Patna High Court
ASHOK KUMAR YADAVversusTHE STATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The magistrate's order taking cognizance without prior sanction is illegal and is quashed.
Summary
The petitioner, a Circle Officer, filed an application to quash a magistrate's order that took cognizance of offences under Sections 427 and 504 IPC for demolishing an encroachment allegedly targeting the complainant's ancestral house. The petitioner argued that the action was taken in his official capacity to remove public road encroachments after due notices and that no prior sanction under Section 197 of the CrPC was obtained before proceeding. The State and the second opposite party opposed the petition, contending the order was lawful. The Court examined the scope of Section 197 CrPC, citing recent Supreme Court decisions that sanction is required when the alleged act is reasonably connected to the public servant's official duties. Finding that no sanction had been obtained and the act was linked to official duties, the Court held the magistrate's cognizance order illegal and quashed it. The application was allowed.
Issues considered
- Whether a prior sanction under Section 197 of the Criminal Procedure Code is required before taking cognizance of offences alleged against a public servant acting in official capacity.
- Whether the Circle Officer's action in ordering demolition of an encroachment is connected to his official duties such that Section 197 protection applies.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 190, 197
- Indian Penal Code — s. 427, 504
- Police Act — s. 170
Subjects
- Section 197 CrPC
- public servant protection
- prior sanction
- quash order
- encroachment
- Criminal Procedure
- IPC 427
- IPC 504
- official duty
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.26394 of 2019
Arising Out of PS. Case No.-126 Year-2018 Thana- SITAMARHI COMPLAINT CASE
District- Sitamarhi
======================================================
Ashok Kumar Yadav Son of Chandeshwari Prasad Yadav Resident of Ward
No. 01, Dubiyahi, P.S.-Kishanpur, Dubiyahi, Dighia, Distt - Supaul, At
present working as Circle Officer, Taradih Block, Darbhaga.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Md.Salauddin Son of Md. Zahir Alam Resident of Village - Sharifpur, P.S.-
Nanpur, Distt - Sitamarhi.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Shambhu Nath Jha, Advocate
Mr. Nirbhay Prashant, Advocate
For the State : Mr.Umanath Mishra, APP
For the O.P. No. 2 : Mr. Sunil Prasad Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
3 19-01-2026 Heard the parties.
2. The present application has been filed for quashing
the order dated 04.12.2018 passed by the learned Sub-Divisional
Judicial Magistrate, Pupri, Sitamarhi in Complaint Case No. 126
of 2018 by which cognizance of offence punishable under
Sections 427 and 504 of the Indian Penal Code has been taken
against the petitioner without considering the relevant facts and
circumstances of the case.
3. The brief facts of the case is that the complainant
had preferred a complaint case against the present petitioner
alleging that the petitioner in his official capacity of a Circle
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Officer had passed an order for removal of encroachment stating
therein that only the ancestral house of the complainant was
singled out and demolished.
4. Learned counsel for the petitioner submits that the
petitioner being the Circle Officer had received several
representations regarding encroachment of the public road
which was causing obstruction in the movement of the vehicles.
Acting upon the aforesaid representation, the petitioner had
issued the necessary directions to the Anchal Amin for
measurement of the concerned land. The petitioner had duly
followed the procedure and issued the relevant notices to the
concerned parties. However, none of the parties had removed
their encroachments.
5. It is categorically submitted by learned counsel for
the petitioner that no sanction for prosecution was obtained
before taking cognizance of offence and as such the cognizance
order is untenable and cannot be sustained.
6. The learned APP and the learned counsel for the
opposite party no. 2 have opposed the present petition and have
submitted that the impugned order suffers from no illegality and
infirmity.
7. I have considered the submissions of the parties and
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perused the materials on record.
8. At the outset, it would be apposite to refer to the
precedents on relevance of obtaining sanction for prosecution
against a public servant. Recently the Hon’ble Supreme Court in
the case of Gurmeet Kaur vs. Devender Gupta & Anr. reported
as 2024 SCC OnLine SC 3761 has reiterated the object and
purpose of Section 197 of the Cr. P.C. which protects the public
servants from unjustified criminal prosecution for acts done
while discharging their official duties and held as under:-
“25. As already noted, the object and purpose of the
said provision is to protect officers and officials of
the State from unjustified criminal prosecution
while they discharge their duties within the scope
and ambit of their powers entrusted to them. A
reading of Section 197 of the CrPC would indicate
that there is a bar for a Court to take cognizance
of such offences which are mentioned in the said
provision except with the previous sanction of the
appropriate Government when the allegations are
made against, inter alia, a public servant.
26. There is no doubt that in the instant case the
appellant herein was a public servant but the
question is, whether, while discharging her duty as
a public servant on the relevant date, there was
any excess in the discharge of the said duty which
did not require the first respondent herein to take
a prior sanction for prosecuting the appellant
herein. In this regard, the salient words which are
relevant under subsection (1) of Section 197 are
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“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”. Therefore, for the purpose
of application of Section 197, a sine qua non is
that the public servant is accused of any offence
which had been committed by him in “discharge
of his official duty”. The said expression would
clearly indicate that Section 197 of the CrPC
would not apply to a case if a public servant is
accused of any offence which is de hors or not
connected to the discharge of his or her official
duty. However, there are a line of judgments which
have considered this expression in two different
ways which we shall now advert to.”
9. The Hon’ble Supreme Court in the case of
Amrik Singh vs. The State of PEPSU reported as AIR 1955 SC
309 had explained the scope of Section 197 of the Cr. P.C and
held as under:-
“8. The result of the authorities may thus be summed
up : 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
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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.”
10. It is a well-established principle of criminal law
that a Magistrate can take cognizance of an offence under
Section 190 Cr. P.C. subject to the restriction under Section 197
Cr.P.C., when an accused is a public servant.
11. Section 197 Cr. P.C mandates prior sanction from
the competent authority before prosecution can proceed,
ensuring that public servants are protected from frivolous,
vexatious or unjustified criminal prosecution for acts performed
in the discharge of their official duties. The exception provided
is that the act must be intrinsically connected to the official duty.
The Hon’ble Supreme Court in Om Prakash Yadav v. Niranjan
Kumar Upadhyay & Ors. reported as 2024 SCC OnLine SC
3726, has held as under:-
“65. Thus, the legal position that emerges from a
conspectus of all the decisions referred to above is
that it is not possible to carve out one universal
rule that can be uniformly applied to the
multivarious facts and circumstances in the
context of which the protection under Section 197
Cr. P.C. is sought for. Any attempt to lay down
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such a homogenous standard would create
unnecessary rigidity as regards the scope of
application of this provision. In this context, the
position of law may be summarized as under:-
(i) The object behind the enactment of
Section 197 Cr.PC is to protect
responsible public servants against
institution of possibly false or
vexatious criminal proceedings for
offences alleged to have been
committed by them while they are
acting or purporting to act in their
official capacity. It is to ensure that
the public servants are not
prosecuted for anything which is
done by them in the discharge of
their official duties, without any
reasonable cause. The provision is
in the form of an assurance to the
honest and sincere officers so that
they can perform their public duties
honestly, to the best of their ability
and in furtherance of public
interest, without being demoralized.
(ii) The expression “any offence
alleged to have been committed by
him while acting or purporting to
act in the discharge of his official
duty” in Section 197 Cr. PC must
neither be construed narrowly nor
widely and the correct approach
would be to strike a balance
between the two extremes. The
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section should be construed strictly
to the extent that its operation is
limited only to those acts which are
discharged in the “course of duty”.
However, once it has been
ascertained that the act or omission
has indeed been committed by the
public servant in the discharge of
his duty, then a liberal and wide
construction must be given to a
particular act or omission so far as
its “official” nature is concerned.
(iii) It is essential that the Court while
considering the question of
applicability of Section 197 Cr. PC
truly applies its mind to the factual
situation before it. This must be
done in such a manner that both the
aspects are taken care of viz., on
one hand, the public servant is
protected under Section 197 Cr.PC
if the act complained of falls within
his official duty and on the other,
appropriate action be allowed to be
taken if the act complained of is not
done or purported to be done by the
public servant in the discharge of
his official duty.
(iv) 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 that it lies within the
scope and range of his official
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duties. The act complained of must
be integrally connected or directly
linked to his duties as a public
servant for the purpose of affording
protection under Section 197
Cr.PC. Hence, it is not the duty
which requires an examination so
much as the “act” itself.
(v) One of the foremost tests which was
laid down in this regard was -
whether the public servant, if
challenged, can reasonably claim
that, what he does, he does in virtue
of his office.
(vi) Later, the test came to be re-
modulated. It was laid down that
there must be a reasonable
connection between the act done
and the discharge of the official
duty and the act must bear such
relation to the duty such that the
accused could lay a reasonable, but
not a pretended or fanciful claim,
that his actions were in the course
of performance of his duty.
Therefore, the sine qua non for the
applicability of this section is that
the offence charged, be it one of
commission or omission, must be
committed by the public servant
either in his official capacity or
under the color of the office held by
him such that there is a direct or
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reasonable connection between the
act and the official duty.
(vii) If in performing his official duty,
the public servant acts in excess of
his duty, the excess by itself will not
be a sufficient ground to deprive the
public servant from protection
under Section 197 Cr.PC if it is
found that there existed a
reasonable connection between the
act done and the performance of his
official duty.
(viii) It is the “quality” of the act that
must be examined and the mere fact
that an opportunity to commit an
offence is furnished by the official
position would not be enough to
attract Section 197 Cr, PC.
(ix) The legislature has thought fit to
use two distinct expressions
“acting” or “purporting to act”.
The latter expression means that
even if the alleged act was done
under the color of office, the
protection under Section 197 CrPC
can be given. However, this
protection must not be excessively
stretched and construed as being
limitless. It must be made available
only when the alleged act is
reasonably connected with the
discharge of his official duty and
not merely a cloak for doing the
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objectionable act.
(x) There cannot be any universal rule
to determine whether there is a
reasonable connection between the
act done and the official duty, nor is
it possible to lay down such a rule.
However, a “safe and sure test”
would be to consider if the omission
or neglect on the part of the public
servant to commit the act
complained of would have made
him answerable for a charge of
dereliction of his official duty. If the
answer to this question is in the
affirmative, the protection under
Section 197 Cr.PC can be granted
since there was every connection
with the act complained of and the
official duty of the public servant.
(xi) The provision must not be abused
by public servants to camouflage
the commission of a crime under
the supposed color of public office.
The benefit of the provision must
not be extended to public officials
who try to take undue advantage of
their position and misuse the
authority vested in them for
committing acts which are
otherwise not permitted in law. In
such circumstances, the acts
committed must be considered
dehors the duties which a public
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servant is required to discharge or
perform.
(xii) On an application of the tests as
aforesaid, if on facts, it is prima
facie found that the act or omission
for which the accused has been
charged has a reasonable
connection with the discharge of his
official duty, the applicability of
Section 197 CrPC cannot be
denied.” (emphasis supplied)
12. In the case of G.C. Manjunath (supra), the
Hon’ble Supreme Court while dealing with purported acts of
excess while discharging official duties of a police officer, has
held as under:-
“37. This Court in Amod Kumar Kanth v. Association
of Victim of Uphaar Tragedy, (2023) 16 SCC 239
held that the State performs its obligations
through its officers/public servants and every
function performed by a public servant is
ultimately aimed at achieving public welfare.
Often, their roles involve a degree of discretion.
But the exercise of such discretion cannot be
separated from the circumstances and timing in
which it is exercised or, in cases of omission, when
the omission occurs. In such circumstances, the
courts must address, whether the officer was
acting in the discharge of official duties. It was
observed that even when an officer acts under the
purported exercise of official powers, they are
entitled to protection under Section 197 of the
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Cr.P.C.. This protection exists for a valid reason
so that the public servants can perform their
duties fearlessly, without constant apprehension of
legal action, as long as they act in good faith.
While Section 197 of the Cr.P.C. does not
explicitly mention the requirement of good faith,
such a condition is implied and is expressly
included in several other statutes that offer
protection to public servants from civil and
criminal liability.
38. While dealing with the provisions of Section 197
of the Cr. P.C., read with Section 170 of the Police
Act, this Court in D. Devaraja observed that not
every offence committed by a police officer
automatically gets this protection. The safeguard
under Section 197 of the Cr.P.C. and Section 170
of the Police Act is limited. It applies only if the
alleged act is reasonably connected to the officer's
official duties. The law does not offer protection if
the official role is used as a mere excuse to
commit wrongful acts. However, it was held that
the protection of prior sanction will be available
when there is a reasonable connection between
the act and their duty. While enunciating when the
protection of prior sanction will be applicable,
this Court held that even if a police officer
exceeds his official powers, as long as there is a
reasonable connection between the act and his
duty, they are still entitled to the protection
requiring prior sanction. Excessiveness alone
does not strip them of this safeguard. The
language of both Section 197 of the Cr. P.C. and
Section 170 of the Police Act is clear that sanction
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is required not only for acts done in the discharge
of official duty as well as for the acts purported to
be done in the discharge of official duty and/or
acts done “under colour of or in excess of such
duty or authority”. Sanction becomes mandatory
if there is a reasonable connection between the act
and the officer's official duties, even if the officer
acted improperly or exceeded his authority.
Therefore, if a complaint against a police officer
involves actions reasonably related to his official
role, the Court cannot take cognisance unless
sanction from the appropriate Government has
been obtained under Section 197 of the Cr.P.C.
and Section 170 of the Police Act….”
…
41. In light of the aforesaid judgements, the guiding
principle governing the necessity of prior sanction
stands well crystallised. The pivotal inquiry is
whether the impugned act is reasonably connected
to the discharge of official duty. If the act is
wholly unconnected or manifestly devoid of any
nexus to the official functions of the public
servant, the requirement of sanction is obviated.
Conversely, where there exists even a reasonable
link between the act complained of and the official
duties of the public servant, the protective
umbrella of Section 197 of the Cr.P.C. and Section
170 of the Police Act is attracted. In such cases,
prior sanction assumes the character of a sine qua
non, regardless of whether the public servant
exceeded the scope of authority or acted
improperly while discharging his duty.” (emphasis
supplied).
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13. The complain has been filed against the Circle
Officer because of the official action taken by him in an
encroachment proceeding. From the records it appears that no
sanction for prosecution was obtained and therefore the
impugned order taking cognizance without sanction against the
petitioner is held to be illegal.
14. In view of the above, the impugned order dated
04.12.2018 passed by the learned Sub-Divisional Judicial
Magistrate, Pupri, Sitamarhi in Complaint Case No. 126 of
2018, is hereby quashed and set aside.
15. Accordingly, this application is allowed.
(Sandeep Kumar, J)
P. Kumar
U T
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