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CASE NO.: Appeal (crl.)  691 of 2003

PETITIONER: Romesh Lal Jain                                                  

RESPONDENT: Naginder Singh Rana & Ors.                                       

DATE OF JUDGMENT: 28/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: JUDGMENT

S.B. SINHA, J :

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

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

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Inspector General of Police, Jallandhar Range, issued an order of sanction on  or about 04.02.1999, which is in the following terms :

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

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

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

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

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

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

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

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"\005Under these circumstances, the time bound directions  of learned Special Judge deserve to be set aside.   Therefore, the direction given in the impugned order is  hereby quashed.  The investigating agency shall be at  liberty to continue the investigation and proceed in  accordance with law."  

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

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

       "Three consequences flow from other order dated  23.07.2001 passed in Criminal Revision No.515 of 2000.  Firstly, the time-bound directions given by the Special  Judge, Faridkot, in order dated 18.04.2000 to the  Investigating Officer to submit final report within a  period of one month, were set aside; secondly, the  impugned order had also the effect of setting aside the  observations of the Special Judge to the effect that the  Deputy Inspector General of Police is the authority  competent to grant sanction, being the punishing  Authority for prosecution of petitioner-accused and that  the Department of Home, Punjab, Chandigarh, had  nothing to do with the sanction for that reason, it could  not be cancelled, and thirdly, the Investigating Agency  was given liberty to continue with the investigation and  proceed in accordance with law\005"     

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

       The complainant is, thus, in appeal before us.  

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

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

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competent authority to grant or refuse sanction for their prosecution.

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

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

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

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

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

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"No.3124-211 (1)-83/7773 \026 In exercise of the powers  conferred by sub-section (3) of Section 197 Code of  Criminal Procedure, 1973 (Central Act 2 of 1974), the  Governor of Punjab is pleased that the provisions of sub- section (2) of the said Section shall apply to serving  police officials of all ranks of the Punjab Police force  charged with the maintenance of Public Order."  

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

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

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

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

"Now it is obvious that if Section 197 of the Code of  Criminal Procedure is construed too narrowly it can  never be applied, for of course it is no part of an official’s  duty to commit an offence and never can be. But it is not  the duty we have to examine so much as the act, because  an official act can be performed in the discharge of  official duty as well as in dereliction of it. The section  has content and its language must be given meaning.  What it says is\027

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

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

Now an offence seldom consists of a single act. It  is usually composed of several elements and, as a rule, a  whole series of acts must be proved before it can be  established. In the present case, the elements alleged  against the second accused are, first, that there was an  "entrustment" and/or "dominion"; second, that the  entrustment and/or dominion was "in his capacity as a  public servant"; third, that there was a "disposal"; and  fourth, that the disposal was "dishonest". Now it is  evident that the entrustment and/ or dominion here were  in an official capacity, and it is equally evident that there  could in this case be no disposal, lawful or otherwise,  save by an act done or purporting to be done in an  official capacity. Therefore, the act complained of,  namely the disposal, could not have been done in any  other way. If it was innocent, it was an official act; if

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dishonest, it was the dishonest doing of an official act,  but in either event the act was official because the second  accused could not dispose of the goods save by the doing  of an official act, namely officially permitting their  disposal; and that he did. He actually permitted their  release and purported to do it in an official capacity, and  apart from the fact that he did not pretend to act  privately, there was no other way in which he could have  done it. Therefore, whatever the intention or motive  behind the act may have been, the physical part of it  remained unaltered, so if it was official in the one case it  was equally official in the other, and the only difference  would lie in the intention with which it was done: in the  one event, it would be done in the discharge of an official  duty and in the other, in the purported discharge of it."

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

In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau  of Investigation [(2001) 6 SCC 704], a three-Judge Bench of this Court upon  noticing Shreekantiah Ramayya Munipalli (supra) and Matajog Dobey  (supra) laid down the law in the following terms :   "Thus, from a conspectus of the aforesaid  decisions, it will be clear that for claiming protection  under Section 197 of the Code, it has to be shown by the  accused that there is reasonable connection between the  act complained of and the discharge of official duty. An  official act can be performed in the discharge of official  duty as well as in dereliction of it. For invoking  protection under Section 197 of the Code, the acts of the  accused complained of must be such that the same cannot  be separated from the discharge of official duty, but if  there was no reasonable connection between them and  the performance of those duties, the official status  furnishes only the occasion or opportunity for the acts,  then no sanction would be required. If the case as put  forward by the prosecution fails or the defence  establishes that the act purported to be done is in  discharge of duty, the proceedings will have to be  dropped. It is well settled that question of sanction under  Section 197 of the Code can be raised any time after the  cognizance; maybe immediately after cognizance or  framing of charge or even at the time of conclusion of  trial and after conviction as well. But there may be  certain cases where it may not be possible to decide the  question effectively without giving opportunity to the  defence to establish that what he did was in discharge of  official duty. In order to come to the conclusion whether  claim of the accused that the act that he did was in course  of the performance of his duty was a reasonable one and  neither pretended nor fanciful, can be examined during  the course of trial by giving opportunity to the defence to  establish it. In such an eventuality, the question of  sanction should be left open to be decided in the main  judgment which may be delivered upon conclusion of the  trial."

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

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

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

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

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

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

A Bench of this Court, however,  in State of Orissa through Kumar  Raghvendra Singh and Others vs Ganesh Chandra Jew  [(2004) 8 SCC 40],  wherein an allegation was made against six officers of the Orissa Forest  Department that they had falsely implicated the complainant for offences  punishable under the Orissa Forest Act and  the Wild Life (Protection) Act,  1972, and being not content with the said illegal acts, they seriously  assaulted him and thereby committed offences punishable under Sections  341, 323, 325, 506 and 386 read with Section 34 IPC, was of the opinion : "Use of the expression "official duty" implies that the act  or omission must have been done by the public servant in  the course of his service and that it should have been in  discharge of his duty. The section does not extend its

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protective cover to every act or omission done by a  public servant in service but restricts its scope of  operation to only those acts or omissions which are done  by a public servant in discharge of official duty.

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

"The offence alleged to have been committed  (by the accused) must have something to do, or  must be related in some manner, with the  discharge of official duty. \005 There must be a reasonable connection between  the act and the discharge of official duty; the act  must bear such relation to the duty that the accused  could lay a reasonable (claim), but not a pretended  or fanciful claim, that he did it in the course of the  performance of his duty."

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

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

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

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

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

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

Slightly differing tests have been laid down in the  decided cases to ascertain the scope and the meaning of  the relevant words occurring in Section 197 of the Code;  "any offence alleged to have been committed by him  while acting or purporting to act in the discharge of his  official duty". But the difference is only in language and  not in substance. The offence alleged to have been  committed must have something to do, or must be related  in some manner with the discharge of official duty. No  question of sanction can arise under Section 197, unless  the act complained of is an offence; the only point to  determine is whether it was committed in the discharge  of official duty. There must be a reasonable connection  between the act and the official duty. It does not matter  even if the act exceeds what is strictly necessary for the  discharge of the duty, as this question will arise only at a  later stage when the trial proceeds on the merits. What  we must find out is whether the act and the official duty  are so inter-related that one can postulate reasonably that  it was done by the accused in the performance of the  official duty, though possibly in excess of the needs and  requirements of the situation."

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

In Om Prakash Gupta vs State of U.P.[1957 SCR 423], another  Constitution Bench of this Court distinguished offences punishable under the

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1988 Act and the Criminal Breach Trust, stating :

"\005These two offences can co-exist and the one will not  be considered  as overlapping the other.  A course of  conduct can be proved when a person is arraigned under  ss.5(1)(a) and 5(1)(b), but such a course is impossible to  be let in evidence when an offence under ss. 161 and 162  is being enquired into or tried.  Similarly there are a  number of elements which can be proved in an inquiry or  trial under s. 5(1)(c) that cannot be let in by the  prosecution when a person is charged for an offence  under s. 405 of the Indian Penal Code.  In s. 405 of the  Indian Penal Code the offender must willfully  suffer  another person to misappropriate the property entrusted,  but in s. 5(1)(c) if he allows another person to dishonestly  or fraudulently misappropriate or otherwise convert for  his own use any property so entrusted, then it is an  offence.  There is a vast difference between willfully  suffering another and allowing a person to do a particular  thing and in our view the word "allows" is much wider in  its import.   Wilfully pre-supposes  a conscious action,  while even by negligence one can allow another to do a  thing.

       It seems to us, therefore, that the two offences are  distinct and separate\005" In Manohar Nath Kaul vs. State of Jammu & Kashmir  [(1983) 3 SCC  429], this Court was of the opinion that cheating by drawing T.A. does not  answer the test of connection between the act in the discharge of official  duty and the performance of the official duty and, thus, sanction for  prosecution under Section 420 I.P.C. was not required.

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

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

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furnished them with an opportunity or occasion to  commit the alleged criminal act."

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

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

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

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

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

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

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

The said question was answered in the following terms :

"Coming to the second question, it is now well  settled by the Constitution Bench decision of this Court  in Matajog Dobey v. H.C. Bhari that in the matter of  grant of sanction under Section 197 of the Code of  Criminal Procedure the offence alleged to have been  committed by the accused must have something to do, or  must be related in some manner, with the discharge of  official duty. In other words, there must be a reasonable  connection between the act and the discharge of official  duty; the act must bear such relation to the duty that the  accused could lay a reasonable claim, but not a pretended

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or fanciful claim, that he did it in the course of the  performance of his duty. In the said case it had been  further held that where a power is conferred or a duty  imposed by statute or otherwise, and there is nothing said  expressly inhibiting the exercise of the power or the  performance of the duty by any limitations or restrictions,  it is reasonable to hold that it carries with it the power of  doing all such acts or employing such means as are  reasonably necessary for such execution, because it is a  rule that when the law commands a thing to be done, it  authorises the performance of whatever may be necessary  for executing its command\005"  

The said decision, therefore, has no application in the facts and  circumstances of this case.   

In Harihar Prasad (supra),  it was held :   

"The real question therefore is whether the acts  complained of in the present case were directly  concerned with the official duties of the three public  servants. As far as the offence of criminal conspiracy  punishable under Section 120-B, read with Section 409  of the Indian Penal Code is concerned and also Section  5(2) of the Prevention of Corruption Act, are concerned  they cannot be said to be of the nature mentioned in  Section 197 of the Code of Criminal Procedure. To put it  shortly, it is no part of the duty of a public servant, while  discharging his official duties, to enter into a criminal  conspiracy or to indulge in criminal misconduct\005"  

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

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

The contention of Mr. Tulsi that the order dated 23.05.1998 attained  finality and, thus, at a later stage a view could have been taken that obtaining  of any sanction was not necessary, is fallacious.  In the said order dated  23.05.1998, the Special Judge did not say that the sanction would be  necessary in terms of Section 197 Cr. P.C.  In his order dated 23.05.1998 ,  the learned Judge clarified that obtaining of sanction was necessary from the

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Sanctioning Authority/Punishing Authority which would obviously refer to  the necessity of an order of sanction under the 1988 Act.  We, therefore, do  not find any inherent contradiction in the said orders.  The High Court was  not also correct in coming to the conclusion that the earlier order of the High  Court passed on 23.07.2001 resulted in three consequences.  By reason of  the said order, as noticed supra, only that portion of the order of the learned  Special Judge whereby a direction was issued to complete the investigation   within one month was quashed and not the entire order.        

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

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

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

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

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

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

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

Having regard to the facts and circumstances of the case and keeping

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

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

The appeal is allowed.  No costs.