Karnataka High Court
Sri B G Prakash Kumar vs Under Secretary To Government on 21 April, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8362/2021(GM-RES)
C/W
WRIT PETITION No.8363/2021(GM-RES)
WRIT PETITION No.8366/2021(GM-RES)
WRIT PETITION No.8385/2021(GM-RES)
IN WRIT PETITION No.8362/2021
BETWEEN:
1. SRI B.G.PRAKASH KUMAR
LATE B.R. GOPAL GOWDA
AGED ABOUT 64 YEARS
EXECUTIVE ENGINEER (RETIRED)
MALLESHWARAM DIVISION (WEST ZONE)
BENGALURU
R/AT:H.NO.139
10TH MAIN ROAD
BCC LAYOUT, VIJAYANAGARA
BENGALURU - 560 040.
2. SRI B.T.RAMESH
S/O LATE B.H.THAMMAIAH
AGED ABOUT 66 YEARS
CHIEF ENGINEER (RETIRED)
2
BBMP, BENGALURU
THE THEN CHIEF ENGINEER
WEST ZONE, BBMP
BEGNALURU
R/AT NO.702, 9TH MAIN ROAD
3RD BLOCK, III STAGE
BASAVESHWARANAGARA
BENGALURU - 560 079
... PETITIONERS
(BY SRI, A.S. PONNANNA, SENIOR ADVOCATE A/W
SRI. HANUMANTHARAYA D., ADVOCATE)
AND:
1. UNDER SECRETARY TO GOVERNMENT
PUBLIC WORKS
PORTS AND INLAND
WATER TRANSPORT DEPARTMENT
(SERVICES-B)
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 009
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560 027
3. STATE OF KARNATAKA BY THE
FINANCIAL INTELLIGENCE UNIT
CID, BENGALURU
REPRESENTED BY ITS
SPECIAL PUBLIC PRSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001
4. THE SUPERINTENDENT OF POLICE
3
BENGALURU METROPOLITAN TASK FORCE
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560 027
... RESPONDENTS
(BY SRI. V.S.HEGDE, ADDL. SPP A/W
SMT. K.P. YASHODHA, HCGP FOR R-1, 3 AND 4.
SRI. B.V. MURALIDHAR, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASHING FIR NO.04/2011 REGISTERED BY
R4 BMTF POLICE, BENGALURU CITY FOR OFFENCES
PUNISHABLE UNDER SEC.420, 406, 409, 465, 468, 471,
477(A) R/W 120-B OF IPC AND UNDER SEC.23 OF
KARNATAKA TRANSPARENCY PUBLIC PROCUREMENT ACT,
1999 AGAINST THE PETITIONERS REGISTERED ON THE
BASIS OF COMPLAINT DATD 03.11.2011 PENDING ON THE
FILE OF LXXVII ADDL.CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE FOR PREVENTIONS OF CORRUPTION
ACT (CCH-78), BENGALURU PRODUCED AT ANNEXURE-A
AND B AND ETC.,
WRIT PETITION No.8363/2021
BETWEEN:
1. SRI B.G.PRAKASH KUMAR
LATE B.R. GOPAL GOWDA
AGED ABOUT 64 YEARS
EXECUTIVE ENGINEER (RETIRED)
MALLESHWARAM DIVISION (WEST ZONE)
BENGALURU
R/AT:H.NO.139, 10TH MAIN ROAD
BCC LAYOUT, VIJAYANAGARA
BENGALURU - 560 040.
4
2. SRI B.T.RAMESH
S/O LATE B.H.THAMMAIAH
AGED ABOUT 66 YEARS
CHIEF ENGINEER (RETIRED)
BBMP, BENGALURU
THE THEN CHIEF ENGINEER
WEST ZONE, BBMP
BEGNALURU
R/AT NO.702
9TH MAIN ROAD, 3RD BLOCK, III STAGE
BASAVESHWARANAGARA
BENGALURU - 560 079
... PETITIONERS
(BY SRI, A.S. PONNANNA, SENIOR ADVOCATE A/W
SRI. HANUMANTHARAYA D., ADVOCATE)
AND:
1. UNDER SECRETARY TO GOVERNMENT
PUBLIC WORKS
PORTS AND INLAND
WATER TRANSPORT DEPARTMENT
(SERVICES-B)
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 009
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560 027
3. STATE OF KARNATAKA BY THE
FINANCIAL INTELLIGENCE UNIT
CID, BENGALURU
REPRESENTED BY ITS
5
SPECIAL PUBLIC PRSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001
4. THE SUPERINTENDENT OF POLICE
BENGALURU METROPOLITAN TASK FORCE
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560027
... RESPONDENTS
(BY SRI. V.S.HEGDE, ADDL. SPP A/W
SMT. K.P. YASHODHA, HCGP FOR R-1, 3 AND 4.
SRI. B.V. MURALIDHAR, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASH FIR NO.04/2011 REGISTERED BY R4
BMTF POLICE, BENGALURU CITY FOR OFFENCES
PUNISHABLE UNDER SEC.420, 406, 409, 465, 468, 471,
477(A) R/W 120-B OF IPC AND U/S.23 OF KARNATAKA
TRANSPARENCY PUBLIC PROCUREMENT ACT, 1999
AGAINST THE PETITIONERS REGISTERED ON THE BASIS
OF COMPLAINT DATD 03.11.2011 PENDING ON THE FILE
OF LXXVII ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTIONS OF CORRUPTION ACT
(CCH-78), BENGALURU PRODUCED AT ANNEXURE-A AND
B AND ETC.,
IN WRIT PETITION No.8366/2021
BETWEEN:
1. SRI B.G.PRAKASH KUMAR
LATE B.R. GOPAL GOWDA
AGED ABOUT 64 YEARS
6
EXECUTIVE ENGINEER (RETIRED)
MALLESHWARAM DIVISION (WEST ZONE)
BENGALURU
R/AT:H.NO.139, 10TH MAIN ROAD
BCC LAYOUT, VIJAYANAGARA
BENGALURU - 560 040.
2. SRI B.T.RAMESH
S/O LATE B.H.THAMMAIAH
AGED ABOUT 66 YEARS
CHIEF ENGINEER (RETIRED)
BBMP, BENGALURU
THE THEN CHIEF ENGINEER
WEST ZONE, BBMP
BEGNALURU
R/AT NO.702, 9TH MAIN ROAD
3RD BLOCK, III STAGE
BASAVESHWARANAGARA
BENGALURU - 560 079
... PETITIONERS
(BY SRI, A.S. PONNANNA, SENIOR ADVOCATE A/W
SRI. HANUMANTHARAYA D., ADVOCATE)
AND:
1. UNDER SECRETARY TO GOVERNMENT
PUBLIC WORKS
PORTS AND INLAND
WATER TRANSPORT DEPARTMENT
(SERVICES-B)
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 009
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
7
BENGALURU - 560 027
3. STATE OF KARNATAKA BY THE
FINANCIAL INTELLIGENCE UNIT
CID, BENGALURU
REPRESENTED BY ITS
SPECIAL PUBLIC PRSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001
4. THE SUPERINTENDENT OF POLICE
BENGALURU METROPOLITAN TASK FORCE
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560027
... RESPONDENTS
(BY SRI. V.S.HEGDE, ADDL. SPP A/W
SMT. K.P. YASHODHA, HCGP FOR R-1, 3 AND 4.
SRI. B.V. MURALIDHAR, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASHING FIR NO.04/2011 REGISTERED BY
R4 BMTF POLICE, BENGALURU CITY FOR OFFENCES
PUNISHABLE UNDER SEC.420, 406, 409, 465, 468, 471,
477(A) R/W 120-B OF IPC AND U/S.23 OF KARNATAKA
TRANSPARENCY PUBLIC PROCUREMENT ACT, 1999
AGAINST THE PETITIONERS REGISTERED ON THE BASIS
OF COMPLAINT DATD 03.11.2011 PENDING ON THE FILE
OF LXXVII ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTIONS OF CORRUPTION ACT
(CCH-78), BENGALURU PRODUCED AT ANNEXURE-A AND
B AND ETC.,
8
IN WRIT PETITION No.8385/2021
BETWEEN:
1. SRI B.G.PRAKASH KUMAR
LATE B.R. GOPAL GOWDA
AGED ABOUT 64 YEARS
EXECUTIVE ENGINEER (RETIRED)
MALLESHWARAM DIVISION (WEST ZONE)
BENGALURU
R/AT:H.NO.139, 10TH MAIN ROAD
BCC LAYOUT, VIJAYANAGARA
BENGALURU - 560 040.
2. SRI B.T.RAMESH
S/O LATE B.H.THAMMAIAH
AGED ABOUT 66 YEARS
CHIEF ENGINEER (RETIRED)
BBMP, BENGALURU
THE THEN CHIEF ENGINEER
WEST ZONE, BBMP
BEGNALURU
R/AT NO.702
9TH MAIN ROAD
3RD BLOCK, III STAGE
BASAVESHWARANAGARA
BENGALURU - 560 079
... PETITIONERS
(BY SRI. A.S. PONNANNA, SENIOR ADVOCATE A/W
SRI. HANUMANTHARAYA D., ADVOCATE)
AND:
1. UNDER SECRETARY TO GOVERNMENT
PUBLIC WORKS
PORTS AND INLAND
WATER TRANSPORT DEPARTMENT
9
(SERVICES-B)
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 009.
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD, BENGALURU - 560 027.
3. STATE OF KARNATAKA BY THE
FINANCIAL INTELLIGENCE UNIT
CID, BENGALURU
REPRESENTED BY ITS
SPECIAL PUBLIC PRSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
4. THE SUPERINTENDENT OF POLICE
BENGALURU METROPOLITAN TASK FORCE
BRUHAT BENGALURU MAHANAGARA PALIKE
J.C. ROAD
BENGALURU - 560 027.
... RESPONDENTS
(BY SRI. V.S.HEGDE, ADDL. SPP A/W
SMT. K.P. YASHODHA, HCGP FOR R-1, 3 AND 4.
SRI. B.V. MURALIDHAR, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASHING FIR NO.04/2011 REGISTERED BY
R5 BMTF POLICE, BENGALURU CITY FOR OFFENCES
PUNISHABLE UNDER SEC.420, 406, 409, 465, 468, 471,
477(A) R/W 120-B OF IPC AND U/S.23 OF KARNATAKA
TRANSPARENCY PUBLIC PROCUREMENT ACT, 1999
AGAINST THE PETITIONERS REGISTERED ON THE BASIS
OF COMPLAINT DATD 03.11.2011 PENDING ON THE FILE
10
OF LXXVII ADDL.CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR PREVENTIONS OF CORRUPTION ACT
(CCH-78), BENGALURU PRODUCED AT ANNEXURE-A AND
B AND ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Conglomeration of these cases are filed by officers of the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) either serving or retired calling in question proceedings instituted before the LXXVII Additional City Civil and Sessions Judge and Special Judge for Prevention of Corruption Act for offences punishable under Sections 120B, 409, 465, 468, 477A of the IPC and Section 13(1)(a) r/w 13(2) of the Prevention of Corruption Act, 1988 ('the Act' for short) in Special C.C.No.118 of 2021.
2. Heard Sri A.S.Ponnanna, learned senior counsel appearing for petitioners, Sri V.S. Hegde, learned Additional State Public Prosecutor along with Smt.K.P.Yashodha, learned High Court Government 11 Pleader appearing for the respondents/State and its officers and Sri B.V.Muralidhar, learned counsel appearing for the respondent/BBMP.
3. Brief facts that lead the petitioners to this Court, as borne out from the pleadings are as follows:-
The cadres of the petitioners in all these cases would differ from petition to petition. Therefore, they are all referred to as officers of BBMP. These petitions form two wings - one retired officers and the other serving officers of the BBMP. But, the issue that runs through the stream of all these petitions is the same. The Bangalore Metropolitan Task Force ('BMTF' for short) registers a FIR in Crime No.4 of 2011 against unknown persons alleging offences under Sections 420, 406, 409, 465, 468, 471, 477A r/w 120B of the IPC and Section 23 of the Karnataka Transparency in Public Procurements Act, 1999. The allegation in the FIR was that certain investigation was conducted with regard to implementation of works undertaken by the BBMP in Malleshwaram, Gandhinagar 12 and Rajarajeshwari Nagar. The complaint though did not name any specific allegation against any particular official, the complaint alleged huge irregularity and illegality committed by the BBMP officials in collusion with contractors of the aforesaid areas and the illegality was to the tune of Rs.500/- crores. Based upon the investigation a reference was made by the Commissioner of the BBMP to the competent authority in the Ministry of Urban Development and later it was opined that the matter be referred to the Superintendent of Police, BMTF to take up further investigation and submit a report to the Government. The technical wing of the BMTF which had investigated into the matter investigated the works undertaken by the BBMP in those areas between 2008-09 and 2011-12 and certain information with regard to the bill register. Pursuant to the collection of the aforesaid material, prima facie, the BMTF opined that a crime needs to be registered against officials of the BBMP and further investigation should be carried out. Therefore, the BMTF registers a crime in Crime No.4 of 2011 and investigation 13 in respect of the alleged irregularity and even misappropriation in asphalting of roads in the aforesaid areas was sought to be conducted by the BMTF.
4. In the year 2011, the investigation from the hands of the BMTF was handed over to the Crime Investigation Department ('CID' for short) in terms of an order dated 28-11-2011. Later, the CID on becoming the investigating agency investigates into the matter and on conclusion of investigation filed a charge sheet on 7.01.2021 against all these petitioners for the afore-quoted offences and the Special Court is now seized of the matter in Special C.C.No.118 of 2021. Filing of charge sheets and taking of cognizance of the offences by the Special Court is what drives the petitioners to this Court in the subject petitions.
5. The learned senior counsel Sri A.S.Ponnanna appearing for the petitioners would contend that a crime comes to be registered in Crime No.4 of 2011 and there are close to 100 charge sheets filed based on the very same crime and the concerned Court could not have taken 14 cognizance for the aforesaid offences, without at the outset, a valid sanction from the hands of the competent authority to prosecute the petitioners. He would, therefore, contend that the very act of the Special Court taking cognizance and registering Special C.C.No.118 of 2021 is without authority of law and is thus rendered without jurisdiction. The learned senior counsel would further contend that a solitary crime is registered in Crime No.4 of 2011 and even after 10 years and as on date, there are charge sheets being filed against the petitioners.
They are not first, second or third but 100 in number. He would contend that the entire process smacks of mala fides and, therefore, requires to be obliterated.
6. On the other hand, the learned Additional State Public Prosecutor Sri V.S. Hegde would refute the submissions to contend that filing of charge sheet is permissible on registration of crime as they would all be considered to supplementary charge sheets and insofar as sanction is concerned the learned Additional State Public 15 Prosecutor would admit that there is no sanction accorded by the competent authority in all these cases, but would submit that acts of the petitioners are such that no sanction is required as they are alleged of offences punishable under Sections 420, 465 and 468 of the IPC which are forgery or making use of forged documents and cheating the Government. He would submit that common statement of objections is filed in all these cases refuting all the contentions and would, therefore, submit that the petitions be dismissed, as it is for the petitioners to come out clean in the trial.
7. To counter these submissions, the learned senior counsel would contend that sanction under Section 19 of the Act is imperative for persons who are in service as the offences are an amalgam of the ones punishable under the Act and the IPC. Therefore, sanction under Section 197 of the Cr.P.C. is imperative for persons who have retired, as they have all performed acts in the discharge of their official duty and the allegation is concerning irregularity 16 and illegality in the performance of official duty. He would contend that concerning the very same petitioners and the very same crime i.e., crime No.4 of 2011 albeit different charge sheet in C.C.No.252 of 2016, a co-ordinate Bench of this Court, following the judgment of the Apex Court, has quashed the proceedings against these very petitioners in the case of B.T. RAMESH v. STATE AND ANOTHER in W.P.Nos.61305 of 2016 and connected cases decided on 05-07-2022. He would also place reliance upon a judgment rendered by the co-ordinate Bench of this Court in STATE OF KARATAKA V. CHANDRASHEKHAR - 2022 Crl.L.J.1516.
8. I have given my anxious consideration to the submissions mad by the respective learned counsel and perused the material on record.
9. Though contentions are advanced on merits of the matter, what merits consideration at this juncture is:
"Whether the act of the concerned Court registering criminal case or special criminal case as 17 the case would be, in all these cases, without a valid sanction for such prosecution being placed before it, would vitiate the very order of taking cognizance or otherwise?
10. The acts of the petitioners in Crime No.4 of 2011 are for the afore-mentioned offences. The offences alleged against the petitioners in all these cases concern execution of asphalting work in three areas - Gandhinagar, Malleshwaram and Rajarajeshwari Nagar. The allegation though is a crime of both offences under the IPC and offences under the Act, the offences have emerged on certain illegalities alleged and those illegalities have emerged from the performance of official duties of the petitioners. Since the offences alleged are during the performance of their official duty and the Court has taken cognizance for the offences and registers a criminal case or a special criminal case without sanction, it is germane to notice the necessity of sanction under the Act and the Cr.P.C. Section 19 of the Act reads as follows:
18"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013,--
(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 and is not removable from his office save by or with the sanction of the Central Government, of that 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 and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for 19 prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub- section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub- section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.20
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-
section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
21(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
Section 197 of the CrPC reads as follows:
"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 article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.22
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860)."
Section 19 of the Act deals with previous sanction necessary for prosecution and begins with a non-obstante clause that no Court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 alleged to have been committed by the public servant, except with the previous sanction. Section 197 of the CrPC also begins with a non-obstante clause directing that no Court shall take cognizance of such offence except with the previous sanction. The contention is that the acts of petitioners in which they are alleged to have indulged are not during the performance of their duties, as cheating or misappropriation cannot be a part of the official duty and, therefore sanction is not required is a contention that is noted only to be rejected, as the Apex Court concerning sanction in discharge of official duties has elaborately 23 considered the concept of sanction, be it under Section 19 of the Act or under Section 197 of the CrPC.
11. Interpreting Section 197 of the CrPC, the Apex Court right from the year 1955 has delineated the principle of requirement to prosecute the Government servants.
The Apex Court in the case of AMRIK SINGH v. STATE OF PEPSU 1 has held as follows:
"7. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; 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; and that would be so, 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 the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
8. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under Section 465, as the charge was in respect of his duty of obtaining signatures or thumb impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he 1 (1955) 1 SCR 1302 24 could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under Section 197(1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor [AIR 1939 FC 43 :
1939 FCR 159] and Albert West Meads v. King [AIR 1948 PC 156 : 75 IA 185] , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
(Emphasis supplied) Elaborating the said consideration, the Apex Court in the case of SANKARAN MOITRA v. SADHNA DAS2 has raised the following issue:
"6. The High Court by order dated 11-7-2003 dismissed the application. It overruled the contention of the accused based on Section 197 of the Code of Criminal Procedure thus:
"In its considered view Section 197 CrPC has got no manner of application in the present case. Under Section 197 CrPC sanction is required only if the public servant was, at the time of commission 2 (2006) 4 SCC 584 25 of offence, 'employed in connection with the affairs of the Union or of a State' and he was 'not removable from his office save by or with the sanction of the Government'. The bar under Section 197 CrPC cannot be raised by a public servant if he is removable by some authority without the sanction of the Government.
Committing an offence can never be a part of an official duty. Where there is no necessary connection between the act and the performance of the duties of a public servant, Section 197 CrPC will not be attracted. Beating a person to death by a police officer cannot be regarded as having been committed by a public servant within the scope of his official duties."
Finding on the said issue by the Apex Court is as follows:
"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 26 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.
26. We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with."
(Emphasis supplied) The Power of High Court which was questioned before the Apex Court was set aside on the sole ground that there was no sanction under Section 197 of the Cr.P.C. to prosecute the petitioners. Again, the Apex Court in the 27 case of DEVINDER SINGH v. STATE OF PUNJAB3 has held as follows:
"39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. 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.
39.2. 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.
39.3. 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 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. 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 3 (2016) 12 SCC 87 28 official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5. 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.
39.6. 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 the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
39.7. 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.
39.8. 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 the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
2939.9. In some cases 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."
(Emphasis supplied) Following these judgments, the Apex Court in the case of D.DEVARAJA v. OWAIS SABEER HUSSAIN4 has held as follows:
"30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] : (AIR p. 48, para
15) "15. ... Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. ...
There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction."
31. In Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] this Court held: (SCC p. 703, para 2) 4 (2020) 7 SCC 695 30 "2. ... While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. 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 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 need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of the office" may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
3132. In Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309 : 1955 Cri LJ 865] this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2: AIR 1939 FC 43]; H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9] and the judgment of the Privy Council in Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-48) 75 IA 41: AIR 1948 PC 128] and held: (Amrik Singh case [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] , AIR p. 312, para 8) "8. The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; 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; and that would be so, 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 the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
33. Section 197 of the Code of Criminal Procedure, 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44:
1956 Cri LJ 140], Pukhraj [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944] and Amrik Singh [Amrik Singh v. State of PEPSU, AIR 1955 SC 309:
1955 Cri LJ 865] is in pari materia with Section 197 of the Code of Criminal Procedure, 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure.32
34. In Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court held : (SCC pp. 46-47, para 7) "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 33 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."
(emphasis supplied)
35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40: 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply 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. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.
36. In Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287 : 1955 Cri LJ 857] this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held: (AIR pp. 292-93, paras 18-
19) "18. 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....' 34 We have therefore first to concentrate on the word "offence".
19. 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 Accused 2 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 Accused 2 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."
37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where this Court held : (AIR p. 778, para 6) 35 "6. ... 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."
"If the act is totally 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...."
38. In B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court held : (SCC p. 185, para 18) "18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
39. In Virupaxappa Veerappa Kadampur v. State of Mysore [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] cited by Mr Poovayya, a three-Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase "under colour of duty"
to mean "acts done under the cloak of duty, even though not by virtue of the duty".
40. In Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] this Court referred (at AIR p. 851, para 9) to the meaning of the words "colour of office" in Wharton's Law Lexicon, 14th Edn., which is as follows:
"Colour of office, when an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour."36
41. This Court also referred (at AIR p. 852, para 9) to the meaning of "colour of office" in Stroud's Judicial Dictionary, 3rd Edn., set out hereinbelow:
"Colour:"Colour of office" is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office, is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. But "by reason of the office" and "by virtue of the office" are taken always in the best part."
42. After referring to the Law Lexicons referred to above, this Court held : (Virupaxappa Veerappa Kadampur case [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] , AIR p. 852, para 10) "10. It appears to us that the words "under colour of duty" have been used in Section 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary "as a veil to his falsehood". The acts thus done in dereliction of his duty must be held to have been done "under colour of the duty"."
43. In Om Prakash v. State of Jharkhand [Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 :
(2013) 3 SCC (Cri) 472] this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows : (SCC p. 89, para 32) "32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained 37 of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] ). The protection given under Section 197 of the Code 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 (Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it.
It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."
(emphasis supplied)
44. In Sankaran Moitra v. Sadhna Das [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584:
(2006) 2 SCC (Cri) 358] the majority referred to Gill v. R. [Gill v. R., 1948 SCC OnLine PC 10: (1947-
48) 75 IA 41: AIR 1948 PC 128], H.H.B. Gill v. King Emperor [H.H.B. Gill v. King Emperor, 1946 SCC OnLine FC 10: AIR 1947 FC 9]; Shreekantiah Ramayya Munipalli v. State of Bombay [Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287: 1955 Cri LJ 857]; Amrik Singh v. State of PEPSU [Amrik Singh v. State of PEPSU, AIR 1955 SC 309: 1955 Cri LJ 865] ; Matajog Dobey v. H.C. Bhari [Matajog Dobey v. H.C. Bhari, AIR 38 1956 SC 44 : 1956 Cri LJ 140]; Pukhraj v. State of Rajasthan [Pukhraj v. State of Rajasthan, (1973) 2 SCC 701: 1973 SCC (Cri) 944]; B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177: 1979 SCC (Cri) 939]; Bakhshish Singh Brar v. Gurmej Kaur [Bakhshish Singh Brar v. Gurmej Kaur, (1987) 4 SCC 663 : 1988 SCC (Cri) 29]; Rizwan Ahmed Javed Shaikh v. Jammal Patel [Rizwan Ahmed Javed Shaikh v. Jammal Patel, (2001) 5 SCC 7] and held: (Sankaran Moitra case [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584:
(2006) 2 SCC (Cri) 358] , SCC pp. 602-603, para 25) "25. The High Court has stated [Sankaran Moitra v. Sadhana Das, 2003 SCC OnLine Cal 309 :
(2003) 4 CHN 82] 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 39 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 the learned counsel for the complainant that this is an eminently fit case for grant of such sanction."
45. The dissenting view of C.K. Thakker, J. in Sankaran Moitra [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 : (2006) 2 SCC (Cri) 358] supports the contention of Mr Luthra to some extent. However, we are bound by the majority view. Furthermore even the dissenting view of C.K. Thakker, J. was in the context of an extreme case of causing death by assaulting the complainant.
46. In K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] this Court referred to Virupaxappa Veerappa Kadampur [Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 : (1963) 1 Cri LJ 814] and held : (K.K. Patel case [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] , SCC p. 203, para 17) "17. The indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 IPC the pivotal ingredient is the same as for the offence under Section 166 IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there 40 being at least the colour of the office or authority which the appellants held."
... ... .. ..
55.Devinder Singh v. State of
Punjab [Devinder Singh v. State of Punjab, (2016) 12 SCC 87: (2016) 4 SCC (Cri) 15: (2017) 1 SCC (L&S) 346] cited by Mr Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi v. State [Satyavir Singh Rathi v. State, (2011) 6 SCC 1: (2011) 2 SCC (Cri) 782] also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police that the police had been attacked first and had retaliated, was found to be false. In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression "colour of duty". This Court dismissed the appeals of the policemen concerned against conviction, inter alia, under Section 302 of the Penal Code, which had duly been confirmed [Satyavir Singh Rathi v. State, 2009 SCC OnLine Del 2973] by the High Court. The judgment is clearly distinguishable.
"34. In Matajog Dobey [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the 41 discharge of official duty; 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 performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2 : AIR 1939 FC 43] and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh [Hori Ram Singh v. Crown, 1939 SCC OnLine FC 2 : AIR 1939 FC 43] because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that :
(Matajog Dobey case [Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 : 1956 Cri LJ 140] , AIR p. 49, para 20) '20. ... the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.' *** The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground.
***
42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal.
Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as 42 legal by our criminal justice administration system. They amount to State-sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception.
... ... ...
65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.
66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government.
4367. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.
68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him.
69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.
70. To decide whether sanction is necessary, the test is whether the act is totally unconnected 44 with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law."
(Emphasis supplied) On a coalesce of the judgments rendered by the Apex Court as afore-quoted, what would unmistakably emerge is, prosecution cannot continue against public servants, if the acts of such public servants were in the course of discharge of their official duties or has reasonable nexus to the discharge of official duties. An illustration is also given by the Apex Court in all the above cases as to what would amount to discharge of official duty and what would amount to personal offence and the unmistakable inference that can be drawn, in the considered view of this Court is that, if there is nexus qua the allegation to the discharge of official duty, sanction for such prosecution of public servant is imperative. On the bedrock of the 45 principles laid down by the Apex Court in the aforesaid cases, the case at hand is required to be noticed.
12. The allegations against the petitioners, apart from the ones punishable under the Act, are several that are made punishable under the provisions of the IPC.
They are under Sections 409, 465, 468 and 477A and the allegation concerns execution of work in asphalting of roads when the petitioners herein had their offices or at the relevant point in time were holding offices concerning those areas from which the allegations spring.
13. Sections 409, 465, 468 and 477A of the IPC read as follows:
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.46
465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record] forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
477-A. Falsification of accounts.--Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation.--It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed."
Section 409 deals with criminal breach of trust by a public servant; Section 465 deals with punishment for forgery and forgery is defined in Section 463; Section 468 directs 47 whoever commits forgery, intending to cheat would be a offence; and Section 477A deals with falsification of accounts. All these acts that are alleged are the ones that are alleged when the petitioners were discharging their official duties. In a case where the offence was that of cheating and other allied offences which are similar to the ones that are alleged in the case at hand, the Apex Court in the case of INDRA DEVI v. STATE OF RAJASTHAN5 holds that even if the offences are punishable under Sections 467, and 420 of the IPC, sanction under Section 197 of the CrPC becomes mandatory. The Apex Court in the said case has held as follows:
"10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.
(See Subramanian Swamy v. Manmohan 5 (2021) 8 SCC 768 48
Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64: (2012) 1 SCC (Cri) 1041:(2012) 2 SCC (L&S) 666].) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339:
1993 SCC (Cri) 901].) The real question, therefore, is whether the act committed is directly concerned with the official duty.
11. We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent 2 not being named in the FIR is not of much significance as the alleged role came to light later on.
However, what is of significance is the role assigned to him in the alleged infraction i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent 2 pertained to the subject-matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work i.e. Respondent 2, has 49 been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 CrPC qua these two other officers.
12. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent 2 as was done in the case of the other two officials by the trial court and High Court, respectively. The sanction from the competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well."
(Emphasis supplied) Therefore, in the light of the judgments so rendered by the Apex Court including the one rendered in the year 2021 in the case of INDRA DEVI what would unmistakably emerge is that previous sanction for prosecution either under Section 19 of the Act or under Section 197 of the CrPC is mandatory. These are the issues concerning the petitioners who are in service.
14. The other submission that is made is insofar as the petitioners are concerned who have retired from service that no sanction need be obtained from the hands 50 of the competent authority to prosecute them, is again unacceptable. The Apex Court in the case of STATE OF PUNJAB v. LABH SINGH 6 while considering this very issue has held as follows:
"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9- 2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman v. State [S.A. Venkataraman v. State, AIR 1958 SC 107: 1958 Cri LJ 254: 1958 SCR 1040] while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman [S.A.Venkataraman v. State, AIR 1958 SC 107: 1958 Cri LJ 254: 1958 SCR 1040] was adopted by this Court in C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of Maharashtra, (1970) 3 SCC 537: 1971 SCC (Cri) 143] and in Kalicharan Mahapatra v. State of Orissa [Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411: 1998 SCC (Cri) 1455] and by the Constitution Bench of this Court in K. Veeraswami v. Union of India [K. Veeraswami v. Union of India, (1991) 3 SCC 655: 1991 SCC (Cri) 734]. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.6
(2014) 16 SCC 807 51
10. However as regards charges for the offences punishable under the Penal Code, the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the PC Act, the protection under Section 197 CrPC is available to the public servant concerned even after retirement.
Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.9.2000 and secondly on 24-9-2003, the Court could not have taken cognizance insofar as the offences punishable under the Penal Code are concerned. As laid down by this Court in State of H.P. v. Nishant Sareen [State of H.P. v. Nishant Sareen, (2010) 14 SCC 527: (2011) 3 SCC (Cri) 836], the recourse in such cases is either to challenge the order of the sanctioning authority or to approach it again if there is any fresh material."
(Emphasis supplied) In the light of the judgments rendered by the Apex Court as afore-quoted what would unmistakably emerge is that, if the act of the accused has any nexus in the discharge of their official duty, it would require a sanction for prosecution from the hands of the competent authority and the allegation here has nothing to do with the personal affairs of the petitioners. Their irregularities and illegalities are all in the discharge of their official duties. Therefore, sanction for such prosecution is imperative.
5215. Whether sanction should be obtained even before the Court takes cognizance of the offence is also considered by the Apex Court in the case of ANIL KUMAR v. M.K.AIYAPPA7 wherein the Apex Court has held as follows:
"K.S.P. RADHAKRISHNAN, J.-- Leave granted. We are in this case concerned with the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 CrPC for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) CrPC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.
2. The appellants herein filed a private complaint under Section 200 CrPC before the Additional City Civil and Special Judge for Prevention of Corruption on 9-10- 2012. The complaint of the appellants was that the first respondent with mala fide intention passed an order dated 30-6-2012 in connivance with other officers and restored valuable land in favour of a private person. On a complaint being raised, the first respondent vide order dated 6-10-2012 recalled the earlier order. Alleging that the offence which led to issuance of the order dated 30-6- 2012 constituted ingredients contained under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B IPC and Section 149 IPC and Sections 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act, a private complaint was preferred under Section 200 CrPC.
... ...
4. Aggrieved by the said order, the first respondent herein approached the High Court of Karnataka by filing 7 (2013) 10 SCC 705 53 Writ Petitions Nos. 13779-80 of 2013. It was contended before the High Court that since the petitioner is a public servant, a complaint brought against him without being accompanied by a valid sanction order could not have been entertained by the Special Court on the allegations of offences punishable under the Prevention of Corruption Act. It was submitted that even though the power to order investigation under Section 156(3) can be exercised by a Magistrate or the Special Judge at pre-cognizance stage, yet, the governmental sanction cannot be dispensed with. It was also contended that the requirement of a sanction is the prerequisite even to present a private complaint in respect of a public servant concerning the alleged offence said to have been committed in discharge of his public duty.
5. The High Court, after hearing the parties, took the view [M.K. Aiyappa v. State of Karnataka, WP No. 13779 of 2013, order dated 21-5-2013 (KAR)] that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the petitioner (first respondent herein). Aggrieved by the same, as already stated, the complainants have come up with these appeals.
... ...
15. The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next 54 step to be taken is to follow up under Section 202 CrPC.
Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.
16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC.
17. We may now examine whether, in the abovementioned legal situation, the requirement of sanction is a precondition for ordering investigation under Section 156(3) CrPC, even at a pre-cognizance stage.
18. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under clauses (viii) and (xii) as under:
"2. (c)(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
***
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."55
19. The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
20. Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:
"19. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
... ... ...
21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of 56 sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 :
(2012) 2 SCC (L&S) 666] cases.
22. Further, this Court in Army Headquarters v. CBI [(2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88] opined as follows: (SCC p. 261, paras 82-83) "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. ...
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...."
23. We are of the view that the principles laid down by this Court in the above-referred judgments squarely apply to the facts of the present case. We, 57 therefore, find no error in the order [M.K. Aiyappa v. State of Karnataka, WP No. 13779 of 2013, order dated 21-5-2013 (KAR)] passed by the High Court. The appeals lack merit and are accordingly dismissed."
The issue that was dealt in the case of M.K. AIYAPPA was whether sanction was required even at the stage of registration of crime or before the Court would take cognizance of the offence and it is held that it is required.
Later the Apex Court in the case of MANJU SURANA v.
SUNIL ARORA8 refers the issue to a larger Bench. While so referring the Apex Court has observed as follows:
"30. In L. Narayana Swamy v. State of Karnataka [L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC 598 : (2016) 3 SCC (Cri) 696 : (2016) 2 SCC (L&S) 837] (two-Judge Bench), the judgment in Anil Kumar v. M.K. Aiyappa [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] was followed. After discussing various other pronouncements, it was concluded that even while directing an inquiry under Section 156(3) CrPC, the Magistrate applies his judicial mind to the complaint and therefore, it would amount to taking cognizance of the matter.
... ... ...
32. We have examined the rival contentions and do find a divergence of opinion, which ought to be settled by a larger Bench. There is no doubt that even at the stage of Section 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow, were the 8 (2018) 5 SCC 557 58 Magistrate to act in a mechanical and mindless manner.
That cannot be the test.
35. The complete controversy referred to aforesaid and the conundrum arising in respect of the interplay of the PC Act offences read with CrPC is, thus, required to be settled by a larger Bench. The papers may be placed before the Hon'ble the Chief Justice of India for being placed before a Bench of appropriate strength."
The larger Bench of the Apex Court is yet to render its judgment. Therefore, the judgment in the case of M.K. AIYAPPA could even be considered to be followed. Hence, both at the pre-cognizance stage and necessarily while the Magistrate takes cognizance of the offence, previous sanction is required, be it an employee who is serving or an employee who has retired. A co-ordinate Bench of this Court while considering this very submission in the case of STATE OF KARNATAKA v. V.CHANDRASHEKHAR9 has held as follows:
"14. Therefore it is clear that the amended Section makes it very clear that sanction is necessary not only for subjecting a public servant while in service (or who is in service) but also a public servant who has retired from service (who was in service). This amendment is by way of substitution and it takes effect from the inception in the sense it must be understood as if the substituted provision is there from the day when the law as enacted.9
2022 Crl.L.J. 1516 59 This position is made clear by the Division Bench of this Court in the case of Pushpalatha N.V. v. V.Padma and others (ILR 2010 KAR 1484):(AIR 2010 Kar.124). Though this decision was rendered in an appeal arising from a suit, for the purpose of understanding the effect of amendment by substituting a provision of law, it can be referred to here. What is held is as below:
"52.This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending Act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The Parliament realized this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e., 17-06-1956. From that day till the amendment Act came into force on 9.09.2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-09- 2005. Though her status was so declared on 9.09.2005, she has been given right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the Parliament did was to use the phrase "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity."
In the light of plethora of judgments rendered by the Apex Court on this issue, the order taking cognizance cannot but 60 be obliterated. The submission of the learned Additional State Public Prosecutor that acts of the petitioners would not require sanction is unacceptable. Therefore, the act of taking cognizance would stand vitiated.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) All these Writ Petitions are allowed.
(ii) Orders taking cognizance for offences punishable under Sections 120B, 409, 465, 468 and 477A of the IPC and Section 13(1)(a) and 13(2) of the Prevention of Corruption Act, 1988 in all these cases stand quashed.
(iii) Liberty is reserved to the prosecution to obtain and place on record a valid sanction from the Competent Authority before the concerned Court and on such production, the concerned Court is at liberty to continue the prosecution from the stage of taking cognizance.
61(iv) In the event the prosecution seeks such sanction within three months from today, the Competent Authority shall consider the same and pass appropriate orders in accordance with law, within three months from the date of receipt of such requisition.
(v) All other contentions, except the one that is considered in these cases, of both the parties, are left open.
Sd/-
JUDGE bkp CT:MJ