Misuse and or abuse of powers by public servant is not a part of their official duties so no protection u/s.197 of CrPC is available

If the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C.

    In the light of the principles laid down in the judgment referred supra, this Court has to analyse the materials on record. I have already pointed out that the complainant's son was detained in illegal custody for a period of 2 days is not in dispute and also he was summoned to enquire is also not in dispute. It is also to be noted that I have already pointed out the medical evidence with regard to the fact that he was subjected to physical torture and document of Ex.P.28 is clear that he was subjected to man handling and as a result, he took treatment at Janatha Nursing Home. It is also important to note that on account of said humiliation, he took the extreme step of committing suicide as he was tortured, assaulted and detained in illegal custody for a period of 2 days in the police station. It is also apparent prima facie on record that departmental enquiry was conducted and at the fist instance the report was given against these petitioners vide report dated 25.06.2010 and the same would prima facie discloses that the police had excesses their powers. It is also not in dispute that ultimately the son of the complainant was not arraigned as an accused in the said case. It is also not in dispute that the very complainant in the said chain snatching case, has not identified the son of the complainant and there are no criminal antecedents against him. When such being the case, the protection envisaged under Section 197 of Cr.P.C. or Section 170 of KP Act cannot be extended to the petitioners herein.[Para No.27]

    Learned Magistrate, in detail considered the statement of witnesses, who have been examined i.e., 7 in number and also while passing a detailed order, assigned the reasons. Learned Revisional Judge also examined the legal aspect and also the factual aspect of the case and passed a detailed reasoned order and comes to the conclusion that there is no merit in the revision. The Court also while issuing the process against the petitioners herein considered the sworn statement as well as allegations made in the complaint and has rightly come to the conclusion that it is a fit case to proceed against the petitioners herein[Para No.28]

    This Court also would like to refer to the judgment of the Apex Court in the case of Choudhury Parveen Sultana v. State of West Bengal and Another reported in (2009) 2 SCC (Cri) 122 regarding Section 197 of Cr.P.C, wherein the object, nature and scope of Section 97 of Cr.P.C. has been reiterated. Wherein it is held that all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 of Cr.P.C. Further, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of Section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C.

and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned.[Para No.29]

Sanction u/s.197 of CrPC, to prosecute a police officer, for act related to the discharge of official duty, is imperative

Law relating to saction for prosecuting police officers and its limitations

Held:

Sanction u/s.197 of CrPC, to prosecute a police officer, for act related to the discharge of official duty, is imperative;

But an offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction u/s.197 of CrPC.

68. 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.

69. 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.

When sanction u/s.197 of Cr.P.C. is not needed to prosecute a public servant?

 If the act or omission for which the accused is charged, had prima-facie reasonable connection with discharge of his duty, then it must be held to be official attracting applicability of Section 197 of Cr.P.C.

In the case of Baijnath vs. State of M.P., reported in AIR 1966 S.C. 220, it was held that it is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. In the case at hand, the alleged act of the accused-public servant of forging and fabricating documents, creating fake notifications to defraud the State Government and different public authorities for wrongful gain of his official duties cannot be said to have any nexus with discharge of his official duties. Hence, sanction under Section 197 of Cr.P.C. for launching the prosecution against him is held to be immaterial.