S.197 CrPC | 'Excess' No Ground To Circumvent Sanction When Alleged Act Of Public Servant 'Reasonably Connected' With Official Duty: Kerala HC

The Kerala High Court on Tuesday held that the protection of sanction as provided under Section 197 Cr.P.C. would apply when the alleged act done by a public servant is reasonably connected with the discharge of his official duty.

Section 197 Cr.P.C. provides that when a public servant who is not removable from his office save by or with the sanction of the government, is accused in any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction, 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 or the State Government. 

"...the protection given under Section 197 would be available when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. If there is a reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of the protection," Justice N. Nagaresh explained. 

The petitioners in this case, who are police officers, were alleged by the 1st respondent to have assaulted the latter, thereby committing the offences under Sections 143 ('punishment for unlawful assembly'), 147 ('Punishment for rioting'), 148 ('Punishment for Riotin'), 341 ('Punishment for wrongful restraint'), 342 ('Punishment for wrongful confinement'), 355 ('Assault or criminal force to dishonour person'), 323 ('punishment for voluntarily causing hurt') and 324 ('Voluntarily causing hurt by dangerous weapons or means') read with Section 149 IPC. 

The petitioners averred that they had earlier registered a crime under Sections 143, 147, 148 and 324 read with Section 149 IPC and under the Prevention of Damage to Public Property Act, 1984, against 25 accused persons for pelting stones on a police driver, and another crime for the attempt to murder the 2nd petitioner by the said persons. It was submitted that the 1st respondent was involved in both offences, and that the present complaint was filed by the latter as an afterthought. 

It was further contended that the petitioners have protection under Section 197 Cr.P.C. and that they could not be prosecuted without prior sanction. 

Pursuant to the petitioners' plea for discharge being dismissed by the Magistrate Court, the Additional Sessions Judge-I, Palakkad directed the Magistrate to reconsider the discharge petition, adverting to the petitioners' claim on want of sanction. 

The Magistrate thereafter ordered that the petition for discharge would be considered after pre-charge evidence under Section 244 Cr.P.C. 

It is at this juncture that the petitioners approached the High Court contending that the procedure adopted by the Magistrate was illegal. They averred that cognizance itself would be barred for want of sanction. 

The 1st respondent however argued that he had been manhandled and assaulted by the petitioners, which clearly amounted to an instance of police excess. He contended that if such acts could not be be treated as integrated to the discharge of their official duties, the question of sanction would not arise. 

Perusing Section 197, as well as the objective behind the provision as explained in Apex Court decisions such as Choudhuri Parveen Sulthana v. State of West Bengal & Anr (2009), and S.B. Saha & Ors. v. M.S. Kochar (1979), the Court found that the police action was in connection with the investigation of a criminal case, and the conduct of the petitioners was thus reasonably connected with the performance of the official duty of the petitioners.

It further noted that in Ohm Prakash & Ors. v. State of Jharkhand (2012), the Apex Court had laid down that, "the requirement of sanction to prosecute affords protection to the policemen who are some time required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack unless unimpeachable evidence on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution".  

It thus held that the Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. 

The Court thus set aside the charge, but proceeded to clarify that the decision would not stand in the way of the 1st respondent / prosecution in approaching the State Government for sanction under Section 197 Cr.P.C.

"In case such sanction is obtained and the same is produced before the learned Magistrate, the learned Magistrate may proceed further in the case in accordance with law," it added, while disposing the plea. 

Counsel for the Revision Petitioners: Advocate Ajeesh K. Sasi

Counsel for the Respondents: Public Prosecutor Seena C., and Advocates Jacob Sebastian, Winston K.V., Anu Jacob, and Divya R. Nair. 

Citation: 2023 LiveLaw (Ker) 677 

Case Title: P.B. Prasobh & Ors. v. K.A. Muhammed Faisal & Anr. 

Case Number: Crl.R.P. No. 647 OF 2023

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