TMI Blog2016 (4) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... and must be done in discharge of official duty. In any view of the matter there must be a reasonable connection between the act and the official duty. It does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only later when the trial proceeds. However no sanction is required where there is no such connection and the official status furnishes only the occasion or opportunity for the acts. In STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND ORS. VERSUS GANESH CHANDRA JEW [ 2004 (3) TMI 824 - SUPREME COURT] this Court has held that protection Under Section 197 is available only when the 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. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection it will not deprive him of the protection. This Court has also observed that there cannot be a universal Rule to determine whether there is a reasonable connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Criminal Appeal No. 386/2016 Arising out of SLP (Crl.) No. 6066/2012, Criminal Appeal No. 387/2016 Arising out of SLP (Crl.) No. 6068/2012, Criminal Appeal No. 388/2016 Arising out of SLP (Crl.) No. 6081/2012, Criminal Appeal No. 389/2016 Arising out of SLP (Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as per prosecution case it is a case of fake encounter, as such sanction is not required. The same could not be said to be an act in discharge of official duties. Aggrieved thereby the Appellants are before this Court. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 such cases of criminal activities, fake encounters, custodial death due to torture etc., sanction to prosecute is not at all required as fake encounters, torture in custody and other criminal acts complained of do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unipalli 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 and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an entrustment and/or dominion ; second, that the entrustment and/or dominion was in his capac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Criminal Procedure, the offence alleged to have been committed by the accused must have something to do with the accused, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty. That must have a relation to the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 two licensed Gold-smiths in the chaubara speaks volumes in that behalf. It may further be taken for granted that the Customs party was manhandled before they themselves resorted to violence, because there was no reason for them to open fire unless they were resisted in the carrying out of the raid peacefully. 7. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 acts or omissions which are done by a public servant in discharge of official duty. In P. Arulswami v. State of Madras (1967) 1 SCR 201 this Court after reviewing the authorities right from the days of Federal Court and Privy Council held: ... It is not therefore every offence committed by a public servant that requires sanction for prosecution Under Section 197(1) of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, that he did it in the course of the performance of his duty. (Emphasis supplied) If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. 16. In Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622, a question came up for grant of sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, it prima facie appears to us that the alleged acts on the part of the Respondents were purported to be in the exercise of official duties. Therefore, a case of sanction Under Section 197 Code of Criminal Procedure has been prima facie made out. Whether it was unjustified on the part of the Respondents to take recourse to the actions alleged in the complaint or the Respondents were guilty of excesses committed by them will be gone into in the trial after the required sanction is obtained on the basis of evidences adduced by the parties. At thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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 challenge was made to the cognizance taken by the Magistrate by filing a petition Under Section 482 before the High Court. The High Court held that the question of sanction can be raised at the time of framing of the charge and decision in Birendra K. Singh v. State of Bihar 2000(8) SCC 498 has been held not to be a good law. This Court has observed that the question of sanction Under Section 497 Code of Criminal Procedure has to be considered at the earlier stage of the proceedings. Ultimately on facts it was held that the police inspector was entitled to protection and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation. x x x x x 15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection Under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability 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 understood? What does it mean? Official according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. 23. In State of Orissa and Ors. v. Ganesh Chandra Jew 2004(8) SCC 40 this Court has held that protection Under Section 197 is available only when the 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. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 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 discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. However, it has also been observed that public servant is not entitled to indulge in criminal activities. To that extent the Section has been construed narrowly and in a restricted manner. 24. In K. Kalimuthu v. State by DSP 2005(4) SCC 512 this Court has observed that official duty implies that an act or omission must have been done by the public servant within the scope and range o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred absolute power on the statutory authority to accord sanction or withhold the same and the court has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 may provide him an opportunity to commit crime. The court during trial or inquiry has to apply its mind and record a finding on the issue that crime and official duty are integrally connected or not. This Court has held thus: 4. .... The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 the course of service but not in discharge of his duty and without any justification therefor then the bar Under Section 197 of the Code is not attracted. 33. In P.P. Unnikrishnan and Anr. v. Puttiyottil Alikutty and Anr. 2000(8) SCC 131, law to the same effect as in the above decision has been reiterated. The police officers kept a person in lock-up for more than 24 hours without authority and subjected him to third degree treatmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice 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 his illegal activity. x x x x x 94. In B. Saha case (1979) 4 SCC 177 this Court was dealing primarily with the question as to whether sanction Under Section 197 Code of Criminal Procedure was required where a Customs Officer had misappropriated the goods that he had seized and put them to his own use. While dealing with this submission, it was also observed as under: (SCC p. 184, para 14) 14. Thus, the material brought on the record up to the stage when the question of want of sanction was raised by the Appellants, contained a clear allegation against the Appellants about the commission of an offence Under Section 409 of the Penal Code. To elaborate, it was substantially alleged that the Appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim. 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 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 san ..... X X X X Extracts X X X X X X X X Extracts X X X X
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