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“REPORTABLE” IN THE SUPREME COURT OF INDIA

     CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.565 OF 2016

(Arising out of SLP(Crl.)No.3406 of 2008)

SURINDERJIT SINGH MAND & ANR.                     .......APPELLANTS VERSUS

STATE OF PUNJAB & ANR.                           .......RESPONDENTS                                                    

J U D G M E N T Jagdish Singh Khehar, J.

1. Leave granted.

2. Surinderjit Singh Mand and P.S. Parmar, the appellants before this  Court, while  holding the  rank of  Deputy Superintendent  of Police, were posted in District Kapurthala, in the State of Punjab, during the relevant period in 1999. Piara Lal (holding the rank of Assistant Sub-Inspector), was also posted at Kapurthala, at the same time.  The above mentioned Piara Lal’s son - Neeraj Kumar was officially arrested on 28.06.1999.  The arrest of Neeraj Kumar, was made in furtherance of a First Information Report bearing No.30, which  was  registered  at  Police  Station  City,  Kapurthala  on 03.03.1999. Before the arrest of Neeraj Kumar, his father Piara Lal was  placed  under  suspension  on  10.06.1999.   The  aforesaid  FIR No.30,  we  were  informed,  was  in  respect  of  complaints  made  by residents of Kapurthala, pertaining to theft of motorcycles and other vehicles in the city.  

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3. It  was  pointed  out,  that  while  investigating  into  the allegations  contained  in  the  complaint  dated  03.03.1999,  three persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj Kumar was granted bail on 30.06.1999. In the above view of the matter, it is apparent that Neeraj Kumar had remained in jail for just about two/three days (from 28.06.1999 to 30.06.1999).  Usha Rani - mother of Neeraj Kumar (detained during the investigation of FIR No. 30), filed a representation asserting, that her son had been detained on 24.06.1999 (and not on 28.06.1999, as alleged). That would make the duration of his arrest as of six/seven days. The present controversy pertains to the additional four/five days of the arrest of Neeraj Kumar.  Her complaint highlighted, that her son – Neeraj Kumar was apprehended illegally and unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for four/five days.

4. Investigation  into  the  complaint  made  by  Usha  Rani,  was directed to be conducted in the first instance, by Munish Chawla, IPS.  In the report submitted by him, it was concluded, that the charge  levelled  by  the  mother  of  Neeraj  Kumar,  could  not  be substantiated. Yet again, based on the accusations levelled by Usha Rani,  another  investigation  was  ordered.   This  time,  it  was required to be conducted by M.F. Farooqi, IPS.  Yet again, in the second enquiry, it was concluded, that there was no material to establish  that  Neeraj  Kumar  had  been  in  police  detention  from 24.06.1999 onwards, till his formal arrest on 28.06.1999. Despite the two reports submitted by two senior police officers, wherein it was found that there was no substance in the allegations levelled

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by Usha Rani, Gurpreet Deo, IPS, at her own, investigated into the matter. She too arrived at the same conclusion, that there was no substance  in  the  claim  of  Usha  Rani,  that  her  son  had  been illegally and unauthorisedly detained by police personnel, prior to his formal arrest on 28.06.1999.

5. Usha  Rani  (mother  of  Neeraj  Kumar)  made  another  written complaint, this time to the Hon'ble Administrative Judge (a sitting Judge  of  the  Punjab  and  Haryana  High  Court)  having  charge  of Sessions Division, Kapurthala, on 01.10.1999.  In her complaint, she  reiterated,  that  her  son  Neeraj  Kumar  had  been  illegally detained  by  police  personnel,  on  24.06.1999.   The  Hon'ble Administrative Judge marked the complaint, dated 01.10.1999, to an Additional  District  and  Sessions  Judge,  posted  in  the  Sessions Division of Kapurthala, requiring him to look into the matter. On 25.09.2000, the concerned Additional District and Sessions Judge, Kapurthala, submitted a report concluding, that Neeraj Kumar had been falsely implicated, because he and some other accused had been discharged by a Court, from the proceedings initiated against them. Based on the aforesaid report dated 25.09.2000, First Information Report bearing No.46, came to be registered at Police Station City Kapurthala, on 22.10.2002.

6. After  completion  of  police  investigation  in  the  above  FIR No.46, a chargesheet was filed against six police officials, in the Court of the Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Before the aforesaid chargesheet was filed, the prosecution had

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obtained  sanction  under  Section  197  of  the  Code  of  Criminal Procedure (hereinafter referred to as, the ‘Code’) for prosecuting the  six  concerned  police  officials.   It  is  also  relevant  to mention, that it was the express contention of the appellants, that on  the  conclusion  of  investigation,  no  involvement  of  the appellants had emerged, and therefore, their names were recorded in Column No.2.  It was submitted, that the aforesaid depiction of the names  of the  appellants in  Column No.2  by itself,  demonstrates their innocence (with reference to the allegations made by Usha Rani, that her son Neeraj Kumar had been illegally detained from 24.06.1999).

7. It is not a matter of dispute, that after the statements of three prosecution witnesses were recorded by the trial Court, Usha Rani moved an application under Section 319 of the ‘Code’ before the trial Judge – the Chief Judicial Magistrate, Kapurthala, for taking cognizance against the appellants herein.  The aforesaid application  was  allowed  by  the  trial  Court,  on  06.09.2003. Thereupon,  the  appellants  were  summoned  by  the  Chief  Judicial Magistrate, Kapurthala, to face trial.  The appellants contested their summoning before the trial Court by asserting, that their prosecution was unsustainable in law, because no sanction had been obtained by the prosecution under Section 197 of the ‘Code’, before cognizance was taken against them.

8. Consequent upon the appellants having been summoned by the trial Court, charges were framed against them on 23.12.2006.  The

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order  passed  by  the  trial  Court  framing  charges  against  the appellants on 23.12.2006 was assailed by the appellants, through Criminal Revision No.348 of 2007. The primary submission advanced on behalf of the appellants before the High Court was, that the Chief  Judicial  Magistrate,  Kapurthala,  could  not  have  proceeded against  them, in  the absence  of sanction  of prosecution,  under Section 197 of the ‘Code’. The High Court, by its order dated 09.01.2008,  dismissed  the  Criminal  Revision  filed  by  the appellants. The above order dated 09.01.2008 is subject matter of challenge through the instant appeal.

9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf of the appellants, in order to support the claim of the appellants, has drawn our attention to Section 197 of the ‘Code’, which is extracted hereunder:

“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  (save  as otherwise  provided  in  the  Lokpal  and  Lokayuktas  Act, 2013)-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged  offence  employed,  in  connection  with  the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged  offence  employed,  in  connection  with  the affairs of a State, of the State Government:   Provided that where the alleged offence was committed by  a person  referred to  in clause  (b) during  the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a

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Reliance was finally placed on P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704, and our attention was drawn, to the following observations recorded therein:  

“5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the  discharge  of  his  official  duty  and  such  public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the  court  itself. It  is  a  prohibition  imposed  by  the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his  official  duty."  The  offence  alleged  to  have  been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination  is  whether  it  was  committed  in  the discharge of official duty.  There must be a reasonable connection between the act and the official duty. It does not  matter  even  if  the  act  exceeds  what  is  strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter-related that one  can  postulate  reasonably  that  it  was  done  by  the accused  in  the  performance  of  official  duty,  though, possibly  in  excess  of  the  needs  and  requirements  of situation.

XXX XXX XXX 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

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status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put  forward  by  the  prosecution  fails  or  the  defence establishes  that  the  act  purported  to  be  done  is  in discharge  of  duty,  the  proceedings  will  have  to  be dropped.  It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial  and  after  conviction  as  well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence  to  establish  it.  In  such  an  eventuality,  the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.”

(emphasis is ours)

All  in  all,  based  on  the  judgments  referred  to  above,  it  was contended, that even if it was assumed that Neeraj Kumar had been detained  with  effect  from  24.06.1999,  his  detention  by  the appellants was “while acting or purporting to act” in the discharge of  the  appellants’  official  duties.   And  as  such,  the  Chief Judicial Magistrate, Kapurthala, could not have taken cognizance, without sanction under Section 197 of the ‘Code’.

11. Mr. Varinder S. Rana, learned counsel, who entered appearance on behalf of respondent no. 2, seriously contested the submissions advanced on behalf of the appellants.  Learned counsel representing respondent no. 2, placed reliance on the following observations recorded by the High Court, in the impugned order :

“As far as question of sanction for prosecution of

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petitioners  is  concerned,  the  contentions  raised  by learned  counsel  for  the  petitioners  could  possibly  be applicable for the detention period since 28.06.1999 when Neeraj Kumar was shown to have been arrested in FIR No.30 dated  03.03.1999.  However,  the  petitioners  are  not entitled to protection of Section 197 of the Code for illegal  detention  and  torture  of  Neeraj  Kumar  since 24.06.1999 till 28.06.1999 when his arrest was shown in FIR No.30 dated 03.03.1999. The said period of illegal detention and torture has no nexus much less reasonable nexus with the discharge or purported discharge of the official  duty  of  the  petitioners.   Consequently,  the impugned  order  cannot  be  said  to  be  illegal  because sanction  for  prosecution  of  the  petitioners  is  not required  for  illegal  detention  and  torture  of  Neeraj Kumar during the aforesaid period.”

  (emphasis is ours) In  order  to  support  the  conclusions  drawn  by  the  High  Court, learned counsel for respondent no. 2, also drew our attention to, Om Prakash vs. State of Jharkhand, (2012) 12 SCC 72, wherein this Court held as under :

“32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would  be  whether  the  act  complained  of  was  directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected  with  or  attached  to  his  office  as  to  be inseparable from it (K. Satwant Singh v. State of Punjab, AIR 1960 SC 266). The protection given under Section 197 of the Code 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 (State of Orissa vs. Ganesh Chandra Jew, (2004) 8 SCC 40). If the above tests are applied to the facts of the present case, the police must get protection given  under  Section  197  of  the  Code  because  the  acts complained  of  are  so  integrally  connected  with  or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by  the  police  personnel  in  this  case  as  a  cloak  for killing the deceased in cold blood.”

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(emphasis is ours) Reliance  was  then  placed  on  Usharani  vs.  The  Commissioner  of Police, (2015) 2 KarLJ 511 (a judgment rendered by the Karnataka High  Court), to  highlight  the  importance  and  significance  of personal liberty, specially with reference to unlawful detention wherein it has been observed as under:    

“10.  In  Constitutional  and  Administrative  Law  by  Hood Phillips and Jackson, it is stated thus:  “The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise  their  functions  properly.  The  practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant’s claim for freedom  has  been  asserted  frequently  by  judies  and writers.  Nonetheless,  the   effectiveness  of  the  remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness  of  the  Courts  to  examine  the  legality  of decision  made  in  reliance  on  wideranging  statutory provision. It has been suggested that the need for the “blunt remedy’ of habeas corpus has diminished as judicial review  has  developed  into  an  ever  more  flexible jurisdiction.  Procedural  reform  of  the  writ  may  be appropriate,  but  it  is  important  not  to  lose  sight  of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae.”  11. The ancient prerogative writ of habeas corpus takes its  name  from  the  two  mandatory  words  “habeas”  and “corpus”. ‘Habeas Corpus’ literally means ‘have his body’. The general purpose of these writs as their name indicates was to obtain the production of the individual before a Court  or  a  Judge.  This  is  a  prerogative  process  for securing  the  liberty  of  the  subject  by  affording  an effective  relief  of  immediate  release  from  unlawful  or unjustifiable detention, whether in prison or in private custody.  This  is  a  writ  of  such  a  sovereign  and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals  but  also  of  the  Executive,  the  greatest

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safeguard  for  personal  liberty,  according  to  all constitutional  jurists.  The  writ  is  a  prerogative  one obtainable  by  its  own  procedure.  In  England,  the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus is as of right and that the Court has no discretion to refuse it.  “Unlike  certiorari  or  mandamus,  a  writ  of  habeas corpus is as of right “to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution of India.”

 (emphasis is ours) 12. The first task, which a Court is obliged to embark upon, when confronted  with  a  proposition  of  the  nature  in  hand,  is  to ascertain  as  to  whether  the  alleged  offence,  attributed  to  the accused,  had  been  committed  by  an  accused  “while  acting  or purporting to act in the discharge of his official duty”.  In the facts and circumstances of the present case, the alleged action constituting the allegations levelled against the appellants, is based on the arrest and detention of Neeraj Kumar from 24.06.1999 upto  28.06.1999  (before,  he  was  admitted  to  have  been  formally arrested on 28.06.1999).

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13. Insofar  as  the  power  of  arrest  and  detention  by  police officials/officers is concerned, reference may be made to Section 36  of  the  ‘Code’  which  postulates,  that  all  police  officers superior in rank to an officer in charge of a police station, are vested with an authority to exercise the same powers (throughout the  local  area,  to  which  they  are  appointed),  which  can  be exercised by the officer in charge of a police station.  Section 49 of the ‘Code’ postulates, the manner in which a police officer is to act, while taking an individual in custody. Section 49 of the ‘Code’, cautions the person making the arrest to ensure, that the individual taken into custody, is not subjected to more restraint than is necessary, to prevent his escape.  Section 50 of the ‘Code’ mandates, that every police officer arresting a person without a warrant  (as  is  the  position,  alleged  in  the  present  case),  is mandated to forthwith disclose to the person taken in custody, full particulars of the offence for which he is arrested, as also, the grounds for such arrest.  Section 50A obliges the police officer making the arrest, to immediately inform friends/relatives of the arrested  person  (on  obtaining  particulars  from  the  arrested person), regarding his detention.  And an entry of the arrest, and the communication of the information of the arrest to the person nominated  by  the  detenu,  has  to  be  recorded  in  a  register maintained at the police station, for the said purpose. Section 50A of the ‘Code’ also mandates, that the Magistrate before whom such an  arrested  person  is  produced,  would  satisfy  himself  that  the obligations to be discharged by the arresting officer, had been

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complied with.  

14. Based on the aforesaid provisions of the ‘Code’, there cannot be any serious doubt about the fact, that Surinderjit Singh Mand and P.S. Parmar, were holding the rank of Deputy Superintendent of Police, at the relevant time (from 24.06.199 to 28.06.1999).  Both the appellants were “...officers superior in rank to an officer in charge of a police station...”.  Both the appellants were therefore possessed with the authority to detain and arrest, Neeraj Kumar at the relevant time (from 24.06.1999 to 28.06.1999).  The question for complying with the requirements in Sections 49, 50 and 50A does not  arise  for  the  period  under  reference  (from  24.06.1999  to 28.06.1999),  because  Neeraj  Kumar  according  to  official  police records, was arrested only on 28.06.1999.  The position adopted by the appellants was, that Neeraj Kumar was not under detention for the period from 24.06.1999 to 28.06.1999.  

15. Keeping the legal position emerging from the provisions of the ‘Code’ referred to in the foregoing paragraphs in mind, it was the contention of learned counsel for the respondents, that in order to require sanction under Section 197 of the ‘Code’, it needs to be further established, that the appellants had acted in the manner provided for under the provisions of the ‘Code’, during the period Neeraj  Kumar  was  allegedly  arrested  (from  24.06.1999  to 28.06.1999), i.e., before his admitted formal arrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction under  Section  197  would  arise,  because  in  that  situation,  the

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offence allegedly committed would be taken to have been committed “while  acting  or  purporting  to  act  in  the  discharge  of  their official duties”.  In the present case, the arrest and detention of Neeraj  Kumar  from  24.06.1999  to  28.06.1999,  is  denied.   The formalities postulated under the ‘Code’, on the alleged arrest of Neeraj Kumar on 24.06.1999, were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrested on that date.  It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true, was obviously without following the mandatory conditions of arrest and detention, contemplated under the provisions (referred to above).  And therefore, would not fall within the realm of “acting or purporting to act in the discharge of their official duties”.

16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel for the respondents placed reliance on P.P. Unnikrishnan vs. Puttiyottil Alikutty, (2000) 8 SCC 131, and invited  our  attention  to  the  following  observations  recorded therein:

“21. If a police officer dealing with law and order duty uses  force  against  unruly  persons,  either  in  his  own defence or in defence of others and exceeds such right it may amount to an  offence.  But  such  offence   might fall   within      the amplitude  of  Section       197  of  the Code as well as  Section 64(3) of the KP  Act.  But if a police officer assaults a prisoner  inside  a lock-up he cannot  claim  such  act   to   be  connected  with  the discharge  of  his  authority  or  exercise  of  his   duty unless  he  establishes  that  he  did  such  acts  in  his defence  or  in  defence  of  others  or  any  property. Similarly, if  a  police  officer wrongfully confines a person  in the lock-up      beyond  a  period  of  24  hours without the sanction of a Magistrate or an order of a court it would be an  offence for  which  he cannot claim

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any protection  in     the normal course,     nor  can  he  claim that such act was done in exercise of his official  duty. A  policeman  keeping  a  person in the lock-up for  more than 24 hours without authority is not merely abusing his duty but his act would be quite  outside the contours of his duty or authority.”

(emphasis is ours) Based on the provisions of the ‘Code’, pertaining to arrest and detention of individuals at the hands of police personnel (referred to above), it was submitted, that the arrest of Neeraj Kumar from 28.06.1999  to  30.06.1999  would  unquestionably  fall  within  the purview of “acting or purporting to act in the discharge of his official duties” (of the concerned police officers/officials who arrested Neeraj Kumar). It was however asserted, that if the arrest of  Neeraj  Kumar  from  24.06.1999  to  28.06.1999  (before  he  was formally detained on 28.06.1999) is found to be factually correct, such arrest of Neeraj Kumar cannot be accepted to have been made by the  appellants  –  Surinderjit  Singh  Mand  and  P.S.Parmar,  while acting or purporting to act in the discharge of their official duties. It was therefore submitted, that any alleged criminality, in connection with the detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, would not require to be sanctioned under Section 197, before the concerned Court, took cognizance of the matter, against the concerned public servants.

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17. Having given our thoughtful consideration to the contention advanced at the hands of learned counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P. Unnikrishnan case (supra) is clear and emphatic. The same does not leave any room for making any choice. It is apparent, that the official arrest of Neeraj Kumar in terms of the provisions of the ‘Code’, referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made “while acting or purporting to act in the discharge of their official duties”.  The factual position expressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999.  His detention during the above period, if true, in our considered view, would certainly not emerge from the action of the accused while acting or purporting to act in the discharge of their official duties.   If  it  emerges  from  evidence  adduced  before  the  trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while acting or purporting to act in the discharge of their official duties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jail during the period from 24.06.1999 to 28.06.1999.  If they had not detained him during the above period, it is not open to anyone to assume the position, that the detention of Neeraj Kumar, during the above period, was while acting or purporting to act in the discharge of their official duties.  Therefore, in the peculiar

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facts and circumstances of this case, based on the legal position declared by this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from  24.06.1999  to  28.06.1999,  would  not  be  required,  before  a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest of Neeraj Kumar.  We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect.   

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18. It  was  also  the  contention  of  learned  counsel  for  the appellants, that the protection afforded to public servants under Section  197  of  the  ‘Code’,  postulating  sanction  prior  to prosecution, on account of the acts committed while discharging their official duties, is to shield public servants from frivolous harassment of prosecution, at the hands of private individuals. It was  therefore,  the  submission  of  learned  counsel  for  the respondents,  that  the  scope  and  purview  of  Section  197  of  the ‘Code’, should be limited to the initiation of criminal proceedings under  Chapter-XIV  of  the  ‘Code’,  wherein  such  initiation  is postulated under Section 190 (upon receipt of a complaint, wherein facts  disclose  the  commission  of  an  offence,  or  upon  a  police report of such facts, or upon information received from any person other than a police officer, that such offence had been committed). In all the above situations, it is open to a Magistrate to take cognizance of such offence subject to the condition, that the same falls within the jurisdictional competence of the said Magistrate. The  Magistrate  would  however  proceed  against  a  public  servant, after sanction has been granted by the concerned Government.  And in  case,  the  same  does  not  fall  within  the  competence  of  a Magistrate, to commit it to a Court of Session, which can take cognizance of the same, as provided for by Section 193 of the ‘Code’.  Whereupon, the Court to which the matter is committed may proceed against a public servant, after sanction has been granted by the concerned Government under Section 197 of the ‘Code’. In emphasizing on the above scope of sanction, it was pointed out,

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that Section 197 of the ‘Code’ being a part of Chapter-XIV of the ‘Code’,  its  applicability  would  extend  to  the  provisions  under Chapter-XIV  alone.   It  was  submitted,  that  Section  319  of  the ‘Code’ is contained in Chapter XXIV, over which Section 197 can have no bearing.

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19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by learned counsel representing the respondents, that the prosecution contemplated under Section 197 of the  ‘Code’,  and  the  action  of  the  Court  in  taking  cognizance, pertain  to  actions  initiated  on  the  basis  of  complaints,  which disclose the commission of an offence, or on a police report of such facts, or upon receipt of information from a person other than the police officer, that such offence had been committed.  It was asserted, that the above action of taking cognizance by a Court, is based on alleged “facts” and not “on evidence” recorded by a Court. The above distinction was drawn by referring to Section 190 of the ‘Code’  which  contemplates  initiation  of  action  on  the  basis  of facts alleged against an accused, as against, Section 319 of the ‘Code’ whereunder action is triggered against the concerned person only if it appears from the evidence recorded during the trial, that the said person was involved in the commission of an offence. While making a reference to Section 319 of the ‘Code’, it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the ‘Code’, was by the Court itself, and therefore, the same having been based on “evidence”, as also, the satisfaction of the Court itself, that such person needed to be tried together with the “other accused”, it seemed unreasonable, that sanction postulated  under  Section  197  of  the  ‘Code’  should  still  be required.  It  was  pointed  out,  that  the  protection  contemplated under Section 197 of the ‘Code’, was not a prerequisite necessity, when cognizance was based on the evaluation of “evidence” by a

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Court itself.  Learned counsel emphasized, that when a Court itself had determined, that cognizance was required to be taken, based on evidence which had been recorded by the same Court, it would be undermining the authority of the concerned Court, if its judicial determination, was considered subservient to the decision taken by the  authorities  contemplated  under  Section  197  of  the  ‘Code’. Based  on  the  submissions  noticed  above,  it  was  the  vehement contention of learned counsel for the respondents, that the mandate of Section 197 would not extend to cases where cognizance had been taken under Section 319 of the ‘Code’.

20. While  dealing  with  the  first  contention,  we  have  already recorded our conclusions, which are sufficient to dispose of the matter under consideration.  But, an important legal proposition has been canvassed, as the second submission, on behalf of the respondents (which we have recorded in the foregoing paragraph). Since it squarely arises in the facts and circumstances of this case, we consider it our bounden duty, to render our determination thereon, as well.  In the succeeding paragraphs, we will deal with the second contention.

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21. Insofar  as  the  second  contention  advanced  at  the  hands  of learned counsel for the respondents is concerned, we are of the view  that  there  is  sufficient  existing  precedent,  to  draw  a conclusion in respect of the proposition canvassed. Reference in the first instance may be made to Dilawar Singh vs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709.  The following observations in the above cited judgment are of relevance to the present issue:

“2. It is necessary to mention the basic facts giving rise to the present appeals. On the complaint made by the wife, a case was registered against Parvinder Singh @ Iqbal Singh under Section 406/498-A IPC. On 27.1.2000 Parvinder Singh @ Iqbal Singh gave a complaint to the SSP, Barnala alleging that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his house on a scooter and forcibly took him to the Police Station Barnala. He was beaten and tortured and was subjected to third-degree methods. Some of his relatives, namely, Jarnail Singh, Sukhdev Singh, Sadhu Singh Grewal and Sukhdev Singh Virk came  to  the  police  station  and  requested  the  police personnel not to beat or torture him. It was further alleged in the complaint that Jasbir Singh, ASI, told them that they should talk to Dilawar Singh, S.H.O., who was  sitting  there  on  a  chair.    Dilawar  Singh  then demanded an amount of Rs.20,000/- for releasing Parvinder Singh.  His  relations  then  brought  the  amount,  out  of which Rs.15,000/- was offered to Dilawar Singh but he said that the money may be handed over to ASI Jasbir Singh.  The amount of Rs.15,000/- was then given to ASI Jasbir Singh, who kept the same in the pocket of his coat.   Parvinder  Singh  was  medically  examined  on 28.1.2000 and a case was registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred  to  as  "the  Act").  After  investigation, charge-sheet was submitted only against ASI Jasbir Singh. A closure report was submitted against Dilawar Singh, S.H.O. as in the opinion of the investigating officer he had not committed any offence. It may be mentioned here that  for  prosecution  of  ASI  Jasbir  Singh,  necessary sanction had been obtained from the competent authority under Section 19 of the Act.  After the statement of the complainant Parvinder Singh had been recorded, he moved an application under Section 319 Cr.P.C. for summoning Dilawar Singh, S.H.O. as a co-accused in the case.  After hearing the counsel for the parties, the learned Special Judge  dismissed  the  application  by  the  order  dated

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7.1.2002.   Parvinder  Singh  filed  a  revision  petition against the aforesaid order which has been allowed by the High Court by the impugned order dated 3.7.2002 and a direction has been issued to summon Dilawar Singh and try him in accordance with law.

XXX XXX XXX 4.  In  our  opinion,  the  contention  raised  by  the learned  counsel  for  the  appellant  is  well  founded. Sub-section  (1)  of  Section  19  of  the  Act,  which  is relevant for the controversy in dispute, reads as under :

"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; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction  of  the  State  Government,  of  that Government; (c) in the case of any other person, of the authority  competent  to  remove  him  from  his office."

This section creates a complete bar on the power of the Court to 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 of the competent authority enumerated in clauses (a) to (c) of this sub-section.  If the sub-section is read as a whole, it will clearly show that the sanction for  prosecution  has  to  be  granted  with  respect  to  a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if  sanction  for  prosecution  has  been  granted  qua  one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.   5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was examining the scope of Section 6(1) of the

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Prevention  of  Corruption  Act,  1947,  which  is  almost similar to sub-section (1) of Section 19 of the Act. After  quoting  the  provisions  of  Section  6(1)  of  the Prevention of Corruption Act, 1947, it was held as under in para 5 of the Report: (SCC pp. 552-53)

"5.     From a plain reading of the above section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority.  In enacting the above section,  the  legislature  thought  of  providing  a reasonable  protection  to  public  servants  in  the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions."

6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution of the accused  for  an  offence  under  Section  5(1)(d)  of  the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1) (a) of the Prevention of Corruption Act, 1947, as no sanction  had  been  granted  with  regard  to  the  said offence, but the accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision.   7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was held that in the absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This  being  the  settled  position  of  law,  the impugned order of the High Court directing summoning of the  appellant  and  proceeding  against  him  along  with Jasbir Singh, ASI is clearly erroneous in law.

 (emphasis is ours) The above issue was also examined by this Court in Paul Varghese vs. State of Kerala, (2007) 14 SCC 783, wherein this Court observed as under :

“2. Challenge in this appeal is to the order passed by a learned Single Judge of the Kerala High Court allowing the revision filed by the Respondent 2 in the present appeal who was the petitioner before the High Court.  He had questioned correctness of the order passed by the Inquiry  Commissioner  and  Special  Judge,  Trichoor,  by

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which the prayer for his impleadment as the accused in terms of Section 319 of the Code of Criminal Procedure, 1973 (in short “the Code”) was accepted.  By the said order the Trial Court had held that Section 319 of the Code  overrides  the  provisions  of  Section  19  of  the Prevention of Corruption Act, 1988 (in short “the Act”) and for exercise of power under the former provision, the only conditions required to be fulfilled are set out in sub-section (4) of Section 319 itself.  The High Court felt that the view was not sustainable in view of what has  been  stated  by  this  Court  in  Dilawar  Singh  v. Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC 709). Accordingly, the order was set aside.

XXX XXX XXX 4.      As has been rightly held by the High Court in view of what has been stated in Dilawar Singh's case (supra), the Trial Court was not justified in holding that Section 319  of  the  Code  has  to  get  preference/primacy  over Section  19  of  the  Act,  and  that  matter  stands concluded.....”

   (emphasis is ours) Last of all, reference may be made to a recent decision of this Court in Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64. For the issue under reference, the following observations recorded in the above judgment are relevant:

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“74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the  case  may  be,  has  accorded  sanction,  virtually imposes  fetters  on  private  citizens  and  also  on prosecutors  from  approaching  Court  against  corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to  protect  corrupt  officials.  These  provisions  being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. 75. Therefore, in every case where an application is  made  to  an  appropriate  authority  for  grant  of prosecution  in  connection  with  an  offence  under  the P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue  without  being  influenced  by  any  extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice  is  advanced.  In  considering  the  question  of granting or refusing such sanction, the authority is answerable  to  law  and  law  alone.  Therefore,  the requirement  to  take  the  decision  with  a  reasonable dispatch is of the essence in such a situation. Delay in  granting  sanction  proposal  thwarts  a  very  valid social purpose, namely, the purpose of a speedy trial with  the  requirement  to  bring  the  culprit  to  book. Therefore, in this case the right of the sanctioning authority,  while  either  sanctioning  or  refusing  to grant sanction, is coupled with a duty.”

  (emphasis is ours) 22. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt, that under Section 197 of the ‘Code’ and/or sanction mandated under a special statute  (as  postulated  under  Section  19  of  the  Prevention  of

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Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under  the  Indian  Penal  Code,  or  under  the  concerned  special statutory enactment).  The procedure for obtaining sanction would be governed by the provisions of the ‘Code’ and/or as mandated under the special enactment.  The words engaged in Section 197 of the ‘Code’ are, “...no court shall take cognizance of such offence except with previous sanction...”.  Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides, “No Court shall take cognizance.. except with the previous sanction...”.  The mandate is clear and unambiguous, that a Court “shall not” take cognizance  without  sanction.   The  same  needs  no  further elaboration.   Therefore,  a  Court  just  cannot  take  cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’  (or  under  the  concerned  special  enactment)  is  not  a mandatory pre-requisite.

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23. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the ‘Code’, is subservient to the decision of the competent authority under Section 197.  No, not at all.  The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review.  Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution.

24. For  the  reasons  recorded  hereinabove,  and  in  view  of  the conclusions recorded by us in paragraph 17, we are of the view that

there is no merit in the instant appeal and the same deserves to be dismissed.  Ordered accordingly.

                 ..........................J.           (JAGDISH SINGH KHEHAR)

                 ..........................J.

         (C.NAGAPPAN) NEW DELHI; JULY 05, 2016.

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ITEM NO.1A               COURT NO.3               SECTION IIB

              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).565/2016 @ SLP(Crl.) No.3406/2008 SURINDERJIT SINGH MAND & ANR.                      Appellant(s)                                 VERSUS STATE OF PUNJAB & ANR.                             Respondent(s) [HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE C.NAGAPPAN, JJ.]

Date : 05/07/2016 This appeal was called on for pronouncement of          judgment today.

For Appellant(s) Mr. Yash Pal Dhingra,Adv.                       For Respondent(s) Mr. Kuldip Singh,Adv.                     

Mr. Rajat Sharma, Adv. for Mr. Subhasish Bhowmick,AOR

                 Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the

judgment  of  the  Bench  comprising  His  Lordship  and  Hon'ble  Mr. Justice C. Nagappan.

For  the  reasons  recorded  in  the  Reportable  judgment, which is placed on the file, the appeal is dismissed.

(Renuka Sadana) (Parveen Kumar)  Court Master    AR-cum-PS