Page 1

1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE/ORIGINAL JURISDICTION

CRIMINAL APPEAL NO.190 OF 2003

Devinder Singh & Ors. … Appellants Vs. State of Punjab through CBI … Respondent

[With  Criminal  Appeal  No.352/2016  @  SLP  (Crl.)  Nos.3324/2016  @  Crl.MP  No.10040/2004,  WP  (Crl.)  No.139/2012,   Criminal  Appeal  No.353/2016 @ SLP (Crl.) No.3352/2006, Criminal Appeal No.354/2016  @ SLP (Crl.) No.4729/2012, Criminal Appeal No.355/2016 @ SLP (Crl.)  No.4739/2012, Criminal Appeal No.356/2016 @ SLP (Crl.) No.4743/2012,  Criminal  Appeal  No.357/2016  @  SLP  (Crl.)  No.4759/2012,  Criminal  Appeal  No.358/2016  @  SLP  (Crl.)  No.5369/2012,  Criminal  Appeal  No.360/2016 @ SLP (Crl.) No.5419/2012, Criminal Appeal No.361/2016  @ SLP (Crl.) No.5435/2012, Criminal Appeal No.362/2016 @ SLP (Crl.)  No.5522/2012, Criminal Appeal No.363/2016 @ SLP (Crl.) No.5547/2012,  Criminal  Appeal  No.364/2016  @  SLP  (Crl.)  No.5578/2012,  Criminal  Appeal  No.365/2016  @  SLP  (Crl.)  No.5590/2012,  Criminal  Appeal  No.366/2016 @ SLP (Crl.) No.5592/2012, Criminal Appeal No.367/2016  @ SLP (Crl.) No.5614/2012, Criminal Appeal No.368/2016 @ SLP (Crl.)  No.5617/2012, Criminal Appeal No.369/2016 @ SLP (Crl.) No.5619/2012,  Criminal  Appeal  No.371/2016  @  SLP  (Crl.)  No.5622/2012,  Criminal  Appeal  No.373/2016  @  SLP  (Crl.)  No.5668/2012,  Criminal  Appeal  No.374/2016 @ SLP (Crl.) No.5669/2012, Criminal Appeal No.375/2016  @ SLP (Crl.) No.5697/2012, Criminal Appeal No.377/2016 @ SLP (Crl.)  No.5706/2012, Criminal Appeal No.378/2016 @ SLP (Crl.) No.5712/2012,  Criminal  Appeal  No.379/2016  @  SLP  (Crl.)  No.5714/2012,  Criminal  Appeal  No.380/2016  @  SLP  (Crl.)  No.5716/2012,  Criminal  Appeal  No.381/2016 @ SLP (Crl.) No.5812/2012, Criminal Appeal No.382/2016  @ SLP (Crl.) No.6005/2012, Criminal Appeal No.383/2016 @ SLP (Crl.)  No.6006/2012, Criminal Appeal No.384/2016 @ SLP (Crl.) No.6014/2012,  Criminal  Appeal  No.385/2016  @  SLP  (Crl.)  No.6057/2012,  Criminal  Appeal  No.386/2016  @  SLP  (Crl.)  No.6066/2012,  Criminal  Appeal  

1

Page 2

2

No.387/2016 @ SLP (Crl.) No.6068/2012, Criminal Appeal No.388/2016  @ SLP (Crl.) No.6081/2012, Criminal Appeal No.389/2016 @ SLP (Crl.)  No.6083/2012, Criminal Appeal No.390/2016 @ SLP (Crl.) No.9925/2012  and Criminal Appeal No.391/2016 @ SLP (Crl.) No. 4702/2012]

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted in all the special leave petitions.

2. In  the  appeals  the  question  involved  is  whether  in  view  of  the  

provisions contained in section 6 of Punjab Disturbed Areas Act, 1983 (as  

amended in 1989) (for short “the 1983 Act”) the prosecution or other legal  

proceedings  relating  to  Police  officers  can  be  instituted  without  prior  

sanction of the Central Government.  

3. The case set up by the appellants in Criminal Appeal No.190 of 2003  

is that they are the officers of the Punjab Police. At the relevant time they  

were entrusted with the duties and responsibilities of public order and peace  

in  the State  of  Punjab.  It  is  averred by the appellants  that,  in  the early  

1980s, there was a sudden spurt in the terrorist activities, massive killings at  

the hands of terrorists, looting, extortions, kidnapping, resulting into total  

collapse of the civil administration. More than 25,000 civilians, 1800 men  

in uniform and their relatives had been killed at the hands of the terrorists  

resulting  into  migration  of  civil  population  in  the  border  districts  of  

2

Page 3

3

Amritsar,  Ferozpur  and Gurdaspur.  District  Amritsar  was bifurcated into  

three  police  districts  for  the  purpose  of  better  administration,  namely  

Amritsar,  Taran Taran and Majitha.  The present  cases  arise  from police  

district Taran Taran which is the closest police district to Pakistan.

It is further averred that on 22.7.1993 four persons were killed in an  

encounter with the police. The prosecution alleged that they were killed in a  

fake encounter. On the basis of the complaint lodged by Chaman Lal, father  

of  one  of  the  deceased,  the  CBI  obtained  sanction  from  the  State  

Government to prosecute the accused as at the relevant time, under section  

6  of  the  1983  Act,  sanction  from  Central  Government  was  required.  

However, on the basis of sanction obtained from the State Government, the  

CBI filed chargesheet against the accused persons in the Court of Special  

Judge,  Patiala.  The appellants  filed application under section 227 of  the  

Cr.P.C. for discharge on the ground that they had acted in the incident in the  

course of  their  duty and sanction granted by the State Government was  

without jurisdiction, illegal and void.

4. The CBI contested the application on the ground that sections 4 and 5  

of the 1983 Act were not applicable and there was no need for obtaining  

any sanction because the deceased had been killed in a fake encounter. The  

3

Page 4

4

Special  Court  dismissed  the  application  filed  by  the  accused  persons.  

Aggrieved thereby, they approached the High Court  by filing a criminal  

revision and the same has also been dismissed. The High Court has held  

that as per prosecution case it is a case of fake encounter, as such sanction  

is not required. The same could not be said to be an act in discharge of  

official duties. Aggrieved thereby the appellants are before this Court. The  

facts are more or less similar in all the cases.

5. Writ Petition (Crl.) No.139/2012 has been filed by Chaman Lal with  

a prayer that Union of India may be directed to grant sanction under section  

197 Cr.P.C. for prosecution of police officer as set out in the affidavit of  

CBI filed in Appeal No.190/2003.  

6. This Court vide order dated 20.7.2001 stayed the further proceedings  

before the trial court in SLP (Crl.) No.2336/2001 - Balbir Singh & Ors. v.   

State of Punjab. Similar orders of interim stay were passed in other cases  

also.  One such order was passed on 21.1.2002 in SLP (Crl.)  Nos.3072-

75/2001  and  these  matters  had  been  tagged.  On  behalf  of  the  accused  

appellants, order dated 16.2.2006 has been referred to in which it has been  

observed that the CBI had stated during the course of the arguments that the  

mater be sent to the Central Government with the entire record to consider  

4

Page 5

5

the question of sanction in terms of section 6 of the 1983 Act. This Court in  

view of the stand taken by the CBI continued the interim stay on operation  

of  the  impugned orders  and observed that  the  Central  Government  will  

consider  the  matter  in  terms  of  section  6  and  in  accordance  with  law  

without being prejudiced by any observation made in any of the impugned  

orders. Cases were ordered to be listed after three months. This Court was  

informed by the Additional Solicitor General on 10.10.2006 that the Central  

Government has opined that the case of Balbir Singh was not a fit case for  

giving sanction for prosecution in terms of section 6 of the 1983 Act. So far  

as  Harpal  Singh  is  concerned,  the  Central  Government  was  not  the  

competent  authority  and  with  respect  to  another  accused  Bhupinderjit  

Singh,  CBI  has  not  submitted  full  report.  Thereafter  interim  order  was  

passed on 13.2.2007 by this Court to consider grant of sanction in the case  

of Gurmeet Singh. On 22.9.2010 this Court noted in the interim order that  

Balbir Singh in Crl. Appeal No.190/2003 had died and this Court dismissed  

the appeal as abated against him. Appeal with respect to other appellants  

was  adjourned.  Interim stay  was  granted  in  other  connected  matters  on  

30.7.2012 with respect to cases pending in the trial court at Patiala.

7. It was submitted by learned counsel appearing on behalf of accused  

5

Page 6

6

appellant that sanction to prosecute was necessary in view of the provisions  

contained  in  section  6  of  the  1983  Act  as  amended  in  1989.  Thus  the  

prosecution could not have been launched without obtaining sanction of the  

Central  Government.  This  Court  by  interim  order  had  directed  on  

submission  being  raised  by  CBI  that  the  matter  will  be  referred  to  the  

Central Government for sanction and in certain cases Central Government  

had granted sanction and in others it had declined. Sanction to prosecute  

was necessary as  the act  was done in  discharge of  official  duties.  As a  

matter of fact, false allegations of fake encounter have been made in the  

cases.  The  deceased  indulged  in  various  criminal  activities.  They  were  

creating unrest and the officers have discharged their duties at the time of  

the  incident.  Thus  without  prior  sanction  to  prosecute  by  the  Central  

Government,  they  could  not  have  been  prosecuted.  The  prosecution  

deserves to be quashed.  

Per contra, it was submitted on behalf of the CBI and the learned  

counsel  appearing  on  behalf  of  the  complainant  that  in  such  cases  of  

criminal  activities,  fake  encounters,  custodial  death  due  to  torture  etc.,  

sanction to prosecute is not at all required as fake encounters, torture in  

custody and other criminal acts complained of do not form part of their  

6

Page 7

7

official duties. Thus, the High Court has rightly upheld the order of the trial  

court, in such cases the sanction to prosecute is not necessary in such cases.

8. The  matters  in  question  as  per  prosecution  case  pertain  to  death  

caused in fake encounter, or by torture or death in police custody.  

9. It was submitted by learned counsel on behalf of the appellants that in  

the course of proceedings the CBI has taken a stand that it would refer the  

cases for sanction to the Central Government. This Court is bound by such  

stand of  the CBI on the basis  of  which interim order was passed and the  

petition may be disposed of  in terms of  the interim order that  the Central  

Government may decide the question of sanction. We are not at all impressed  

by  the  submission  made  by  learned  counsel  appearing  on  behalf  of  the  

appellants. In the interim order this Court has never decided the legality or the  

correctness of the impugned orders passed by the High Court. In the course of  

proceedings interim order was passed on the basis of particular submission  

made by counsel for the CBI but this Court has never decided the question  

whether sanction at this stage is necessary or not. Hence the interim orders are  

of no avail to the cause espoused by the appellants.   

10. On merits, accused-appellants have relied upon the decision of the  

Federal  Court in  Dr. Hori  Ram Singh v. Emperor [AIR 1939 FC 43] in  

7

Page 8

8

which Federal Court has laid down that the question of good faith or bad  

faith is expected to be decided by the court after trial. The question of good  

faith or bad faith should not be introduced at the stage of section 270(1)  

with regard to the meaning of the words “purporting to be done in official  

duty”, the court observed that it is difficult to say that it necessarily implies  

“purporting to be done in good faith”.  In the case of  embezzlement,  an  

officer is  not doing an act in execution of his duty. It  would amount to  

criminal  breach of  trust  under section 409 IPC but in case of  provision  

under  section  477-A IPC  if  an  act  is  done  willfully,  with  intention  to  

defraud, falsify any book or account, in such cases for prosecution under  

section 409, consent of Governor is not necessary but for prosecution under  

section 477A, consent is necessary.  

11. Reliance  has  also  been  placed  on  the  decision  of  this  Court  in  

Shreekantiah Ramayya Munipalli v. The State of Bombay [1955 (1) SCR  

1177] wherein this Court had observed thus :

“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 –

8

Page 9

9

“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 act of abetment alleged against him stands on the  same footing, for his part in the abetment was to permit the  disposal of the goods by the doing of an official act and thus  “willfully  suffer”  another  person  to  use  them  dishonestly:  section  405  of  the  Indian  Penal  Code.   In  both  cases,  the  “offence” in his case would be incomplete without proving the  

9

Page 10

10

official act.  We  therefore  hold  that  section  197  of  the  Code  of  

Criminal Procedure applies and that sanction was necessary,  and as there was none the trial is vitiated from the start.  We  therefore quash the proceedings  against the second accused as  also his conviction and sentence.”

12. This Court has observed in Shreekantiah Ramayya (supra) that cases  

have to be decided on their own facts.  

13. Reliance has also been placed on a decision of this Court in Matajog  

Dobey v. H.C. Bhari [1955 (2) SCR 925] in which a complaint was filed  

under sections 323, 341, 342, and 109, Cr.P.C. Summons were issued to  

accused persons  under  section  323.  An objection  was taken by accused  

Bhari as to want of sanction under section 197 Cr.P.C. It was upheld and all  

the accused were  discharged.  The High Court  affirmed the order  of  the  

Presidency Magistrate. This Court held that where in pursuance of a search  

warrant issued under section 6 of the Taxation on Income (Investigation  

Commission) Act, 1947, they were required to open the entrance door and  

on being challenged by the Darwan they tied him with a rope, causing him  

injuries and alleged to have assaulted the proprietor mercilessly with the  

help of two policemen. In the facts of the case it was held by this Court that  

sanction was necessary as the assault and the use of criminal force related  

10

Page 11

11

to the performance of the official duties of the accused within the meaning  

of section 197 Cr.P.C. In the matter of grant of sanction under section 197  

Cr.P.C., the offence alleged to have been committed by the accused must  

have something to do with the accused, with the discharge of official duty.  

In other words, there must be a reasonable connection between the act and  

the discharge of official duty. That must have a 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 question of  

sanction may arise at any stage of prosecution, the Constitution Bench also  

held  that  the  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. This Court has held thus :

“Is  the  need  for  sanction  to  be  considered  as  soon  as  the  complaint is lodged and on the allegations therein contained?  At first sight, it seems as though there is some support for this  view in  Hori  Ram’s case  and also in  Sarjoo Prasad v.  The  King-Emperor (1945) F.C.R. 227.  Sulaiman, J. says that as 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  proceeding.  But  a  careful  perusal  of  the  later  parts  of  their  judgments  shows  that  they  did  not  intent  to  lay  down  any  such  

11

Page 12

12

proposition.   Sulaiman,  J.  refers  (at  page  179)  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 page 185, “At this stage we have only to  see whether the case alleged against the appellant or sought to  be proved against him 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.”

14. In Bhappa Singh v. Ram Pal Singh & Ors. 1981 (Supp) SCC 12 there  

was firing by the Customs party as they were resisted in carrying out a raid  

peacefully and an injury was sustained by the Customs party. This Court  

considered grant of protection under section 108 of the Gold (Control) Act,  

1968 providing immunity to an officer for official act done in good faith  

under the Act. This Court has discussed the matter thus :

“6. In  view  of  the  circumstances  mentioned  in  the  last  paragraph, there is little room for doubt that the Customs party  was not out to commit dacoity either in the jewellery shop or  the chaubara, that they also committed no trespass into either  of those places, but that the purpose of the raid was to find out  

12

Page 13

13

if  any  illegal  activity  was  being  carried  on  therein.  The  presence of two licensed Gold-smiths in the chaubara speaks  volumes in that behalf. It may further be taken for granted that  the  Customs party  was  manhandled  before  they  themselves  resorted to violence, because there was no reason for them to  open fire unless they were resisted in the carrying out of the  raid peacefully.

7. Even though what we have just stated is a general prima  facie  impression  that  we  have  formed  at  this  stage  on  the  materials available to us at present, it may not be possible to  come to a conclusive finding about the falsity or otherwise of  the  complaint.  But  then  we  think  that  it  would  amount  to  giving a go-by to Section 108 of the Gold (Control) Act,  if  cases of this type are allowed to be pursued to their logical  conclusion, i.e., to that of conviction or acquittal. In this view  of the matter we do not feel inclined to upset the impugned  order,  even  though  perhaps  the  matter  may  have  required  further  evidence  before  quashing of  the  complaint  could  be  held to be fully justified. The appeal is accordingly dismissed.”

15. In  State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC  

339, this Court considered grant of sanction under section 197 on complaint  

of espionage. It was held that it was during the discharge of official duty the  

act  was  done,  also  considering  the  provisions  contained  in  the  Official  

Secrets  Act,  1923  and  the  Atomic  Energy  Act,  1962,  sanction  for  

prosecution under section 197 Cr.P.C. was necessary. The meaning of the  

‘official act’ has been considered by this Court and held thus :

“6. Such being the nature of the provision the question is how  should  the  expression,  ‘any  offence  alleged  to  have  been  

13

Page 14

14

committed  by  him while  acting  or  purporting  to  act  in  the  discharge of  his official  duty’,  be understood? What does it  mean? ‘Official’ according to dictionary, means pertaining to  an office. And official act or official duty means an act or duty  done by an officer in his official capacity. In S.B. Saha v. M.S.  Kochar (1979) 4 SCC 177 it was held: (SCC pp. 184-85, para  17)

“The  words  ‘any  offence  alleged  to  have  been  committed by him while acting or purporting to act in  the discharge of his official duty’ employed in Section  197(1) of the Code, are capable of a narrow as well as a  wide  interpretation.  If  these  words  are  construed  too  narrowly, the section will be rendered altogether sterile,  for,  ‘it  is  no  part  of  an  official  duty  to  commit  an  offence,  and never  can  be’.  In  the  wider  sense,  these  words  will  take  under  their  umbrella  every  act  constituting an offence, committed in the course of the  same transaction in which the official duty is performed  or purports to be performed. The right approach to the  import of these words lies between these two extremes.  While  on  the  one  hand,  it  is  not  every  offence  committed by a public servant while engaged in the  performance of his official duty, which is entitled to  the protection of Section 197(1), an act constituting  an offence,  directly and reasonably connected with  his official duty will require sanction for prosecution  under the said provision.”

Use of the expression,  ‘official duty’ implies that  the act  or  omission must have been done by the public servant in course  of his service and that it should have been in discharge of his  duty. 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. In  P.  Arulswami v.  State of Madras (1967) 1 SCR 201 this Court  after reviewing the authorities right from the days of Federal  

14

Page 15

15

Court and Privy Council held:

“…  It  is  not  therefore  every  offence  committed  by a  public  servant  that  requires  sanction  for  prosecution  under Section 197(1) of the Criminal Procedure Code;  nor  even every  act  done  by him while  he  is  actually  engaged in the performance of his official duties; but if  the  act  complained  of  is  directly  concerned  with  his  official duties so that, if questioned, it could be claimed  to have been done by virtue of the office, then sanction  would be necessary. It  is the quality of the act that is  important and if it falls within the scope and range of his  official  duties  the  protection  contemplated  by Section  197 of the Criminal Procedure Code will be attracted.  An  offence  may  be  entirely  unconnected  with  the  official duty as such or it may be committed within the  scope of the official duty. Where it is unconnected with  the official duty there can be no protection. It is only  when it is either within the scope of the official duty or  in excess of it that the protection is claimable.”

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 course of his service  and such act or omission must have been performed as part of  duty  which  further  must  have  been  official  in  nature.  The  section has, thus, to be construed strictly, while determining its  applicability to any act or omission in course of service. Its  operation  has  to  be  limited  to  those  duties  which  are  discharged in course of duty.  But once any act or omission  has been found to have been committed by a public servant  in discharge of his duty then it must be given liberal and  wide  construction so  far its  official  nature  is  concerned.  For instance a public servant is not entitled to indulge in  criminal  activities.  To  that  extent  the  section  has  to  be  construed narrowly and in a restricted manner. But once it  

15

Page 16

16

is  established  that  act  or  omission  was  done  by  the  public  servant while discharging his duty then the scope of its being  official should be construed so as to advance the objective of  the section in favour of the public servant. Otherwise the entire  purpose  of  affording  protection  to  a  public  servant  without  sanction shall stand frustrated. 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 course of  service  but  not  in  discharge  of  his  duty 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 Dubey v. H.C. Bhari AIR 1956 SC 44 thus:

“[T]he 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.”

(emphasis supplied)

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.”

16. In Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC  

622,  a  question  came  up  for  grant  of  sanction  under  section  6  of  the  

Prevention of Corruption Act, 1988 in which this Court had observed that  

16

Page 17

17

the State Government or any other authority has a right to consider the facts  

of each case and to decide whether a public servant can be prosecuted or  

not. Thus there is a discretion to grant or not to grant the sanction. This  

Court has held thus :

“14. From a perusal  of  Section 6,  it  would appear  that  the  Central  or  the  State  Government  or  any  other  authority  (depending upon the category of the public servant) has the  right to consider the facts of each case and to decide whether  that  “public  servant”  is  to  be  prosecuted  or  not.  Since  the  section clearly prohibits the courts from taking cognizance of  the offences specified therein, it envisages that the Central or  the State Government or the “other authority” has not only the  right to consider the question of grant of sanction, it has also  the discretion to grant or not to grant sanction.”

17. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors.  

[1998  (1)  SCC  205]  this  Court  has  laid  down  that  the  accused  is  not  

debarred from producing the relevant documentary materials which can be  

legally looked into without any formal proof to support the stand that the  

acts  complained  of  were  committed  in  exercise  of  his  jurisdiction  or  

purported jurisdiction as a public servant in discharge of his official duty  

thereby requiring sanction of the appropriate authority. This Court held that  

at  a  preliminary stage  such questions  are  not  required  to  be  considered  

because accused has not yet led evidence in support of their case on merits.  

17

Page 18

18

This Court has held thus :

“23. Mr  Sibal’s  contention  is  based  upon  the  observations  made  by  this  Court  in  Mathew  case   (1992)  1  SCC  217  wherein this Court  had observed that  even after  issuance of  process under Section 204 of the Code if the accused appears  before the Magistrate and establishes that the allegations in the  complaint  petition  do  not  make  out  any  offence  for  which  process  has  been  issued  then  the  Magistrate  will  be  fully  within  his  powers  to  drop  the  proceeding  or  rescind  the  process and it is in that connection the Court had observed “if  the  complaint  on  the  very  face  of  it  does  not  disclose  any  offence against the accused”. The aforesaid observation made  in the context of a case made out by the accused either for  recall  of  process  already  issued  or  for  quashing  of  the  proceedings may not apply fully to a case where the sanction  under Section 197(1) of the CrPC is pleaded as a bar for taking  cognizance. The legislative mandate engrafted in sub-section  (1) of Section 197 debarring a court from taking cognizance of  an offence except with a 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 his 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, the accused after appearing  before the court  on process  being issued,  by an application  indicating that  Section 197(1) is  attracted merely assists  the  court to rectify its error where jurisdiction has been exercised  which it does not possess. In such a case there should not be  any bar for the accused producing the relevant documents and  materials which will be ipso facto admissible, for adjudication  of  the  question  as  to  whether  in  fact  Section  197  has  any  application in the case in hand. It is no longer in dispute and  has  been  indicated  by  this  Court  in  several  cases  that  the  question  of  sanction  can  be  considered  at  any  stage  of  the  proceedings.

18

Page 19

19

24. In  Matajog case AIR 1956 SC 44 the Constitution Bench  held that the complaint may not disclose all the facts to decide  the  question  of  applicability  of  Section  197,  but  facts  subsequently  coming  either  on  police  or  judicial  inquiry  or  even in the course of prosecution evidence may establish the  necessity for sanction. In B. Saha case (1979) 4 SCC 177 the  Court  observed  that  instead  of  confining  itself  to  the  allegations  in  the  complaint  the  Magistrate  can  take  into  account all the materials on the record at the time when the  question is raised and falls for consideration. In Pukhraj case  (1973) 2 SCC 701 this Court observed that whether sanction is  necessary or not may depend from stage to stage. In Matajog  case (supra) the Constitution Bench had further observed that  the necessity for sanction may reveal itself in the course of the  progress of the case and it would be open to the accused to  place  the  material  on  record  during  the  course  of  trial  for  showing what his duty was and also the acts complained of  were so interrelated with his official duty so as to attract the  protection afforded by Section 197 of the Code of Criminal  Procedure. This being the position it would be unreasonable to  hold that the accused even though might have really acted in  discharge of his official duty for which the complaints have  been lodged yet he will have to wait till the stage under sub- section (4) Section 246 of the Code is reached or at least till he  will  be  able  to  bring  in  relevant  materials  while  cross- examining  the  prosecution  witnesses.  On  the  other  hand  it  would be logical to hold that the matter being one dealing with  the jurisdiction of the court to take cognizance,  the accused  would  be  entitled  to  produce  the  relevant  and  material  documents  which  can  be  admitted  into  evidence  without  formal proof, for the limited consideration of the court whether  the necessary ingredients to attract  Section 197 of the Code  have been established or not. The question of applicability of  Section  197  of  the  Code  and  the  consequential  ouster  of  jurisdiction  of  the  court  to  take  cognizance  without  a  valid  sanction is genetically different from the plea of the accused  that the averments in the complaint do not make out an offence  

19

Page 20

20

and  as  such  the  order  of  cognizance  and/or  the  criminal  proceedings be quashed. In the aforesaid premises we are of  the considered opinion that an accused is not debarred from  producing the relevant  documentary materials  which can be  legally looked into without any formal proof, in support of the  stand that the acts complained of were committed in exercise  of his jurisdiction or purported jurisdiction as a public servant  in discharge of his official duty thereby requiring sanction of  the appropriate authority.

25. Considering  the  facts  and  circumstances  of  the  case,  it  prima facie appears to us that the alleged acts on the part of the  respondents  were purported to be in the exercise  of  official  duties.  Therefore,  a  case  of  sanction  under  Section  197  Criminal  Procedure  Code  has  been  prima  facie  made  out.  Whether it was unjustified on the part of the respondents to  take  recourse  to  the actions alleged in  the complaint  or  the  respondents were guilty of excesses committed by them will  be gone into in the trial after the required sanction is obtained  on the basis of evidences adduced by the parties. At this stage,  such questions are not required to be considered because the  accused have not yet led evidence in support of their case on  merits.”

18. In Gauri Shankar Prasad v. State of Bihar & Anr. 2000 (5) SCC 15  

this Court has laid down the test to determine whether the alleged action  

which constituted an offence has a reasonable and rational nexus with the  

official duties required to be discharged by the public servant. The appellant  

in his official capacity as Sub-Divisional Magistrate had gone to the place  

of  the complainant  for  the purpose  of  removal  of  encroachment.  It  was  

when entering the chamber of the complainant, he used filthy language and  

20

Page 21

21

dragged him out of his chamber. It was held that the act has a reasonable  

nexus with the official duty of the appellant. Hence no criminal proceedings  

could be initiated without obtaining sanction. It was observed thus :

“8. What offences can be held to have been committed by a  public  servant  while  acting  or  purporting  to  act  in  the  discharge of his official duties is a vexed question which has  often  troubled  various  courts  including  this  Court.  Broadly  speaking,  it  has  been  indicated  in  various  decisions  of  this  Court that the alleged action constituting the offence said to  have  been  committed  by  the  public  servant  must  have  a  reasonable and rational nexus with the official duties required  to be discharged by such public servant.

x x x x x

14. Coming to the facts of the case in hand, it is manifest that  the  appellant  was  present  at  the  place  of  occurrence  in  his  official capacity as Sub-Divisional Magistrate for the purpose  of  removal  of  encroachment  from  government  land  and  in  exercise of such duty, he is alleged to have committed the acts  which form the gravamen of the allegations contained in the  complaint lodged by the respondent. In such circumstances, it  cannot  but  be  held  that  the  acts  complained  of  by  the  respondent against the appellant have a reasonable nexus with  the official duty of the appellant. It follows, therefore, that the  appellant  is  entitled  to  the  immunity  from  criminal  proceedings  without  sanction  provided  under  Section  197  CrPC. Therefore, the High Court erred in holding that Section  197 CrPC is not applicable in the case.”

19. It has been laid down in Gauri Shankar Prasad (supra) that in case  

offence has been committed while discharging his duties by an accused and  

there  is  a  reasonable  nexus  with  official  duties,  if  answer  is  in  the  

21

Page 22

22

affirmative then sanction is required. However it would depend upon the  

facts and circumstances of each case whether there is a reasonable nexus  

with official duties to be discharged.

20. In Abdul Wahab Ansari v. State of Bihar & Anr. 2000 (8) SCC 500  

firing was made by police inspector while removing encroachments due to  

which one person was killed and two were injured. A private complaint was  

filed under sections 302, 307 etc. on which Magistrate issued summons to  

the police inspector. A challenge was made to the cognizance taken by the  

Magistrate by filing a petition under section 482 before the High Court. The  

High Court held that the question of sanction can be raised at the time of  

framing of the charge and decision in  Birendra K. Singh v. State of Bihar  

2000 (8) SCC 498 has been held not to be a good law. This Court has  

observed that the question of sanction under section 497 Cr.P.C. has to be  

considered at the earlier stage of the proceedings. Ultimately on facts it was  

held  that  the  police  inspector  was  entitled  to  protection  and  without  

sanction he could not have been prosecuted. Thus the criminal proceedings  

instituted without sanction were quashed.  

21. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau   

of  Investigation 2001 (6)  SCC 704 this  Court  considered the provisions  

22

Page 23

23

contained in section 197(1) of the Code of Criminal Procedure whether an  

offence committed “while acting or purporting to act in the discharge of his  

official duty” and laid down that the test to determine the aforesaid is that  

the act complained of must be an offence and must be done in discharge of  

official  duty.  In  any  view  of  the  matter  there  must  be  a  reasonable  

connection between the act and the official duty. It does not matter that the  

act exceeds what is strictly necessary for the discharge of the official duty,  

since that question would arise only later when the trial proceeds. However  

no sanction is required where there is no such connection and the official  

status furnishes only the occasion or opportunity for the acts. The claim of  

the accused that the act was done reasonably and not in pretended course of  

his official duty can be examined during the trial by giving an opportunity  

to the defence to prove it. In such cases the question of sanction should be  

left open to be decided after conclusion of the trial. The decision in Abdul  

Wahab Ansari (supra) has also been taken into consideration by this Court.  

In P.K. Pradhan (supra) this Court has laid down thus :

“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  

23

Page 24

24

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  interrelated that one can postulate reasonably that it was done  by the  accused  in  the  performance  of  official  duty,  though,  possibly  in  excess  of  the  needs  and  requirements  of  the  situation.

x x x x x

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  

24

Page 25

25

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 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.

16. In  the  present  case,  the  accused  is  claiming  that  in  awarding contract in his capacity as Secretary, Department of  Rural Development, Government of Sikkim, he did not abuse  his position as a public servant and works were awarded in  favour of the contractor at a rate permissible under law and not  low rates. These facts are required to be established which can  be done at the trial. Therefore, it is not possible to grant any  relief to the appellant at this stage. However, we may observe  that during the course of trial, the court below shall examine  this  question  afresh  and  deal  with  the  same  in  the  main  judgment in the light of the law laid down in this case without  being prejudiced by any observation in the impugned orders.”

22. In  State of   H.P. v.  M.P. Gupta 2004 (2)  SCC 349 this  Court  has  

considered the provisions contained under section 197 and has observed  

that  the same are required to be construed strictly while determining its  

25

Page 26

26

applicability to any act or omission during the course of his service. Once  

any act or omission is found to have been committed by a public servant in  

discharge of his duty, this Court held that liberal and wide construction is to  

be given to the provisions so far as its official nature is concerned. This  

Court has held thus :

“11. Such being the nature of the provision,  the question is  how should the expression, “any offence alleged to have been  committed  by  him while  acting  or  purporting  to  act  in  the  discharge of his official duty”, be understood? What does it  mean? “Official” according to the dictionary, means pertaining  to an office, and official act or official duty means an act or  duty done by an officer in his official capacity.”  

23. In State of Orissa & Ors. v. Ganesh Chandra Jew 2004 (8) SCC 40  

this Court has held that protection under section 197 is available only when  

the  act  done  by  the  public  servant  is  reasonably  connected  with  the  

discharge  of  his  official  duty  and  is  not  merely  a  cloak  for  doing  the  

objectionable act. The test to determine a reasonable connection between  

the act complained of and the official duty is that even in case the public  

servant has exceeded in his duty, if there exists a reasonable connection it  

will not deprive him of the protection. This Court has also observed that  

there cannot be a universal rule to determine whether there is a reasonable  

connection between the act done and the official duty nor is it possible to  

26

Page 27

27

lay down any such rule. It was held thus :

“7. The  protection  given  under  Section  197  is  to  protect  responsible public servants against the institution of possibly  vexatious  criminal  proceedings  for  offences  alleged to  have  been committed by them while they are acting or purporting to  act as public servants. The policy of the legislature is to afford  adequate protection to public servants to ensure that they are  not prosecuted for anything done by them in the discharge of  their official duties without reasonable cause, and if sanction is  granted,  to  confer  on  the  Government,  if  they  choose  to  exercise  it,  complete  control  of  the  prosecution.  This  protection has  certain  limits  and is  available  only when the  alleged act done by the public servant is reasonably connected  with the discharge of his official duty and is not merely a cloak  for doing the objectionable act. If in doing his official duty, he  acted in excess of his duty, but there is a reasonable connection  between the act and the performance of the official duty, the  excess will  not  be a sufficient  ground to deprive the public  servant of the protection. The question is not as to the nature of  the offence such as whether the alleged offence contained an  element  necessarily  dependent  upon  the  offender  being  a  public  servant,  but  whether  it  was  committed  by  a  public  servant acting or purporting to act as such in the discharge of  his  official  capacity.  Before  Section  197 can be  invoked,  it  must be shown that the official concerned was accused of an  offence alleged to have been committed by him while acting or  purporting to act in the discharge of his official duties. It is not  the  duty  which  requires  examination  so  much  as  the  act,  because the official act can be performed both in the discharge  of the official duty as well as in dereliction of it. The act must  fall  within the scope and range of  the official  duties  of  the  public servant concerned. It is the quality of the act which is  important and the protection of this section is available if the  act falls within the scope and range of his official duty. There  cannot be any universal rule to determine whether there is a  reasonable connection between the act  done and the official  duty, nor is it possible to lay down any such rule. One safe and  

27

Page 28

28

sure test in this regard would be to consider if the omission or  neglect  on the part  of  the  public  servant  to  commit  the act  complained of could have made him answerable for a charge  of dereliction of his official duty. If the answer to this question  is  in  the  affirmative,  it  may  be  said  that  such  act  was  committed by the public servant while acting in the discharge  of his official duty and there was every connection with the act  complained of and the official duty of the public servant. This  aspect makes it clear that the concept of Section 197 does not  get immediately attracted on institution of the complaint case.”

However, it has also been observed that public servant is not entitled  

to  indulge  in  criminal  activities.  To  that  extent  the  section  has  been  

construed narrowly and in a restricted manner.

24. In  K. Kalimuthu v. State by DSP 2005 (4) SCC 512 this Court has  

observed that official duty implies that an act or omission must have been  

done by the public servant within the scope and range of his official duty  

for protection. It does not extend to criminal activities but where there is a  

reasonable connection in the act or omission during official duty, it must be  

held to be official. This Court has also observed that the question whether  

the sanction is necessary or not, may have to be determined from stage to  

stage. This Court has laid down thus :

“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.

28

Page 29

29

x x x x x

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.”

25. In  State of Karnataka through CBI v. C. Nagarajaswamy 2005 (8)  

SCC 370 this Court has considered the question of grant of sanction and it  

was held that grant of proper sanction by a competent authority is a  sine  

qua non for taking cognizance of the offence. Whether proper sanction is  

accorded or not, ordinarily it should be dealt with at the stage of taking  

cognizance but if the cognizance of the offence is taken erroneously and the  

same comes to the notice of the court at a later stage, a finding to that effect  

is  permissible and such a plea can be taken for  the first  time before an  

appellate court. In case sanction is held to be illegal then the trial would be  

held to have been rendered illegal and without jurisdiction, and there can be  

initiation  of  fresh  trial  after  the  accused  was  discharged  due  to  invalid  

sanction for prosecution and a fresh trial was expedited.

26. In Sankaran Moitra v. Sadhna Das & Anr. 2006 (4) SCC 584 it was  

29

Page 30

30

considered that sanction under section 197 Cr.P.C. is a condition precedent  

though  the  question  as  to  applicability  of  section  197  may  arise  not  

necessarily  at  the  inception  but  even  at  a  subsequent  stage.  Request  to  

postpone the decision on the said question in the instant case, it was held, in  

the facts of the case was not accepted. The complaint disclosed that the  

deceased was a supporter of a political party beaten to death by the police at  

the instance of appellant police officer near a polling booth on an election  

day.  On  the  facts  it  was  held  that  the  appellant  committed  the  act  in  

question during the course of performance of his duty and sanction under  

section 197(1) was necessary for his prosecution. This Court has observed  

thus :

“25. The High Court has stated that killing of a person by use  of excessive force could never be performance of duty. It may  be correct so far as it goes. But the question is whether that act  was  done  in  the  performance  of  duty  or  in  purported  performance of duty. If it was done in performance of duty or  purported  performance of  duty,  Section  197(1)  of  the  Code  cannot  be  bypassed  by  reasoning  that  killing  a  man  could  never be done in an official capacity and consequently Section  197(1) of the Code could not be attracted. Such a reasoning  would  be  against  the  ratio  of  the  decisions  of  this  Court  referred to earlier. The other reason given by the High Court  that if the High Court were to interfere on the ground of want  of  sanction,  people  will  lose  faith  in  the  judicial  process,  cannot  also  be  a  ground  to  dispense  with  a  statutory  requirement or protection. Public trust in the institution can be  maintained  by  entertaining  causes  coming  within  its  

30

Page 31

31

jurisdiction, by performing the duties entrusted to it diligently,  in  accordance  with  law  and  the  established  procedure  and  without  delay.  Dispensing with  of  jurisdictional  or  statutory  requirements  which  may  ultimately  affect  the  adjudication  itself, will itself result in people losing faith in the system. So,  the reason in that behalf given by the High Court cannot be  sufficient to enable it to get over the jurisdictional requirement  of a sanction under Section 197(1) of the Code of Criminal  Procedure. We are therefore satisfied that the High Court was  in error in holding that sanction under Section 197(1) was not  needed in this case. We hold that such sanction was necessary  and for want of sanction the prosecution must be quashed at  this stage. It  is not for us now to answer the submission of  learned counsel for the complainant that this is an eminently fit  case for grant of such sanction.”

27. In Harpal Singh v. State of Punjab 2007 (13) SCC 387 this Court has  

laid down that cognizance could not have been taken without sanction by  

the  TADA Court.  The  conviction  recorded  on  the  basis  of  prosecution  

without sanction was set aside.

28. Learned counsel for appellants has also relied upon the decision of  

this  Court  in  General  Officer  Commanding,  Rashtriya  Rifles  v.  Central   

Bureau of Investigation & Anr. 2012 (6) SCC 228 in which this Court has  

observed that it  is for  the competent  authority to decide the question of  

sanction whether it is necessary or not and not by the court as sanction has  

to  be  issued  only  on  the  basis  of  sound  objective  assessment  and  not  

otherwise. Prior sanction is a condition precedent. This Court has laid down  

31

Page 32

32

thus :

“82. Thus,  in  view  of  the  above,  the  law  on  the  issue  of  sanction can be summarised to the effect that the question of  sanction is  of  paramount importance for  protecting a  public  servant who has acted in good faith while performing his duty.  In  order  that  the  public  servant  may  not  be  unnecessarily  harassed  on  a  complaint  of  an  unscrupulous  person,  it  is  obligatory on the part of the executive authority to protect him.  However, there must be a discernible connection between the  act  complained of  and  the  powers  and  duties  of  the  public  servant. The act complained of may fall within the description  of the action purported to have been done in performing the  official duty. Therefore, if the alleged act or omission of the  public servant can be shown to have a reasonable connection,  interrelationship or is inseparably connected with discharge of  his duty, he becomes entitled for protection of sanction.

83. If the law requires sanction, and the court proceeds against  a public servant without sanction, the public servant has a right  to raise the issue of jurisdiction as the entire action may be  rendered void ab initio for want of sanction. Sanction can be  obtained even during the course of trial depending upon the  facts of an individual case and particularly at what stage of  proceedings,  requirement  of  sanction  has  surfaced.  The  question  as  to  whether  the  act  complained  of,  is  done  in  performance of duty or in purported performance of duty, is to  be determined by the competent authority and not by the court.  The legislature has conferred “absolute power” on the statutory  authority to accord sanction or withhold the same and the court  has no role in this subject. In such a situation the court would  not  proceed  without  sanction  of  the  competent  statutory  authority.”

29. This Court in  D.T. Virupakshappa v. C. Subash 2015 (12) SCC 231  

has observed that whether sanction is necessary or not, may arise at any  

32

Page 33

33

stage of the proceedings and in a given case it may arise at the stage of  

inception.  This  Court  has  referred  to  the  decision  of  this  Court  in  Om  

Prakash v. State of Jharkhand 2012 (12) SCC 72 and observed thus :

“5. The question, whether sanction is necessary or not, may  arise on any stage of the proceedings, and in a given case, it  may arise at the stage of inception as held by this Court in Om  Prakash v.  State of Jharkhand  (2012) 12 SCC 72. To quote:  (SCC p. 94, para 41)

“41.  The  upshot  of  this  discussion  is  that  whether  sanction is necessary or not has to be decided from stage  to  stage.  This  question  may arise  at  any  stage  of  the  proceeding. In a given case, it may arise at the inception.  There  may  be  unassailable  and  unimpeachable  circumstances  on  record  which  may  establish  at  the  outset that the police officer or public servant was acting  in  performance  of  his  official  duty  and  is  entitled  to  protection given under Section 197 of the Code. It is not  possible  for  us  to  hold that  in  such a  case,  the  court  cannot  look  into  any  documents  produced  by  the  accused or the public servant concerned at the inception.  The  nature  of  the  complaint  may  have  to  be  kept  in  mind. It must be remembered that previous sanction is a  precondition for taking cognizance of the offence and,  therefore, there is no requirement that the accused must  wait till the charges are framed to raise this plea.””

30. In Manorama Tiwari & Ors. v. Surendra Nath Rai 2016 (1) SCC 594  

in a case of death by alleged negligence of Government doctors, it was held  

that the sanction for prosecution was necessary. On facts it was held that the  

appellants were discharging public duties as they were performing surgery  

33

Page 34

34

in  the  Government  hospital.  Hence  criminal  prosecution  was  not  

maintainable without sanction from the State Government.  

31. In Shambhoo Nath Misra v. State of U.P. & Ors. 1997 (5) SCC 326  

this Court considered the question when the public servant is alleged to  

have  committed  the  offence  of  fabrication  of  false  record  or  

misappropriation  of  public  funds  etc.  Can  he  be  said  to  have  acted  in  

discharge of official duties ? Since it was not the duty of the public servant  

to  fabricate  the false  records,  it  was held that  the official  capacity  only  

enabled him to fabricate the records and misapporopriate the public funds  

hence it was not connected with the course of same transaction. This Court  

has  also observed that  performance of  official  duty under  the colour  of  

public authority cannot be camouflaged to commit crime. Public duty may  

provide  him an opportunity  to  commit  crime.  The  court  during trial  or  

inquiry has to apply its mind and record a finding on the issue that crime  

and official duty are integrally connected or not. This Court has held thus :

“4. …. The protection of sanction is an assurance to an honest  and sincere officer to perform his public duty honestly and to  the best of his ability. The threat of prosecution demoralises  the  honest  officer.  The  requirement  of  the  sanction  by  competent  authority  or  appropriate  Government  is  an  assurance and protection to the honest  officer  who does his  official duty to further public interest. However, performance  of  official  duty  under  colour  of  public  authority  cannot  be  

34

Page 35

35

camouflaged to commit crime. Public duty may provide him  an opportunity to commit crime. The Court to proceed further  in the trial or the enquiry, as the case may be, applies its mind  and records a finding that the crime and the official duty are  not integrally connected.

5. The question is when the public servant is alleged to have  committed  the  offence  of  fabrication  of  record  or  misappropriation of  public fund etc.  can he be said to have  acted in discharge of his official duties. It is not the official  duty of  the public servant to fabricate the false records and  misappropriate the public funds etc. in furtherance of or in the  discharge  of  his  official  duties.  The  official  capacity  only  enables  him  to  fabricate  the  record  or  misappropriate  the  public fund etc. It does not mean that it is integrally connected  or  inseparably  interlinked  with  the  crime  committed  in  the  course of the same transaction, as was believed by the learned  Judge. Under these circumstances, we are of the opinion that  the view expressed by the High Court as well as by the trial  court on the question of sanction is clearly illegal and cannot  be sustained.”

32. In S.K. Zutshi & Anr. v. Bimal Debnath & Anr. 2004 (8) SCC 31 this  

Court has emphasized that official duty must have been official in nature.  

Official duty implies that the act or omission must have been official in  

nature. If the act is committed in the course of service but not in discharge  

of his duty and without any justification then the bar  under section 197  

Cr.P.C. is not attracted. This Court has laid down thus :

“9. 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  

35

Page 36

36

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 that act or omission was done by the public  servant while discharging his duty then the scope of its being  official should be construed so as to advance the objective of  the section in favour of the public servant. Otherwise the entire  purpose  of  affording  protection  to  a  public  servant  without  sanction shall stand frustrated. 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.”

33. In  P.P. Unnikrishnan & Anr. v. Puttiyottil Alikutty & Anr. 2000 (8)  

SCC  131,  law  to  the  same  effect  as  in  the  above  decision  has  been  

reiterated. The police officers kept a person in lock-up for more than 24  

hours without authority and subjected him to third degree treatment. Thus it  

was held that such offence was neither covered under section 64(3) of the  

Kerala Police Act nor under section 197(1) Cr.P.C.

36

Page 37

37

34. In Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v.   

State through Central Bureau of Investigation 2011 (6) SCC 1, this Court  

has referred to the decision in B.Saha’s case and laid down that the question  

of sanction has to be seen with respect to the stage and material brought on  

record up to that stage. Whether allegation of misappropriation is true or  

false is not to be gone into at this stage in considering the question whether  

sanction  for  prosecution  was  or  was  not  necessary.  The  criminal  acts  

attributed to the accused were taken as alleged.  This Court has observed as  

under :

“87. Both these judgments were followed in  Atma Ram case  AIR 1966 SC 1786 where the question was as to whether the  action  of  a  police  officer  in  beating  and  confining  a  person  suspected of having stolen goods in his possession could be said  to be under colour of duty. It was held as under: (AIR pp. 1787- 88, para 3)

“3.  …  The  provisions  of  Sections  161  and  163  of  the  Criminal Procedure Code emphasise the fact that a police  officer  is  prohibited  from  beating  or  confining  persons  with a view to induce them to make statements. In view of  the statutory prohibition it cannot, possibly, be said that the  acts  complained  of,  in  this  case,  are  acts  done  by  the  respondents under the colour of their duty or authority. In  our opinion, there is no connection, in this case between  the acts complained of and the office of the respondents  and the duties and obligations imposed on them by law. On  the other hand, the alleged acts fall completely outside the  scope of  the duties  of  the respondents  and they are  not  entitled, therefore, to the mantle of protection conferred by  

37

Page 38

38

Section 161(1) of the Bombay Police Act.”

88. Similar  views  have  been  expressed  in  Bhanuprasad  Hariprasad  Dave  case  AIR  1968  SC  1323 wherein  the  allegations against the police officer were of taking advantage of  his position and attempting to coerce a person to give him bribe.  The plea of colour of duty was negatived by this Court and it was  observed as under: (AIR p. 1328, para 9)

“9. … All that can be said in the present case is that the  first  appellant,  a  police  officer,  taking  advantage  of  his  position  as  a  police  officer  and  availing  himself  of  the  opportunity  afforded  by  the  letter  Madhukanta  handed  over to him, coerced Ramanlal to pay illegal gratification  to him. This cannot be said to have been done under colour  of duty. The charge against the second appellant is that he  aided the first appellant in his illegal activity.”

x x x x x

94. In  B. Saha case  (1979) 4 SCC 177  this Court was dealing  primarily with the question as to whether sanction under Section  197  CrPC  was  required  where  a  Customs  Officer  had  misappropriated the goods that he had seized and put them to his  own  use.  While  dealing  with  this  submission,  it  was  also  observed as under: (SCC p. 184, para 14)

“14.  Thus,  the material  brought on the record up to the  stage when the question of want of sanction was raised by  the  appellants,  contained  a  clear  allegation  against  the  appellants  about  the  commission  of  an  offence  under  Section  409  of  the  Penal  Code.  To  elaborate,  it  was  substantially  alleged  that  the  appellants  had  seized  the  goods and were holding them in trust in the discharge of  their official duty, for being dealt with or disposed of  in  accordance with law, but in dishonest breach of that trust,   they criminally misappropriated or converted those goods.   Whether this allegation or charge is true or false, is not   

38

Page 39

39

to be gone into at this stage. In considering the question   whether  sanction  for  prosecution  was  or  was  not   necessary, these criminal acts attributed to the accused   are to be taken as alleged.”

(emphasis supplied)”

35. This Court has held that in case there is an act of beating a person  

suspected of a crime of confining him or sending him away in an injured  

condition,  it  cannot  be  said  that  police  at  that  time  were  engaged  in  

investigation  and  the  acts  were  done  or  intended  to  be  done  under  the  

provisions of law. Act of beating and confining a person illegally is outside  

the purview of the duties.              

36. In Paramjit Kaur (Mrs) v. State of Punjab & Ors. (1996) 7 SCC 20,  

this  Court  directed  the  Director,  CBI  to  appoint  an  investigation  team  

headed by a responsible officer to conduct investigation in the kidnapping  

and whereabouts of the human rights activist and also to appoint a high-

powered team to investigate into the alleged human rights violations.  

37. The principles emerging from the aforesaid decisions are summarized  

hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer  

to perform his duty honestly and to the best of his ability to further  

39

Page 40

40

public duty.   However, authority cannot be camouflaged to commit  

crime.    

II. Once act  or  omission has been found to have been committed by  

public servant in discharging his duty it must be given liberal and  

wide  construction  so  far  its  official  nature  is  concerned.   Public  

servant is not entitled to indulge in criminal activities.  To that extent  

Section 197 CrPC has to be construed narrowly and in a restricted  

manner.

III. Even in facts of a case when public servant has exceeded in his duty,  

if there is reasonable connection it will not deprive him of protection  

under  section  197  Cr.P.C.  There  cannot  be  a  universal  rule  to  

determine whether there is reasonable nexus between the act done  

and official duty nor it is possible to lay down such rule.  

IV. In case the assault made is intrinsically connected with or related to  

performance  of  official  duties  sanction  would  be  necessary  under  

Section 197 CrPC, but such relation to duty should not be pretended  

or  fanciful  claim.    The  offence  must  be  directly  and reasonably  

connected with official  duty to require sanction.   It  is no part of  

official  duty  to  commit  offence.  In  case  offence  was  incomplete  

40

Page 41

41

without proving, the official act, ordinarily the provisions of Section  

197 CrPC would apply.

V. In  case  sanction  is  necessary  it  has  to  be  decided  by  competent  

authority  and  sanction  has  to  be  issued  on  the  basis  of  sound  

objective assessment. The court is not to be a sanctioning authority.    

VI. Ordinarily, question of sanction should be dealt with at the stage of  

taking cognizance, but if the cognizance is taken erroneously and the  

same comes to the notice of Court at a later stage, finding to that  

effect is permissible and such a plea can be taken first time before  

appellate  Court.   It  may  arise  at  inception  itself.   There  is  no  

requirement that accused must wait till charges are framed.  

VII. Question of sanction can be raised at the time of framing of charge  

and it can be decided prima facie on the basis of accusation.   It is  

open to decide it afresh in light of evidence adduced after conclusion  

of trial or at other appropriate stage.

VIII. Question of sanction may arise at any stage of proceedings.  On a  

police  or  judicial  inquiry  or  in  course  of  evidence  during  trial.  

Whether  sanction  is  necessary  or  not  may have  to  be  determined  

from stage to stage and material brought on record depending upon  

41

Page 42

42

facts of each case.  Question of  sanction can be considered at any  

stage of the proceedings.  Necessity for sanction may reveal itself in  

the course of the progress of the case and it would be open to accused  

to place material during the course of trial for showing what his duty  

was.  Accused has the right to lead evidence in support of his case on  

merits.

IX. In some case it may not be possible to decide the question effectively  

and  finally  without  giving  opportunity  to  the  defence  to  adduce  

evidence.  Question of good faith or bad faith may be decided on  

conclusion of trial.

38.          In the instant cases, the allegation as per the prosecution case it  

was a case of fake encounter or death caused by torture whereas the defence  

of the accused person is that it was a case in discharge of official duty and  

as  the  deceased  was  involved  in  the  terrorist  activities  and  while  

maintaining law and order the incident has taken place. The incident was in  

the course of discharge of official duty. Considering the aforesaid principles  

in case the version of the prosecution is found to be correct there is no  

requirement  of  any sanction.  However  it  would be open to  the accused  

42

Page 43

43

persons  to  adduce  the  evidence  in  defence  and  to  submit  such  other  

materials on record indicating that the incident has taken place in discharge  

of their official duties and the orders passed earlier would not come in the  

way  of  the  trial  court  to  decide  the  question  afresh  in  the  light  of  the  

aforesaid principles from stage to stage or even at the time of conclusion of  

the trial at the time of judgment. As at this stage it cannot be said which  

version is correct. The trial court has prima facie to proceed on the basis of  

prosecution version and can re-decide the question afresh in case from the  

evidence adduced by the prosecution or  by the accused or  in  any other  

manner it comes to the notice of the court that there was a reasonable nexus  

of the incident with discharge of official duty, the court shall re-examine the  

question of sanction and take decision in accordance with law. The trial to  

proceed on the aforesaid basis. Accordingly, we dispose of the appeals/writ  

petition in the light of the aforesaid directions.

………………………J. (V. Gopala Gowda)

New Delhi; ………………………J. April 25, 2016. (Arun Mishra)

43

Page 44

44

ITEM NO.1A-For Judgment     COURT NO.9               SECTION IIB/X                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  190/2003 DEVINDER SINGH & ORS.                              Appellant(s)                                 VERSUS STATE OF PUNJAB THROUGH CBI                        Respondent(s) WITH Crl.A.No.352/2016 @ SLP(Crl.) No.3324/2016 @ SLP(Crl.)...CRLMP No.  10040/2004 Crl.A.No.353/2016 @ SLP(Crl) No. 3352/2006  W.P.(Crl.) No. 139/2012 Crl.A.No.354/2016 @ SLP(Crl) No. 4729/2012 Crl.A.No.355/2016 @ SLP(Crl) No. 4739/2012 Crl.A.No.356/2016 @ SLP(Crl) No. 4743/2012 Crl.A.No.357/2016 @SLP(Crl) No. 4759/2012 Crl.A.No.358/2016 @ SLP(Crl) No. 5369/2012 Crl.A.No.360/2016 @ SLP(Crl) No. 5419/2012 Crl.A.No.361/2016 @ SLP(Crl) No. 5435/2012 Crl.A.No.362/2016 @ SLP(Crl) No. 5522/2012 Crl.A.No.363/2016 @ SLP(Crl) No. 5547/2012 Crl.A.No.364/2016 @ SLP(Crl) No. 5578/2012 Crl.A.No.365/2016 @ SLP(Crl) No. 5590/2012 Crl.A.No.366/2016 @ SLP(Crl) No. 5592/2012

44

Page 45

45

Crl.A.No.367/2016 @ SLP(Crl) No. 5614/2012 Crl.A.No.368/2016 @ SLP(Crl) No. 5617/2012 Crl.A.No.369/2016 @ SLP(Crl) No. 5619/2012 Crl.A.No.371/2016 @ SLP(Crl) No. 5622/2012 Crl.A.No.373/2016 @ SLP(Crl) No. 5668/2012 Crl.A.No.374/2016 @ SLP(Crl) No. 5669/2012 Crl.A.No.375/2016 @ SLP(Crl) No. 5697/2012 Crl.A.No.377/2016 @ SLP(Crl) No. 5706/2012 Crl.A.No.378/2016 @ SLP(Crl) No. 5712/2012 Crl.A.No.379/2016 @ SLP(Crl) No. 5714/2012 Crl.A.No.380/2016 @ SLP(Crl) No. 5716/2012 Crl.A.No.381/2016 @ SLP(Crl) No. 5812/2012 Crl.A.No.382/2016 @ SLP(Crl) No. 6005/2012 Crl.A.No.383/2016 @ SLP(Crl) No. 6006/2012 Crl.A.No.384/2016 @ SLP(Crl) No. 6014/2012 Crl.A.No.385/2016 @ SLP(Crl) No. 6057/2012 Crl.A.No.386/2016 @ SLP(Crl) No. 6066/2012 Crl.A.No.387/2016 @ SLP(Crl) No. 6068/2012 Crl.A.No.388/2016 @ SLP(Crl) No. 6081/2012 Crl.A.No.389/2016 @ SLP(Crl) No. 6083/2012 Crl.A.No.390/2016 @ SLP(Crl) No. 9925/2012 Crl.A.No.391/2016 @ SLP(Crl) No. 4702/2012   

45

Page 46

46

Date : 25/04/2016 These appeals and the writ petition were called on  for pronouncement of JUDGMENT today. For Appellant(s)  Mr. Sudhir Walia, Adv.

Ms. Niharika Ahluwalia, Adv.                      Mr. Abhishek Atrey,Adv.                      Mr. K. K. Mohan,Adv.                      Ms. Jyoti Mendiratta,Adv.                      Ms. Kamini Jaiswal,Adv. For Respondent(s)  Mr. P. Parmeswaran,Adv.                      Mr. Bharat Sangal,Adv.                      Ms. Sushma Suri,Adv.                      Mr. Irshad Ahmad,Adv.                      Mr. Kuldip Singh,Adv.                      Ms. Puja Sharma,Adv.                                            Mr. B. V. Balaram Das,Adv.                      Mr. Arvind Kumar Sharma,Adv.         

Hon'ble  Mr.  Justice  Arun  Mishra  pronounced  the  judgment of the Bench comprising Hon'ble Mr. Justice  V.Gopala Gowda and His Lordship.

Delay, if any, is condoned. Leave  granted  in  the  all  the  special  leave  

petitions. The appeals and the writ petition are disposed of  

in terms of the signed Reportable Judgment.

(VINOD KUMAR JHA) COURT MASTER

(MALA KUMARI SHARMA) COURT MASTER

 (Signed Reportable Judgment is placed on the file)

46