Police personnel cannot claim official-duty protection for alleged custodial torture and molestation, Allahabad High Court holds

FIR No. 360 of 2021 was registered against Keshav Prasad Yadav, his sons and others. During its investigation, police personnel, including the present applicants, allegedly visited Village Padari to serve notices under Section 41A Cr.P.C. on the accused persons. A subsequent police FIR, No. 158 of 2022, alleged that the police party was assaulted and that notices and a mobile phone were snatched. Several persons were arrested, and the police later filed a charge-sheet against them for offences including Sections 147, 148, 149, 352, 332, 353, 394 and 395 IPC

The arrested persons and their family members thereafter alleged custodial assault, molestation, illegal detention, looting and false implication by the police. Pursuant to an order under Section 156(3) Cr.P.C., FIR No. 218 of 2022 was registered against the police personnel, including the applicants. Although the Investigating Officer submitted a final report, the Special Judge rejected it, took cognizance and summoned the applicants for offences under Sections 147, 148, 452, 323, 504, 354, 354-B and 395 read with Section 34 IPC

The applicants’ challenge to the cognizance order was withdrawn with liberty to seek appropriate relief or bail. They subsequently filed discharge applications, contending that the alleged acts arose during the discharge of their official duties and that prosecution was barred in the absence of sanction under Section 197 Cr.P.C. The Special Judge rejected the discharge applications on 27 September 2024

The applicants challenged that order before the High Court under Section 482 Cr.P.C. and Section 528 BNSS.

1. Whether the applicants, being police personnel, were entitled to protection under Section 197 Cr.P.C. on the ground that the alleged acts were committed while discharging, or purporting to discharge, their official duties

2. Whether the alleged custodial assaults, injuries, molestation and robbery could constitute acts done in the discharge of official duty or merely excessive exercise of official power

3. Whether the discharge applications were maintainable when the applicants had not surrendered or obtained bail despite the earlier order of the High Court granting liberty to seek appropriate relief

4. Whether sanction under Section 197 Cr.P.C. was in any event unnecessary because one of the offences alleged against the applicants was Section 354 IPC, which is expressly excluded by the Explanation to Section 197(1) Cr.P.C.

Section 197(1) Cr.P.C. bars a court from taking cognizance of an offence allegedly committed by a protected public servant while acting or purporting to act in the discharge of official duty, unless prior governmental sanction is obtained

The protection extends only to acts having a reasonable nexus with official duty and does not cover acts that are wholly criminal, such as custodial torture, molestation, robbery or deliberate assault unrelated to the lawful performance of duty

The Explanation to Section 197(1), inserted by the Criminal Law (Amendment) Act, 2013, expressly provides that no sanction is required where a public servant is accused of offences including Section 354 IPC

The applicants relied on several Supreme Court authorities concerning the scope of Section 197 Cr.P.C., including Abdul Wahab Ansari v. State of Bihar, B. Saha v. M.S. Kochar, Om Prakash v. State of Jharkhand, D. Devaraja v. Owais Sabeer Hussain and G.C. Manjunath v. Seetaram; the High Court held those decisions distinguishable on the facts

The High Court held that the medical reports disclosed multiple extensive contusions and swellings on the buttocks, thighs, legs and other parts of the bodies of the informant, his family members, including a sixty-year-old woman and two minor daughters

The Court found that the injuries were consistent with repeated beatings after the victims had allegedly been tied and assaulted while in police custody, and concluded that such conduct could not reasonably be regarded as part of police duty or as a mere excess in the performance of an otherwise lawful act

The Court also relied on the General Diary entry, which attributed the injuries to falls during arrest, and considered that explanation implausible in light of the medical evidence

Further, the applicants had not complied with the earlier order permitting them to appear before the trial court and seek bail; this conduct was treated as an additional reason to deny discretionary relief under Sections 482 Cr.P.C. and 528 BNSS

Independently, because Section 354 IPC was among the offences for which cognizance had been taken, the statutory Explanation to Section 197(1) removed any requirement of prior sanction

In any event, no sanction was required because Section 354 IPC was one of the charged offences and was expressly covered by the Explanation to Section 197(1) Cr.P.C.

The Special Judge’s order dated 27 September 2024 rejecting the discharge applications was affirmed, and both applications under Section 482 Cr.P.C. and Section 528 BNSS were dismissed without costs