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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 257 of 2011

General Officer Commanding                     …Appellant

Versus

CBI & Anr.                                       …Respondents

WITH  

CRIMINAL APPEAL NO.55 of 2006

Additional Director General                      …Appellant

Versus

Central Bureau  Investigation                   …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Criminal Appeal  No. 257 of 2011 has been preferred against  

the  impugned judgment and order  dated  10.7.2007  passed  by the  

High Court of Jammu and Kashmir in Petition Nos. 78 and 80 of 2006

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under  Section  561-A  of  the  Code  of  Criminal  Procedure,  (J&K)  

(hereinafter called as `Code’) by which the High Court upheld the  

order  dated  30.11.2006  passed  by the  Additional  Sessions  Judge,  

Srinagar in File No. 16/Revision of 2006, and by the Chief Judicial  

Magistrate,  Srinagar  dated  24.8.2006,  rejecting  the  appellant’s  

application for not entertaining the chargesheet filed by the Central  

Bureau of Investigation (hereinafter called ‘CBI’).  

2.        Brief facts relevant to the disposal of this appeal are as under:

A. In Village Chittising Pora, District Anantnag, J&K, 36 Sikhs  

were killed by terrorists on 20.3.2000.  Immediately thereafter, search  

for the terrorists started in the entire area and 5 persons, purported to  

be terrorists,  were killed at village Pathribal  Punchalthan, District  

Anantnag, J & K by 7 Rashtriya Rifles (hereinafter called as `RR’)  

Personnel on 25.3.2000 in an encounter.   

B.          In respect of killing of 5 persons by 7 RR on 25.3.2000 at   

Pathribal  claiming them to  be  responsible  for  Sikhs  massacre  at  

Chittising  Pora,  a  complaint  bearing  No.  241/GS(Ops.)  dated  

25.3.2000 was sent to Police Station Achchabal, District Anantnag,  

J&K by Major Amit Saxena, the then Adjutant, 7 RR, for lodging FIR  

stating that  during a   special  cordon and  search  operation in  the  

forests of Panchalthan from 0515 hr. to 1500 hrs. on 25.3.2000, an  

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encounter took place between terrorists and troops of that unit and in  

that  operation,  5  unidentified  terrorists  were  killed  in  the  said  

operation.  On the receipt of the complaint, FIR No. 15/2000 under  

Section 307 of Ranbir Penal Code  (hereinafter called ‘RPC’)  and  

Sections  7/25  Arms  Act,  1959  was  registered  against  unknown  

persons.   A  seizure  memo was  prepared  by  Major  Amit Saxena  

(Adjutant) on 25.3.2000 showing seizure of arms and ammunition  

from all the 5 unidentified terrorists killed in the aforesaid operation  

which included AK-47 rifles (5), AK-47 Magazine rifles (12), radio  

sets  (2),  AK-48  ammunition  (44  rounds),  hand  grenades  (2)  

detonators (4) and detonator time devices (2).  The said seizure memo  

was signed by the witnesses Farooq Ahmad Gujjar and Mohd. Ayub  

Gujjar, residents of Wuzukhan, Panchalthan, J & K.  

C. The  7  RR  deposited  the  said  recovered  weapons  and  

ammunition with 2 Field Ordnance Depot.   However, the local police  

insisted that the Army failed to hand over the arms and ammunition  

allegedly recovered from the terrorists killed in the encounter, which  

tantamounts to causing of disappearance of the evidence, constituting  

an offence under Section 201 RPC.  In this regard, there had been  

correspondence and a Special Situation Report dated 25.3.2000 was  

sent  by Major Amit Saxena, the then Adjutant,  to Head Quarter–I,  

Sector RR stating that, based on police inputs, a joint operation with  

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STF was launched in the forest of Pathribal valley on 25.3.2000, as a  

consequence, the said incident occurred.  However, it was added that  

ammunition allegedly recovered from the killed militants had been  

taken away by the STF.  

D. There had been long processions in the valley in protest of  

killing of these 5 persons on 25.3.2000 by 7 RR  alleging that they  

were civilians and had been killed by the Army personnel in a fake  

encounter.   The local population treated it to be a  barbaric act  of  

violence and there had been a demand of independent inquiry into the  

whole incident.  Thus, in view thereof, on the request of Government  

of J & K, a Notification dated 19.12.2000 under Section 6 of Delhi  

Police Special Establishment Act,  1946 (hereinafter called as  `Act  

1946’)  was  issued.  In  pursuance  thereof,  Ministry  of  Personnel,  

Government of India, also issued Notification dated 22.1.2003 under  

Section 5 of the Act 1946 asking the CBI to  investigate four cases  

including the alleged encounter at Pathribal resulting in the death of 5  

persons on 25.3.2000.   

E. The CBI conducted the investigation in Pathribal incident and  

filed a  chargesheet  in the court  of Chief Judicial  Magistrate-cum-

Special Magistrate, CBI, (hereinafter called the ‘CJM’)  Srinagar, on  

9.5.2006,  alleging  that  it  was  a  fake  encounter,  an  outcome  of  

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criminal  conspiracy  hatched  by  Col.  Ajay  Saxena  (A-1),  Major  

Brajendra Pratap Singh (A-2), Major Sourabh Sharma (A-3), Subedar  

Idrees Khan (A-4) and some members of the troops of 7 RR were  

responsible for killing of innocent persons. Major  Amit Saxena (A-5)  

(Adjutant) prepared a false seizure memo showing recovery of arms  

and ammunition in the said incident,  and also gave a false complaint  

to the police station for registration of the case against the said five  

civilians  showing  some  of  them  as  foreign  militants  and  false  

information to  the senior  officers  to  create  an impression that  the  

encounter was genuine and, therefore, caused  disappearance of the  

evidence of  commission of the aforesaid offence under Section 120-

B  read  with  Sections  342,  304,  302,  201  RPC  and  substantive  

offences thereof.  Major  Amit Saxena (A-5) (Adjutant) was further  

alleged to have committed offence punishable under Section 120-B  

read with Section 201 RPC and substantive offence under Section  

201 RPC with regard to the aforesaid offences.   

F.           The learned CJM  on consideration of the matter, found that  

veracity of the allegations made in the chargesheet and the analysis of  

the evidence cannot be gone into as it would tantamount to assuming  

jurisdiction not vested in him.  It was so in view of the provisions of  

Armed Forces J & K (Special Powers) Act, 1990 (hereinafter called  

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‘Act 1990’), which offer protection to persons acting under the said  

Act.   

G.        The CJM, Srinagar, granted opportunity to Army to exercise  

the option as to whether the competent military authority would prefer  

to try the case by way of court-martial by taking over the case under  

the provisions of Section 125 of the Army Act,  1950 (hereinafter  

called the `Army Act’).   On  24.5.2006, the Army officers filed an  

application before the court pointing out that no prosecution could be  

instituted  except  with  the  previous  sanction  of  the  Central  

Government in view of the provisions of Section 7 of the Act 1990  

and,  therefore,  the  proceedings   be   closed  by  returning  the  

chargesheet to the CBI.   

H.    The CJM  vide order dated 24.8.2006 dismissed the application  

holding  that  the  said  court  had  no  jurisdiction  to  go  into  the  

documents filed by the investigating agency and it was for the trial  

court to find out whether the action complained of falls within the  

ambit of the discharge of official duty or not.  The CJM himself  

could not analyse the evidence and other material produced with the  

chargesheet for considering the fact, as to whether the officials had  

committed the act  in good faith in discharge of their official duty;  

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otherwise the act of such officials was illegal or unlawful  in view of  

the nature of the offence.   

I. Aggrieved  by  the  order  of  CJM  dated  24.8.2006,  the  

appellant filed revision petition before the Sessions Court, Srinagar  

and  the  same  stood  dismissed  vide   order  dated  30.11.2006.  

However,  the revisional court directed the CJM to give one more  

opportunity to the Army officials for exercise of option under Section  

125 of the Army Act.      

J.       The appellant approached the High Court under Section 561-A  

of  the  Code.  The  Court  vide  impugned  order  dated  10.7.2007  

affirmed  the  orders  of  the  courts  below  and  held  that  the  very  

objective of sanctions is to enable the Army officers to perform their  

duties  fearlessly by protecting them from vexatious,  malafide and  

false  prosecution for  the  act  done in performance of  their  duties.  

However, it has to be examined as to whether their action falls under  

the Act 1990.  The CJM does not have the power to examine such an  

issue  at  the  time of  committal  of  proceedings.  At  this  stage,  the  

Committal Court has to examine only as to whether any case is made  

out and, if so, the offence is triable by whom.   

       Hence, this appeal.  

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3. Criminal Appeal No. 55 of 2006 has been preferred against  

the  impugned judgment and order  dated  28.3.2005  passed  by the  

High Court of Guwahati in Criminal Revision No.117 of 2004 by  

which it  has  upheld the  order  of  the  Special  Judicial  Magistrate,  

Kamrup dated 10.11.2003 rejecting the application of the appellant  

seeking protection of the provisions of Section 6 of the Armed Forces  

(Special  Powers)  Act,  1958 (hereinafter  called the `Act  1958’)  in  

respect of the armed forces personnel.

4. Facts  and  circumstances  giving rise  to  this  appeal  are  as  

under:

A. In  order  to  curb  the  insurgency  in  the  North-East,  the  

Parliament enacted the Act 1958 authorising the Central Government  

as well as the Governor of the State to declare, by way of Notification  

in the official Gazette,  the whole or part of the State as  disturbed  

area.   Section 4 of the Act 1958 conferred certain powers on the  

Army personnel acting under the Act which include power to arrest  

without  warrant  on  reasonable  suspicion,  destroy  any  arms,  

ammunitions dumped and hide out, and also to open fire or otherwise  

use powers even to the extent of causing death against any person  

acting in contravention of  law and order  and further  to  carry out  

search and seizure.  The entire State of Assam was declared disturbed  

area  under  the  Act  1958  vide  Notification  dated  27.11.1990  and  

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Army was requisitioned and deployed in various parts of the State to  

fight insurgency and to restore law and order.

B. On 22.2.1994,  the  18th Battalion of  Punjab  Regiment was  

deployed in Tinsukhia District  of  Assam to  carry out  the counter  

insurgency operation in the area of Saikhowa Reserve Forest.  The  

said Army personnel faced the insurgents who opened fire from an  

ambush.  The armed battalion returned fire and in the process, some  

militants  died.   The  Battalion  continued  search  at  the  place  of  

encounter  and  consequently,  5  bodies  of  the  militants  alongwith  

certain arms and ammunitions were recovered.  In respect of the said  

incident, an FIR was lodged at P.S. Doom Dooma.  Local Police also  

visited the place on 23.2.1994 and 1.3.1994 and investigated the case.  

The incident was investigated by the Army under the Army Court of  

enquiry as provided under the Army Act.    Two Magisterial enquiries  

were held as per the directions issued by the State Government and as  

per the appellant, the version of the Army personnel was found to be  

true and a finding was recorded that ‘the counter insurgency operation  

was done in exercise of the official duty’.

C. Two writ petitions were filed before the High Court by the  

non-parties alleging that the Army officials apprehended 9 individuals  

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and killed 5 of them in a fake encounter.  The High Court directed the  

CBI to investigate the matter.

D. The CBI completed the investigation and filed chargesheet  

against 7 Army personnel in the Court of Special Judicial Magistrate,  

Kamrup under Section 302/201 read with Section 109 of the Indian  

Penal Code,  1860 (hereinafter called `IPC’).   The Special Judicial  

Magistrate issued notice dated 30.5.2002 to the appellant i.e. Army  

Headquarter to collect the said chargesheet.  The appellant requested  

the said Court not to proceed with the matter as the action had been  

carried out by the Army personnel in performance of their official  

duty and thus, they were protected under the Act 1958 and in order to  

proceed further in the matter, sanction of the Central Government was  

necessary.  The learned Special Judicial Magistrate rejected the case  

of the appellant vide order dated 10.11.2003.  Being aggrieved, the  

appellant preferred the revision petition which has been rejected vide  

impugned order dated 28.3.2005 by the High Court.   

         Hence, this appeal.

5. As the facts and legal issues involved in both the appeals are  

similar, we decide both the appeals by a common judgment taking the  

Criminal Appeal No. 257 of 2011 as a leading case.  

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6. Shri Mohan Parasaran and Shri P.P. Malhotra, learned Addl.  

Solicitor  Generals  appearing on behalf of  the Union of  India and  

Army personnel, have contended that mandate of Section 7 of the Act  

1990  is  clear  and it  clearly provides  that  no prosecution shall  be  

instituted and, therefore, cannot be instituted without prior sanction of  

the Central Government.  It is contended that the prosecution would  

be deemed to have instituted/initiated at the moment the chargesheet  

is  filed  and  received  by  the  court.  Such  an  acceptance/receipt  is  

without jurisdiction. The previous sanction of the competent authority  

is a pre-condition for the court in taking the chargesheet on record if  

the offence alleged to have been committed in discharge of official  

duty and such issue touches the jurisdiction of the court.   

7. On the other hand, Shri H.P. Raval, learned ASG, Shri Ashok  

Bhan, learned senior counsel appearing on behalf of the CBI, and Mr.  

M.S.  Ganesh appearing for the interveners (though application for  

intervention  not  allowed)  have  vehemently  opposed  the  appeals  

contending  that  the  institution  of  a  criminal  case  means  taking  

cognizance of the case, mere presentation/filing of the chargesheet in  

the court does not amount to institution. The court of CJM has not  

taken cognizance of the offence, therefore, the appeals are premature.  

Even  otherwise,  killing  innocent  persons  in  a  fake  encounter  in  

execution of a conspiracy cannot be a part of official duty and thus, in  

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view of the facts of the case no sanction is required. The appeals are  

liable to be dismissed.    

8. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the record.

9. The  matter  is  required  to  be  examined  taking  into  

consideration  the  statutory  provisions  of  the  Act  1990  and  also  

considering the object  of the said Act.  It  is to be examined as  to  

whether the court,  after  the chargesheet  is  filed,  can entertain the  

same and proceed to frame charges without previous sanction of the  

Central Government.  The Act 1990 confers certain special powers  

upon members of the Armed Forces in the disturbed area in the State  

of J & K. The disturbed area is defined and there is no dispute  that  

the place where the incident occurred stood notified under the Act  

1990. Section 4 of the Act 1990 confers special powers on the officer  

of armed forces to take measures, where he considers it necessary to  

do so, for the maintenance of public order. However, he must give  

due warning according to the circumstances  and even fire upon or  

use force that may also result in causing death against any person  

acting in contravention of law and order in the disturbed area and  

prohibit the assembly of five or more persons or carrying of weapons  

etc.  Such an officer has further been empowered to destroy any arms  

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dump,  arrest  any  person  without  warrant  who  has  committed  a  

cognizable  offence  and  enter  and  search  without  warrant  any  

premises to make any arrest. Section 6 of the Act 1990 requires that  

such arrested person and seized property be handed over to the local  

police by such an officer.

10. Section 7 of the Act 1990 provides for umbrella protection to  

the Army personnel in respect of anything done or purported to be  

done in exercise of powers conferred by the Act. The whole issue is  

regarding the  interpretation  of  Section  7  of  the  Act  1990,  as  to  

whether  the  term  ‘institution’ used  therein  means  

filing/presenting/submitting the chargesheet  in the court  or  taking  

cognizance and whether the court can proceed with the trial without  

previous sanction of the Central Government.   

11. The analogous provision to Section 7 of the Act 1990 exists  

in Sections 45(1) and 197(2) of the Code of Criminal Procedure,  

1973 (hereinafter called ‘Cr.P.C.’). The provisions of Section 7 of the  

Act 1990 are mandatory and if not complied with in letter and spirit  

before institution of any suit, prosecution or legal proceedings against  

any persons in respect of anything done or purported to be done in  

exercise of the powers conferred by the Act 1990, the same could be  

rendered invalid and illegal as  the provisions require the previous  

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sanction  of  the  Central  Government  before  institution  of  the  

prosecution.  

According to the appellants,  institution of prosecution is a  

stage prior to taking cognizance and, therefore, the word ‘institution’  

is different from the words taking  ‘cognizance’.

The scheme of the Act requires that  any legal proceeding  

instituted against any Army official working under the Act 1990 has  

to be subjected to stringent test before any such proceeding can be  

instituted. Special powers have been conferred upon Army officials to  

meet the dangerous conditions i.e.  use of the armed forces in aid of  

civil  force  to  prevent  activities  involving  terrorist  acts  directed  

towards  overawing the government or  striking terror  in people  or  

alienating  any  section  of  the  people  or  adversely  affecting  the  

harmony amongst different sections of the people.  Therefore, Section  

7 is required to be interpreted keeping the aforesaid objectives in  

mind.  

12. The ‘prosecution’ means a criminal action before the court of  

law for the purpose of determining ‘guilt’ or ‘innocence’ of a person  

charged with a  crime.  Civil suit refers to a civil action instituted  

before a court of law for realisation of a right vested in a party by  

law.  The phrase ‘legal proceeding’ connotes a term which means the  

proceedings in a  court  of  justice  to  get  a  remedy which the  law  

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permits  to  the  person  aggrieved.  It  includes  any  formal  steps  or  

measures employed therein. It is not synonymous with the ‘judicial  

proceedings’. Every judicial proceeding is a legal proceeding but not  

vice-versa,  for  the  reason that  there  may be  a  ‘legal  proceeding’  

which  may  not  be  judicial  at  all,  e.g.  statutory  remedies  like  

assessment  under  Income  Tax  Act,  Sales  Tax  Act,  arbitration  

proceedings etc.  So, the ambit of expression ‘legal proceedings’ is  

much  wider  than  ‘judicial  proceedings’.  The  expression  ‘legal  

proceeding’ is to be construed in its ordinary meaning but it is quite  

distinguishable  from  the  departmental  and  administrative  

proceedings,  e.g.  proceedings for registration of  trade  marks etc.  

The  terms  used  in  Section  7  i.e.  suit,  prosecution  and  legal  

proceedings are not inter-changeable or convey the same meaning.  

The phrase `legal proceedings’ is to be understood in the context of  

the statutory provision applicable in a particular case, and considering  

the preceding words used therein.  In Assistant Collector of Central  

Excise, Guntur v. Ramdev Tobacco Company, AIR 1991 SC 506,  

this  Court  explained  the  meaning  of  the  phrase   “other  legal  

proceedings” contained in Section 40(2) of the Central Excises and  

Salt Act, 1944, wherein these words have been used after suit and  

prosecution.   The  Court  held  that  these  words  must  be  read  as  

ejusdem generis with the preceding words i.e. suit and prosecution,  

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as  they constitute a  genus.  Therefore,  issuance of a  notice calling  

upon the dealer to show cause why duty should not be demanded  

under the Rules and why penalty should not be imposed for infraction  

of  the  statutory  rules  and  enjoin  of  consequential  adjudication  

proceedings  by  the  appellate  authority  would  not  fall  within  the  

expression “other legal proceedings” as  in the context of the said  

statute.  ‘Legal  proceedings’  do  not  include  the  administrative  

proceedings.   

In  Maharashtra  Tubes  Ltd.  v.  State  Industrial  &  

Investment Corporation of Maharashtra Ltd. & Anr., (1993) 2  

SCC 144,  this Court dealt with the expressions ‘proceedings’ and  

‘legal proceedings’ and placed reliance upon the dictionary meaning  

of expression ‘legal proceedings’ as found in Black Law Dictionary  

(Fourth Edition)  which read as under:

“Any proceedings  in  court  of  justice  ...  by   which property  of  debtor  is  seized  and  diverted   from his general creditors ....  This term includes   all proceedings authorised or sanctioned by law,   and brought or instituted in a court of justice or   legal tribunal, for the acquiring of a right or the   enforcement of a remedy.”

        The Court came to the conclusion that proceedings before  

statutory authorities under the provisions of the Act do not amount to  

legal proceedings.  

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‘Legal  proceedings’  means  proceedings  regulated  or  

prescribed by law in which a judicial decision may be given; it means  

proceedings in a court of justice by which a party pursues a remedy  

which  a  law  provides,  but  does  not  include  administrative  and  

departmental  proceedings.  (See  also:  S.  V.  Kondaskar,  Official  

Liquidator v. V.M. Deshpande, I.T.O. & Anr.,  AIR 1972 SC 878;  

Babulal v. M/s. Hajari Lal Kishori Lal & Ors., AIR 1982 SC 818;  

and  Binod  Mills  Co.  Ltd.,  Ujjain  v.  Shri.  Suresh  Chandra  

Mahaveer Prasad Mantri, Bombay, AIR 1987 SC 1739).  

         The provision of Section 7 of the Act 1990 prohibits institution  

of  legal  proceedings  against  any  Army  personnel  without  prior  

sanction of the Central Government. Therefore, chargesheet cannot  

be instituted without prior sanction of the Central Government.  The  

use  of  the  words  ‘anything done’  or  ‘purported  to  be  done’  in  

exercise of powers conferred by the Act 1990 is very wide in its  

scope  and  ambit  and  it  consists  of  twin  test.  Firstly,  the  act  or  

omission  complained  of  must  have  been  done  in  the  course  of  

exercising powers conferred under the Act, i.e.,  while carrying out  

the duty in the course of his service and secondly, once it is found to  

have  been  performed  in  discharge  of  his  official  duty,  then  the  

protection  given  under  Section  7  must  be  construed  liberally.  

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Therefore, the provision contained under Section 7 of the Act 1990  

touches the very issue of jurisdiction  of launching the prosecution.  

(i) INSTITUTION OF A CASE:

13. The  meaning of  the  aforesaid  term has  to  be  ascertained  

taking into consideration the scheme of the Act/Statute applicable.  

The  expression  may  mean  filing/presentation  or  received  or  

entertained by the court.  The question does arise as to whether it  

simply means mere presentation/filing or something further where the  

application of the mind of the court is to be applied for passing an  

order.   

14.       In M/s. Lakshmiratan Engineering Works Ltd. v. Asst.  

Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur &  

Anr., AIR 1968 SC 488, this Court dealt with the provisions of U.P.  

Sales Tax Act, 1948 and rules made under it and while interpreting  

the proviso to Section 9 thereof, which provided the mode of filing  

the appeal and further provided that appeal could be “entertained” on  

depositing  a  part  of  the  assessed/admitted  amount  of  tax.   The  

question arose as what was the meaning of the word ‘entertain’ in the  

said context, as to whether it meant that no appeal would be received  

or filed or it meant that no appeal would be admitted or heard and  

disposed of unless satisfactory proof of deposit was available. This  

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Court held that dictionary meaning of the word ‘entertain’ was either  

‘to deal with’ or ‘admit to consideration’.  However, the court had to  

consider whether filing or receiving the memorandum of appeal was  

not  permitted without depositing the required amount of tax or  it  

could not  be  heard  and decided on merits  without depositing the  

same. The court took into consideration the words ‘filed or received’  

in Section 6 of the Court Fees Act and held that in the context of the  

said  Act  it  would mean ‘admit  for  consideration’.  Mere  filing or  

presentation  or  receiving  the  memorandum  of  appeal  was  

inconsequential. The provisions provided that the appeal filed would  

not  be  admitted  for  consideration  unless  the  required  tax  was  

deposited.    

15.       In Lala Ram v. Hari Ram, AIR 1970 SC 1093, this Court  

considered the word ‘entertain’ contained in the provisions of Section  

417(4)  of  the  Code  of  Criminal   Procedure,  1898  (analogous  to  

Section 378 Cr.P.C.)  providing for the period of limitation of 60 days  

for  filing the  application for  leave  to  appeal  against  the  order  of  

acquittal. Thus, the question arose as to whether 60 days are required  

for  filing/presenting  the  application  for  leave  to  appeal  or  the  

application should be  heard by the court  within that  period.  This  

Court held that in that context, the word ‘entertain’ meant ‘filed or  

received by the court’ and it had no reference to the actual hearing of  

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the application for leave to appeal. So, in that context ‘entertain’ was  

explained to receive or file the application for leave to appeal.  

16.       In  Hindustan Commercial   Bank Ltd.  v.  Punnu Sahu  

(dead) through LRs., AIR 1970 SC 1384, this Court dealt with the  

expression ‘entertain’ contained in the proviso to Order XXI Rule 90  

Code of Civil Procedure,  1908 as  amended by the High Court of  

Allahabad and rejected the contention that it meant initiation of the  

proceeding  and  not  to  the  stage  when  the  court  takes  up  the  

application  for  consideration,  observing that  ‘entertain’  means  to  

“adjudicate upon” or “proceed to consider on merits”.

17.       In  Martin and Harris Ltd. v. VIth Additional District  

Judge & Ors., AIR 1998 SC 492, while dealing with the provisions  

of Section 21(1) of the U.P. Urban Buildings (Regulation of Letting,  

Rent and Eviction) Act, 1972, the word “entertain” was interpreted  

as considering the grounds for the purpose of adjudication on merits  

i.e.  thereby  taking cognizance  of  an  application  by  the  statutory  

authority. The Court rejected the contention that the term ‘entertain’  

contained in the said statutory provision was synonymous with the  

word ‘institute’.  

18.       In Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964 SC  

1541, this Court dealt with the expression ‘institution of a case’ and  

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held that a case can be said to be instituted in a court only when the  

court takes cognizance of the offence alleged therein.  Section 190(1)  

Cr.P.C. contains the provision for taking cognizance of offence (s) by  

Magistrate.  Section 193 Cr.P.C. provides for cognizance of offence  

(s)  being taken  by courts  of  Sessions  on commitment to  it  by  a  

Magistrate duly empowered in that behalf.   

This view has been reiterated, approved and followed by this  

Court in Satyavir Singh Rathi, ACP & Ors. v. State through CBI,  

(2011) 6 SCC 1.  

19.      A  similar  view  has  been  reiterated  by  this  Court  in  

Kamalapati Trivedi v. The State of West Bengal, AIR 1979 SC  

777,  observing  that  when  a  Magistrate  applies  his  mind  under  

Chapter  XVI,  he  must  be  held  to  have  taken  cognizance  of  the  

offences mentioned in the complaint.   Such a  situation would not  

arise  while  passing order  under  Section  156(3)  Cr.P.C.  or  while  

issuing  a  search  warrant  for  the  purpose  of  investigation.   In  

Devarapalli  Lakshminarayana Reddy & Ors.  v.  V.  Narayana  

Reddy & Ors., AIR 1976 SC 1672, this Court held that ‘institution’  

means taking cognizance of the offence alleged in the chargesheet.

20.        Mere presentation of a complaint cannot be held to mean that  

the  Magistrate  has  taken  the  cognizance.  (Vide:  Narsingh  Das  

Tapadia v. Goverdhan Das Partani & Anr., AIR 2000 SC 2946).  

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21.        Thus, in view of the above, it is evident that the expression  

“Institution” has to be understood in the context of the scheme of the  

Act  applicable  in  a  particular  case.    So  far  as  the  criminal  

proceedings  are  concerned,  “Institution”  does  not  mean  filing;  

presenting  or  initiating  the  proceedings,  rather  it  means  taking  

cognizance as per the provisions contained in the Cr.P.C.   

(ii) SANCTION FOR PROSECUTION:

22. The protection given under Section 197 Cr.P.C. 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.   Use of the expression “official  

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duty” implies that the act or omission must have been done by the  

public servant in the course of his service and that it should have been  

done  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.  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  Cr.P.C.  cannot  be  

disputed. (See:  R. Balakrishna Pillai v. State of Kerala & Anr.,  

AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr.,  

AIR 2004 SC 4174; Center for Public Interest Litigation & Anr.  

v.  Union of India & Anr.,  AIR 2005 SC 4413;  Rakesh Kumar  

Mishra  v.  State  of  Bihar  &  Ors.,  AIR  2006  SC  820;  Anjani  

Kumar v. State of Bihar & Ors., AIR 2008 SC 1992; and State of  

Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617).  

23. The  question  to  examine  as  to  whether  the  sanction  is  

required or not under a statute has to be considered at the time of  

taking  cognizance  of  the  offence  and  not  during  enquiry  or  

investigation.  There  is  a  marked  distinction  in  the  stage  of  

investigation  and  prosecution.   The  prosecution  starts  when  the  

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cognizance of offence is taken. It is also to be kept in mind that the  

cognizance  is  taken  of  the  offence  and  not  of  the  offender.  The  

sanction of the appropriate authority is necessary to protect a public  

servant  from  unnecessary  harassment  or  prosecution.  Such  a  

protection  is  necessary  as  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.  

However, performance of  public duty under colour of duty cannot be  

camouflaged to commit a crime. The public duty may provide such a  

public  servant  an  opportunity to  commit crime and  such  issue  is  

required to be examined by the sanctioning authority or by the court.  

It is quite possible that the official capacity may enable the pubic  

servant to fabricate the record or mis-appropriate public funds etc.  

Such  activities  definitely  cannot  be  integrally  connected  or  

inseparably inter-linked with the crime committed in the course of the  

same  transaction.  Thus,  all  acts  done  by  a  public  servant  in  the  

purported discharge of his official duties cannot as a matter of course  

be brought under the protective umbrella of requirement of sanction.  

(Vide:  Bhanuprasad Hariprasad Dave & Anr. v.  The State of  

Gujarat, AIR  1968  SC  1323;  Hareram  Satpathy  v.  Tikaram  

Agarwala & Ors., AIR 1978 SC 1568;  State of Maharashtra v.  

Dr. Budhikota Subbarao, (1993) 3 SCC 339;  Anil Saran v. State  

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of Bihar & Anr.,  AIR 1996 SC 204;  Shambhoo Nath Misra  v  

State of U.P. & Ors., AIR 1997 SC 2102; and Choudhury Parveen  

Sultana v. State of West Bengal & Anr., AIR 2009 SC 1404).  

24. In  fact,  the  issue  of  sanction  becomes  a  question  of  

paramount importance when a public servant is alleged to have acted  

beyond his authority or his acts complained of are in dereliction of the  

duty. In such an eventuality, if the offence is alleged to have been  

committed by him while acting or purporting to act in discharge of his  

official duty, grant of prior sanction becomes imperative.  It is so, for  

the reason that the power of the State is performed by an executive  

authority authorised in this behalf in terms of the  Rules of Executive  

Business framed under Article 166 of the Constitution of India insofar  

as such a power has to be exercised in terms of Article 162 thereof.  

(See : State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009)  

17 SCC 92).  

25.  In Satyavir Singh  Rathi,  (Supra),   this Court  considered  

the provisions of Section 140 of the Delhi Police Act 1978 which bars  

the suit and prosecution in any alleged offence by a police officer in  

respect of the act done under colour of duty or authority in exercise of  

any such duty or authority without the sanction and the same shall not  

be entertained if  it is instituted more than 3 months after the date of  

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the act complained of. A complaint may be entertained in this regard  

by  the  court  if  instituted  with  the  previous  sanction  of  the  

administrator within one year from the date of the offence. This Court  

after  considering  its  earlier  judgments  including  Jamuna  Singh  

(supra);  The State of Andhra Pradesh v. N. Venugopal & Ors.,  

AIR 1964 SC 33; State of Maharashtra v. Narhar Rao, AIR 1966  

SC 1783;  State of Maharashtra v. Atma Ram & Ors., AIR 1966  

SC 1786;  and  Prof.  Sumer Chand v.  Union of  India & Ors.,  

(1994)  1 SCC 64, came to the conclusion that the prosecution  has  

been initiated on the basis of the FIR and it was the duty of the police  

officer to investigate the matter and to file a chargesheet, if necessary.  

If there is a discernible connection between the act complained of by  

the  accused  and  his  powers  and  duties  as  police  officer,  the  act  

complained  of  may fall  within the  description  of  colour  of  duty.  

However, in a case where the act complained of does not fall within  

the description of colour of duty, the provisions of Section 140 of the  

Delhi Police Act 1978 would not be attracted.  

26. This Court in State of Orissa & Ors. v. Ganesh Chandra  

Jew, AIR 2004 SC 2179, while dealing with the issue  held as under:  

“….. 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   

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connection between the act done and the official   duty, nor is it possible to lay down any such rule.   One safe and 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.”                                      (Emphasis  added)

(See also: P. Arulswami v. State of Madras, AIR 1967 SC 776).  

27. This Court in Suresh Kumar Bhikamchand Jain v. Pandey  

Ajay Bhushan & Ors., AIR 1998 SC 1524, held as under:  

“……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 concerned Government in   a case where the acts complained of are alleged to   have  been  committed  by  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   

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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.”         (Emphasis added)

28. In  Matajog Dobey v.  H.C.  Bhari, AIR 1956 SC 44,  the  

Constitution Bench of this Court held that requirement of sanction  

may arise at any stage of the proceedings as the complaint may not  

disclose all the facts to decide the question of immunity, but facts  

subsequently  coming either  to  notice  of  the  police  or  in  judicial  

inquiry or even in the course of prosecution evidence may establish  

the necessity for sanction.  The necessity for sanction may surface  

during the course of trial and it would be open to the accused to place  

the material on record for showing what his duty was and also the  

acts  complained of were  so  inter-related or  inseparably connected  

with his official duty so as to attract the protection accorded by law.  

The  court  further  observed  that  difference  between  “acting  or  

purporting to act” in the discharge of his official duty is merely of a  

language and not of substance.

 On  the  issue  as  to  whether  the  court  or  the  competent  

authority under the statute has to decide the requirement of sanction,  

the court held:

“Whether  sanction  is  to  be  accorded  or  not  is  a   matter for the government to consider. The absolute  power to accord or withhold sanction conferred on  

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the  government  is  irrelevant  and  foreign  to  the   duty cast on the Court, which is the ascertainment   of  the true nature of the act……There must be a   reasonable  connection  between  the  act  and  the   official  duty.  It  does  not  matter  even  if  the  act   exceeds what is strictly necessary for the discharge   of the duty, as this question will arise only at a later   stage when the trial proceeds on the merits.  What   we must find out is whether the act and the official   duty  are  so  inter-related  that  one  can  postulate   reasonably that it was done by the accused in the   performance of the official duty, though possibly in   excess  of  the  needs  and  requirements  of  the   situation.”                                      (Emphasis added)

29. In Sankaran Moitra v. Sadhna Das & Anr., AIR 2006 SC  

1599,  this Court held as under :   

“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.”  

(See also: Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel  

& Ors., AIR 2001 SC 2198).   

30. In S.B. Saha & Ors. v. M.S. Kochar, AIR 1979 SC 1841,  

this Court dealt with the issue elaborately and explained the meaning  

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of “official” as contained in the provisions of Section 197 Cr.P.C.,  

observing:

    "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……..  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   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.”         

31. In  Parkash Singh Badal & Anr. v.  State of Punjab &  

Ors., AIR 2007 SC 1274, this Court reiterated the same view while  

interpreting the phrase “official duty”, as under:     

“…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   

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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……”   

32. In  P.K.  Choudhury v.  Commander,  48  BRTF (GREF),  

(2008) 13 SCC 229, this Court dealt with the issue wherein an Army  

officer had allegedly indulged in the offence punishable under Section  

166 IPC  -  public servant disobeying law, with intent to cause injury  

to any person and Section 167 IPC - public servant framing incorrect  

document with intention to cause injury, and as to whether in such an  

eventuality sanction under Section 197 Cr.P.C.   was required.  The  

Court held as under:  

“As the offences under Sections 166 and 167 of the   Penal Code have a direct nexus with commission   of a criminal misconduct on the part of a public   servant,  indisputably  an  order  of  sanction  was   prerequisite  before  the  learned  Judicial   Magistrate  could  issue  summons  upon  the   appellant.”

The Court further rejected the contention that sanction was not  

required in view of the provisions of Sections 125 and 126 of the  

Army Act, which provided for a choice of the competent authorities  

to try an accused either by a criminal court or proceedings for court-

martial.  Section 126 provides for the power of the criminal court to  

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require  delivery  of  offender.   The  Court  held  that  in  case  the  

competent authority takes a decision that the accused was to be tried  

by ordinary criminal court, the provisions of the Cr.P.C.  would be  

applicable  including the  law  of  limitation  and  the  criminal  court  

cannot take cognizance of offence if it is barred by limitation.  In  

case, the delay is not condoned, the court will have no jurisdiction to  

take the cognizance.  Similarly, unless it is held that a sanction was  

not required to be obtained, the court’s jurisdiction will be barred.  

33. This Court in Nagraj v. State of Mysore, AIR 1964 SC 269,  

held that:

“ The last question to consider is that if the Court   comes  at  any  stage  to  the  conclusion  that  the   prosecution  could  not  have  been  instituted   without  the  sanction  of  the  Government, what  should be the procedure to be followed by it, i e.,   whether the Court  should discharge the  accused  or acquit him of the charge if framed against him  or just  drop the proceedings and pass no formal   order of discharge or acquittal as contemplated   in the case of a prosecution under the Code. The  High Court has said that when the Sessions Judge   be satisfied that the  facts proved bring the case   within the mischief of S. 132 of the Code then he  is at liberty to reject the complaint holding that it   is  barred by that section. We consider this to be   the  right  order  to  be  passed  in  those   circumstances.  It  is  not  essential  that  the  Court   must  pass  a  formal  order  discharging  or   acquitting the accused. In fact no such order can   be passed. If S. 132 applies, the complaint could   not have been instituted without the sanction of   the  Government  and  the  proceedings  on  a   complaint so instituted would be void, the Court   

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having no jurisdiction to take those proceedings.   When the proceedings be void, the Court is not   competent to pass any order except an order that   the proceedings be dropped and the complaint is   rejected.”                                   (Emphasis added)

34. In Naga People’s Movement of Human Rights v. Union of  

India, AIR 1998 SC 431, the Constitution Bench of this Court while  

dealing with the issue involved herein under the provisions of Section  

6 of the Armed Forces (Special Powers) Act, 1958,  held as under:  

“Under Section 6 protection has been given to the   persons  acting under the Central  Act and it has   been prescribed that no prosecution, suit or other   legal  proceeding  shall  be  instituted  against  any  person in respect of anything done or purported to   be done in exercise of the powers conferred by the   said Act except with the  previous sanction of the  Central  Government.  The conferment of such a  protection has been assailed on the ground that it   virtually provides immunity to persons exercising   the powers conferred under Section 4 inasmuch   as  it  extends  the  protection  also  to  “anything  purported to be done in exercise  of the powers   conferred by this Act”. It has been submitted that   adequate protection for members of armed forces   from  arrest  and  prosecution  is  contained  in   Sections  45  and  197  CrPC and that  a  separate   provision  giving  further  protection  is  not  called   for. It has also been submitted that even if sanction   for prosecution is granted, the person in question   would  be  able  to  plead  a  statutory  defence  in   criminal proceedings under Sections 76 and 79 of   the Indian Penal Code. The protection given under   Section 6 cannot, in our opinion, be regarded as   conferment  of  an  immunity  on  the  persons   exercising  the  powers  under  the  Central  Act.   Section  6  only  gives  protection  in  the  form  of   previous sanction  of the  Central  Government   before a criminal prosecution or a suit  or other   

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civil proceeding is instituted against such person.  Insofar as such protection against prosecution is   concerned,  the  provision  is  similar  to  that   contained in Section 197 CrPC which covers  an   offence  alleged  to  have  been  committed  by  a   public servant “while acting or purporting to act   in  the  discharge  of  his  official  duty”.  Section  6   only  extends  this  protection  in  the  matter  of   institution of a suit or other legal proceeding.

xx xx xx

    In order that the people may feel assured that   there is an effective check against misuse or abuse   of powers by the members of the armed forces it is   necessary  that  a  complaint  containing  an   allegation  about  misuse  or  abuse  of  the  powers   conferred  under  the  Central  Act  should  be   thoroughly  inquired  into  and,  if  it  is  found that   there  is  substance  in  the  allegation,  the  victim   should be suitably compensated by the State and   the  requisite  sanction  under  Section  6  of  the   Central  Act  should  be  granted  for  institution  of   prosecution  and/or  a  civil  suit  or  other   proceedings  against  the  person/persons   responsible for such violation.”  (Emphasis added)

35. In Jamiruddin Ansari v. Central Bureau of Investigation  

&  Anr.,  (2009)  6  SCC  316, this  Court  while  dealing  with  the  

provision of  Maharashtra  Control  of  Organised  Crime Act,  1999  

(hereinafter called as ‘MCOCA’) held that:   

 “As indicated  hereinabove,  the  provisions  of   Section 23 are the safeguards provided against the   invocation of the provisions of the Act which are   extremely  stringent  and  far  removed  from  the   provisions  of  the  general  criminal  law.  If,  as   submitted on behalf of some of the respondents, it   is accepted that a private complaint under Section   9(1) is  not  subject  to  the rigours  of  Section  23,   

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then  the  very  purpose  of  introducing  such   safeguards  lose  their  very  raison  d'être.  At  the   same time, since the filing of a private complaint is   also contemplated under Section 9(1) of MCOCA,   for it to be entertained it has also to be subject to   the rigours of Section 23. Accordingly, in view of   the bar imposed under sub-section (2) of Section   23  of  the  Act,  the  learned  Special  Judge  is   precluded  from  taking cognizance on  a  private   complaint upon a separate inquiry under Section   156(3) CrPC. The bar of Section 23(2) continues   to  remain  in  respect  of  complaints,  either  of  a   private nature or on a police report.

   In order to give a harmonious construction to   the provisions of  Section 9(1) and Section 23 of   MCOCA, upon receipt of such private complaint   the learned Special Judge has to forward the same   to the officer indicated in clause (a) of sub-section   (1) of Section 23 to have an inquiry conducted into   the  complaint  by  a  police  officer  indicated  in   clause  (b) of  sub-section (1) and only  thereafter   take cognizance of the offence complained of,  if  sanction is accorded  to the Special Court to take   cognizance of such offence under sub-section (2)  of Section 23.”                           (Emphasis added)

36. This Court in Harpal Singh v. State of Punjab,  (2007) 13  

SCC 387,  while dealing with the provision of Section 20A(2) of the  

Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter  

called ‘TADA’)  held as under:  

“The important feature  which is  to be noted is   that the prosecution did not obtain sanction of the   Inspector  General  of  Police  or  of  the   Commissioner  of  Police  for  prosecution  of  the   appellant under TADA at any stage as is required   by  Section  20-A(2)  of  TADA.  The  trial  of  the   appellant before the Designated Court proceeded   without the sanction of  the Inspector General of   

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Police or the Commissioner of Police. In absence  of previous sanction the Designated Court had no   jurisdiction to take cognizance of the offence or   to proceed with the trial of the appellant under   TADA”.                                       (Emphasis added)

37. In  Rambhai  Nathabhai  Gadhvi  &  Ors.  v.  State  of  

Gujarat, AIR 1997 SC 3475, this Court while dealing with the same  

provisions of TADA, held that:  

   “…Thus a valid sanction is sine qua non for   enabling the prosecuting agency to approach the   Court  in  order  to  enable  the  Court  to  take   cognizance  of  the  offence  under  TADA  as   disclosed  in  the  report.  The  corollary  is  that,  if   there was no valid sanction the Designated Court   gets  no  jurisdiction  to  try  a  case  against  any   person  mentioned  in  the  report  as  the  Court  is   forbidden from taking cognizance  of  the  offence   without such sanction. If the Designated Court has   taken  cognizance  of  the  offence  without  a  valid   sanction,  such action is  without jurisdiction and   any proceedings adopted thereunder will also be   without jurisdiction.”

38 In State of H.P.  v.  M.P.  Gupta,  (2004) 2 SCC 349,  this  

Court while dealing with the issue held as under:   

“Use of  the  words  “no” and  “shall”  makes  it   abundantly clear that the bar on the exercise of   power  of  the  court  to  take  cognizance  of  any   offence  is  absolute  and  complete.  The  very   cognizance  is  barred.  That  is,  the  complaint   cannot be taken notice of.”        (Emphasis added)

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39. In broad and literal sense `cognizance’ means taking notice  

of an offence as required under Section 190 Cr.P.C.  `Cognizance’  

indicates the point when the court first takes judicial notice of an  

offence. The court not only applies its mind to the contents of the  

complaint/police report,  but also proceeds in the manner as indicated  

in the subsequent provisions of  Chapter XIV  of the Cr.P.C. (Vide:  

R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and  

State of W.B.  & Anr. v.  Mohd. Khalid & Ors.,  (1995) 1 SCC  

684).  

40.        In Dr. Subramanian Swamy v. Dr. Manmohan Singh &  

Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately  

and explained the meaning of the word ‘cognizance’ as under:

“In legal parlance cognizance is ‘taking judicial   notice  by  the  court  of  law’,  possessing  jurisdiction, on a cause or matter presented before   it so as to decide whether there is any basis for   initiating  proceedings  and  determination  of  the   cause or matter judicially.”         (Emphasis added)  

(See  also:  Bhushan Kumar v.  State  (NCT  of  Delhi), (2012)  4  SCALE 191)    

41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6  

SCC 372, this Court explained the meaning of the term ‘the very  

cognizance is barred’ as that the complaint cannot be taken notice  

of  or  jurisdiction or  exercise  of  jurisdiction or  power  to  try  and  

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determine causes.   In common parlance, it means taking notice of.  

The court,  therefore, is precluded from entertaining a complaint or  

exercising jurisdiction if it is in respect of a public servant who is  

accused  of  an  offence  alleged  to  have  been  committed  during  

discharge of his official duty.

42. The relevant provisions in the Cr.P.C. read as under:

“45(1)-  Notwithstanding anything contained in Sections 41   to 44 (both inclusive), no member of the Armed Forces of   the Union shall be arrested for anything done or purported   to be done by him in the discharge of  his official duties   except  after  obtaining  the  consent  of  the  Central   Government.  

197(2)-   No  Court  shall  take  cognizance  of  any  offence   alleged  to  have  been  committed  by  any  member  of  the   Armed Forces of the Union while acting or purporting to act   in the discharge of his official duty, except with the previous   sanction of the Central Government.”  

Section  7  of  the  Act  1990,  puts  an  embargo  on  the  

complainant/investigating  agency/person  aggrieved  to  file  a  suit,  

prosecution etc. in respect of anything done or purported to be done  

by a Army personnel, in   good faith, in exercise of power conferred  

by  the  Act,  except  with the  previous  sanction  of  the  Central  

Government.     

43. Three expressions i.e. ‘except’, ‘good faith’ and ‘purported’  

contained in the aforesaid provision require clarification/elaboration.  

            (i) Except :  

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To leave or take out: exclude; omit; save

Not  including;  unless.  The  word  has  also  been  construed to mean until.

Exception  –  Act  of  excepting or  excluding from a  number designated or from a description; that which is  excepted or separated from others in a general rule of  description;  a  person,  thing,  or  case  specified  as  distinct or not included; an act of excepting, omitting  from mention or leaving out of consideration.

(ii)  Purport :

Purport means to present, especially deliberately, the  appearance of being; profess or claim, often falsely. It  means to convey, imply, signify or profess outwardly,  often falsely. In other words it means to claim (to be a  certain thing, etc.) by manner or appearance; intent to  show; to mean; to intend.

Purport also means ‘alleged’.

‘Purporting’ – When power is given to do something  ‘purporting’ to have a  certain effect,  it  will seem to  prevent objections being urged against the validity of  the act which might otherwise be raised. Thus when  validity is given to anything ‘purporting’ to be done in  pursuance of a power, a thing done under it may have  validity though done at a time when the power would  not be really exercisable. (Dicker v. Angerstein, 3 Ch  D 600)  

‘Purporting to be done’ – There must be something  in the nature of the act that attaches it to his official  character. Even if the act is not justified or authorised  by  law,  he  will  still  be  purporting  to  act  in  the  execution of his duty if he acts on a mistaken view of  it.”

So it means that something is deficient or amiss: everything is  

not as it is intended to be.

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In  Azimunnissa  and  Ors.  v.  The  Deputy  Custodian,  

Evacuee Properties, District Deoria and Ors. AIR 1961 SC 365,  

Constitution Bench of this court held:

“The word ‘purport’ has many shades of meaning. It   means  fictitious,  what  appears  on  the  face  of  the   instrument;  the apparent  and not the legal  import  and therefore  any act which purports to be done in   exercise  of  a  power  is  to  be  deemed  to  be  done   within that power notwithstanding that the power is   not exercisable…..Purporting is therefore indicative   of what appears on the face of it or is apparent even   though in law it may not be so.”       (Emphasis added)                                                

(See also: Haji Siddik Haji Umar & Ors. v. Union of India, AIR  

1983 SC 259).

(iii) GOOD FAITH:

44.     A public servant  is  under  a  moral and legal  obligation to  

perform his duty with truth, honesty, honour, loyality and faith etc.  

He is to perform his duty according to the expectation of the office  

and the nature of the post for the reason that he is to have a respectful  

obedience to the law and authority in order to accomplish the duty  

assigned to him.  Good faith has been defined in Section 3(22) of the  

General Clauses Act, 1897, to mean a thing which is, in fact, done  

honestly, whether it is done negligently or not. Anything done with  

due care and attention, which is not malafide, is presumed to have  

been done in good faith.  There should not be personal ill-will or  

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malice, no intention to malign and scandalize.  Good faith and public  

good are  though the question of fact,  it  required to  be proved by  

adducing evidence.   (Vide:  Madhavrao Narayanrao Patwardhan  

v.  Ram  Krishna  Govind  Bhanu  &  Ors., AIR  1958  SC  767;  

Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr., AIR  

1971  SC  530;  Sewakram  Sobhani  v.  R.K.  Karanjiya,  Chief  

Editor, Weekly Blitz & Ors.,  AIR 1981 SC 1514;  Vijay Kumar  

Rampal & Ors. v. Diwan Devi & Ors.,  AIR 1985 SC 1669; Deena  

(Dead) through Lrs. v. Bharat Singh (Dead) through LRs. & Ors.,  

(2002)  6  SCC  336;  and  Goondla  Venkateshwarlu  v.  State  of  

Andhra Pradesh & Anr., (2008) 9 SCC 613).

In Brijendra Singh v. State of U.P. & Ors., AIR 1981 SC  

636, this Court while dealing with the issue held:

“…..The  expression  has  several  shades  of   meanings. In the popular sense, the phrase 'in good   faith'  simply  means  "honestly,  without  fraud,   collusion,  or  deceit;  really,  actually,  without   pretence  and  without  intent  to  assist  or  act  in   furtherance  of  a  fraudulent  or  otherwise  unlawful   scheme".  (See  Words  and  Phrases,  Permanent   Edition, Vol. 18A, page 91). Although the meaning   of "good faith" may vary in the context of different   statutes,  subjects and situations,  honest intent free   from  taint  of  fraud  or  fraudulent  design,  is  a   constant  element  of  its  connotation.  Even  so,  the   quality  and  quantity  of  the  honesty  requisite  for   constituting  'good  faith'  is  conditioned  by  the   context and object of the statute in which this term is   employed. It is a cardinal canon of construction that   an expression which has no uniform, precisely fixed   

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meaning, takes its colour, light and content from the   context.”

45. For the aforesaid qualities attached to a duty one can attempt  

to decipher it from a private act which can be secret or mysterious.  

An  authorised  act  or  duty  is  official  and  is  in  connection  with  

authority.  Thus,  it  cannot  afford  to  be  something hidden or  non-

transparent unless such a duty is protected under some law like the  

Official Secrets Act.   

46.      Performance of  duty acting in  good faith either  done or  

purported to be done in the exercise of the powers conferred under  

the relevant provisions can be protected under the immunity clause or  

not, is the issue raised. The first point that has to be kept in mind is  

that such a issue raised would be dependent on the facts of each case  

and cannot be a subject matter of any hypothesis, the reason being,  

such cases relate to initiation of criminal prosecution against a public  

official who has done or has purported to do something in exercise of  

the powers conferred under a statutory provision. The facts of each  

case  are,  therefore,  necessary  to  constitute  the  ingredients  of  an  

official act. The act has to be official and not private as it has to be  

distinguished from the manner in which it has been administered or  

performed.  

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47.      Then comes the issue of such a duty being performed in good  

faith.  ‘Good faith’ means that which is founded on genuine belief  

and  commands  a  loyal  performance.  The  act  which proceeds  on  

reliable authority and accepted as truthful is said to be in good faith.  

It is the opposite of the intention to deceive. A duty performed in  

good faith is to fulfil a trust reposed in an official and which bears an  

allegiance to the superior authority. Such a duty should be honest in  

intention, and sincere in professional execution. It is on the basis of  

such an assessment that an act can be presumed to be in good faith  

for which while judging a case the entire material on record has to be  

assessed.  

48.      The allegations which are generally made are, that the act was  

not traceable to any lawful discharge of duty. That by itself would not  

be sufficient to conclude that the duty was performed in bad faith. It  

is for this reason that the immunity clause is contained in statutory  

provisions conferring powers on law enforcing authorities. This is to  

protect them on the presumption that acts performed in good faith are  

free  from malice  or  illwill.  The  immunity is  a  kind  of  freedom  

conferred  on  the  authority  in  the  form  of  an  exemption  while  

performing or discharging official duties and responsibilities. The act  

or  the  duty  so  performed  are  such  for  which  an  official  stands  

excused by reason of his office or post.  

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49.    It is for this reason that the assessment of a complaint or  

the facts necessary to grant sanction against immunity that the chain  

of events has to be looked into to find out as to whether the act is  

dutiful and in good faith and not  maliciously motivated.  It  is  the  

intention to act which is important.  

50.  A sudden decision to do something under authority or the  

purported  exercise  of  such  authority  may  not  necessarily  be  

predetermined except for the purpose for which the official proceeds  

to accomplish. For example, while conducting a raid an official may  

not have the apprehension of being attacked but while performing his  

official duty he has to face such a situation at the hands of criminals  

and unscrupulous persons. The official may in his defence perform a  

duty  which can  be  on  account  of  some  miscalculation or  wrong  

information but such a duty cannot be labelled as an act in bad faith  

unless it is demonstrated by positive material in particular that the act  

was  tainted by personal  motives and was  not  connected  with the  

discharge of any official duty. Thus, an act which may appear to be  

wrong  or  a  decision  which  may  appear  to  be  incorrect  is  not  

necessarily a malicious act or decision. The presumption of good faith  

therefore can be dislodged only by cogent and clinching material and  

so long as such a conclusion is not drawn, a duty in good faith should  

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be presumed to have been done or purported to have been done in  

exercise of the powers conferred under the statute.  

51.  There  has  to  be  material  to  attribute  or  impute  an  

unreasonable motive behind an act to take away the immunity clause.  

It  is  for  this  reason that  when the  authority empowered  to  grant  

sanction is proceeding to exercise its discretion, it has to take into  

account  the  material  facts  of  the  incident  complained  of  before  

passing an  order  of  granting sanction or  else  official  duty would  

always be in peril even if performed bonafidely and genuinely.  

52.      It is in the aforesaid background that we wish to record that  

the  protection  and  immunity granted  to  an  official  particularly in  

provisions of the Act 1990 or like Acts has to be widely construed in  

order to assess the act complained of. This would also include the  

assessment of cases like mistaken identities or an act performed on  

the basis of a genuine suspicion. We are therefore of the view that  

such immunity clauses have to be interpreted with wide discretionary  

powers to the sanctioning authority in order to uphold the official  

discharge of duties in good faith and a sanction therefore has to be  

issued only on the basis  of a  sound objective assessment and not  

otherwise.  

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53. Use of words like ‘No’ and  ‘shall’ in Section 7 of the Act  

1990 denotes the mandatory requirement of obtaining prior sanction  

of the Central Government before institution of the prosecution, suit  

or legal proceedings.  From the conjoint reading of Section 197(2)  

Cr.P.C. and Section 7 of  the Act 1990, it is clear that prior sanction  

is a condition precedent before institution of any of the aforesaid legal  

proceedings.  

54. To understand the complicacy of the issue involved herein, it  

will be useful to compare the relevant provisions of different statutes  

requiring previous sanction.  

CRIMINAL  PROCEDURE  CODE, 1973

PREVENTION  OF  CORRUPTION  ACT, 1988

ARMED FORCES  (SPECIAL  POWERS)  ACT,  1990

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.  ………………… …………………

19.  Previous  sanction  necessary   for  prosecution.- (1)  No  court  shall  take  cognizance of an offence  punishable  under  Sections  7,10,11,13  and  15 alleged to  have been  committed  by  a  public  servant,  except  with  the  previous sanction.  (a)  in  the  case  of  a  person who is employed  in  connection  with  the  affairs of the  Union and  is not removable from his  office save by or with the  sanction  of  the  Central  Government,  of  that  Government.   ……………………. …………………….

7.  Protection  to  persons  acting  under  Act.— No prosecution,  suit  or  other  legal  proceeding  shall  be  instituted,  except  with  the previous sanction of  the  Central  Government,  against  any person in respect of  anything  done  or  purported to be done in  exercise of  the  powers  conferred by this Act.  ………………… …………………

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        Thus, it is evident from the aforesaid comparative chart that  

under the provisions of Cr.P.C. and Prevention of Corruption Act, it  

is the court which is restrained to take cognizance without previous  

sanction  of  the  competent  authority.  Under  the  Act  1990,  the  

investigating agency/complainant/person  aggrieved  is  restrained  to  

institute  the criminal proceedings;  suit  or  other  legal  proceedings.  

Thus, there is a marked distinction in the statutory provisions under  

the Act 1990, which are of much wider magnitude and are required to  

be enforced strictly.  

55. 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 reasonable connection inter-

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relationship or inseparably connected with discharge of his duty, he  

becomes  entitled  for  protection  of  sanction.   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.  

56. The present case stands squarely covered by the ratio of the  

judgments of this Court in Matajog Dobey (Supra)  and Sankaran  

Moitra (Supra). Thus, we have no hesitation to hold that sanction of  

the Central Government is required in the facts and circumstances of  

the case and the court concerned lacks jurisdiction to take cognizance  

unless sanction is granted by the Central Government.

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57. The CJM Court gave option to the higher authorities of the  

Army to choose whether the trial be held by the court-martial or by  

the criminal court as required under Section 125 of the Army Act.  

Mr. P.P.  Malhotra,  learned ASG, has submitted the original file of  

the  Army Authorities  before  the  court,  File  notings  reveal  their  

decision that  in case  it  is  decided  by this  Court  that  sanction is  

required and the Central Government accords sanction, option would  

be availed at that stage.   

58. Military Authority may ask the criminal court dealing with the  

case that the accused would be tried by the court-martial in view of  

the provisions of Section 125 of the Army Act.  However, the option  

given by the Authority is not final in view of the provisions of Section  

126 of the Army Act. Criminal court having jurisdiction to try the  

offender may require  the competent  military officer  to  deliver  the  

offender to the Magistrate concerned to be proceeded according to  

law or to postpone the proceedings pending reference to the Central  

Government, if that criminal court is of the opinion that proceedings  

be instituted before itself in respect of that offence.  Thus, in case the  

criminal court makes such a request, the Military Officer either has to  

comply with it or to make a reference to the Central Govt. whose  

orders  would  be  final  with  respect  to  the  venue  of  the  trial.  

Therefore, the discretion exercised by the Military Officer is subject  

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to the control of the Central Govt.  Such matter is being governed by  

the provisions of Section 475 Cr.P.C. read with the provisions of the J  

& K Criminal Courts and court-martial (Adjustment of Jurisdiction)  

Rules, 1983.

Rule 6  of the said  Rules,  1983,  provides  that  in case  the  

accused has been handed over to the Army authorities to be tried by a  

court-martial,  the  proceedings  of  the  criminal  court  shall  remain  

stayed.  Rule 7 thereof, further provides that when an accused has  

been  delivered  by the  criminal court  to  the  Army authorities,  the  

authority  concerned  shall  inform  the  criminal  court  whether  the  

accused  has  been  tried  by  a  court-martial  or  other  effectual  

proceedings have been taken or ordered to be taken against him. If  

the Magistrate is informed that the accused has not been tried or other  

effectual proceedings have not been taken, the Magistrate shall report  

the  circumstances  to  the  State  Government  which  may,  in  

consultation with the Central Government, take appropriate steps to  

ensure that the accused person is dealt with in accordance with law.  

59. Constitution Bench of this Court in Som Datt Datta v. Union  

of India & Ors., AIR 1969 SC 414, held that option as to whether  

the accused be tried by a  criminal court or court-martial could be  

exercised  after  the  police  has  completed  the  investigation  and  

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submitted the chargesheet.  Therefore, for making such an option, the  

Army Authorities do not have to wait till the criminal court takes  

cognizance of the offence or frames the charges, which commences  

the trial.  

60. In  Delhi Special Police Establishment, New Delhi v.  Lt.  

Col.  S.K.  Loraiya,  AIR 1972 SC 2548,  a  similar view has  been  

reiterated by this Court observing that relevant Rules require that an  

option be given as to whether the accused be tried by a court-martial  

or by ordinary criminal court. The Magistrate has to give notice to the  

Commanding Officer  and is not to make any order of conviction or  

acquittal or frame charges or commit the accused until the expiry of  

7 days from the service of notice.   

61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC  

90, this Court dealt with the provisions of the Air Force Act, 1950;  

provisions  of  Cr.P.C.  and  criminal  court  and  court-martial  

(Adjustment of Jurisdiction) Rules, 1952 and reiterated the same view  

relying upon its earlier judgment in Ram Sarup v. Union of India &  

Anr., AIR 1965 SC 247, wherein it has been held that there could be  

variety of circumstances which may influence the justification as to  

whether the offender be tried by a court-martial or by criminal court,  

and therefore, it becomes inevitable that the discretion to make such a  

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choice  be  left  to  the  Military Officers.   Military Officer  is  to  be  

guided  by  considerations  of  the  exigencies  of  the  service,  

maintenance of discipline in the Army, speedier trial, the nature of the  

offence and the persons against whom the offence is committed.

62. Thus, the law on the issue is clear that under Section 125 of  

the Army Act,  the stage of making option to try an accused by a  

court-martial  and  not  by  the  criminal  court  is  after  filing of  the  

chargesheet and  before taking cognizance or framing of the charges.

63. A question has further been raised by learned counsel for the  

appellant that the Act 1990 is a special Act and Section 7 thereof,  

provides full protection to the persons who are subject to the Army  

Act from any kind of suit, prosecution and legal proceedings unless  

the sanction of the Central Government is obtained . Thus, in such a  

fact-situation,  even  if  the  Commanding  Officer  exercises  his  

discretion and opts  that  the accused would be  tried by the court-

martial, the proceedings of court-martial cannot be taken unless the  

Central Government accords sanction.   

64. Learned counsel for the CBI and interveners have opposed  

the submission contending that in case the accused are tried in the  

court-martial, sanction is not required at all.   The provisions of the  

Act 1990 would apply in consonance with the provisions of the Army  

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Act. Section 7 of the Act 1990 does not contain non-obstante clause.  

Therefore, once the option is made that accused is to be tried by a  

court-martial, further proceedings would be in accordance with the  

provisions  of  Section  70  of  the  Army Act  and  for  that  purpose,  

sanction of the Central Government is not required.  The court-martial  

has  been defined under Section 3(VII)  of the Army Act which is  

definitely  different  from  the  suit  and  prosecution  as  explained  

hereinabove, and has not been referred to in the Act 1990.    

65. Undoubtedly,  the  court-martial  proceedings  are  akin  to  

criminal prosecution and this fact has been dealt with elaborately by  

this Court in  Union of India & Ors.  v.  Major A. Hussain,  AIR  

1998 SC 577.  However, once the matter stands transferred to the  

Army for conducting a court-martial, the court-martial has to be as  

per the provisions of the Army Act. The Army Act does not provide  

for sanction of the Central Government.   Thus, we do not find any  

force  in  the  contention  raised  by  the  appellant  and  the  same  is  

rejected.  

66. Sum up:

(i) The conjoint reading of the relevant statutory provisions and  

rules make it clear that the term “institution” contained in  

Section 7 of the Act 1990 means taking cognizance of the  

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offence and not mere presentation of the chargesheet by the  

investigating agency.  

(ii) The  competent  Army  Authority  has  to  exercise  his  

discretion to opt as to whether the trial would be by a court-

martial or criminal court after filing of the chargesheet and  

not after the cognizance of the offence is taken by the court.

(iii) Facts  of  this  case  require  sanction  of  the  Central  

Government to proceed with the criminal prosecution/trial.

(iv) In case option is made to try the accused by a court-martial,  

sanction of the Central Government is not required.  

67. In view of the above, the appeals stand disposed of with the  

following directions:

I. The competent authority in the Army shall take a decision  

within a period of eight weeks from today as to whether the  

trial would be by the criminal court or by a court-martial and  

communicate  the  same  to  the  Chief  Judicial  Magistrate  

concerned immediately thereafter.

II. In case the option is made to try the case by a court-martial,  

the  said  proceedings  would  commence  immediately  and  

would  be  concluded  strictly  in  accordance  with  law  

expeditiously.  

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III. In case the option is made that the accused would be tried by  

the criminal court, the CBI shall make an application to the  

Central Government for grant of sanction within four weeks  

from  the  receipt  of  such  option  and  in  case  such  an  

application is filed, the Central Government shall take a final  

decision  on  the  said  application  within  a  period  of  three  

months from the date of receipt of such an application.

IV. In case sanction is granted by the Central Government, the  

criminal court shall proceed with the trial and conclude the  

same expeditiously.                                                    

  ………..…………..……..J. (Dr. B.S. CHAUHAN)

…….…………………..…J. (SWATANTER KUMAR)

New Delhi, May 1, 2012

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