ORDER
1. On 21-2-1997 the respondent filed a complaint against 5 Police Officers before the IV Additional Chief Metropolitan Magistrate, Bangalore City, in P.C.R. No. 24 of 1997 alleging that they have assaulted and tortured him in a most inhumanly and barbaric manner causing injuries by detaining him in the Police Station, etc. and they have committed offences punishable under Sections 347, 346, 348, 352, 323, 324, 201 read with Section 34, Indian Penal Code. The learned Magistrate having taken cognizance recorded the sworn statement of the complainant and the witnesses and thereafter directed issue of summons to the petitioner. The said order is questioned by accused 1 and 2 who are the Assistant Commissioner of Police and Police Inspector respectively, under Section 482, Criminal Procedure Code.
2. Heard the learned Counsel for the petitioners and the learned Counsel for the respondent.
3. The learned Counsel submitted that the allegations made in the complaint, the sworn statement and documents produced by the complainant taken on their face value do not constitute any offence against the petitioners. At this stage, it may be mentioned that from the reading of the complaint and also the other materials it is clear that the accused 3 to 5 have assaulted the respondent mercilessly with rope and fists, etc. after undressing him. But as far as these petitioners are concerned, it is alleged that when the accused 3 to 5 were torturing him, they went inside the torture chamber and enquired with the accused 3 to 5 as to whether they were able to extract any information from him. When the accused 3 to 5 told them that the respondent had not disclosed anything, they told the accused 3 to 5 not to leave him so easily and to get the information needed by them in the matter. It is also alleged that they tried to suppress the respondent from obtaining the medical certificates and also informing the Magistrate when he was produced before the Court by threatening him etc. Therefore, it cannot be said at this stage that no offence is made out as against these petitioners. Be that as it may, the main emphasis on the part of the learned Counsel for the petitioners is that the allegations made against the petitioners are absurd, frivolous and an after-thought on the ground that when the respondent was produced before Court on 11-1-1997, he did not complain about any ill-treatment but for the first time he revealed to the Magistrate only on 13-1-1997. Hence, it is nothing but an after-thought. He also further contended that the complainant himself appeared before the doctor at Victoria Hospital on 15-1-1997 and told him that he was assaulted by A-4, A-5 and 2 police constables of N.T. Pet Police Station on 10-1-1997. According to him, the history given by the respondent also does not make out any case against these petitioners. Further, he has drawn my attention to the complaint dated 21-2-1997 wherein it is mentioned that the accused 3 to 5 assaulted him and these petitioners have
not assaulted him as indicated above. These petitioners are the superior officers of accused 3 to 5 and the allegations indicate that at the behest of these petitioners, to extract some information from the respondent, the accused 3 to 5 were directed to ill-treat him by giving the aeroplane treatment, etc. It is also specifically alleged that they used to go to the torture chamber and enquire as to whether any information was revealed or not. This part of the allegations cannot be lost sight of to find out the involvement of these petitioners. However, without going deep into these matters there is a reasonable ground to believe that these petitioners also instigated the accused 3 to 5 who are their subordinates to give him inhumane torture.
4. With this background, it is necessary to go into the question of protection provided under Section 197, Criminal Procedure Code and Section 170 of the Karnataka Police Act that whether the bar contained in those provisions can be applied to these petitioners at this stage. I may hasten to add that the learned Magistrate also considered this question while directing issue of process to these petitioners relying on some of the judgments of the Supreme Court referred to therein. This shows that the learned Magistrate has applied his mind before directing issue of process to the petitioners. It is held by their Lordships of the Supreme Court, among other things, in State of Maharashtra v Dr. Budhikota Subba Rao, that for instance a Police Officer in discharge of duty may have to use force which may he an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. With this principle in mind, this case will have to be considered. Admittedly, the name of the respondent was not found in the FIR. The FIR was filed against an unknown person for the alleged offence punishable under Section 406 and other alleged offences. In the course of investigation, according to the learned Counsel for the petitioner, the accused was arrested and there is no allegation that he resisted the Police Officers from arresting the accused. On the other hand,the case of the respondent is that he was taken to the police station, there he was tortured to extract certain information from him. The question is whether to cover up the allegation made by the respondent, the Police filed the charge-sheet or to counter-blast the prosecution launched by the petitioners, the respondent filed the complaint are the questions that will have to be decided in a case of this nature, by the Trial Court. The Hon’ble Supreme Court in Smt. Nagawwa v Veeranna Shivalingappa Konjalgi and Others, has held that once the Magistrate has exercised his discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under
Section 202 which culminates into an order under Section 204. Their Lordships have also held that only on exceptional circumstances, as enumerated therein, the Court can interfere under Section 482, Criminal Procedure Code. However, this Court has held in State of Mysore and Others v. Satyendra Kumar, that it is not always necessary that the need for sanction is to be considered as soon as the complaint is lodged. The complaint may not disclose that the acts constitute the offence were done or purported to be done in the discharge of the official duty. 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.
5. The learned Counsel for the respondent however cited a decision in Pukhraj v State of Rajasthan and Another, wherein it is held that mere fact that the accused proposes to raise a defence of the act having purported to be done in exercise of duty will not in itself be sufficient to justify the case being thrown out for want of sanction. Facts subsequently coming to light during the course of the trial may establish the necessity for sanction. Whether or not sanction is necessary will depend from stage to stage. In State of Maharashtra v Atma Ram and Others, it is hold that unless there is reasonable connection between the act complained of and the power and duties of the office, it cannot be said that the act was done under the colour of office.
6. In this case as can be seen from the facts itself, there is nothing to indicate that force was used as the respondent/complainant resisted or in anyway interfered with the discharge of the duties of the Police Officers. It is no doubt true that the respondent has produced the order-sheet maintained by the same Magistrate to indicate that the petitioners have filed charge-sheet against the respondent. The learned Counsel for the petitioners however contended that only with a view to counter blast the charge-sheet filed against him, the respondent has filed his complaint. It is purely a question of fact to find out as to whether he filed the complaint only to counter blast the action taken by the petitioners. As indicated by their Lordships of the Supreme Court, at every stage, the petitioners are entitled to raise this plea and it is always open to the petitioners to make out a case that their action is protected under the colour of office and there is a bar to prosecute these petitioners under Section 197, Criminal Procedure Code or Section 170 of the Karnataka Police Act.
7. The learned Counsel for the petitioner further argued that there is absolutely nothing to indicate the complicity of these petitioners who are officers in Police Department. As indicated above, the petitioners at no point of time stopped the accused 3 to 5 from assaulting the respondent. On the other hand, according to the allegations in the complaint without going into its merits show that they have insisted not to stop until he
reveals the information. In addition to that there are allegations that the 2nd petitioner went to the hospital and directed the doctor not to issue certificate etc. Such being the allegations in the complaint, it is improper on the part of this Court to interfere at this stage with the order passed by the learned Magistrate, taking into consideration, the requirement of sanction also while passing the order. Therefore, it is not an order which came to be passed without the application of mind.
8. In Suresh Kumar Bhikamchand Jain v Pandey Ajay Bhushan and Others, their Lordships have held that the accused are not required to wait till framing of the charge or cross-examination of the prosecution witnesses, he is not debarred from producing the relevant document materials before the Trial Court which can be legally looked into without formal proof to show that the acts were committed in discharge of public duties attracting Section 197. As the enquiry is to be from the question whether a prima facie offence is made out by the complainant. Magistrate not required to confine himself to the allegations in the complaint. It is also held that the plea of bar against cognizance for want of sanction touches the jurisdiction of the Court. Hence, such plea can be raised in such pleadings. From this also it is abundantly clear that it is open to the petitioners to produce all the necessary materials before the Court and argue the case that they are protected under Sections 197 and 170 of the respective Acts. It is a conflicting question between the individual liberty and also the protection provided to the officers in discharging their duties, yet again to be decided by the Court as to which prevails in this case.
9. However, the learned Magistrate as held:
“I am of the opinion that there is no reasonable connection between the acts alleged and the discharge of official duties by A-1 to A-5. Merely because the accused are public servants itself is not sufficient to offer them protection under Section 197, Criminal Procedure Code. Therefore, I am of the opinion that the sanction of the Government is not necessary to proceed against the accused persons”.
Only this portion of the order will have to be modified as before giving an opportunity to the accused persons, the Court has come to the conclusion that no sanction is necessary to prosecute these petitioners. If this portion of the order is not modified, the accused may not be able to raise this contention before the same Court at the appropriate stage. Hence, this order is modified, reserving liberty to the petitioners to agitate that question at the appropriate stage before the Trial Court and the Trial Court shall consider this question in accordance with law from stage to stage by providing full opportunity to both the parties in the light of the observations made above.
10. For the foregoing reasons I hold that this petition has no merit and accordingly, it is dismissed. However, it is made clear that any observation made in this order are confined to this petition only.