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Judgment
Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel, if any, appearing on behalf of opposite party no. 2.
The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) has been preferred for quashing the order dated 16.02.2017 passed by the learned Additional Chief Judicial Magistrate-XVI, Gopalganj in Trial No. 679 of 2018 arising out of Complaint Case No. 11722 of 2016, whereby cognizance has been taken against the petitioner for the offences under Sections 323, 504 and 354 of the Indian Penal Code, 1860. The petitioner also assailed the order dated 28.05.2017 passed by the learned District and Sessions Judge, Gopalganj in Criminal Revision No. 1487 of 2017, whereby the order of cognizance was modified only to the extent of retaining a prima-facie case under Sections 323 and 504 of the Indian Penal Code against the petitioner.
The brief case of the complainant, as it appears from the complaint petition, is that the complainant is an Ex-Member of Zila Parishad and that on 23.11.2016 at about 6:00 P.M., her son had gone to see his construction work in the market. It is alleged that the petitioner, along with others, forcibly took away her son in a Scorpio vehicle. When complainant could not find her son, on extensive search in and around on 26.11.2016 she submitted an application before the Superintendent of Police, Gopalganj.
It is further alleged in the complaint that the complainant subsequently came to know that her son, namely Banti Singh, had been kept in the lock-up of Thawe Police Station. She went to the police station along with witnesses and allegedly found that her son had been assaulted by the police. It is alleged that blood was oozing from the body of her son and when the complainant attempted to meet him, the petitioner assaulted him by means of lathi and again placed him in the hazat and also used filthy language against the complainant. The complaint thereafter culminated in taking of cognizance against the petitioner.
Learned counsel for the petitioner submits that the petitioner is a police personnel and present complaint has been instituted with an oblique motive as a measure of vengeance. It is submitted that the complainant's son had in fact been arrested by the petitioner on 28.11.2016 in connection with Sadar Gopalganj P.S. Case No. 492 of 2016, and was subsequently remanded to judicial custody. It is contended that the arrest was made in discharge of official duty and that the complaint was lodged only after the petitioner had proceeded against the complainant's son in a criminal case.
It is further submitted that the petitioner was posted at Sadar (Gopalganj) Police Station and had not visited Thawe Police Station on the dates alleged in the complaint. Reliance has been placed upon the R.T.I. information issued by Thawe Police Station dated 20.11.2017. The petitioner has also placed on record the relevant materials to contend that the complainant's son was arrested in connection with a criminal case registered under Sections 414, 399 and 402 of the Indian Penal Code and Section 25(1) of the Arms Act and was thereafter remanded to judicial custody.
It is urged that the learned Magistrate, while taking cognizance, did not apply the requisite judicial mind to the foundational circumstance that the allegations themselves arise out of police action. It is submitted that Section 197 of the Cr.P.C. was completely ignored and that, where the act complained of has a reasonable nexus with the discharge or purported discharge of official duty, previous sanction is a condition precedent of taking cognizance. It is, therefore, contended that the impugned order suffers from a jurisdictional infirmity and continuation of criminal proceeding would amount to abuse of the process of the Court.
Learned counsel for the State, on the other hand, submitted that at the stage of cognizance, the Court is required only to see whether a prima-facie case is disclosed from the complaint and the materials brought on record. It is contended that the petitioner cannot rely upon his defence to seek quashing at the threshold and that the allegations in the complaint ought ordinarily to be permitted to be tested in accordance with law.
Having considered the rival submissions and upon perusal of the materials available on record, this Court finds that the controversy requires examination within the settled parameters governing the exercise of inherent jurisdiction under Section 482 Cr.P.C., as also the statutory protection available to public servants where the act, complained of, has a reasonable nexus with official duty.
The inherent jurisdiction under Section 482 Cr.P.C. is extraordinary in character and is to be exercised sparingly and with circumspection. At the same time, the jurisdiction exists to secure the ends of justice and to prevent abuse of the process of any Court. The principles noticed by the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335], and reiterated in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, [(2021) 19 SCC 401], recognizes that while criminal proceedings ordinarily ought not to be scuttled at the threshold, the High Court retains jurisdiction to interfere in exceptional cases where continuation of the proceeding would result in miscarriage of justice or abuse of process.
It would be apposite to reproduce the para nos. 12.4 and 57 of the Neeharika Infrastructure Private Limited Case (supra), which reads as under:-
12.4.In Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], it is observed and held by this Court that save in exceptional cases where non-interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of the investigation of offence. It is further observed that in a routine case where information of an offence or offences has been lodged, investigation commenced, search and seizure followed and suspects arrested, the resort to the unusual procedure of oral applications and oral appeals and interim stay order thereon would have the effect of interfering and staying the investigation of offences by the investigating officer performing statutory duty under CrPC.
“57.From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i)Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases standard in its application for quashing under Section 482 Cr. P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v)While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr. P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x)Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.”
The judgment of this Court in the case of Harpreet Kaur v. State of Bihar, Patna High Court [Criminal Miscellaneous Nos. 60841 of 2024] and its analogous cases, decided on 16.04.2025, is particularly instructive. In that case also, the allegations were founded upon alleged police excess in the course of police action. While considering the matter, this Court noticed the principles laid down by the Hon’ble Supreme Court in D.T. Virupakshappa v. C. Subash, (2015) 12 SCC 231, State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 and Om Prakash v. State of Jharkhand, (2012) 12 SCC 72, particularly in relation to the scope of Section 197 Cr.P.C.
In D.T. Virupakshappa (supra), the Hon’ble Supreme Court held that the question whether sanction is necessary may arise at any stage of the proceeding and, in an appropriate case, even at the inception. Where there are unassailable and unimpeachable circumstances showing that the police officer was acting in discharge of official duty and was entitled to the protection under Section 197 Cr.P.C., the Court is not precluded from looking into such material at the threshold. The Court further emphasized that previous sanction is a precondition for taking cognizance and that the accused is not required to wait until framing of charge to raise the issue.
The principle was earlier authoritatively stated in State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40, wherein the Hon’ble Supreme Court explained that Section 197 Cr.P.C. is intended to protect responsible public servants against institution of possibly vexatious criminal proceedings for acts alleged to have been committed while acting or purporting to act as public servants. The protection is not absolute. It is available where the alleged act is reasonably connected with official duty and is not merely a cloak for doing an objectionable act. Even where, in the course of official duty, an officer exceeds his duty, the excess by itself does not deprive him of protection if there remains a reasonable connection between the act and the performance of official duty.
In Om Prakash v. State of Jharkhand, (2012) 12 SCC 72, the Hon’ble Supreme Court, while specifically dealing with police excess, formulated the test that the act complained of must be directly connected with official duties, done in discharge thereof, or so integrally connected with or attached to the office as to be inseparable from it. The protection is available where the alleged act is reasonably connected with official duty and is not merely a cloak for the objectionable act. The said principle was noticed and applied by this Court in Harpreet Kaur (supra).
It would further be apposite to reproduce para 5, 6, 7, 8 & 9 of D.T. Virupakshappa case (supra), which reads as under:
“5.The question, whether sanction is necessary or not, may arise on any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by this Court in Om Prakash v. State of Jharkhand [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 : (2013) 3 SCC (Cri) 472] . To quote: (SCC p. 94, para 41)
“41.The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea.”
6.In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 CrPC, in case, the government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary.
7.The issue of “police excess” during investigation and requirement of sanction for prosecution in that regard, was also the subject-matter of State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] , wherein, at para 7, it has been held as follows: (SCC pp. 46-47)
“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.”
(emphasis supplied)
8.In Om Prakash [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 : (2013) 3 SCC (Cri) 472] , this Court, after referring to various decisions, particularly pertaining to the police excess, summed up the guidelines at para 32, which reads as follows: (SCC p. 89)
“32.The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] ). The protection given under Section 197 of the Code 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 (Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.”
(emphasis supplied)
9.In our view, the above guidelines squarely apply in the case of the appellant herein. Going by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order.”
The distinction is thus not between an act which is perfectly lawful and an act which is unlawful. The relevant enquiry is whether the act complained of bears a reasonable and integral nexus with the official duty. The quality of the act and its connection with the official function are material. Where the very foundation of the complaint is an act performed in the course of police action - such as arrest, detention, investigation, maintenance of order or production of an accused before the competent Court—the statutory protection cannot be brushed aside merely because the complainant alleges that the police officer exceeded his authority.
The importance of the police force in a constitutional democracy cannot be understated. The police is entrusted with the statutory responsibility of prevention and detection of crime, apprehension of offenders, investigation, maintenance of public order and implementation of lawful directions of the competent authorities. The exercise of such coercive powers necessarily carries with it the possibility of allegations of excess. The law, therefore, seeks to maintain a constitutional balance: a police officer cannot claim immunity for acts wholly foreign to his office, but bona fide exercise of statutory police powers cannot be converted into a criminal prosecution without examining the safeguards expressly contemplated by law.
In the present case, the complaint itself discloses that the alleged occurrence is founded upon the detention and custody of the complainant's son by police personnel. The petitioner has placed material indicating that the complainant's son had been arrested in connection with Sadar Gopalganj P.S. Case No. 492 of 2016 and thereafter remanded to judicial custody. The defence material further indicates that the petitioner was posted at Sadar Gopalganj Police Station and not at Thawe Police Station on the relevant dates. These circumstances are not being considered for the purpose of conducting a mini-trial; they are being noticed for the limited purpose of determining whether the statutory question of sanction and the nexus with official duty can be ignored at the threshold.
The chronology assumes significance. The complaint was instituted after the complainant's son had already been subjected to police action in connection with a criminal case. The revisional Court also noticed the petitioner's contention that the complaint had been instituted with an oblique motive to exert pressure upon the petitioner and other police officers. The learned District and Sessions Judge, while modifying the cognizance order and retaining Sections 323 and 504 IPC, did not adequately address the foundational question as to whether previous sanction under Section 197 Cr.P.C. was necessary before cognizance could be taken.
The impugned order dated 16.02.2017, as available from the record, records in substance that upon consideration of the complaint, solemn affirmation and other materials, sufficient ground for proceeding existed and a prima-facie case under Sections 323, 504 and 354 IPC was made out against the petitioner. The order thereafter directed issuance of summons. However, there is no meaningful consideration of the statutory bar contained in Section 197 Cr.P.C., notwithstanding that the allegations themselves arise from police custody and police action.
It is true that the High Court, while exercising jurisdiction under Section 482 Cr.P.C., ordinarily does not evaluate the reliability or genuineness of allegations and does not undertake a mini-trial. This restraint is an important part of the law declared in Neeharika Infrastructure (supra). The same judgment, however, recognizes the inherent jurisdiction of the High Court to secure the ends of justice and prevent abuse of process. The present case is not being decided by weighing the testimony of witnesses or by determining the ultimate truth of the allegations. The issue is whether cognizance could legally have been taken without first addressing the statutory precondition arising from Section 197 Cr.P.C.
The principle that the judiciary and the police operate in complementary and distinct spheres is also of relevance. Neeharika Infrastructure (supra) reiterates that the police has a statutory right and duty to investigate cognizable offences and that Courts ordinarily should not thwart investigation. At the same time, the inherent power of the Court survives to prevent abuse of process. Thus, protection of police functioning and protection of individual liberty are not competing constitutional values; both are facets of the rule of law and must operate harmoniously.
The constitutional dimension cannot be overlooked. Article 14 of the Constitution mandates that State action remain fair, non-arbitrary and consistent with law, while Article 21 protects life and personal liberty against deprivation except by a procedure established by law which satisfies the requirements of fairness and reasonableness. The criminal process itself is coercive in character. Summoning a person to face a criminal prosecution, particularly a public servant for acts connected with official functions, therefore cannot be treated as a matter of routine. The procedural safeguards enacted by the legislature, including Section 197 Cr.P.C., operate as an important institutional check against vexatious prosecution while preserving the possibility of prosecution where the statutory conditions are fulfilled.
At the same time, this Court is conscious that Section 197 Cr.P.C. does not create an immunity for every act of a public servant. If an act is wholly unconnected with official duty or if official status is merely used as a cloak for a private or criminal act, the protection cannot be invoked. The question is one of reasonable connection. The present conclusion, therefore, is not founded upon the status of the petitioner as a police officer alone; it is founded upon the nature of the allegations, the admitted police context in which the alleged acts arose, the materials indicating the petitioner's official posting and the absence of previous sanction before cognizance.
Viewed in the aforesaid legal and constitutional framework, the continuation of the criminal proceeding against the petitioner, without first satisfying the statutory requirement under Section 197 Cr.P.C., would result in permitting the criminal process to proceed upon a legally defective foundation. The maxim “sublato fundamento cadit opus” - when the foundation is removed, the superstructure falls - has relevance in the circumstances of the present case. The defect goes to the root of the jurisdiction exercised by the learned Magistrate at the stage of cognizance.
The Court is also mindful of the settled criminal jurisprudence that the presumption of innocence is a foundational principle and that criminal law is not intended to be used as an instrument of harassment or retaliation. The coercive machinery of the State must remain anchored to lawful authority, procedural fairness and constitutional reasonableness. Equally, the quashing jurisdiction cannot be converted into an appellate evaluation of disputed facts. The present interference is therefore confined to the legal infirmity in the assumption of jurisdiction at the stage of cognizance and the absence of the statutory safeguard which the record required the learned Court below to consider.
The facts of the present case, therefore, bear substantial resemblance to the principle applied by this Court in Harpreet Kaur (supra), where, after considering Neeharika Infrastructure, D.T. Virupakshappa, Ganesh Chandra Jew and Om Prakash (supra), the Court held that where the allegations of police excess were reasonably connected with official duty, the question of previous sanction under Section 197 Cr.P.C. could not be ignored and the impugned cognizance order was liable to be set aside/quashed.
This Court, accordingly, finds that the order dated 16.02.2017 passed by the learned Additional Chief Judicial Magistrate-XVI, Gopalganj in Trial No. 679 of 2018 arising out of Complaint Case No. 11722 of 2016, taking cognizance against the petitioner under Sections 323, 504 and 354 IPC, suffers from a jurisdictional infirmity. The order dated 28.05.2017 passed by the learned District and Sessions Judge, Gopalganj in Criminal Revision No. 1487 of 2017, insofar as it sustained the cognizance against the petitioner under Sections 323 and 504 IPC, also cannot be sustained.
Accordingly, guided by the principles enunciated by the Hon’ble Supreme Court in the matter of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335; Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401; D.T. Virupakshappa v. C. Subash, (2015) 12 SCC 231; State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40; Om Prakash v. State of Jharkhand, (2012) 12 SCC 72; and K. Satwant Singh v. State of Punjab, AIR 1960 SC 266, and keeping in view the reasoning adopted by this Court in Harpreet Kaur v. State of Bihar, the impugned order dated 16.02.2017 passed by the learned Additional Chief Judicial Magistrate-XVI, Gopalganj, as modified by order dated 28.05.2017 passed by the learned District and Sessions Judge, Gopalganj, is hereby set aside/quashed qua the petitioner.
Consequently, the criminal proceeding arising out of Complaint Case No. 11722 of 2016, insofar as it relates to the petitioner, stands quashed. It is clarified that the present order is confined to the petitioner and shall not prejudice the rights or proceedings, if any, against any other accused person in accordance with law.
The application stands allowed.
Let a copy of this order be transmitted to the learned Court below forthwith.