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TMI Blog2024 (12) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the applications and quashed the proceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others) pending before the CJM, Firozabad, both arising out of Case Crime No. 617 of 2007 registered for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for short, the "IPC") with the Dakshin Police Station, District Firozabad, Uttar Pradesh. A. FACTUAL MATRIX 3. On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the "appellant") lodged a First Information Report (hereinafter, "FIR") as Case Crime No. 617 of 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307 of IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Dixit and three others. The FIR alleged that the appellant's brother, Suman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad, was killed and his brother's son Harsh aged about 4 ½ years was grievously injured by the aforesaid accused persons by indiscriminately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Murar, Gwalior allegedly for the purpose of shielding the accused, Ashok Dixit, was still pending. 6. Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded the statements of SHO D.S. Khushawa, respondent no. 3, respondent no. 4 and respondent no. 5 respectively of the Murar Police Station, Gwalior under Section 161 of CrPC. 7. Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad moved an application before the CJM, Gwalior, Madhya Pradesh, requesting that the proceedings in Case No. 15003 of 2007 relating to the Case Crime No. 967 of 2007 under Section 34 of the Excise Act filed against the accused Ashok Dixit, pending before him, be stayed. The application alleged that the respondent no. 1 who was posted in Gwalior as Town Inspector (for short, "TI") was a relative of the accused Ashok Dixit. It was further alleged that the respondent nos. 1, 3, 4 and 5 respectively had conspired to shield the accused from the offence of murder by creating a bogus case under Section 34 of the Excise Act with the sole object of providing the accused with an alibi for the crime alleged to have been committed in Firozabad. The incident in Firozabad occurred at 08:30 am while th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the High Court of Allahabad and vide order dated 23.07.2008, the arrest of respondent no. 1 was stayed. 12. On 30.07.2008, the Superintendent of Police, Firozabad, addressed one another letter to the D.I.G., Gwalior in the form of a reminder to accord sanction under Section 197 CrPC for prosecuting the respondents herein. However, on 02.08.2008, the D.I.G., Gwalior replied to the Superintendent of Police, Firozabad, informing him that sanction for prosecution cannot be granted till the disposal of the trial in connection with Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior for the offence under Section 34 of the Excise Act. 13. On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 of 2008 under Section 482 CrPC before the High Court of Madhya Pradesh at Gwalior for quashing the criminal proceedings concerning Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007 registered for the offence under Section 34 of the Excise Act pending before the Court of CJM, Gwalior. In the alternative, it was prayed that the proceeding be stayed till a decision is arrived at in the case pending against Ashok Dixit before the CJM, Firozabad, concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Murar Police Station, Gwalior at the time of the arrest of Ashok Dixit for the offence under Section 34 of the Excise Act and therefore, the provision of sanction under Section 197 CrPC would not be attracted against the respondent no. 1. It is pertinent to observe here that it is the case of the respondent no. 1 herein that the Charge Sheet No. 3A of 2008 was backdated to 03.11.2008 when in fact it was actually filed on 24.11.2008 before the Magistrate. 15. The mother of respondent no.1, while alleging that the appellant was trying to falsely implicate the respondent no. 1 in the case of murder, moved an application before the D.I.G., Firozabad, requesting that the investigation be transferred from the Dakshin Police Station to some other police station. The D.I.G., Firozabad vide order dated 11.11.2008 directed the Senior Superintendent of Police, Firozabad (for short, "S.S.P.") to look into the matter. Thereafter, the S.S.P. called for a status report on the case from the Circle Officer vide letter dated 14.11.2008. The status report submitted by the Circle Officer revealed that while the respondent no.1 had obtained a stay on his arrest from the High Court, the arrest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alse. The above mentioned police officials have been suspended after conducting a departmental investigation also they have been named for conspiring the death along with accused Ashok Dixit in the charge sheet that has been presented before CJM, Firozabad in which they have been charged u/s 302, 120B I.P.C... It is correct that the distance of 160 kilometres cannot be covered in one hour and if accused Ashok Dixit was at Murar, Gwalior at 9.30 a.m., then he cannot be involved in the commission of incident at Firozabad at 8.30 a.m. It was contended in this regard on behalf of the prosecution that accused Ashok Dixit is a cunning criminal. He showed his presence there colluding with Murar Police station, Gwalior in order to escape himself from the offence of murder. The investigator SHO Shri Baldhari Singh made enquiries after going there, then the whole matter was found forged and the investigator gave an application to SSP Gwalior in this regard and also submitted an application before JM Gwalior Madhya Pradesh and keeping the investigation in progress, it was found that in order to save accused Ashok Dixit from the heinous crime like murder, the forged arrest and his release on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed on record from 613B/25 to 613B/30. SLP has been filed against the said order before the Hon'ble Supreme court which was not admitted for hearing, the copy of the same is filed on record at 613B/31, Therefore, no profit of case under Section 34 of Excise Act cannot be given to accused Ashok Dixit and his presence at Murar, District Gwalior at the time of incident under the case of 34 Excise Act has been found forged and the accused has made a forged plea of alibi colluding with the police officials." (emphasis supplied) 19. The High Court at Allahabad heard the Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed them vide the common Judgment and Order dated 19.04.2018. The High Court quashed the proceedings in Case Nos. 67 of 2008 and 67A of 2009 respectively essentially on the ground that sanction to prosecute the respondent nos. 1, 3, 4, and 5 respectively under Section 197 CrPC was necessary & since it had not been obtained, the trial cannot proceed. The relevant observations are reproduced hereinbelow: "Admittedly, the applicants are public servant and case was registered under Section 34 Excise Act against main accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting in collusion with Ashok Dixit. Furthermore, those police officials have also been suspended and a departmental enquiry has been initiated against them. Therefore, it was submitted that the respondent no. 1 cannot assert that he has been erroneously implicated in Case Crime No. 617 of 2007 registered for the offence under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with the Dakshin Police Station, Firozabad, Uttar Pradesh. 22. The counsel submitted that the High Court fell in serious error while passing the impugned order. The High Court could be said to have travelled beyond its jurisdiction by quashing the criminal proceedings against the respondents on the ground that the Trial Court has already decided the case against Ashok Dixit and the other accused. The Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty of the offence of murder of the appellant's brother. 23. The counsel submitted that the High Court erroneously quashed the criminal proceedings against the respondents saying that the accused respondents being public servants, the sanction to prosecute for the alleged offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the concerned officials to register such an FIR. In fact, the respondent no. 1 was posted at District Shivpuri which is 120 kms away from Gwalior at the time of filing the Case Crime No. 967 of 2007 on 12.10.2007. 28. The counsel submitted that the respondent no. 1 had neither filed the FIR in Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior nor was he associated with the said police station in any manner. However, assuming without conceding that the said FIR was registered at the behest of respondent no. 1, sanction for prosecution with respect to Case Crime No. 617 of 2007 is required. It is an admitted fact that sanction was refused by the D.I.G., Gwalior vide its letter dated 02.08.2008. 29. The counsel further submitted that there are bleak chances of conviction of the respondent no. 1 for the following reasons - (a) the respondent no. 1 was not posted at the Murar Police Station, Gwalior where the Case Crime No. 967 of 2007 was registered, (b) the respondent no. 1 is 72 years old and no purpose would be served if the respondent no. 1 was made to face trial at this stage when the Case Crime No. 617 of 2007 was admittedly filed in the 2007, (c) the Tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence of murder and there is nothing on record to even remotely suggest that the respondent no. 1 had knowledge about the incident of murder. 33. In light of the above, the counsel submitted that the impugned Judgment and Order of the High Court quashing the criminal proceedings against the respondent no. 1 may not be interfered with. D. SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS. 3, 4 AND 5. 34. Ms. Nanita Sharma, the learned counsel appearing for the respondent nos. 3, 4, and 5 respectively submitted that the Uttar Pradesh police was bent upon falsely implicating her clients for the offence under Sections 302 and 120-B IPC. This is evident from the following - (a) the statements of Ramesh Yadav and Barelal were recorded under Section 161 CrPC after a gap of one year from the date of the offence committed at Firozabad i.e., 12.10.2007, (b) the address of Barelal as recorded by the IO while recording his statement under Section 161 CrPC was found to be incorrect and as per the information of the Sarpanch, no person with the name of Barelal had ever lived at the said address. The permanent address of the witness Barelal was not in existence even as per the certificate give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le acting or purporting to act in the discharge of official duty"? F. ANALYSIS 39. Section 197 CrPC reads as under: "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 act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and 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." 40. The 41st Report of the Law Commission of India contextualizes the object behind the enactment of Section 197 CrPC by pointing out that it enables the more important categories of public servants, performing onerous and responsible functions, to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. Under the erstwhile Code of Criminal Procedure, 1898, the ambit of the Section was considered a bit too wide since it read - "is accused as such Judge or public servant of any offence". However, to offer more precision, the Amending Act of 1923 inserted the phrase - "is accused of any offence alleged to have been committed by him while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne in the execution of the duty. The reference as obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact connected with it. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is in the discharge of an official duty. It must purport to be done in the official capaci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness would not make the section automatically applicable. 44. His Lordship, Varadachariar, J, in his concurring opinion, expressed that the question of whether or not the act complained of is one "purporting to be done in execution of his duty" as a public servant is substantially one of fact which is to be determined with reference to the act complained of along with the attendant circumstances. It would not be wise nor desirable to lay down any hard and fast tests in this regard. 45. The Judicial Committee of the Privy Council in Gill and Another v. The King reported in AIR 1948 PC 128 was faced with deciding whether sanction was required under Section 197 CrPC for the prosecution of a public servant charged with the offence of bribery and/or conspiracy to take bribes. The Court was of the opinion that it was impossible to distinguish or differentiate between S. 270 of the Government of India Act, 1935 and S. 197 CrPC, at least in relation to offences of this character. Therefore, the decision in Dr. Hori Ram Singh (supra) would be of great assistance in cases pertaining to S. 197 as well. It was observed that a public servant can only be said to act or purport to act in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Criminal Procedure Code 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. ..." (emphasis supplied) 48. In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309, the appellant was charged under Section 465 IPC for forging the thumb- impression of an individual and under Section 409 IPC for the criminal misappropriation of a certain sum. The Court opined that if the act complained of is directly concerned with the official duty of the public servant so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. This would be irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits which would have to be investigated at trial and not be examined at the stage of granting sanction for prosecution. Therefore, the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C but the difference in those tests were only in language and not in substance. The Court laid down a more refined test that there must be a reasonable connection between the act done and the discharge of the official duty and the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Therefore, what one must ascertain is whether the act and the official duty are so interrelated such that it can be reasonably postulated that it was done in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. The relevant observations are as follows: "17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the 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". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by s. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable..." (emphasis supplied) 52. In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3 SCC 89 the appellants were alleged to have entered into a criminal conspiracy for committing the offences of criminal breach of trust and cheating in respect of a large amount of government money earmarked for a development project. The Court opined that sanction under Section 197 CrPC would not be necessary since it is no part of the duty of a public servant while disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riation could not reasonably be said to be imbued with the color of office or having a direct connection with the duties of the appellants as public servants. Therefore, sanction was not considered necessary. While observing so, the Court stated that the expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" must neither be construed narrowly nor widely and the right approach would be to arrive at a balance between the two extremes. Therefore, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be committed by the public servant either in his official capacity or under the color of the office held by him such that there is a direct or reasonable connection between the act and the official duty. The relevant observations are as thus: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official" should be interpreted such that the objective of the section is advanced in favor of the public servant. 55. In R. Balakrishna Pillai v. State of Kerala and Another reported in (1996) 1 SCC 478, the appellant who was the then Minister for Electricity for the State of Kerala was alleged to have entered into a criminal conspiracy to sell electricity to an industry in the State of Karnataka without the consent of the Government of Kerala. The Court stressed that the quality of the act must be looked into and there can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant, the protection under Section 197 CrPC would have no application. The question of whether the act complained of had a direct nexus with the discharge of official duties would depend on the facts of each case and it was stated as thus: "6. ...The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on to state that the protection given under Section 197 CrPC must not be viewed as limitless. This protection has certain limits and is available only when the alleged act done is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act. However, if the public servant acted in excess of his official duty but there exists a reasonable connection between the act and the performance of his official duty, the excess cannot be a sufficient ground to deprive him of the protection under Section 197 CrPC. Therefore, it was re-iterated that it is the "quality" of the act which is important and such an act must fall within the scope and range of the public servant's official duty. While there cannot be any universal rule to determine whether there exists a reasonable connection between the act done and the official duty, one "safe and sure test" in this regard would be to consider if the omission or neglect on 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, the protection under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SCC 584, the appellant police officer was accused of killing the complainant's husband while carrying out a lathi-charge near the polling- booth on an election day. While the Bench in its majority opinion had held that the appellant was acting in the discharge of his official duty, C.K. Thakker, J, in his minority opinion had stated that the act complained of had no nexus, reasonable connection or relevance to the official act or duty of such public servant and was otherwise, illegal, unlawful and high- handed. He went on to state that it is not only the "power" but the "duty" of the court to apply its mind to the factual situation before it. The Courts must ensure that on the one hand, the public servant is protected if the case is covered by Section 197 CrPC and on the other hand, that appropriate action would be allowed to be taken if the provision is not attracted and the accused is trying to take undue advantage of the section under the guise of his position as a public servant. The relevant observations are as thus: "67. From the aforesaid decisions, in my opinion, the law appears to be well settled. The primary object of the legislature behind Section 197 of the Code is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 (Investigating Officer) and the co- accused visited her house under the pretext of conducting an investigation, threatened her and her husband to make a tutored statement and had also tried to obtain the husband's signature on a blank paper under threatening circumstances. While the Magistrate had taken cognizance, the High Court had quashed the proceedings for want of sanction. In such circumstances, the following observations were made: "18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 CrPC. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56: 1970 SCC (Cri) 292 : (1971) 1 SCR 317] the underlying object of Section 197 CrPC is to enable the authorities to scrutinise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and R filed a complaint against M, the respondent threatened them to withdraw the same. The Court stated that none of the acts alleged against the respondent, can by any stretch of imagination, be held to have been carried out in his capacity as an Executive Magistrate. Hence, the invocation of Section 197 CrPC was wholly uncalled for. While emphasizing that the test of direct and reasonable connection between the official duty of the accused and the acts allegedly committed by him is the true test, the Court stressed that public functionaries cannot, under the cloak of the purported discharge of official duties, resort to the harassment and humiliation of the citizens on the pretext of a complaint having been received by them. The relevant observations are reproduced hereinbelow: "63. The test of direct and reasonable connection between the official duty of the accused and the acts allegedly committed by them is, therefore, the true test to be applied while deciding whether the protection of Section 197 CrPC is available to a public servant accused of the commission of an offence. The High Court has not adverted to this test nor has it held that there existed a direct and reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the respondent cannot, therefore, be said to be in discharge of his official duties or in the purported discharge of such duties. 66. Public functionaries cannot under the cloak of purported discharge of official duties resort to harassment and humiliation of the citizens on the pretext of a complaint having been received by them, especially when the same does not disclose the commission of any offence triable by the Executive Magistrate or cognizable by the police; nor was there any other proceeding in connection with which such conduct could be justified in law. The plea of the respondent that the prosecution was barred under Section 197 CrPC has, therefore, to be rejected." (emphasis supplied) 62. In Rajib Ranjan v. R. Vijaykumar reported in (2015) 1 SCC 513, a complaint was filed against the appellant public officials for conspiracy to create false documents. This Court had held that even while discharging official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such a misdemeanor must not be treated as an act in the discharge of his official duties in order to grant protection under Section 197 CrPC and elaborated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar." [Ed. : As observed in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89, 115, para 66 : 1972 SCC (Cri) 409.] ' [Ed. : Quoted from State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690, 692, para 7 : 1999 SCC (Cri) 1031.] " 17. Likewise, in Shambhoo Nath Misra v. State of U.P. [(1997) 5 SCC 326 : 1997 SCC (Cri) 676 : AIR 1997 SC 2102] , the Court dealt with the subject in the following manner : (SCC p. 328, para 5) "5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said view of sanction is to be considered, it could be done at the stage of trial only." (emphasis supplied) 64. This Court in Surinderjit Singh Mand and Another v. State of Punjab and Another reported in (2016) 8 SCC 722 was faced with a factual scenario wherein an accused was allegedly arrested in a theft case by the appellant police officers on 24.06.1999 but was formally and officially shown to have been arrested only on 28.06.1999. Prosecution was initiated against the appellant officers on the basis of an FIR registered at the instance of the mother of the accused in relation to the alleged illegal detention of the accused for the period from 24.06.1999 to 28.06.1999. While holding that no sanction to prosecute was required in the circumstances of an illegal detention, this Court observed as thus: "23. Having given our thoughtful consideration to the contention advanced at the hands of the learned counsel for the respondents, we are of the view that the decision rendered by this Court in P.P. Unnikrishnan case [P.P. Unnikrishnan v. Puttiyottil Alikutty, (2000) 8 SCC 131 : 2000 SCC (Cri) 1460] is clear and emphatic. The same does not leave any room for making any ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as regards the scope of application of this provision. In this context, the position of law may be summarized as under: - (i) The object behind the enactment of Section 197 CrPC is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity. It is to ensure that the public servants are not prosecuted for anything which is done by them in the discharge of their official duties, without any reasonable cause. The provision is in the form of an assurance to the honest and sincere officers so that they can perform their public duties honestly, to the best of their ability and in furtherance of public interest, without being demoralized. (ii) The expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in Section 197 CrPC must neither be construed narrowly nor widely and the correct approach would be to strike a balance between the two extremes. The section should be construed strictly to the extent that its operation is limited only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otection under Section 197 CrPC if it is found that there existed a reasonable connection between the act done and the performance of his official duty. (viii) It is the "quality" of the act that must be examined and the mere fact that an opportunity to commit an offence is furnished by the official position would not be enough to attract Section 197 CrPC. (ix) The legislature has thought fit to use two distinct expressions "acting" or "purporting to act". The latter expression means that even if the alleged act was done under the color of office, the protection under Section 197 CrPC can be given. However, this protection must not be excessively stretched and construed as being limitless. It must be made available only when the alleged act is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act. (x) 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 such a rule. However, a "safe and sure test" would be to consider if the omission or neglect on the part of the public servant to commit the act complained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al duty. The mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply Section 197 CrPC. Allowing so, would enable the accused to use their status as public servants as a facade for doing an objectionable, illegal and unlawful act and take undue advantage of their position. If the Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior, by respondent nos. 3, 4 and 5 respectively, was a false case, then there is no doubt that the refusal to grant sanction would not operate as a bar for their prosecution. Moreover, as far as the case of respondent no. 1 is concerned, it is an undisputed fact that he was not even posted as the S.H.O or T.I at the Murar Police Station when the said false case was registered. The same is evident from the affidavit submitted by the IO at Firozabad before the High Court. Additionally, the respondent no. 1 has himself admitted in his submissions before us that he was in fact posted at District Shivpuri which is 120 kms away from Gwalior during the relevant time. Therefore, any act or offence committed by the respondent no. 1 in the present case can safely be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 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." (emphasis supplied) 69. In Pukhraj v. State of Rajasthan and Another reported in (1973) 2 SCC 701, the 2nd respondent was alleged to have abused and kicked his clerk who was his subordinate and was charged under Sections 323 and 504 IPC. The Court opined that such an act cannot be said to be in the purported exercise of his duty and held that sanction under Section 197 CrPC was not necessary. However, it was also observed that the necessity of sanction may reveal itself in the course of progress of the case and that it would be open to the accused to place materials on record during the trial for showing what his duty was and also that the acts complained of were so interrelated to his duty that protection under Section 197 CrPC must be granted to him. It was observed as follows: "3. We must also make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad v. King- Emperor [AIR 1946 FC 25 : 1954 FCR 227 : 47 Cri LJ 838] referring to the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had emphasized that a balance has to be struck between protecting public servants from being harassed in criminal prosecutions and protecting the rights of the citizens against unlawful acts of public servants. This must be done by examining as to what extent and how far is a public servant working in the discharge or purported discharge of his duties and whether the public servant had exceeded his limit. Having said so, it was observed that criminal trials must also not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. The relevant observations are reproduced hereinbelow: "6. In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 16. In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 the 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." (emphasis supplied) 74. The legal position that emerges from the discussion of the aforesaid case laws is that: (i) There might arise situations where the complaint or the police report may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty. However, the facts subsequently coming to light may establish the necessity for sanction. Therefore, the question whether sanction is required or not is one that may arise at any stage of the proceeding and it may reveal itself in the course of the progr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions regarding the registration of the case under the Excise Act by the accused respondents. The Trial Court had arrived at a categorical finding that the second FIR was registered as a result of collusion by the present accused respondents with Ashok Dixit. It has been observed that the IO at Dakshin, Firozabad after thorough investigation had found out that the entire case was concocted and hence, the Charge Sheets giving rise to Case Nos. 67 of 2008 and 67A of 2009 had been filed against the accused respondents for being involved in the conspiracy of murder. The Trial Court also observed that the accused respondents had been suspended by the SSP, Gwalior and a departmental inquiry had been initiated against them. Adding to the above, the High Court of Madhya Pradesh vide order dated 25.08.2009 had also stayed the proceedings in Case No. 15003 of 2007 (State vs. Ashok Dixit) under Section 34 of the Excise Act which is pending before the CJM, Gwalior for the reason that a decision in that case might cause severe prejudice to the case of murder of the appellant's brother. 77. The statements of the respondent nos. 3, 4 and 5 respectively recorded earlier by the IO at Dakshin, Firo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements" under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict" such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court have gone wrong." (emphasis supplied) 79. Moreover, the statements of the two independent witness i.e., Ramesh Yadav and Barelal recorded on 25.10.2008 by the IO at Dakshin, Firozabad, implicating the respondent no. 1, cannot be taken as a gospel truth either, especially when they were not examined in the Session Trial Nos. 753 and 753A of 2008 respectively which resulted in the conviction of the accused Ashok Dixit. Therefore, we are a bit hesitant to rely on the version of events as stated under these statements recorded under Section 161 CrPC at this stage. It would be best left for the Trial Court to decide the truthfulness and veracity of these statements which allegedly prove the case of the prosecution. 80. Furthermore, the respondent no. 1 has contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act before the CJM, Gwalior. However, those proceedings have been stayed by the High Court of Madya Pradesh vide order dated 25.08.2009 and therefore, the question of sanction can be re-visited, if found necessary. 83. As far as respondent no. 1 is concerned, it is made clear that there would be no requirement for sanction since he was not acting in the discharge of his official duty by virtue of not being posted at Murar Police Station, Gwalior at the relevant time when the alleged false case was registered. As a consequence, the extent of the involvement of respondent no. 1 in the alleged conspiracy to murder can be determined by the Trial Court upon a further examination of the evidence adduced before itself. However, so far as the respondent nos. 3, 4 and 5 respectively are concerned, if the case of the prosecution that they had also played a dubious role in registering a false case is correct then the requirement of sanction would not be a sin qua non for proceeding further with the criminal proceedings. However, the defence must be given an opportunity to rebut the same by leading appropriate evidence. 84. At this juncture on a prima facie examination of the materials a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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