Bombay High Court
Sanjay Bapuso Dalvi vs State Of Maharashtra And Anr on 9 July, 2026
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE SIDE JURISDICTION
Digitally
signed by
CRIMINAL WRIT PETITION NO.2509 OF 2022
SHAILAJA
SHAILAJA SHRIKANT
SHRIKANT HALKUDE
HALKUDE Date:
2026.07.09
18:53:38
Sanjay Bapuso Dalvi ]
+0530
Aged: 57 years, occ. Service ]
R/at: Swapnapurti Apartments, ]
Raman Mala, Tal. Karvir, ]
Dist. Kolhapur ] Petitioner
v/s
1. The State of Maharashtra ]
2. Yasin B. Mankapure ]
Age: 56 years, Occ. Agriculturist ]
R/at. Rendal, Tal. Hatkanangale, ]
Dist. Kolhapur. ] Respondents
WITH
CRIMINAL WRIT PETITION NO.2511 OF 2022
1. Mahesh Suresh Kore ]
Aged: 48 years, Occ. Service, ]
R/at: Thorat Chowk, Ichalkaranji ]
Kolhapur. ]
2. Namdev Dadu Chougule ]
Age: 47 years, Occ. Service ]
R/at: Plot No.6, Vitthal Rukmini ]
Nagar, Kolhapur ] Petitioners
v/s
1. The State of Maharashtra ]
2. Yasin B. Mankapure ]
Age: 56 years, Occ. Agriculturist ]
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R/at. Rendal, Tal. Hatkanangale, ]
Dist. Kolhapur. ] Respondents
.....
Mr. P. D. Dalvi a/w Mr. Tejas Shelake a/w Ms. Sonal Nalawade, for the
Petitioners.
Mr. Shriram S. Chaudhari, A.P.P, for Respondent No.1 - State.
Mr. Aditya Raktade, for Respondent No.2.
.....
CORAM : SANDESH D. PATIL, J.
RESERVED ON : 22nd June, 2026.
PRONOUNCED ON : 9th July, 2026.
JUDGMENT:
1. Rule. Rule is made returnable forthwith. By consent of the learned
counsel for the parties, the petitions are taken up for final disposal.
2. The Petitioner in Writ Petition No. 2509 of 2022 and the
Petitioners in Writ Petition No. 2511 of 2022 have challenged the orders
dated 8th April, 2022 passed by the learned Additional Sessions Judge,
Ichalkaranji, in Criminal Revision Application No. 21 of 2022 and
Criminal Revision Application No.23 of 2022, respectively. By the
impugned orders, the learned Additional Sessions Judge dismissed the
aforesaid Revision Applications, which had been preferred against the
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order dated 24th November, 2021 passed by the learned Judicial
Magistrate First Class, Court No. 3, Ichalkaranji, below Exhibit 97 in
Regular Criminal Case No.88 of 2009, whereby process came to be
issued against the present Petitioner in Writ Petition No. 2509 of 2022
and the Petitioners in Writ Petition No. 2511 of 2022.
3. The petitioners are the original accused. Respondent No.2 is the
resident of village Rendal, Taluka Hatkanangale, District Kolhapur. The
petitioner in Writ Petition No.2509 of 2022 – accused No.1 was Police
Inspector posted at Shivaji Nagar Police Station, Ichalkaranji at the time
of the incident. The Petitioners in Writ Petition No. 2511 of 2022
Accused Nos. 2 & 6 were Police Constables posted at that relevant time
at the Shivaji Nagar Police Station. It is the case of respondent No.2-
(hereby referred as complainant) that on 25th November, 2008, accused
No.7 informed respondent No.2 as well as one Tajuddin Mujawar that
they were called at Shivaji Nagar Police Station (hereinafter referred to
as “Police Station”). They were again called on the next day i.e on 26 th
November, 2008. The complainant alongwith one Tajuddin Mujawar
went to the Police Station on 26 th November, 2008 at 12.30 p.m. They
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were asked to wait. They were not given any food. After 10.00 p.m, the
Police Constable asked the complainant to come inside and persuaded
the complainant to confess commission of murder of one Ghudussab
Tambat. Accused No.5 told accused No.6 to beat the complainant with
belt. The complainant was severely assaulted. The complainant went on
repeating that he has no knowledge about murder but Accused No.3, 5
and 6 continued to abuse the complainant and slapped him. Accused
No.1 also asked the complainant whether he would confess crime or
not. Accused No.2 to 6 continued beating the complainant till morning.
The complainant then proceeds to narrate the physical assault
committed by the accused.
4. On 27th November, 2008, accused No.4 came near the
complainant and told him that they have called a doctor. The doctor
came and upon examination of the complainant opined that condition
of the complainant was serious and suggested to take the complainant
to hospital.
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5. On receipt of the complaint dated 27th February, 2009 by the then
Judicial Magistrate First Class, Ichalkaranji, the same was kept for
verification. Verification of the complainant was recorded on 23 rd
March, 2009. Vide an order dated 14 th September, 2009, J.M.F.C,
Ichalkaranji directed Dy. SP. Ichalkaranji to investigate into the matter
and submit the report under section 202 of the Cr. P.C. Later on, since
the report was not filed by the Dy.S.P. on 23 rd March, 2011, J.M.F.C,
Ichalkaranji dispensed with the report. Learned J.M.F.C asked the
complainant to file his own evidence. The complainant examined Dr.
Imtiyaz Sultan Pathan as witness No.2 and Tajuddin Mujawar as witness
No.3. In the interregnum, Dy. S.P Ichalkaranji filed a report on 22 nd
April, 2010. The said report revealed that investigation was not
thorough, therefore, the same was discarded.
6. After perusing the evidence led by the complainant before the
Magistrate, the learned Magistrate observed that there are serious
allegations of grievous injuries to the complainant due to custodial
torture. The Magistrate considered question of pre-sanction under
section 197 of Cr.P.C. The Magistrate relied upon the judgment in case
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of Choudhari Parveen Sultana vs. State of West Bengal and another, 1
which observed that it was not part of the duty to threaten the
complainant or her husband to withdraw the complaint. Learned
Magistrate observed that there was no question of requirement of
sanction of prosecution under section 197 of the Cr. P.C. and ultimately
passed the following order;
:ORDER:
“1. There are sufficient grounds to proceed against the accused
No.1 to 7 for the offences u/s’s 326, 325, 324, 342, 348, 504,
506 r/w. 34 of the Indian Penal Code.
2. Issue process in the form of summons against accused No.1
to 7 for the offences u/s.s 326, 325, 324, 342, 348, 504, 506
r/w. 34 of the Indian Penal Code on P.F.
3. Summons returnable on next date”.
7. Being aggrieved and dissatisfied by the order dated 20 th August,
2013, the petitioners preferred an application below Exhibit-97 in
Regular Criminal Case No.88 of 2009 for discharge. Learned Magistrate
after hearing the parties, refused to discharge the petitioners and
ultimately vide the judgment and order dated 24 th November, 2021
dismissed the application below Exhibit 97.
1 A.I.R 2009 SC 1404
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8. Being aggrieved and dissatisfied with the judgment and order
passed by the learned J.M.F.C, the petitioners preferred Criminal
Revision Application No.21 of 2022 & Criminal Revision Application No.
23 of 2022. The learned Additional Sessions Judge, Ichalkaranji, after
hearing the parties, dismissed both the Revision Application by orders
dated 8th April, 2022. Hence, the present petitions are filed.
9. Mr. Dalvi, learned counsel appearing for the petitioners submits
that the petitioners were always acting in discharge of the official duty.
He submitted that in absence of any sanction from the appropriate
Authority under section 197 of Cr. P.C, the learned Magistrate ought not
to have issued process against the petitioners. He stated that section
197 is inserted by the legislature in the Cr. P.C with an object of
protecting the public servants in discharge of their duties. He submitted
that if the complaints were done in discharge of official duty then the
trial must be stayed unless sanction is obtained. He submitted that
protection given under section 197 of the Cr.P.C is to protect responsible
public servants against institution of possibly vexatious criminal
proceedings for offences alleged to have been committed by them while
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they are acting or purporting to act as public servants. He further
submitted that both the courts below were wrong in interpreting section
197 of the Cr.P.C. He submitted that this is a case of no sanction at all.
He submitted that the issue of police acting in ‘excess of his duty’ during
investigation and requirement of sanction for prosecution was
considered by the Apex Court in the case of State of Orissa and others
vs. Ganesh Chandra Jew,2. He submitted that if a person while doing his
official duty, has acted in excess of his duty, but there is reasonable
connection between the act and the performance of official duty, excess
will not be sufficient ground to deprive the public servant of the
protection. He also relied on the judgment in case of Rizwan Ahmed
Javed Shaikh and others Vs. Jammal Patel and others 3 to buttress the
said submission. He also relied on the judgment in case of D. T.
Virupakshappa Vs. C. Subash,4 and judgment of Single Bench of this
Court in case of Shailesh Haribhau Jagtap Vs. Rahul Suresh Khetre and
another,5 to buttress the same submission that even if act was done in
discharge of official duty notwithstanding the fact that there was an
excess, since it was connected with the discharge of official duty, it was
2 AIR 2004 Supreme Court 2179
3 AIR 2001 Supreme Court 2198
4 Criminal Appeal No.722 of 2015
5 Criminal Writ Petition No.4673 of 2017
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imperative to obtain sanction under section 197 of the Cr. P.C. He also
relied on the judgment in case of Matajog Dobey Vs. H. C. Bhari6. He
invited my attention to relevant paragraphs i.e paragraphs 17 and 18.
“17. Slightly differing tests have been laid down in the decided
oases to ascertain the scope and the meaning of the relevant words
occurring in section 197 of the Code; “any offence alleged to have
been committed by him while acting or purporting to act in the
discharge of his official duty”. But the difference is only in language
and not in substance.
The offence alleged to have been committed must have something
to do, or must be related in some manner, with the discharge of
official duty. Nor question of sanction can arise under section 197,
unless the act complained of is an offence; the only point to
determine is whether it was committed in the discharge of official
duty. There must be a reasonable connection between the act and
the official duty. It does not matter even if the act exceeds what is
strictly necessary for the discharge of the duty, as this question will
arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty
are so inter-related that one can postulate reasonably that it was
done by the accused in the performance of the official duty, though
possibly in excess of the needs and requirements of the situation. In
Hori Ram Singh v. Emperor‘ AIR 1939 FC 43 At P. 51 Sulaiman, J.
observes:
“The section cannot be confined to only such acts as are done by a
public servant directly in pursuance of his public office, though in
excess of the duty or under a mistaken belief as to the existence of
such duty. Nor is it necessary to go to the length of saying that the
act constituting the offence should be so inseparably connected
with the official duty as to formal part and parcel of the same
transaction”.
6 AIR 1956 SC 44
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The interpretation that found favour with Varadachariar, J. in the
same case is stated by him in these terms at page 56: “There must
be something in the nature of the act complained of that attaches it
to the official character of the person doing it”. In affirming this
view, the Judicial Committee of the Privy Council observe in Gill’s
case (A)’
A public servant can only be said to act or purport to act in the
discharge of his official duty, if his act is such as to lie within the
scope of his official duty …. The test may well be whether the
public servant, if challenged, can reasonably claim that what he
does, he does in virtue of his office”.
AIR 1939 FC 43 (B) is referred to with approval in the later ease of
H.T. Huntley v. Emperor, AIR 1944 FC 66 © but the test laid down
that it must be established that the act complained of was an
official act appears to us unduly to narrow down the scope of the
protection afforded by section 197 of the Criminal Procedure Code
as defined and understood in the earlier case. The decision
in Albert West Meads v. The King AIR 1948 PC 156 (D) does not
carry us any further; it adopts the reasoning in Gill’s case(A).
18. There are two cases of this Court to which reference may
be made here. In Shreekantiah Ramayya Munipalli v. The State of
Bombay (s) AIR 1955 SC 287 at pp. 292-293 (E)Bose, J. observes
as follows:
“Now it is obvious that if section 197 of the Code of Criminal
Procedure is construed too narrowly, it can never be applied, for of
course, it is no part of an official’s duty to commit an offence and
never can be. But it is not the duty we have to examine so much as
the act, because an official act can be performed in the discharge of
official duty as well as in dereliction of it. The section has content
and its language must be given meaning”.
The question of previous sanction also arose in Amrik Singh v. The
State of PEPSU (S) AIR 1955 SC 309 at p. 312 (F), A fairly lengthy
discussion of the authorities is followed up with this summary:
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“If the acts complained of are so in integrally connected with the
duties attaching to the office as to be inseparable from them, then
sanction under section 197(1) would be necessary; but if there was
no necessary connection between them and the performance of
those duties, the official status furnishing only the occasion or
opportunity for the acts, then no sanction would be required”.
10. He prayed for allowing the petitions and setting aside the orders
passed by the Revisional Court.
11. Learned counsel appearing for respondent No.2-complainant
contended that the alleged offence was not committed while
discharging public duty. He submitted that it was not official duty of
the officers to use third degree treatment upon respondent No.2-
complainant. He submitted that crime is committed under the cloak of
the authority for the public servant’s own pleasure and benefit and
such act will not be protected under section 197 of the Cr.P.C.. He
submits that the same issue was considered by the learned Magistrate
while issuing process in the matter on 20 th August, 2013. Thereafter, the
same was considered by the learned Magistrate while dismissing the
application for discharge under section 245 on 24 th November, 2021
and thereafter once again by the learned Additional Sessions Judge,
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Ichalkaranji vide order passed in Criminal Revision Application No.21 of
2022 on 8th April, 2022. He submitted that concurrently all the Courts
below have held in favour of the complainant. He submitted that the
complainant was admitted in hospital for more than four days and was
paralyzed due to which there was delay of three months in filing the
complaint. He submitted that the treatment meted out to the
complainant was of a cruel, inhuman, and degrading nature. It was
obviously not the work of Police Authorities to give such inhuman
treatment to the complainant. He submitted that both the Courts below
have correctly considered the position and dismissed the application for
discharge. He prayed for dismissal of the petitions.
12. Learned A.P.P, on the other hand, has relied on the judgment of
this Court in case of Pradeep Bhimrao Bhosale and others versus Sate of
Maharashtra passed on 1st August, 20257. He has stated that the
petitioners have not acted in their official duty and, therefore,
impugned judgment and orders were correct and require no
interference. He prayed for dismissal of the petitions.
7 Writ Petition No.2231 of 2025
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13. I have heard learned counsel appearing for the petitioners,
learned A.P.P, appearing for respondent No.1 – State and learned
counsel for respondent No.2. I have also perused the judgments relied
on by the learned counsel for the petitioners as well as the respondents,
copies of the writ petitions and order dated 20 th August, 2013, whereby
the learned Judicial Magistrate First Class, Ichalkaranji has ordered
issuance of process against accused Nos.1 to 7 for the offences
punishable under Sections 326, 325, 324, 342, 348, 504, 506 read with
Section 34 of the Indian Penal Code, 1860. I have also perused the
evidence which was tendered by the witnesses of the complainant. An
application was preferred by the petitioners under section 245 of the
Cr,P.C. where they had contended that the acts which were committed
by them were committed while discharging official duty. My attention
was invited by the learned Counsel appearing for the petitioners to the
order dated 24th November, 2021 whereby the application preferred by
the petitioners was rejected by passing a detailed order below Exhibit
97. This order was challenged by the petitioners in Criminal Revision
Application No.21 of 2022 and Criminal Revision Application No.23 of
2022, both of which were also rejected by orders dated 8th April, 2022.
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14. The basic contention of the petitioners is that, assuming for
argument purpose without admitting that they had committed the
offence, yet they were discharging their duty and that since the
petitioners were discharging the official duty, they could not have been
prosecuted and process could not have been issued against them
without taking sanction from the competent authority. The petitioners
basically contended that sanction was necessary before issuance of the
process, and that the prosecution was not maintainable in absence of
the sanction.
15. The law which requires sanction is found in section 197 of the
Cr.P.C. Section 197 of the Cr. P.C reads as under;
“197. Prosecution of Judges and public servants.-
(1)When any person who is or was a Judge or Magistrate or a
public servant not removable from his officer 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 [save as
otherwise provided in the Lokpal and Lokayuktas Act, 2013]-
(a)in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the
Central Government;
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(b)in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the State
Government:
[Provided that where the alleged offence was committed by a
person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause (b) will apply as if for
the expression “State Government” occurring therein, the
expression “Central Government” were substituted.]
[Explanation. – For the removal of doubts it is hereby declared
that no sanction shall be required in case of a public servant
accused of any offence alleged to have been committed under
section 166A, section 166B, section 354, section 354A, section
354B, section 354C, section 354-D, section 370, section 375,
section 376, [section 376A, section 376AB, section 376C, section
376-D, section 376-DA, section 376-DB,] or section 509 of the
Indian Penal Code.] (45 of 1860)]
(2) No Court shall take cognizance of any offence alleged to have
been committed by any member of the Armed Forces of the Union
while acting or purporting to act in the discharge of his official
duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the
provisions of sub-section (2) shall apply to such class or category
of the members(of the Forces charged with the maintenance of
public order as may be specified therein, wherever they may be
serving, and thereupon the provisions of that sub-section will
apply as if for the expression “Central Government” occurring
therein the expression “State Government” were substituted.
[(3-A) Notwithstanding anything contained in sub-section (3), no
court shall take cognizance of any offence, alleged to have been
committed by any member of the Forces charged with the
maintenance of public order in a State while acting or purporting
to act in the discharge of his official duty during the period while
a Proclamation issued under clause (1) of Article 356 of the
Constitution was in force therein, except with the previous
sanction of the Central Government.
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(3-B) Notwithstanding anything to the contrary contained in this
Code or any other law, it is hereby declared that any sanction
accorded by the State Government or any cognizance taken by a
Court upon such sanction, during the period commencing on the
20th day of August, 1991 and ending with the date immediately
preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991, receives the assent of the President, with
respect to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of Article 356
of the Constitution was in force in the State, shall be invalid and it
shall be competent for the Central Government in such matter to
accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case
may be, may determine the person by whom, the manner in
which, and the offence or offences for which, the prosecution of
such Judge, Magistrate or public servant is to be conducted, and
may specify the Court before which the trial is to be held.”
16. The Hon’ble Apex Court in the matter of Matajog Dobey (supra)
has considered the purport of section 197. The Full Bench of the
Hon’ble Apex Court has held that the offence alleged to have been
committed must have something to do, or must be related in some
manner, with the discharge of official duty. The question of sanction can
arise under section 197 only when the act complained of is an offence;
the only point to determine is whether it was committed in discharge of
official duty. The Apex Court observed that there must be a reasonable
connection between the act and the official duty. It does not matter
even if the act exceeds what is strictly necessary for the discharge of the
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duty, as this question will arise only at a later stage when the trial
proceeds on the merits.
17. While dealing with such an issue of sanction under section 197,
what is required to be found is, whether the act and the official duty are
so inter-related that one can postulate reasonably that it was done by
the accused in performance of the official duty, though possibly in
excess of the needs and requirement of the situation, and is not merely
a cloak for doing the objectionable act.
18. The Hon’ble Apex Court in the judgment of D. T. Virupakshappa
(supra) while dealing with the issue of ‘police excess’ has considered
the judgments on this issue of sanction under section 197. The Hon’ble
Apex Court in paragraph No. 9 of the said Judgment was pleased to
observed as under.
“9. In Om Prakash (supra), this Court, after referring to various
decisions, particularly pertaining to the police excess, summed-up the
guidelines at paragraph-32, which reads as follows:
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 hisShailaja 17
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attached to his office as to be inseparable from it (K.
Satwant Singh). 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). 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)
19. The Apex Court, in the judgment of Devinder Singh and other
versus State of Punjab through CBI8 has culled out the principles where
sanction is necessary. The relevant paragraphs are reproduced below;
” 39. The principles emerging from the aforesaid decisions are
summarized hereunder:
39.1. Protection of sanction is an assurance to an honest and
sincere officer to perform his duty honestly and to the best of his
ability to further public duty. However, authority cannot be
camouflaged to commit crime.
8 (2016) 12 SCC 87
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committed by public servant in discharging his duty it must be
given liberal and wide construction so far its official nature is
concerned. Public servant is not entitled to indulge in criminal
activities. To that extent Section 197 Code of Criminal Procedure
has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded
in his duty, if there is reasonable connection it will not deprive
him of protection Under Section 197 Code of Criminal
Procedure There cannot be a universal Rule to determine
whether there is reasonable nexus between the act done and
official duty nor it is possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or
related to performance of official duties sanction would be
necessary Under Section 197 Code of Criminal Procedure, but
such relation to duty should not be pretended or fanciful claim.
The offence must be directly and reasonably connected with
official duty to require sanction. It is no part of official duty to
commit offence. In case offence was incomplete without
proving, the official act, ordinarily the provisions of Section 197
Code of Criminal Procedure would apply.
39.5. In case sanction is necessary it has to be decided by
competent authority and sanction has to be issued on the basis
of sound objective assessment. The court is not to be a
sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the
stage of taking cognizance, but if the cognizance is taken
erroneously and the same comes to the notice of Court at a later
stage, finding to that effect is permissible and such a plea can be
taken first time before appellate Court. It may arise at inception
itself. There is no requirement that accused must wait till
charges are framed.
39.7. Question of sanction can be raised at the time of framing
of charge and it can be decided prima facie on the basis of
accusation. It is open to decide it afresh in light of evidence
adduced after conclusion of trial or at other appropriate stage.
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39.8. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course of
evidence during trial. Whether sanction is necessary or not may
have to be determined from stage to stage and material brought
on record depending upon facts of each case. Question of
sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the
progress of the case and it would be open to accused to place
material during the course of trial for showing what his duty
was. Accused has the right to lead evidence in support of his
case on merits.
39.9. In some case it may not be possible to decide the question
effectively and finally without giving opportunity to the defence
to adduce evidence. Question of good faith or bad faith may be
decided on conclusion of trial.
40. In the instant cases, the allegation as per the prosecution
case it was a case of fake encounter or death caused by torture
whereas the defence of the accused person is that it was a case
in discharge of official duty and as the deceased was involved in
the terrorist activities and while maintaining law and order the
incident has taken place. The incident was in the course of
discharge of official duty. Considering the aforesaid principles in
case the version of the prosecution is found to be correct there is
no requirement of any sanction. However it would be open to
the accused persons to adduce the evidence in defence and to
submit such other materials on record indicating that the
incident has taken place in discharge of their official duties and
the orders passed earlier would not come in the way of the trial
court to decide the question afresh in the light of the aforesaid
principles from stage to stage or even at the time of conclusion
of the trial at the time of judgment. As at this stage it cannot be
said which version is correct. The trial court has prima facie to
proceed on the basis of prosecution version and can re-decide
the question afresh in case from the evidence adduced by the
prosecution or by the accused or in any other manner it comes
to the notice of the court that there was a reasonable nexus of
the incident with discharge of official duty, the court shall re-
examine the question of sanction and take decision in
accordance with law. The trial to proceed on the aforesaid basis.
Accordingly, we dispose of the appeals/writ petition in the light
of the aforesaid directions.”
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20. The Apex Court in the case of Bhagwan Prasad Srivastava versus
N.P. Mishra9 has considered the object and purpose underlined in
section 197 as under;
“4. The object and purpose underlying this section is to afford
protection to public servants against frivolous, vexatious or false
prosecution for offences alleged to have been committed by them
while acting or purporting to act in the discharge of their official
duty. The larger interest of efficiency of State administration
demands that public servants should be free to perform their official
duty fearlessly and undeterred by apprehension of their possible
prosecution at the instance of private parties to whom annoyance or
injury may have been caused by their legitimate acts done in the
discharge of their official duty. This section is designed to facilitate
effective and unhampered performance of their official duty ‘by
public servants by providing for scrutiny into the allegations of
commission of offence by them by their superior authorities and
prior sanction for their prosecution as a condition precedent to the
cognizance of the cases against them by the courts. If, is neither to
be too narrowly construed nor too widely. Too narrow and pedantic
construction may render it otiose for it is no part of an official duty-
and never can be – to commit an offence. In our view, 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. One must also guard against too
wide a construction because in our constitutional set up the idea of
legal equality or of universal subjection of all citizens to one law
administered by the ordinary courts has been pushed to its utmost
limits by enshrining equality before the law in our fundamental
principles. Broadly speaking, with us no man, whatever his rank or
condition is above the law and every official from the highest down
to the lowest is under the same responsibility for every act done
without legal justification as,, any other citizen. In
construing Section 197, CrP.C., therefore, a line has to be drawn
between the narrow inner circle of strict official duties and acts9 (1970) 2 SCC 56
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wp-2509-2022 (1).docoutside the scope of official duties. According to the decision of this
Court in Matajog Dubey v. H. C. Bhari(1) cited by Shri Sarjoo
Prasad on behalf of the appellant there must be a reasonable
connection between the act and the discharge of official duty; the
act must bear such relation to the duty that the accused could lay a
reasonable claim, but not a pretended or fanciful claim, that he did
it in the course of the performance of his duty. In Amrik Singh v.
The State of Pepsu (2) this Court said :
“It is not every offence committed by a public servant that
requires sanction for prosecution under section 197 (1) of
the Code of Criminal procedure; nor even every act done by
him while he is actually engaged in the performance of his
official duties; but if the act complained of is directly
concerned with his official duties so that, if questioned, it
could ‘be claimed to have been done by virtue of the office,
then sanction would be necessary; and that would be so,
irrespective of whether it was, in fact, a proper discharge of
his duties, because that would really be a matter of defence
on the merits, which would have to be investigated at the
trial, and could not arise at the stage of the grant of
sanction, which must precede the institution of the
prosecution.,.”
Recently in Baijnath Gupta v. State of M.P.(3) this Court further
explained that it is the quality of the act that is important and if it
falls within the scope and range of the official duties of the public
servant concerned the protection contemplated by Section 197 of the
Criminal Procedure Code will be attracted.
5. The principle embodied in this section seems to be well
understood; the difficulty normally lies is in its application to the
facts of a given case. The question whether a particular act is done
by a public servant in the discharge of his official duty is
substantially one of fact to be determined on the circumstances of
each case. In the present case the alleged offence consists of the use
of defamatory and abusive words and of getting the complainant
forcibly turned out of the operation theatre by the cook. There is
nothing on the record to show that this was a part of the official duty
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of the appellant as Civil Surgeon or that it was so directly connected
with the performance of his official duty that without so acting he
could not have property discharged it.”
21. The Apex Court had in case of P.P. Unnikrishnan and another
versus Puttyyottil Alikutty and another10 while dealing with almost
similar case observed in paragraph Nos.19 and 21, which read as under;
19. Even under Section 197 of the Code no protection has been
granted to public servants for the type of acts alleged in the case
against the appellants. Decisions are a legion relating to the scope
of the protection under Section 197(1) of the Code. In Matajog
Dobey vs. H.C. Bhari this Court made a slight deviation from the
view adopted by the Judicial Committee of the Privy Council in
Gills case . This Court after referring to earlier decisions summed
up the scope of Section 197(1) of the Code thus:
“There must be a reasonable connection between the act and the
discharge of official duty; the act must bear such relation to the
duty that the accused could lay a reasonable, but not a pretended
or fanciful claim, that he did it in the course of the performance of
his duty”.
21. If a police officer dealing with law and order duty uses force
against unruly persons, either in his own defence or in defence of
others and exceeds such right it may amount to an offence. But
such offence might fall within the amplitude of Section 197 of the
Code as well as Section 64(3) of the K.P. Act. But if a police officer
assaults a prisoner inside a lock-up he cannot claim such act to be
connected with the discharge of his authority or exercise of his
duty unless he establishes that he did such acts in his defence or
in defence of others or any property. ….”.
10 (2000) 8 SCC 131
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22. In a similar case in Choudhary Parveen Sultana versus State of
West Bengal and another11 where issue of sanction under section 197
arose in a matter where the husband of the appellant therein was shot
and suffered grievous injury to his right eye by the Police under the
pretext of conducting investigation. The Apex Court in paragraph 21
has held as under;
“21. We have already indicated that we are unable to accept such
a view. In our view, the offences complained of cannot be said to
part of the duties of the Investigating Officer while investigating an
offence alleged to have been committed. It was no part of his duties
to threaten the complainant or her husband to withdraw the
complaint. In order to apply the bar of Section 197 Cr.P.C. each case
has to be considered in its own fact situation in order to arrive at a
finding as to whether the protection of Section 197 Cr.P.C. could be
given to the public servant. The fact situation in the complaint in
this case is such that it does not bring the case within the ambit of
Section 197 and the High Court erred in quashing the same as far
as the respondent No.2 is concerned. The complaint prima facie
makes out offences alleged to have been committed by respondent
No.2 which were not part of his official duties”.
23. The Apex Court in the case of Devinder Singh and others (supra),
while dealing with the issue of sanction has observed as follows:
37. In Satyavir Singh Rathi,v. State, this Court has referred to the
decision in B.Saha’s case and laid down that the question of
sanction has to be seen with respect to the stage and material11 (2009) 3 SCC 398
Shailaja 24
wp-2509-2022 (1).docbrought on record up to that stage. Whether allegation of
misappropriation is true or false is not to be gone into at this stage
in considering the question whether sanction for prosecution was or
was not necessary. The criminal acts attributed to the accused were
taken as alleged. This Court has observed as under :
“87. Both these judgments were followed in Atma Ram case
AIR 1966 SC 1786 where the question was as to whether the
action of a police officer in beating and confining a person
suspected of having stolen goods in his possession could be
said to be under colour of duty. It was held as under:(AIR
pp. 1787-88, para 3)“3. … The provisions of Sections 161 and 163 of the
Criminal Procedure Code emphasise the fact that a
police officer is prohibited from beating or confining
persons with a view to induce them to make
statements. In view of the statutory prohibition it
cannot, possibly, be said that the acts complained of,
in this case, are acts done by the respondents under
the colour of their duty or authority. In our opinion,
there is no connection, in this case between the acts
complained of and the office of the respondents and
the duties and obligations imposed on them by law. On
the other hand, the alleged acts fall completely outside
the scope of the duties of the respondents and they are
not entitled, therefore, to the mantle of protection
conferred by Section 161(1) of the Bombay Police
Act.”
88. Similar views have been expressed in Bhanuprasad
Hariprasad Dave case AIR 1968 SC 1323 wherein the
allegations against the police officer were of taking
advantage of his position and attempting to coerce a
person to give him bribe. The plea of colour of duty
was negatived by this Court and it was observed as
under: (AIR p. 1328, para 9)
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“9. … All that can be said in the present case is that
the first appellant, a police officer, taking advantage of
his position as a police officer and availing himself of
the opportunity afforded by the letter Madhukanta
handed over to him, coerced Ramanlal to pay illegal
gratification to him.This cannot be said to have been
done under colour of duty. The charge against the
second appellant is that he aided the first appellant in
his illegal activity.”
94. In B. Saha case this Court was dealing primarily
with the question as to whether sanction under Section
197 CrPC was required where a Customs Officer had
misappropriated the goods that he had seized and put
them to his own use. While dealing with this
submission, it was also observed as under: (SCC p.
184, para 14)
“14. Thus, the material brought on the record up to the
stage when the question of want of sanction was raised
by the appellants, contained a clear allegation against
the appellants about the commission of an offence
under Section 409 of the Penal Code. To elaborate, it
was substantially alleged that the appellants had
seized the goods and were holding them in trust in the
discharge of their official duty, for being dealt with or
disposed of in accordance with law, but in dishonest
breach of that trust, they criminally misappropriated or
converted those goods. Whether this allegation or
charge is true or false, is not to be gone into at this
stage. In considering the question whether sanction for
prosecution was or was not necessary, these criminal
acts attributed to the accused are to be taken as
alleged.”
(emphasis in original)
This Court has held that in case there is an act of beating a
person suspected of a crime of confining him or sending him
away in an injured condition, it cannot be said that police at that
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time were engaged in investigation and the acts were done or
intended to be done under the provisions of law. Act of beating
and confining a person illegally is outside the purview of the
duties”.
24. Thus, view of the Apex Court is consistent that it is not the duty of
the Police Officer to assault the accused or any person who is brought
before the Police Officer for the purpose of investigation of a crime. In
this case, respondent No.2 was called by the Police Officers to the Police
Station and was kept in the confinement of the dungeons for the
investigation of the crime. Thereafter they allegedly assaulted the said
person. It is admitted case by both the parties that respondent No.2
was called by the Police Officers to the Police Station for the purpose of
investigation. It is, at this juncture, the complainant claims that they he
was confined and brutally assaulted by the Police Officers for getting a
confessional statement. In such circumstances, going by the dictum of
the Apex Court in the judgments referred above, it is clear that it was
not the duty of the Police Officer to assault any person while
investigation of the crime. The Police Officers cannot under the guise of
investigation, use third degree treatment against any person. The
Learned Magistrate while issuing process against the
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accused/petitioners had considered section 197 of the Cr. P.C and held
that it was not the duty of the Police Officer to inflict such injury. The
revisions preferred by the petitioners before the Additional Sessions
Judge, Ichalkaranji were also dismissed by the learned Judge. Much
emphasis was laid by the learned counsel for the petitioners that
paragraph 19 of the impugned judgment and order was totally incorrect
interpretation of section 197. It is no doubt true that section 197 was
incorrectly interpreted while giving reasoning in paragraph 19,
however, remaining part of the judgment and order cannot be said to be
incorrect and contrary to the provisions of law. Therefore, assuming for
argument purpose that section 197 was not properly worded and was
not correct interpretation of law as evident in para 19 of the impugned
judgment and order, only on the basis of paragraph 19 of the impugned
judgment and order dated 8th April, 2022, it cannot be said that rest of
the findings would be vitiated and would require interference by this
court.
25. At this stage, facts on record as they are revealed are sufficient to
conclude that going by the case of prosecution as it is, inflicting injury
of such nature was not warranted at the hands of the Police Officer. It
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cannot be said that the Police Officers were discharging duty or were
acting in excess of the discharge of duty. In the present case, assaulting
the suspect for a confessional statement would never be said to be an
act in discharge of official duty and, therefore, the provisions of section
197 would not come in the way of the prosecution. Resultantly, orders
passed by the learned J.M.F.C – 3rd Ichalkaranji dated 24th November,
2021 in R.C.C No.88 of 2009 and the judgment and order passed by the
Additional Sessions Judge, Ichalkaranji dated 8th April, 2022 in Criminal
Revision Application No.21 of 2022 and Criminal Revision Application
No.23 of 2022 cannot be said to be erroneous, hence they require no
interference.
26. Before parting, once again I would like to refer to observations in
paragraph Nos.39.8 and 39.9 in Devinder Singh and others (supra)
which read as under;
“39.8. Question of sanction may arise at any stage of proceedings. On
a police or judicial inquiry or in course of evidence during trial.
Whether sanction is necessary or not may have to be determined from
stage to stage and material brought on record depending upon facts of
each case. Question of sanction can be considered at any stage of the
proceedings. Necessity for sanction may reveal itself in the course of
the progress of the case and it would be open to accused to place
material during the course of trial for showing what his duty was.
Accused has the right to lead evidence in support of his case on merits.
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39.9. In some case it may not be possible to decide the question
effectively and finally without giving opportunity to the defence to
adduce evidence. Question of good faith or bad faith may be
decided on conclusion of trial.
27. In a subsequent stage of trial, however, if sufficient evidence is
brought on record by the accused which gives rise to an inference that
accused were discharging their duties then certainly this issue of
sanction can be once again gone into.
28. From the material which is in hand at this stage, it would not be
proper to come to a conclusion that the petitioners were discharging
their official duties. Resultantly, the impugned judgments and orders do
not require any interference and the petitions deserve to be dismissed.
Hence, the following order.
:ORDER:
[1] The Criminal Writ Petition No.2509 of 2022 and
Criminal Writ Petition No.2511 of 2022 are dismissed.
[2] Rule is discharged.
[3] Criminal Writ Petitions are disposed of.
[SANDESH D. PATIL, J.]
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