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CASE NO.: Appeal (crl.)  469 of 2005

PETITIONER: K. Kalimuthu

RESPONDENT: State by D.S.P.

DATE OF JUDGMENT: 30/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) No.1770 of 2004)

        WITH

CRIMINAL APPEAL NO. 470/2005 (Arising out of SLP(Crl.)No.2926/2004)

WITH

CRIMINAL APPEAL NO.471/2005 (Arising out of SLP(Crl.)No.681/2005)

ARIJIT PASAYAT, J.

       Leave granted.

       All these appeals involve identical question of law and are,  therefore, taken up together.  In each of these cases, on the  allegation that the appellant was guilty of various offences under the  Indian Penal Code, 1860 (in short the ’IPC’) and Section 5(2) read with  Section 5(1)(d) of the Prevention of Corruption Act, 1947 (in short the  ’Act’), information was lodged, investigation was undertaken and on  completion of investigation, charge sheet was filed. The appellant in  each case filed petition before the Principal Special Judge for CBI  cases, Chennai, contending that in the absence of requisite sanction  under Section 197 of the Code of Criminal Procedure, 1973 (in short the  ’Code’) it was beyond jurisdiction of the Court to take cognizance of  the alleged offences.  The stand taken in the petitions was that the  alleged acts were directly and reasonably connected with official duty  and since there was a direct nexus and relationship between the  discharge of his alleged act and the official duties and because of the  absence of requisite sanction as contemplated under Section 197 of the  Code, cognizance could not have been taken.  The plea found favour with  the concerned court in the matter of K. Kalimuthu.  The State  questioned correctness of the judgment by filing revision taking the  stand that Section 197 of the Code has no application to the facts of  the case. The plea was accepted by the High Court, which is the subject  matter of challenge in the appeal relatable to SLP (Crl.) No.  1770/2004. But the plea was not accepted by the concerned court in the  other two cases to which the appeals arise out of SLP (Crl.) Nos.  2926/2004 and 681/2005. In these cases High Court rejected the plea  raised by the concerned appellants about protections available under  Section 197 of the Code.

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       In all the three cases the High Court took the view that the  person claiming protection under Section 197 of the Code has to show  that there is a reasonable connection between the act complained of and  the discharge of official duty.  Accordingly, the order passed by the  Special Judge for CBI cases, in favour of accused-appellant in the  appeal relating to SLP(Crl.) No. 1770/2004, was set aside and in other  two cases view adopted by the Special Judge for CBI cases was  maintained and the applications filed by the appellants - S.  Chandramohan and N. Chandrasekaran  were dismissed.

       In support of the appeals, learned counsel for the appellants  submitted that the High Court failed to notice the true scope and ambit  of Section 197 of the Code.  There was unmistakable link between the  act alleged and the official duties and, therefore, Section 197 of the  Code was clearly applicable.   

In response, Mr. P.P. Malhotra, learned Additional Solicitor  General for the prosecution took the stand that the High Court kept in  view the law as laid down by this Court in various cases and rightly  held that the protection under Section 197 of the Code was not  available to the accused persons.

The pivotal issue i.e. applicability of Section 197 of the Code  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 Section 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

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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 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."  

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;

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(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  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 of power by 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

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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  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 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 (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.          

       The above position was highlighted in State of H.P. v. M.P. Gupta  (2004 (2) SCC 349), State of orissa through Kumar Raghvendra Singh &  Ors. v. Ganesh Chandra jew (JT 2004(4) SC 52) and in Shri S.K. Zutshi  and Anr. v.  Shri Bimal Debnath and Anr. (JT 2004(6) SC 323).

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       In P.K. Pradhan v. State of Sikkim (2001 (6) SCC 704) it has,  inter alia, held as follows:

       "The legislative mandate engrafted in sub- section (1) of Section 197 debarring a court from  taking cognizance of 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 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 interrelated that one can  postulate reasonably that it was done by the accused  in the performance of official duty, though, possibly  I excess of the needs and requirements of the  situation."

       The question relating to the need of sanction under Section 197  of the Code is not necessarily 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 19, dealing with question of prejudice has also to be noted.    

Therefore, we do not find any infirmity in the judgment of the  High Court declining to consider the applicability of Section 197 of  the Code at the present juncture. It is open to the appellant to raise  that question if occasion so arises at an appropriate stage during  trial.  We make it clear that we have not expressed any opinion as  regards the applicability or otherwise of Section 197. Certain  observations have been made by the High Court while deciding the  question regarding the applicability of Section 197 of the Code.  These  appear to have been made for the purpose of deciding the issue as it  stands at present. If a plea relating to applicability of Section 197  is raised subsequently the concerned Court would not be bound by the  observations made, while deciding such issue, except on the legal  principles noticed by the High Court on the basis of decisions of this  Court. As the matter is pending since long the concerned courts do well  to complete the trial as expeditiously as possible.

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       The appeals are accordingly disposed of.