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TMI Blog2016 (4) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Criminal Appeal No. 366/2016 Arising out of SLP (Crl.) No. 5592/2012, Criminal Appeal No. 367/2016 Arising out of SLP (Crl.) No. 5614/2012, Criminal Appeal No. 368/2016 Arising out of SLP (Crl.) No. 5617/2012, Criminal Appeal No. 369/2016 Arising out of SLP (Crl.) No. 5619/2012, Criminal Appeal No. 371/2016 Arising out of SLP (Crl.) No. 5622/2012, Criminal Appeal No. 373/2016 Arising out of SLP (Crl.) No. 5668/2012, Criminal Appeal No. 374/2016 Arising out of SLP (Crl.) No. 5669/2012, Criminal Appeal No. 375/2016 Arising out of SLP (Crl.) No. 5697/2012, Criminal Appeal No. 377/2016 Arising out of SLP (Crl.) No. 5706/2012, Criminal Appeal No. 378/2016 Arising out of SLP (Crl.) No. 5712/2012, Criminal Appeal No. 379/2016 Arising out of SLP (Crl.) No. 5714/2012, Criminal Appeal No. 380/2016 Arising out of SLP (Crl.) No. 5716/2012, Criminal Appeal No. 381/2016 Arising out of SLP (Crl.) No. 5812/2012, Criminal Appeal No. 382/2016 Arising out of SLP (Crl.) No. 6005/2012, Criminal Appeal No. 383/2016 Arising out of SLP (Crl.) No. 6006/2012, Criminal Appeal No. 384/2016 Arising out of SLP (Crl.) No. 6014/2012, Criminal Appeal No. 385/2016 Arising out of SLP (Crl.) No. 6057/2012, Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution alleged that they were killed in a fake encounter. On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused as at the relevant time, Under Section 6 of the 1983 Act, sanction from Central Government was required. However, on the basis of sanction obtained from the State Government, the CBI filed chargesheet against the accused persons in the Court of Special Judge, Patiala. The Appellants filed application Under Section 227 of the Code of Criminal Procedure for discharge on the ground that they had acted in the incident in the course of their duty and sanction granted by the State Government was without jurisdiction, illegal and void. 4. The CBI contested the application on the ground that Sections 4 and 5 of the 1983 Act were not applicable and there was no need for obtaining any sanction because the deceased had been killed in a fake encounter. The Special Court dismissed the application filed by the accused persons. Aggrieved thereby, they approached the High Court by filing a criminal revision and the same has also been dismissed. The High Court has held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to cases pending in the trial court at Patiala. 7. It was submitted by learned Counsel appearing on behalf of accused Appellant that sanction to prosecute was necessary in view of the provisions contained in Section 6 of the 1983 Act as amended in 1989. Thus the prosecution could not have been launched without obtaining sanction of the Central Government. This Court by interim order had directed on submission being raised by CBI that the matter will be referred to the Central Government for sanction and in certain cases Central Government had granted sanction and in others it had declined. Sanction to prosecute was necessary as the act was done in discharge of official duties. As a matter of fact, false allegations of fake encounter have been made in the cases. The deceased indulged in various criminal activities. They were creating unrest and the officers have discharged their duties at the time of the incident. Thus without prior sanction to prosecute by the Central Government, they could not have been prosecuted. The prosecution deserves to be quashed. Per contra, it was submitted on behalf of the CBI and the learned Counsel appearing on behalf of the complainant that in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 409, consent of Governor is not necessary but for prosecution Under Section 477A, consent is necessary. 11. Reliance has also been placed on the decision of this Court in Shreekantiah Ramayya Munipalli v. The State of Bombay [1955(1) SCR 1177] wherein this Court had observed thus: Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning. What it says is - when any public servant ..... 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...... We have therefore first to concentrate on the word 'offence'. Now an offence seldom consists of a single act. It is usually composed of several elements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided on their own facts. 13. Reliance has also been placed on a decision of this Court in Matajog Dobey v. H.C. Bhari [1955(2) SCR 925] in which a complaint was filed Under Sections 323, 341, 342, and 109, Code of Criminal Procedure Summons were issued to accused persons Under Section 323. An objection was taken by accused Bhari as to want of sanction Under Section 197 Code of Criminal Procedure It was upheld and all the accused were discharged. The High Court affirmed the order of the Presidency Magistrate. This Court held that where in pursuance of a search warrant issued Under Section 6 of the Taxation on Income (Investigation Commission) Act, 1947, they were required to open the entrance door and on being challenged by the Darwan they tied him with a rope, causing him injuries and alleged to have assaulted the proprietor mercilessly with the help of two policemen. In the facts of the case it was held by this Court that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of Section 197 Code of Criminal Procedure In the matter of grant of sanction Under Section 197 Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. 14. In Bhappa Singh v. Ram Pal Singh and Ors. 1981 (Supp) SCC 12 there was firing by the Customs party as they were resisted in carrying out a raid peacefully and an injury was sustained by the Customs party. This Court considered grant of protection Under Section 108 of the Gold (Control) Act, 1968 providing immunity to an officer for official act done in good faith under the Act. This Court has discussed the matter thus: 6. In view of the circumstances mentioned in the last paragraph, there is little room for doubt that the Customs party was not out to commit dacoity either in the jewellery shop or the chaubara, that they also committed no trespass into either of those places, but that the purpose of the raid was to find out if any illegal activity was being carried on therein. The presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these words are construed too narrowly, the Section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar Under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dubey v. H.C. Bhari AIR 1956 SC 44 thus: [T]he offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... 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 (claim) but not a pretended or fanciful claim, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the Magistrate and establishes that the allegations in the complaint petition do not make out any offence for which process has been issued then the Magistrate will be fully within his powers to drop the proceeding or rescind the process and it is in that connection the Court had observed "if the complaint on the very face of it does not disclose any offence against the accused". The aforesaid observation made in the context of a case made out by the accused either for recall of process already issued or for quashing of the proceedings may not apply fully to a case where the sanction Under Section 197(1) of the Code of Criminal Procedure is pleaded as a bar for taking cognizance. The legislative mandate engrafted in Sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the jurisdiction of the court to take cognizance, the accused would be entitled to produce the relevant and material documents which can be admitted into evidence without formal proof, for the limited consideration of the court whether the necessary ingredients to attract Section 197 of the Code have been established or not. The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority. 25. Considering the facts and circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Respondent. In such circumstances, it cannot but be held that the acts complained of by the Respondent against the Appellant have a reasonable nexus with the official duty of the Appellant. It follows, therefore, that the Appellant is entitled to the immunity from criminal proceedings without sanction provided Under Section 197 Code of Criminal Procedure. Therefore, the High Court erred in holding that Section 197 Code of Criminal Procedure is not applicable in the case. 19. It has been laid down in Gauri Shankar Prasad (supra) that in case offence has been committed while discharging his duties by an accused and there is a reasonable nexus with official duties, if answer is in the affirmative then sanction is required. However it would depend upon the facts and circumstances of each case whether there is a reasonable nexus with official duties to be discharged. 20. In Abdul Wahab Ansari v. State of Bihar and Anr. 2000(8) SCC 500 firing was made by police inspector while removing encroachments due to which one person was killed and two were injured. A private complaint was filed Under Sections 302, 307 etc. on which Magistrate issued summons to the police inspector. A chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise Under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the Appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down in this case without being prejudiced by any observation in the impugned orders. 22. In State of H.P. v. M.P. Gupta 2004(2) SCC 349 this Court has considered the provisions contained Under Section 197 and has observed that the same are required to be construed strictly while determining its applicability to any act or omission during the course of his service. Once any act or omission is found to have been committed by a public servant in discharge of his duty, this Court held that liberal and wide construction is to be given to the provisions so far as its official nature is concerned. This Court has held thus: 11. Such being the nature of the provision, the question is how should the expression, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. There cannot be any universal Rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea can be taken for the first time before an appellate court. In case sanction is held to be illegal then the trial would be held to have been rendered illegal and without jurisdiction, and there can be initiation of fresh trial after the accused was discharged due to invalid sanction for prosecution and a fresh trial was expedited. 26. In Sankaran Moitra v. Sadhna Das and Anr. 2006(4) SCC 584 it was considered that sanction Under Section 197 Code of Criminal Procedure is a condition precedent though the question as to applicability of Section 197 may arise not necessarily at the inception but even at a subsequent stage. Request to postpone the decision on the said question in the instant case, it was held, in the facts of the case was not accepted. The complaint disclosed that the deceased was a supporter of a political party beaten to death by the police at the instance of Appellant police officer near a polling booth on an election day. On the facts it was held that the Appellant committed the act in question during the course of performance of his duty and sanction Under Section 197(1) was necessary for his prosecution. This Court has observed thus: 25. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether it is necessary or not and not by the court as sanction has to be issued only on the basis of sound objective assessment and not otherwise. Prior sanction is a condition precedent. This Court has laid down thus: 82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. 83. If the law requires sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till the charges are framed to raise this plea. 30. In Manorama Tiwari and Ors. v. Surendra Nath Rai 2016(1) SCC 594 in a case of death by alleged negligence of Government doctors, it was held that the sanction for prosecution was necessary. On facts it was held that the Appellants were discharging public duties as they were performing surgery in the Government hospital. Hence criminal prosecution was not maintainable without sanction from the State Government. 31. In Shambhoo Nath Misra v. State of U.P. and Ors. 1997(5) SCC 326 this Court considered the question when the public servant is alleged to have committed the offence of fabrication of false record or misappropriation of public funds etc. Can he be said to have acted in discharge of official duties ? Since it was not the duty of the public servant to fabricate the false records, it was held that the official capacity only enabled him to fabricate the records and misappropriate the public funds hence it was not connected with the course of same transaction. This Court has also observed that performance of official duty under the colour of public authority cannot be camouflaged to commit crime. Public duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The Section has, thus, to be construed strictly while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case between the acts complained of and the office of the Respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the Respondents and they are not entitled, therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act. 88. Similar views have been expressed in Bhanuprasad Hariprasad Dave case AIR 1968 SC 1323 wherein the allegations against the police officer were of taking advantage of his position and attempting to coerce a person to give him bribe. The plea of colour of duty was negatived by this Court and it was observed as under: (AIR p. 1328, para 9) 9. ... All that can be said in the present case is that the first Appellant, a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter Madhukanta handed over to him, coerced Ramanlal to pay illegal gratification to him. This cannot be said to have been done under colour of duty. The charge against the second Appellant is that he aided the first Appellant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted 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 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law. The trial to proceed on the aforesaid basis. Accordingly, we dispose of the appeals/writ petition in the light of the aforesaid directions. 39. Delay, if any, is condoned. 40. Leave granted in the all the special leave petitions. 41. The appeals and the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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