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Home > SC > Criminal Law > Essential Commodities Act > Romesh Lal Jain Vs. Naginder Singh Rana & Ors.



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Romesh Lal Jain Vs. Naginder Singh Rana & Ors.

Posted on 24 June 2009 by jyoti

Title

Romesh Lal Jain Vs. Naginder Singh Rana & Ors.



Coram

S.B. SINHA, R.V. RAVEENDRAN



Act

Essential Commodities Act



Subject

Penal Code, 1860-Sec. 409, 167, 218, 419, 420, 465, 468, 471-Cr.P.C.-Sec. 197-13(2)-Sanction for prosecution against a public servant-For commission of an offence-Sanction against Inspector of Police granted by Dy. Inspector General of Police-Held, sanction valid-Further Held, no sanction is required from State Government for prosecution under Sec. 197 Cr.P.C.

Words and Phrases-`public order'-Meaning of-Explained.

The First Respondent was a Sub Inspector. He lodged a First Information Report against M/s. Jain Gas Agency, a proprietary concern of the son of the Appellant, under Section 7 of the Essential Commodities Act, wherein it was alleged that on an inspection made in its office and godown several irregularities were found and furthermore some gas cylinders were said to have been sold in black market. The Appellant, who is also the District Convener, LPG Dealers Association, sent a letter to the Inspector General of Police, Internal Vigilance, Punjab, stating that the case registered was false, that while seizing 767 cylinders, the First Respondent had shown that only 743 cylinder were seized and thereby misappropriated 24 cylinders and that the First Respondent had demanded and taken a sum of Rs. 20,000 in cash from the Appellant by way of illegal gratification by putting pressure and the said amount was paid to him in order to avoid maltreatment at his hands. The payment so made was shown in the cash book and the ledger maintained by M/s. Jain Gas Agency. The prosecution against the said M/s Jain Gas Agency under Section 7 of the Essential Commodities Act was found to be false and a final report under Section 173 Cr.P.C. was submitted for cancellation of the case which was accepted on 11.8.1993.

On the basis of the allegations contained in Appellant's letter, a First Information Report was lodged. An untraced report was sent to the Court of Special Judge, Faridkot, who did not agree therewith and opined that the statements of the witnesses recorded during investigation supported the case of the complainant and the matter required judicial verdict. The Special Judge, therefore, directed the Investigating Officer to obtain sanction for the prosecution against the Respondent herein and submit a final report. This order was challenged by the First Respondent in a Criminal Revision before the Session Judge wherein it was observed that no cognizance could be taken by the Special Judge without obtaining proper sanction and it would be open to the Sanctioning Authority to consider the same. The Deputy Inspector General of Police, Jallandhar Range, issued an order of sanction. The said order of sanction was withdrawn by the State. The Special Judge directed the Investigating Officer to submit a final report within one month.

A charge-sheet was filed and cognizance of the offence was taken. The First Respondent filed an application before the High Court under Section 482 of the Code of Criminal Procedure, 1973, inter alia, praying for quashing of the First Information Report dated 06.05.1994 and the proceedings subsequent thereto including the report submitted under Section 173 Cr. P.C. which had been filed without obtaining sanction.

It was observed : (i) The earlier order attained finality and, thus, any contention contrary thereto or inconsistent therewith would amount to reviewing thereof which is impermissible in law; The State having refused to grant a sanction and as the accusations made against the Respondent related to discharge of his duties as Investigating Officer, sanction of prosecution was mandatory; The First Information Report cannot be quashed as it cannot be said that the allegations made therein do not disclose any offence against him. On the aforementioned grounds, the order of the Special Judge taking cognizance and summoning the Respondent without sanction of the competent authority for his prosecution was quashed.

In appeal before this Court Appellant contended that : (i) The High Court committed a manifest error in passing the impugned judgment insofar as it failed and/or neglected to determine the question as to whether the act complained of had a reasonable nexus with the official duty of the Respondent; (ii) The High Court misread and misinterpreted its earlier order; (iii) The order of sanction having been passed by a competent authority for prosecution of the Respondent for commission of offences punishable both under the 1988 Act as also various offences under the Indian Penal Code, the State could not have cancelled the same.

Respondent contended that the purpose of enacting the provisions under Section 197 Cr. P.C. being to protect acts of the public servants in discharge of the public duty, the State was the only competent authority to grant or refuse sanction for their prosecution; that by Reason of a Notification dated 5.5.1983 the requirement of obtaining sanction in terms of sub-section (3) of Section 197 Cr. P.C. had been extended to all the police officers charged with maintenance of public order; that the allegations made against the Respondent by the Appellant herein must be held to have been performed in the process of discharge of his official duty, and, thus, the alleged acts of misappropriation and acceptance of a bribe paid by the complainant for avoiding maltreatment, mandatorily require an order of sanction, that motive of an officer in this behalf, would be irrelevant; that an order of sanction which would mean a valid sanction was found to be required and in view of the fact that the order of sanction passed by the Deputy Inspector General of Police was set aside by the State and moreover it having refused to grant any sanction, no valid order of sanction exists; that the Deputy Inspector General of Police evidently had no jurisdiction to grant sanction under Section 197 Cr. P.C., the State was the only competent authority and, thus, the said order was rightly cancelled because the same was a composite one.



Citation

2006 AIR 336 , 2005(4 )Suppl.SCR868 , 2006(1 )SCC294 , 2005(8 )SCALE810 , 2005(9 )JT393



Head Notes

Allowing the appeal, the Court

HELD: 1. Sanction required under Section 197 Cr. P.C. and sanction required under the 1988 Act stand on different footings. Whereas sanction under the Indian Penal Code in terms of the Code of Criminal Procedure is required to be granted by the State under the 1988 Act it can be granted also by the authorities specified in Section 19 thereof. It is not in dispute that the Deputy Inspector General of Police was the competent authority for grant of sanction as against the Respondent herein terms of the provisions of the 1988 Act. The State of Haryana, thus, could not have interfered with that part of the said order whereby requisite sanction had been granted under the 1988 Act. The High Court in its impugned order, however, does not appear to have taken that aspect of the matter into consideration. It failed to make a distinction between an order of sanction required for prosecuting a person for commission of an offence under the Penal Code and an order of sanction required for commission of an offence under the 1988 Act. [878-a, b, e]
2. It is beyond any cavil of doubt that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or accused can demonstrate such an order granting or refusing sanction to be suffering from non-application of mind, the same may be called in question before a competent court of law. Evidently, the requirement of obtaining a sanction under Section 197 Cr. P.C. from the State in relation to the Respondent who at the material time was a Sub Inspector of Police might not have arisen if the notification issued by the State in this behalf on or about 05.05.1983 is read in proper context. [878-f, g]

3. The expression `public order' has a distinct connotation. Investigation into the offence under the Essential Commodities Act may not be equated with the maintenance of public order as is commonly understood. The activities of a single individual giving rise to irregularities of maintenance of books of accounts as regard an essential commodity or resorting to black marketing, unless a volatile situation arises therefrom, cannot lead to disturbance of public peace, safety and tranquility, which are essential requisites of a `public order'. The said notification therefore, has no application in the facts and circumstances of the case and consequently it has to be held that no sanction by the State in terms of Section 197 Cr. P.C. was necessary as the Respondent could be removed from service by the Deputy Inspector General of Police and not by or with the sanction of the Government. [879-b, c, d]

4. Whereas an order of sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined.
[889-c, d]

Shreekantiah Ramayya Munipalli v. The State of Bombay, [1955] 1 SCR 1177; P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation, [2001] 6 SCC 704; State of U.P. v. M.P. Gupta, [2004] 2 SCC 349; Amrik Singh v. State of Pepsu, [1955] 1 SCR 1302; N. Bhargavan Pillai (dead) by LRs. and Anr. v. State of Kerala, AIR (2004) SC 2317; State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew, [2004] 8 SCC 40; S.K. Zutshi and Anr. v. Bimal Debnath and Anr., [2004] 8 SCC 31; K. Kalimuthu v. State by DSP, [2005] 4 SCC 512; Matajog Dobey v. H.C. Bhari, [1955] 2 SCR 925; B.S. Sambhau v. T.S. Krishnaswamy, [1983] 1 SCC 11; Om Prakash Gupta v. State of U.P., [1957] SCR 423; Manohar Nath Kaul v. State of Jammu and Kashmir, [1983] 3 SCC 429; B. Saha and Ors. v. M.S. Kochar, [1979] 4 SCC 177; Dr. Hori Ram v. Emperor, (1939) FCR: AIR (1939) FC 43; State of Maharashtra v. Atma Ram and Ors., AIR (1966) SC 1786; Baijnath Gupta and Ors. v. The State of Madhya Pradesh, [1966] 1 SCR 210; Harihar Prasad, etc. v. State of Bihar, [1972] 3 SCC 89 and Abdul Wahab Ansari v. State of Bihar and Anr., [2000] 8 SCC 500, referred to.

5. The contention of Respondent that the earlier order dated 23.05.1998 attained finality and, thus, at a later stage in view could have been taken that obtaining of any sanction was not necessary, is fallacious. In the said order, the Special Judge did not say that the sanction would be necessary in terms of Section 197 Cr. P.C. The Judge clarified that obtaining of sanction was necessary from the Sanctioning Authority/Punishing Authority which would obviously refer to the necessity of an order of sanction under the 1988 Act. There is no inherent contradiction in the said orders. The High Court was not also correct in coming to the conclusion that the earlier order of the High Court resulted in three consequences. By reason of the said order only that portion of the order of the Special Judge whereby a direction was issued to complete the investigation within one month was quashed and not the entire order. [889-g-h; 890-a]

6. The question as to whether an order of sanction would be found essential would, thus, depend upon the facts and circumstances of each case. In a case where ex facie no order of sanction has been issued when it is admittedly a pre-requisite for taking cognizance of the offences or where such an order apparently has been passed by the authority not competent therefore, the court may take note thereof at the outset. But where the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the court to examine the said question at a later stage. The Court does not intend to lay down a law that only because a contention has been raised by the complainant or the prosecution that the question as regard necessity of obtaining an order of sanction is dependent upon the finding of fact that the nexus between the offences alleged and the official duty will have to be found out upon analyzing the evidences brought on records; the same cannot be done at an earlier stage. Each case will have to be considered having regard to the fact situation obtaining therein and no hard and fast rule can be laid down therefor. [890-d, e, f, g]

State of Karanataka through CBI v. C. Nagarajaswamy, (2005) 12 SC 349 and Raj Kishor Roy v. Kamleshwar Pandey and Anr., [2002] 6 SCC 543, referred to.

7. No order of sanction to prosecute the First Respondent under Section 197 Cr. P.C. was necessary to be obtained from the State. The High Court was not right in passing the impugned order particularly in view of the fact that a valid order of sanction was granted in relation to the offences committed by the First Respondent under the 1988 Act. The impugned order of the High Court, therefore, cannot be sustained, which is set aside accordingly.
[891-c, d]

Neeraj Kumar Jain, Aditya Kr. Chaudhary, Bharat Singh, Sanjay Singh and Ugra Shankar Prasad for the Appellant.

K.T.S. Tulsi, Rishi Malhotra, Prem Malhotra, Sanjay Jain, Vinay Arora, Adolf Mathew and Bimal Roy Jad for the Respondents.



Judgment Made On

28/10/2005

CASE NO.:
Appeal (crl.) 691 of 2003

JUDGMENT:
JUDGMENT

S.B. SINHA, J :

How far a sanction against a public servant for commission of an
offence punishable under 13(2) of the Prevention of Corruption Act, 1988
(for short, 'the 1988 Act') and Sections 409, 167, 218, 419, 420, 465, 468
and 471 of the Indian Penal Code is essential is in question in this appeal,
which arises from a judgment and order dated 06.05.2002 passed by the
High Court of Punjab and Haryana in Criminal Misc. No.39904-M of 2002
allowing an application filed by the First Respondent herein under Section
482 of the Code of Criminal Procedure (for short, Cr. P.C.). The First
Respondent herein at the material time was a Sub Inspector posted in Police
Station Kotwali in the District of Faridkot. He in his said capacity purported
to have lodged a First Information Report against M/s Jain Gas Agency, a
proprietary concern of the son of the Appellant, under Section 7 of the
Essential Commodities Act, wherein it was alleged that on an inspection
made in its office and godown several irregularities were found and
furthermore some gas cylinders were said to have been sold in black
market. The Appellant, who is also the District Convener, LPG Dealers
Association, Faridkot, in a letter dated 31.08.1992 addressed to the Inspector
General of Police, Internal Vigilance, Punjab, Chandigarh, alleged that the
case registered was false, that while seizing 767 cylinders, the First
Respondent had shown that only 743 cylinders were seized and thereby
misappropriated 24 cylinders and that the First Respondent had demanded
and taken a sum of Rs.20,000/- in cash from the Appellant by way of illegal
gratification by putting pressure and the said amount was paid to him in
order to avoid maltreatment at his hands. The payment so made was shown
in the cash book and the ledger maintained by M/s Jain Gas Agency. The
prosecution against the said M/s Jain Gas Agency under Section 7 of the
Essential Commodities Act was found to be false and a final report under
Section 173 Cr. P.C. was submitted for cancellation of the case which was
accepted on 11.8.1993.

On the basis of the said allegations contained in Appellant's letter
dated 31.8.1992, a First Information Report was lodged . However, upon
investigation an untraced report was sent to the Court of Hardian Singh,
Special Judge,Faridkot, who did not agree therewith and by an order dated
23.05.1998 opined that the statements of the witnesses recorded during
investigation supported the case of the complainant and the matter required
judicial verdict. The learned Special Judge, therefore, directed the
Investigating Officer to obtain sanction for the prosecution against the
Respondent herein and submit a final report. The said order dated
23.05.1998 came to be challenged by the First Respondent herein in a
Criminal Revision which was marked as Criminal Revision No.1100 of
1998 before the Session Judge wherein it was observed that no cognizance
could be taken by the Special Judge without obtaining proper sanction and it
would be open to the Sanctioning Authority to consider the same. In the
meanwhile, the Respondent was promoted as Inspector. The Deputy
Inspector General of Police, Jallandhar Range, issued an order of sanction on
or about 04.02.1999, which is in the following terms :

"Therefore, now I Suresh Arora, IPS Deputy
Inspector General of Police, Jalandhar Range, Jalandhar
having powers to dismiss the SI (now Inspector)
Naginder Singh Rana No.50/PR from service, grant
sanction under section 197 of Cr.P.C. and under section
13(2) P.C. Act, 88 so that the competent court may take
legal action against him for the above offence."


However the said order of sanction was withdrawn by the State in
terms of an order dated 10.12.1999 as contained in a letter addressed to the
Additional Director General of Police, Crime Punjab, Chandigarh, which is
as under :

"2. Under section 197 Cr. P.C. only Government is
competent to accord prosecution sanction.
Therefore, the prosecution accorded by the Deputy
Inspector General of Police, Jalandhar Range,
Jalandhar, issued vide his order dt. 4.2.99 is hereby
cancelled.

3. On the careful perusal of the enquiry report of
Special Investigation Cell of the Crime Branch and
all other documents supplied by you, the
Government does not find fit case to accord
prosecution sanction in the present case."


The learned Special Judge by an order dated 18.04.2000 directed the
Investigating Officer to submit a final report within one month, opining :

"The perusal of the record reveals that accused
Naginder Singh Rana was Sub Inspector in the police
department when the offence was allegedly committed by
him. The authority which was competent to grant
sanction being punishing authority is Deputy Inspector
General, Special Secretary, Department of Home, Punjab
Chandigarh, was nothing to do with the sanction. As the
Deputy Inspector General of Police, Jalandhar Range,
Jalandhar, was the competent authority being punishing
authority and has already granted sanction to prosecute
the accused, it could not be cancelled in such a
camouflage way. Apart from it, only sanction is required
u/s 13 (2) of the P.C. Act, and not under section 197
Cr.P.C. Even otherwise, the sanction has already been
obtained. Therefore, I do not agree at all with the
Investigating Officer. There being statements of the
witnesses supporting the case of the complainant and the
sanction has already been granted by the competent
authority, it is desirable that the judicial verdict should
come. So after preparing the challan and completing all
formalities, the Investigating Officer is directed to submit
the final report in view of the above observations,
preferably within one month."


The aforementioned order came to be questioned by the First
Respondent herein by filing a Criminal Revision Application before the
Punjab and Haryana High Court, which was marked as Criminal Revision
No.575 of 2000 and by an order dated 23.07.2001, the said application was
disposed of, stating :

"Under these circumstances, the time bound directions
of learned Special Judge deserve to be set aside.
Therefore, the direction given in the impugned order is
hereby quashed. The investigating agency shall be at
liberty to continue the investigation and proceed in
accordance with law."


Thereafter, a charge-sheet was filed and cognizance of the offence
was taken. The First Respondent filed an application before the High Court
purported to be under Section 482 of the Code of Criminal Procedure, 1973
(for short, Cr.P.C.), inter alia, praying for quashing of the First Information
Report dated 06.05.1994 and the proceedings subsequent thereto including
the report submitted under Section 173 Cr. P.C. which had been filed
without obtaining sanction.

The High Court by reason of the impugned judgment, referring to the
earlier proceedings culminating in order dated 23.07.2001 observed :

"Three consequences flow from other order dated
23.07.2001 passed in Criminal Revision No.515 of 2000.
Firstly, the time-bound directions given by the Special
Judge, Faridkot, in order dated 18.04.2000 to the
Investigating Officer to submit final report within a
period of one month, were set aside; secondly, the
impugned order had also the effect of setting aside the
observations of the Special Judge to the effect that the
Deputy Inspector General of Police is the authority
competent to grant sanction, being the punishing
Authority for prosecution of petitioner-accused and that
the Department of Home, Punjab, Chandigarh, had
nothing to do with the sanction for that reason, it could
not be cancelled, and thirdly, the Investigating Agency
was given liberty to continue with the investigation and
proceed in accordance with law"

It was observed : (i) The said order dated 23.07.2001 attained
finality and, thus, any contention contrary thereto or inconsistent therewith
would amount to reviewing thereof which is impermissible in law; (ii) The
State having refused to grant a sanction and as the accusations made against
the Respondent related to discharge of his duties as Investigating Officer,
sanction of prosecution was mandatory; (iii) The First Information Report
cannot be quashed as it cannot be said that the allegations made therein do
not disclose any offence against him. On the aforementioned grounds, the
order of the learned Special Judge taking cognizance and summoning the
Respondent without sanction of the competent authority for his prosecution
was quashed.

The complainant is, thus, in appeal before us.

Mr. Neeraj Kumar Jain, the learned counsel appearing on behalf of
the Appellant would submit : (i) The High Court committed a manifest error
in passing the impugned judgment insofar as it failed and/or neglected to
determine the question as to whether the act complained of had a reasonable
nexus with the official duty of the Respondent; (ii) The High Court misread
and misinterpreted its earlier order dated 23.07.2001; (iii) The order of
sanction dated 04.02.1999 having been passed by a competent authority for
prosecution of the Respondent for commission of offences punishable both
under the 1988 Act as also various offences under the Indian Penal Code, the
State could not have cancelled the same.

Mr. K.T.S. Tulsi, the learned Senior Counsel appearing on behalf of
the Respondent would, on the other hand, submit that the purpose of
enacting the provisions under Section 197 Cr. P.C. being to protect acts of
the public servants in discharge of the public duty, the State was the only
competent authority to grant or refuse sanction for their prosecution.

Drawing our attention to a notification dated 05.05.1983, which is
annexed to the counter affidavit filed by the State, it was pointed out that by
reason thereof, the requirement of obtaining sanction in terms of sub-section
(3) of Section 197 Cr. P.C. had been extended to all the police officers
charged with maintenance of public order. The allegations made against the
Respondent by the Appellant herein being consisting of : (i) raiding of
godown; (ii) seizure of 467 cylinders; (iii) lodging a First Information
Report under the Essential Commodities Act; must be held to have been
performed in the process of discharge of his official duty, and, thus, the
alleged acts of misappropriation of 24 cylinders and acceptance of a bribe of
Rs.20,000/- paid by the complainant for avoiding maltreatment, mandatorily
require an order of sanction. Motive of an officer, it was contended, in this
behalf, would be irrelevant. The learned counsel referring to the order of
the learned Special Judge dated 23.05.1998 would also argue that an order
of sanction which would mean a valid sanction was found to be required and
in view of the fact that the order of sanction passed by the Deputy Inspector
General of Police was set aside by the State and moreover it having refused
to grant any sanction, no valid order of sanction exists. The Deputy
Inspector General of Police, Mr. Tulsi would argue, evidently had no
jurisdiction to grant sanction under Section 197 Cr. P.C., wherefor the State
was the only competent authority and, thus, the said order was rightly
cancelled because the same was a composite one.

Sanction required under Section 197 Cr. P.C. and sanction required
under the 1988 Act stand on different footings. Whereas sanction under the
Indian Penal Code in terms of the Code of Criminal Procedure is required to
be granted by the State; under the 1988 Act it can be granted also by the
authorities specified in Section 19 thereof.

It is not in dispute that the Deputy Inspector General of Police was the
competent authority for grant of sanction as against the Respondent herein in
terms of the provisions of the 1988 Act. The State of Haryana, thus, could
not have interfered with that part of the said order whereby requisite
sanction had been granted under the 1988 Act. The contention of Mr. Tulsi
to the effect that the order of sanction passed by the Deputy Inspector
General of Police dated 04.02.1999 was a composite one and, thus, the State
could cancel the same, does not appeal to us. Offences under the Penal
Code and offences under the 1988 Act are different and distinct. On the face
of the allegations made against the Respondent, they do not have any
immediate or proximate connection. The test which is required to be applied
in such a case is as to whether the offences for one reason or the other
punishable under the Penal Code is also required to be proved in relation to
offences punishable under the 1988 Act. If the answer to the said question is
rendered in the negative, the same test can be applied in relation to a matter
of sanction.

The High Court in its impugned order, however, does not appear to
have taken that aspect of the matter into consideration. It failed to make a
distinction between an order of sanction required for prosecuting a person
for commission of an offence under the Penal Code and an order of sanction
required for commission of an offence under the 1988 Act.

It is also beyond any cavil of doubt that an order granting or refusing
sanction must be preceded by application of mind on the part of the
appropriate authority. If the complainant or accused can demonstrate such
an order granting or refusing sanction to be suffering from non-application
of mind, the same may be called in question before a competent court of
law. Evidently, the requirement of obtaining a sanction under Section 197
Cr. P.C. from the State in relation to the Respondent who at the material
time was a Sub Inspector of Police might not have arisen if the notification
issued by the State in this behalf on or about 05.05.1983 is read in proper
context, which is as under :

"No.3124-211 (1)-83/7773  In exercise of the powers
conferred by sub-section (3) of Section 197 Code of
Criminal Procedure, 1973 (Central Act 2 of 1974), the
Governor of Punjab is pleased that the provisions of sub-
section (2) of the said Section shall apply to serving
police officials of all ranks of the Punjab Police force
charged with the maintenance of Public Order."

The expression 'public order' has a distinct connotation. Investigation
into the offence under the Essential Commodities Act may not be equated
with the maintenance of public order as is commonly understood. The
activities of a single individual giving rise to irregularities of maintenance of
books of accounts as regard an essential commodity or resorting to the
black marketing, unless a volatile situation arises therefrom, cannot lead to
disturbance of public peace, safety and tranquility, which are essential
requisites of a 'public order'.

The said notification is, therefore, has no application in the facts and
circumstances of the case and consequently it has to be held that no sanction
by the State in terms of Section 197 Cr. P.C. was necessary as the
Respondent could be removed from service by the Deputy Inspector General
of Police and not by or with the sanction of the Government.

Furthermore the rival contentions of the parties are also required to be
considered in the fact situation of the case. It is one thing to say that while
discharging the official duties, the Government servant exceeds his right but
it is another thing to say that the allegations made against a public servant
has no reasonable nexus therewith.

In Shreekantiah Ramayya Munipalli vs. The State of Bombay [1955
(1) SCR 1177], whereupon Mr. Tulsi placed a strong reliance, it was held :

"Now it is obvious that if Section 197 of the Code of
Criminal Procedure is construed too narrowly it can
never be applied, for of course it is no part of an official's
duty to commit an offence and never can be. But it is not
the duty we have to examine so much as the act, because
an official act can be performed in the discharge of
official duty as well as in dereliction of it. The section
has content and its language must be given meaning.
What it says is

"when any public servant ... is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty...."

We have therefore first to concentrate on the word
offence".

Now an offence seldom consists of a single act. It
is usually composed of several elements and, as a rule, a
whole series of acts must be proved before it can be
established. In the present case, the elements alleged
against the second accused are, first, that there was an
"entrustment" and/or "dominion"; second, that the
entrustment and/or dominion was "in his capacity as a
public servant"; third, that there was a "disposal"; and
fourth, that the disposal was "dishonest". Now it is
evident that the entrustment and/ or dominion here were
in an official capacity, and it is equally evident that there
could in this case be no disposal, lawful or otherwise,
save by an act done or purporting to be done in an
official capacity. Therefore, the act complained of,
namely the disposal, could not have been done in any
other way. If it was innocent, it was an official act; if
dishonest, it was the dishonest doing of an official act,
but in either event the act was official because the second
accused could not dispose of the goods save by the doing
of an official act, namely officially permitting their
disposal; and that he did. He actually permitted their
release and purported to do it in an official capacity, and
apart from the fact that he did not pretend to act
privately, there was no other way in which he could have
done it. Therefore, whatever the intention or motive
behind the act may have been, the physical part of it
remained unaltered, so if it was official in the one case it
was equally official in the other, and the only difference
would lie in the intention with which it was done: in the
one event, it would be done in the discharge of an official
duty and in the other, in the purported discharge of it."

The factual matrix in that case was that three accused therein were
Government servants, who were in charge of a depot containing stores worth
several lacs of rupees. Some iron stores were said to have been handed over
to the agent of the approver. The charge against them that they being in
charge of those stores and to whom they had been entrusted in various
capacities, entered into a conspiracy to defraud Government of the properties
and pursuant thereto they arranged to sell them to the approver for a sum of
Rs.4,000/- .

In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau
of Investigation [(2001) 6 SCC 704], a three-Judge Bench of this Court upon
noticing Shreekantiah Ramayya Munipalli (supra) and Matajog Dobey
(supra) laid down the law in the following terms :

"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; maybe immediately after cognizance or
framing of charge or even at the time of conclusion of
trial and after conviction as well. But there may be
certain cases where it may not be possible to decide the
question effectively without giving opportunity to the
defence to establish that what he did was in discharge of
official duty. In order to come to the conclusion whether
claim of the accused that the act that he did was in course
of the performance of his duty was a reasonable one and
neither pretended nor fanciful, can be examined during
the course of trial by giving opportunity to the defence to
establish it. In such an eventuality, the question of
sanction should be left open to be decided in the main
judgment which may be delivered upon conclusion of the
trial."


However, in State of U.P. vs. M.P. Gupta, [(2004) 2 SCC 349] upon,
inter alia, noticing Shreekantiah Rammayya Munipalli (supra) and Amrik
Singh vs. State of Pepsu [(1955) 1 SCR 1302], in a case where offences
alleged against a public servant were under Sections 406, 409, 467, 468 and
471 IPC , this Court held :

"21. That apart, the contention of the respondent that for
offences under Sections 406 and 409 read with Section
120-B IPC sanction under Section 197 of the Code is a
condition precedent for launching the prosecution is
equally fallacious. This Court has stated the legal
position in Shreekantiah Ramayya Munipalli case and
also Amrik Singh case that it is not every offence
committed by a public servant which requires sanction
for prosecution under Section 197 of the Code, nor even
every act done by him while he is actually engaged in the
performance of his official duties. Following the above
legal position it was held in Harihar Prasad v. State of
Bihar as follows: (SCC p. 115, para 66)

"As far as the offence of criminal conspiracy
punishable under Section 120-B, read with Section
409 of the Indian Penal Code is concerned and also
Section 5(2) of the Prevention of Corruption Act
are concerned, they cannot be said to be of the
nature mentioned in Section 197 of the Code of
Criminal Procedure. To put it shortly, it is no part
of the duty of a public servant, while discharging
his official duties, to enter into a criminal
conspiracy or to indulge in criminal misconduct.
Want of sanction under Section 197 of the Code of
Criminal Procedure is, therefore, no bar."

22. Above views are reiterated in State of Kerala v. V.
Padmanabhan Nair Both Amrik Singh and Shreekantiah
were noted in that case. Sections 467, 468 and 471 IPC
relate to forgery of valuable security, Will etc; forgery
for the purpose of cheating and using as genuine a forged
document respectively. It is no part of the duty of a
public servant while discharging his official duties to
commit forgery of the type covered by the aforesaid
offences. Want of sanction under Section 197 of the
Code is, therefore, no bar."

In N. Bhargavan Pillai (dead) by LRs. and Another vs. State of Kerala
[AIR 2004 SC 2317], it was held

"12. As noted in State of H.P. v. M.P. Gupta (JT
2003 (10) SC 32), sanction under Section 197 of
the Code is not a condition precedent for an
offence under Section 409 IPC."

A Bench of this Court, however, in State of Orissa through Kumar
Raghvendra Singh and Others vs Ganesh Chandra Jew [(2004) 8 SCC 40],
wherein an allegation was made against six officers of the Orissa Forest
Department that they had falsely implicated the complainant for offences
punishable under the Orissa Forest Act and the Wild Life (Protection) Act,
1972, and being not content with the said illegal acts, they seriously
assaulted him and thereby committed offences punishable under Sections
341, 323, 325, 506 and 386 read with Section 34 IPC, was of the opinion :
"Use of the expression "official duty" 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 its
protective cover to every act or omission done by a
public servant in service but restricts its scope of
operation to only those acts or omissions which are done
by a public servant in discharge of official duty.

11. It has been widened further by extending
protection to even those acts or omissions which are done
in purported exercise of official duty. That is, under the
colour of office. Official duty therefore implies that the
act or omission must have been done by the public
servant in the course of his service and such act or
omission must have been performed as part of duty
which further must have been official in nature. The
section has, thus, to be construed strictly while
determining its applicability to any act or omission in the
course of service. Its operation has to be limited to those
duties which are discharged in the course of duty. But
once any act or omission has been found to have been
committed by a public servant in discharge of his duty
then it must be given liberal and wide construction so far
as its official nature is concerned. For instance, a public
servant is not entitled to indulge in criminal activities. To
that extent the section has to be construed narrowly and
in a restricted manner. But once it is established that the
act or omission was done by the public servant while
discharging his duty then the scope of its being official
should be construed so as to advance the objective of the
section in favour of the public servant. Otherwise the
entire purpose of affording protection to a public servant
without sanction shall stand frustrated. For instance, a
police officer in discharge of duty may have to use force,
which may be an offence for the prosecution of which the
sanction may be necessary. But if the same officer
commits an act in the course of service but not in
discharge of his duty and without any justification
therefor then the bar under Section 197 of the Code is not
attracted. To what extent an act or omission performed
by a public servant in discharge of his duty can be
deemed to be official was explained by this Court in
Matajog Dobey v. H.C. Bhari thus: (AIR 1956 SC 44,
paras 17 & 19)

"The offence alleged to have been committed
(by the accused) must have something to do, or
must be related in some manner, with the
discharge of official duty. 
There must be a reasonable connection between
the act and the discharge of official duty; the act
must bear such relation to the duty that the accused
could lay a reasonable (claim), but not a pretended
or fanciful claim, that he did it in the course of the
performance of his duty."


The said decision was relied upon by another Bench in S.,K. Zutshi
and Another vs Bimal Debnath and Another [(2004) 8 SCC 31], holding that
when the complaint was that illegal gratification was demanded and
accepted, the shop was ransacked and goods were taken away, no sanction
would be required.

However, a somewhat different view was taken in K. Kalimuthu vs
State by DSP [(2005) 4 SCC 512] wherein the allegation made against the
Appellant was that he was guilty of various offences punishable under the
Indian Penal Code as also under the 1988 Act. It was held :

"12. If on facts, therefore, it is prima facie found that the
act or omission for which the accused was charged had
reasonable connection with discharge of his duty then it
must be held to be official to which applicability of
Section 197 of the Code cannot be disputed."

It was further observed :

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

Matajog Dobey vs. H.C. Bhari [1955 (2) SCR 925] is a decision
rendered by a Constitution Bench of this Court. In that case search of the
premises was made by the officers of the Income Tax Department. They
were authorized to make the search and they had with them a warrant issued
by the Commissioner for the said purpose. Allegedly, they broke open the
door, went inside, interfered with some books and drawers of tables, tied the
complainant with a rope and assaulted, causing injuries. Chandrasekhara
Aiyar J., speaking for the Constitution Bench was of the opinion :

"The objection based on entry into the wrong
premises is of no substance; it is quite probable that the
warrant specified 17 instead of P-17 by a bona fide
mistake or error; or it may be that the party made an
honest mistake. As a matter of fact, the account books,
etc. were found in P-17, the premises raided.

Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning of
the relevant words occurring in Section 197 of the Code;
"any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his
official duty". But the difference is only in language and
not in substance. The offence alleged to have been
committed must have something to do, or must be related
in some manner with the discharge of official duty. No
question of sanction can arise under Section 197, unless
the act complained of is an offence; the only point to
determine is whether it was committed in the discharge
of official duty. 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
we must 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 the
official duty, though possibly in excess of the needs and
requirements of the situation."

In B.S. Sambhau vs T.S. Krishnaswamy [(1983) 1 SCC 11], relying
on Matajog Dobey (supra), this Court held that defamatory language used by
a judge to an advocate does not attract the requirement of Section 197 Cr.
P.C.

In Om Prakash Gupta vs State of U.P.[1957 SCR 423], another
Constitution Bench of this Court distinguished offences punishable under the
1988 Act and the Criminal Breach Trust, stating :

"These two offences can co-exist and the one will not
be considered as overlapping the other. A course of
conduct can be proved when a person is arraigned under
ss.5(1)(a) and 5(1)(b), but such a course is impossible to
be let in evidence when an offence under ss. 161 and 162
is being enquired into or tried. Similarly there are a
number of elements which can be proved in an inquiry or
trial under s. 5(1)(c) that cannot be let in by the
prosecution when a person is charged for an offence
under s. 405 of the Indian Penal Code. In s. 405 of the
Indian Penal Code the offender must willfully suffer
another person to misappropriate the property entrusted,
but in s. 5(1)(c) if he allows another person to dishonestly
or fraudulently misappropriate or otherwise convert for
his own use any property so entrusted, then it is an
offence. There is a vast difference between willfully
suffering another and allowing a person to do a particular
thing and in our view the word "allows" is much wider in
its import. Wilfully pre-supposes a conscious action,
while even by negligence one can allow another to do a
thing.

It seems to us, therefore, that the two offences are
distinct and separate"
In Manohar Nath Kaul vs. State of Jammu & Kashmir [(1983) 3 SCC
429], this Court was of the opinion that cheating by drawing T.A. does not
answer the test of connection between the act in the discharge of official
duty and the performance of the official duty and, thus, sanction for
prosecution under Section 420 I.P.C. was not required.

In B. Saha and Others vs. M.S. Kochar [(1979) 4 SCC 177] relied
upon by Mr. Tulsi, the accused had tampered with, broke the seal of the
consignment seized by them and removed some of the goods and, thus,
abused their position, this Court applying the test laid down by the Federal
Court in Dr. Hori Ram vs. Emperor [1939 FCR 159 : AIR 1939 FC 43] that
the official capacity is material only in connection with the 'entrustment'
and does not necessarily enter into the later act of misappropriation or
conversion, which is the act complained of, opined :
"This, however, should not be understood as an
invariable proposition of law. The question, as already
explained, depends on the facts of each case. Cases are
conceivable where on their special facts it can be said
that the act of criminal misappropriation or conversion
complained of is inseparably intertwined with the
performance of the official duty of the accused and
therefore, sanction under Section 197(1) of the Code of
Criminal Procedure for prosecution of the accused for an
offence under Section 409, Indian Penal Code was
necessary."

It was further held :

"In the light of all that has been said above, we are of
opinion that on the facts of the present case, sanction of
the appropriate Government was not necessary for the
prosecution of the appellants for an offence under
Sections 409/120-B, Indian Penal Code, because the,
alleged act of criminal misappropriation complained of
was not committed by them while they were acting or
purporting to act in the discharge of their official duty,
the commission of the offence having no direct
connection or inseparable link with their duties as public
servants. At the most, the official status of the appellants
furnished them with an opportunity or occasion to
commit the alleged criminal act."


We may furthermore notice that in some cases, for example, State of
Maharashtra vs. Atma Ram and Others [AIR 1966 SC 1786] Baijnath Gupta
and Others vs. The State of Madhya Pradesh [1966 (1) SCR 210 and Harihar
Prasad, etc. vs. State of Bihar [(1972) 3 SCC 89], having regard to the fact
situation obtaining therein, this Court opined that the order of sanction for
prosecution of the Government Servant was not necessary.

In Om Prakash Gupta (supra), the Constitution Bench observed

"The last argument of Mr. Isaacs is that despite the
fact tat the prosecution is under s.409 of the Indian Penal
Code, still sanction to prosecute is necessary. Quite a
large body of case law in all the High Courts has held
that a public servant committing criminal breach of trust
does not normally act in his capacity as a public servant,
see

(a) The State v. Panduran Baburao (supra)
(b) Bhup Narain Saxena vs. State (supra)
(c) State vs. Gulab Singh, AIR (1954) Raj. 211.

We are in agreement with the view expressed by
Hari Shankar and Randhir Singh JJ. that no sanction is
necessary and the view expressed by Mull J. to the
contrary is not correct.,"



Abdul Wahab Ansari vs. State of Bihar and Another [(2000) 8 SCC
500] is another decision whereupon Mr. Tulsi relied upon, wherein in regard
to a dispute between two sets of Mohammedan residents, allegation of
encroachment of the property belonging to a mosque was made by one
group against the other and while removing the encroachment several
miscreants armed with weapons started hurling stones and as the situation
became out of control, the appellant therein gave order for opening fire and
on that basis said to have committed offences punishable under Section 302,
307, 380, 427, 504, 147, 148 and 149 of the Indian Penal Code; this Court
framed the following question :

"Whether in the facts and circumstances of the
present case, is it possible for the Court to come to a
conclusion that the appellant was discharging his official
duty and in course of such discharge of duty, ordered for
opening of fire to control the mob in consequence of
which a person died and two persons were injured and in
which event, the provisions of Section 197 of the Code of
Criminal Procedure can be held to be attracted?"

The said question was answered in the following terms :

"Coming to the second question, it is now well
settled by the Constitution Bench decision of this Court
in Matajog Dobey v. H.C. Bhari that in the matter of
grant of sanction under Section 197 of the Code of
Criminal Procedure the offence alleged to have been
committed by the accused must have something to do, or
must be related in some manner, with the discharge of
official duty. In other words, there must be a reasonable
connection between the act and the discharge of official
duty; the act must bear such relation to the duty that the
accused could lay a reasonable claim, but not a pretended
or fanciful claim, that he did it in the course of the
performance of his duty. In the said case it had been
further held that where a power is conferred or a duty
imposed by 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 said decision, therefore, has no application in the facts and
circumstances of this case.

In Harihar Prasad (supra), it was held :


"The real question therefore is whether the acts
complained of in the present case were directly
concerned with the official duties of the three public
servants. As far as the offence of criminal conspiracy
punishable under Section 120-B, read with Section 409
of the Indian Penal Code is concerned and also Section
5(2) of the Prevention of Corruption Act, are concerned
they cannot be said to be of the nature mentioned in
Section 197 of the Code of Criminal Procedure. To put it
shortly, it is no part of the duty of a public servant, while
discharging his official duties, to enter into a criminal
conspiracy or to indulge in criminal misconduct"



The upshot of the aforementioned discussions is that whereas an order
of sanction in terms of Section 197 Cr. P.C. is required to be obtained when
the offence complained against the public servant is attributable to discharge
of his public duty or has a direct nexus therewith, but the same would not be
necessary when the offence complained has nothing to do with the same. A
plea relating to want of sanction although desirably should be considered at
an early stage of the proceedings, but the same would not mean that the
accused cannot take the said plea or the court cannot consider the same at a
later stage. Each case has to be considered on its own facts. Furthermore,
there may be cases where the question as to whether the sanction was
required to be obtained or not would not be possible to be determined unless
some evidence is taken, and in such an event, the said question may have to
be considered even after the witnesses are examined.


The raid and seizure in the office and godown of the Appellant were
made on 18.03.1992. Seizure of gas cylinders and the lodgment of the First
Information Report are no doubt acts of official capacity; but undoubtedly
the prosecution was withdrawn on the ground that the same was false. It is
in the aforementioned context also the question of criminal breach of trust
and other allegations made as also demand and acceptance of a sum of
Rs.20,000/- may have to be viewed.


The contention of Mr. Tulsi that the order dated 23.05.1998 attained
finality and, thus, at a later stage a view could have been taken that obtaining
of any sanction was not necessary, is fallacious. In the said order dated
23.05.1998, the Special Judge did not say that the sanction would be
necessary in terms of Section 197 Cr. P.C. In his order dated 23.05.1998 ,
the learned Judge clarified that obtaining of sanction was necessary from the
Sanctioning Authority/Punishing Authority which would obviously refer to
the necessity of an order of sanction under the 1988 Act. We, therefore, do
not find any inherent contradiction in the said orders. The High Court was
not also correct in coming to the conclusion that the earlier order of the High
Court passed on 23.07.2001 resulted in three consequences. By reason of
the said order, as noticed supra, only that portion of the order of the learned
Special Judge whereby a direction was issued to complete the investigation
within one month was quashed and not the entire order.


The other two consequences inferred by the High Court in the
impugned order were, therefore, wholly unwarranted.


Furthermore, the statements purported to have been made on behalf of
the prosecution that an order of sanction has to be obtained would not mean
that the complainant has no locus to raise a question that in relation to the
offences punishable under the Penal Code, no order of sanction was
necessary to be obtained.


The question as to whether an order of sanction would be found
essential would, thus, depend upon the facts and circumstances of each case.
In a case where ex facie no order of sanction has been issued when it is
admittedly a pre-requisite for taking cognizance of the offences or where
such an order apparently has been passed by the authority not competent
therefor, the court may take note thereof at the outset. But where the
validity or otherwise of an order of sanction is required to be considered
having regard to the facts and circumstances of the case and furthermore
when a contention has to be gone into as to whether the act alleged against
the accused has any direct nexus with the discharge of his official act, it may
be permissible in a given situation for the court to examine the said question
at a later stage.


We may hasten to add that we do not intend to lay down a law that
only because a contention has been raised by the complainant or the
prosecution that the question as regard necessity of obtaining an order of
sanction is dependent upon the finding of fact that the nexus between the
offences alleged and the official duty will have to be found out upon
analyzing the evidences brought on records; the same cannot be done at an
earlier stage. What we intend to say is that each case will have to be
considered having regard to the fact situation obtaining therein and no hard
and fast rule can be laid down therefor.


We have come across cases where the question of validity of sanction
has been raised at the trial and the courts have passed appropriate orders
upon arriving at a conclusion that the order of sanction was defective. [See
State of Karnataka through CBI vs. C. Nagarajaswamy JT 2005 (12) SC
349].


The question as to whether sanction is necessary or not, thus, in an
appropriate case, may have to be determined at different stages. [See Raj
Kishor Roy vs .Kamleshwar Pandey and Another (2002) 6 SCC 543].

The State before us has, however, taken a stand different from one
taken before the High Court, as it was submitted that it was not a case where
there was no valid order of sanction for prosecution of the First Respondent
under the 1988 Act and, thus, the entire question should be directed to be
considered at a later stage.


Having regard to the facts and circumstances of the case and keeping
in view the decision of this Court, we are of the opinion that no order of
sanction to prosecute the First Respondent under Section 197 Cr. P.C. was
necessary to be obtained from the State.


The High Court was, thus, not right in passing the impugned order
particularly in view of the fact that a valid order of sanction was granted in
relation to the offences committed by the First Respondent under the 1988
Act. The impugned order of the High Court, therefore, cannot be sustained,
which is set aside accordingly.

The appeal is allowed. No costs.







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