Madhya Pradesh High Court
Rakesh Sharma vs The State Of Madhya Pradesh on 10 December, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:64758
1
M.Cr.C. No.59791/2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RAMKUMAR CHOUBEY
M.CR.C. NO.59791/2021
U.K. SAMAL
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Mishra, learned senior counsel assisted by Ayush Tiwari, learned
counsel for the petitioner.
Shri Madhur Shukla, learned counsel for the respondent.
M.CR.C. NO.59796/2021
D.P. TIWARI
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Mishra, learned senior counsel assisted by Ayush Tiwari, learned
counsel for the petitioner
Shri Madhur Shukla, learned counsel for the respondent.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 10-12-2025
16:06:31
NEUTRAL CITATION NO. 2025:MPHC-JBP:64758
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M.Cr.C. No.59791/2021
CR.R. NO.3611/2021
U.K. SAMAL
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Mishra, learned senior counsel assisted by Ayush Tiwari, learned
counsel for the petitioner.
Shri Madhur Shukla, learned counsel for the respondent.
CR.R. NO.3612/2021
D.P. TIWARI
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Mishra, learned senior counsel assisted by Ayush Tiwari, learned
counsel for the petitioner.
Shri Madhur Shukla, learned counsel for the respondent.
CR.R. NO.275/2022
MANISH KALANI
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Arjun Pathak, learned counsel for the petitioner.
Shri Madhur Shukla, learned counsel for the respondent.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 10-12-2025
16:06:31
NEUTRAL CITATION NO. 2025:MPHC-JBP:64758
3
M.Cr.C. No.59791/2021
CR.R. NO.622/2022
RAKESH SHARMA
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Shivam Singh, learned counsel for the petitioner.
Shri Madhur Shukla, learned counsel for the respondent.
Reserved on: 24/11/2025
Delivered on: 10/12/2025
ORDER
Per: Justice Vivek Agarwal This bunch of petitions originate out of the order dated 10/11/2021 passed by learned 21st Additional Sessions Judge and Special Judge (MP/MLA), Bhopal in Case No.SCPPS-39/2018 whereby learned trial Court has rejected an objection raised by some of the petitioners by filing an application under Section 197 of Cr.P.C. regarding maintainability of charge sheet in absence of mandatory sanction prior to prosecution.
2. As far as criminal revisions are concerned, they have been filed challenging the order dated 27/11/2021 passed by the same 21st Additional Sessions Judge and Special Judge (MP/MLA), Bhopal in Case No.SCPPS-39/2018 whereby application filed for Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 4 M.Cr.C. No.59791/2021 discharge on behalf of the petitioners has been rejected. Petitioners are also challenging the validity, legality and propriety of the charges framed against the petitioners for the offence under Sections 120-B, 420 read with Section 120-B of IPC and also under Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 for which charges have been framed vide memo dated 04/12/2021.
3. As far as M.Cr.Cs. are concerned, they have been filed by two of the retired Indian Administrative Service Officers namely U.K. Samal and D.P. Tiwari whereas criminal revisions have been filed by the aforesaid two IAS Officers besides one Manish Kalani, S/o P.S. Kalani, land owner, so also by one Rakesh Sharma, S/o Shivcharan Lal Sharma who was working as Assistant Engineer-cum-Building Officer, Municipal Corporation, Indore.
4. As far as two M.Cr.Cs. are concerned, the main contention which has been put forward by the petitioners, therein, is that they have been prosecuted under some provisions of the Prevention of Corruption Act, 1988 and some provisions of Indian Penal Code.
5. Shri Ajay Mishra, learned senior counsel for the petitioners, submits that since two sets of sanctions are necessary; one under Section 19 of Prevention of Corruption Act,1988 and another Section 197 of the Code of Criminal Procedure, 1973, Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 5 M.Cr.C. No.59791/2021 requirement of taking sanction under Section 19 of the Prevision of Corruption Act will not be enforceable in terms of the fact that petitioners i.e. U.K. Samal and D.P. Tiwari attained the age of superannuation in the year 2007 and 2006 respectively, but, submits that sanction under Section 197 of the Code of Criminal Procedure cannot be dispensed with and even after their retirement, it was necessary to have obtained sanction under Section 197 of Cr.P.C.
6. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Sheetla Sahai and others, (2009) 8 SCC 617 wherein in para-35 it is held that section 13 of the Act provides for criminal misconduct by a public servant. Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Section 13(1)(d)(ii)-(iii) a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. It is pointed out that Section 120-A of the Penal Code defines criminal conspiracy and thereafter in para-37, it is held that 'Criminal Conspiracy' is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 6 M.Cr.C. No.59791/2021 Prevention of Corruption Act are required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
7. It is further pointed out that in para-38 of the said judgment it is held by the Hon'ble Supreme Court as under :
"38. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable.
What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
Its ingredients are :
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31
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8. Thereafter it is submitted that in para-55 of the said judgment, it is held that there exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
9. Reliance is also placed on the decision of Madhya Pradesh High Court in the case of Bhaskar Datta Mishra Vs. State of M.P., 1987 (1) MPWN 173, wherein it is held that if the offence was committed by a public servant in official capacity, then at the time of taking cognizance even if he stood retired, still the previous sanction is necessary if the offence is under Penal Code.
10. Shri Ajay Mishra, learned senior counsel, also places reliance on the judgment of the Hon'ble Apex Court in the case of State of Punjab Vs. Labh Singh, (2014) 16 SCC 807 wherein it is held that unlike Section 19 of the Prevention of Corruption Act, 1988, the protection under Section 197 of Cr.P.C. is available to the public servant concerned even after retirement.
11. Shri Madhur Shukla, learned counsel for the respondent/EOW, in his turn, submits that the case is listed on 11/12/2025 for final arguments. He places reliance Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 8 M.Cr.C. No.59791/2021 on the judgment of the Hon'ble Apex Court in the case of Harihar Prasad Etc. Vs. State of Bihar, (1972) 3 SCC 89 wherein it is held that in a case covered under Section 5 of the earlier Prevention of Corruption Act, 1947 will not require a separate sanction under Section 197 of the Cr.P.C. even if there are certain charges under certain provisions of the Indian Penal Code, 1860.
12. Brief facts leading to the present set of petitions are that one Mr. Mahesh Garg, R/o Indore had filed a complaint before the Economic Offences Wing, Bhopal (hereafter referred to as the "EOW") which registered an FIR against 12 persons including the petitioners under Section 420, 467, 468, 471, 120-B of IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
13. EOW had completed investigation and filed charge sheet No.4/2011 on 27/06/2011 before the trial Court.
14. Present case originated from the fact that Master Plans for Indore City were issued in year 1991, 2006 and 2021. The offence alleged relates to the change in land use in the year 2003 and that will be required to be looked up in terms of the Master Plan of 1991.
15. As per the Master Plan of 1991, the case of co-accused-Manish Kalani who had moved an application dated 16/08/2002 to the Office of Principal Secretary, Housing Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 9 M.Cr.C. No.59791/2021 and Environment Department was required to be looked into. Mr. Manish Kalani had submitted an application for change of land use of their property/land situated at 11, Tukoganj Main Road, Indore having area of one lakh sq.ft. from residential to commercial. In the application, it was shown that developer had intention to develop housing-cum- family entertainment centre.
16. On 11/09/2002 he had submitted similar applications in the office of the then Chief Minister. Upon receiving those applications in the Office of the Chief Minister, the then Chief Minister had directed the then Chief Secretary to examine the matter in terms of the noting made by the then Chief Minister on 11/09/2002. The aforesaid application was forwarded for necessary action. Thereafter Manish Kalani had moved the Office of the Chief Secretary on 23/10/2002 seeking conversion of land use from residential to commercial.
17. Vide report dated 28/09/2002, Joint Director, Town & Country Planning, Indore had informed the Commissioner-cum-Director, Town & Country Planning that as per the current status of the land, land use being residential, provision for grant of permission for multiplex is not available. As per the petitioners, it was also mentioned in Annexure-P/9 that in case any proposal for change of land use for the purpose of the construction of multiplex is accepted, then firstly, the matter is required Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 10 M.Cr.C. No.59791/2021 to be considered in terms of Section 23-A of the M.P. Town & Country Planning Act, 1973. The matter was taken up in the Office of Principal Secretary, Department of Housing and Environment in connivance with the Minister for Housing and Environment. In the communication dated 27/06/2003 originating from the office of the State Government, copy enclosed as Annexure-P/11 wherein, in para-3, it is mentioned that the case pertaining to Plot No.11, South Tokoganj for construction of family entertainment-cum-multiplex-cum-shopping mall, for which a request was made to change the land use, it was proposed that project will be implemented by the Entertainment World Development Limited, Indore in a joint venture with the Madhya Pradesh Housing Board. Thereafter it is mentioned that since the project is sought to be implemented as a joint venture, it was directed that the Housing Board shall place the matter before its Board of Directors and shall prepare its own scheme for implementation of joint venture.
18. Thereafter it is mentioned in para-5 that as per the letter dated 14/05/2003 issued by Joint Director, Town and Country Planning, Indore, since the proposed land use in the Master Plan is residential, there is no provision for granting permission to construct family entertainment centre-cum-multiplex (Cinema Hall), therefore, permission for change of land use under Section 23-A of the Town and Country Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 11 M.Cr.C. No.59791/2021 Planning Act, 1973 was proposed and thereafter file moved from S.O. to Under Secretary to Dy. Secretary, on 27/06/2003 to the Principal Secretary who had approved change of land use on 27/06/2003 itself and this note sheet was approved by the then Minister on 28/07/2003. It was mentioned that order be issued immediately.
19. Thereafter vide order dated 01/08/2003 in principal decision to change the use was communicated and direction was given to publish necessary notification in two newspapers which was published subsequently in local newspapers on 8th and 9th August, 2003. Notification is contained in Anexure-P/17.
20. However, the gist of the matter is that the land use was sought to be changed in terms of the summary contained in Annexure-P/11 dated 27/06/2003 on the basis of the proposed joint venture between the private developer and the M.P. State Housing Board, an entity of State Government of Madhya Pradesh.
21. Vide Annexure-P/18 Municipal Corporation, Indore through its Town Planner had filed an objection dated 21/08/2003 to the effect that current drainage line has been laid down in terms of the population density and if multiplex complex is allowed to be erected, then it will cause extremely high burden on the drainage line which will disrupt the drainage management. It is further mentioned that since that will not be in the public interest and also in view of the fact that Mahatma Gandhi Road passing Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 12 M.Cr.C. No.59791/2021 through the said area has already been broadened and there is no further scope of broadening and there being excessive pressure of traffic, if multiplex is constructed, then it will cause disruption in traffic. It is also mentioned that water supply lines laid at that point of time, were not capable of supplying water to that area and that would have caused disruption in water distribution of that locality. Thereafter Mr. U.K. Samal, Principal Secretary, Housing and Environment Department, vide note sheet dated 27/09/2003 at the instance of Manish Kalani who had produced certain letters on behalf of Manoj Tiwari, Rajesh Jwel, Jagdish Sant, Shankar Nainava and Rajesh Solanki allowed their objections to be withdrawn and thereafter various permissions were granted.
22. It has come on record that later on, order dated 2nd December, 2003 was passed directing change of land use and making it part of Indore Development Scheme, 1991. Appropriate gazette notification was issued. Just prior to issuance of gazette notification when the work of change of land use was being obtained in the garb of so called MOU for joint venture between the Madhya Pradesh Housing Board, an Instrumentality of State and the Private Developer, EWDPL dated 21/05/2003, but said MOU was cancelled by the then Minister Chandraprabhash Shekhar and the Officers of the State Government.
Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31
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23. Housing Board vide communication dated 08/06/2011 (Annexure-P/27) though informed that MOU is still in existence, but, as per Point No.5 of MOU dated 21/05/2003, supervision of the project was not being carried out by the Madhya Pradesh Housing Board and in case of any dispute, as per Clause- 016, matter is to be referred to the arbitration. It further stated that supervision of the work is to be carried out by the EWDPL. However, there is an order dated 25/11/2003 available on record as was issued by the Chairman of the Madhya Pradesh Housing Board with endorsement to the Principal Secretary, Housing and Environment Department, to the effect that joint venture agreement was cancelled invoking provision of Sections 19 and 27 of Madhya Pradesh Housing Board Act, 1972 and thereby a Memorandum of Understanding which was entered into amongst Madhya Pradesh Housing Development Board, Entertainment World Developers Private Limited, Padma Homes Private Limited and Kalani Brothers (Indore) Private Limited was cancelled and all the representatives of the Housing Board who were nominated as Directors in the Joint Venture Committee were withdrawn.
24. Madhya Pradesh Housing Board in its 171st Board Meeting dated 19/02/2004 enclosed as Annexure-P/30, on internal page-8, took a decision not to act on the directions of the Chairman of the Board in regard to cancellation of Memorandum of Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 14 M.Cr.C. No.59791/2021 Understanding and decided to set aside the orders of the then Chairman and issued notices to all the concerned.
25. Thus, it is evident that though the permission was taken in the name of a joint venture with the State entity i.e. Madhya Pradesh Housing Board, but, cleverly Madhya Pradesh Housing Board was excluded as is evident from the communication dated 25/11/2003 issued by the Minister and there is no material available on record to demonstrate that ever any joint venture was executed or given effect to with the Madhya Pradesh Housing Board. Thus, it is a case where in the name of joint venture, land use was changed, but, that was a camouflage to give benefit to a private player.
26. When these aspects are examined, then learned Single Bench of this Court in M.Cr.C. No.37550/2025 (Sandeep Yadav Vs. State of Madhya Pradesh) decided on 06/10/2025, dealt with the similar issue wherein learned JMFC, Sagar in RCT No.2381/2019 vide order dated 22/02/2025 had rejected an application under Section 197 of the Code of Criminal Procedure. This order was put to challenge before learned 1st Additional Sessions Judge, Sagar by way of filing a revision under Section 397 of Cr.P.C. (Section 438 of BNSS) and vide order dated 27/06/2025 learned 1 st Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 15 M.Cr.C. No.59791/2021 Additional Sessions Judge, Sagar dismissed the revision upholding the orders of learned JMFC.
27. Learned Single Judge in para-8 has held as under :
"8. Section 197 of Cr.P.C. falls in the Chapter-XIV- "Conditions Requisite For Initiation Of Proceedings" i.e. if the conditions mentioned are not made out or absent, then no prosecution can be set in motion. The legis idea of Section 197 of CrPC is to provide protection to the responsible public servants against the institutions of possible vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. This protection is provided only for the act done by the public servant connected with his official duties and it is not for the protection of illegal acts. The relevant part of Section 197 of CrPC, is reproduced herein below:-
"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 officer 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 otherwise provided in the Lokpal and Lokayuktas Act, 2013- (a) in the case Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 16 M.Cr.C. No.59791/2021 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.] [Added by Act 43 of 1991, Section 2 (w.e.f. 2-5-1991). 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, 6 M.Cr.C.No.37550/2025 section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB, [Inserted by Criminal Law (Amendment) Act, 2013 ] or section 509 of the Indian Penal Code.].
(2) xxx xxx
(3) xxx xxx
(4) xxx xxx"
9. Once it is the view that no case is made out so as to prosecute an accused, there is no point in making a request for sanction for prosecution. In case of P. K. Pradhan v. State of Sikkim, 2001 CRI.L.J. 3505, it is opined that "No question of sanction can arise under S.197, unless the act complained of is an offence, the only point for Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 17 M.Cr.C. No.59791/2021 determination is whether it was committed in the discharge of official duty.".
10. Therefore, while examining the application under provision of Section 197 of CrPC, it would not be required to analyse the prosecution case so as to see whether alleged offence has been made out or not or there is no sufficient ground for proceeding against the accused/public servant for the simple reason that if the offence is not made out then the requirement of sanction for prosecution would not arise.
11. In the case at hand, an officer of the Agriculture Department of the State Government submitted a written complaint on the basis of which FIR was registered and during investigation, it has been found that the co-accused Santosh Kumar Bajaj had submitted a list of farmers, that is the main document on the basis of which, as per government scheme, seeds grant could be given, submitted to the other co-accused. The petitioner was posted as Assistant Director, Agriculture Department and was responsible for checking and verifying the list before recommending the same.
Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 18 M.Cr.C. No.59791/2021
12. It is not in dispute that the petitioner is a public servant and was posted as Assistant Director at Agriculture Department at the relevant point of time and he cannot be removed from the office, saved by or with sanction of the government. The only issue which crops up for consideration is whether the act of the petitioner was done in the discharge of his official duty or not. The legislative mandate engrafted in Section 197 of Cr.P.C. has been explicated in a catena of decisions.
13. In case of P. K. Pradhan Vs. State of Sikkim, 2001 CRI.L.J. 3505, the legal proposition has been settled in the following terms;
"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 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 situation."
14. In case of State of Himachal Pradesh v. M. P. Gupta, AIR 2004 SC 730, the underlying legal proposition is as follows;
"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 Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 19 M.Cr.C. No.59791/2021 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 the 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."
15. In case of Center for Public Interest Litigation v. Union of India, AIR 2005 SC 4413, the Apex Court has held as under;
"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. But before S. 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."
16. In the well-known case of Parkash Singh Badal v. State of Punjab, AIR 2007 SC 1274 dealing with the question of sanction for prosecution under section 197 Cr.P.C. in comparison with Section 19 of the Prevention of Corruption Act, 1988 the Supreme Court has categorically laid down the legal propositions as under;
"Use of the expression, 'official duty' in S. 197 implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend the protective cover to every act or omission done by a public servant in service but Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 20 M.Cr.C. No.59791/2021 restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. If on facts 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 S. 197 cannot be disputed.
Further held that;
"in a case relatable to S. 197 of Cr. P.C., the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties"
17. In case of Anjani Kumar v. State of Bihar & Anr., 2008 CRI. L. J. 2558 = (2008) 5 SCC 248, it has been categorically held as under;
"Under the colour of office, official duty 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."Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31
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18. In case of Choudhury Parveen Sultana v. State of West Bengal & Anr., 2009 CRI.L.J. 1318 = (2009) 3 SCC 398, it has been held thus;
"All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of 197 is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of S. 197 and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."
19. In case of Station House Officer v. B.A. Srinivasan, (2020) 2 SCC 153, the Supreme Court has held that;
"protection under Section 197 of CrPC is available to public servant when an offence is said to have been committed while acting or purporting to act in discharge of their official duty, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected."Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31
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20. In the present case, it has been alleged that the petitioner has committed the offence under Section 420 r/w 120-B of IPC. In the case of Parkash Singh Badal (supra), it has been categorically held that the offence of cheating under Section 420 of IPC or for that matter offence relatable to Sections 467, 468, 471 read with Section 120-B of the IPC can by no stretch of imagination by its very nature be recorded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of offence. In case of Bholu Ram v. State of Punjab & Anr., 2008 CRI.L.J. 4576 = (2008) 9 SCC 140, it has been observed that "the offences punishable u/S.409, u/S.420, u/S.467, u/S.468, u/S.471, etc. of IPC cannot be regarded as having been committed by a public servant while acting or purporting to act in discharge of official duty."
21. The requirement of Section 197 of CrPC is that the act by which offence has been constituted must be discharged in official duty of the public servant concerned. It cannot be understood conversely that the act which constitutes the offence does not amount to act discharged in Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 23 M.Cr.C. No.59791/2021 the official duty, otherwise, the whole purpose of statutory idea of protection of public servant from vexatious and baseless prosecution will frustrate. As per the prosecution case, it has been alleged against the petitioner that he was responsible for checking and verifying the list of farmers before recommending the same, thus, he has used his official position in connivance with the other co-accused persons and thereby conspired with the co-accused, therefore, the petitioner has committed the offence under Section 420 read with Section 120B of IPC.
22. Avowedly, the petitioner was posted as Assistant Director and he was supposed to check and then recommend the list of farmers which is the core document of receiving the seeds grant. The question whether the petitioner has done so with the intention and knowledge that the fake list was prepared for receiving the seeds grant in favour of co- accused Santosh Kumar Bajaj or he had simply recommended the list unaware of the illintention of the co-accused persons would depend up on the merits of the case that can be ascertained on the basis of evidence recorded during the course of trial. For reaching a decisive Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 24 M.Cr.C. No.59791/2021 conclusion, it is imperative to go through the settled legal position in this regard.
23. In case of P. K. Pradhan (supra) it is opined that; "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 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." The legal proposition laid down in M. P. Gupta (supra) and further reiterated in Center for Public Interest Litigation (supra) is as under;
"One safe and sure test in this regard would be 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 his 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."Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31
NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 25 M.Cr.C. No.59791/2021
24. In Jayasingh v. K.K. Velayutham, (2006) 2 SCC (Cri.) 573, it has been opined that the question as to whether sanction is necessary or not, that may be appropriately raised at different stages of the case depending upon the allegations made in the complaint. In Parkash Singh Badal (supra), the Apex Court has expressed the view that the question relating to the need of sanction under Section 197 of Cr.P.C. 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 proceedings. The question whether sanction is necessary or not may have to be determined from stage to stage.
25. In Station House Officer v. B.A. Srinivasan (supra), it has been held that; "the issue whether the alleged act is intricately connected in discharge of official function and whether the matter would come within the expression "while acting or purporting to act in discharge of their official duty", would at times get crystalized only after evidence is led and issue of sanction can be agitated at the later stage as well."
Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 26 M.Cr.C. No.59791/2021
26. In the factual matrix of the present case, the question of requirement of sanction for prosecution being an act done in discharge of official duty by the petitioner holding office of public servant can be determined at the appropriate stage of the trial. The act of the petitioner was done in discharge of his official duty can be decided on the basis of evidence recorded during the trial. If the intention or knowledge and thereby agreement with co-accused persons by the petitioner appeared, then certainly the protection under Section 197 of CrPC shall not be available for the reason that the said offence cannot be said to be done by an act in discharge of official duty as per the legal propositions referred herein before. However, on a different note, if the act complained of was only an omission or neglect on the part of the petitioner for which he could have been made answerable for a charge of dereliction of his official duty, then the act committed by the petitioner will be considered as in discharge of his official duty covered under Section 197 of CrPC.
27. Therefore, the present petition is disposed of with a direction that the petitioner shall be at liberty to raise the issue of sanction for Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 27 M.Cr.C. No.59791/2021 prosecution required under Section 197 of CrPC during the appropriate stage of trial wherein the petitioner may establish his defence and in such an eventuality, the question of requirement of sanction will be decided by the trial Court."
28. When facts of the present case are examined, then it being a matter of evidence as held by Hon'ble Supreme Court in the cases of Parveen Sultana & P.K. Pradhan (supra) and the similar is the ratio of the law laid down by the Hon'ble Supreme Court in the case of Ram Sagar Vs. Central Bureau of Investigation, 2025 LiveLaw (SC) 891, wherein it is held that the issue of sanction to prosecute under Section 197 of Cr.P.C. depends on the nature of the evidence presented by the prosecution during trial, and when that ratio is taken into consideration, then it is evident that under the facts and circumstances of the case in Sheetla Sahai and others (supra), facts, being different, judgment of Hon'ble Supreme Court in the case of Ram Sagar (supra) will have application, therefore, it will be subject-matter of final adjudication as to whether under the facts and circumstances, sanction under Section 197 of Cr.P.C. was required or not.
29. So far as framing of charges is concerned, we do not perceive any illegality therein. The charges under Sections 120-B and 420 read with 120-B of the IPC Signature Not Verified Signed by: TULSA SINGH Signing time: 10-12-2025 16:06:31 NEUTRAL CITATION NO. 2025:MPHC-JBP:64758 28 M.Cr.C. No.59791/2021 framed against the private players have been founded on the material placed before the trial Court. Similarly, the charges framed against the-then Government Officials under Sections 120-B, 420 read with Section 120-B of IPC and Sections 13(1)(d) and13(2) of the Prevention of Corruption Act, 1988 are too based on material placed before the trial Court, which, in the light of judgment of the Hon'ble Supreme Court in the case of Parkash Singh Badal and another (supra), does not call for any indulgence by this Court.
30. In above terms, all these above petitions fail and the same are hereby dismissed.
(VIVEK AGARWAL) (RAMKUMAR CHOUBEY)
JUDGE JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 10-12-2025
16:06:31