TMI Blog2016 (7) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... e mandate is clear and unambiguous, that a Court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the ‘Code’, is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution. For the reasons recorded hereinabove, and in view of the conclusions recorded by us in paragraph 17, we are of the view that there is no merit in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the charge levelled by the mother of Neeraj Kumar, could not be substantiated. Yet again, based on the accusations levelled by Usha Rani, another investigation was ordered. This time, it was required to be conducted by M.F. Farooqi, IPS. Yet again, in the second enquiry, it was concluded, that there was no material to establish that Neeraj Kumar had been in police detention from 24.06.1999 onwards, till his formal arrest on 28.06.1999. Despite the two reports submitted by two senior police officers, wherein it was found that there was no substance in the allegations levelled by Usha Rani, Gurpreet Deo, IPS, at her own, investigated into the matter. She too arrived at the same conclusion, that there was no substance in the claim of Usha Rani, that her son had been illegally and unauthorisedly detained by police personnel, prior to his formal arrest on 28.06.1999. 5. Usha Rani (mother of Neeraj Kumar) made another written complaint, this time to the Hon'ble Administrative Judge (a sitting Judge of the Punjab and Haryana High Court) having charge of Sessions Division, Kapurthala, on 01.10.1999. In her complaint, she reiterated, that her son Neeraj Kumar had been illegally d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial Court, charges were framed against them on 23.12.2006. The order passed by the trial Court framing charges against the appellants on 23.12.2006 was assailed by the appellants, through Criminal Revision No.348 of 2007. The primary submission advanced on behalf of the appellants before the High Court was, that the Chief Judicial Magistrate, Kapurthala, could not have proceeded against them, in the absence of sanction of prosecution, under Section 197 of the Code . The High Court, by its order dated 09.01.2008, dismissed the Criminal Revision filed by the appellants. The above order dated 09.01.2008 is subject matter of challenge through the instant appeal. 9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf of the appellants, in order to support the claim of the appellants, has drawn our attention to Section 197 of the Code , which is extracted hereunder: 197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Crown cannot by any stretching of the English language be made to apply to an act which is clearly a dereliction of his duty as such. But if an act has purported to be done in execution of duty, it may be done so, only ostensibly and not really, and if done dishonestly may still be a dereliction of duty. The High Court Bench have taken the view that the Section is clearly meant to apply to an act by a public servant which could be done in good faith, but which possibly might also be done in bad faith.....The Section cannot be meant to apply to cases where there could be no doubt that the act alleged must be in bad faith. So far as sub-s. (1) is concerned, the question of good faith or bad faith cannot strictly arise, for the words used are not only any act done in the execution of his duty but also any act purporting to be done in the execution of his duty. When an act is not done in the execution of his duty, but purports to have been done in the execution of his duty, it may very well be done in bad faith; and even an act which cannot at all be done in execution of duty if another is made to believe wrongly that it was being done in execution of duty. It is therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction. (emphasis is ours) In order to substantiate the proposition being canvassed, the learned senior counsel, also invited our attention to R. Balakrishna Pillai vs. State of Kerala, (1996) 1 SCC 478, wherein this Court has held as under: 6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmit an offence, and never can be . At the same time, if they were too widely construed, they 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 is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression 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. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand. 7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the co-acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inter-related 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 situation. XXX XXX XXX 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 reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der : As far as question of sanction for prosecution of petitioners is concerned, the contentions raised by learned counsel for the petitioners could possibly be applicable for the detention period since 28.06.1999 when Neeraj Kumar was shown to have been arrested in FIR No.30 dated 03.03.1999. However, the petitioners are not entitled to protection of Section 197 of the Code for illegal detention and torture of Neeraj Kumar since 24.06.1999 till 28.06.1999 when his arrest was shown in FIR No.30 dated 03.03.1999. The said period of illegal detention and torture has no nexus much less reasonable nexus with the discharge or purported discharge of the official duty of the petitioners. Consequently, the impugned order cannot be said to be illegal because sanction for prosecution of the petitioners is not required for illegal detention and torture of Neeraj Kumar during the aforesaid period. (emphasis is ours) In order to support the conclusions drawn by the High Court, learned counsel for respondent no. 2, also drew our attention to, Om Prakash vs. State of Jharkhand, (2012) 12 SCC 72, wherein this Court held as under : 32. The true test as to whether a public servant was acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngness of the Courts to examine the legality of decision made in reliance on wideranging statutory provision. It has been suggested that the need for the blunt remedy of habeas corpus has diminished as judicial review has developed into an ever more flexible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae. 11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas and corpus . Habeas Corpus literally means have his body . The general purpose of these writs as their name indicates was to obtain the production of the individual before a Court or a Judge. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a person without a warrant (as is the position, alleged in the present case), is mandated to forthwith disclose to the person taken in custody, full particulars of the offence for which he is arrested, as also, the grounds for such arrest. Section 50A obliges the police officer making the arrest, to immediately inform friends/relatives of the arrested person (on obtaining particulars from the arrested person), regarding his detention. And an entry of the arrest, and the communication of the information of the arrest to the person nominated by the detenu, has to be recorded in a register maintained at the police station, for the said purpose. Section 50A of the Code also mandates, that the Magistrate before whom such an arrested person is produced, would satisfy himself that the obligations to be discharged by the arresting officer, had been complied with. 14. Based on the aforesaid provisions of the Code , there cannot be any serious doubt about the fact, that Surinderjit Singh Mand and P.S. Parmar, were holding the rank of Deputy Superintendent of Police, at the relevant time (from 24.06.199 to 28.06.1999). Both the appellants were ...officers superior in rank to an offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the KP Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority. (emphasis is ours) Based on the provisions of the Code , pertaining to arrest and detention of individuals at the hands of police personnel (referred to above), it was submitted, that the arrest of Neeraj Kumar f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assume the position, that the detention of Neeraj Kumar, during the above period, was while acting or purporting to act in the discharge of their official duties. Therefore, in the peculiar facts and circumstances of this case, based on the legal position declared by this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect. 18. It was also the contention of learned counsel for the appellants, that the protection afforded to public servants under Section 197 of the Code , postulating sanction prior to prosecution, on account of the acts committed while discharging their official duties, is to shield public servants from frivolous harassment of prosecution, at the hands of private individuals. It was therefore, the submission of learned counsel for the respondents, that the scope and purview of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce recorded during the trial, that the said person was involved in the commission of an offence. While making a reference to Section 319 of the Code , it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the Code , was by the Court itself, and therefore, the same having been based on evidence , as also, the satisfaction of the Court itself, that such person needed to be tried together with the other accused , it seemed unreasonable, that sanction postulated under Section 197 of the Code should still be required. It was pointed out, that the protection contemplated under Section 197 of the Code , was not a prerequisite necessity, when cognizance was based on the evaluation of evidence by a Court itself. Learned counsel emphasized, that when a Court itself had determined, that cognizance was required to be taken, based on evidence which had been recorded by the same Court, it would be undermining the authority of the concerned Court, if its judicial determination, was considered subservient to the decision taken by the authorities contemplated under Section 197 of the Code . Based on the submissions noticed above, it was the vehement con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh was medically examined on 28.1.2000 and a case was registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act ). After investigation, charge-sheet was submitted only against ASI Jasbir Singh. A closure report was submitted against Dilawar Singh, S.H.O. as in the opinion of the investigating officer he had not committed any offence. It may be mentioned here that for prosecution of ASI Jasbir Singh, necessary sanction had been obtained from the competent authority under Section 19 of the Act. After the statement of the complainant Parvinder Singh had been recorded, he moved an application under Section 319 Cr.P.C. for summoning Dilawar Singh, S.H.O. as a co-accused in the case. After hearing the counsel for the parties, the learned Special Judge dismissed the application by the order dated 7.1.2002. Parvinder Singh filed a revision petition against the aforesaid order which has been allowed by the High Court by the impugned order dated 3.7.2002 and a direction has been issued to summon Dilawar Singh and try him in accordance with law. XXX XXX XXX 4. In our opinion, the contention raised by the learned counsel for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. 6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision. 7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was held that in the absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. 75. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under the P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced. In cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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