[S. 197 CrPC] Police Officials Can't Be Prosecuted Without Govt's Sanction Even If They Exceed Scope Of Power While On Official Duty: Kerala High Court

Justice P.G. Ajithkumar ordered that sanction would be necessary under Section 197 of CrPC if the alleged act was directly concerned with official duty or has reasonable nexus with the discharge of official duty, even if such alleged act involves manhandling or detaining persons illegally.

“No doubt, even in a case where a person is taken into custody as part of duty and strictly in accordance with law, police have no authority to manhandle or detain him illegally. If manhandled or detained illegally, the erring police personnel are liable for prosecution. That does not mean that if such an act is done as part of official duty, no sanction is required to prosecute the police personnel.”

The Court further stated sanction would not be required if an offence was committed by the police officer entirely outside the scope of his duty as a police officer.

“However, if the act is connected with the discharge of the official duty of investigation in a criminal case, the act is certainly under the colour of duty, no matter how illegal the act may be. The further observations are that to decide whether sanction is necessary, the test is whether the act is unconnected with official duty or whether there is a reasonable nexus with the official duty. Suppose the alleged act has reasonable nexus with the discharge of his official duty. In that case, it does not matter whether the policeman has exceeded the scope of his power and/or acted beyond the four corners of law. In such a case, it was held that sanction is required for the prosecution”, added the Court.

Facts

All the four accused were officials in the police department who were alleged to have manhandled the complainant by forcibly taking him to the police jeep and subjected him to physical torture. The alleged incident took place in 1996 when the first and second accused were probationary Sub Inspectors at Pala police station, third accused was Head Constable and the fourth accused was the Circle Inspector of Police.

The Judicial Magistrate of the First Class-II (Mobile), Kottayam convicted all the four accused under 452 (house trespass), 341 (punishment for wrongful restraint) and 323 (punishment for voluntarily causing hurt) read with Section 34 (criminal act done with common intention). On appeal, the Additional Sessions Court (Adhoc)-II, Kottayam acquitted them. Aggrieved by the acquittal, the complainant has preferred the appeal.

The Additional Sessions Court acquitted the accused persons on finding that the complainant was taken into custody in connection with a case initiated against him. It thus found that the accused were acting or purporting to act in discharge of their official duty and sanction is required to prosecute them. It acquitted them on finding that there was no sanction obtained from the Government for prosecuting them.

Observations

The Court stated that Section 197 of the CrPC protects judges and public servants from false, vexatious or mala fide prosecution. Section 197 (2) provides that members of the Armed Forces of the Union cannot be prosecuted without previous sanction of the Government. It stated that the benefit of this provision was also extended to the members of the Kerala Police Force by issuance of notification under Section 197 (3).

The Court relying upon the decisions in Sarojini v. Prasannan (1996) and Rizwan Ahammed Javed Shaikh v. Jammal Pattel (2001) observed that Court cannot take cognizance against members of the Kerala Police without obtaining previous sanction from the government if they commit an offence whilst acting or purporting to act in the discharge of his official duty.

Interpreting the term, 'acting or purporting to act in the discharge of his official duty', the Court ruled that offence must be committed by the public servant either in his official capacity or under colour of the office held by him. The Court went on to state that this would be determined based on the facts of each case.

It said, “In the matter of grant of sanction under Section 197 of the Code, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. 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.”

The Court relying upon Sankaran Moitra v. Sadhna Das and another (2006), stated that the act committed by the police should fall within the ambit of official duties to attract want of sanction under Section 197 of CrPC.

Referring to Devaraja D. v. Owais (2020), it stated that every offence committed by police would not require sanction if such act was entirely outside the scope of his duty. It stated that if the alleged act, however illegal it may be, was reasonably connected or has a reasonable nexus to the discharge of his official duty then sanction is required for prosecution under Section 197.

In the facts of the case, the Court found that the accused who were police officers took the complainant in the police jeep for conducting medical examination in a pending case. It thus concluded that the act committed by the accused in taking the complainant to the police station was part of official duty.

Accordingly, the Court held that sanction should have been obtained. It stated that since sanction was not taken, police officers were entitled to protection under Section 197 (2) of the CrPC.

As such, the Court dismissed the appeals without considering whether the charges against them were proved or not.

Citation: 2024 LiveLaw (Ker) 360

Case Title: Joji Joseph v State of Kerala & Connected Matters

Case Number: CRL.APPEAL NO. 377 OF 2011 & Connected Matters

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