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Patna High Court

ASHOK KUMAR YADAVversusTHE STATE OF BIHAR

Decided
Disposal
ALLOWED

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

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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