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HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

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CrlM No.209/2019[1/2019]

Reserved on: 01.04.2026

Pronounced on: 10.04.2026

Uploaded on:- 16.04.2026.

Whether the operative part or

full judgment is pronounced: Yes

Bishnesh Kumar

S/O Sh. Behari Lal,

R/O H. No. 183, Sector-1,

Sanjay Nagar, Jammu

.....Petitioner

Through :- Mr. Zulkernain Choudhary, Adv.

V/S

1. Rajat Jandial,

S/O Sh. Ravinder Gupta

R/O H. No. 43, Lane NO.7,

Greater Kailash, Jammu.

2. J. P. Sharma, Sub-Inspector,

posted at Central Pool Security,

DPL, Jammu.

3. Abdul Jabbar (IPS),

On Central Deputation

C/O Police Headquarters,

Gulshan Ground,

Gadhi Nagar, Jammu

4. Mohan Lal Kaith

Superintendent of Police,

Armed PCR, Parade, Jammu.

5. Rajeshwar Singh,

AIG Personnel, PHQ, Jammu.

.....Respondent(s)

Through :- Ms. Tehseena Bukhari, Adv. &

Mr. Anil Kumar, Adv vice

Mr. A. K. Sawhney, Sr. Adv.

Mr J. P. Gandhi, Advocate.

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CrlM No. 824/2019

Abdul Jabbar, IPS

C/O ZPHQ Jammu

Joint Deputy Director,

Ministry of Home Affairs,

New Delhi.

.....Petitioner

Through :- Mr. J P Gandhi, Adv.

V/S

1. Rajat Jandial,

S/O Sh. Ravinder Gupta

R/O H. No. 43, Lane No.7,

Greater Kailash, Jammu.

2. Bishnesh Kumar, SHO

Police Station, Gandhi Nagar, Jammu.

3. J. P. Sharma, Sub-Inspector,

posted at Central Pool Security,

DPL, Jammu.

4. Mohan Lal Kaith

Superintendent of Police,

Armed PCR, Parade, Jammu.

5. Rajeshwar Singh,AIG Personnel,

PHQ, Jammu.

.....Respondent(s)

Through :- Ms. Tehseena Bukhari, Adv. &

Mr. Anil Kumar, Adv vice

Mr. A. K. Sawhney, Sr. Adv.

Mr Zulkernain Choudhary, Adv.

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CrlM No.369/2019[1/2019]

Rajeshwar Singh, AIG Personnel,

PHQ Gulshan Ground, Jammu

The then SP City South,

Gandhi Nagar, Jammu

.....Petitioner

Through :- Mr. J P Gandhi, Adv.

V/S

1. Rajat Jandial,

S/O Sh. Ravinder Gupta

R/O H. No. 43, Lane NO.7,

Greater Kailash, Jammu.

2. Bishnesh Kumar, SHO

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Police Station Gandhi Nagar, Jammu

3. J. P. Sharma, Sub-Inspector,

posted at Central Pool Security,

DPL, Jammu.

4. Mohan Lal Kaith

Superintendent of Police,

Armed PCR, Parade, Jammu.

5. Abdul Jabbar (IPS),

C/O Police Headquarters, Jammu

.....Respondent(s)

Through :- Ms. Tehseena Bukhari, Adv. &

Mr. Anil Kumar, Adv vice

Mr. A. K. Sawhney, Sr. Adv.

Mr Zulkernain Chowdhary, Adv.

CRMC No.207/2014

IA No. 236/2014

1. J. P. Sharma

Sub Inspector

SHO P/S Gangyal Jammu

2. Mohan Lal Kaith

Dy. SP (SDPO) City South,

Gandhi Nagar, Jammu.

.....Petitioner

Through :-

Mr. J P Gandhi, Adv.

V/S

1. Rajat Jandial,

S/O Sh. Ravinder Gupta

R/O H. No. 43, Lane No.7,

Greater Kailash, Jammu.

2. Rajeshwar Singh, AIG Personnel,

PHQ, Jammu.

3. Bishnesh Kumar, SHO

Police Station, Gandhi Nagar, Jammu.

4. Abdul Jabbar IPS

C/O ZPHQ Jammu.

.....Respondent(s)

Through :-

Ms. Tehseena Bukhari, Adv. &

Mr. Anil Kumar, Adv vice

Mr. A. K. Sawhney, Sr. Adv.

Mr. Zulkernain Choudhary, Adv.

CORAM: HON’BLE MR. JUSTICE M A CHOWDHARY , JUDGE

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JUDGMENT

1. By way of this common judgment, this court proposes to dispose of all

the above titled clubbed four petitions, in view of identical and similar facts

involved in them, arising out of the same complaint, cognizance order dated

05.11.2012 passed by the trial court and order dated 26.05.2014 passed by the

Revisional Court upholding the cognizance order, against all the petitioners as

accused.

2. Petitioners, invoking the inherent jurisdiction of this court under

Sections 561-A of J&K CrPC (akin to Section 482 CrPC and 528 BNSS), inter

alia, have prayed quashing of the following:

(i) Criminal complaint under Sections 341/ 342 / 447 /452 /506

/ 166/ 120-B RPC titled ‘Rajat Jandial V/S Sh. J. P. Sharma

& Ors.’ pending in the Court of Ld. Sub Judge (Special

Municipal Mobile Magistrate), Jammu;

(ii) Order dated 05.11.2012 whereby the Court of Ld. Sub-Judge

(Special Municipal Mobile Magistrate), Jammu in the

aforesaid complaint issued process against the petitioner

and proforma respondents under Sections

341/342/506/166/120-B RPC; and

(iii) Order dated 26.05.2014, whereby the Court of Ld. Sessions

Judge, Jammu dismissed the revision petition No.

51/Revision titled ‘Rajeshwar Singh & Ors. V/S Rajat

Jandial & Ors’ thereby upholding the order of the learned

trial court dated 05.11.2012.”

3. A complaint titled ‘Rajat Jandial V. J. P. Sharma & Ors.’ came to be

filed for the commission of offences punishable U/Ss

341/342/447/448/452/506/166/120-B RPC against the police officers, including

the petitioners herein, by respondent No.1-Rajat Jandial before the Court of

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learned Chief Judicial Magistrate, Jammu with the accusations that on

20.01.2012, the accused police officers along with a strong posse of police

personnel reached the house of the complainant at Greater Kailash, Jammu and

the entire area was cordoned; that at about 3.30- 3.45 pm, when complainant

was about to leave in car No.JK02-AU-0018 , for Jammu Airport, he was

intercepted by SHO, P/S Gangyal, Jammu who used abusive, aggressive and

insulting language, asked the complainant whether he was Gola Shah’s son and

on getting reply in affirmative, his car was stopped and he was wrongfully

restrained; that the said SHO called the other police officers including petitioner

Abdul Jabbar from a nearby parked Hyundai vehicle and all the accused entered

into the house of the complainant, with the intention to arrest the father of the

complainant and during the said exercise, they allegedly committed several

illegalities; that the presence of petitioner Bishnesh Kumar, SHO Police Station

Gandhi Nagar, Jammu and Abdul Jabbar ASP was ‘prima facie’ abuse of

authority as they were neither associated with any team nor the case, therefore,

they were illegally present there; that the raid without any orders is illegal and

amounts to excessing of jurisdiction; that the whole incident of raid was

allegedly recorded in camera by one police constable brought on spot by

Bishnesh Kumar, SHO Police Station Gandhi Nagar, Jammu, which is not

permitted under law as it infringes the right to privacy of a citizen especially

when women reside in that house.

4. The learned Special Municipal Magistrate, Jammu, vide order dated

05.11.2012, took cognizance against accused including the petitioners herein for

the commission of offences punishable under Sections 341/342/506/166/120-B

RPC and issued process against them. Petitioners urged before the trial court for

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dropping of proceedings on the ground that the prosecution against them is

barred under Section 197 CrPC. The Trial Court, on consideration of the matter

after discussing the law laid down by the Apex Court in various cases, came to

the conclusion that the presence of accused including the petitioners herein is

‘prima facie’ abuse of authority and even while conducting search of the entire

house, almirahs, sofas, rooms and drawers of the complainant, was illegal and

against the procedure envisaged under CrPC; that it was further observed by the

trial court that the acts of the accused are also not covered U/S 197 CrPC,

because the acts committed have no nexus with the discharge of public duty by

the accused persons, who happened to be police officers.

5. The petitioners filed revision petition bearing No.51/revision titled

‘Rajeshwar Singh & Ors. V. Rajat Jandyal & Anr.’ on 08.11.2012 before the

learned Principal Sessions Judge, Jammu, who, vide order dated 26.05.2014,

dismissed the revision petition and upheld the order dated 05.11.2012 passed by

the ld. Magistrate by holding that petitioners failed to show any illegality,

infirmity and impropriety in the impugned order and directed the parties to

appear before the trial court on 03.06.2014.

6. The petitioners, in their petitions, have stated that they, as a

supervisory officers, had no direct role with the investigation of the case and that

they cannot be prosecuted for the commission of any offence relating to their

official duty unless a Government sanction is obtained for prosecution and in

absence of any such sanction, they cannot be proceeded against in a complaint

pending before the Trial Court. The petitioners, in their separate petitions, have

stated that they had visited the place of alleged occurrence in connection with an

investigation of the case lodged at Police Station, Gangyal, involving the father

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of the complainant and two of his associates and that for the enquiry about the

whereabouts of the accused, i.e., complainant’s father, who was alleged to be a

history sheeter involved in more than a dozen cases, and to secure his arrest in

the latest case registered against him, the police force was brought on spot and

the alleged restraining of the complainant was in connection with the

investigation of the case only and there was no mens rea involved or any mala

fide intentions on the part of any of the petitioners to commit offences against

his person and that the petitioners were performing duties as public servants and

they could not be prosecuted without the prior sanction to prosecute them to be

issued by the Government, as such, the entertaining of the complaint against

them, taking cognizance by the learned Magistrate and upholding the said order

by the revisional court were illegal and are liable to be quashed/ set aside.

7. Learned counsel appearing on behalf of the petitioners submit that

there was no sufficient material available that would constitute the offences of

which the petitioners have been accused; that prior sanction as required in terms

of Section 197 CrPC in order to proceed against the petitioners, who were Public

Servants, was not obtained, before filing of complaint; that there were as many

as 13 FIRs registered against the father of the complainant, who was history

sheeter; that the police raided the house of the complainant’s father in

connection with investigation of a case, registered vide FIR No. 171 of 2011 at

Police Station Gangyal U/Ss 301/506/504 RPC, 3/25 Arms Act; that the alleged

act of the petitioners would not constitute house trespass; that there was ‘mala

fide’ intention on the part of the complainant to falsely implicate petitioners.

Lastly, it is prayed that the complaint filed by the complainant be quashed, along

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with subsequent orders passed by the trial court as well as revisional court, being

unsustainable.

8. Learned counsel appearing for the complainant- Rajat Jandial, ex

adverso, vehemently, denied the contentions raised in the petitions and opposed

the grounds of these petitions as the complainant would suffer an irreparable

loss in case the petitions are allowed. They further submit that the petitioners

cannot seek immunity from criminal proceedings without sanction under Section

197 CrPC; that the trial court had rightly issued the process against the

petitioners and other police officers. Lastly, it is prayed that all the petitions be

dismissed.

9. Heard learned counsel for the parties at length, perused the record and

considered the matter.

10. Complainant- respondent Rajat Jandial in his complaint against all the

petitioners herein had alleged that on 20.01.2012 when he was about to leave his

house towards Airport for some personal work at about 3.35 – 3.40 PM, the

petitioner – SI J P Sharma intercepted his car just outside his house at Greater

Kailash, Jammu, using abusive, aggressive and insulting language, asking him

whether he was son of Gola Shah and on the affirmative reply, his vehicle was

stopped, he was restrained directing two PSOs not to allow the complainant to

go anywhere or even move out of the vehicle, as such, he was wrongfully

restrained in his car and was not allowed to move even an inch; that the said

officer then called accused Nos. 3 and 4, Abdul Jabbar and Mohan Lal Kaith

who came in police uniform and all of them trespassed into his house/kothi and

that the complainant was not allowed to move inside his house to see as to what

was happening, however, somehow he managed to escape from the wrongful

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confinement and on entry into his house saw accused nos. 1, 3 and 4 standing in

his house premises; that on being asked, the police officers told him that they

had come to arrest his father Ravinder Gupta @ Gola Shah and asked him to call

his father and when he objected to the search of the house without search

warrant, all of them hurled abuses and threatened him of dire consequences, in

case he argued anymore; that later, with some other police men, the officers with

a video camera entered the basement of the house of the complainant’s father

and made search and created a pandemonium, as such, the complainant and his

family had to undergo great mental trauma and stress. As such, all the accused

were liable for house trespass, causing intimidation to the complainant,

wrongfully and illegally detaining the driver of the complainant and prayed that

they be punished for the offences punishable under Sections

341/342/447/448/452/506/166/120-B RPC.

11. The Ld. Special Municipal Magistrate Jammu vide order dated

06.07.2012 ordered for holding enquiry in terms of Section 202 CrPC and came

to the conclusion that the commission of offences punishable under Sections

341/342/506/166/120-B RPC are spelled out on the part of the accused persons,

as they were alleged to have abused their authority and that non compliance of

provisions engrafted in CrPC, exceeding their jurisdiction and over stepping the

provision, brief given to them to investigate some FIR. The learned Magistrate

vide order dated 05.11.2012 came to conclusion, on his satisfaction, that there

was sufficient material on the basis of the pre-cognizance evidence /inquiry

report and other documents relied upon to take cognizance of the offences under

Sections 341/342/506/166/120-B RPC to proceed against the accused and

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cognizance for the commission of the aforesaid offences was taken against them,

for their summary trial and process was issued against them.

12. Aggrieved of the order passed by the learned Magistrate, the

petitioners herein as accused challenged the order dated 05.11.2012 passed by

the learned Magistrate, through a Revision Petition before the Principal Sessions

Court Jammu on the ground that learned Magistrate miserably failed to

understand the import of law as the inquiry could be ordered by the Magistrate

after the post cognizance and in the present case, the process has not been issued

and the petitioners had been summoned by taking cognizance and issuing

process which was unknown to the law; that the learned Magistrate conducted

the inquiry after receipt of an enquiry already conducted in terms of Section 202

CrPC by SSP Jammu, as such, the learned Magistrate had to proceed under

Section 203 CrPC to dismiss the complaint and not to issue process; that no

sanction under Section 197 CrPC had been obtained in the case, as such, no

process could be issued by the Trial Court; that the complaint has been filed

with mala fide intention to pressurize the petitioners not to go ahead with the

investigation of an FIR in which the father of the complainant is an accused.

13. The learned Revisional Court vide order dated 26.05.2014, while

discussing Section 190 CrPC relating to cognizance of offences by Magistrates

held that the Magistrate in terms of Section 200 CrPC has various options, either

to direct for issuance of process as contemplated under Section 204 of the Code

and in case, if the Magistrate is of the opinion that there is no sufficient ground

for proceeding, the option available to him is to dismiss the complaint under

Section 203 of the CrPC, whereas Section 202 of the Code lays down that if on

examination of the allegations made in the complaint and the statements of the

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complainant on solemn affirmation and the examination of the witnesses, the

Magistrate is of the opinion that there is sufficient ground for proceeding the

option available to him is to postpone the issue of process and either to enquire

the case himself or direct the investigation to be made by a police officer or by

any other person as he thinks fit.

14. The learned Revisional Court discussing the process adopted by the

learned Magistrate and the receipt of inquiry report filed by the SSP and

rejecting the same and further conducting the enquiry itself and then issuing the

process, held that the learned Magistrate has followed the procedure as provided

under law and cannot be found fault with. With the contention of the petitioners

that they being govt. servants cannot be prosecuted in absence of sanction under

Section 197 CrPC by the State Government, the Revisional Court while relying

upon the law laid down by the Apex Court in Amrik Singh V/S State of Pepsu,

AIR 1955 SC 309 and re-stated in State of Orissa V/S Ganesh Chandra Jew,

AIR 2004 SC 2179, held that there must be a reasonable connection between the

act and discharge of official duty and that such act must be in relation to the duty

of the accused lay a reasonable, but not a pretended or fanciful claim, that he did

it in the course of the performance of his duty, and further holding that

petitioners had failed to show any illegality, infirmity and impropriety in the

impugned order, dismissed the revision petition.

15. Aggrieved of both the orders passed by the learned Magistrate taking

cognizance and by the learned Revisional Court upholding the order passed by

the learned Magistrate against the petitioners herein, petitioners have invoked

the inherent jurisdiction of this court to seek quashment of the complaint and the

order dated 05.11.2012 passed by the learned Magistrate taking cognizance and

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the order dated 26.05.2014 passed by the learned Revisional Court upholding

the order passed by the learned Magistrate.

16. The petitioners, who as police officers were stated to have gone to the

house of one Rajinder Gupta @ Gola Shah situate at Greater Kailash, Jammu in

connection with investigation of a case registered vide FIR No. 171/2011 for the

commission of offences punishable under Section 341/506/504 RPC and 3/25

Arms Act against three persons, namely, Ravinder Gupta @ Gola Shah,

Rajinder Singh @ Romi and one Punjabo Ram on the date of alleged occurrence

shown in the complaint. It has been pleaded that the father of the complainant

Ravinder Gupta @ Gola Shah had been facing investigation/ prosecution in as

many as 13 FIRs since the year 2002 to 2011; that the police team had asked

complainant about the whereabouts of his father and that police had followed

the procedure in accordance with law for the investigation of the case; and that

the complainant being son of said Ravinder Gupta @ Gola Shah, in order to

scuttle the investigation of the case and to pressurize the police filed false and

frivolous impugned complaint against petitioners, under Sections

341/342/447/448/452/ 506/166/120-B RPC before the Court.

17. The complainant who was stated to be an Advocate by profession and

not required in the case to be investigated against his father had alleged

confinement and intimidation at the hands of the police officers accused in the

complaint and the learned Magistrate after conducting an enquiry had found

Police officers ‘prima facie’ involved in the commission of offences punishable

under Sections 341/342/506/166/120-B RPC and issued the process for their

summary trial.

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18. The petitioners as Police officers, as per the complaint and also as

admitted by them, had raided the house of the petitioner’s father at Greater

Kailash, Jammu to apprehend him in a case registered at Police Station Gangyal

vide FIR No. 171/2011 for the commission of some offences, including under

the Arms Act. Their case is that the Police force was used as the accused Gola

Shah-father of the complainant was a history-sheeter, facing more than a dozen

cases. To enquire about the whereabouts of his father from the complainant and

to restrain his movement or not to allow him to move away in his car, for the

purpose of investigation, cannot be stated to be an offence of wrongful

confinement. The SSP, Jammu in an enquiry ordered in terms of a Magisterial

order U/S 202 CrPC, concluded that the complaint was false, however, learned

Magistrate, taking exception to that report, conducted fresh enquiry itself and

took cognizance, that too, without the prior requirement of prosecution sanction;

whereas some of the accused Police officers were protected U/S 197 CrPC, from

prosecution without sanction to prosecute.

19. The contention of the learned counsel for the respondent complainant

that all the police officers, arrayed as accused in his complaint, could not have

been stated to be investigating the case against complainant’s father so as to raid

their house. Given the background of the father of the complainant as a history

sheeter facing investigation in 13 cases in a short span of nine years from 2002

to 2011, all the petitioners in the hierarchy, may have decided to visit the house

of the complainant’s father so as to ensure that no hurdle is created to the

investigation of the case by the IO at the instance of the complainant’s father

and this circumstance may have warranted them to have joined the investigation

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of the case and they have also submitted that they formed the part of an SIT,

though no such order has been placed on the file.

20. Section 197 CrPC, which is relevant on the subject is extracted as

under for ready reference:

197. Prosecution of Judges and public servants.

(1) When any person who is Judge within the

meaning of section 19 of the Ranbir Penal

Code or when any Magistrate, or when any

public servant who is not removable from his

office save by or with the sanction of the State

Government or the Government of India, is

accused of any offence alleged to have been

committed by him while acting or purporting

to act in the discharge of his official duties,

no Court shall take cognizance of such offence

except with the previous sanction –

(a) In the case of persons employed in

connection with the affairs of the Union,

of the Government of India; and

(b) In the case of persons employed in

connection with the affairs of the State,

of the Government.

(2) The Government of India or the State Government, as

the case may be, may determine the person by whom,

the manner in which, the offence or offences for which,

the prosecution of such Judge, Magistrate or public

servant is to be conducted, and may specify the Court

before which the trial is to be held.”

21. Section 197 CrPC, which was applicable at the time of filing of the

complaint provided that when any person who is judge within the meaning of

Section 19 of the RPC or when any Magistrate or when any public servant who

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is not removable from his office save by or with the consent of the State

Government or the Government of India, is accused of any offence alleged to

have committed by him while acting or purporting to act in the discharge of his

official duties, no court can take cognizance of such offence except with the

previous sanction. The question that is required to be determined is as to

whether the alleged acts of the petitioners, would fall within the scope of his

official duties as to attract the provisions contained in Section 197 of CrPC.

22. The question that is required to be determined is as to whether the

alleged acts of the petitioners would fall within the scope of their official duties

as to attract the provisions contained in Section 197 of CrPC. What is meant by

acts or purported acts in discharge of official duties has been a subject matter of

discussion and debate before the Apex Court in a number of cases. In (2013) 15

SCC 624, the Supreme Court in the context of provisions contained in Section

197 CrPC interpreted the expression ‘official duty’ in the following manner.

“56. The expression "official duty" would in the absence

of any statutory definition, therefore, denote a duty that arises by

reason of an office or position of trust or authority held by a

person. It follows that in every case where the question whether

the accused was acting in discharge of his official duty or

purporting to act in the discharge of such a duty arises for

consideration, the Court will first examine whether the accused

was holding an office and, if so, what was the nature of duties

cast upon him as holder of any such office. It is only when there

is a direct and reasonable nexus between the nature of the duties

cast upon the public servant and the act constituting an offence

that protection Under Section 197 Code of Criminal Procedure

may be available and not otherwise. Just because the accused is

a public servant is not enough. A reasonable connection between

his duties as a public servant and the acts complained of is what

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will determine whether he was acting in discharge of his official

duties or purporting to do so, even if the acts were in excess of

what was enjoined upon him as a public servant within the

meaning of that expression Under Section 197 of the Code.”

23. In ‘Devinder Singh & Ors. V. State of Punjab’, (2016) 12 SCC 87,

the Supreme Court, after taking note of all its previous decisions on the issue,

summarized the principles emerging therefrom in paragraph 39 as under:

I. Protection of sanction is an assurance to an honest and

sincere officer to perform his duty honestly and to the

best of his ability to further public duty. However,

authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been

committed by public servant in discharging his duty it

must be given liberal and wide construction so far its

official nature is concerned. Public servant is not

entitled to indulge in criminal activities. To that extent

Section 197 Code of Criminal Procedure has to be

construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has

exceeded in his duty, if there is reasonable connection

it will not deprive him of protection Under Section 197

Code of Criminal Procedure There cannot be a

universal Rule to determine whether there is

reasonable nexus between the act done and official

duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with

or related to performance of official duties sanction

would be necessary Under Section 197 Code of

Criminal Procedure, but such relation to duty should

not be pretended or fanciful claim. The offence must be

directly and reasonably connected with official duty to

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require sanction. It is no part of official duty to commit

offence. In case offence was incomplete without

proving, the official act, ordinarily the provisions of

Section 197 Code of Criminal Procedure would apply.

V. In case sanction is necessary it has to be decided by

competent authority and sanction has to be issued on

the basis of sound objective assessment. The court is

not to be a sanctioning authority.

VI. Ordinarily, question of sanction should be dealt with at

the stage of taking cognizance, but if the cognizance is

taken erroneously and the same comes to the notice of

Court at a later stage, finding to that effect is

permissible and such a plea can be taken first time

before appellate Court. It may arise at inception itself.

There is no requirement that accused must wait till

charges are framed.

VII. Question of sanction can be raised at the time of

framing of charge and it can be decided prima facie on

the basis of accusation. It is open to decide it afresh in

light of evidence adduced after conclusion of trial or at

other appropriate stage.

VIII. Question of sanction may arise at any stage of

proceedings. On a police or judicial inquiry or in

course of evidence during trial. Whether sanction is

necessary or not may have to be determined from stage

to stage and material brought on record depending

upon facts of each case. Question of sanction can be

considered at any stage of the proceedings. Necessity

for sanction may reveal itself in the course of the

progress of the case and it would be open to accused to

place material during the course of trial for showing

what his duty was. Accused has the right to lead

evidence in support of his case on merits.

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IX. In some case it may not be possible to decide the

question effectively and finally without giving

opportunity to the defence to adduce evidence.

Question of good faith or bad faith may be decided on

conclusion of trial.”

24. A Co-ordinate Bench of this Court in a case tilted ‘Pawan Singh

Rathore V. UT of J&K & Ors. in CRM(M) No.33/2021 ’, vide

judgment dated 21.11.2024, while dissecting the duty of a police officer

and the acts done by him, has observed in paragraph 20 of the judgment,

which being relevant is reproduced as under:-

“20. From the foregoing analysis of law on the subject, it is clear

that not only the acts which have been done by a public

servant in exercise of his official duty, but even the acts

which a public servant has done in purported exercise of

official duty, would be covered under the protective

umbrella of Section 197 of CrPC. The test is whether there

is a reasonable nexus between the act done by a public

servant and his official duties. Even if, a public servant has

exceeded his powers while discharging his official duties,

Section 197 of CrPC would come into play. Thus, in a case

where Deputy Superintendent of Police while escorting a

prisoner to the Court, beats him up, while the prisoner tries

to escape from the custody and in the process, uses

excessive force, the Deputy Superintendent of Police would

be entitled to protective umbrella of Section 197 of CrPC

because preventing a prisoner from escaping the custody is

connected with his official duties and in the process, if such

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police officer has exceeded his powers, he would be acting

in purported exercise of his official duty. However, if we

take another instance of a police officer thrashing a

passerby without any rhyme or reason, in such a case, his

act would neither be in the discharge of official duties, nor

in the purported discharge of official duties. Thus, the

police officer would not be entitled to the protective

umbrella of Section 197 of CrPC in such a case.”

25. In view of the afore-stated enunciations of law on the subject, it is

clear that not only the acts which have been done by the public servant in

exercise of his official duty but even the acts which a public servant has done in

purported exercise of official duty, would be covered under the protective

umbrella of Section 197 CrPC, therefore, the test is whether there is a reasonable

nexus between act done by public servant and his official duties. Even if a

public servant has exceeded his powers while discharging his official duties,

Section 197 CrPC would also come into play.

26. The Apex Court in a case tilted ‘G C Manjunath & Ors. V.

Seetaram’ reported as (2025) 5 SCC 390, has held that in a case of alleged

police excesses prior sanction to prosecute is mandatory when there exists a

reasonable nexus between the act complained of and the discharge of official

functions. A similar view has been taken by the Apex Court in ‘D. Devaraja V.

Owais Sabeer Hussain’ reported as (2020) 7 SCC 695; ‘Gurmeet Kour V.

Davendra Gupta & Anr’. reported as (2025) 5 SCC 481; and ‘Anjani Kumar V.

State of Bihar’ reported as (2008) 5 SCC 248.

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27. So for as the plea for requirement of sanction to prosecute is

concerned, the petitioners- Bishnesh Kumar and J P Sharma, at the time of the

alleged occurrence had been working on non gazetted police posts, whileas,

petitioners Abdul Jabbar, Mohan Lal Kaith and Rajeshwar Singh had been

working on gazetted posts. The non gazetted police officers can be removed

from their posts without sanction from the Government, whereas in the case of

gazetted police officers, sanction from Government is required. In such a

situation, the protection under Section 197 CrPC is applicable in the case of

petitioners Abdul Jabbar, Mohan Lal Kaith and Rajeshwar Singh but not in the

case of petitioners Bishnesh Kumar and J P Sharma. The learned Magistrate and

the Revisional Court, in the considered opinion of this Court, have taken a

wrong view with regard to the requirement of sanction to prosecute in terms of

Section 197 CrPC in case of petitioners Abdul Jabbar, Mohan Lal Kaith and

Rajeshwar Singh. This Court is of the view that the petitioners-Abdul Jabbar,

Mohan Lal Kaith and Rajeshwar Singh can be prosecuted for the commission of

the alleged offences in the complaint only after obtaining prior sanction to

prosecute from the government.

28. It is a fact which is borne out from the police reports available on file

and also as per allegations of the complainant that a strong pose of police force

led by some senior officers had raided the house of the complainant’s father at

Greater Kailash to arrest the complainant’s father and his two associates in a

case involving commission of offences, including offences under the Arms Act,

as well with regard to its investigation and the complainant cannot say that the

petitioners had committed any offence while performing their official duties

without a magisterial warrant as no such warrant is required for the arrest of an

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accused in cognizable cases. In the opinion of this Court, the aforesaid

contention made on behalf of the petitioners seems to be plausible as the police

cannot take a chance while investigating a case against a habitual offender as the

complainant’s father was stated to have been involved in more than a dozen

cases in a short span of nine years and also registered as a history sheeter at the

local Police Station, as such, the police force has to be used to ensure his arrest

in a smooth manner and the complainant, who happens to be the son of the

wanted accused, may have objected to the Police Officers, but this Court is of

the opinion that the Police Officers cannot be stated to have committed any

offence of which they have been charged in the complaint for their summary

trial by the learned Magistrate, that too, ignoring the earlier enquiry conducted

under Section 202 by SSP Jammu, ordered by the Court and taking upon himself

the fresh enquiry, so as to pass the impugned cognizance order.

29. Viewed thus, the order dated 05.11.2012 passed by the learned

Magistrate taking cognizance of the offences punishable under Sections

341/342/506/166/120-B RPC and the order dated 26.05.2014 passed by the

learned Revisional Court upholding the order passed by the learned Magistrate

are not sustainable and are liable to be quashed qua petitioners.

30. Having regard to the foregoing reasons, discussion made hereinabove

and the facts and circumstances of the case, this Court is of the considered

opinion that the impugned complaint filed against the petitioners by the

complainant is an abuse of the process having been maliciously instituted to

cause harassment to the police officers and the impugned cognizance order

drawn by the learned Magistrate and upholding the same by the learned

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Revisional Court without prior sanction to prosecute are found to be

unsustainable and are liable to be quashed/ set aside.

31. As a result, the impugned complaint titled ‘Rajat Jandial v. Sh. J. P.

Sharma & Ors.’, impugned order dated 05.11.2012 passed by the learned

Magistrate and the impugned order dated 26.05.2014 passed by the Revisional

Court, being abuse of the process, are hereby quashed/ set aside, qua petitioners.

Copy of this Judgment be placed across the files of every clubbed petition, with

information to the learned Magistrate.

32. All the petitions are allowed and shall stand disposed of, accordingly,

along with pending applications, if any.

(M A Chowdhary)

Judge

JAMMU

10.04.2026

Raj Kumar

Whether the order is speaking: Yes/ No.

Whether the order is reportable: Yes/ No.