Gujarat High Court
G H Vasavada vs Shankerlal Govindji Joshi & on 30 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/966/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 966 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ?
Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
or any order made thereunder ?
No
Circulate to all Sessions Judges & JMFCs
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G H VASAVADA....Applicant(s)
Versus
SHANKERLAL GOVINDJI JOSHI & 1....Respondent(s)
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Appearance:
MR IH SYED, ADVOCATE for the Applicant(s) No. 1
MR JAYESH A DAVE, ADVOCATE for the Respondent(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH
MS S.K. VISHEN, APP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30 /04/2015
CAV JUDGMENT
Page 1 of 44
R/SCR.A/966/2012 CAV JUDGMENT
1. By this writ petition under Article 226 of the Constitution of India, the petitioner - the original accused has prayed for the following reliefs:
"16A) This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 29th February 2012 passed by the State Government granting sanction under Section 197 of Cr.PC to prosecute the applicant and others for offences under Sections 323, 504, 342, 506(1), 34 and 114 of IPC in the Criminal Complaint No.2216 of 1984 pending before the learned Chief Judicial Magistrate, Bhuj;
A1. This Hon'ble Court may be pleased to issue writ of certiorari, order or any other appropriate writ, order or direction to quash and setaside the order taking cognizance dated 8th May 1984 in Criminal Complaint No.2216 of 1984.
B) Pending final disposal of the present petition, all proceedings arising out Criminal Complaint No.2216 of 1984 pending before the leaned Chief Judicial Magistrate, Bhuj be stayed in the interest of justice ; and/or the further effect and implementation of the impugned order be stayed in the meanwhile;
C) Pass such further and other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The facts giving rise to this petition may be summarized as under:
2.1 This litigation has a long drawn history. On 08.05.1984, the respondent No.1 herein lodged a private complaint in the court of the learned Chief Judicial Magistrate Kachchh, Bhuj for the offence punishable under Sections 323, 504, 342, 506(1) read with Sections 34 and 114 of the Indian Penal Code against the petitioner herein and the three other coaccused, all police officers. The Page 2 of 44 R/SCR.A/966/2012 CAV JUDGMENT respondent No.1 along with one Shri Kharashanker Joshi, former M.L.A., one Shri Ibhala Sheth and several other persons had gone to meet Shri K.N. Sharma, a coaccused, former Superintendent of Police Kachchh with a representation against the police atrocity alleged to have been meted by the police authorities during the period between 03.05.1984 and 05.05.1984 in the village Nana Kothara, District Kachchh. According to the complaint, no sooner Shri Sharma heard the name of Ibhala Sheth, then everyone was asked by Shri Sharma to leave his office and thereafter, Ibhala Sheth was called back and was taken to the control room by Shri Sharma along with the other police officers i.e. the applicant herein, Shri P.N. Bishnoi and Shri G.N. Chauhan. It is alleged in the complaint that thereafter Ibhala Sheth was allegedly beaten up by all the said four police officers.
2.2 The medical certificates and the photographs have been placed on record, which would suggest that Ibhala Sheth had sustained serious injuries.
2.3 On 18.05.1984, the Judicial Magistrate, First Class, Bhuj, took cognizance upon the complaint and ordered magisterial inquiry under Section 202 of the Code.
2.4 On 24.07.1984, the statement of the Medical Officer, who had examined Ibhala Sheth and treated him for the injuries, came to be recorded before the learned Chief Judicial Magistrate, First Class.
2.5 On 03.09.1984, the statement of Ibhala Sheth came to be Page 3 of 44 R/SCR.A/966/2012 CAV JUDGMENT recorded before the learned Chief Judicial Magistrate.
2.6 On 10.09.1984, the Chief Judicial Magistrate issued process under the provision of Section 204 of the Code of the Criminal Procedure, 1973 (for short, 'the Code') for the offence punishable under Sections 323, 342, 504, 506(1) read with Sections 34 and 114 of the Indian Penal Code.
2.7 On 01.10.1984, the petitioner herein and the other co accused preferred a writ petition being the Special Criminal Application No.1675 of 1984 before this Court and, inter alia, prayed for quashing of the complaint filed by the respondent No.1 herein.
2.8 On 01.10.1984, a learned Single Judge of this Court admitted the writ petition referred to above and granted interim relief staying the proceedings of the Criminal Complaint No.2216 of 1984 pending before the Chief Judicial Magistrate.
2.9 On 07.02.1986, this Court disposed of the aforesaid writ petition on the ground that the trial court had merely ordered a magisterial inquiry under Section 202 of the Code and since there was no order of process issued against the accused persons, the petition praying for quashing of the complaint was misconceived.
2.10 On 29.01.1987, the Public Prosecutor in the trial court preferred an application Exh. 37 on behalf of the accused police officers, inter alia, praying for dismissal of the complaint being the Criminal Complaint No.2216 of 1984 on the ground that in the Page 4 of 44 R/SCR.A/966/2012 CAV JUDGMENT absence of a valid sanction under Section 197 of the Code, the accused person being police officers cannot be prosecuted.
2.11 On 02.11.1987, the Chief Judicial Magistrate passed an order rejecting the application Exh. 37 referred to above holding that the act complained against the police officers would not fall within the ambit of an act done in discharge of their official duties and therefore, sanction to prosecute them under Section 197 of the code was not necessary.
2.12 On 29.04.1988, the accused persons, being aggrieved by the order dated 02.11.1987 passed by the Chief Judicial Magistrate, preferred a Criminal Revision Application No.137 of 1988 before the Sessions Court Kachchh, Bhuj.
2.13 On 12.12.1994, the Additional Sessions Judge Kachchh, Bhuj passed an order rejecting the aforesaid revision application and thereby, confirming the order dated 02.11.1987 passed by the Chief Judicial Magistrate holding that the alleged act on the part of the accused officials cannot be considered as part of their official duties and further observed that the Public Prosecutor could not have filed such an application on behalf of the accused persons seeking dismissal of the complaint.
2.14 On 27.09.1995, one of the coaccused, namely, Shri K.N. Sharma preferred a Special Criminal Application No.657 of 1995 before this Court challenging the aforesaid order dated 12.12.1994 passed by the Additional Sessions Judge Kachchh, Bhuj.Page 5 of 44 R/SCR.A/966/2012 CAV JUDGMENT
2.15 On 12.10.1995, a learned Single Judge of this Court granted stay against the further proceedings of the Criminal Complaint No.2216 of 1984, which was ordered to be continued till further orders.
2.16 On 05.05.2010, a learned Single Judge of this Court rejected the above referred Special Criminal Application No.657 of 1995 as withdrawn, with a liberty to the petitioner to approach the learned Chief Judicial Magistrate, with a view to pursue before the Chief Judicial Magistrate as regards the requirement of sanction under Section 197 of the Code.
2.17 On 13.07.2010, the respondent No.1 herein i.e. the original complainant addressed a letter to the State government with a prayer that the accused officers including the applicant herein were delaying the outcome of the criminal complaint on the ground of want of sanction, and therefore, with a view to avoid any further delay in the matter, sanction may be accorded under Section 197 of the Code to prosecute the police officers.
2.18 On 15.10.2010, the complainant herein preferred an application Exh. 97 to segregate the cases of accused Nos.1 and 2 i.e. Shri K.N. Sharma and the applicant herein respectively on one hand, and of accused Nos.3 and 4 on the other hand since they were not available despite the service of summons.
2.19 On 31.12.2010, the Chief Judicial Magistrate passed an order allowing the aforesaid application with a direction to proceed Page 6 of 44 R/SCR.A/966/2012 CAV JUDGMENT further against the accused Nos. 1 and 2.
2.20 On 17.01.2011, the accused Nos.1 and 2 i.e. Shri K.N. Sharma and the applicant herein filed a Criminal Revision Application No.5 of 2011 in the Sessions Court Kachchh at Bhuj for quashment of the aforesaid order passed by the learned Chief Judicial Magistrate.
2.21 On 06.08.2011, the 2nd Additional Sessions Judge Kutch at Bhuj passed an order rejecting the aforesaid revision application.
2.22 On 08.11.2011, the petitioner herein filed an application Exh. 125 in the court of the learned Chief Judicial Magistrate for quashing the above referred criminal complaint as well as for discharge, inter alia, on the ground that the mandatory sanction, as required by Section 197 of the Code, for prosecution was lacking.
2.23 On 08.11.2011, the coaccused Shri K.N. Sharma also filed an application Exh. 126 seeking sanction, inter alia, on the ground that the sanction to prosecute was mandatory without which, the complaint cannot be proceeded against him.
2.24 On 12.11.2011, the respondent No.1 herein, sent a reminder requesting the State Government for the grant of requisite sanction to prosecute the accused persons.
2.25 On 29.02.2012, the State Government passed an order according sanction to prosecute all the accused officers including Page 7 of 44 R/SCR.A/966/2012 CAV JUDGMENT the applicant herein except Shri J.N. Chauhan, who passed away during the interregnum period.
3. In this petition, the challenge is two fold, (1) the legality and the validity of the sanction accorded by the State Government, and (2) the order dated 08.05.1984 passed by the learned Chief Judicial Magistrate taking cognizance upon the complaint and issue of process on the ground that the date on which the cognizance was taken, the sanction was not there, and therefore, grant of sanction, at a later stage, would not cure the defect.
4. Mr. I.H. Syed, the learned counsel appearing for the applicant vehemently submitted that the State Government committed a serious error in according the sanction under Section 197 of the Code to prosecute the applicant herein. He submitted that at one point of time, the State Government had preferred an application for discharge of the applicant herein and the other coaccused on the ground that the act complained was one in discharge of their official duties. Mr. Syed submitted that the impugned order of sanction amounts to overreaching the order passed by this Court dated 05.05.2010 in the Special Criminal Application No.657 of 1995.
5. Mr. Syed submitted that the order of sanction deserves to be quashed solely on the ground of delay of about twenty eight years.Page 8 of 44 R/SCR.A/966/2012 CAV JUDGMENT
6. Mr. Syed submitted that the injured, namely, Ibhala Sheth is also dead and gone. In the absence of the injured, the prosecution will not be able to prove the case and the trial will be nothing, but an empty formality.
7. Mr. Syed submitted that late Ibhala Sheth was a known Smuggler and was involved in many illegal activities and there were criminal cases against him.
8. Mr. Syed submitted that the impugned order of sanction suffers from the vice of bias. Mr. Syed submitted that the order passed by the State Government according sanction under Section 197 is only with a view to settle a personal score with the co accused Shri K.N. Sharma, who at the relevant point of time, was the Superintendent of Police at Bhuj. Mr. Syed pointed out that there are several litigations filed by Shri Sharma against the State Government and he is not getting along well with the State Government.
9. In such circumstances referred to above, Mr. Syed submitted that there being merit in this petition, the same be allowed and the impugned order of sanction as well as cognizance be quashed and set aside.
10. In support of his submissions, Mr. Syed has placed reliance on the following decisions:
(1) Baijnath Gupta & others v. The State of Madhya Pradesh reported in 1966 (1) SCR 210 Page 9 of 44 R/SCR.A/966/2012 CAV JUDGMENT (2) Naga People's Movement of Human Rights v. Union of India reported in 1998 (2) SCC 109(52) (3) Daya Ram v. Raghunath reported in 2007 (11) SCC 241 (4) Union of India v. Jai Prakash Singh reported in 2007 (10) SCC 712 (5) Kranti Associates (P) Ltd v. Masood Ahmed Khan reported in 2010 (9) SCC 496 (6) State of Karnataka v. Ameerjan reported in 2007 (11) SCC 273 (9,10) (7) Sankaran Moita v/s. Sadhna Das & another, reported in (2006) 4 SCC 584.
11. On the other hand, this petition has been vehemently opposed by Mr. Kamal Trivedi, the learned Advocate General appearing for the State. Mr. Trivedi submitted that the State government committed no error, not to speak of any error of law in according sanction under Section 197 of the Code. Mr. Trivedi submitted that the delay, which is being complained of is on account of the various orders obtained by the accused persons themselves from time to time. Mr. Trivedi submitted that the scope of challenge to the order of sanction under Section 197 if very limited. Mr. Trivedi further submitted that even if there would have been no sanction under Section 197 of the Code, the complaint could have been proceeded further, as adopting a third degree method by the police officers for no reason would not be an act falling within the ambit of "in discharge of their official duties".
12. Mr. Trivedi submitted that there being no merit in this Page 10 of 44 R/SCR.A/966/2012 CAV JUDGMENT petition, the same be rejected.
13. Mr. Trivedi, in support of his submissions, placed reliance on the following decisions:
(1) The decision of this Court in the case of Mahendra Vershi Shah v. M.G. Joshi in Criminal Revision Application No.380 of 1997.
(2) Matajob Dobey v. H.C. Bhari reported in AIR 1956 SC 44 (3) State of Bihar and another v. Shri P. P. Sharma reported in AIR 1991 Supreme Court 1260 (4) State of Maharastra and others v. Ishwar Piraji Kalpatri and others reported in AIR 1996 Supreme Court 722 (5) Raj Kishor Roy v. Mamleshwar Pandey and another reported in (2002)6 Supreme Court Cases 543 (6) State of Maharastra through Central Bureau of Investigation v. Mahesh G. Jain reported in (2013) 8 Supreme Court Cases 119 (7) S.S. Khandwala (IPS) & Others v. State of Gujarat & others reported in 2002(3) G.L.H. 556.
14. Mr. M.B. Sardar, the learned counsel appearing with Mr. Jayesh Dave, for the complainant submitted that the order of sanction passed by the State Government is just and proper and no fault could be found with the order of sanction. Mr. Sardar adopted all the submissions canvassed by Mr. Trivedi, the learned Advocate General and prayed to reject this application.
15. Having heard the learned counsel appearing for the parties Page 11 of 44 R/SCR.A/966/2012 CAV JUDGMENT and having gone through the materials on record, two questions fall for my consideration;
(1) First, on what ground an order granting sanction can be challenged at the very initial stage before the parties had an opportunity to lead the evidence in support of their case, and (2) secondly, whether the order of the learned Magistrate taking cognizance and issuing process deserves to be quashed on the ground that when the cognizance was taken, there was no sanction under Section 197 of the Code of Criminal Procedure. To put it in other words, whether the sanction accorded by the State Government, at a later stage, would save the situation since it is not always necessary that the need for sanction under Section 197 of the Code should be considered as soon as the complaint is lodged.
16. Section 197 of the Code reads as under:
"197. Prosecution of Judges and public servants a (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 (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 ;
(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.
d [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 Page 12 of 44 R/SCR.A/966/2012 CAV JUDGMENT 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.] f [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.] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. c (3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply.to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.
e [(3A) Notwithstanding anything contained in subsection (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 Page 13 of 44 R/SCR.A/966/2012 CAV JUDGMENT of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
17. The Law Commission in its 41st Report has observed "15.123. Section 197, as it now stands, applies to a public servant of the specified category only when he is holding office as such public servant. It does not apply to him after he has retired, resigned or otherwise left the service......... It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant."
18. Section 197, Cr. P. C. provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Central Government or State 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 duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.
19. Subsection (1) of Section 197, Cr. P. C. shows that sanction for prosecution is required where any person who is or was a Judge Page 14 of 44 R/SCR.A/966/2012 CAV JUDGMENT 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 discharge of his official duty. Article 311 of Constitution lays down that no person who is a member of a civil service of the Union or State or holds a civil post under the Union or State shall be removed by an authority subordinate to that by which he was appointed. It therefore, follows that protection of subsection (1) of Section 197 of Cr. P. C. is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.
20 The word 'sanction' has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word 'sanction' is as under :
Webster's Third New Internal Dictionary Explicit permission or recognition by one in authority that gives validity to the act of another person or body; something that authorizes, confirms, or countenances.
The New Lexicon Webster's Dictionary Explicit permission given by some one in authority.
The Concise Oxford Dictionary Encouragement given to an action etc., by custom or tradition; express permission, confirmation or ratification of a law etc; authorize, countenance, or agree to (an action etc.) Stroud's Judicial Dictionary Sanction not only means prior approval; generally it also means ratification.
Words and Phrases The verb 'sanction' has a distinct shade of meaning from 'authorize' and means to assent, concur, confirm or ratify. The Page 15 of 44 R/SCR.A/966/2012 CAV JUDGMENT word conveys the idea of sacredness or of authority.
The Law Lexicon by Ramanath Iyer Prior approval or ratification.
21. In 78 Corpus Juris Secundum Page 579 different meanings have been given to the word as a noun and as a verb. As a noun it means penalty or punishment provided as a means of enforcing obedience to a law and in a wider sense an authorisation of any thing and it may convey the idea of authority. As a verb 'sanction' is defined as meaning to assent, concur, confirm or ratify. In U.S. v. Tillinghast D. G., 55 F2d 279 it was held that where legal rights are involved it is doubtful whether it should be construed as requiring less than an unmistakable expression of approval. In Section 197, Cr. P. C. the word 'sanction' has been used as a verb and therefore it will mean to assent, to concur or approval.
22. The legislature has given great importance to sanction will be evident from the Scheme of Code of Criminal Procedure. Section 216 of the Code gives power to the Court to alter or add to any charge at any time before judgment is pronounced but subsection (5) thereof provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. This was also emphasised by the Privy Council in the leading case of Gokulchand Dwarka Das Morarka v. The King, AIR 1948 PC 82, where in para 9 it was observed as Page 16 of 44 R/SCR.A/966/2012 CAV JUDGMENT follows at Page 85 :
". . . . . .The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. . . . . . . . . ."
23. In Para 10 of the aforesaid judgment it was observed that the giving of sanction confers jurisdiction on the Court to try the case. This case has been quoted with approval by the Supreme Court in Madan Mohan v. State of U. P., AIR 1954 SC 637 : (1954 Cri LJ 1656) and Som Nath v. Union of India, AIR 1971 SC 1910 : 1971 Cri LJ 1422.
24. Clauses (a) and (b) of subsection (1) of Section 197, Cr. P. C. show that the sanction in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of the Union of India has to be granted by the Central Government, and, in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of a State, by the State Government. This provision shows that the sanction can be granted only by the Central Government or the State Government, as the case may be. If the sanction is not accorded by the competent authority of the State Government or the Central Government as the case may be, the order of sanction would be invalid. It, therefore, follows that an order of sanction can be assailed on the ground that the same had been granted by a person who did not have the authority to grant Page 17 of 44 R/SCR.A/966/2012 CAV JUDGMENT sanction as contemplated by Section 197, Cr. P. C.
25. What would constitute a valid sanction, was examined by the Privy Council in Gokul Chand Dwarka Das Morarka (supra) with reference to clause 23 of Cotton Cloth and Yarn Control Order, 1943, which required that no prosecution for the contravention of any of the provisions of the control order shall be instituted without the previous sanction of the Provincial Government, and it was held as follows :
"A sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with Cl. 23. In order to comply with the provisions of Cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the fact should be referred to on the face of the sanction, but this is not essential since Cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. . . . ."
26. Section 6(1) of the Prevention of Corruption Act, 1947, provided that no Court shall take cognizance of an offence alleged to have been committed by the public servant, except with the previous sanction of the authority specified in the subsection. What would constitute a valid sanction with reference to the aforesaid provision, was examined in Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637 : (1954 Cri LJ 1656) and the Apex Court after relying upon the dictum of the Privy Council in Gokulchand Dwarka Das Morarka (supra) held as follows :
"The burden of proving that the requisite sanction has been obtained Page 18 of 44 R/SCR.A/966/2012 CAV JUDGMENT rests on the prosecution and such burden includes proof that the Sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where the facts constituting the offence do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Where this is not done, the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the Court to try the case."
27. Similar view was taken in Maj. Som Nath v. Union of India, AIR 1971 SC 1910 : (1971 Cri LJ 1422).
28. Section 198B(3) of Code of Criminal Procedure, 1898, required filing of a complaint with the previous sanction granted by the authorities specified in that subsection. In P. C. Joshi v. State of U. P., AIR 1961 SC 387 : (1961 Cri LJ 566) the Apex Court while examining the same question as to what would constitute a valid sanction held as follows in paragraph 4 of the reports :
"Mere production of a document which sets out the names of the persons to be prosecuted and the provisions of the statute alleged to be contravened, and purporting to bear the signature of an officer competent to grant the sanction where such sanction is a condition precedent to the exercise of jurisdiction does not invest the Court with jurisdiction to try the offence. If the facts which constitute the charge do not appear on the face of the sanction, it must be established by extraneous evidence that those facts were placed before the authority competent to grant the sanction and that the authority applied his mind to those facts before giving sanction."
29. It is, therefore, well settled that in order to constitute a valid sanction it must be established that the same was given in respect of the facts constituting the offence with which the accused is proposed to be charged. The facts may be stated in the order Page 19 of 44 R/SCR.A/966/2012 CAV JUDGMENT granting sanction or may be proved by extraneous evidence. If the facts do not appear on the face of the sanction, the prosecution must prove it by other evidence that the material facts constituting the offence were placed before the sanctioning authority and he had granted the same after consideration of the said facts. It follows as a corollary that where the facts constituting the offence do not appear on the face of the sanction, it will be open for the prosecution to lead evidence that the material facts were placed before the sanctioning authority before grant of sanction, and the occasion for leading the evidence can arise only during the course of trial.
30. The discussion shows that an order of sanction can be assailed only on two grounds viz. (1) it has been granted by an authority who was not competent to do so and (2) it has not been given in respect of the facts constituting the offence charged. However, if the challenge to sanction is based upon the ground that the facts constituting the offence do not appear on the face of the sanction, (then) such a plea cannot be entertained at the initial stage before the trial has commenced, as the prosecution can have no opportunity to lead evidence in order to show that the sanction had been granted after consideration of relevant material. Therefore, such a plea cannot be entertained and examined in any proceedings including a writ petition under Article 226 of the Constitution before commencement of the trial. It is only after the trial has concluded and the prosecution has been given the opportunity to lead evidence that the validity of the sanction can be examined on this ground.
Page 20 of 44 R/SCR.A/966/2012 CAV JUDGMENT31. The challenge to the legality and the validity of the sanction in the present case is altogether on different grounds. The first ground of challenge is delay of about twenty eight years. It is true that the complainant in the present case applied for sanction before the State Government in the year 2010 and the sanction came to be accorded in the year 2012. However, this by itself, is not sufficient to render the sanction illegal or erroneous in law. It is only because that the accused persons kept on submitting that the prosecution against them is not tenable in the absence of a valid sanction that ultimately, the complainant thought fit to pray for sanction. Whether the act of the accused as complained falls within the ambit of "in discharge of official duty" or not, is an issue which could be considered best only after the necessary evidence is led by the defence, unless concerned Court is of the view that the facts on record makes it abundantly clear that the act complained was in discharge of the official duties of the accused. To put it in other words, three contingencies may arise before the Court, (1) First, the complaint itself may contain an averment that the act committed by the accused was in discharge of his official duties. In such circumstances, the Court will have no other option, but to insist for an appropriate sanction before it proceeds to take cognizance, (2) Secondly, there may be a case in which the complaint may not contain any averments as regards the commission of the act in discharge of the official duties, but if the facts otherwise makes the picture very clear before the Court even then the Court will have to insist for an appropriate sanction before proceeding further with the complaint, and (3) Thirdly, there may Page 21 of 44 R/SCR.A/966/2012 CAV JUDGMENT be a case in which the picture may not be clear at the initial stage and the Court may have to lead some evidence before it can decide whether the act complained was in discharge of the official duties of the accused or not. I find it very difficult to accept the argument of Mr. Syed that having once accorded the sanction under Section 197 of the Code, the complainant cannot now turn around and say that the sanction was otherwise not required or necessary. According to Mr. Syed, since sanction has been accorded by the Government, that would suggest that the accused persons alleged to have committed the offence was in discharge of their official duties. It is too early to comment anything in that regard. The whole attempt on the part of the learned counsel appearing for the petitioner is to persuade the Court to take the view that once the sanction goes, the whole complaint fails. I am afraid, I am unable to appreciate this argument on the part of the learned counsel.
32. The second ground of challenge so far as the legality and the validity of the order of sanction is the bias stance of the State Government. This argument is on the basis that earlier the stance of the State Government was all out and out to see that the complaint fails since it was the argument of the State Government through the Public Prosecutor that the act complained was in discharge of their official duties. In such circumstances, the State Government could not have changed its stance diametrically opposite to its earlier stance. I may only say that the application, which was filed by the Public Prosecutor before the trial Court on behalf of the accused persons, was otherwise also not maintainable in law. In a private complaint, against the police officers at least one thing is Page 22 of 44 R/SCR.A/966/2012 CAV JUDGMENT clear that the Public Prosecutor appointed by the State could not have defended them. It is only an advocate other than the Public Prosecutor, who could have appeared and defended the accused persons. Therefore, in the past, if the Public Prosecutor had made an attempt to persuade the trial court to drop the proceedings by itself would not be sufficient to hold that the Government has changed its stance.
33. As stated earlier, the grounds urged before me to question the legality and the validity of the sanction are not tenable in law. Such grounds cannot be entertained and examined in any proceedings including the writ petition under Article 226 of the Constitution of India.
34. In the writ petition the entire effort of the petitioner has been to show that he has not committed any offence and even if the act complained is believed to be true, the same was in discharge of his official duty. All acts committed in discharge of the official duties may not necessarily exonerate the public servant if the acts otherwise constitute an offence, for which an appropriate sanction is accorded by the authorities concerned. Whether the charge against the petitioner is established or not are questions touching the merits of the case. These are the matters to be seen in the trial after the complainant and the accused had the opportunity to lead evidence in support of their case. An order of sanction cannot be assailed or discharge even on the ground that the evidence does not establish the charge. This is the function of the Court trying the case and not of the sanctioning authority. The sanctioning authority Page 23 of 44 R/SCR.A/966/2012 CAV JUDGMENT has merely to see whether the act alleged against the accused constitutes an offence and whether he should be tried by a competent court for the said offence. In the order of sanction, it is recited that the authority had carefully examined all the papers and had, thereafter, come to the conclusion that the applicant herein and the other coaccused should be prosecuted for the offence alleged to have been committed by him before a competent court. It is further recited that on being satisfied, the authority was granting the sanction for prosecuting the applicant and the other coaccused under Sections 323, 504, 506(1) and 342 of the Indian Penal Code read with Sections 34 and 114 of the Indian Penal Code. The impugned order of sanction clearly shows that it has been granted with reference to the facts on which the proposed complaint was to be based and, therefore, the same is perfectly valid.
35. In the course of the trial, perhaps the evidence may suggest that the act of the accused was not in discharge of his official duties, in such circumstances, the issue of sanction would pale into insignificance.
36. I may now deal with the second submission of Mr. Syed, the learned counsel appearing for the petitioner as regards the legality and the validity of the order of the learned Magistrate taking cognizance upon the complaint and issue of process at a point of time, when there was no sanction under Section 197 of the Code. This argument also proceeds on the premise that the act of the accused was in discharge of his official duty and, therefore, Page 24 of 44 R/SCR.A/966/2012 CAV JUDGMENT sanction under Section 197 was mandatorily required. To put it in other words, the argument is that even if the legality and the validity of the sanction is upheld by this Court, then that would not save the situation because the sanction came at a later stage whereas the order of cognizance preceded the sanction.
37. This argument is based on the decision of the Supreme Court in the case of Baijnath (supra) wherein a three Judge Bench of the Supreme Court observed in para No.4 is as under:
"It appears that in fact a sanction under Section 197 of the Code of Criminal Procedure was obtained but as this was done after cognizance had been taken, it was of no use. It is clear from the language of Section 197 that the sanction has to be taken before cognizance has been taken. This indeed is not disputed. It is also clear from the facts that cognizance of the case had been taken on April 6, 1953 when witnesses were summoned on future date so that the matter might be enquired into by the Magistrate : see Hori Ram Singh v. Crown, R.R. Chari v. State of Uttar Pradesh and Gopal Marwari v. King Emperor. The sanction, however, was obtained on July 1, 1953. I, therefore, have to proceed on the basis that the sanction had not been obtained."
38. The Supreme Court appears to have relied upon Hori Ram's case while taking such a view. However, I have noticed that in Baijnath's case (supra), the Supreme Court has not referred to or considered the Constitutional Bench decision of the Supreme Court in the case of Matajog (supra). The Constitutional Bench had the occasion to consider the very same issue and while considering the same, the bench referred to Hori Ram's case. In para No.20, the Bench observed as under:
"Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At Page 25 of 44 R/SCR.A/966/2012 CAV JUDGMENT first sight, it seems as though there is some support for this view in - 'Hori Ram's case (B)', and also in 'Sarjoo Prasad v. Emperor, AIR 1946 FC 25(G). Sulaiman, J. says that s the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.
But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman J. refers (at page 52) to the prosecution case as disclosed by the complaint or the 'police report' and he winds up the discussion in these words:
"Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty the proceedings will have to be dropped and the complaint dismissed on that ground."
The other learned Judge also states at p. 55 "At this stage we have only to see whether the case alleged against the appellant or 'sought to be proved' against his relates to acts done or purporting to be done by him in the execution of his duty".
It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
39. In Bakhshish Sing Brar v. Smt. Gurmej Kaur and another reported in AIR 1988 Supreme Court 257, the Supreme Court in paras 5 and 6 observed as under:
Page 26 of 44 R/SCR.A/966/2012 CAV JUDGMENT"5. This Court in the aforesaid decision had occasion to consider this aspect. The case is instructive and illustrative how a balance has to be struck between the need for speedier trial of criminal offenders and at the same time protecting public servants or police officials in the discharge of their duties without obstructions. There the appellant had filed a complaint against his superior officer, in the Postal Department under sections 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the said respondent kicked him in his abdomen and absued him by saying "Sale, gunde, badmash ...." The said respondent filed an application under section 197 of the Cr. P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by section 197 of the Cr. P.C. It was further contended that the alleged acts, if at all done by the accused were done while discharging his duties as a public servant. The trial Magistrate dismissed the application. The High Court allowed the revision application of the said respondent. This Court on appeal held that at that stage, the Court was concerned only with one point, viz., whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his duties. Applying the test laid down in the decisions of the Federal Court and this Court to acts complained of, viz., kicking the complainant and abusing, could not be said to have been done in the course of the performance of the duty by the said respondent. The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial might establish the necessity for sanction, it was observed. This Court noted that it might be possible for the said respondent to place materials on record during the course of the trial for showing what his duties were and also that the acts complained of were so interrelated with his official duty, so as to attract the protection afforded by section 197 of the Cr. P.C. This Court reiterated that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case. This Court allowed the appeal and allowed the trial to proceed without the sanction.
6. In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would Page 27 of 44 R/SCR.A/966/2012 CAV JUDGMENT result in such consequences. It is necessary to protect the public servant in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind section 196 and section 197 of the Cr. P.C. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
40. The Supreme Court in the case of Shankaran Moitra v. Sadhna Das and another reported in (2006) 4 Supreme Court Cases 584 made the following observation in paras 11 and 22 which reads as under:
"11. We find that even if we were accept the submission of learned counsel for the complainant that the stage is not reached for considering whether sanction under Section 197(1) of the Code of Criminal Procedure is required in the present case or not, it would only be postponing the consideration of that question. As we have noticed earlier, in his application filed before the Chief Judicial Magistrate invoking Section 210 of the Code of Criminal Procedure and praying for a stay of further proceedings, the appellant, has pleaded that the act was done by him in performance of his duty and in the application filed under Section 482 of the Code of Criminal Procedure before the High Court in addition to reiterating that the alleged offence was committed by him in the course of performance of his duty, he had also invoked Section 197(1) of the Code of Criminal Procedure and had pleaded that the proceedings cannot go on and would be without Page 28 of 44 R/SCR.A/966/2012 CAV JUDGMENT jurisdiction for want of sanction under Section 197(1) of the Code of Criminal Procedure. Of course, the High Court has taken the view that the complaint would not attract Section 197(1) of the Code and that was the reason for rejecting the prayer of the appellant to quash the proceedings as being without jurisdiction for want of sanction. Learned counsel for the complainant has made a submission that the whole investigation was being delayed and the whole process was being delayed in view of the fact that the accused involved were police personnel and the State was more interested in protecting them than in having justice done. When we take note of this submission, postponing a decision on the applicability or otherwise of Section 197(1) of the Code can only lead to the proceedings being dragged on in the trial Court and a decision by this Court, here and now, would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind."
"22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were , for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question."
41. The Supreme Court in the case of Ashok Sahu v. Gokul Saikia and another reported in 1990 Supp Supreme Court Cases 41 made the following observation in para 6 which reads as under:
"6. We agree that the want of sanction under Section 197 of Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings. See: Hori Ram Singh v. Crown and Sajoo Prasad v.Page 29 of 44 R/SCR.A/966/2012 CAV JUDGMENT
King Emperor. Regard being had to these principles, we are of the opinion that it would be proper that the Magistrate considers the question of necessity of sanction after recording some evidence with opportunity to the parties. The court then will be in a better position to come to a conclusion whether on the facts so established prima facie, sanction under Section 197 is necessary or not."
42. In the aforesaid context, I may refer one more decision of the Supreme Court in the case of P. K. Pradhan v. State of Sikkim reported in AIR 2001 Supreme Court 2547 wherein a three Judge Bench observed in paragraphs Nos.5, 6, 7, 8, 8, 10, 11, 12, 13, 14 and 15 as under:
"5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in Page 30 of 44 R/SCR.A/966/2012 CAV JUDGMENT excess of the needs and requirements of situation.
6. In the case of Hori Ram Singh v. The Crown, 1939 Federal Court Reports 159, question was considered as to whether the protection under Section 197 of the Code can be confined only to such acts of the public servant which are 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. In that case, while laying down the law, Sulaiman, J., observed thus at page 178: "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."
It was further observed thus at page 179: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground."
7. The view taken by Sulaiman, J. has been approved by the Privy Council in H.H.B.Gill and another v. The King, AIR 1948 Privy Council 128, where the Court laid down the law at page 133 which runs thus: "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the Judgment which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.
[Emphasis added]
8. In the case of Shreekantiah Ramayya Munipalli v. The State of Bombay, 1955(1) SCR 1177, the view taken by the Privy Council in the case of Hori Ram Singh (supra) had been Page 31 of 44 R/SCR.A/966/2012 CAV JUDGMENT approved and this Court observed that Section 197 of the Code should not be construed in such a narrow way so that the same can never be applied. In the said case, Vivian Bose, J. speaking for the Court laid down thus at page 1186 : "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 officials duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning."
[Emphasis added]
9. In the case of Amrik Singh v. The State of Pepsu, 1955(1) SCR 1302, upon a detailed discussion, this Court was of the view that if the discharge of official duty and the act of the accused complained of are inseparable, sanction under Section 197 of the Code would be necessary. Venkatarama Ayyar, J., speaking for the Court observed at page 130708 which runs thus: "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 added]
10. In the case of Matajog Dobey v. H.C.Bhari, 1955(2) SCR 925, a Constitution Bench of this Court clearly laid down that where a power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance of a warrant issued by the Income Tax Investigation Commission in connection Page 32 of 44 R/SCR.A/966/2012 CAV JUDGMENT with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him causing injuries and for such an act, a complaint had been filed against the public officers concerned. This Court, however, held in that case that such a complaint cannot be entertained without sanction of the competent authority as provided under Section 197 of the Code.
The Court had observed that before arriving at a conclusion whether the provisions of Section 197 of the Code will apply, the court must conclude that there is a reasonable connection between the act complained of and the 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 the performance of his duty.
11. In the case of Baijnath Gupta and others v. The State of Madhya Pradesh, 1966(1) SCR 210, it has been observed that in relation to charge under Sections 477A/109 of the Indian Penal Code, sanction is necessary under Section 197 of the Code as the same was committed within the scope of official duties though may be in dereliction of them.
12. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others, (1998) 1 SCC 205, relying upon Matajog Dobey case (supra) and bearing in mind the legislative mandate engrafted in subsection (1) of Section 197 debarring a court from taking cognizance of an offence except with previous sanction of the Government concerned, this Court has laid down that the said provision is a prohibition imposed by the statute from taking cognizance and, as such, exercising jurisdiction of the court in the matter of taking cognizance and, therefore, a court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the government servant concerned.
13. In the case of Abdul Wahab Ansari v. State of Bihar and another, (2000) 8 SCC 500, while considering the scope of Section 197 of the Code, this Court observed at page 507 which runs thus: "We have no hesitation to come to the conclusion that the appellant had been directed by the SubDivisional Magistrate to be Page 33 of 44 R/SCR.A/966/2012 CAV JUDGMENT present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case."
14. In the case of K.Satwant Singh v. The State of Punjab, 1960(2) SCR 89, a Constitution Bench of this Court observed that some offences cannot by their vary nature be regarded as having been committed by public servant while acting or purporting to act in the discharge of their official duty. For instance, acceptance of bribe, an offence punishable under Section 161 of the Indian Penal Code is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Prakash Gupta v. State of U.P., 1957 SCR 423, observed that a public servant committing criminal breach of trust does not normally act in his public capacity as such no sanction is required for such an act.
15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in Page 34 of 44 R/SCR.A/966/2012 CAV JUDGMENT 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."
43. Baijnath Gupta's case (supra) on which strong reliance has been placed has also been considered in the above referred case in paragraph No.11.
44. On a conspectus of the above decisions, the following principles emerge :
(I) Section 197 should not be construed too narrowly nor too widely. A narrow construction would render the provision nugatory for it is no part of an official duty to commit an offence. A too wide construction will militate against the fundamental principle of equality before the law enshrined in the Constitution.
(ii) It is not the "duty" which requires examination so much as the 'act' because an official act can be performed both in the discharge of official duty as well as in dereliction of it.
(iii) If there is a reasonable nexus between the act complained of and the discharge of official duty, sanction becomes necessary even if the act complained of is in excess of the duty of the public servant; in other words, the act must bear such relation to the duty, that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of his official duty. If there was no necessary connection between the act and the Page 35 of 44 R/SCR.A/966/2012 CAV JUDGMENT performance of the duty, the official status only furnishing the occasion or opportunity for the act then no sanction will be required.
(iv) The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined in the circumstances of each case.
(v) Though the need for sanction is for institution of the case and the prohibition is against taking cognizance, the question may arise at any stage of the proceeding. The complaint or the 'police report' may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light may establish the necessity for sanction. Whether sanction is necessary or not may therefore have to be determined from stage to stage with the progress of the case.
45. Thus considering the above, I am of the view that the second argument of Mr. Syed should also fail keeping in mind the observations of the Supreme Court as referred to above.
46. Considering the above, the order of the learned Magistrate taking cognizance and issue of process cannot be termed as illegal or a nullity only because the sanction came to be accorded at a later stage. Take a case in which in the midst of the trial i.e. after some evidence is recorded that the Court takes the view that the sanction is necessary in the case and stops the trial till the necessary sanction is accorded and later on, when the sanction is Page 36 of 44 R/SCR.A/966/2012 CAV JUDGMENT placed on record and the trial proceeds further, then in such circumstances, could it be argued that the trial should be conducted de novo because the very order of cognizance was bad in the absence of a valid sanction. The answer has to be in the negative.
47. There is a fine distinction between the sanction under Section 197 of the Code and sanction under Section 19 of the Prevention of Corruption Act. The argument of Mr. Syed would hold good had it been a case of sanction under Section 19 of the Corruption Act because the language of the statute is otherwise.
48. I shall now look into the decisions relied upon by Mr. Trivedi, the learned Advocate General appearing for the State.
49. In the State of Bihar and another v. Shri P. P. Sharma and another reported in AIR 1991 Supreme Court 1260, the Supreme Court made the following observation in para No.27 which reads as under:
"27. The sanction under section 197 Cr. P.C. is not an empty formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the investigating officer, before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all Page 37 of 44 R/SCR.A/966/2012 CAV JUDGMENT the circumstances of the case it sanctioned the prosecution.
50. In the State of Maharashtra and others, v. Ishwar Piraji Kalpatri and others reported in AIR 1996 Supreme Court 722, the Supreme Court made the following observation in paras Nos.9, 10, 11 and 12 which reads as under:
"9. Taking the last submission first, it appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes to the Superior Court, then in order to avoid an unfavourable order, a request should be made for the withdrawal of the original proceeding in an effort to avoid an adverse decision from the Superior Court with a view to re agitate the same contentions once again before the subordinate court. The High Court had exercised its jurisdiction by observing that there was no proper sanction accorded by the Government, principles of natural justice had been violated and conduct of the appellant showed the mala fides. In our opinion there was no warrant for the High Court coming to the said conclusion and the judgment has to be set aside. A party to the proceedings cannot be allowed, at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permission to withdraw the original proceedings obviously with a view to regitate the same contentions, which have been or may be, adjudicated upon, by a higher court before the subordinate court though in different proceedings. We strongly deprecate a practice like this, if it exists. This will be opposed to judicial discipline and may lead to unhealthy practices which will not be conducive. On the facts this case, we see no justification for permitting the respondent to withdraw his writ petition.
10. In coming to the conclusion that the order of the sanction was not valid, the High Court first held that "in the absence of sanctioning authority recording and holding that the accused could not satisfactorily account for disproportionate assets, no sanction could ever have been granted". Without going into the question as to whether in the order according sanction it is necessary for such an averment being made, the record clearly discloses that in the schedule annexed to the sanction dated 3.2.1990, such a statement was made. After stating that the respondent and his family and/or associates were found to be in Page 38 of 44 R/SCR.A/966/2012 CAV JUDGMENT possession of pecuniary resources or properties disproportionate to the extent of Rs. 5,66,604.01/, it was specifically stated that with regard to this "the accused person failed to satisfactorily account for". It is clear that the learned Judge had wrongly observed that such a statement was absent.
11. Another reason as given by the High court for quashing the sanction was that the order of sanction was signed y the Additional Chief Secretary to the Government of Maharashtra but "there is nothing in this order to indicate as to whether the signatory or any other officer on his part was the one who had personally scrutinised the file and arrived at a objective satisfaction that is a legal prerequisite". We do not find any warrant, in law, which requires a statement beig made, while according sanction, that the officer signing the order had peronally scrutinised the file and had arrived at the required satisfaction. In the preamble of the said order, it is categorically stated "and whereas the Government Maharashtra having fully examined the material before it and considering all the facts and circumstances disclosed herein, is satisfied that there is a prima facie case made out against the accused person and that it is necessary in the interest of justice that accused person should be prosecuted in the Court of competent jurisdiction for the said offences............"
12. This prima facie shows that there has been an application of mind and that the material on record has been examined by the concerned officers before according sanction. In view of the aforesaid, there was absolutely no justification for the learned Judge to observe that any such statement, as indicated by him, was required to be made in the order. The learned single Judge made observations to the effect that the manner in which the sanction order had been passed would show that a rather cavaliar treatment has been meted out in the present case. We do not see any justification for the Court making such observations in the present case because the perusal of the order of sanction does not show any legal infirmity and such remarks by the Judge were clearly uncalled for."
51. In Raj Kishore Roy v. Kamleshwar Pandey and another reported in (2002) 6 Supreme Court Cases 543, the Supreme Court made the following observation in para No.11 which reads as Page 39 of 44 R/SCR.A/966/2012 CAV JUDGMENT under:
"11. In this case, as indicated above, the complaint was that the 1st Respondent had falsely implicated the Appellant and his brother in order to teach them a lesson for not paying anything to him. The complaint was that the 1st Respondent had brought illegal weapon and cartridges and falsely shown them to have been recovered from the Appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Section 197 Cr.P.C. The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial."
52. In State of Maharashtra through Central Bureau of Investigation v. Mahesh G. Jain reported in (2013) 8 Supreme Court Cases 119, the Supreme Court made the following observation in paras Nos.11, 12, 13, 14, 14.1, 14.2, 14.3, 14.4, 14.5, 14.6, 14.7, which reads as under:
11. In R. Sundararajan v. State, while dealing with the validity of the order of sanction, the two learned Judges have expressed thus: "14....it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning Page 40 of 44 R/SCR.A/966/2012 CAV JUDGMENT authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."
12. In State of Karnata v. Ameerjan it has been opined that:
"9. ... an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
13. In Kootha Perumal v. State through Inspector of Police, Vigilance and AntiCorruption9, it has been opined that the sanctioning authority when grants sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.
14. From the aforesaid authorities the following principles can be culled out: 14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
14.4 Grant of sanction is only an administrative function and the Page 41 of 44 R/SCR.A/966/2012 CAV JUDGMENT sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.
53. I shall now deal with the decisions relied upon by Mr. Syed, the learned counsel appearing for the applicant.
54. In Union of India v. Jail Prakash Singh (supra), the Supreme Court has explained the salutary requirements of natural justice. The Supreme Court has laid emphasis on spelling out reasons for the order made by any judicial or quasijudicial authority. This decision is relied upon to fortify the submission that the order of the grant of sanction is a nonspeaking order. This decision is of no avail to the applicant. The order of sanction passed by the State Government is not in exercise of any judicial or quasi judicial performance. According of a sanction is an administrative act and no reasons are required to be stated in an order of grant of sanction.
55. Kranti Associates (supra) has also been relied upon to Page 42 of 44 R/SCR.A/966/2012 CAV JUDGMENT contend that the recording of reasons operates as a valid restraint on any possible arbitrary exercise of the administrative power. This decision is also of no avail to the applicant. As observed earlier, as such no reasons are necessary to be assigned in a order of grant of sanction. In any view of the matter, the order of sanction on hand is a well reasoned one and does not smack of any arbitrary exercise of power.
56. State of Karnataka (supra) has been relied upon to contend that an order of sanction must reflect proper application of mind on the part of the sanctioning authority. There cannot be any dispute with the proposition of law. In the present case, it cannot be said that the sanction order suffers from the vice of nonapplication of mind.
57. In the result, this application fails and is hereby rejected. The trial Court shall proceed further with the Criminal Case No.2216 of 1984 expeditiously and see to it that the same is disposed of on or before 31 st December, 2015. The parties are requested to cooperate so that a three decades old complaint is disposed of one way or the other. The guilt or innocence of the accused shall be decided by the trial Court strictly on the basis of the evidence that would be led in the course of the trial and without being influenced in any manner by any of the observations made by this Court in this order. Notice stands discharged. The ad interim order granted earlier stands vacated forthwith.
(J.B.PARDIWALA, J.) After the order is pronounced, Mr. I.H. Syed, the learned counsel appearing for the applicant prays for stay of the operation of the order. In the facts and circumstances of the case, the interim order granted earlier is extended Page 43 of 44 R/SCR.A/966/2012 CAV JUDGMENT by a further period of four weeks from today.
(J.B.PARDIWALA, J.) chandresh Page 44 of 44