Patna High Court
Abhay Narayan Singh vs The State Of Bihar on 18 June, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.52434 of 2024
Arising Out of PS. Case No.-2531 Year-2008 Thana- PATNA COMPLAINT CASE District-
Patna
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Abhay Narayan Singh Son of Shri Satya Narayan Singh R/V-House No A-17,
Police Colony, Anisabad, PO -Anisabad, PS- Gardanibagh, District - Town
-Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. Anju Devi Wife of Roshan Kumar R/V-MIG 45, B-7, Sector 7, BH Colony,
26, Police Station -Agam Kuan, District -Patna, 800026, Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rana Vikram Singh, Adv
: Mr. Kumar Ravish, Adv
: Mr. Rohit Kumar, Adv
For the Opposite Party/s : Mr. Mithlesh Kumar Khare, APP
For the O.P. No. 2 : Mr. Sikandar, Adv
: Mr. Pramod Kumar Yadav, Adv
: Mr. Neeraj Kumar, Adv
: Ms. Pinki Kumari, Adv
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
Date : 18-06-2025
Heard learned counsel for the petitioner and
learned counsel for the respondents.
2. The present quashing petition has been
preferred to quash the order dated 06.04.2024 passed in
Complaint Case No. 2531 (C) of 2008, where learned Sub-
Divisional Judicial Magistrate, Patna, rejected the application
seeking discharge under Section 245 of the Criminal
Procedure Code (in short, Cr.P.C.), where cognizance was
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taken for the offences punishable under Sections 341, 323,
504 and 506/34 of the Indian Penal Code.
3. The prosecution story In short, as per the
allegations against this petitioner in the complaint case, the
complainant has alleged that inter alia, that the accused
persons came to her residence when her husband was not
available, and this petitioner called the complainant from her
house and upon reluctance to the complainant, the accused
persons forcefully entered into the house and this petitioner
caught hold of the hands and dashed the complainant against
the wall causing her injury. It is also alleged against this
petitioner-accused that on his orders, other accused persons
bodily lifted the complainant and in doing so, this petitioner
snatched a gold chain from the neck of the complainant, and
handed over the same to the accused no 2. It is also alleged
that when her mother-in-law protested, she was also thrown
on the ground by the accused persons, and she also sustained
injuries. It is also alleged that the complainant was taken to
the police station and confined to 'Hajat' and subjected to
cruelty. Ultimately, the complainant had alleged commission
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of offences under Sections 147, 342, 341, 323, 354, 506,
504, 379, 337, 338, 448 and 34 of the Indian Penal Code.
4. Mr. Rana Vikram Singh, learned counsel
appearing on behalf of the petitioner submitted that the
petitioner was a public servant posted as the Station House
Officer (SHO) of Kankarbagh Police Station during the period
in question. He had no prior enmity or any personal
differences with the complainant or the other accused and was
merely discharging his official duties.
5. It is further submitted that a complaint was filed
by the complainant in the year 2008, allegedly driven by
malafide intention just to create pressure and harass the
petitioner. It is submitted that the complaint was kept pending
for years, and only after a superficial enquiry under Section
202 Cr.P.C., the learned Sub Divisional Judicial Magistrate,
Patna, took cognizance on 19.07.2012 against the petitioner.
6. Mr. Singh further submitted that no prosecution
sanction under Section 197 of Cr.P.C. was obtained either at
the stage of cognizance or subsequently, despite the
allegations being directly related to the discharge of his official
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duties. This omission makes the cognizance itself legally
unsustainable.
7. At this stage it would be appropriate to reproduce
Section 197 of the Cr.P.C. for the better understanding of the
case:-
"197. Prosecution of Judges and public
servants.-(1) When any person who is or was
a Judge or Magistrate or a public servant not
removable from his office save by or with the
sanction of the Government is accused of any
offence alleged to have been committed by
him while acting or purporting to act in the
discharge of his official duty, no court shall
take cognisance of such offence except with
the previous sanction-
(a) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed,
in connection with the affairs of the Union, of
the Central Government;
(b) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence employed,
in connection with the affairs of a State, of the
State Government:"
8. It is further submitted that, apprehending arrest
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on account of false implication, the petitioner approached the
Court of learned District and Sessions Judge and was granted
anticipatory bail. Subsequently, the petitioner surrendered
before the learned Trial Court and has since remained
compliant, participating diligently in all subsequent
proceedings. It is submitted that during the pre-charge stage,
the complainant examined five witnesses; however, no
incriminating material emerged against the petitioner
warranting the framing of charges. The evidence was
ultimately closed on 06.08.2019. It is pointed out that even
injury report claimed to be issued by Patna Medical College
and Hospital (PMCH) does not suggest any injury upon the
complainant as alleged, which itself is falsifying the case.
9. It is also submitted that in the original criminal
case, a charge sheet was filed against the complainant and
her husband on 30.09.2008, and they were later convicted by
the learned Judicial Magistrate 1st Class, Patna, on
09.04.2014
under Sections 341 and 323 IPC and sentenced
to imprisonment till the rising of the Court. It is submitted
that despite the lack of any prima-facie material and the
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absence of a reasoned order, the Learned Sub Divisional
Judicial Magistrate rejected the discharge application filed by
the petitioner, along with a similar application as filed by co-
accused Dr. Ajay Kumar, in Complaint Case No. 2531(C) of
2008.
10. While concluding his argument, Mr. Singh
submitted that allowing the impugned order to stand would
only amount to abusing the process of law. The complaint was
baseless and filed with a malicious approach and with ulterior
motives, and the petitioner strongly denies the occurrence of
any such incident as alleged. It is emphasized that the
requirement of prior sanction under Section 197 of Cr.P.C.
exists to protect public servants from harassment through
vexatious and retaliatory legal proceedings. The failure to
obtain such sanction renders the entire complaint and
subsequent proceedings liable to be quashed in view of the
legal report of the Hon’ble Supreme Court as available
through G.C. Manjunath & Others Vs. Seetaram reported
through 2025 INSC 439 and D.T. Virupakshappa Vs. C.
Subash reported in (2015) 12 SCC 231.
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11. Learned counsel appearing on behalf of O.P.
No. 2, while opposing the quashing petition submitted that
there are sufficient materials against the petitioner to frame a
charge but fairly conceded that the petitioner was SHO of
Kankarbagh P.S. Case No. 331 of 2008, where the
complainant was one of the accused.
12. It would be apposite to reproduce the para
no(s). 37 and 38 of the G.C. Manjunath Case (supra),
which reads as under:-
37. Turning to the case at hand, there is little
doubt that the allegations levelled against the
accused persons are grave in nature. Broadly
classified, the accusations against the accused
persons encompass the following: (1) abuse of
official authority by the accused persons in
allegedly implicating the complainant in
fabricated criminal cases, purportedly driven by
malice or vendetta; (2) physical assault and ill-
treatment of the complainant by the accused
persons, constituting acts of alleged police
excess; (3) wrongful confinement of the
complainant; and (4) criminal intimidation of
the complainant.
38. In the circumstances at hand, we are of
the considered opinion that the allegations
levelled against the accused persons, though
grave, squarely fall within the ambit of “acts
done under colour of, or in excess of, such duty
or authority,” and “acting or purporting to act
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in the discharge of his official duty,” as
envisaged under Section 170 of the Police Act
and Section 197 of the CrPC respectively. This
Court, while adjudicating on instances of
alleged police excess, has consistently held in
Virupaxappa and D. Devaraja, that where a
police officer, in the course of performing
official duties, exceeds the bounds of such
duty, the protective shield under the relevant
statutory provisions continues to apply,
provided there exists a reasonable nexus
between the impugned act and the discharge of
official functions. It has been categorically held
that transgression or overstepping of authority
does not, by itself, suffice to displace the
statutory safeguard of requiring prior
government sanction before prosecuting the
public servant concerned.
13. It would further be apposite to reproduce
para no(s). 5, 6, 7, 8 & 9 of D.T. Virupakshappa case
(supra), which reads as under:
“5. The question, whether sanction is necessary
or not, may arise on any stage of the
proceedings, and in a given case, it may arise at
the stage of inception as held by this Court in
Om Prakash v. State of Jharkhand [Om
Prakash v. State of Jharkhand, (2012) 12 SCC
72 : (2013) 3 SCC (Cri) 472] . To quote: (SCC
p. 94, para 41)
“41. The upshot of this discussion is that
whether sanction is necessary or not has to be
decided from stage to stage. This question may
arise at any stage of the proceeding. In a given
case, it may arise at the inception. There may
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circumstances on record which may establish at
the outset that the police officer or public
servant was acting in performance of his official
duty and is entitled to protection given under
Section 197 of the Code. It is not possible for
us to hold that in such a case, the court cannot
look into any documents produced by the
accused or the public servant concerned at the
inception. The nature of the complaint may
have to be kept in mind. It must be
remembered that previous sanction is a
precondition for taking cognizance of the
offence and, therefore, there is no requirement
that the accused must wait till the charges are
framed to raise this plea.”
6. In the case before us, the allegation is that
the appellant exceeded in exercising his power
during investigation of a criminal case and
assaulted the respondent in order to extract
some information with regard to the death of
one Sannamma, and in that connection, the
respondent was detained in the police station
for some time. Therefore, the alleged conduct
has an essential connection with the discharge
of the official duty. Under Section 197 CrPC, in
case, the government servant accused of an
offence, which is alleged to have been
committed by him while acting or purporting to
act in discharge of his official duty, the previous
sanction is necessary.
7. The issue of “police excess” during
investigation and requirement of sanction for
prosecution in that regard, was also the subject-
matter of State of Orissa v. Ganesh Chandra
Jew [State of Orissa v. Ganesh Chandra Jew,
(2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ,
wherein, at para 7, it has been held as follows:
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“7. The protection given under Section 197 is to
protect responsible public servants against the
institution of possibly vexatious criminal
proceedings for offences alleged to have been
committed by them while they are acting or
purporting to act as public servants. The policy
of the legislature is to afford adequate
protection to public servants to ensure that they
are not prosecuted for anything done by them
in the discharge of their official duties without
reasonable cause, and if sanction is granted, to
confer on the Government, if they choose to
exercise it, complete control of the prosecution.
This protection has certain limits and is
available only when the alleged act done by the
public servant is reasonably connected with the
discharge of his official duty and is not merely a
cloak for doing the objectionable act. If in doing
his official duty, he acted in excess of his duty,
but there is a reasonable connection between
the act and the performance of the official duty,
the excess will not be a sufficient ground to
deprive the public servant of the protection . The
question is not as to the nature of the offence
such as whether the alleged offence contained
an element necessarily dependent upon the
offender being a public servant, but whether it
was committed by a public servant acting or
purporting to act as such in the discharge of his
official capacity. Before Section 197 can be
invoked, it must be shown that the official
concerned was accused of an offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official
duties. It is not the duty which requires
examination so much as the act, because the
official act can be performed both in the
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discharge of the official duty as well as in
dereliction of it. The act must fall within the
scope and range of the official duties of the
public servant concerned. It is the quality of the
act which is important and the protection of this
section is available if the act falls within the
scope and range of his official duty.”
(emphasis supplied)
8. In Om Prakash [Om Prakash v. State of
Jharkhand, (2012) 12 SCC 72 : (2013) 3
SCC (Cri) 472] , this Court, after referring to
various decisions, particularly pertaining to the
police excess, summed up the guidelines at
para 32, which reads as follows: (SCC p. 89)
“32. The true test as to whether a public
servant was acting or purporting to act in
discharge of his duties would be whether the act
complained of was directly connected with his
official duties or it was done in the discharge of
his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh [K.
Satwant Singh v. State of Punjab, AIR 1960 SC
266 : 1960 Cri LJ 410] ). The protection given
under Section 197 of the Code has certain
limits and is available only when the alleged act
done by the public servant is reasonably
connected with the discharge of his official duty
and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he
acted in excess of his duty, but there is a
reasonable connection between the act and the
performance of the official duty, the excess will
not be a sufficient ground to deprive the public
servant of the protection (Ganesh Chandra Jew
[State of Orissa v. Ganesh Chandra Jew,
(2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If
the above tests are applied to the facts of the
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present case, the police must get protection
given under Section 197 of the Code because
the acts complained of are so integrally
connected with or attached to their office as to
be inseparable from it. It is not possible for us
to come to a conclusion that the protection
granted under Section 197 of the Code is used
by the police personnel in this case as a cloak
for killing the deceased in cold blood.”
(emphasis supplied)
9. In our view, the above guidelines squarely
apply in the case of the appellant herein. Going
by the factual matrix, it is evident that the
whole allegation is on police excess in
connection with the investigation of a criminal
case. The said offensive conduct is reasonably
connected with the performance of the official
duty of the appellant. Therefore, the learned
Magistrate could not have taken cognizance of
the case without the previous sanction of the
State Government. The High Court missed this
crucial point in the impugned order.”
Conclusion:
14. Allegation admittedly raised in the
background while petitioner and his associate police personnel
were discharging their official duty, and therefore, sanction
for prosecution was mandatorily required in view of section
197 of the Cr.P.C. Nonetheless, the prolonged pendency of
the enquiry for an inordinate period of four years in a
complaint case, without substantial progress, is per-se a
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propriety and fairness of the proceedings.
15. In the present case, it is evident that the acts
alleged against the accused-petitioner are directly attributable
to the discharge of his official duties, specifically in connection
with the investigation of Kankarbagh P.S. Case No. 331 of
2008 which was pending against the complainant. It was
instituted against the husband of the complainant as well as
against the complainant where, after trial, they both were
convicted by learned Judicial Magistrate 1st Class, Patna, on
09.04.2014 for the offence punishable under Sections 341
and 323 of the Indian Penal Code.
16. As previously observed, a mere excess or
overreach in the performance of official duty does not, by
itself, disentitle a public servant from the statutory protection
mandated by law. The safeguard of prior sanction under
Section 197 of the Cr.P.C. cannot be disregarded merely
because the acts alleged may appear to go beyond the strict
bounds of official duty, so long as they are reasonably
connected to the discharge of official functions. The allegation
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in nature, and the same cannot be said to exceed the limit;
even the injury report does not support the allegation.
17. Accordingly, in view of aforesaid discussions,
particularly by taking a guiding note of G.C. Manjunath
Case (supra) [para nos.-37 & 38], and also of D.T.
Virupakshappa case (supra), [para-8], the impugned
order rejecting discharge prayer dated 06.04.2024 passed in
Complaint Case No. 2531 (C) of 2008 qua petitioner is
hereby set-aside/quashed, with all its consequential
proceedings, if any.
18. Accordingly, above mentioned petition stand
allowed.
19. Let a copy of this judgment be sent to the
learned trial court/concerned court forthwith.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR AFR CAV DATE 14.05.2025 Uploading Date 18.06.2025 Transmission Date 18.06.2025