The High Court · 2025

This Petitior coming on for hearing, upon perusing the Memorandum of Grounds of Crirninal Petition and upon hearing the arguments of Sri l\ilohd lsmail Khan Advocate for the Petitioner and lr/lrs. S. Madhavi, Assistant Public Prosecutor on behalf ofthe Respondent No.1 and of Sri C. Pratap Reddy, Advocate for the Respondent Nos.2 and 3. The Court made the following: ORDER ) THE HONOURABLE SMT. JUSTICE JUWADI SRIDEVI CRIMINAL PETITION No.2761 ot 2022 ORDER: This Criminal Petition is filed by the petitioner-de facto complainant assailing the order daled 24.09.2021 passed in Criminal Revision Petition No.23 of 2019 by the learned Principal Sessions Judge, Medak at Sangareddy (for short "the Revisional Court"), whereby the order dated 30.09.2019 passed in Crl.lt/1.P.No.733 of 20'19 in Crime No.19 of 2008 by the learned Judicial Magistrate of First Class, Zaheerabad (for short "the Magistrate"), taking cognizance against respondent Nos.2 and 3, was set aside. The petitioner seeks quashing of the order of the Revisional Court and prays that accused Nos.l and 2 be committed to trial for the offence punishable under Section 302 read with Section 34 lPC.

02. Heard Sri lVlohammed lsmail Khan, learned counsel for the petitioner, Sri C. Pratap Reddy, learned Senior Counsel for respondent Nos.2 and 3, and lVrs. S. lVladhavi, learned Assistant Public Prosecutor for the State. Perused the material record. 2

03. On the intervening night of 20l21.Ol;.2003, while the respondent No.3 and other police personnel v/ere on patrolling duty in Zaheerabad, they were informed that thieves had entered certain shops on proceeding to the spot, two persons were seen freeing. On entry into Rose Confectionary and Kirana Gelneral Stores, an altercation occurred. lt is alleged that one of the offenders the deceased tr/ohd. Shafi snatched hold of respondent No.3, stabbed hirn, snatched his rifte and pointed it at him. Respondent No.2 (a police officeri is said to have fired four rounds, resr,rting in the death of the deceased. lnitially, the Crime No.71 of 200:3 was registered and investigations were carried out. postmortem report attributed death to multipie bullet injuries. A IVagisterial Enquiry conducted by the Collector and District Magistrate, IVedak vide report dated 30.09 2004 recorded that the firing by the r-espondent No.2 was in protection of life and justified and not excessive

04. Subsequenfly, on a complaint/protest iry an NGO and later on protest by the present petitioner, Ctj_ClD took up investigation in Crime No..l9 of 200g. The CB_ClD final report recorded that the action was to be treated as ,action dropped, on the ) 3 ground that the firing was an act of private defence falling within the ambit of Section 97 of the lndian Penal Code. The petitioner filed a protest petitlon before the learned Magistrate, who on consideration of the protest petition took cognizance by order dated 30.09.2019 and directed issue of process. Thereafter, respondent Nos.2 and 3 filed Criminal Revision before the learned Sessions Judge, which was allowed by the Revisional Court by order dated 24.09.2021 setting aside the Magistrate's order. The petitioner has approached this Court challenging the Revisional Court's order.

05. Learned counsel for the petitioner contended that the CB-CID investigation was pedunctory and biased and there was sufficient material on record including statements recorded under Section '164 Cr.P.C. to warrant trial. The Magistrate was justified in taking cognizance on the protest petition and that the Revisional Court erred in setting aside the Magistrate's order. While praying to set aside the Order passed by the Revisional Court and to restore the cognizance order of the learned lVlagistrate, he relied upon a 4 decision in Bakhshish Singh Brar v. Smt. Gurmej Kaur and anothe/ wherein it was held at penultimate paragraph that: "if is necessary to protect the public servant in the discharge of their duties. They must be made immune from being harassed in c:riminal proceedings and prosecution, that is the rationale behind section 196 and section 197 of the C.r. p.C. But it is equally impoftant to emphasise thai rights of the citizens shou/d be protected and no eXrtesses should be permitted. "Encounter death,, has become too common. ln the facts and circumstance ctf each case trtrotection of public officers and pubtic seryanfs functioning in discharge of officiat duties and protection of private citizens have to be balanced by finding ouf as to what extent ar,d how far is a public servant working in discharge of his duties or purported discharge of his dutie:;, and whether the public sevant has exceeded his rimit. lt is true that section 796 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that fhe acfs complained of were done in the discharge of the official duties then the triat may have to be :;tayed unless sanction is obtained. But at the same time it has to be emphasised that cilminal trials should not be stayed rn ail cases at the preliminary stage because that will cause great damage to the evidence.'

06. Learned Assistant public prosecutor for the State_ respondent No.1 as well as learned Senior Counsel appearing on ' 1988 AIR 257 = jgBB scR (1) 450 ,.) 5 .behalf of the respondent Nos.2 and 3 submitted that there is no illegality or irregularity in the order passed by the learned Revisional Court. The Magisterial Enquiry, post-mortem report and the CB-CID final report together show that the firing was in plivate defence and no prima facie case of murder is made out against the respondent Nos.2 and 3. The respondent Nos.2 and 3 are public servants performing official duty when the incident occurred and, in any event, there is a reasonable nexus with official duty, hence sanction under Section 197 Cr.P.C. would be required before prosecution. The protest petition filed by the petitioner is not supported by material sufficient to require issuance of process. ln the statements of the family members of the deceased recorded under Section 164 of the Code of Criminal Procedure, they did not raise any suspicion against the respondent Nos.2 and 3. With the above submissions, the learned Senior Counsel while praying to confirm the orders passed by the learned Revisional Court, relied upon a decision in Gurmeet Kaur v. Devender Gupta2 wherein the Hon'ble Supreme Court held at Paragraph Nos.10, 23 and 32 that: "10. lt was therefore submitted that the sanction for prosecution within the scope and ambit of Section ' zoz+ trusc a67 6 197 of the CrpC, which is a mandatory requi.rement, had to be taken fron the State Government before the initiation of criminal proceedings even though the criminal proceedings in the instant case i.s under Sectlon 200 of the CrpC by way of a private complaint. ln this regard our attention uzeis a/so drawn to Sections 20 and 21 of the Act to contend that na suit, prosecution and other tegal proceedings would lie against any person in respect of anything which has been done in goocl r,aith or intended to be done in pursuance of the Act or the rules rnade thereunder. Furlher, no Civit Court would have any jurisdiction to enteftaiil or decide any questiort relating to matters under the Ad or the rules made thereunder. lt was submitted tttat the object and purpose of obtaining sanction under Section 197 of the CrpC is in order to proterct the bona fide acts of officers and officials done during the discharge of their officiat duties and that the salutary intent of the said provision must be realised and h<>nce, before initiation of any criminal proceeding, the condition precedent of obtaining a sanction is a mandatory requirement and hertce, in the instant case lhe absence of any sanction order being issued by the State Government has vitiated the very initiation of the criminal complaint aqainst the appellant herein. tn support of this submission, reliance was placed on the following decisictns of this Cottrt. (1) D.T. Virupakshappa ys. C. Subhash, q015) 12 SCC 231 ("D.7. Virupakshappa,,), (2) Abdul Arahab Ansari vs. Sfate of Bihar, (2'000) I SCC 500 ("Abdul Wahab Ansari") (3) Di. De,,,araja vs. Ouuars Sabeer Hussain, (2020) 7 SCC 69!, ("D. Devaraja") (4) Amod Kumar Kanth vs. Association 7 of Victim of Uphaar Tragedy and Anr., Crl. Appeal No.1359/2017 disposed of on 20.04.2023.

23. Learned senior counsel and learned counsel for the appellant have submitted the following judgments which indicate that Section 197(1) would apply prior to the initiation of a crimind proceeding under Section 197 of the CrPC. On the basis of the said judgments they have contended that it is during the discharge of her official duty that the demolition had taken place in the instant case and therefore, the necessity of an order of sanction being passed by the Government was a sine qua non prior to initiation of the criminal proceeding. The iudgments relied upon by the learned senior counsel for the appellant herein could be adverted to at this stage. g) tn D.T. Virupakshappa vs. C. Subhash, (2015) 12 SCC 231 ('D.7. Virupakshappa"), the appellant therein was accused in a private complaint before the Civil Judge (Junior Division) and JMFC, on which the learned Magistrate took cognizance, registered Criminal Case No.74 of 2009 and issued summons to the appellant therein. The offences atteged were under Sectlons 323, 324, 326' 341 , 120, 114, 506 read with Section 149 of the lPC. The appellant therein moved the High Couft under Sectlon 482 of the CrPC which was declined by the impugned order therein. The main contention of the appetlant therein was that the learned Magistrate could not have taken cognizance of the alleged offences and issued process to the appellant without sanction from the State Government under Secfion 197 of CrPC, and on that sole ground, the High Court should have quashed the proceedings. lt was alleged that the appeltant therein excercded in exerctsing his power during investigation of a criminal case and assaulted the respoideni therein in order to extract some information with regard to the de,ath of a person, and jn that connecfion, tne resporrdent therein was detained in the police station for some time. Therefore, the altegation of the appellant therein hac) an essenfra/ cinnection with the discharge of the official duty and th,=refore, the previous sanction was necessa ry The lssue of "police excess" during investigation ind requirement of sanction for prosecution in that regard, uzas a/so a subject matter in State of Orissa ys. Ganesh Chandra Jew, (2004) 8 SCC 40 (,Ganesh Chandra Jew") which was relied upon. There was also reliance on Om prakash ys. Stale of Jharkhand, (2012) 12- SCC 72 (,,Om prakash"). The Court hetd that the ratio of the aforesaid two judgments squaret:y apply to the case of the appeilant therein and having regard to the factual matrix of that case, it was observed that the offensive conduct was reasonably connected with the per-formance of the official duty of the appeltant therein. Therefore, the learned Magistrate could not have taken cogni2qnss of the :ase without the previous sanctii of the State Government and the High Court had rrrssed this crucial point in the impugned order. This Court observed that in case such sanction is obtained and the same is produced before the learned Magistrate, the matter could be proceeded turlher before the tearned Magistrate in accordancct with law. p) ln Abdut Wahab Ansariys. Sfafe of Bihar, (2000) 8 SCC 500 ("Abdut Wahab Ansari,,), the facts were .t that the son of the deceased, who was respondent No.2 therein, had filed a complaint before the Chief Judicial Magistrate, alleging commission of offences by the appetlant therein under Sections 302, 307, 380, 427, 504, 147, 148 and 149 of the IPC as well as Sectlon 27 of the Arms Act. The Chief Judicial Magistrate was of the opinion that the provisions of Section 197 of the CrPC would have no application to the facts of the case. Further, there was sufficient evidence availabte to establish a prima facie case and therefore had directed issuance of non-bailable warrants against the appellant therein and other accused persons. The appellant therein moved the High Court under Section 482 of the CrPC praying' inter alia, that no cognizance could be taken without a sanction of the appropriate Government, as required under Section 197 of the CrPC as fhe appeltant was discharging his official duty pursuant to an order of the competent authority. The High Court opined that all the questions could be raised at the time of framing of charge and disposed the application filed by the appellant therein. Before this Court, two questions were raised and it was observed that previous sanction of the competent authority being a precondition for the Court taking cognizance of the offences if the offences alleged had been committed by the accused was in discharge of his officiat duty, the question touched upon the jurisdiction of the Magistrate in the matter of taking cognizance and therefore, there was no requirement that an accused should wait for taking such plea titl the charges were framed. Placing reliance on certain declsions of this Courl, it was observed in this case that the appellant therein had 10 been drrected by the Sub_Divisionat Magistrate to be present with police force and re'm<>ve the encroachment in question and in the caurse of discharge of his duty to controt the mob, he had directed for opening of fire, which was in exetrcise of the power conferred upon him and the duty inlposed upon him under the orders of the Mallistrate. Hence, Secfion 197(1) ot the CrpC apptieii O tne facts of the case. Since no sanction ha,j been taken, the cognizance by the Magistrate wa:; bad in law and therefore, the same was quashed tlua the appellant therein and the appeal was attoweai Q ln D Devaraja vs. Ouzais Sabeer Hussain, (2020) 7 SCC 690 ("D. Devaraja"), the facts were that the High C:ourt had disposed of the application under Sectiorr 482 of the CrpC which was filed for quashing the order passed by the Additionat Chief Metropolitan Magistrate il1, Bengaluru City in taking cognizance of a private complaint, inter aiia, itgainst the appellant-accused therein, for olfences punishable under Sections 120_8, 220, 32]jt, 330, 348 and 506-B read with Section 34 of the lpC. The High Court did not quash the impugned order of the Additional Chief Metropolitan Magistrate dated 27.12.2006, but remitted the complaint back to the learned Additional Chief Metropolitan Magistrate instead, with, inter atia, tiberty to the apieltant_ accused therein to appty for discharge. The question considered by this Couri was wnlther tne learned Magistrate could, at att, have taken cognizance against the appellant therein, tn the private complaint, in the absence of a sa,nction under Section 197 of the CrpC read with Section 170 of the Karnataka police Act, 1963, as ametnded 11 by the Karnataka Police (Amendment) Act, 2013' and if not, whether the High Couti should have quashed the impugned order of the Magistrate concerned, instead of remitting the complaint to the ly'tagistrate concerned and requiring the appellant' accused therein to appear before him and file an application for discharge. Referring to several judgments of thls Coutt, lndira Baneriee' J. speaking for the Bench obserued in paragraph 66 to paragraph 71 as under: "66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an officipt duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upight police officer the confidence to discharge his officiat duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Secfion 170 of the Karnataka Police Act' At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liabte for prosecution, he can be prosecuted with sanction from the appropriate Government. 67. Every offence committed by a police officer does not attract Secfion 197 of the Code of Criminal Procedure read with Sectlon 170 of the Karnataka Police Act. The protection given under Section 197 of the Crimind Procedure Code read with Section 170 of the Karnataka Police Act has its limitations' The protection is available only when the alleged 12 act done by the public servant is reesonably connected with the discharge of his official tluty and officiat duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulgrng in domestic violence would certainty not be entiiled to protection. However, if an act is connected to the discharge of officiat duty of investiEation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act ntay be. 68. lf in doing an official duty a policeman has acted rn exc.ess of duty, but there is a rea:;onable connection between the act and the per.formiance of the official duty, the fact that the act ailege,d is in excess of duty will not be ground enough to deprive the policeman of the protection of thi gove,n'ment sanction for initiation of criminal action against him. 69. The language and tenor of Sectioi 197 of the Code of Criminat procedure and Section 17A of the Karnataka potice Act makes it absotutety clear that sanction is required not only for acts dctne in discharge of official duty, it is a/so required for an act purported to be done in discharge of offici,zt duty and/or act done under colour of or rn excess c,f such duty or iauthority. 70. To decide whether sanction is necessary, the test is whether the act is totatty unconnecte,T with official duty or whether there is a reasctnable connection with the official duty. tn the case of an act of a policeman or any other pubtic servant unconnected with the official duty there can ,5e no IJ question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law. 71. lf the act alteged in a complaint purpofted to be fited against the policeman is reasonably cc)nnected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Secflon 170 of the Karnataka Police Act." lt was concluded that the High Courl had erred in law refusing to exercise its iurisdiction under Section 482 of the CrPC fo sef aside the impugned order of the learned Magistrate taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the court to take cognizance. This Court allowed the appeal and set aside the judgment and order under appeal and the comptaint was quashed for want of sanction. !) ln Amod Kumar Kanth vs. Association of Victim of uphaar Tragedy, Criminal Appeal No.1359 of 2017 disposed of by three-Judge Bench of this Court on 20.04.2023 of which one of us (Nagarathna, J.) was a member, it was observed that the question of cognizance being taken in the absence of sanction and thereby Secflon 197 of the CrPC being ftouted is not to be conflated and thereby confused with the question as to whether an offence has been committed. The salutary purpose behind Secflon 197 of the CrPC is protection being 14 accorded to public seryanfs. ln paragraphs 2g, 2g and 31 , tt was observed as under: '(28) The State functions through its ctfficers. Functictns of the State may be sovereign or not sovereign. But each of the functions perfonned by every public servant is intended to achieve public good. lt may come with discretion The exercise of the power cannot be divorced from the context in which and the time at which the poweris exr:rcrsed or if it is a case of an omission, when the ornission takes place. (29) The most important question which must be posed and answered by the Court when deating with the, argument that sanction is not forthcoming is whether the officer was acting in the exercise, of his official drrties. /f goes further. Even an officetr who acts in the purported exercise of his official pctwer is given the protection under Section 1g7 of the Cr.P.C. fhls is for good reason that the officer when he exercrses the power can go about exercising the same fearlessly no doubt with bona fides as pubtic functionaries can act onty bona fide. tn fac:t, the requirement of the action being bona fide is not expressly stated in Secfion 197 of the Cr.p.C., though tit is found in many other statutes protecting public seruants from action, civil and criminal against them. x x x x (31) One ground which has found favour with the High Couft against the appellant is that the appellant, according to the High Courl, could raise fhe lssue before the Magistrate. Here we may notice one aspect. When the question anses as to whether an act or omission which constitutets an 15 offence in law has been done in the discharge of officiat functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Courl which will make the posiiion clear and a detayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the officiat duty by the public seruant, then for the Courl to not accept the obiection against cognizance being taken would clearly defeat the salutary purpose which underlies Secfion 197 of the Cr.P.C. lt all depends on the facts and therefore, would have to be decided on a case-to-case basls. " It was concluded that learned Magistrate had erred in the facts of the said case in taking cognizance against the appellant therein contrary to the mandate of Section 197 of the CrPC and on that short ground atone, the appeal was allowed and the proceedings challenged in Section 482 were quashed. However, it was observed that the same would not stand in the way of the competent authority taking a decision in the matter and/or granting sanction for prosecuting the appellant therein in accordance with law.

32. We find that the facts of the present case would clearly indicate that the appellant herein who is accused of carrying out the demolition was doing so within the scope and ambit of her authority. We find that this is not a case where the appellant herein carried out the demolition dehors any legal backing or basis; neither was the said act of carrying out of 16 t-. the demalition outsicle the scope of her authcrity as the District Town planner in the Enfor,:ement Division. The appellant was carrying out the orders of tlte superior officers. There is a correlation between the act of demolition and the disch,arge of official duty. The demotition was carried out during the course of per-formance of appettant's official duties. The fact that an application was filed seeking regularisation of the construction put up by Lhe first respondent would indicate that even accor<ling to the first respondent, there was a digressictn and other irregularities in the construction put up which required regularisation. However, the contention of learned counsel for the first respondent is tha,l when such an application was pending, the appellant had no authority to demolish the construction. We do not think that such an argument would impress us for the reason that the mere pendency cf the application seeking regularisation before another depaftment would have been an impediment for carrying out the demolition inasmuch as there was sufficient nasis for doing so and was done uno,er the orders of the superior authority and not independenily as such. The fact that an appti:ation for regularization of the construction put up was fited implied that there was a deficiency/irregularity in the construction put up by the respondent No.1 herein. The impugned demoiition cannot a/so be termed as an "excess". " 17

07. Further, he relied upon a decision in Devaraia v. Owais Sabeer Hussain3 wherein the Hon'ble Supreme Court at Paragraph Nos.61 and 68 held that "61 . ln Om Prakash and others v. Sfafe of Jharkhand and Anr. (supra) this Coutt held: "34. tn Mataiog Dobey (AIR 1956 SC 44) the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat simitar expression "any offence alleged to have been committed by him while acting or purpofting to act in the discharge of his official duty" occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falts within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fancifut ctaim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh (AlR 1939 FC 43) and observed that at first sight, it see/rs as though there is some support for this view t 120201 z Supreme Court Cases 695 18 .... i: l?ri Ram Sinsh (AtR lsss FC 43) ,because Sulaiman, J. has observed in the said judgment that as fhe prohibition is against the institution ilsefi rts a.pplicability must be judged in the first instance at the earllest stage of institution and varadacrtatriar, J. has a/so stated that; (Matajog Dqbey "r,r" 6tA 7956 SC 44), AtR p. 49, para 20) "20. ... ilte question must be determintld with reference to the nature of the allegation:; made against the pubtic servant in the criminal proceedings." The legal position rs fhus setiled by the Con:;titution Bench in the above paragraph. Whether sanction is necessary or not may have to be determine,d from sfage to sfage. lf, at the outset, the o,efence esfab/tshes that the act purported to be don,e is in exec.uticn of officiat duty, the complaint will ttave to be disnrtssed on that ground.

42. lt is not the duty of the police officers to kilt the accused merely because he is a dreaded criminal. Undoubtedty, the police have to arrest the ac.cused and put them up for trial. This Court has repeatedly admonished trigger_ happy police personnel, who tiquidate criminars and project the incident as an encounter. Such h.illings must be deprecated. They are not recognised as legal by our criminal justice administratiJn system. They amount fo Sfate-spon sored terrorism. But, one cannot be oblivious of the fact that there dre rl€S€s where the police, who are per.forming their dut.y, are attacked and killed. There is a rise in such incidents and iudicial notice must be taken of this fact, ln such circumstances, white the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and propetly of the people and to protect themselves against attack- Unless unimpeachable evidence is on record to estabtish that their action is indefensible, malafide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. tt affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception. 43. ln our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in fhls case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. ln Zandu PharmaceuticatWorks Ltd. K2005) 7 SCC 122lthis Courl has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of courl but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of courl, the power under Section 482 of the Code must be exercised and proceedings must be quashed. tndeed, the instant case is one of such caseswhere 20 t the proceedings initiated against the potice personnel need to be quashed.,' 68. lf i,n doing an official duty a policeman ha,s acted rn exoess of duty, but there is a reasonable conne<:tion between the act and the per_formance of the officiat duty, the fact that the act ailegttd is in excess of duty will not be ground enough to deprive the pctliceman of the protection of government sanction for initiation of criminal action again:t him.,, 08 rt rs pertinent to note that when a Mag strate receives a protest petition against a police closure report, he is duty_bound to examine and consider the material placed before him. lf, upon such consideration, the rearned tVragistrate finds sufficient materrar to proceed, he may take cognizance of the offence and issue process However, the exercise of such power cannot be mechanical or routine where the materiar before the rearned [Vra5listrate incruding the investigation report, magisterial enquiry, medical evidence, and statements recorded under Section 164 Cr.p.C. reasonably demonstrates that the acts attributed to the accused fa, within the ambit of private defence or othenvise negate the commission of the alleged offence' or where the rerevant sanction contemprated under Iaw is absent, the Magistrate is not justified in issuing process merely on the basis of the protest petition. The order of the 21 tt/lagistrate must be founded on prima facie material capable of sustainlng the allegatlons

09. ln the present case, the tt/agisterial Enquiry Report dated 30.09.2004, conducted by the Collebtor and District tVlagistrate, records the conclusion of the Executive Magistrate that the firing by respondent No.2 was in protection of life, justified, and not excessive. The post-mortem report attributes the cause of death to multiple bullet injuries. lt is significant to note that the tVlagisterial Enquiry constitutes an independent administrative inquiry which, together with the police investigation in Crime No.71 of 2003, the medical records, and the CB-CID investigation culminating in a closure report recording "action dropped," forms part of the primary material. Furthermore, although certain witnesses recorded their statements under Section 164 Cr.P.C., the cumulative effect of the materlal on record indicates that the deceased was in an aggressive posture, a struggle ensued, and the rifle of respondent No.3, a constable, was allegedly snatched and pointed at him. The Magisterial Enquiry thus concluded that the firing was an act in exercise of the right of private defence and not excessive, and the investigating agency (CB-ClD), upon re-investigation, filed a final 22 repoft treating the incident as one not wiarranting criminal prosecution,

10. -fhe Magistrate, before taking cognizance, is required to record reasons demonstrating that the material placed before her was such that a reasonable person could infer the existence of a prima facie case warranting triar. rn the present case, the Magistrate appears to have reried onry on the protest petition without considering the CB_ClD final report, the Magisterial Enquiry, and other relevant materiars avairabre on record. The Revisionar court, however, upon consideration of the entire matr3rial, has righfly concluded that there was no substance in the protest petition to justify issuance of process.

11. The respondent Nos.2 and 3 are police officers. Where criminal alregations arise out of acts done in discharge of official duty or in connection with the performance of officiar duty and there is a reasonable nexus between the act complained of and the official duty, the prosecution of a public servant requires prror sanction as contemplated by law, ln the present ciase the material on record particularly the Magisterial Enquiry and the nature of the incident which occurred while the police personnel were on patrolling duty and engaged in apprehension of offenders, shows such nexus. ln those circumstances, the absence of required sanction under Section '197 of Cr.P.C. is a relevant circumstance against proceeding with criminal prosecution. Even the question of sanction to be considered ultimately by a trial court, the absence of such sanction is a factor which the learned Magistrate should have borne in mind when considering whether to take cognizance at the stage of a protest petition.

12. The contention of the petitioner that the firing of four rounds necessarily indicates use of excessive force is not borne out by the material on record. The IVlagisterial Enquiry specifically evaluated the sequence of events and concluded that the response was justifiable. lt is well settled that whether the force used in self- defence was excessive is a mixed question of fact and law, to be determined in the light of the totality of circumstances; such a question ordinarily warrants a full-fledged trial only where there exists credible material forming a reasonable basis to believe that the accused exceeded the limits of self-defence. ln the present 24 case, the material on record does not discrose aLny such credible basis. ln D. Devaraja,s case referred above, the llon,ble Supreme courl held trat if in discharging an officiar duty a poriceman has acted in excess of such duty, but there exists a reasonable connection between the act and the performance of the official duty, the fact that the act aileged is in excess of duty ruill not, by itself, deprive the polrceman of the protection of prior sanction required for initiation of criminal proceedings. Therefore, sancti,ln under Section 197 Cr.P.C. is mandatory, and in the absence of such sanction, the respondent Nos,2 and 3 cannot be subjected to criminal prosecution.

13. Learned Senior Counsel for the rerspondents has pointed out that the petitioner lvas, in large measure, a third party and not an eyewitness to the incident; the compiaint appears to have been initiated in part following newspaper reports. Even assuming for a moment that the petitioner had locus; to file a protest petition, the question of locus is not determinative where the material on record is prainry insufficient to form a prima facie case. ln short, the petitioner,s protest petition does r.tot supply the 25 independent material necessary to dislodge the conclusion recorded by the lr/agisterial Enquiry and the CB-ClD final report'

14. Upon a careful perusal of the record, including the lVlagisterial Enquiry Report, the CB-ClD final reporl, the post- mortem report, and other material documents, it is evident that the cognizance taken by the learned lVlagistrate against respondent Nos.2 and 3 on the basis of the protest petition was unsustainable, inasmuch as there was no prior sanction as contemplated under law. Furthermore, there was no credible material on record to form a prima facie opinion that respondent Nos.2 and 3 had committed the offence of murder; on the contrary, the material strongly indicates t I { thattheincidentoccurredincircumstancesofprivatedefencewhile the police officers were discharging their official duties' The Revisional Court, having undertaken an appropriate review of the entire record, was therefore justified in setting aside the order of the learned tt/laglstrate, as the said order suffered from procedural irregularitY.

15. Having regard to the facts and circumstances of the case, and in light of the settled principles of law laid down by the 26 Hon'ble Supreme Court in the decisions referreld to above, this court is of the considered view that the learned Mragistrate erred in taking cognizance against respondent Nos.2 and 3 in the absence of sanction as mandated under Section .l 97 Cr.p C., and that the learned Revisional court righfly set aside the said order. Accordingiy, this Court finds no grounds in the present Criminal Petition to interfere with the order passed by the le;rrned Revisional Court. 16 Accordingly, this Criminal petition is dismissed As a secluel pending miscellaneous applicatic,ns, if any, stand closed Sdi. NAYANI CHANEIRA SEKHAR RAO ?Efl,\Y REGISTRAR I //TRUE COPY' I i \ \t \i SECTION OFFICER One Fair Copy to the SMT JUSTICE JUVVADI SRIDEVI (For Her LadyshiPs kind Perusal) To, 'l . The Judicial First Class Magistrate at Zaheerabad, ltledak 2. The Station House Officer, ClD, Hyderabad Police Station Hyderabad 3. 11 LR Copies 4, The Under Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi

5. The Secretary, Advocates Association Library, High Court for the State of Telangana, H gh Court Buildings at Hyderabad

6. Two CCs to Pubiic Prosecutor, High Court for the State of Telangana at Hyderabad [OUT]

7. One CC to Sri Mohd lsmail Khan, Advocate IOPUC] 8. One CC to Sri Pulimamidi Shashidhar Reddy, Advocate OPUCI 9. Two CD Copies YA- HIGH COURT DATED: 24109t2025 ORDER CRLP.No.2761 ot 2022 ,; _,:\ rf i; I [ 4 s[r 20fi .'l 5 ! I i-1-r ...,," . -----=-l!E l I I I DISMISSING THE CRIMINAL PETITION ',\ ..'rP(to z{ \O\d: