Holding

No cognizance of offences can be taken against police officers for acts done while discharging their official duty without a proper government sanction under Section 197 of the Code of Criminal Procedure.

Summary

Kamla Prasad Singh filed a complaint alleging that police officers raided his house without a warrant, assaulted his wife, abused occupants and seized his property. The Chief Judicial Magistrate, after an inquiry under Section 202 of the CrPC, found that the raid was conducted under a valid warrant and supervised by an Executive Magistrate, and that there was no evidence of assault or misappropriation, concluding the officers acted while discharging their duty. Accordingly, the magistrate held that cognizance of the alleged offences could not be taken without a sanction under Section 197 of the CrPC. The Patna High Court reversed this view, directing the magistrate to take cognizance, holding that only the complaint’s allegations needed consideration. On appeal, the Supreme Court held that the magistrate was correct; the officers’ actions were within the scope of official duty and, without government sanction, no cognizance could be taken. The appeal was allowed, setting aside the High Court and magistrate orders.

Issues considered

Whether a magistrate can take cognizance of offences alleged against police officers without a sanction under Section 197 of the CrPC when the acts were performed in discharge of official duty.
Whether material collected during a Section 202 inquiry can be considered beyond the specific allegations in the complaint.
Whether the presence of a valid search warrant and supervision by an Executive Magistrate negates the requirement of sanction under Section 197.

Legislation cited

Code of Criminal Procedure, 1973s. 102, s. 190, s. 197, s. 202
Indian Penal Code, 1860s. 1208, s. 334, s. 380, s. 426, s. 451, s. 452, s. 453, s. 456, s. 457, s. 458

Subjects

sanction under s.197cognizancepolice officialssearch warrantexecutive magistratesection 202 inquiryCrPCgovernment sanctionmagistrate jurisdiction

Judgment

STATE OF B!HAR A
,.I_ v.
KAMLA PRASAD SINGH AND ORS.

MAY6, 1998
•
[G.T. NANA VAT! AND S.P. KURDUKAR, JJ.] B
'

Code of Criminal Procedure, 1973 :

Sections 190, 197 and 202-Prosecution ofpolice officials-Cognizance
of offence by Magistrate-Requirement of sanction of Government- c
Magistrate, after inquiry uls 202, coming to conclusion that police officials
appeared to have acted while discharging or purporting to discharge their
duty-Held no cognizance of alleged offences could be taken without a
proper sanction by the Government.

A complaint was filled by respondent No. 1 in the Court of Chief D
Judicial Magistrate, Patna alleging that a police party comprising respondents
b.. no. 2 to 4 raided his house without any warrant of search and assaulted his
wife, abused her and other persons present in the house and took away
certain articles belonging to him. The Magistrate, after holding an inquiry
under s. 202 of the Code of Criminal Procedure, 1973 found that the raid
E
was carried out by the three police officials under the supervision of an
Executive Magistrate and since the acts alleged appeared to have been
committed by respondents 2 to 4 while discharging their official duty, no
cognizance of the offences could be taken in absence of sanction under s.
197 of the Code. On a revision petition filed by respondent no. 1, the High
,_ Court held that no sanction under s. 197 of the Code was required, and F
.. directed the Magistrate to hold further inquiry. Consequently, the Magistrate
took cognizance of the offences and directed issuance of process against
respondents no. 2 to 4. The State challenged the order of the High Court in
the present appeal.

It was contended for the State that the High Court erred in holding G
that the Magistrate was required to consider only the allegations made in
the complaint and no other material, and that the evidence collected during
the inquiry under s. 102 Cr. P.C. supported that allegations made in the
complaint.
Allowing the appeal, this Court H
201
202 SUPREME COURT REPORTS [1998] 3 S.C.R.

A HELD : I. I. No cognizance of offences alleged to have been committed
by respondents 2 to 4 could be taken without a proper sanction of the
Government, as the search was made by them after obtaining a proper
warrant, and there is no credible material to show that they had either
abused or assaulted the wife of the complainant or any other persons or
B misappropriated any article belonging to the complainant. What they had
done appears to have been done while discharging or purporting to discharge
their duty. (205-F-GJ

1.2. The High Court while recording the finding that the version of
the occurrence stated in the complaint has been supported by the prosecution
C witnesses does not appear to have gone through the evidence of those
witnesses. The order of the Magistrate does not contain anything which can
support the finding recorded by the High Court. On the contrary the
Magistrate has observed that there is no evidence to show that the wife of
the complainant was assaulted or abused by anyone of the respondent 2 to
D 4. (205-B-C(
J .3. The High Court was clearly wrong in holding that the Magistrate
should have considered only the allegations made in the complaint to find out
whether the alleged acts were committed by respondents 2 to 4 while
discharging or purporting to discharge their duties. The High Court failed
E to appreciate that the material collected during the inquiry discloses that
material facts were suppressed by the complainant and some of the allegations
made in the complaint were not correct. (204-G-H; 205-A-D-EJ

1.4. During the inquiry under s. 202 Cr. P.C. it had come on record
that an offence was registered against the complainant and respondent no.
F 2 had obtained a warrant for the arrest of the complainant and search of his
premises. The raid was carried out under the supervision of an Executive
Magistrate. Proper lists regarding search and seizure were made and copies
there of given to the brother-in-law of the complainant No complaint of any
type was made by anyone to the Executive Magistrate supervising the acts
G of respondents 2 to 4. All this evidence could not have been ignored by the
Magistrate while considering the allegations made in the complaint.
(204-F-HJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 769 of 1989.

H From the Judgment and Order dated 23.4.87 of the Patna High Court in
STATEOFBIHAR v. K.P. SINGH [NANAVATl,J.] 203

Criminal Revision No. 799/1982. A

Pramod Swarup for the Appellant.

Anil Kumar Jha and Mr. Akhilesh Kumar Pandey for the Respondents.

The Judgment of the Court was delivered by
B
NANA VA TI, J. This appeal is directed against the judgment and order
passed by the Patna High Court in Criminal Revision No. 799/1982.

Respondent No. I Kam la Prasad Singh has filed a complaint in the Court
of Chief Judicial Magistrate, Patna alleging that on 30.3.1982 a Police Party
headed by Respondent No. 2 raided his house without obtaining any warrant C
of search and while carrying out the search Respondent Nos. 2 to 4 assaulted
his wife, abused her and other persons present in the house and took away
certain articles belonging to him. Thus Respondent Nos. 2 to 4 have committed
offences punishable under Sections 451, 452, 453, 456, 457, 458, 380 334, 426
and 1208 IPC.
D
The learned Magistrate after recording the statement of the complainant
felt some doubt about the correctness of his version and, therefore, decided
to hold an inquiry under Section 202 Criminal Procedure Code. During the
inquiry the complainant, his wife and his two brothers-in-law who were stated
to be present at the time of incident, were examined. The complainant refused
to examine Shri. J.C. Das, Executive Magistrate who was also present when E
the raid was carried out. After considering the evidence thus gathered,the
learned Magistrate held that there is no evidence to show that there was an
assault on his wife or that respondents 2 to 4 had misbehaved with her or
any other person in the house. The learned Magistrate also found that the
raid was carried out by the three police officers under supervision of Shri J.C. F
,_ Das, the Executive Magistrate. He also found that search and seizure lists
were prepared and copies thereof were given to Nagendra Kumar, brother-in-
law of the complainant who was present at the time of the raid. It appeared
to the learned Magistrate that the acts alleged to have been committed by
respondents 2 to 4 were done under the colour of their office and while
discharging their official duty. He, therefore,.held that no cognizance of any G
of the offences could be takeri against them in absence of the required
sanction under Section 197 of the Code.

Aggrieved by this order, the complainant filed a criminal revision petition
before the High Court. The High Court without considering the relevant
aspects pointed out by the learned Magistrate and without going through the H
204 SUPREME COURT REPORTS [1998] 3 S.C.R.

A record itself held that "version of the occurrence stated in the complaint has
been supported by prosecution witnesses. It cannot also be said that even
if the evidence is accepted to be correct, no offence is made out. "The High
Court further observed that only the allegations made in the complaint should
have been considered bythe learned Magistrate and the allegations clearly
I
B show that the police officers cannot be said to have acted like that in
discharge of their duties. It, therefore, held that no sanction under section 197
Cr.P.C. was required. The High Court allowed the Revision Application and
directed the Magistrate to hold further inquiry in accordance with law. Pursuant
to the decision ofthe High Court the learned Magistratge on 22.8.1987 took
cognizance of the offences and directed issuance of process against respondent
C Nos. 2 to 4.

The State has filed this Appeal against the order passed by the High
Court. Respondent Nos. 2 and 4 have filed an application for transposing
them as Appellants. Therein it is stated that Respondent No. 3 has died
during the pendency of this appeal.
D
What is contended by the learned counsel for the State is that the High
Court committed an error of law in holding that the learned Magistrate was
required to consider only the allegations made in the complaint and no other
material. He also submitted that High Court has erroneously held that the
E evidence collected during the inquiry under Section 202 supports the
allegations made in the complaint.

It was no, disputed by the learned counsel for the complainant that
during the inquiry under Section 202 it has come on record that an offence
was registered against the complainant on 30.3 .82 and Respondent No. 2 had
F obtained a warrant for the arrest of the complainant and search of his premises.
Admittedly, the raid was carried out under the supervision or Shri J.C. Das
an Executive Magistrate who was deputed by the District Magistrate to
supervise the raid, on a request made to that effect by respondent No. 2. The
evidence further shows that proper lists regarding search and seizure were
G made and copies thereof were given to Nagendra. No complaint of any type
was· made by anyone to Shri J.C. Das who was supervising the acts of
respondent Nos. 2 to 4. All this evidence could not have been ignored by
the learned Magistrate and the High Court was, therefore, clearly wrong in
holding that the learned Magistrate should have considered only the
allegations made in the complaint to find out whether the alleged acts were
H committed by respondents 2 to 4 while discharging or purporting to discharge
STATE OF BIHAR v. K.P.SINGH [NANAVATI, J.] 205

their duties. A

The High Court had also recorded a finding that the version of the
occurrence stated in the complaint has been supported by the prosecution
witnesses. It appears from the judgment of the High Court that it had not
gone through the evidence of those witnesses. That becomes clear from the
observation made by the High Court in paragraph 3 of the judgment that, "it B
appears from the order in which the evidence has been set out in extenso".
The order of the learned Magistrate does not contain anything which can
support the finding recorded by the High Court. On the contrary the learned
~ Magistrate has observed that there is no evidence to show that the wife of
the complainant was assualted or abused by anyone of respondents 2 to 4. C
There was also no material to show that any article belonging to the
complainant was misappropriated by any of respondents 2 to 4. On the
contrary the material discloses that seizure lists were prepared and copies
·thereof were given to the brother-in-law of complainant who was present.
Thus the material collected during the inquiry discloses that material facts
were suppressed by the complainant and some of the allegations made in the D
complaint were not correct. The High Court failed to appreciate that the
-~ search was made by respondents 2 to 4 after obtaining a warrant from the
competent authority and the Executive Magistrate was kept present to
supervise the raid. No complaint whatsoever was made to him regarding any
misbehaviour or the illegal acts now alleged in the complaint. Surprisingly the E
complainant who had returned to his house while the search was being made,
did not enter his house upon knowing. that the police were conducting a
search and quietly went away from that place.

As the search was made by respondent 2 to 4 after obtaining a proper
warrant for that purpose and as there is no credible material to show that they F
had either abused or assaulted the wife of the complainant or any other
person what they had done appears to have been done while discharging or
purporting to discharge their duty. Therefore, no cognizance of the alleged
offences could be taken without a proper sanction of the Government. We,
therefore, allow this appeal, set aside the judgment and order passed by the
High Court and also the order dated 22.8.1997 passed by the Magistrate. G
R.P. Appeal allowed.