DEVINDER SINGH & ORS. Vs. STATE OF PUNJAB THROUGH CBI

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 190 of 2003, Judgment Date: Apr 25, 2016

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE/ORIGINAL JURISDICTION

CRIMINAL APPEAL NO.190 OF 2003

Devinder Singh & Ors. … Appellants

Vs.

State of Punjab through CBI … Respondent

[With Criminal Appeal No.352/2016 @ SLP (Crl.) Nos.3324/2016 @ Crl.MP
No.10040/2004, WP (Crl.) No.139/2012, Criminal Appeal No.353/2016 @ SLP
(Crl.) No.3352/2006, Criminal Appeal No.354/2016 @ SLP (Crl.) No.4729/2012,
Criminal Appeal No.355/2016 @ SLP (Crl.) No.4739/2012, Criminal Appeal
No.356/2016 @ SLP (Crl.) No.4743/2012, Criminal Appeal No.357/2016 @ SLP
(Crl.) No.4759/2012, Criminal Appeal No.358/2016 @ SLP (Crl.) No.5369/2012,
Criminal Appeal No.360/2016 @ SLP (Crl.) No.5419/2012, Criminal Appeal
No.361/2016 @ SLP (Crl.) No.5435/2012, Criminal Appeal No.362/2016 @ SLP
(Crl.) No.5522/2012, Criminal Appeal No.363/2016 @ SLP (Crl.) No.5547/2012,
Criminal Appeal No.364/2016 @ SLP (Crl.) No.5578/2012, Criminal Appeal
No.365/2016 @ SLP (Crl.) No.5590/2012, Criminal Appeal No.366/2016 @ SLP
(Crl.) No.5592/2012, Criminal Appeal No.367/2016 @ SLP (Crl.) No.5614/2012,
Criminal Appeal No.368/2016 @ SLP (Crl.) No.5617/2012, Criminal Appeal
No.369/2016 @ SLP (Crl.) No.5619/2012, Criminal Appeal No.371/2016 @ SLP
(Crl.) No.5622/2012, Criminal Appeal No.373/2016 @ SLP (Crl.) No.5668/2012,
Criminal Appeal No.374/2016 @ SLP (Crl.) No.5669/2012, Criminal Appeal
No.375/2016 @ SLP (Crl.) No.5697/2012, Criminal Appeal No.377/2016 @ SLP
(Crl.) No.5706/2012, Criminal Appeal No.378/2016 @ SLP (Crl.) No.5712/2012,
Criminal Appeal No.379/2016 @ SLP (Crl.) No.5714/2012, Criminal Appeal
No.380/2016 @ SLP (Crl.) No.5716/2012, Criminal Appeal No.381/2016 @ SLP
(Crl.) No.5812/2012, Criminal Appeal No.382/2016 @ SLP (Crl.) No.6005/2012,
Criminal Appeal No.383/2016 @ SLP (Crl.) No.6006/2012, Criminal Appeal
No.384/2016 @ SLP (Crl.) No.6014/2012, Criminal Appeal No.385/2016 @ SLP
(Crl.) No.6057/2012, Criminal Appeal No.386/2016 @ SLP (Crl.) No.6066/2012,
Criminal Appeal No.387/2016 @ SLP (Crl.) No.6068/2012, Criminal Appeal
No.388/2016 @ SLP (Crl.) No.6081/2012, Criminal Appeal No.389/2016 @ SLP
(Crl.) No.6083/2012, Criminal Appeal No.390/2016 @ SLP (Crl.) No.9925/2012
and Criminal Appeal No.391/2016 @ SLP (Crl.) No. 4702/2012]

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted in all the special leave petitions.
2. In the appeals the question involved is whether in view of the
provisions contained in section 6 of Punjab Disturbed Areas Act, 1983 (as
amended in 1989) (for short “the 1983 Act”) the prosecution or other legal
proceedings relating to Police officers can be instituted without prior
sanction of the Central Government.
3. The case set up by the appellants in Criminal Appeal No.190 of 2003
is that they are the officers of the Punjab Police. At the relevant time
they were entrusted with the duties and responsibilities of public order
and peace in the State of Punjab. It is averred by the appellants that, in
the early 1980s, there was a sudden spurt in the terrorist activities,
massive killings at the hands of terrorists, looting, extortions,
kidnapping, resulting into total collapse of the civil administration. More
than 25,000 civilians, 1800 men in uniform and their relatives had been
killed at the hands of the terrorists resulting into migration of civil
population in the border districts of Amritsar, Ferozpur and Gurdaspur.
District Amritsar was bifurcated into three police districts for the
purpose of better administration, namely Amritsar, Taran Taran and Majitha.
The present cases arise from police district Taran Taran which is the
closest police district to Pakistan.
It is further averred that on 22.7.1993 four persons were killed in
an encounter with the police. The prosecution alleged that they were killed
in a fake encounter. On the basis of the complaint lodged by Chaman Lal,
father of one of the deceased, the CBI obtained sanction from the State
Government to prosecute the accused as at the relevant time, under section
6 of the 1983 Act, sanction from Central Government was required. However,
on the basis of sanction obtained from the State Government, the CBI filed
chargesheet against the accused persons in the Court of Special Judge,
Patiala. The appellants filed application under section 227 of the Cr.P.C.
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 facts are more or less similar in all the cases.
5. Writ Petition (Crl.) No.139/2012 has been filed by Chaman Lal with a
prayer that Union of India may be directed to grant sanction under section
197 Cr.P.C. for prosecution of police officer as set out in the affidavit
of CBI filed in Appeal No.190/2003.
6. This Court vide order dated 20.7.2001 stayed the further proceedings
before the trial court in SLP (Crl.) No.2336/2001 - Balbir Singh & Ors. v.
State of Punjab. Similar orders of interim stay were passed in other cases
also. One such order was passed on 21.1.2002 in SLP (Crl.) Nos.3072-75/2001
and these matters had been tagged. On behalf of the accused appellants,
order dated 16.2.2006 has been referred to in which it has been observed
that the CBI had stated during the course of the arguments that the mater
be sent to the Central Government with the entire record to consider the
question of sanction in terms of section 6 of the 1983 Act. This Court in
view of the stand taken by the CBI continued the interim stay on operation
of the impugned orders and observed that the Central Government will
consider the matter in terms of section 6 and in accordance with law
without being prejudiced by any observation made in any of the impugned
orders. Cases were ordered to be listed after three months. This Court was
informed by the Additional Solicitor General on 10.10.2006 that the Central
Government has opined that the case of Balbir Singh was not a fit case for
giving sanction for prosecution in terms of section 6 of the 1983 Act. So
far as Harpal Singh is concerned, the Central Government was not the
competent authority and with respect to another accused Bhupinderjit Singh,
CBI has not submitted full report. Thereafter interim order was passed on
13.2.2007 by this Court to consider grant of sanction in the case of
Gurmeet Singh. On 22.9.2010 this Court noted in the interim order that
Balbir Singh in Crl. Appeal No.190/2003 had died and this Court dismissed
the appeal as abated against him. Appeal with respect to other appellants
was adjourned. Interim stay was granted in other connected matters on
30.7.2012 with respect to cases pending in the trial court at Patiala.
7. It was submitted by learned counsel appearing on behalf of accused
appellant that sanction to prosecute was necessary in view of the
provisions contained in section 6 of the 1983 Act as amended in 1989. Thus
the prosecution could not have been launched without obtaining sanction of
the Central Government. This Court by interim order had directed on
submission being raised by CBI that the matter will be referred to the
Central Government for sanction and in certain cases Central Government had
granted sanction and in others it had declined. Sanction to prosecute was
necessary as the act was done in discharge of official duties. As a matter
of fact, false allegations of fake encounter have been made in the cases.
The deceased indulged in various criminal activities. They were creating
unrest and the officers have discharged their duties at the time of the
incident. Thus without prior sanction to prosecute by the Central
Government, they could not have been prosecuted. The prosecution deserves
to be quashed.
Per contra, it was submitted on behalf of the CBI and the learned
counsel appearing on behalf of the complainant that in 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 not form part of their
official duties. Thus, the High Court has rightly upheld the order of the
trial court, in such cases the sanction to prosecute is not necessary in
such cases.
8. The matters in question as per prosecution case pertain to death
caused in fake encounter, or by torture or death in police custody.
9. It was submitted by learned counsel on behalf of the appellants that
in the course of proceedings the CBI has taken a stand that it would refer
the cases for sanction to the Central Government. This Court is bound by
such stand of the CBI on the basis of which interim order was passed and
the petition may be disposed of in terms of the interim order that the
Central Government may decide the question of sanction. We are not at all
impressed by the submission made by learned counsel appearing on behalf of
the appellants. In the interim order this Court has never decided the
legality or the correctness of the impugned orders passed by the High
Court. In the course of proceedings interim order was passed on the basis
of particular submission made by counsel for the CBI but this Court has
never decided the question whether sanction at this stage is necessary or
not. Hence the interim orders are of no avail to the cause espoused by the
appellants.
10. On merits, accused-appellants have relied upon the decision of the
Federal Court in Dr. Hori Ram Singh v. Emperor [AIR 1939 FC 43] in which
Federal Court has laid down that the question of good faith or bad faith is
expected to be decided by the court after trial. The question of good faith
or bad faith should not be introduced at the stage of section 270(1) with
regard to the meaning of the words “purporting to be done in official
duty”, the court observed that it is difficult to say that it necessarily
implies “purporting to be done in good faith”. In the case of embezzlement,
an officer is not doing an act in execution of his duty. It would amount to
criminal breach of trust under section 409 IPC but in case of provision
under section 477-A IPC if an act is done willfully, with intention to
defraud, falsify any book or account, in such cases for prosecution under
section 409, consent of Governor is not necessary but for prosecution under
section 477A, consent is necessary.
11. Reliance has also been placed on the decision of this Court in
Shreekantiah Ramayya Munipalli v. The State of Bombay [1955 (1) SCR 1177]
wherein this Court had observed thus :
“Now it is obvious that if section 197 of the Code of Criminal Procedure is
construed too narrowly it can never be applied, for of course it is no part
of an official’s duty to commit an offence and never can be. But it is
not the duty we have to examine so much as the act, because an official act
can be performed in the discharge of official duty as well as in
dereliction of it. The section has content and its language must be given
meaning. What it says is –
“when any public servant ….. is accused of any offence alleged to
have been committed by him while acting or purporting to act in the
discharge of his official duty……”
We have therefore first to concentrate on the word ‘offence’.
Now an offence seldom consists of a single act. It is usually
composed of several elements 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 capacity as a public servant”; third, that there was a
“disposal”; and fourth, that the disposal was “dishonest”. Now it is
evident that the entrustment and/or dominion here were in an official
capacity, and it is equally evident that there could in this case be no
disposal, lawful or otherwise, save by an act done or purporting to be done
in an official capacity. Therefore, the act complained of, namely the
disposal, could not have been done in any other way. If it was innocent,
it was an official act; if dishonest, it was the dishonest doing of an
official act, but in either event the act was official because the second
accused could not dispose of the goods save by the doing of an official
act, namely officially permitting their disposal; and that he did. He
actually permitted their release and purported to do it in an official
capacity, and apart from the fact that he did not pretend to act privately,
there was no other way in which he could have done it. Therefore, whatever
the intention or motive behind the act may have been, the physical part of
it remained unaltered, so if it was official in the one case it was equally
official in the other, and the only difference would lie in the intention
with which it was done: in the one event, it would be done in the discharge
of an official duty and in the other, in the purported discharge of it.
The act of abetment alleged against him stands on the same footing,
for his part in the abetment was to permit the disposal of the goods by the
doing of an official act and thus “willfully suffer” another person to use
them dishonestly: section 405 of the Indian Penal Code. In both cases, the
“offence” in his case would be incomplete without proving the official act.

We therefore hold that section 197 of the Code of Criminal Procedure
applies and that sanction was necessary, and as there was none the trial is
vitiated from the start. We therefore quash the proceedings against the
second accused as also his conviction and sentence.”

12. This Court has observed in Shreekantiah Ramayya (supra) that cases
have to be decided on their own facts.
13. Reliance has also been placed on a decision of this Court in Matajog
Dobey v. H.C. Bhari [1955 (2) SCR 925] in which a complaint was filed under
sections 323, 341, 342, and 109, Cr.P.C. Summons were issued to accused
persons under section 323. An objection was taken by accused Bhari as to
want of sanction under section 197 Cr.P.C. 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 Cr.P.C. In the matter of grant of sanction under
section 197 Cr.P.C., 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 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. The question of sanction may arise at any stage of
prosecution, the Constitution Bench also held that the facts subsequently
coming to light on a police or judicial inquiry or even in the course of
the prosecution evidence at the trial, may establish the necessity for
sanction. Whether sanction is necessary or not, may have to be determined
from stage to stage. This Court has held thus :
“Is the need for sanction to be considered as soon as the complaint is
lodged and on the allegations therein contained? At first sight, it seems
as though there is some support for this view in Hori Ram’s case and also
in Sarjoo Prasad v. The King-Emperor (1945) F.C.R. 227. Sulaiman, J. says
that as the prohibition is against the institution itself, its
applicability must be judged in the first instance at the earliest stage of
institution. Varadachariar, J. also states that the question must be
determined with reference to the nature of the allegations made against the
public servant in the criminal proceeding. But a careful perusal of the
later parts of their judgments shows that they did not intent to lay down
any such proposition. Sulaiman, J. refers (at page 179) to the prosecution
case as disclosed by the complaint or the police report and he winds up
the discussion in these words: “Of course, if the case as put forward fails
or the defence establishes that the act purported to be done is in
execution of duty, the proceedings will have to be dropped and the
complaint dismissed on that ground”. The other learned Judge also states
at page 185, “At this stage we have only to see whether the case alleged
against the appellant or sought to be proved against him relates to acts
done or purporting to be done by him in the execution of his duty”. It
must be so. The question may arise at any stage of the proceedings. The
complaint may not disclose that the act constituting the offence was done
or purported to be done in the discharge of official duty; but facts
subsequently coming to light on a police or judicial inquiry or even in the
course of the prosecution evidence at the trial, may establish the
necessity for sanction. Whether sanction is necessary or not may have to
be determined from stage to stage. The necessity may reveal itself in the
course of the progress of the case.”
14. In Bhappa Singh v. Ram Pal Singh & 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. Even though what we have just stated is a general prima facie impression
that we have formed at this stage on the materials available to us at
present, it may not be possible to come to a conclusive finding about the
falsity or otherwise of the complaint. But then we think that it would
amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases
of this type are allowed to be pursued to their logical conclusion, i.e.,
to that of conviction or acquittal. In this view of the matter we do not
feel inclined to upset the impugned order, even though perhaps the matter
may have required further evidence before quashing of the complaint could
be held to be fully justified. The appeal is accordingly dismissed.”

15. In State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC 339,
this Court considered grant of sanction under section 197 on complaint of
espionage. It was held that it was during the discharge of official duty
the act was done, also considering the provisions contained in the Official
Secrets Act, 1923 and the Atomic Energy Act, 1962, sanction for prosecution
under section 197 Cr.P.C. was necessary. The meaning of the ‘official act’
has been considered by this Court and held thus :
“6. 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 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. In S.B. Saha v. M.S. Kochar (1979) 4
SCC 177 it was held: (SCC pp. 184-85, para 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 rendered altogether sterile, for, ‘it is no part of an official duty to
commit an offence, and never can be’. In the wider sense, these words will
take under their umbrella every act constituting an offence, committed in
the course of the same transaction in which the official duty is performed
or purports to be performed. The right approach to the import of these
words lies between these two extremes. While on the one hand, it is not
every offence committed by a public servant while engaged in the
performance of his official duty, which is entitled to the protection of
Section 197(1), an act constituting an offence, directly and reasonably
connected with his official duty will require sanction for prosecution
under the said provision.”

Use of the expression, ‘official duty’ implies that the act or omission
must have been done by the public servant in course of his service and that
it should have been in discharge of his duty. The section does not extend
its protective cover to every act or omission done by a public servant in
service but restricts its scope of operation to only those 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 Criminal
Procedure Code; nor even every act done by him while he is actually engaged
in the performance of his official 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 Section 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 the 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.”

It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty. That is
under the colour of office. Official duty therefore implies that the act or
omission must have been done by the public servant in course of his service
and such act or omission must have been performed as part of duty which
further must have been official in nature. The section has, thus, to be
construed strictly, while determining its applicability to any act or
omission in course of service. Its operation has to be limited to those
duties which are discharged in course of duty. But once any act or omission
has been found to have been committed by a public servant in discharge of
his duty then it must be given liberal and wide construction so far 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 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 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 under section 6 of the Prevention
of Corruption Act, 1988 in which this Court had observed that the State
Government or any other authority has a right to consider the facts of each
case and to decide whether a public servant can be prosecuted or not. Thus
there is a discretion to grant or not to grant the sanction. This Court has
held thus :

“14. From a perusal of Section 6, it would appear that the Central or the
State Government or any other authority (depending upon the category of the
public servant) has the right to consider the facts of each case and to
decide whether that “public servant” is to be prosecuted or not. Since the
section clearly prohibits the courts from taking cognizance of the offences
specified therein, it envisages that the Central or the State Government or
the “other authority” has not only the right to consider the question of
grant of sanction, it has also the discretion to grant or not to grant
sanction.”

17. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors. [1998
(1) SCC 205] this Court has laid down that the accused is not debarred from
producing the relevant documentary materials which can be legally looked
into without any formal proof to support 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. This Court held that at a
preliminary stage such questions are not required to be considered because
accused has not yet led evidence in support of their case on merits. This
Court has held thus :
“23. Mr Sibal’s contention is based upon the observations made by this
Court in Mathew case (1992) 1 SCC 217 wherein this Court had observed that
even after issuance of process under Section 204 of the Code if the accused
appears before the Magistrate and establishes that the allegations in the
complaint petition do not make out any offence for which process has been
issued then the Magistrate will be fully within his powers to drop the
proceeding or rescind the process and it is in that connection the Court
had observed “if the complaint on the very face of it does not disclose any
offence against the accused”. The aforesaid observation made in the context
of a case made out by the accused either for recall of process already
issued or for quashing of the proceedings may not apply fully to a case
where the sanction under Section 197(1) of the CrPC 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 fact Section 197 has any application in the case in hand. It is
no longer in dispute and has been indicated by this Court in several cases
that the question of sanction can be considered at any stage of the
proceedings.

24. In Matajog case AIR 1956 SC 44 the Constitution Bench held that the
complaint may not disclose all the facts to decide the question of
applicability of Section 197, but facts subsequently coming either on
police or judicial inquiry or even in the course of prosecution evidence
may establish the necessity for sanction. In B. Saha case (1979) 4 SCC 177
the Court observed that instead of confining itself to the allegations in
the complaint the Magistrate can take into account all the materials on the
record at the time when the question is raised and falls for consideration.
In Pukhraj case (1973) 2 SCC 701 this Court observed that whether sanction
is necessary or not may depend from stage to stage. In Matajog case (supra)
the Constitution Bench had further observed that the necessity for sanction
may reveal itself in the course of the progress of the case and it would be
open to the accused to place the material on record during the course of
trial for showing what his duty was and also the acts complained of were so
interrelated with his official duty so as to attract the protection
afforded by Section 197 of the Code of Criminal Procedure. This being the
position it would be unreasonable to hold that the accused even though
might have really acted in discharge of his official duty for which the
complaints have been lodged yet he will have to wait till the stage under
sub-section (4) Section 246 of the Code is reached or at least till he will
be able to bring in relevant materials while cross-examining the
prosecution witnesses. On the other hand it would be logical to hold that
the matter being one dealing with the jurisdiction of the court to take
cognizance, the accused would be entitled to produce the relevant and
material documents which can be admitted into evidence without formal
proof, for the limited consideration of the court whether the necessary
ingredients to attract Section 197 of the Code have been established or
not. The question of applicability of Section 197 of the Code and the
consequential ouster of jurisdiction of the court to take cognizance
without a valid sanction is genetically different from the plea of the
accused that the averments in the complaint do not make out an offence and
as such the order of cognizance and/or the criminal proceedings be quashed.
In the aforesaid premises we are of the considered opinion that an accused
is not debarred from producing the relevant documentary materials which can
be legally looked into without any formal proof, in support of the stand
that the acts complained of were committed in exercise of his jurisdiction
or purported jurisdiction as a public servant in discharge of his official
duty thereby requiring sanction of the appropriate authority.

25. Considering the facts and circumstances of the case, 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 Criminal Procedure Code 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 this stage, such questions are not required to be considered
because the accused have not yet led evidence in support of their case on
merits.”

18. In Gauri Shankar Prasad v. State of Bihar & Anr. 2000 (5) SCC 15 this
Court has laid down the test to determine whether the alleged action which
constituted an offence has a reasonable and rational nexus with the
official duties required to be discharged by the public servant. The
appellant in his official capacity as Sub-Divisional Magistrate had gone to
the place of the complainant for the purpose of removal of encroachment. It
was when entering the chamber of the complainant, he used filthy language
and dragged him out of his chamber. It was held that the act has a
reasonable nexus with the official duty of the appellant. Hence no criminal
proceedings could be initiated without obtaining sanction. It was observed
thus :
“8. What offences can be held to have been committed by a public servant
while acting or purporting to act in the discharge of his official duties
is a vexed question which has often troubled various courts including this
Court. Broadly speaking, it has been indicated in various decisions of this
Court that the alleged action constituting the offence said to have been
committed by the public servant must have a reasonable and rational nexus
with the official duties required to be discharged by such public servant.

x x x x x

14. Coming to the facts of the case in hand, it is manifest that the
appellant was present at the place of occurrence in his official capacity
as Sub-Divisional Magistrate for the purpose of removal of encroachment
from government land and in exercise of such duty, he is alleged to have
committed the acts which form the gravamen of the allegations contained in
the complaint lodged by the respondent. In such circumstances, it cannot
but be held that the acts complained of by the respondent against the
appellant have a reasonable nexus with the official duty of the appellant.
It follows, therefore, that the appellant is entitled to the immunity from
criminal proceedings without sanction provided under Section 197 CrPC.
Therefore, the High Court erred in holding that Section 197 CrPC is not
applicable in the case.”

19. It has been laid down in Gauri Shankar Prasad (supra) that in case
offence has been committed while discharging his duties by an accused and
there is a reasonable nexus with official duties, if answer is in the
affirmative then sanction is required. However it would depend upon the
facts and circumstances of each case whether there is a reasonable nexus
with official duties to be discharged.
20. In Abdul Wahab Ansari v. State of Bihar & 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 Cr.P.C. 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
sanction he could not have been prosecuted. Thus the criminal proceedings
instituted without sanction were quashed.
21. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau
of Investigation 2001 (6) SCC 704 this Court considered the provisions
contained in section 197(1) of the Code of Criminal Procedure whether an
offence committed “while acting or purporting to act in the discharge of
his official duty” and laid down that the test to determine the aforesaid
is that the act complained of must be an offence 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. The claim of the accused that the act was done
reasonably and not in pretended course of his official duty can be examined
during the trial by giving an opportunity to the defence to prove it. In
such cases the question of sanction should be left open to be decided after
conclusion of the trial. The decision in Abdul Wahab Ansari (supra) has
also been taken into consideration by this Court. In P.K. Pradhan (supra)
this Court has laid down thus :
“5. The legislative mandate engrafted in sub-section (1) of Section 197
debarring a court from taking cognizance of an offence except with the
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 office save by
or with the sanction of the Government, touches the jurisdiction of the
court itself. It is a prohibition imposed by the statute from taking
cognizance. Different tests have been laid down in decided cases to
ascertain the scope and meaning of the relevant words occurring in Section
197 of the Code: “any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty”. The
offence alleged to have been committed must have something to do, or must
be related in some manner, with the discharge of official duty. No question
of sanction can arise under Section 197, unless the act complained of is an
offence; the only point for determination is whether it was committed in
the discharge of official duty. There must be a reasonable connection
between the act and the official duty. It does not matter even if the act
exceeds what is strictly necessary for the discharge of the duty, as this
question will arise only at a later stage when the trial proceeds on the
merits. What a court has to find out is whether the act and the official
duty are so 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 protection under Section 197 of the Code, the acts of the
accused complained of must be such that the same cannot be separated from
the discharge of official duty, but if there was no reasonable connection
between them and the performance of those duties, the official status
furnishes only the occasion or opportunity for the acts, then no sanction
would be required. If the case as put forward by the prosecution fails or
the defence establishes that the act purported to be done is in discharge
of duty, the proceedings will have to be dropped. It is well settled that
question of sanction under Section 197 of the Code can be raised any time
after the cognizance; may be immediately after cognizance or framing of
charge or even at the time of conclusion 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 the course of
trial, the court below shall examine this question afresh and deal with the
same in the main judgment in the light of the law laid down in this case
without being prejudiced by any observation in the impugned orders.”

22. In State of H.P. v. M.P. Gupta 2004 (2) SCC 349 this Court has
considered the provisions contained under section 197 and has observed that
the same are required to be construed strictly while determining its
applicability to any act or omission during the course of his service. Once
any act or omission is found to have been committed by a public servant in
discharge of his duty, this Court held that liberal and wide construction
is to be given to the provisions so far as its official nature is
concerned. This Court has held thus :
“11. Such being the nature of the provision, the question is how should the
expression, “any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty”, be 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 & 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 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 between the act done and the official duty nor is it possible to
lay down any such rule. It was held thus :
“7. The protection given under Section 197 is to protect responsible public
servants against the institution of possibly vexatious criminal proceedings
for offences alleged to have been committed by them while they are acting
or purporting to act as public servants. The policy of the legislature is
to afford adequate protection to public servants to ensure that they are
not prosecuted for anything done by them in the discharge of their official
duties without reasonable cause, and if sanction is granted, to confer on
the Government, if they choose to exercise it, complete control of the
prosecution. This protection has certain limits and is available only when
the alleged 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. If in doing his official duty, he acted in excess of his
duty, but there is a reasonable connection between the act and the
performance of the official duty, the excess will not be a sufficient
ground to deprive the public servant of the protection. The question is not
as to the nature of the offence such as whether the alleged offence
contained an element necessarily dependent upon the offender being a public
servant, but whether it was committed by a public servant acting or
purporting to act as such in the discharge of his official capacity. Before
Section 197 can be invoked, it must be shown that the official concerned
was accused of an offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duties. It is
not the duty which requires examination so much as the act, because the
official act can be performed both in the discharge of the official duty as
well as in dereliction of it. The act must fall within the scope and range
of the official duties of the public servant concerned. It is the quality
of the act which is important and the protection of this section is
available if the act falls within the scope and range of his official duty.
There cannot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty, nor is it
possible to lay down any such rule. One safe and sure test in this regard
would be to consider if the omission or neglect on the part of the public
servant to commit the act complained of could have made him answerable for
a charge of dereliction of his official duty. If the answer to this
question is in the affirmative, it may be said that such act was committed
by the public servant while acting in the 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 of his official duty
for protection. It does not extend to criminal activities but where there
is a reasonable connection in the act or omission during official duty, it
must be held to be official. This Court has also observed that the question
whether the sanction is necessary or not, may have to be determined from
stage to stage. This Court has laid down thus :
“12. 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.

x x x x x

15. The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. Further, in cases where
offences under the Act are concerned, the effect of Section 197, dealing
with the question of prejudice has also to be noted.”

25. In State of Karnataka through CBI v. C. Nagarajaswamy 2005 (8) SCC
370 this Court has considered the question of grant of sanction and it was
held that grant of proper sanction by a competent authority is a sine qua
non for taking cognizance of the offence. Whether proper sanction is
accorded or not, ordinarily it should be dealt with at the stage of taking
cognizance but if the cognizance of the offence is taken erroneously and
the same comes to the notice of the court at a later stage, a finding to
that effect is permissible and such a plea can be taken for the first time
before an appellate court. In case sanction is held to be illegal then the
trial would be held to have been rendered illegal and without jurisdiction,
and there can be initiation of fresh trial after the accused was discharged
due to invalid sanction for prosecution and a fresh trial was expedited.
26. In Sankaran Moitra v. Sadhna Das & Anr. 2006 (4) SCC 584 it was
considered that sanction under section 197 Cr.P.C. is a condition precedent
though the question as to applicability of section 197 may arise not
necessarily at the inception but even at a subsequent stage. Request to
postpone the decision on the said question in the instant case, it was
held, in the facts of the case was not accepted. The complaint disclosed
that the deceased was a supporter of a political party beaten to death by
the police at the instance of appellant police officer near a polling booth
on an election day. On the facts it was held that the appellant committed
the act in question during the course of performance of his duty and
sanction under section 197(1) was necessary for his prosecution. This Court
has observed thus :
“25. The 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 on the ground of want of sanction,
people will lose faith in the judicial process, cannot also be a ground to
dispense with a statutory requirement or protection. Public trust in the
institution can be maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently, in
accordance with law and the established procedure and without delay.
Dispensing with 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.”

27. In Harpal Singh v. State of Punjab 2007 (13) SCC 387 this Court has
laid down that cognizance could not have been taken without sanction by the
TADA Court. The conviction recorded on the basis of prosecution without
sanction was set aside.
28. Learned counsel for appellants has also relied upon the decision of
this Court in General Officer Commanding, Rashtriya Rifles v. Central
Bureau of Investigation & Anr. 2012 (6) SCC 228 in which this Court has
observed that it is for the competent authority to decide the question of
sanction whether it is necessary or not and not by the court as sanction
has to be issued only on the basis of sound objective assessment and not
otherwise. Prior sanction is a condition precedent. This Court has laid
down thus :
“82. Thus, in view of the above, the law on the issue of sanction can be
summarised to the effect that the question of sanction is of paramount
importance for protecting a public servant who has acted in good faith
while performing his duty. In order that the public servant may not be
unnecessarily harassed on a complaint of an unscrupulous person, it is
obligatory on the part of the executive authority to protect him. However,
there must be a discernible connection between the act complained of and
the powers and duties of the public servant. The act complained of may fall
within the description of the action purported to have been done in
performing the official duty. Therefore, if the alleged act or omission of
the public servant can be shown to have a reasonable connection,
interrelationship or is inseparably connected with discharge of his duty,
he becomes entitled for protection of sanction.

83. If the law requires 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 no role in this subject. In such a situation the court
would not proceed without sanction of the competent statutory authority.”

29. This Court in D.T. Virupakshappa v. C. Subash 2015 (12) SCC 231 has
observed that whether sanction is necessary or not, may arise at any stage
of the proceedings and in a given case it may arise at the stage of
inception. This Court has referred to the decision of this Court in Om
Prakash v. State of Jharkhand 2012 (12) SCC 72 and observed thus :
“5. The question, whether sanction is necessary or not, may arise on any
stage of the proceedings, and in a given case, it may arise at the stage of
inception as held by this Court in Om Prakash v. State of Jharkhand (2012)
12 SCC 72. To quote: (SCC p. 94, para 41)

“41. The upshot of this discussion is that whether sanction is necessary or
not has to be decided from stage to stage. This question may arise at any
stage of the proceeding. In a given case, it may arise at the inception.
There may be unassailable and unimpeachable circumstances on record which
may establish at the outset that the police officer or public servant was
acting in performance of his official duty and is entitled to protection
given under Section 197 of the Code. It is not possible for us to hold that
in such a case, the court cannot look into any documents produced by the
accused or the public servant concerned at the inception. The nature of the
complaint may have to be kept in mind. It must be remembered that previous
sanction is a precondition for taking cognizance of the offence and,
therefore, there is no requirement that the accused must wait till the
charges are framed to raise this plea.””

30. In Manorama Tiwari & Ors. v. Surendra Nath Rai 2016 (1) SCC 594 in a
case of death by alleged negligence of Government doctors, it was held that
the sanction for prosecution was necessary. On facts it was held that the
appellants were discharging public duties as they were performing surgery
in the Government hospital. Hence criminal prosecution was not maintainable
without sanction from the State Government.
31. In Shambhoo Nath Misra v. State of U.P. & Ors. 1997 (5) SCC 326 this
Court considered the question when the public servant is alleged to have
committed the offence of fabrication of false record or misappropriation of
public funds etc. Can he be said to have acted in discharge of official
duties ? Since it was not the duty of the public servant to fabricate the
false records, it was held that the official capacity only enabled him to
fabricate the records and misapporopriate 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 provide him an opportunity to commit crime. The Court to proceed
further in the trial or the enquiry, as the case may be, applies its mind
and records a finding that the crime and the official duty are not
integrally connected.

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 records and
misappropriate the public funds etc. in furtherance of or in the discharge
of his official duties. The official capacity only enables him to fabricate
the record or misappropriate the public fund etc. It does not mean that it
is integrally connected or inseparably interlinked with the crime committed
in the course of the same transaction, as was believed by the learned
Judge. Under these circumstances, we are of the opinion that the view
expressed by the High Court as well as by the trial court on the question
of sanction is clearly illegal and cannot be sustained.”

32. In S.K. Zutshi & Anr. v. Bimal Debnath & Anr. 2004 (8) SCC 31 this
Court has emphasized that official duty must have been official in nature.
Official duty implies that the act or omission must have been official in
nature. If the act is committed in the course of service but not in
discharge of his duty and without any justification then the bar under
section 197 Cr.P.C. is not attracted. This Court has laid down thus :
“9. It has been widened further by extending protection to even those acts
or omissions which are done in purported exercise of official duty. That
is, under the colour of office. Official duty, therefore, implies that the
act or omission must have been done by the public servant in the course of
his service and such act or omission must have been performed as part of
duty which, further, must have been official in nature. The section has,
thus, to be construed strictly while determining its applicability to any
act or omission in the course of service. Its operation has to be limited
to those duties which are discharged in the course of duty. But once any
act or omission has been found to have been committed by a public servant
in discharge of his duty then it must be given liberal and wide
construction so far as its official nature is concerned. For instance, a
public servant is not entitled to indulge in criminal activities. To that
extent the section has to be construed narrowly and in a restricted manner.
But once it is established that that act or omission was done by the public
servant while discharging his duty then the scope of its being official
should be construed so as to advance the 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 & Anr. v. Puttiyottil Alikutty & 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 treatment. Thus
it was held that such offence was neither covered under section 64(3) of
the Kerala Police Act nor under section 197(1) Cr.P.C.
34. In Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v.
State through Central Bureau of Investigation 2011 (6) SCC 1, this Court
has referred to the decision in B.Saha’s case and laid down that the
question of sanction has to be seen with respect to the stage and material
brought on record up to that stage. Whether allegation of misappropriation
is true or false is not to be gone into at this stage in considering the
question whether sanction for prosecution was or was not necessary. The
criminal acts attributed to the accused were taken as alleged. This Court
has observed as under :
“87. Both these judgments were followed in Atma Ram case AIR 1966 SC 1786
where the question was as to whether the action of a police officer in
beating and confining a person suspected of having stolen goods in his
possession could be said to be under colour of duty. It was held as under:
(AIR pp. 1787-88, para 3)

“3. … The provisions of Sections 161 and 163 of the Criminal Procedure Code
emphasise the fact that a police officer is prohibited from beating or
confining persons with a view to induce them to make statements. In view of
the statutory prohibition it cannot, possibly, be said that the acts
complained of, in this case, are acts done by the respondents under the
colour of their duty or authority. In our opinion, there is no connection,
in this case between the acts complained of and the office of the
respondents and the duties and obligations imposed on them by law. On the
other hand, the alleged acts fall completely outside the scope of the
duties of the respondents and they are not entitled, therefore, to the
mantle of protection conferred by Section 161(1) of the Bombay Police Act.”

88. Similar views have been expressed in Bhanuprasad Hariprasad Dave case
AIR 1968 SC 1323 wherein the allegations against the police officer were of
taking advantage of his position and attempting to coerce a person to give
him bribe. The plea of colour of duty was negatived by this Court and it
was observed as under: (AIR p. 1328, para 9)

“9. … All that can be said in the present case is that the first appellant,
a police officer, taking advantage of his position as a police officer and
availing himself of the opportunity afforded by the letter Madhukanta
handed over to him, coerced Ramanlal to pay illegal gratification to him.
This cannot be said to have been done under colour of duty. The charge
against the second appellant is that he aided the first appellant in 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 CrPC 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 of that trust,
they criminally misappropriated or converted those goods. Whether this
allegation or charge is true or false, is not to be gone into at this
stage. In considering the question whether sanction for prosecution was or
was not necessary, these criminal acts attributed to the accused are to be
taken as alleged.”
(emphasis supplied)”

35. This Court has held that in case there is an act of beating a person
suspected of a crime of confining him or sending him away in an injured
condition, it cannot be said that police at that time were engaged in
investigation and the acts were done or intended to be done under the
provisions of law. Act of beating and confining a person illegally is
outside the purview of the duties.
36. In Paramjit Kaur (Mrs) v. State of Punjab & Ors. (1996) 7 SCC 20,
this Court directed the Director, CBI to appoint an investigation team
headed by a responsible officer to conduct investigation in the kidnapping
and whereabouts of the human rights activist and also to appoint a high-
powered team to investigate into the alleged human rights violations.
37. The principles emerging from the aforesaid decisions are summarized
hereunder :
I. Protection of sanction is an assurance to an honest and sincere
officer to perform his duty honestly and to the best of his ability to
further public duty. However, authority cannot be camouflaged to commit
crime.
II. Once act or omission has been found to have been committed by public
servant in discharging his duty it must be given liberal and wide
construction so far its official nature is concerned. Public servant is
not entitled to indulge in criminal activities. To that extent Section 197
CrPC has to be construed narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in his duty,
if there is reasonable connection it will not deprive him of protection
under section 197 Cr.P.C. There cannot be a universal rule to determine
whether there is reasonable nexus between the act done and official duty
nor it is possible to lay down such rule.
IV. In case the assault made is intrinsically connected with or related
to performance of official duties sanction would be necessary under Section
197 CrPC, but such relation to duty should not be pretended or fanciful
claim. The offence must be directly and reasonably connected with
official duty to require sanction. It is no part of official duty to
commit offence. In case offence was incomplete without proving, the
official act, ordinarily the provisions of Section 197 CrPC 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 sanction may arise at any stage of proceedings. On a
police or judicial inquiry or in course of evidence during trial. Whether
sanction is necessary or not may have to be determined from stage to stage
and material brought on record depending upon facts of each case. Question
of sanction can be considered at any stage of the proceedings. Necessity
for sanction may reveal itself in the course of the progress of the case
and it would be open to accused to place material during the course of
trial for showing what his duty was. Accused has the right to lead
evidence in support of his case on merits.
IX. In some case it may not be possible to decide the question
effectively and finally without giving opportunity to the defence to adduce
evidence. Question of good faith or bad faith may be decided on conclusion
of trial.
38. In the instant cases, the allegation as per the prosecution
case it was a case of fake encounter or death caused by torture whereas the
defence of the accused person is that it was a case in discharge of
official duty and as the deceased was involved in the terrorist activities
and while maintaining law and order the incident has taken place. The
incident was in the course of discharge of official duty. Considering the
aforesaid principles in case the version of the prosecution is found to be
correct there is no requirement of any sanction. However it would be open
to the accused persons to adduce the evidence in defence and to submit such
other materials on record indicating that the incident has taken place in
discharge of their official duties and the orders passed earlier would not
come in the way of the trial court to decide the question afresh in the
light of the aforesaid principles from stage to stage or even at the time
of conclusion of the trial at the time of judgment. As at this stage it
cannot be said which version is correct. The trial court has prima facie to
proceed on the basis of prosecution version and can re-decide the question
afresh in case from the evidence adduced by the prosecution or by the
accused or in any other manner it comes to the notice of the court that
there was a reasonable nexus of the incident with discharge of official
duty, the court shall re-examine the question of sanction and take decision
in accordance with law. The trial to proceed on the aforesaid basis.
Accordingly, we dispose of the appeals/writ petition in the light of the
aforesaid directions.

………………………J.
(V. Gopala Gowda)

New Delhi; ………………………J.
April 25, 2016. (Arun Mishra)

ITEM NO.1A-For Judgment COURT NO.9 SECTION IIB/X

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 190/2003

DEVINDER SINGH & ORS. Appellant(s)

VERSUS

STATE OF PUNJAB THROUGH CBI Respondent(s)

WITH
Crl.A.No.352/2016 @ SLP(Crl.) No.3324/2016 @ SLP(Crl.)...CRLMP No.
10040/2004

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W.P.(Crl.) No. 139/2012

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Crl.A.No.390/2016 @ SLP(Crl) No. 9925/2012

Crl.A.No.391/2016 @ SLP(Crl) No. 4702/2012

Date : 25/04/2016 These appeals and the writ petition were called on for
pronouncement of JUDGMENT today.

For Appellant(s) Mr. Sudhir Walia, Adv.
Ms. Niharika Ahluwalia, Adv.
Mr. Abhishek Atrey,Adv.

Mr. K. K. Mohan,Adv.

Ms. Jyoti Mendiratta,Adv.

Ms. Kamini Jaiswal,Adv.

For Respondent(s) Mr. P. Parmeswaran,Adv.

Mr. Bharat Sangal,Adv.

Ms. Sushma Suri,Adv.

Mr. Irshad Ahmad,Adv.

Mr. Kuldip Singh,Adv.

Ms. Puja Sharma,Adv.

Mr. B. V. Balaram Das,Adv.

Mr. Arvind Kumar Sharma,Adv.

Hon'ble Mr. Justice Arun Mishra pronounced the judgment of the Bench
comprising Hon'ble Mr. Justice V.Gopala Gowda and His Lordship.
Delay, if any, is condoned.
Leave granted in the all the special leave petitions.
The appeals and the writ petition are disposed of in terms of the
signed Reportable Judgment.

(Signed Reportable Judgment is placed on the file)

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