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The Karnataka High Court has held that illegal detention as well as custodial violence do not constitute ‘public duty’ and thus no protection under Section 197 CrPC can be claimed

Team SoOLEGAL 15 Jun 2021 2:30pm

The Karnataka High Court has held that illegal detention as well as custodial violence do not constitute ‘public duty’ and thus no protection under Section 197 CrPC can be claimed

In the case S. Shivakumar v. the State of Karnataka, (2000) 10 SCC 485, The Karnataka High Court stated that illegal detention of an innocent person and custodial violence, torture, these acts can’t be in connection with the discharge of public duty by a police officer. Justice HP Sandesh ruled that if a public servant is misusing its authority for doing things that aren't otherwise legal, such acts aren't protected by Section 197 of the Code of Criminal Procedure and must be considered separate from the duties that a public servant is required to discharge.

"When an innocent person is taken to the police a station without being arrested and detained illegally in custody, and he is tortured even though he has no criminal history, the act of the police officers cannot be described as an act done in connection with the discharge of public duty because it is nothing more than a misuse of powers vested in the petitioners, who are the police officers." As the order said.

As a result, the Court dismissed a petition filed by seven police officers under Section 482 of the Criminal Procedure Code, seeking to quash proceedings before the Principal District and Sessions Judge, Chickballapur, for offenses punishable under Sections 167, 330, 342, 348, 307, and 149 of the Indian Penal Code.

Accused No. 2 along with few constables came to the complainant's residence and demanded that he bring his kid to the police station to be questioned about a gold stealing case. It was revealed that one of the complainant's friends had contacted him on his cellphone to alert him that he had got a call from Circle Inspector, accused No.1, who has inquired about the complainant and his reputation. The complainant and his son went to the police station. His son was illegally detained and was brutally tortured, assaulted for 2days. He was released after threatening him to not disclose the arrest and torture to anybody, but if he does reveal the same then they will put him behind the bars and will also foist false case against him for robbery and dacoity.

After few days his son suffered from depression and also tried to commit suicide. After this incident, a complaint was filed against the police officials but no case was registered. The petitioners relied on Section 197 CrPC, which states that government permission is necessary before a court can take cognizance of an alleged act committed by a public worker while performing official duties.

After considering the opposing arguments, the Court dismissed the petitioners' claim that the Magistrate proceeded to record the sworn declaration without taking cognizance. The fact that the learned magistrate must take cognizance before recording the sworn declaration is undisputed, according to the Court. However, the Court stated in Bangalore Metropolitan Transport Corporation, Bangalore v. D Kempanna, 2006 SCC OnLine Kar 118, that if the order does not disclose taking of cognizance and the Magistrate records the sworn declaration, that would be sufficient to generate a presumption that the Magistrate had taken cognizance.

In this case, the protection provided by Section 197 of the CrPC or Section 170 of the Karnataka Police Act cannot be conferred to the petitioners," the Court stated. However, as previously stated, if a public servant's authority is misused for doing activities that are not otherwise authorized by law, such activities are not protected by Section 197 Cr.P.C. must be considered separate from the tasks that the servant is expected to complete or execute. As a result, no protection may be requested by the public worker in the event of prosecution for such excesses or misuse of authority,” the Court stated.

"As a result, I do not see any validity in the petition to utilize the powers under Section 482 of the CrPC in quashing the proceedings instituted against the petitioners herein," the Court stated in dismissing the petitioner's claim.



Tagged: Karnataka High Court   illegal detention   public duty   Section 197   Justice HP Sandesh   Code of Criminal Procedure   Criminal Procedure Code   Indian Penal Code   public worker   Karnataka Police Act  
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