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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL  No.1359 OF 2014

(Arising out of Special Leave Petition (Crl) No. 3020 OF 2013)

CHANDAN KUMAR BASU        ...    APPELLANT (S)

VERSUS

STATE OF BIHAR        ...  RESPONDENT (S)  

WITH CRIMINAL APPEAL  No.1362 OF 2014

(Arising out of Special Leave Petition (Crl) No. 3022 OF 2013) CRIMINAL APPEAL  No.1361 OF 2014

(Arising out of Special Leave Petition (Crl) No. 3016 OF 2013) CRIMINAL APPEAL  No.1360 OF 2014

(Arising out of Special Leave Petition (Crl) No. 3014 OF 2013) CRIMINAL APPEAL  No.1363 OF 2014

(Arising out of Special Leave Petition (Crl) No. 3074 OF 2013)

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

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2. The  appellant,  at  the  relevant  point  of  time,  was  a  

member of the Indian Administrative Service and serving on  

deputation as the Administrator-cum-Managing Director of the  

Bihar  State  Housing  Cooperative  Federation  Ltd.   The  

aforesaid Federation is a society registered under the Bihar  

Cooperative Societies Act, 1935.  On the basis of the various  

complaints  made  against  the  appellant,  FIR  Nos.  837/2002  

dated  16.12.2002,  859/2002  and  860/2002  both  dated  

24.12.2002,  19/2003  dated  07.01.2003  and  41/2003  dated  

18.01.2003 under Sections 409/420/467/468/ 471/34/120-B of  

the  Indian  Penal  Code  (hereinafter  for  short  ‘IPC’)  were  

registered  at  Police  Station  Gardani  Bagh  (Shastri  Nagar),  

Patna.   On  completion  of  investigation  in  all  the  cases,  

chargesheets were submitted before the competent court on  

the basis of which the learned Chief Judicial Magistrate, Patna  

took cognizance of the offences alleged against the appellant.  

Aggrieved, the appellant filed revision applications before the  

learned Sessions Judge, Patna challenging the orders passed  

by the learned Trial Court, primarily, on the ground that the  

said orders were without jurisdiction and incompetent in law  

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inasmuch as sanction for prosecution of the appellant under  

Section 197 of the Code of Criminal Procedure (hereinafter for  

short  ‘the Code’)  was not  obtained or  granted prior  to  the  

date of taking of cognizance. The revision applications filed by  

the  appellant  were  dismissed  by  the  learned  Additional  

Sessions  Judge,  Fast  Track  Court  No.2,  Patna  by  orders  of  

different  dates.   The  said  orders  of  the  learned  Additional  

Sessions  Judge  were  challenged  before  the  High  Court  of  

Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and  

3192/2011.  The High Court by the common impugned order  

dated  27.11.2012  negatived  the  challenge  made  by  the  

appellant  leading  to  the  present  appeals.     There  is  yet  

another  proceeding  instituted  by  the  appellant  before  the  

High Court i.e.  Crl.  Misc.  No.  41263/2010 in respect of P.S.  

Case No.  859/2002 which  has  been dismissed by the  High  

Court by its order dated 18.07.2012 on the ground that the  

order taking cognizance by the learned Trial  Court had not  

been specifically challenged before it and it is only the order  

of the learned Sessions Judge that has been assailed by the  

appellant.  The aforesaid order dated 18.7.2012 of the High  

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Court  has  also  been  challenged  by  the  appellant  in  the  

present group of appeals.

3. We have heard Mr. Santosh Mishra, learned counsel for  

the appellant and Mr. Abhinav Mukerji, learned counsel for the  

State.

4. As the arguments advanced on behalf of the rival parties  

are a reiteration of the arguments advanced before the High  

Court the detailed and specific contentions need not be taken  

note  of  and  it  will  suffice  to  say  that  while  the  appellant  

contends that grant of sanction under Section 197 of the Code  

is a sine qua non for his prosecution for the offences alleged,  

according to the State of Bihar the appellant is not a public  

servant within the meaning of Section 21 of the IPC and in any  

case none of the offences alleged can be attributed to acts  

that arise out of or have any proximity with the discharge of  

official duties by the appellant so as to require sanction for his  

prosecution.   

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5. Section 197(1)  of the Code will be required to be noticed  

at this stage and is therefore extracted below.

“197.  Prosecution  of  Judges  and  public   servants.- (1)  When any person who is or was a   Judge  or  Magistrate  or  a  public  servant  not   removable  from  his  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 case of a person who is employed or,   as  the  case  may  be,  was  at  the  time  of   commission of the alleged offence employed,   in connection with the affairs of the Union, of   the Central Government; (b) in the case of a person who is employed  or, as the case may be, was at the time of   commission of the alleged offence employed,   in connection with the affairs of a State, of   the State Government :

Provided  that   where  the  alleged  offence  was   committed by a person referred to in clause (b)   during  the  period  while  a  Proclamation  issued   under clause (1) of Article 356 of the Constitution   was in force in a State, clause (b) will apply as if   for the expression “State Government” occurring   therein,  the  expression  “Central  Government:   were substituted].

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6. A reading of the provisions of Section 197(1) of the Code  

reveals that there are three mandatory requirements under  

Section 197(1) of the Code, namely,  

(a) that the accused is a public servant (b) that the public servant can be removed from the  

post by or with the sanction either of the Central or  the State Government, as the case may be

(c) the  act(s)  giving  rise  to  the  alleged  offence  had  been committed by the public servant in the actual  or purported discharge of his official duties.

7. Insofar as the first requirement is concerned, the position  

of  officers  belonging  to  the  Indian  Administrative  Service  

serving on deputation in a cooperative society was decided in  

S.S. Dhanoa vs. MCD1.  Dealing with clause 12 of Section 21  

of  the  IPC,  this  Court  had held  that  the  word ‘corporation’  

appearing  in  clause  12(b)  of  Section  21  IPC  meant  

corporations  established  by  a  statute  and  would  have  no  

application to a cooperative society.  In the present case, the  

materials on record, i.e., the incorporation of the Bihar State  

Housing Cooperative Federation under the provisions of the  1 (1981) 3 SCC 431

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Bihar Cooperative Societies Act, 1935 would seem to indicate  

that the said cooperative federation is a cooperative society.  

The above, however, is a prima facie view on the materials  

available  on  record  at  this  stage.   It  has  been  argued  on  

behalf of the appellant that at the relevant point of time the  

federation  was  under  supersession  and  it  was  being  

exclusively controlled by the State.  The above contention i.e.  

the  extent  of  State  control  over  the  management  of  the  

Federation  will  be  required  to  be  established  by  means  of  

relevant evidence before the legal effect thereof on the status  

of the appellant as a public servant can be decided.  Possibly  

it  is on account of the said fact that the High Court in the  

impugned order had granted the liberty to the appellant to  

raise all  other points as and when they arise and had also  

required the Trial Court to decide all such issues, including the  

requirement of sanction, in the light of such subsequent facts  

that may come on record.

8. Insofar as the second requirement for the applicability of  

Section 197(1) of the Code is concerned, namely, whether the  

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post held by the appellant at the relevant time was one from  

which he could not be removed except by or with the sanction  

of the State Government, no evidence, whatsoever, has been  

led on the said question.   The correct  position in  law with  

regard to the applicability of the second requirement under  

Section  197(1)  can,  therefore,  be  answered  only  at  a  

subsequent stage i.e. after evidence on the issue, if any, is  

forthcoming.   

9. The  above  discussion  will  now  require  the  Court  to  

consider the question as to whether the acts giving rise to the  

alleged offences had been committed by the accused in the  

actual or purported discharge of his official duties.   In a series  

of  pronouncements  commencing  with  Satwant  Singh  vs.  

State of Punjab2; Harihar Prasad vs. State of Bihar3 and  

Prakash Singh Badal & Anr. vs. State of Punjab & Ors.4  

it has been consistently held that it can be no part of the duty  

of a public servant or acting in the discharge of his official  

duties to commit any of the offences covered by Section 406,  2 AIR 1960 SC 266 3 (1972) 3 SCC 89 4 (2007) 1 SCC 1

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409, 420 etc. and the official status of the public servant can,  

at  best,  only provide an opportunity  for  commission of  the  

offences.  Therefore,  no sanction for prosecution of the public  

servant  for  such offences would  be required under  Section  

197 of the Code.  Notwithstanding the above, the High Court  

had  granted  liberty  to  the  appellant  to  raise  the  issue  of  

sanction, if so required, depending on the evidence that may  

come on record in the course of the trial.  Despite the view  

taken by this Court in the series of pronouncements referred  

to above, the opportunity that has been provided by the High  

Court to the benefit of the appellant need not be foreclosed  

by us inasmuch as in Matajog Dobey vs. H.C. Bhari5, P.K.  

Pradhan  vs.  State of Sikkim6 and  Prakash Singh Badal  

(supra) this Court had consistently held that the question of  

sanction under Section 197 of the Code can be raised at any  

time after cognizance had been taken and may have to be  

determined at different stages of the proceeding/trial.   The  

observations  of  this  Court  in  this  regard  may  be  usefully  

extracted below. 5  AIR 1956 SC 44 6 (2001) 6 SCC 704

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Matajog Dobey    vs.    H.C. Bhari   (para 21)   

“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.”

P.K. Pradhan   vs.   State of Sikkim   (para 15)   

“It is well settled that question of sanction under   Section 197 of the Code can be raised any time   after  the  cognizance;  may be immediately  after   cognizance or framing of  charge or even at  the   time of conclusion of trial and after conviction as   well. But there may be certain cases where it may   not be possible to decide the question effectively   without  giving  opportunity  to  the  defence  to   establish  that  what  he  did  was  in  discharge  of   official  duty.  In order to come to the conclusion   whether claim of the accused, that the act that he   did was in course of the performance of his duty   was  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.”

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Prakash Singh Badal & Anr.   vs.    State of Punjab & Ors.    [Para 27]

“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. ...”

10. In view of the discussions we will  have no occasion to  

cause any interference with the orders passed by the High  

Court in the proceedings instituted before it by the appellant  

which  have  been  impugned  in  the  appeals  under  

consideration.  Consequently, we dismiss all the appeals and  

maintain the orders passed by the High Court in all the cases  

before it.

……..……………........………………………J. [SUDHANSU JYOTI MUKHOPADHAYA]

……..……………........………………………J.

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[RANJAN GOGOI] NEW DELHI, JULY  7, 2014.

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