2009 (8 )  SCR 85 STATE OF U.P.

v. PARAS NATH SINGH

(Criminal Appeal No. 499 of 2004) MAY 5, 2009

[DR. ARIJIT PASAYAT, D. K. JAIN AND DR.  MUKUNDAKAM SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order passed  by a learned Single Judge of the Allahabad High Court dismissing the appeal  

filed by the appellant-State. The Criminal Misc. Case was filed seeking grant of  

leave  to  prefer  an  appeal  against  the  judgment  and  order  dated  19.4.2007  

passed  by  V  Additional  Sessions  Judge,  Sitapur,  whereby  the  accused-

respondent was directed to be acquitted of the charges relatable to Sections 409  

and 468 of the Indian, Penal Code, 1860 (in short ‘IPC’). The only factor which  

weighed with the High Court in refusing grant of leave to appeal was that the  

person who granted sanction for initiation of the criminal proceedings was not the  

authority to do so. It is to be noted that the trial in this case was held by learned  

Chief Judicial Magistrate, Sitapur. The accused faced trial for alleged commission  

of offence punishable under Sections 409, 420, 461 and 468 IPC. The trial court  

held that the accused was guilty of offence punishable under Sections 409 and  

468 IPC. In appeal, learned V Additional Sessions Judge, Sitapur, allowed the  

appeal  primarily  on  three  grounds.  Firstly,  it  was  held  that  the  person  who  

accorded sanction was not authorised to do so. Secondly, it was observed that in  

view of the provisions contained under Sections 218, 219 and 220 of the Code of  

Criminal Procedure, 1973 (in short 'Code') charges could not have been framed  

in respect of the transaction for more than one year and, therefore, because of  

the framing of wrong charges the accused was entitled to acquittal. Finally, it was  

observed  that  appropriate  questions  were  not  put  while  the  accused  was  

examined under Section 313 of the Code. In this context the Appellate Court

referred  to  the  question  of  sanction  by  the  inappropriate  authority.  As  noted  

above, the High Court referred to only the question of authority of the person  

granting sanction.

2. Learned counsel for the appellant submitted that no part of the alleged  

offence is protected under Section 197 of the Code, and the effect of Section 464  

of the Code has to be seen.

3. Prior to examining whether 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.

xxx xxx xxx

(2) No Court shall  take cognizance of any offence alleged to have  

been committed by any member of the Armed Forces of the Union  

while acting or purporting to act in the discharge of his official duty,  

except with the previous sanction of the Central Government.”

4.  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  into  motion.  For  instance  no  

prosecution can be initiated in a Court 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  as  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 of 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.

5. 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.”

6. 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 it should have  

been in discharge of his duty. The Section does not extend its protective cover to  

every act or mission 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.

7. 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."

8. 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 the act must be held as official to which applicability of Section 197 of  

the Code cannot be disputed.

9. 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."

10.  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 S.R. Munnipalli v. Bombay  

(1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu (1955 RD-SC 9) 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  

120-8,  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 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."

11.  Above views are reiterated in  State  of  Kerala  v.  Padmanabhan Nair   

(1999 (5) SCC 690). Both Amrik Singh (supra) and S.R. Munnipalli (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.

12. This position was highlighted in  State of H.P. v. M.P. Gupta  (2004 (2)  

SCC 349).

13. The error in charge also does not vitiate the order. Finally, it is submitted  

that the question relating to Section 313 of the Code loses significance when  

considered in the background as to whether there was any need for sanction.

14. Apparently the first Appellate Court and the High Court have not kept this  

aspect in view.

15. Further so far as the alleged error in framing the charge is concerned the  

effect, of Section 464 of the Code has not been considered. The same reads as  

follows:

(1) No finding sentence or order by a Court of competent jurisdiction  

shall be deemed invalid merely on the ground that no charge was framed or  

on the ground of any error, omission or irregularity in the charge including  

any misjoinder  of  charge,  unless,  in  the  opinion  of  the  Court  of  appeal,  

confirmation  or  revision,  a  failure  of  justice  has  in  fact  been  occasioned  

thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a  

failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge order that a charge be  

framed and that the trial be recommended from the point immediately after  

the framing of the charge.

(b) in the case of an error, omission of irregularity in the charge, direct  

a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are  

such that no valid charge could be preferred against the accused in respect  

of the facts proved, it shall quash the conviction.

16. As the provision itself mandates that no finding sanction or order by a  

court of competent jurisdiction becomes invalid unless it is so that a failure of  

justice has in fact been occasioned because of any error omission or irregularlity  

in the charge including in misjoinder of charge.  

17. Obviously, the burden is on the accused to show that in fact failure of  

justice has been occasioned. We set aside the impugned order of the High Court  

and direct that leave to appeal shall be granted and the appeal shall be heard on  

merits. We make it clear that we have not expressed any opinion on the merits of  

the case which shall be decided in the appeal before the High Court.

18. The appeal is allowed.