D. DEVARAJA versus OWAIS SABEER HUSSAIN

Citation: [2020] 6 S.C.R. 453 · Decided: 18-06-2020 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · cites 17 · see the full citation network in Lexace

Judgment (excerpt)

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D. DEVARAJA
v.
OWAIS SABEER HUSSAIN
(Criminal Appeal No. 458 of 2020)
JUNE 18, 2020
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973:
s.197 r/w s.170 of Karnataka Police Act, 1963 – Scope and
effect of – Held: Every offence committed by a police officer does
not attract s.197 r/w s.170 – The provisions in ss.197 Cr.P.C and
s.170 of the Act are attracted only when the acts (offence) are done
in discharge of official duty or the act done under the colour of, or
in excess of such duty or authority.
s.482 – Scope of – Held: An application u/s.482 is
maintainable to quash proceedings which are ex facie bad for want
of sanction u/s.197 Cr.P.C. or s.170 of Karnataka Police Act or are
frivolous or in abuse of process of law.
s.482 and s.197 r/w s.170 of Karnataka Police Act – Complaint
against police officer alleging police excesses while the complainant
was in police custody in the course of investigation in a case –
Application u/s.482 by police officer seeking quashing of the
proceedings – High Court remitted the complaint requiring the
accused to file an application for discharge u/s.245 Cr.P.C. – Appeal
to Supreme Court – Held: The complaint pertains to an act under
colour of duty – Sanction was a legal requirement– High Court
should have exercised its power to quash the complaint instead of
remitting it requiring the appellant to seek discharge.
Allowing the appeal, the Court
HELD: 1.1. The object of sanction for prosecution, whether
under Section 197 Cr. P.C. or under Section 170 of the Karnataka
Police Act, is to protect a public servant/police officer discharging
official duties and functions from harassment by initiation of
frivolous retaliatory criminal proceedings. [Para 32][466-F-G;
467-A]
[2020] 6 S.C.R. 453
453
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SUPREME COURT REPORTS
[2020] 6 S.C.R.
1.2 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 Cr.P.C. read with Section 170 of the 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. [Para 68][482-F-H]
1.3 Every offence committed by a police officer does not
attract Section 197 Cr. P.C. read with Section 170 of the Act. The
protection given under Section 197 Cr.P.C. read with Section 170
of the 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. [Para 69]
[483-A-B]
1.4 An offence committed entirely outside the scope of the
duty of the police officer, would certainly not require sanction. To
cite an example, a police man 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. If in doing an official duty a policeman has acted in excess
of duty, but there is a reasonable connection between the act and
the performance of the official duty, the fact that the act alleged is
in excess of duty will not be ground enough to deprive the
policeman of the protection of government sanction for initiation
of criminal action against him. [Para 70, 71][483-C-D]
1.5 The language and tenor of Section 197 Cr. P.C. and
Section 170 of the Act makes it absolutely clear that sanction is
required not only for acts done in discharge of official duty, it is
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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. [Para 72][483-E-F]
1.6 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

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