2023 (4) TMI 1431 - SC - Indian Laws

Rejection of closure report filed by the Central Bureau of Investigation (CBI) which was filed against the appellant - cognizance by Magistrate against public servant - Delhi Police is the authority which sanctions prosecution under Section 197 of the Cr.P.C. - HELD THAT - The period in question when he had a connection with the theater in question can be seen as 1979-1980. We have already indicated indisputably the train of events which unfolded and the genesis of which is the issuance of the notification in 1976 by the Lieutenant Governor. The number of seats were allowed to be increased. The appellant had nothing to do with that. Based on the decision the seats were increased. Again the appellant was nowhere near the scene at the time. The appellant took over on 02.02.1979. On 27.07.1979 a notification came to be issued revoking the earlier notification issued on 13.09.1976. Acting strictly in obedience to the said notification revoking the earlier notification the appellant did issue an order dated 28.07.1979. The subsequent notification revoking the earlier notification as also the action of the appellant came to be impugned before the High Court of Delhi. An interim order followed. The appellant did defend the action as was expected of him as an official respondent. It is thereafter that the High Court proceeded to render its judgment. The High Court found that the relaxations granted under the proviso to Rule 3(3) were capable of being modified or revoked and in the circumstances the cancellations of the relaxations were justified and legal. It may be true that with the benefit of hindsight following the unfortunate tragedy which took place nearly 17 years thereafter the loopholes fatal as it turned out to be the action of the appellant and the members of the Committee had been laid bare - On considering the question of cognizance being taken in the absence of sanction and thereby Section 197 of the Cr.P.C. being flouted it is not to be conflated and thereby confused with the question as to whether an offence has been committed. The salutary purpose behind Section 197 of the Cr.P.C. is protection being accorded to public servants. When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts and therefore would have to be decided on a case to case basis. The Magistrate erred in the facts of this case in taking cognizance against the appellant contrary to the mandate of Section 197 of the Cr.P.C. On that short ground alone the appellant succeeds. The appeal is allowed. The impugned order will stand set aside. The proceedings challenged in Section 482 will stand quashed. It is made clear that this will not stand in the way of the competent authority taking a decision in the matter and/ or granting sanction for prosecuting the appellant in accordance with law. Appeal allowed.

Summary

ISSUES:

Whether cognizance can be taken against a public servant for offences alleged to have been committed in the discharge or purported discharge of official duties without prior sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.).Whether the power under Section 319 Cr.P.C. to summon additional accused can be exercised after the conclusion of trial and pronouncement of judgment against original accused.Whether the absence of sanction under Section 197 Cr.P.C. renders the taking of cognizance and issuance of summons against a public servant illegal and liable to be quashed under Section 482 Cr.P.C.Whether acts or omissions occurring many years prior to the incident can attract criminal liability without sanction under Section 197 Cr.P.C.Whether conduct or pleadings of a public servant can disentitle him from protection under Section 197 Cr.P.C.Whether the requirement of sanction under Section 197 Cr.P.C. applies equally to cognizance taken under Section 319 Cr.P.C.

RULINGS / HOLDINGS:

The Court held that "once the person against whom cognizance is taken was holding a public office within the meaning of Section 197 of the Cr.P.C. and the act or omission attributed to him is done in the discharge of his official duties or in the purported exercise of his official duties," it is "completely illegal for the judicial officer concerned to move the law forward against him by taking cognizance in the absence of sanction."The power under Section 319 Cr.P.C. to summon additional accused "is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction," and "if the order is passed … after the order of acquittal or imposing sentence … the same will not be sustainable."The absence of sanction under Section 197 Cr.P.C. renders the Magistrate's order taking cognizance and issuing summons "bad in law" and an "abuse of the process of Court," warranting quashing of the proceedings under Section 482 Cr.P.C.Acts or omissions of the public servant during the period 1979-1980, including issuing orders and filing counter affidavits in official capacity, were "done in the exercise of his official duties" or "purported exercise" thereof, entitling him to protection under Section 197 Cr.P.C.The Court found no basis to deny protection under Section 197 Cr.P.C. on account of the appellant's conduct or change in pleadings, emphasizing that "the subtle and nuanced distinction between the question as to whether the offence has been committed and if an offence has been committed, whether a sanction is required" must not be lost sight of.The Court did not decide on whether sanction is required for cognizance under Section 319 Cr.P.C. as the appellant succeeded on the ground of absence of sanction for cognizance under Section 190 Cr.P.C.

RATIONALE:

The Court applied the statutory framework of Section 197 of the Cr.P.C., which mandates prior sanction from the competent authority before taking cognizance of offences alleged against public servants for acts done in discharge or purported discharge of official duties, to protect public servants from malicious or vexatious prosecution.Precedent decisions were relied upon, including D. Devaraja v. Owais Sabeer Hussain, Indra Devi v. State of Rajasthan, Abdul Wahab Ansari v. State of Bihar, and Devinder Singh v. State of Punjab, which clarify the scope and application of Section 197 Cr.P.C., including the requirement of "reasonable connection" between the act and official duty and the timing of sanction consideration.The Court distinguished the question of whether an offence was committed from the requirement of sanction, emphasizing that the latter concerns jurisdictional competence of the court to take cognizance.The Court noted that the public servant's acts were "indisputably traceable to the discharge of the official duty" and even if done in "purported exercise," Section 197 protection applies.The Court recognized that sanction can be considered at any stage, including before or after framing of charges, and that failure to obtain sanction renders cognizance invalid.The Court acknowledged the gravity of the incident and lapses found in related judgments but confined its analysis solely to the legal question of sanction under Section 197 Cr.P.C.The Court set aside the impugned order and quashed the proceedings against the appellant on the sole ground of lack of sanction, leaving open the possibility for the competent authority to grant sanction and initiate proceedings in accordance with law.