Patna High Court
Haribansh MahtoversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
Holding
The court held that the magistrate’s cognizance order was invalid because prior sanction was not obtained, and the police officers’ acts, though excessive, were connected to the discharge of official duty.
Summary
The Patna High Court examined a petition seeking quash of a magistrate's order that had taken cognizance against six police officers for alleged offences including house‑breaking, assault and theft under the Bharatiya Nyaya Sanhita, 2023. The petitioners argued that they were acting on a lawful raid to apprehend accused criminals and that prosecution required prior sanction under Section 197 of the CrPC (Section 218 of the B.N.S.S.). The Court held that the police actions were connected to the discharge of official duty and that, without sanction from the competent authority, the magistrate could not take cognizance. Citing Supreme Court and High Court precedents, the Court affirmed that excesses during official duty do not remove the statutory protection. Consequently, the order of 07‑05‑2025 was set aside and the proceedings against the petitioners were quashed, while the complainant was directed to obtain proper sanction if she wishes to proceed.
Issues considered
- The necessity of prior sanction under Section 197 CrPC/Section 218 B.N.S.S. for prosecuting police officers acting in the discharge of official duty.
- Whether the police officers' conduct during the raid was within the scope of their official duties or amounted to unlawful excess.
- Whether the magistrate had jurisdiction to take cognizance without a valid sanction.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 218
- Bharatiya Nyaya Sanhita, 2023 — s. 115(2), 126(2), 330/190, 331(3), 331(4), 331(5), 331(6), 333, 351(2), 352, 74
- Code of Criminal Procedure, 1973 — s. 197, 82, 83
- Police Act, 1861
Subjects
- police excess
- sanction under Section 197
- official duty
- quashing of criminal proceedings
- Bharatiya Nyaya Sanhita
- public servant protection
- cognizance
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.47802 of 2025
Arising Out of PS. Case No.-336 Year-2024 Thana- COMPLAINT CASE-ARWAL District-
Arwal
======================================================
1. Haribansh Mahto, son of Late Foolchand Mahto, R/o Vill. - Garkati, PS -
Lokariya, Distt. - West Champaran.
2. Rohit Kumar, son of Sachita Nand Singh, R/o Vill. - Bishunpura, PS - Bihta,
Distt. - Patna.
3. Raghav Kumar Jha, son of Chiranjiv Jha, R/o Vill. - Hriday Nagar, PS -
Birpur, Distt. - Supaul.
4. Prity Kumari, Daughter of Prabhunath Thakur, R/o Vill. - Lala Hatha, PS -
Jamu Bazar, Distt. - Siwan.
5. Umesh Ram, Son of Basudeo Ram, R/o Vill. - Taraniya, PS - Chakiya, Distt.
- East Champaran.
6. Kriti Kamal, Daughter of Narendra Kumar, R/o Vill. - Jamnapur, PS -
Malsalami, Distt. - Patna.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. Tanisha Singh, Wife of Prince Kumar Ranjan, R/o Vill. - Karva Hankar, PO -
Bajitpur, PS - Karpi, Distt. - Arwal.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.K. Shahi, A.G.
Mr. Shivendra Prasad, Adv.
For the O.P. No. : Mr. Dhirendar Kumar Sinha, Adv.
Mr. Amrit Lal, Adv.
Ms. Vaishnavi Kashyap, Adv.
For the State : Mr. Ashok Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
C.A.V. JUDGMENT
Date : 18-02-2026
Heard Mr. P.K. Shahi, the learned Advocate
General, assisted by Mr. Shivendra Prasad, the learned counsel
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for the petitioners and Mr. Dhirendar Kumar Sinha, the learned
counsel, assisted by Mr. Amrit Lal and Ms. Vaishnavi Kashyap,
the learned counsels for the complainant/opposite party No. 2.
The State has been represented by Mr. Ashok Kumar Singh, the
learned Addl. Public Prosecutor for the State.
2. This application, invoking inherent jurisdiction,
has been preferred seeking quashing of the order dated
07.05.2025 passed by the learned Chief Judicial Magistrate,
Arwal in connection with Complaint Case No. 336 (C) of 2024,
whereby the Court has taken cognizance against the petitioners
under Sections 74, 115(2), 126(2), 351(2) 352, 333, 331(3),
331(4), 331(5), 331(6) and 330/190 of the Bharatiya Nyaya
Sanhita, 2023 (hereinafter referred to as the B.N.S.).
3. The factual matrix giving rise to the present
application is that one Tanisha Singh, the complainant/opposite
party No. 2, made a complaint, bearing Complaint Case No.
336(C) of 2024, in the Court of learned Chief Judicial
Magistrate, Arwal on 02.12.2024, alleging that all the accused
persons including the petitioners broke down the front and back
gate and entered into the house, assaulted the female members
present in the house and behaved indecently. It is alleged that
the Deputy Superintendent of Police was giving directions to the
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accused persons from some other place, which was beyond the
coverage of the CCTV. It is further alleged that the named
accused persons including the petitioners assaulted the eighty
years old grandmother-in-law of the complainant/opposite party
No. 2, while a few named police personnel assaulted her
mother-in-law and one Raghav Kumar Jha (petitioner No. 3)
attempted to outrage the modesty of the mother-in-law of the
complainant/opposite party No. 2. It is also alleged that the
accused persons, on the pretext of search, asked for the keys of
the Almirah and even took away the jewellery kept in it. It has
been alleged in the complaint that the accused persons damaged
the house hold articles of the complainant/opposite party No. 2,
causing loss of several lacs. It has further been alleged that the
accused persons, who are about hundred in number, came in
fifteen vehicles, out of whom some were in civil dress and were
holding arms. It has next been alleged that the accused/Raghav
Kumar Jha (petitioner No. 3) assaulted the relative of the
complainant/opposite party No. 2 with the butt of the pistol and
took him also in their company. It has lastly been stated that the
matter was not reported to the police as the
complainant/opposite party No. 2 thought that she would not get
justice from the police.
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4. On such complaint made by the
complainant/opposite party No. 2, the learned Magistrate held
an enquiry and took cognizance against the petitioners for the
offences under Sections 74, 115(2), 126(2), 351(2) 352, 333,
331(3), 331(4), 331(5), 331(6) and 330/190 of the B.N.S. vide
order dated 07.05.2025, which order has been impugned in the
present petition.
5. Mr. P.K. Shahi, the learned Advocate General
appearing on behalf of the petitioners, submits that the order
taking cognizance is palpably illegal as the petitioners were the
police personnel, who had gone to the house of the
complainant/opposite party No. 2 in search of harden criminals
and thereby, they were only performing their official duty and,
thus, sanction was imperative in view of the provisions of
Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as the B.N.S.S.) (Section 197 of the Code
of Criminal Procedure, 1973). It has been submitted that the male
members of the family of the complainant/opposite party No. 2
are local outlaws and they are accused in several cases and on
the strength of their muscle power, they want to establish
supremacy in the locality/area and on the date of alleged
occurrence, they had indulged in scuffle and assaulted the
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members of the polling party deputed at the time of election of
PACS for which two cases, bearing Karpi P.S. Case No.
273/2024 and Karpi P.S. Case No. 274/2024, were lodged
against them.
6. The learned Advocate General has submitted
that Karpi P.S. Case No. 273/2024 was lodged by
accused/petitioner No. 3, namely, Raghav Kumar Jha, in which,
there was allegation that the accused persons came in a mob of
40 - 50 persons and indulged in commission of mar-peet with
the informant as he had asked the two accused persons not to
enter inside the polling station. It has been submitted that the
informant of Karpi P.S. Case No. 273/2024 had also sustained
injuries in course of the occurrence. It has further been
submitted that Karpi P.S. Case No. 274/2024 had been
registered on the basis of the written report of the Block Supply
Officer, in which, it was alleged that on the alleged date of
occurrence, the informant was deputed as Magistrate of APCS
election and he had objected to the action of the accused
persons, who were trying to influence the voters outside the
polling station, on which, the accused persons had assaulted the
informant and the members of the police party deputed with the
informant.
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7. It has further been submitted on behalf of the
petitioners that the accused male members of the family of the
complainant/opposite party No. 2, who were named accused in
Karpi P.S. Case Nos. 273/2024 and 274/2024, were trying to
influence the result of the election in their favour by using their
muscle power and had called miscreants from outside, who were
reported to be inside the house of the complainant/opposite
party No. 2. It was in this background that the police, in
numbers, conducted a raid to arrest the accused persons of Karpi
P.S. Case Nos. 273/2024 and 274/2024 and also the unknown
criminals involved in the said occurrence. It has been submitted
that it was in course of such raid when the police personnel were
trying to enter the house of the said accused persons, the lady
members not only facilitated in fleeing of the said accused
persons from backdoor, they even restrained the police
personnel from carrying out their duty and in forcing their entry
inside the house, the police had to break open the doors of the
house, which was deliberately locked and not being opened. It
has, thus, been submitted that the police had gone to the house
of the complainant/opposite party No. 2 in discharge of their
official duty and had also arrested the accused of both Karpi P.S.
Case Nos. 273/2024 and 274/2024.
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8. Mr. P.K. Shahi, the learned Advocate General,
has submitted that it is in retaliation to such stern action being
taken by the police that the present complaint has been filed
with malicious intent only to take revenge from the police
officers, who were the members of the raiding team involved in
such raid.
9. The attention of this Court has been drawn
towards the complaint petition, which was not even affidavited,
and the learned Magistrate proceeded to make an enquiry,
contrary to the settled principles of law. It has been submitted
that during enquiry, four witnesses were examined, out of
whom, three persons were strangers and were not even the
resident of the said village where the house of the
complainant/opposite party No. 2 is situated.
10. Mr. P.K. Shahi, the learned Advocate General,
has submitted that the learned Magistrate had issued notices to
the accused persons to present their response and a few of them
had appeared personally and also filed their written response,
clearly stating that they (police personnel) had gone to the place
of the occurrence, i.e., the house of the complainant/opposite
party No. 2, in order to discharge their official duty and they had
not committed any illegality by doing so. However, the learned
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Magistrate has gone ahead and passed the order, impugned in
the present petition.
11. Pointing out to the anomalies in the impugned
order, the learned Advocate General has submitted that the
learned Magistrate has erred on facts by stating that the police
personnel were not the members of the raiding party and,
therefore, no sanction for prosecution was required in those
cases, moreover it is not mandatory/necessary that all police
personnel should be made members of the raiding team rather
the duties are assigned on their individual skills and the specific
need of the team. It has been submitted that it is a well settled
law that the police can search a place without warrant, if the
police had reasonable belief that the accused is hiding in a
particular place and has committed cognizable offence.
12. The second aspect of the impugned order, it
has been argued, that the learned Magistrate had taken note of
the fact that the complainant/opposite party No. 2 had given an
application to the Collector/District Magistrate for sanction of
prosecution against the petitioners, but even after the expiry of
the statutory period, neither the sanction was accorded nor the
same was refused and, therefore, went on to hold that the
sanction was deemed to be granted. It has been submitted by
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the learned Advocate General that the learned Magistrate has
erred in law, while holding that the police has committed excess
by acting beyond authorized limits, which is not the part of
discharge of official duty and a prima facie offence has been
committed as per the evidences led by the complainant/opposite
party No. 2 and the enquiry witnesses and, therefore, he has
jurisdiction to take cognizance.
13. It has further been submitted that the learned
Magistrate has overlooked the fact that the sanction was never
sought from the competent authority. It has been submitted that
the Collector is not the competent authority to accord sanction
for prosecution against the police personnel rather it is the
Department of Home, which is the competent authority to
accord such sanction and it is an admitted case that no sanction
was sought from the Department of Home and, therefore, the
question of deemed sanction by efflux of time on an application
made before the District Magistrate is not tenable in the eyes of
law.
14. The learned Advocate General has pointed out
that the learned Magistrate has also referred to the recordings of
the CCTV footage produced by the complainant/opposite party
No. 2, which reveals that the police had committed offence by
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exceeding their jurisdiction and, therefore, the learned
Magistrate had held it not to be permissible. To this finding, the
learned Advocate General submits that excessive application of
force during investigation is not uncommon as it has become a
trend to keep the lady members of the family in front and
restrain the police to enter the house and takes coercive action
against the accused of a cognizable criminal offence and from
the video footage, it would be evident that these lady members
of the family including the complainant/opposite party No. 2
were trying to restrain the police personnel from carrying out
their duty and the reasons for their presence at the house was on
account of the fact that the male members of the family of the
complainant/opposite party No. 2 were accused of cognizable
offence.
15. Mr. P.K. Shahi, the learned Advocate General,
has, thus, submitted that the petitioners/police personnel were
performing their official duty on the instructions of their
superior officers and, therefore, lodging of the present complaint
against them and subsequent cognizance order would not only
deplete the moral of the police personnel, but also thwart their
further actions against hardcore criminals.
16. In support of his contention, the learned
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Advocate General has placed reliance upon the judgment
rendered by the Hon’ble Supreme Court in the case of G.C.
Manjunath & Ors. Vs. Seetaram, reported in (2025) 5 SCC 390,
wherein the Hon’ble Supreme Court has categorically held that
if the act is reasonably connected to the discharge of official
duty, then sanction is required.
17. The learned Advocate General has also drawn
the attention of this Court towards the Full Bench judgment
rendered by this Court in case of Sri Ram Rekha Pandey Vs. The
State of Bihar & Anr., reported in 2016 (3) PLJR 296, wherein the
Full Bench had taken note of the Notification, issued by the
Government of Bihar, dated 16.05.1980, declaring that
provisions of Section 197 (2) of the Cr.P.C. shall apply to the
“Officers and Men” of the Bihar Police Force wherever they
may be serving the State of Bihar, charged with maintenance of
public order and appointed by the Inspector General of Police,
Bihar, or any other Officers specially authorized to appoint any
such person of such force under the Police Act, 1861. The Full
Bench, thus, held that no Court can take cognizance of an
offence, alleged to have been committed by a member of Bihar
Police Force; charged with maintenance of public order, while
acting or purporting to act in discharge of his official duty
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except with the previous sanction of the State Government. The
Full Bench had held the said Notification to be within the scope
and powers conferred upon the State Government under Section
197 (3) of the Cr.P.C.
18. In view of the aforesaid, it has been argued
that the impugned order if allowed to be continued, it would
amount to abuse of the process of law. It has, thus, been
submitted by the learned Advocate General that the present
prosecution is malicious in nature and for such complaints that
the requirement of prior sanction under Section 197 of the Code
of Criminal Procedure, 1973 (Section 218 of the Bharatiya
Nagarik Suraksha Sanhita, 2023) was enumerated, in order to
protect public servants from harassment through vexatious and
retaliatory legal proceedings and, therefore, the failure to take
sanction, makes the entire case liable to be quashed.
19. Mr. Dhirendar Kumar Sinha, the learned
counsel appearing on behalf of the complainant/opposite party
No. 2, submits that the petitioners, who were the police officials,
had forced their entry into the house of the
complainant/opposite party No. 2 and had taken law in their
hands by assaulting the lady members of the house and the
video footage which is also produced along with the counter
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affidavit filed on behalf of the complainant/opposite party No. 2
would go on to show that the petitioners had exceeded their
jurisdiction and entered the house of complainant/opposite party
No. 2 during midnight, committed theft and assaulted women
including eight years old woman after breaking the doors of the
house. It has been submitted that the actions committed by the
petitioners cannot, in all possibility, be held to be in discharge of
their official duty and, therefore, there is no application of the
provisions contained in Section 223(2) of the B.N.S.S. in the
present facts and circumstances of the case.
20. It has further been added that in the
departmental enquiry, the petitioner No. 3, namely, Raghav
Kumar Jha, was found to be guilty of illegal assault and he has
also been suspended, while petitioner No. 4, namely, Prity
Kumari, has not appeared before the learned Magistrate and,
therefore, the processes under Sections 82 and 83 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.)
has been issued against her.
21. Mr. Sinha, the learned counsel appearing on
behalf of the complainant/opposite party No. 2, submits that in
fact the provisions of Section 395 I.P.C. (Section 310(2) of the
B.N.S.) would be attracted as in the present case the policemen
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were more than five in number and they had committed theft in
the house of the complainant/opposite party No. 2. It has been
submitted that the accused persons named in the complaint case
trespass in the midnight on 29.11.2024 and after breaking the
doors of the house, started beating the husband of the
complainant/opposite party No. 2, namely, Prince Kumar
Ranjan, and also assaulted an eighty years old woman along
with other women present in the house. It has further been
submitted that the persons who are not even the members of the
raiding party had accompanied the police team and, therefore,
they have criminally trespassed in the residential house of the
complainant/opposite party No. 2. It has been submitted that
since the accused persons have committed the offence of house
breaking after sunset and before sunrise, they are also liable for
punishments under Sections 331(2) and 331(4) of the B.N.S.
and such act of the petitioners shows that they had became the
perpetrators of crime rather than protectors.
22. The learned counsel for the
complainant/opposite party No. 2 refers to the footage of the
CCTV and has submitted that the accused persons are seeing
dragging the husband of the complainant/opposite party No. 2
from inside the house and the accused persons have beaten him
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in the campus in the midnight. It has been submitted that
though the petitioner No. 3/Raghav Kumar Jha has claimed to
have been admitted at C.H.C., Karpi Sadar Hospital on
29.11.2024 at about 4 O’clock in the evening, however the
video footage would show that he was present in the residential
house of the complainant/opposite party No. 2 at 11 O’clock in
the night and the injuries sustained by him were also found to be
simple.
23. The learned counsel for the
complainant/opposite party No. 2 has tried to establish that the
police though has stated they were looking for the husband of
the complainant/opposite party No. 2, who was the Chairman of
the PACS since 2019, however he was not made an accused in
Karpi P.S. Case No. 273/2024, which was lodged on 29.11.2024,
but he has been made an accused in Karpi P.S. Case No.
274/2024, which was lodged on 30.11.2024, after the occurrence
committed by the police personnel at the house of the
complainant/opposite party No. 2.
24. It has, thus, been submitted on behalf of the
complainant/opposite party No. 2 that the police officers have
overreached their jurisdiction and have acted beyond their
official duty and, therefore, the question of sanction does not
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arise and there is no illegality in the impugned order and,
accordingly, the present application is fit to be dismissed.
25. The learned Addl. Public Prosecutor for the
state has submitted that he has adopted the arguments rendered
by the learned Advocate General appearing on behalf of the
petitioners.
Consideration:
26. After having heard the learned counsels for the
parties and taking note of the respective pleadings made in the
quashing application as also in the counter affidavit, this Court
has noted two facts, which are essential to be referred before
coming to the finding. Firstly, it is an admitted fact that several
policemen had went to the house of complainant/opposite party
No. 2 on the night of 29.11.2024 and they had forced their entry
and in doing so, the complainant/opposite party No. 2 has
alleged that they had exceeded their jurisdiction and had gone
on to assault the lady members in the family and had also
committed theft. The second relevant fact is that the police had
indeed been looking for the accused persons in Karpi P.S. Case
No. 273/2024, wherein, in the list of accused persons, the name
of Ramashish Ranjan and Rocky Kumar features. The
complainant/opposite party No. 2 happens to be the daughter-in-
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law and Bhabhi of aforesaid two accused persons respectively.
27. Thus, from the above, it is clear that the police
had not gone to the house of the complainant/opposite party No.
2 without any valid and cogent reason, but to look for named
accused persons, who were evading their arrest and had
committed a crime, whereby, not only the common people were
being affected, but the accused persons had tried to snatch away
the service Revolvers of the police personnel and had even
assaulted them, who were also subsequently treated. In such
view of the matter, the presence of the petitioners at the house of
the complainant/opposite party No. 2 was on account of their
discharge of official duty, however, in trying to apprehend the
accused persons, on facing hostile restraint by the lady members
of the family, the police might have exceeded in carrying out
such raid. However, it cannot be said that they were present at
the place of occurrence without there being any valid and cogent
reason.
28. In view of such factual position, the reference
to the judgment referred to by the learned Advocate General in
the case of G.C. Manjunath (supra) is relevant in the scenario of
the present case and paragraphs 41, 42, 43 and 44 are being
reproduced hereinbelow for ready reference:
“41. In light of the aforesaid
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judgments, 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 CrPC 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.
42. Turning to the case at hand,
there is little doubt that the allegations
levelled against the accused persons are
grave in nature. Broadly classified, the
accusations against the accused persons
encompass the following:
(1) abuse of official authority by
the accused persons in allegedly implicating
the complainant in fabricated criminal
cases, purportedly driven by malice or
vendetta;
(2) physical assault and ill-
treatment of the complainant by the accused
persons, constituting acts of alleged police
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excess;
(3) wrongful confinement of the
complainant; and
(4) criminal intimidation of the
complainant.
43. In the circumstances at hand,
we are of the considered opinion that the
allegations levelled against the accused
persons, though grave, squarely fall within
the ambit of “acts done under colour of, or
in excess of, such duty or authority,” and
“acting or purporting to act in the discharge
of his official duty,” as envisaged under
Section 170 of the Police Act and Section
197 CrPC respectively.
44. This Court, while adjudicating
on instances of alleged police excess, has
consistently held in Virupaxappa Veerappa
Kadampur Vs. State of Mysore, 1962 SCC
OnLine SC 395 : AIR 1963 SC 849 and D.
Devaraja Vs. Owais Sabeer Hussain, (2020)
3 SCC (Cri) 442 that where a police officer,
in the course of performing official duties,
exceeds the bounds of such duty, the
protective shield under the relevant statutory
provisions continues to apply, provided there
exists a reasonable nexus between the
impugned act and the discharge of official
functions. It has been categorically held that
transgression or overstepping of authority
does not, by itself, suffice to displace the
statutory safeguard of requiring prior
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government sanction before prosecuting the
public servant concerned.”
29. The Full Bench of this Court in the case of Sri
Ram Rekha Prasad (supra) has categorically held that in view of
the aforesaid Notification, the previous sanction of the offences
alleged to have been committed by the police officers, while
acting or purporting to act in discharge of their official duty is a
condition precedent.
30. The Hon’ble Supreme Court in the case of Om
Prakash and Ors. Vs. State of Jharkhand Through The Secretary,
Department of Home, Ranchi 1 and Anr., reported in (2012) 12 SCC
72, referring to various decisions pertaining to the police excess,
held in paragraph 32 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 his official duties or it was so
integrally connected with or attached to his
office as to be inseparable from it (K. Satwant
Singh Vs. State of Punjab, AIR 1960 SC 266 :
1960 Cri LJ 410). The protection given under
Section 197 of the Code has certain limits and
is valuable only when the alleged act done by
the public servant is reasonably connected
with the discharge of his official duty and is
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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 public servant of the
protection (State of Orissa VS. Ganesh
Chandra Jew, [(2004) 8 SCC 40 : 2004 SCC
(Cri) 2104]. If the above tests are applied to
the facts of the present case, the police must
get protection 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.”
31. The Hon’ble Supreme Court in the case of
Directorate of Enforcement Vs. Bibhu Prasad Acharya & Ors. ,
reported in (2025) 1 SCC 404, wherein, in paragraph 8, it has
been held as hereunder :
“8. The expression “to have been
committed by him while acting or purporting to
act in the discharge of his official duty” has
been judicially interpreted. A Bench of three
Hon'ble Judges of this Court in Centre for
Public Interest Litigation v. Union of India, in
para 9, observed thus: (SCC pp. 208-09)
“9. ….. This protection has
certain limits and is available only when the
Patna High Court CR. MISC. No.47802 of 2025 dt.18-02-2026
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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 from the protection. The question is not
as to the nature of the offence such as whether
the alleged offence contained an element
necessarily dependent upon the offender being a
public servant, but whether it was committed by
a public servant acting or purporting to act as
such in the discharge of his official capacity.
Before Section 197 can be invoked, it must be
shown that the official concerned was accused
of an offence alleged to have been committed by
him while acting or purporting to act in the
discharge of his official duties. 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. The act must fall within the
scope and range of the official duties of the
public servant concerned. It is the quality of the
act which is important and the protection of this
section is available if the act falls within the
scope and range of his official duty. There
cannot be any universal rule to determine
whether there is a reasonable connection
between the act done and the official duty, nor is
Patna High Court CR. MISC. No.47802 of 2025 dt.18-02-2026
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it possible to lay down any such rule. One safe
and sure test in this regard would be to consider
if the omission or neglect on the part of the
public servant to commit the act complained of
could have made him answerable for a charge
of dereliction of his official duty. If the answer to
this question is in the affirmative, it may be said
that such act was committed by the public
servant while acting in the discharge of his
official duty and there was every connection
with the act complained of and the official duty
of the public servant. This aspect makes it clear
that the concept of Section 197 does not get
immediately attracted on institution of the
complaint case.”
(emphasis supplied)
32. In view of the above discussions and taking
into account the judgments rendered by the Hon’ble Supreme
Court and the Full Bench of this High Court, this Court is of the
view that this is a case, wherein, the indulgence of this Court is
warranted in the background of the fact that the petitioners are
the police personnel, who had gone to the house of the
complainant/opposite party No. 2 in search of harden criminals,
who were accused of a cognizable offence, and while doing so,
they faced hostile restraint from the lady members of the house
and the police personnel, who were discharging their official
duty on the instructions of their superior authority, had no
Patna High Court CR. MISC. No.47802 of 2025 dt.18-02-2026
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option, but to force their entry into the house and take coercive
action with iron hand and in the process, they might have
committed excessive and, therefore, in view of this Court,
sanction for prosecution was mandatorily required as enshrined
under Section 197 of the Cr.P.C./Section 218 of the B.N.S.S.
33. As per the observations of the Hon’ble
Supreme Court, mere excess or overreach during the
performance of ones official duty, does not disentitle a public
servant from the statutory protection mandated by law. The
findings arrived at by the learned Magistrate that the police
persons were acting beyond their discharge of official duty,
cannot be accepted for the fact that the police personnel were
admittedly looking for accused persons of a different case, who
happened to be related to the complainant/opposite party No. 2
and were resident of the same house and the police had the input
that other miscreants, who were also involved in the earlier
offence, were hiding themselves at the said place and, therefore,
the police had to take action and, thus, it can be said that the
police officials (petitioners) were carrying their official duty and
the actions were reasonably connected in discharge of their
official functions.
34. It is a well settled law that when such
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allegations pertain to acts purportedly done in discharge of
official duty, no cognizance can be taken by the Magistrate
against a public servant without obtaining the previous sanction
of the Competent Authority, as mandated under Section 197 of
the Cr.P.C. The absence of such sanctions, therefore, render the
order taking cognizance against the accused public servant is
unsustainable in law.
35. This Court has elaborately discussed the case
laws on the point of sanction, and it has been seen that a test
was stated by the Hon’ble Supreme Court in the case of
Directorate of Enforcement (supra), wherein the Court has
observed that if the omission or neglect on the part of the public
servant to commit the act complaint of could have been made
him answerable for a charge of dereliction of his official duty
then, if the answer to such question is in the affirmative, it
maybe said that such act was committed by the public servant
while acting in the discharge of his official duty.
36. This Court also finds that the finding arrived at
by the learned Magistrate about the sanction being deemed to be
granted after the efflux of statutory period, cannot be held to be
legal as the very application for sanction was made before an
authority, who was not competent to grant sanction against the
Patna High Court CR. MISC. No.47802 of 2025 dt.18-02-2026
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petitioners and, therefore, the same is held to be not valid.
37. Accordingly, in view of the aforesaid
principles of law and taking into account the facts and
circumstances of the case, the present application with respect to
the petitioners, above-named, stands allowed and the impugned
order dated 07.05.2025, referred to above, with respect to them,
is set aside. Consequently, the complaint case, bearing
Complaint Case No. 336(C) of 2024, and all consequent
proceedings initiated pursuant thereto with respect to the
petitioners stand quashed.
38. However, the complainant/opposite party No.
2 shall be at liberty to seek sanction from the competent
authority in accordance with law.
39. Interlocutory application(s), if any, also stands
disposed off accordingly.
(Sourendra Pandey, J)
Praveen-II/-
AFR/NAFR AFR
CAV DATE 06.02.2026
Uploading Date 18.02.2026
Transmission Date 18.02.2026
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