ORDER
1. The short point that is involved in this case for determination is whether the Magistrate has committed an error in directing issue of process to these petitioners without prior sanction of the Government to prosecute them as contemplated under Section 197, Criminal Procedure Code and Section 170 of the Karnataka Police Act.
2. The learned Counsel has vehemently argued that the allegations made in the complaint if taken as true in totality, the offences alleged against these petitioners are during the course of discharging their official duty. Therefore, prior sanction from the Government was necessary without which the prosecution launched is invalid and calls for interference by this Court, lest it would lead to abuse of the process of Court. In support of his argument he also placed reliance on a decision in Bhagwan Prasad Srivastava v N.P. Mishra, wherein their Lordships of the Supreme Court have held:
'Section 197 is neither to be too narrowly construed nor too widely. 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. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned -- Matajog Dobey v H.C. Bhari, Baijnath v State of M.P. and Amrik Singh v State of Pepsu, rel. on'.
It is also held by Their Lordships of the Supreme Court in R. Balakrishna Pillai v State of Kerala and Another:
'Minister alleged to have supplied certain units of electricity to private industry without consent of Government -- Alleged criminal conspiracy had direct nexus with discharge of his official duties. Sanction forprosecution is sine qua non'.
3. Repelling this argument the learned Counsel for the respondent submitted that the offence committed by the petitioners herein is without nexus of their official duty and just because they were police officers during the relevant time, it cannot be contended at this stage by them that no criminal complaint can be launched against them. He submitted on the facts of the case, these petitioners have demanded money from the respondent for showing official favour. Further they have also suppressed the fact of arrest of the respondent thereby changing the official records and the respondent was not produced before the Court within 24 hours of his arrest, thereby they have wrongfully confined the respondent. Under those circumstances, no sanction is necessary to prosecute them. Besides that, it is for the petitioners to urge all these grounds before the Trial Court and this Court acting under Section 482, Criminal Procedure Code cannot quash the proceedings. In view of this argument, it is now necessary to refer to the facts of the case.
4. The respondent lodged a complaint under Section 200, Criminal Procedure Code before the J.M.F.C., Udupi, alleging that his daughter-in-law had filed a complaint with the Asst. Superintendent of Police, Udupi, to wreck vengeance against his son in view of the fact that he had lodged a complaint against her in Civil Judge's Court that she had taken away jewels, etc. The police, Udupi, registered a case in Cri. No. 113 of 1995 against him. In that connection, the 1st petitioner herein was demanding a sum of Rs. 1 lakh from the complainant's son and as he refused to pay, he was apprehended by the police on 7-8-1995 at about 11.30 p.m. and he was forced to bring money lest they would book a case against his family members. The complainant went to the police station requesting to release him but the police refused which constrained him on the advice of his Advocate to approach the ministers and higher ups. Subsequently, he was produced before the Court after 24 hours and also prepared a document to show that the complainant's son was arrested on 8-8-1995 and reported the same to the Magistrate on 9-8-1995 at about 9.30 p.m. Therefore, he claims that the petitioners have committed offences punishable under Sections 166, 167, 342 and 109, Indian Penal Code. The learned Magistrate has taken cognizance and directed to issue process to the petitioners which is questioned in this petition.
5. The learned Counsel at the very outset has submitted that the alleged offences have been committed by the petitioners admittedly as public servants. Therefore, it is mandatory that sanction under Section 197, Criminal Procedure Code and Section 170 of the Karnataka Police Act, has to be obtained before prosecution. In view of this argument, it is now necessary to refer to Section 166, Indian Penal Code, which reads:
'Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both'.
Similarly, Section 167 reads:
'Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both'.
From a reading of these two provisions, it is abundantly clear that to commit an offence under these Sections, the most important thing is that he should be a public servant. A 'public servant' is defined under Section 21 of this Act. It is not in dispute that these petitioners were working as police officers and they were public servants. Being public servants, they must make a false entry to attract the provisions of Sections 166 and 167, Indian Penal Code. The grievance of the complainant is that being public servants, they have manipulated the records to make the Court believe that the complainant's son was arrested only on 8-8-1995 and not on 7-8-1995, to avoid their responsibility to attract the relevant provisions of law the accused who was arrested by the police was produced before the Court within 24 hours. Therefore, even if the petitioners have made any entry in the register to suppress the truth for not producing the accused therein within 24 hours, they have done so as Government servants in discharge of their official duties. Therefore, sanction is a mandatory requirement to prosecute the petitioners. It cannot be said at this stage that they have manipulated the record not as public servants. The complainant has further stated that the petitioners have committed offence punishable under Section 342, Indian Penal Code, which reads:
'Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both'.
This also is a consequential offence as indicated in the complaint. As stated above, the complainant has alleged that these petitioners by manipulating the record, detained his son in police custody. They could do so only because they have manipulated the records and such manipulation was done as public servants. Therefore, it is the mandatory requirement of law that to prosecute any public servant, prior sanction is necessary unless it is exempted under any other circumstances.
6. In Pawan Kumar v Ruldu Ram and Another, the Punjab and Haryana High Court has held that prior sanction is necessary for joint prosecution of all the 3 offences. In that case, the petitioners were charged with the offences punishable under Sections 383, 500 and 504, Indian Penal Code and admittedly those petitioners were Government servants and under those circumstances, it was argued that it is not necessary to obtain sanction to prosecute public servants in respect of other offences. Considering the case, it was held that if one of the offences attract provisions of Section 197, Criminal Procedure Code, it is necessary to obtain sanction in respect of other offences which are connected to the main offence. In this case as stated earlier, the main offence is manipulation of documents coming under Section 166 or 167 of the Criminal Procedure Code which as admitted by the respondent have been committed as police officers in discharge of their official duties. Therefore, sanction is necessary to prosecute them under Sections 166 and 167 of the Act.
7. Consequently, sanction is also necessary in respect of the offence under Sections 342 and 109, Indian Penal Code as these offences alleged against them are not independent of Sections 166 and 167, as per the complaint. From the above discussion, it is clear that the alleged act of these petitioners falls within the scope and range of the official duties of the public servants viz., the petitioners concerned. Further they are alleged to have direct nexus with the discharge of their official duties. Therefore, the petitioners ought not to have been prosecuted. The learned Magistrate has not considered the case in the light of the requirement of the provisions of law and the principles enunciated by the Supreme Court, as indicated above. Therefore, I hold that the Magistrate has committed an error in directing issue of process to these petitioners without prior sanction. Accordingly, the question is answered in the affirmative. For the foregoing reasons, I hold that this petition deserves to be allowed, lest it would lead to abuse of process of Court.
8. In the result therefore, I proceed to pass the following: