly allowed the petition and passed the following operative order: “In the result, this petition is partly allowed. Respondent 7 (newly added) is directed to accord sanction under the relevant provisions of the Prevention of Corruption Act to prosecute M.V. Chauhan who was working as Divisional Accountant of Medium Irrigation Project at Ankleshwar as stated above. It need not be stated that prosecution will be for offences punishable under the relevant provisions of law. Respondent 7 is directed to accord sanction within one month from the receipt of the writ of this Court. Rule made absolute to the extent stated above with no order as to costs.” ” “38. From the notings of the Secretariat file, contained in Exhibit 70, as also the conflicting statements made by the Secretary and the Under-Secretary, it is not possible to hold as to who actually granted the sanction. The Gujarat High Court has held that the sanction was granted by the Deputy Secretary, Shri Lade (PW 8), ignoring the fact that the file was also placed before the Secretary and he had also put his signature thereon. The file had, admittedly, been sent to the Office of the Chief Minister from where it was received back on 30-1-1985 and as such it is not understandable as to how sanction could be granted on 23-1-1985. This confusion also appears to be the result of the order passed by the High Court that the sanction must be granted within one month. The Secretary being the Head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction. The Deputy Secretary, who actually issued the order of sanction, had signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of the appellant's prosecution with the consequence that whole proceedings stood void ab initio.

39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for reconsideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophises early end of criminal proceedings through a speedy trial.”

21. In Paragraph No.38 of Mansukhlal Vithaldas Chauhan (supra) the Supreme Court was considering the legality of the sanction order and in Paragraph No.39 it has been held that when the sanction order is held to be bad, normally the case is remitted back to the Authority for reconsideration of the matter. However, in that case as the incident is of 1983, after a lapse of 14 years, it will not be fair and just to direct that the proceedings be again be initiated from the stage of sanction. It is the contention that in the present case also as the incident had taken place in the year 2004 i.e. 21 years ago, if the case is remanded back, then the Petitioners will be subjected to another litigation and the same will be for an indefinite period, which will be contrary to the mandate of Article 21 of the Constitution of India.

22. Mr. Nikhilesh Pote, learned Counsel appearing for the Respondent No.2 relied on the decision of the Supreme Court in Om Prakash Yadav (supra) and more particularly on Paragraph Nos.73, 74 and 84 of the same. The said Paragraphs are reproduced herein below for ready reference:- “73. This Court in Devinder Singh v. State of Punjab, (2016) 12 SCC 87 had observed that sometimes certain questions about the requirement of sanction cannot be decided without evidence and questions like the good faith or bad faith of the public servant can be decided on the conclusion of trial. The relevant observations made are reproduced hereinbelow: “39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. 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. The accused has the right to lead evidence in support of his case on merits.

39.9. In some cases, it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.

40. In the instant cases, the allegation as per the prosecution case is that it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct, there is no requirement of any sanction. However, it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of the prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall reexamine the question of sanction and take decision in accordance with law. The trial to proceed on the aforesaid basis.” (emphasis supplied)

74. The legal position that emerges from the discussion of the aforesaid case laws is that:

(i) There might arise situations where the complaint or the police report may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty. However, the facts subsequently coming to light may establish the necessity for sanction. Therefore, the question whether sanction is required or not is one that may arise at any stage of the proceeding and it may reveal itself in the course of the progress of the case.

(ii) There may also be certain cases where it may not be possible to effectively decide the question of sanction without giving an opportunity to the defence to establish that what the public servant did, he did in the discharge of official duty. Therefore, it would be open to the accused to place the necessary materials on record during the trial to indicate the nature of his duty and to show that the acts complained of were so interrelated to his duty in order to obtain protection under Section 197 of Code of Criminal Procedure.

(iii) While deciding the issue of sanction, it is not necessary for the Court to confine itself to the allegations made in the complaint. It can take into account all the material on record available at the time when such a question is raised and falls for the consideration of the Court.

(iv) Courts must avoid the premature staying or quashing of criminal trials at the preliminary stage since such a measure may cause great damage to the evidence that may have to be adduced before the appropriate trial court.” “84. At this juncture on a prima facie examination of the materials adduced before us, we are of the opinion that the criminal proceedings pending before the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009 should not have been quashed at such a preliminary stage. In cases where there is a legitimate doubt as regards whether sanction for prosecution under Section 197 of Code of Criminal Procedure is required or not, the progress of the trial must not be hampered or unnecessarily delayed. Therefore, the CJM, Firozabad had rightly taken cognizance of the two charge sheets vide its orders dated 24.11.2008 and 10.08.2009 respectively. The High Court committed an error in failing to consider this aspect while quashing the proceedings in Case No. 67 of 2008 and 67A of 2009 respectively vide its impugned order.”

23. It has been held by the Supreme Court in Om Prakash Yadav (supra) that certain questions about the requirement of sanction cannot be decided without evidence and questions like the good faith or bad faith of the public servant can be decided on the conclusion of trial. It has been held that whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. It has been held that question of sanction can be considered at any stage of the proceedings. It has been held that there can be certain cases where it will not be possible to decide the question of sanction without giving an opportunity to the defence to establish that what the public servant did in the discharge of official duty. It has been further held that while deciding the issue of sanction, it is not necessary for the Court to confine itself to the allegations made in the complaint. It can take into account all the material on record available at the time when such a question is raised and falls for the consideration of the Court and that the Courts must avoid the premature staying or quashing of criminal trials at the preliminary stage since such a measure may cause great damage to the evidence that may have to be adduced before the appropriate Trial Court. It has been held that where there is a legitimate doubt as regards whether sanction for prosecution under Section 197 of CrPC is required or not, the progress of the trial must not be hampered or unnecessarily delayed.

24. Mr. Nikhilesh Pote, learned Counsel appearing for Respondent No.2 has also relied on the decision of the Supreme Court in State of Punjab v. Hari Kesh (supra) and more particularly on Paragraph Nos.[8] and 11 of the same. He submitted that whether the sanction order was passed by the Competent Authority or not would be a matter of evidence to be proved by the prosecution during the course of trial. He also relied on Paragraph No.15 of the decision of Rizwan Ahmed Javed Shaikh (supra).

25. Thus, the factual aspects of this case are required to be considered on the touchstone of the principles laid down by the Supreme Court in D. Devaraja (supra), Rizwan Ahmed Javed Shaikh (supra) and Om Prakash Yadav (supra). Thus, the real test to be applied to attract the applicability of Section 197(3) of CrPC is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. It has to be find whether the act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, however, if it is found that if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.

26. Thus, in view of the above principles, it is required to examine the facts of this case whether in this particular case the act complained of was in exercise of the duty or in the absence of such duty or in dereliction of the duty and whether the act complained of is in the course of the same transaction in which the official duty was performed or purported to be performed.

IX. In view of the above principles, it is necessary to examine the material on record to find out whether sanction under Section 197 of CrPC in this particular case is necessary before issuance of the process. [B] Whether sanction under Section 197 of CrPC is necessary in the present case?

27. The factual position is as under:i. The Petitioners and other concerned were Police Personnel attached to the Miraj Police Station at the relevant time. Petitioner No.1 was the Police Inspector and other Petitioners and other concerned persons were Police Constables attached to the Miraj Police Station at the relevant time. ii. In the complaint which has been filed before the learned JMFC on 5th September 2004 it is stated by the Respondent No.2 that he was arrested about 1 and ½ months back by Miraj City Police Station and he was arrested at Pune by the Police Personnel of Miraj City Police Station. Police Constable Lavdande, Police Constable More and Police Constable Rane brought him from Pune to Miraj City Police Station and he has been physically assaulted from 8 pm to 8 pm i.e. for 24 hours and he was brutally beaten on his face, legs and thigh. Thereafter, in the said complaint in detail it is mentioned about the manner in which the Respondent No.2 was beaten. In verification dated 23rd September 2004 which is recorded by the learned JMFC it is stated by the Respondent No.2 that he was arrested on 3rd July 2004 at Pune by said Police Constable Mali, Police Constable More and Police Constable Rane and kept at Miraj City Police Station for a period of 7 days he was not produced before the Court. Thus, as per the said verification the Petitioners have not produced Respondent No.2 within 24 hours before the Magistrate and thus for 7 days he was kept in illegal detention. As per the verification and the complaint during said illegal detention the Petitioners and other Police Officials have brutally beaten Respondent No.2 on his face, legs and thigh and also they gave fist and blows to the iii. In view of the said complaint and verification it is the contention of Mr. Vaibhav Ugle, learned Amicus Curiae and also of Mr. Nikhilesh Pote, learned Counsel of the Respondent No.2 that the act complained against the Police Officials is outside the scope of their official duty and therefore sanction under Section 197 of CrPC is not required. iv. The relevant details as per the contention of the Respondent No.2 are as under:- (a) 3rd July 2004 - The Respondent No.2 was arrested from Pune and brought to Miraj City Police Station. (b) 3rd July 2004 - 8th July 2004 – The Respondent No.2 was mercilessly assaulted by the Petitioners and others i.e. Police Personnel attached to the Miraj Police Station. (c) 8th July 2004 - FIR No.50/2004 was lodged against the Respondent No.2 at Miraj Police Station under Section 379 of IPC. (d) 9th July 2004 – The Respondent No.2 was produced before the learned JMFC, Miraj.

28. In view of the above allegation of the Respondent No.2, it is the contention of the Petitioners that, although the allegations levelled are false allegations, Respondent No.2 is a habitual offender and there are total 5 cases registered against the Respondent No.2 at Miraj Police Station and he has been convicted in 2 cases. It is the submission of learned Counsel for the Petitioners that in those 5 FIRs registered against Respondent No.2 he has been remanded and no complaint has been made by the Respondent No.2. It is the submission of learned Counsel for the Petitioners that various documents showing medical papers do not substantiate the allegation that Police Officials have assaulted the Respondent No.2.

29. However, it is required to be noted that Mr. Pote, learned Counsel appearing for Respondent No.2 is right in pointing out that the medial papers clearly shows that Respondent No.2 has been subjected to physical assault. In his written submissions on Page 7, a chart is mentioned giving particulars of name of injury, act by which the incident has been corroborated and page numbers of the Compilation. The same is as under:- Sr. No. Nature of injury Incident corroborated Page No Compilation 1 Bleeding Per Urethra Accused had inserted white Rubber rod in the anus of the Respondent no 2 and poured Petrol through it 21, 22 and 55

2 Burn Scar Accused gave Candle burn on the old scar of the chest of the Respondent No 2 21, 22, 24, 26, 37, 39, 48, 51 & 55

30. Before analysing the factual aspects, on the touchstone of the law as set out herein above, it is necessary to set out the details given by the Petitioner under the heading “Habitual Offender” and “No Complaint During Remand Proceedings”, as below:-

B. NO COMPLAINT DURING REMAND PROCEEDINGS

The Petitioners submit that the Complainant was arrested and produced for remand on five occasions before the Ld. JMFC, Miraj. Further on every occasion, the Complainant was asked by the Ld. JMFC about any complaint regarding ill treatment at the hand of the police, however the Complainant did not make any allegation of ill treatment on any of the remand proceedings. The details of the remand proceedings are as follows: Sr. No. FIR No. Remand Date Any Complaints 1 50/2004 09/07/2004 None 2 51/2004 13/07/2004 None 3 54/2004 28/07/2004 None 4 54/2004 29/07/2004 None 5 56/2004 30/07/2004 None The Petitioners submit that the copies of remand proceedings have been submitted by the Petitioners in the list of documents and from a bare perusal of each proceeding it is evidence that on every occasion the Ld. JMFC had enquired with the Complainant regarding any ill treatment at the hands of the police, however the Complainant did not raise any grievance at that time. The Petitioners submit that the absence of any allegation of ill treatment at the time of remand proceedings itself strikes directly at the credibility of the Complaint.”

31. Thus, the position on record prima facie shows following:i. Respondent No.2 came to be arrested on 3rd July 2004. For the first time he has been produced before the learned Magistrate on 9th July 2004. Thus, Respondent No.2 has been subjected to illegal detention from within 24 hours after 3rd July 2004 to 9th July 2004. ii. The first FIR No.50 of 2004 was registered against the Respondent No.2 on 8th July 2004 and he was produced before the learned JMFC on 9th July 2004. iii. It is further established that prima facie the material on record show that Respondent No.2 has been subjected to assault during the said period. iv. It is relevant to note that in the complaint and the verification it is stated that the Petitioners i.e. Police Officers and Constables have subjected the Respondent No.2 to physical assault.

32. In view of the above position on record, it is very clear that Respondent No.2 was kept in illegal custody. He has been subjected to physical assault by the Police Officers and Police Constables i.e. Petitioners and others.

33. In view of the material showing the above position, it is necessary to see whether in this particular case sanction under Section 197 of CrPC is required. The relevant part of Section 197 reads as under:- “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 office 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 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]— (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.] [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 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] 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. [(3A) 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.] [(3B) 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.”

34. It is very relevant and significant to note that Section 197 of CrPC specifically provides that sanction of the Government is required if a public servant 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, and in such a case no Court shall take cognizance of such offence except with the previous sanction of the concerned Government. Thus, what is required to determine whether in the light of the prima facie material which shows that Respondent No.2 has been subjected to illegal detention and during the said period he was subjected to physical assault whether in such a case sanction is necessary. In effect, what is to be decided is that whether such a case will be covered by the term “while acting or purporting to act in the discharge of the official duty” of the Police Officials and Police Constable.

35. As noted herein above, various principles laid down by the Supreme Court concerning circumstances in which sanction under Section 197 is necessary are already set out. It has been specified that the protection under Section 197 of CrPC 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. It has been further held that an offence committed entirely outside the scope of the duty of the Police Officer, would certainly not require sanction. It has been further held that if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. It has been further held 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 the government sanction for initiation of the criminal action against him.

36. It has been held that the language and tenor of Section 197 of CrPC makes it absolutely clear that sanction is required not only for acts done in discharge of official duty but the same are for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

37. Thus, test is whether the act is totally unconnected with the official duty or whether there is a reasonable connection with the official duty. Thus, what is important to determine whether if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law and in such a case sanction under Section 197 of CrPC is necessary.

38. In this particular case, even as per the contentions of the Petitioners, the first FIR bearing FIR No.50 of 2004 against Respondent No.2 has been lodged on 9th July 2004. The material on record prima facie show that the Respondent No.2 was arrested on 3rd July 2004. The incidents which are subject matter of some of the FIRs took place about 2 months earlier.

39. In view of this position on record which prima facie show that Respondent No.2 has been arrested on 3rd July 2024 and FIR has been lodged for the first time on 9th July 2004 and particularly as the incidents which are subject matter of some of the FIRs have taken place about 1-2 months back, it is necessary to see the provisions regarding arrest of a person under CrPC. The relevant part of Section 41 regarding arrest by Police without warrant reads as under:- “41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— [(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: [Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. [(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]”

40. Thus, it is clear that any Police Officer may without an order from a Magistrate and without a warrant, arrest any person inter alia against whom a credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine. It is further provided that such person can be arrested if Police Officer is satisfied that he has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the offence or the Police Officer is satisfied that such arrest is necessary to prevent such person from committing any further offence; or proper investigation of the offence.

41. Thus, as the material on record show that Respondent No.2 is a habitual offender, it can be held that he has been arrested in view of credible information received or a reasonable suspicion exists that Respondent No.2 has committed a cognizable offence. Therefore, arrest of Respondent No.2 on 3rd July 2004 cannot be said to be illegal arrest. However, what is relevant to note is that Respondent No.2 has not been produced before the learned Magistrate as per the mandatory requirement of Section 57 of CrPC and Article 22(2) of the Constitution of India. Thus, it is clear that although arrest of Respondent No.2 on 3rd July 2004 may be legal, however, as he has not been produced within 24 hours before the Magistrate, the said detention is illegal detention. In this background of the matter, it is required to consider whether the actions of the Police Personnel requires sanction under Section 197 of CrPC.

42. The Supreme Court in the case of Rizwan Ahmed Javed Shaikh (supra), has held that the real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do so as such public officer. It has been held that the act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected.

43. In fact, in the decision of Rizwan Ahmed Javed Shaikh (supra) in Paragraph No.16 it has been observed that the gravamen of the charge against the Police Personnel involved in said case was that the failure on the part of the Police Personnel to produce the arrested Accused before a Magistrate within 24 hours of arrest. The complainants were in the custody of the Police Officers and at the police station. In view of the same, it has been held that although it cannot be denied that the custody which was legal to begin with became illegal on account of non-production of the complainants before the Magistrate by the Police Officers officially detaining the complainants at a place meant for detaining the persons suspected of having committed an offence under investigation, the act constituting an offence alleged to have been committed by the accused-respondents was certainly done by them in their official capacity though at a given point of time it had ceased to be legal in spite of being legal to begin with. The said observations in the decision of Rizwan Ahmed Javed Shaikh (supra) are squarely applicable to the present case.

44. As the position on record shows that Respondent No.2 is a habitual offender, he could have been arrested under Section 41 of CrPC for the reasons set out herein above. However, he has not been produced before the learned Magistrate within 24 hours and therefore his detention becomes illegal. The factual position further prima facie shows that he has been brutally assaulted and he has been for the first time produced before the learned Magistrate on 9th July 2004. Thus, the observations of the Supreme Court in the case of Rizwan Ahmed Javed Shaikh (supra) as also in the case of D. Devaraja (supra) are squarely applicable to the present case. In fact, the factual aspects in the present case are also fairly identical as that of the decision of the Supreme Court in the case of Rizwan Ahmed Javed Shaikh (supra) and

45. In G.C. Manjunath (supra) it has been held that for determining the aspect whether sanction under Section 197 of CrPC is necessary, the pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the CrPC is attracted. It has been further held that where a police officer, in the course of performing official duties, exceeds the bounds of such duty, the protective shield under the relevant statutory provisions continues to apply, provided there exists a reasonable nexus between the impugned act and the discharge of official functions. It has been categorically held that transgression or overstepping of authority does not, by itself, suffice to displace the statutory safeguard of requiring prior government sanction before prosecuting the public servant concerned.

46. In D. Devaraja (supra), it has been observed that on the question of the stage at which the Trial Court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of the Supreme Court. However, in Paragraph No.74 the Supreme Court it has been observed that if on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, then it is necessary that the power of this Court under Section 482 of CrPC should be utilised. In D. Devaraja (supra) also the allegation was ill-treatment by Police while the Respondent was in Police custody.

47. In view of the above legal position, even if the complaint and verification is perused, then also it is very clear that Respondent No.2 has been arrested by the concerned Police Personnel. In fact, the verification of Respondent No.2 on which learned Counsel appearing for Respondent No.2 has very strongly relied also shows that Respondent No.2 has stated that he has been arrested on 3rd July 2004 and thereafter brought to Miraj City Police Station and for a period of 7 days he was not produced before the Court. Thus, it cannot be said that the act of the Petitioners i.e. Police Personnel is totally unconnected with official duty. In fact, in Paragraph No.67 of the decision of D. Devaraja (supra), while giving an example when the protection under Section 197 of CrPC will not be applicable, the Supreme Court has stated that a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled for protection under Section 197 of CrPC. However, it has been held 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 the government sanction for initiation of criminal action against him.

48. In this particular case, even the case of the Respondent No.2 is that he has been arrested on 3rd July 2004 and he has been brought to the Miraj City Police Station and thereafter illegally detained for a period of 7 days and therefore it has to be held that in doing the official duty, the Petitioners i.e. Police Personnel have acted in excess of duty, however, there is a reasonable connection between the act and the performance of the official duty and therefore the fact that the act alleged is in excess of duty will not be a ground to deprive the policemen of the protection of the government sanction for initiation of criminal action against them.

49. In view of the above legal and factual position, it is also necessary to consider the Judgments on which Mr. Nikhilesh Pote, learned Counsel has relied. He has relied on the decision of the Supreme Court in Om Prakash Yadav (supra) and more particularly on Paragraph Nos.73, 74 and 84. What has been held in that case is that sometimes certain questions about the requirement of sanction cannot be decided without evidence and questions like the good faith or bad faith of the public servant can be decided on the conclusion of trial. Therefore, what has been held that the question whether sanction is required or not is one that may arise at any stage of the proceedings and it may reveal itself in the course of the progress of the case. It has been further held that while deciding the issue of sanction, it is not necessary for the Court to confine itself to the allegations made in the complaint. It can take into account all the material on record available at the time when such a question is raised and falls for consideration of the Court. It has been held that Court must avoid the premature staying or quashing of criminal trials at the preliminary stage since such a measure may cause great damage to the evidence that may have to be adduced before the appropriate trial Court.

50. However, in the present case, even it is the case of Respondent No.2 that he has been arrested by the Petitioners i.e. Police Personnel and he has been brought to the Miraj Police Station and thereafter he has not been produced before the Court for a period of 7 days and he was mercilessly beaten during the said period. Thus, the factual position on record prima facie shows that the Police Personnel have acted in excess of their Authority and various principles laid down in the case of

51. Mr. Nikhilesh Pote, learned Counsel for Respondent No.2 has also relied on the decision of the Supreme Court in the State of Punjab v. Hari Kesh (supra). However, the facts in that case are totally different, where the challenge is concerning sanction order dated 19th November

2018. In view of the said challenge raised it is held that whether the sanction has been granted by the Competent Authority or not would be a matter of evidence. Therefore, the said Judgment will have no application to the present case.

52. In the present case, process has been issued against the Petitioners and other Police Personnel inter alia under Sections 220 and 330 of IPC. The said Sections are reproduced herein below for ready reference:- Section 220 of IPC “220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law.— Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” Section 330 of IPC “330. Voluntarily causing hurt to extort confession, or to compel restoration of property.— Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” A bare reading of said Sections 220 and 330 of IPC and the ingredients of the same clearly shows that the same also contemplates the Police Personnel while acting in their capacity as Police Personnel have acted in excess of their authority and therefore various principles laid down in the case of D. Devaraja (supra) and G.C. Manjunath (supra) are applicable to the facts of this case.

53. Mr. Mundargi, learned Amicus Curiae has pointed out the Judgment of the Supreme Court in Gurmeet Kaur (supra). Although it has been observed that very initiation of the complaint itself, is non est, as there was no prior order of sanction passed under Section 197 of CrPC, however, liberty has been given to the Respondent to take steps in accordance with law and seek an order of sanction.

54. For the above reasons, it has to be held that although the allegations levelled against the accused persons, though grave, squarely fall within the ambit of “acts done under colour of, or in excess of, such duty or authority”, and “acting or purporting to act in the discharge of his official duty”, as envisaged under Section 197 of the CrPC. Accordingly, the impugned Order dated 28th September 2004 passed by the learned Judicial Magistrate, First Class, Miraj in Regular Criminal Case No.166 of 200 issuing process against the Petitioners for the offences punishable under Sections 220 and 330 read with Section 149 of IPC as confirmed by the Order dated 12th July 2005 passed by the learned Additional Sessions Judge, Sangli in Criminal Revision Application No.164 of 2004 is quashed and set aside.

55. However, in the light of the law laid down by the Supreme Court in Gurmeet Kaur (supra), Respondent No.2 is permitted to pursue his complaint after taking appropriate steps in accordance with the law seeking sanction and thereafter he can be permitted to pursue his complaint.

56. Accordingly, Writ Petition is allowed, subject to above.

57. This Order is partly dictated on earlier dates and completed today.

58. This Court places on record its appreciation for the assistance rendered by Mr. Niranjan Mundargi, learned Amicus Curiae, Mr. Vaibhav V. Ugle, learned Amicus Curiae, Mr. Sudatta J. Patil, learned Counsel for the Petitioners, Ms. P. P. Bhosale, learned APP for Respondent No.1-State and Mr. Nikhilesh Pote, learned Counsel for [MADHAV J. JAMDAR, J.]