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Hanumanthappa Vs. S.B. Mastamaradi

LegalCrystal Citation : legalcrystal.com/382428

Court : Karnataka

Decided On : Jul-31-2003

Reported in : 2003CriLJ4359; ILR2004KAR152; 2003(5)KarLJ277

Judge : K. Ramanna, J.

Acts : Karnataka Police Act, 1963 - Sections 170; Code of Criminal

Procedure (CrPC) , 1973 - Sections 56, 57, 197, 200 and 203;
Constitution of India - Article 22(2)

Appeal No. : Criminal Revision Petition Nos. 194 to 200 of 2002

Appellant : Hanumanthappa

Respondent : S.B. Mastamaradi

Advocate for Def. : M.V. Hiremath, Adv.

Advocate for Pet/Ap. : F.V. Patil, Adv.

Disposition : Revision petition allowed

Judgement :

ORDER

1. All these seven criminal revision petitions are filed by the respective
revision petitioners under Section 397 of the Cr. P.C. against the orders
dated 12-6-2001, 7-7-2001, 26-5-2001, 26-5-2001, 7-7-2001, 7-7-2001
and 5-7-2001 passed by the II Additional Civil Judge (Junior Division)
and Judicial Magistrate First Class, Ranebennur in Private Complaint
Nos. 25, 30 of 1995, 31 of 1995, 28 of 1995, 27 of 1995, 29 of 1995 and
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32 of 1995, respectively, whereby the Court below returned the
complaints, on the ground that the respective complainants have not
obtained the prior sanction as per the provisions of Section 197 of the
Cr. P.C. and Section 170 of the Karnataka Police Act to take cognizance
of the case.

2. Since the respondent in all these cases are common and common
question of fact and law are involved, all of them are clubbed and
heard together and are being disposed of by this common order.

3. The brief facts that are to be noted are as follows.-

On 1-4-1995 at about 11.20 p.m. when the respective petitioners were

in their house, at Sunakalbidari Village of Ranebennur Taluk, the
respondent/accused took them forcibly by saying that he wants to take
their statement and get medical treatment, even though the
complainants were suffering with pain on account of the grievous
injuries sustained by them. Thereafter, they were produced before the
Medical Officer, General Hospital, Ranebennur and then took them to
the Police Station and illegally confined them in the Police Station from
1-4-1995 to 3-4-1995, without allowing them to go out and then
produced them before the Court on the evening of 3-4-1995. Even
though the respondent/accused was aware that his act was illegal and
out of purview of his duty, the petitioners/complainants were
wrongfully confined in the Police Station and that the
respondent/accused threatened them. Further, case of the petitioners
is that they came to know that they were produced before the
Magistrate in Crime No. 50 of 1995 and at that time all the petitioners
in the aforesaid cases, brought to the notice of the Court that by saying
that they were illegally confined from the night of 1-4-1995 till 3-4-
1995 and their say has been recorded by the learned Magistrate and
advised them to file a complaint and then they undergone treatment.
The illegal act of the respondent has been witnessed by their
respective family members.

4. In this behalf, learned Counsel for the revision petitioners submitted

that in order to file a complaint against a public servant, no prior

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permission or sanction from the Appointing Authority to prosecute the
respondent is necessary, if the illegal act of the respondent does not
require any prior sanction to prosecute him. Therefore, returning of the
complaints by the Magistrate before the issuance of summons to the
accused is perverse, illegal and uncalled for and therefore, the
perverse finding recorded by the learned Magistrate is only on the
ground that prior sanction is necessary to take cognizance of the case.
In support of the aforesaid contention he has relied on a decision in the
case of G. Govindaraju v. Babu Poojary, wherein it was held thus:

'The Sub-Inspector was not entitled to the protection conferred by

Section 170(1) of the Mysore Police Act and no previous sanction of the
Government was, therefore, necessary for prosecuting him. Sections
161 and 163 of the Cr. P.C. prohibit police officers from beating and
confining persons with a view to induce them to make statements. In
view of this statutory prohibition, it cannot be said that the acts
complained of by the complainant were acts done by the accused
under the colour of his duty or authority. The alleged acts of beating
and confinement fell completely outside the scope of the duties of the
Police Officer'.

5. On the other hand, Sri V.M. Hiremath, learned Counsel for

respondent/accused submitted that since the respondent is a public
servant, in order to prosecute him, a prior sanction is required from the
Appointing Authority. Therefore, in the instant case a private complaint
filed by the petitioners in the aforesaid cases is without prior sanction
and therefore, the Trial Court has rightly come to the conclusion and
returned the complaint on the ground that the prior sanction is a must.
It is further contended that in such cases, it is the bounden duty of the
petitioners/complainants to show that there was no nexus between the
alleged act of wrongful confinement for three days. There must be
reasonable connection or nexus in-between the alleged act of wrongful
confinement and the duty or authority imposed upon the officer.

6. I have carefully perused the record. In para 7 of the impugned order

under challenge, the Trial Court has specifically observed that the
predecessor in office has taken the cognizance and registered the case

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and thereafter, sworn statement of the complainants were recorded.
But, somehow the Trial Court has taken a view that prior sanction has
not been obtained by the petitioners to prosecute the public servant
viz., respondent/accused herein. In order to appreciate the contention
of both parties, it is just and proper to cull out Section 197 of the Cr.
P.C. and Section 170 of the Karnataka Police Act.-

'Section 197 of the Cr. P.C.--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'.

'Section 170 of the Karnataka Police Act, 1963.--Suits or prosecutions in

respect of acts done under colour of duty as aforesaid not to be
entertained without sanction of Government'.

7. It is a fact that the revision petitioners herein were arrested in Cr.

No. 50 of 1995 of Halageri Police Station and produced them before
the Magistrate. According to them, when they were produced before
the concerned Magistrate they complained before the Court that they
were illegally detained. It is a well-settled law that if any person
accused of an offence arrested he shall be produced before the
Magistrate within 24 hours from the time of arrest. In the instant case,
at the threshold, the Trial Court has returned the private complaints
filed against the respondent on the ground that prior sanction is
necessary to take cognizance of the offences. In the instant case, no
such order has been passed to show that after recording the sworn
statement and after considering the materials placed on record by the
revision petitioners, the Court found that a prior sanction is required to
take cognizance, which amounts to perverse finding recorded by the
Trial Court. Hence, it is just and proper to set aside the impugned order
under revision and remand the same to the Trial Court with a direction
to give an opportunity to the revision petitioners to prove about the
allegations made by them against the respondent for their illegal
detention in the police station for more than 24 hours.

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8. It is undisputed fact that after presentation of the complaint the Trial
Court took the cognizance of the case and thereafter recorded the
statement of the complainant and passed the impugned order only on
the ground that the prior sanction to prosecute the respondent is not
obtained. It is undisputed that the respondent herein is a PSI of the
aforesaid police station and he produced before the Magistrate all the
petitioners in Crime No. 50 of 1995 which clearly shows that the
petitioners in all the cases were accused in Crime No. 50 of 1995.
Therefore, the decision relied on by the revision petitioners is not
applicable to the facts of the case on hand. In that case, the PSI
illegally assaulted the complainant and wrongfully confined them in the
police station. In the aforesaid case this Court has come to the
conclusion that acts done by the respondent-PSI under the colour of his
duty or authority does not require any prior sanction for prosecution.
Whereas, in the instant case the PSI of a particular station said to have
detained all the petitioners in the police station even though they had
sustained injuries and produced before the Magistrate after treatment.
But the Trial Court has returned the complaints for want of sanction
under Section 197 of the Cr. P.C. read with Section 170 of the
Karnataka Police Act. The proper course to the Magistrate was to keep
open the question of sanction till the appearance of the accused. In this
behalf a reference may be made to a decision in H. Shivappa v.
Puttaswamy and Ors., wherein it has been held that whether sanction
is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the
case. Therefore, the Magistrate is not justified in dismissing the
complaint on the ground of want of sanction without examining the
necessary ingredients of the offences with reference to the allegations
made in the complaint.

9. Whereas, in the instant case, without examining the allegations

made in the complaints as well the sworn statements of the revision
petitioners the Magistrate returned the said complaints filed by the
respective petitioners. If the learned Magistrate thought it fit that the
materials placed on record are not sufficient to consider the complaints
he should have dismissed them but he cannot return the complaints.

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The order of returning of complaints by the learned Magistrate for want
of sanction of the Government to prosecute the respondent-accused is
perverse and illegal. Hence, the order under revision passed by the
Trial Court is liable to be set aside, accordingly, it is set aside.

10. With the above observations, all these revision petitions are
allowed; the order under revision passed by the Trial Court is set aside
and the learned Magistrate is directed to dispose of the complaints in
accordance with law, after hearing the revision petitioners.

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