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CASE NO.: Appeal (crl.)  339 of 1997 Appeal (crl.)  351 of 1997

PETITIONER: State of H.P.                                            

RESPONDENT: M.P.Gupta                                                        

DATE OF JUDGMENT: 09/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.                  These two appeals are interlinked as the point involved revolves  round the scope and ambit of Section 197 of the Code of Criminal  Procedure, 1973 (for short the ’Code’). The Himachal Pradesh High Court  by the impugned judgment held that in the absence of requisite sanction  in terms of Section 197 of the Code proceedings initiated against the  respondent (hereinafter referred to as the ’Accused’) cannot proceed.  Two proceedings were initiated against the accused, one was for alleged  commission of offences punishable under Section 120-B, Section 420 read  with Section 511 of the Indian Penal Code, 1860 (for short the ’IPC’),  Section 5(2) (1) (d) of the Prevention of Corruption Act, 1947 (for  short the ’Old Act’) corresponding to Section 13(1)(d) of the Prevention  of Corruption Act, 1988 (for short the ’New Act’).  The Special Judge  (Forests), Shimla, directed the accused to be charged accordingly by his  order dated 5.8.1995.  In the other case charges were framed against the  accused on 15.11.1995 for the offence punishable under Section 467, 468,  471, 420, 120-B IPC and Section 5(2) (1) (d) of the Old Act  corresponding to Section 13 (1)(d) of the New Act.  

Sheaving out unnecessary details, the accusations leading to the  framing of charges are as under:-

The Controller of Stores, Himachal Pradesh had approved a rate  contract for the purchase of galvanized steel barbed wires for fencing  at the ex factory rate of Rs.8400/- per M.T.  This rate contract was  valid up to the period ending 30.9.1985.  No rate contract was approved  in respect of this item for the period beginning 1.10.1985. On  20.10.1985, the Chief Sales Officer and the Executive Officer of H.P.  Agro Industries Corporation wrote two identical letters to the Chief  Conservator of Forests (T), Himachal Pradesh offering to supply barbed  wire/GI wire and U staples to the forest department.  The rates quoted  were Rs.10,500/- per M.T. for barbed wire (Hot dip) and Rs.10,000/- per  M.T. for electroplated barbed wire. A request was made to the Chief  Conservator of Forests to direct all the field officers working under  his control to buy their requirements of the above-mentioned items by  placing their supply orders with the H.P. Agro Industries Corporation.   The petitioner, who was then the Chief Conservator of Forests, on  30.10.1985 issued a circular letter to all the Conservator of Forests  working under him advising them to work out their requirements of GI and  barbed wires and in the absence of a rate contract to place orders for  the supply thereof with the H.P. Agro Industries Corporation, who had  offered to make the necessary supply of both these items immediately.   Consequent upon such instructions having been issued by the petitioner,  various forests circles placed the supply orders to the extent of about  1200 M.T. of barbed wire with the H.P. Agro Industries Corporation

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within a period of less than one month.  All these orders were booked  through M/s. Gupta Pipes, Industrial Area, Dharampur, District Solan,  who had been appointed as the booking agent by the H.P. Agro Industries  Corporation on 25.10.1985 for the purpose of procuring the supply orders  from various indenting officers. The H.P. Agro Industries Corporation,  vide its letter dated 6.11.1985 had intimated to all Conservators of  Forest in Himachal Pradesh about the firm M/s. Gupta Pipes having been  appointed as their authorized booking agent.  They were also intimated  that a representative of the said firm would be visiting their offices  for collecting the necessary supply orders for and on behalf of the H.P.  Agro Industries Corporation.

In the meanwhile, some of the local units manufacturing barbed  wires submitted a complaint to the Minister of State for Forests  complaining against the procurement of barbed wire by the forest  department from the H.P. Agro Industries Corporation in violation of the  normal procedure and without obtaining the requisite non-availability  certificate from the Controller of Stores. It was also complained that  the sources adopted by the H.P. Agro Industries Corporation for  procuring the barbed wire for supply to the forest department were from  the units located at Dharampur.  This complaint was forwarded by the  Minister to the accused in his capacity as Chief Conservator of Forests  on 20.11.1985 for his comments. The Additional Controller of Stores on  26.11.1985 also took an objection to the purchases having been effected  by the forest department from the H.P. Agro Industries Corporation  without obtaining the requisite non-availability certificate from the  Controller of Stores.  It was also suggested that the supply orders  already placed with the said Corporation may be cancelled forthwith.   Some reports also appeared in the press alleging serious irregularities  in the purchase of barbed wire by the forest department. Instructions  were also issued by the State Government through its Secretary in the  forest department to all the Conservator of Forests in Himachal Pradesh  to cancel all the supply orders in respect of barbed wire/GI wire placed  with the H.P. Agro Industries Corporation.  Consequently, against the  supply order of 1200 M.T. placed with H.P. Agro Industries Corporation,  supply of only 17.64 M.T. was actually effected through the Corporation,  before the cancellation could be intimated to the suppliers.

An enquiry committee was appointed by the State Government.  The  then Divisional Commissioner who conducted the enquiry reported that  apparent irregularities were committed with the apparent intention to  help M/s. Gupta Pipes.  Acting on the recommendations of the Divisional  Commissioner, cases for alleged commission of offences as noted supra  were registered with the Enforcement Branch, South Lane, Simla.  One of  the cases was instituted on the basis of informations which surfaced  during investigation.  At the time of framing charge, legality of the  proceedings was questioned by the accused.  It is to be noted that  sanction was accorded on 13.6.1990 which though was stated to be  unnecessary and inconsequential by the State, in view of its specific  stand that Section 197 of the Code has no application.      

Accused took the stand that the absence of sanctions as  contemplated under Section 197 of the Code and Section 6 of the Old Act  (corresponding to Section 19 of the New Act) the proceedings were  nonest. The trial Judge negatived the stand. Accused moved the High  Court for interference. By the impugned judgments dated 5.6.1996 in  Criminal Revision Nos. 105 and 106 of 1995 learned Single Judge of the  High Court held that the charge framed against the accused for the  offence under Sections 467, 468 and 471 IPC were to be set aside and  quashed.  The charge in respect of other offences, namely, Sections 420,  120-B IPC and under the Old Act read with the New Act were to be  continued.  However, no opinion was expressed about validity of sanction  dated 13.6.1990.   

In support of the appeals, learned counsel for the appellant-State

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submitted that the scope and ambit of Section 197 has been misconstrued  by the High Court.  Per contra, learned counsel for the accused  submitted that the alleged acts were a part of the official duties and,  therefore, a sanction was mandatory for the purpose of proceeding in the  matter and in the absence thereof at the threshold the proceedings were  not maintainable. Strong reliance was placed on certain observations of  this Court in  Shreekantiah Ramayya Munipalli v. The State of Bombay  (1955 (1) SCR 1177) and Amrik Singh v. The State of Pepsu  (1955 (1) SCR  1302).   

The pivotal issue needs careful consideration. In Bakhshish Singh  Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while  emphasizing on the balance between protection to the officers and the  protection to the citizens observed as follows:-                                                                                                                 "It is necessary to protect the public  servants in the discharge of their duties. In the  facts and circumstances of each case protection of  public officers and public servants functioning in  discharge of official duties and protection of  private citizens have to be balanced by finding out  as to what extent and how far is a public servant  working in discharge of his duties or purported  discharge of his duties, and whether the public  servant has exceeded his limit. It is true that s.  196 states that no cognizance can be taken and even  after cognizance having been taken if facts come to  light that the acts complained of were done in the  discharge of the official duties then the trial may  have to be stayed unless sanction is obtained. But at  the same time it has to be emphasised that criminal  trials should not be stayed in all cases at the  preliminary stage because that will cause great  damage to the evidence."

The protection given under Section 197 is to protect responsible  public servants against the institution of possibly vexatious criminal  proceedings for offences alleged to have been committed by them while  they are acting or purporting to act as public servants. The policy of  the legislature is to afford adequate protection to public servants to  ensure that they are not prosecuted for anything done by them in the  discharge of their official duties without reasonable cause, and if  sanction is granted, to confer on the Government, if they choose to  exercise it, complete control of the prosecution.  This protection has  certain limits and is available only when the alleged act done by the  public servant is reasonably connected with the discharge of his  official duty and is not merely a cloak for doing the objectionable act.   If in doing his official duty, he acted in excess of his duty, but there  is a reasonable connection between the act and the performance of the  official duty, the excess will not be a sufficient ground to deprive the  public servant from the protection.  The question is not as to the  nature of the offence such as whether the alleged offence contained an  element necessarily dependent upon the offender being a public servant,  but whether it was committed by a public servant acting or purporting to  act as such in the discharge of his official capacity. Before Section  197 can be invoked, it must be shown that the official concerned was  accused of an offence alleged to have been committed by him while acting  or purporting to act in the discharge of his official duties.  It is not  the duty which requires examination so much as the act, because the  official act can be performed both in the discharge of the official duty  as well as in dereliction of it.  The act must fall within the scope and  range of the official duties of the public servant concerned.  It is the  quality of the act which is important and the protection of this section

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is available if the act falls within the scope and range of his official  duty.  There cannot be any universal rule to determine whether there is  a reasonable connection between the act done and the official duty, nor  is it possible to lay down any such rule.  One safe and sure test in  this regard would be to consider if the omission or neglect on the part  of the public servant to commit the act complained of could have made  him answerable for a charge of dereliction of his official duty, if the  answer to his question is in the affirmative, it may be said that such  act was committed by the public servant while acting in the discharge of  his official duty and there was every connection with the act complained  of and the official duty of the public servant. This aspect makes it  clear that the concept of Section 197 does not get immediately attracted  on institution of the complaint case.  

At this juncture, we may refer to P. Arulswami v. State of Madras  (AIR 1967 SC 776), wherein this Court held as under: "... It is not therefore every offence committed by a  public servant that requires sanction for prosecution  under Section 197(1) of the Criminal Procedure Code;  nor even every act done by him while he is actually  engaged in the performance of his official duties;  but if the act complained of is directly concerned  with his official duties so that, if questioned, it  could be claimed to have been done by virtue of the  office, then sanction would be necessary. It is  quality of the act that is important and if it falls  within the scope and range of his official duties the  protection contemplated by Section 197 of the  Criminal Procedure Code will be attracted. An offence  may be entirely unconnected with the official duty as  such or it may be committed within the scope of the  official duty. Where it is unconnected with the  official duty there can be no protection. It is only  when it is either within the scope of the official  duty or in excess of it that the protection is  claimable."  

Prior to examining if the Courts below committed any error of law  in discharging the accused it may not be out of place to examine the  nature of power exercised by the Court under Section 197 of the Code and  the extent of protection it affords to public servant, who apart, from  various hazards in discharge of their duties, in absence of a provision  like the one may be exposed to vexatious prosecutions. Section 197(1)  and (2) of the Code reads as under :  "197. (1) When any person who is or was a Judge or  Magistrate or a public servant not removable from his  office save by or with the sanction of the Government  is accused of any offence alleged to have been  committed by him while acting or purporting to act in  the discharge of his official duty, no Court shall  take cognizance of such offence except with the  previous sanction -  (a) in the case of 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.  

*               *                     * (2) No Court shall take cognizance of any offence  alleged to have been committed by any member of the  Armed Forces of the Union while acting or purporting

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to act in the discharge of his official duty, except  with the previous sanction of the Central  Government."  The section falls in the chapter dealing with conditions requisite for  initiation of proceedings. That is if the conditions mentioned are not  made out or are absent then no prosecution can be set in motion. For  instance no prosecution can be initiated in a Court of Sessions under  Section 193, as it cannot take cognizance, as a court of original  jurisdiction, of any offence unless the case has been committed to it by  a Magistrate or the Code expressly provides for it. And the jurisdiction  of a Magistrate to take cognizance of any offence is provided by Section  190 of the Code, either on receipt of a complaint, or upon a police  report or upon information received from any person other than police  officer, or upon his knowledge that such offence has been committed. So  far public servants are concerned the cognizance of any offence, by any  court, is barred by Section 197 of the Code unless sanction is obtained  from the appropriate authority, if the offence, alleged to have been  committed, was in discharge of the official duty. The section not only  specifies the persons to whom the protection is afforded but it also  specifies the conditions and circumstances in which it shall be  available and the effect in law if the conditions are satisfied. The  mandatory character of the protection afforded to a public servant is  brought out by the expression, ’no court shall take cognizance of such  offence except with the previous sanction’. Use of the words, ’no’ and  ’shall’ make it abundantly clear that the bar on the exercise power of  the court to take cognizance of any offence is absolute and complete.  Very cognizance is barred. That is the complaint cannot be taken notice  of. According to Black’s Law Dictionary the word ’cognizance’ means  ’jurisdiction’ or ’the exercise of jurisdiction’ or ’power to try and  determine causes’. In common parlance it means taking notice of. A  court, therefore, is precluded from entertaining a complaint or taking  notice of it or exercising jurisdiction if it is in respect of a public  servant who is accused of an offence alleged to have committed during  discharge of his official duty. Such being the nature of the provision the question is how should  the expression, ’any offence alleged to have been committed by him while  acting or purporting to act in the discharge of his official duty’, be  understood? What does it mean? ’Official’ according to dictionary, means  pertaining to an office, and official act or official duty means an act  or duty done by an officer in his official capacity. In B. Saha and Ors.  v. M. S. Kochar (1979 (4) SCC 177) it was held : (SCC pp. 184-85, para  17)  "The words ’any offence alleged to have been committed  by him while acting or purporting to act in the  discharge of his official duty’ employed in Section  197(1) of the Code, are capable of a narrow as well as  a wide interpretation. If these words are construed  too narrowly, the section will be rendered altogether  sterile, for, ’it is no part of an official duty to  commit an offence, and never can be’. In the wider  sense, these words will take under their umbrella  every act constituting an offence, committed in the  course of the same transaction in which the official  duty is performed or purports to be performed. The  right approach to the import of these words lies  between two extremes. While on the one hand, it is not  every offence committed by a public servant while  engaged in the performance of his official duty, which  is entitled to the protection of Section 197 (1), an  Act constituting an offence, directly and reasonably  connected with his official duty will require sanction  for prosecution and the said provision."  

Use of the expression, ’official duty’ implies that the act or omission  must have been done by the public in the course of his service and that

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

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 official to which  applicability of Section 197 of the Code cannot be disputed.  In S.A. Venkataraman v. The State (AIR 1958 SC 107) and in C. R.  Bansi v. The State of Maharashtra (1970 (3) SCC 537) this Court has held  that :  "There is nothing in the words used in Section 6(1)  to even remotely suggest that previous sanction was  necessary before a court could take cognizance of the  offences mentioned therein in the case of a person  who had ceased to be a public servant at the time the  court was asked to take cognizance, although he had  been such a person at the time the offence was  committed."  

       The above position was illuminatingly highlighted in State of  Maharashtra v. Dr. Budhikota Subbarao (1993 (3) SCC 339). When the newly-worded section appeared in the Code (Section 197)  with the words "when any person who is or was a public servant" (as  against the truncated expression in the corresponding provision of the  old Code of Criminal Procedure, 1898) a contention was raised before  this Court in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411)

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that the legal position must be treated as changed even in regard to  offences under the Old Act and New Act also. The said contention was,  however, repelled by this Court wherein a two-Judge Bench has held thus  :  "A public servant who committed an offence mentioned  in the Act, while he was a public servant, can be  prosecuted with the sanction contemplated in Section  19 of the Act if he continues to be a public servant  when the court takes cognizance of the offence. But  if he ceases to be a public servant by that time, the  court can take cognizance of the offence without any  such sanction." The correct legal position, therefore, is that an accused facing  prosecution for offences under the Old Act or New Act cannot claim any  immunity on the ground of want of sanction, if he ceased to be a public  servant on the date when the court took cognizance of the said offences.  But the position is different in cases where Section 197 of the Code has  application.          Section 197(1) provides that when any person who is or was 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 on purporting to act in the discharge  of his official duty, no Court shall take cognizance of such offence  except with the previous sanction (a) in 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 and (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.          We may mention that the Law Commission in its 41st Report in  paragraph 15.123 while dealing with Section 197, as it then stood,  observed "it appears to us that protection under the section is needed  as much after retirement of the public servant as before retirement. The  protection afforded by the section would be rendered illusory if it were  open to a private person harbouring a grievance to wait until the public  servant ceased to hold his official position, and then to lodge a  complaint. The ultimate justification for the protection conferred by  Section 197 is the public interest in seeing that official acts do not  lead to needless or vexatious prosecution. It should be left to the  Government to determine from that point of view the question of the  expediency of prosecuting any public servant". It was in pursuance of  this observation that the expression ’was’ come to be employed after the  expression ’is’ to make the sanction applicable even in cases where a  retired public servant is sought to be prosecuted.  Above position was highlighted in R. Balakrishna Pillai v. State  of Kerala (AIR 1996 SC 901).  That apart, the contention of the respondent that for offences  under Sections 406 and 409 read with Section 120-B of 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 Munnipalli’s case (supra) and also  Amrik Singh’s case (supra) 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, etc. v. State of Bihar (1972 (3)  SCC 89) as follows :  "As far as the offence of criminal conspiracy  punishable under Section 120-B, read with Section  409, Indian Penal Code is concerned and also Section  5(2) of the Prevention of Corruption Act is  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

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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."  

       Above views are reiterated in State of Kerala v. Padmanabhan Nair  (1999 (5) SCC 690). Both Amrik Singh (supra) and Shreekantiah (supra)  were noted in that case. Sections 467, 468 and 471 IPC relate to forgery  of valuable security, Will etc; forgery for 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.

       It was submitted by learned counsel for the accused-respondent  that essential ingredients of the aforesaid offences are absent.  That  was not the issue before either the trial Court or the High Court.  It  is, therefore, unnecessary for us to delve into that question.      

       Above being the legal position which is fairly well settled, the  High Court’s view cannot be maintained on the facts of the case.  The  impugned judgments are set aside. We make it clear that our interference  shall not be construed as if we have expressed any opinion on the merits  of the case.

       Appeals are allowed to the extent indicated.