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Sunday, July 27, 2014

Sec.197 Cr. P.C. - want of sanction - Whether it can be raised at stage of trial by Accused - Trial court dismissed the objections raised by Accused on the ground the in some cases Sanction not obtained as he is an IAS officer and in some cases sanction obtained much prior to framing of charges - High court also dismissed the revision giving liberty to raise this issue at any time during trial - Apex court held that it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required under Section 197 of the Code. Notwithstanding the above, the High Court had granted liberty to the appellant to raise the issue of sanction, if so required, depending on the evidence that may come on record in the course of the trial. = CHANDAN KUMAR BASU ... APPELLANT (S) VERSUS STATE OF BIHAR ... RESPONDENT (S) = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41746

 Sec.197 Cr. P.C. - want of sanction - Whether it can be raised at stage of trial by Accused - Trial court dismissed the objections raised by Accused on the ground the in some cases Sanction not obtained as he is an IAS officer and in some cases sanction obtained much prior to framing of charges - High court also dismissed the revision giving liberty to raise this issue at any time during trial - Apex court held that  it  has  been consistently held that it can be no part of the duty of a public servant  or acting in the discharge  of  his  official  duties  to  commit  any  of  the offences covered by Section 406, 409, 420 etc. and the  official  status  of the public servant can, at best, only provide an opportunity for  commission of the offences.  Therefore,  no sanction  for  prosecution  of  the  public servant for such offences would be required under Section 197 of  the  Code. Notwithstanding the above,  the  High  Court  had  granted  liberty  to  the appellant to raise the issue of sanction, if so required, depending  on  the evidence that may come on record in the course of the  trial. =


the appellant filed revision applications before  the
learned Sessions Judge, Patna challenging the orders passed by  the  learned
Trial Court, primarily, on the ground that  the  said  orders  were  without
jurisdiction and incompetent in law inasmuch as sanction for prosecution  of
the  appellant  under  Section  197  of  the  Code  of  Criminal   Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to  the
date of taking  of  cognizance.  The  revision  applications  filed  by  the
appellant were dismissed by the  learned  Additional  Sessions  Judge,  Fast
Track Court No.2, Patna by orders of different dates.  The  said  orders  of
the learned Additional Sessions Judge were challenged before the High  Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011,  3191/2011  and  3192/2011.
The High Court by the common impugned order dated 27.11.2012  negatived  the
challenge made by the appellant leading to the present appeals. =

whether the acts giving rise  to  the  alleged  offences  had
been committed by the accused in the actual or purported  discharge  of  his
official duties.  
In a series of  pronouncements  commencing  with  Satwant
Singh vs. State of Punjab[2]; Harihar  Prasad  vs.  State  of  Bihar[3]  and
Prakash Singh Badal & Anr. vs. State  of  Punjab  &  Ors.[4]   
it  has  been
consistently held that it can be no part of the duty of a public servant  or
acting in the discharge  of  his  official  duties  to  commit  any  of  the
offences covered by Section 406, 409, 420 etc. and the  official  status  of
the public servant can, at best, only provide an opportunity for  commission
of the offences.  
Therefore,  no sanction  for  prosecution  of  the  public
servant for such offences would be required under Section 197 of  the  Code.
Notwithstanding the above,  the  High  Court  had  granted  liberty  to  the
appellant to raise the issue of sanction, if so required, depending  on  the
evidence that may come on record in the course of the  trial.  
Despite  the
view taken by this Court in the series of pronouncements referred to  above,
the opportunity that has been provided by the High Court to the  benefit  of
the appellant need not be foreclosed by us inasmuch as
in Matajog Dobey  vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash  Singh  Badal
(supra)
 this Court had consistently  held  that  the  question  of  sanction
under Section 197 of the Code can be raised at  any  time  after  cognizance
had been taken and may have to be determined  at  different  stages  of  the
proceeding/trial.
The observations of this Court  in  this  regard  may  be usefully extracted below.
Matajog Dobey  vs.  H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings. 
The  complaint  may
not disclose that the act constituting the offence was done or purported  to
be done in the discharge of official duty; 
but facts subsequently coming  to
light on a police  or  judicial  inquiry  or  even  in  the  course  of  the
prosecution  evidence  at  the  trial,  may  establish  the  necessity   for
sanction. 
Whether sanction is necessary or not may  have  to  be  determined
from stage to stage. The necessity may reveal itself in the  course  of  the
progress of the case.”

P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the  Code
can be raised any time  after  the  cognizance;  may  be  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 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.”

Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]

“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. ...”

10.   In view of the discussions we will  have  no  occasion  to  cause  any
interference with the orders passed by the High  Court  in  the  proceedings
instituted before it by the  appellant  which  have  been  impugned  in  the
appeals under consideration.  Consequently, we dismiss all the  appeals  and
maintain the orders passed by the High Court in all the cases before it.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41746


                            NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL  No.1359 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 3020 OF 2013)


CHANDAN KUMAR BASU                       ...    APPELLANT (S)

                                   VERSUS

STATE OF BIHAR                           ...  RESPONDENT (S)

                                    WITH
                      CRIMINAL APPEAL  No.1362 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 3022 OF 2013)
                      CRIMINAL APPEAL  No.1361 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 3016 OF 2013)
                      CRIMINAL APPEAL  No.1360 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 3014 OF 2013)
                      CRIMINAL APPEAL  No.1363 OF 2014
       (Arising out of Special Leave Petition (Crl) No. 3074 OF 2013)


                               J U D G M E N T

RANJAN GOGOI, J.

1.    Leave granted.

2.    The appellant, at the relevant point of time,  was  a  member  of  the
Indian  Administrative  Service   and   serving   on   deputation   as   the
Administrator-cum-Managing Director of the Bihar State  Housing  Cooperative
Federation Ltd.  The aforesaid Federation is a society registered under  the
Bihar Cooperative  Societies  Act,  1935.   On  the  basis  of  the  various
complaints made against the appellant, FIR Nos. 837/2002  dated  16.12.2002,
859/2002 and 860/2002 both dated 24.12.2002, 19/2003  dated  07.01.2003  and
41/2003 dated 18.01.2003 under  Sections  409/420/467/468/  471/34/120-B  of
the Indian Penal Code (hereinafter  for  short  ‘IPC’)  were  registered  at
Police Station Gardani  Bagh  (Shastri  Nagar),  Patna.   On  completion  of
investigation in all the  cases,  chargesheets  were  submitted  before  the
competent  court  on  the  basis  of  which  the  learned   Chief   Judicial
Magistrate, Patna took  cognizance  of  the  offences  alleged  against  the
appellant.  Aggrieved, the appellant filed revision applications before  the
learned Sessions Judge, Patna challenging the orders passed by  the  learned
Trial Court, primarily, on the ground that  the  said  orders  were  without
jurisdiction and incompetent in law inasmuch as sanction for prosecution  of
the  appellant  under  Section  197  of  the  Code  of  Criminal   Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to  the
date of taking  of  cognizance.  The  revision  applications  filed  by  the
appellant were dismissed by the  learned  Additional  Sessions  Judge,  Fast
Track Court No.2, Patna by orders of different dates.  The  said  orders  of
the learned Additional Sessions Judge were challenged before the High  Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011,  3191/2011  and  3192/2011.
The High Court by the common impugned order dated 27.11.2012  negatived  the
challenge made by the appellant leading to the present appeals.    There  is
yet another proceeding instituted by the appellant  before  the  High  Court
i.e. Crl. Misc. No. 41263/2010 in respect of P.S. Case  No.  859/2002  which
has been dismissed by the High Court by its order dated  18.07.2012  on  the
ground that the order taking cognizance by the learned Trial Court  had  not
been specifically challenged before it and it  is  only  the  order  of  the
learned Sessions Judge  that  has  been  assailed  by  the  appellant.   The
aforesaid order dated 18.7.2012 of the High Court has also  been  challenged
by the appellant in the present group of appeals.

3.    We have heard Mr. Santosh Mishra, learned counsel  for  the  appellant
and Mr. Abhinav Mukerji, learned counsel for the State.

4.    As the arguments advanced  on  behalf  of  the  rival  parties  are  a
reiteration of the arguments advanced before the  High  Court  the  detailed
and specific contentions need not be taken note of and it  will  suffice  to
say that while the appellant contends that grant of sanction  under  Section
197 of the Code is a sine qua non  for  his  prosecution  for  the  offences
alleged, according to the State of Bihar  the  appellant  is  not  a  public
servant within the meaning of Section 21 of the IPC and in any case none  of
the offences alleged can be attributed to acts that arise  out  of  or  have
any proximity with the discharge of official duties by the appellant  so  as
to require sanction for his prosecution.

5.    Section 197(1)  of the Code will be required to  be  noticed  at  this
stage and is therefore extracted below.
“197. Prosecution of Judges and public servants.- (1)  When any  person  who
is or was a Judge or Magistrate or a public servant not removable  from  his
office save by or with the sanction of the  Government  is  accused  of  any
offence alleged to have been committed by him while acting or purporting  to
act in the discharge of his official duty, no Court  shall  take  cognizance
of such offence except with the previous sanction –

(a) in case of a person who is employed or, as the case may be, was  at  the
time of commission of the alleged offence employed, in connection  with  the
affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be,  was  at
the time of commission of the alleged offence employed, in  connection  with
the affairs of a State, of the State Government :

Provided that  where the alleged offence was committed by a person  referred
to in clause (b) during the period while a Proclamation issued under  clause
(1) of Article 356 of the Constitution was in force in a State,  clause  (b)
will apply as if for the expression “State  Government”  occurring  therein,
the expression “Central Government: were substituted].

6.    A reading of the provisions of Section  197(1)  of  the  Code  reveals
that there are three mandatory requirements  under  Section  197(1)  of  the
Code, namely,
(a)   that the accused is a public servant
(b)   that the public servant can be removed from the post by  or  with  the
sanction either of the Central or the State Government, as the case may be
(c)   the act(s) giving rise to the alleged offence had  been  committed  by
the public servant in the actual or  purported  discharge  of  his  official
duties.

7.    Insofar as  the  first  requirement  is  concerned,  the  position  of
officers  belonging  to  the  Indian  Administrative  Service   serving   on
deputation in a cooperative society was decided in S.S. Dhanoa  vs.  MCD[1].
Dealing with clause 12 of Section 21 of the IPC, this Court  had  held  that
the word ‘corporation’ appearing in clause 12(b) of  Section  21  IPC  meant
corporations established by a statute and would have  no  application  to  a
cooperative society.  In the present case, the materials  on  record,  i.e.,
the incorporation of the Bihar State Housing  Cooperative  Federation  under
the provisions of the Bihar Cooperative Societies Act, 1935  would  seem  to
indicate that the said cooperative  federation  is  a  cooperative  society.
The above, however, is a prima facie view  on  the  materials  available  on
record at this stage.  It has been argued on behalf of  the  appellant  that
at the relevant point of time the federation was under supersession  and  it
was being exclusively controlled by the State.  The  above  contention  i.e.
the extent of State control over the management of the  Federation  will  be
required to be established by means of relevant evidence  before  the  legal
effect thereof on the status of the appellant as a  public  servant  can  be
decided.  Possibly it is on account of the said fact that the High Court  in
the impugned order had granted the liberty to the  appellant  to  raise  all
other points as and when they arise and had also required  the  Trial  Court
to decide all such issues, including the requirement  of  sanction,  in  the
light of such subsequent facts that may come on record.

8.    Insofar as the second requirement for  the  applicability  of  Section
197(1) of the Code is concerned,  namely,  whether  the  post  held  by  the
appellant at the relevant time was one from which he could  not  be  removed
except by or with  the  sanction  of  the  State  Government,  no  evidence,
whatsoever, has been led on the said question.  The correct position in  law
with regard to the applicability of the  second  requirement  under  Section
197(1) can, therefore, be answered only at a  subsequent  stage  i.e.  after
evidence on the issue, if any, is forthcoming.

9.    The above discussion will  now  require  the  Court  to  consider  the
question as to whether the acts giving rise  to  the  alleged  offences  had
been committed by the accused in the actual or purported  discharge  of  his
official duties.   In a series of  pronouncements  commencing  with  Satwant
Singh vs. State of Punjab[2]; Harihar  Prasad  vs.  State  of  Bihar[3]  and
Prakash Singh Badal & Anr. vs. State  of  Punjab  &  Ors.[4]   it  has  been
consistently held that it can be no part of the duty of a public servant  or
acting in the discharge  of  his  official  duties  to  commit  any  of  the
offences covered by Section 406, 409, 420 etc. and the  official  status  of
the public servant can, at best, only provide an opportunity for  commission
of the offences.  Therefore,  no sanction  for  prosecution  of  the  public
servant for such offences would be required under Section 197 of  the  Code.
Notwithstanding the above,  the  High  Court  had  granted  liberty  to  the
appellant to raise the issue of sanction, if so required, depending  on  the
evidence that may come on record in the course of the  trial.   Despite  the
view taken by this Court in the series of pronouncements referred to  above,
the opportunity that has been provided by the High Court to the  benefit  of
the appellant need not be foreclosed by us inasmuch as in Matajog Dobey  vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash  Singh  Badal
(supra) this Court had consistently  held  that  the  question  of  sanction
under Section 197 of the Code can be raised at  any  time  after  cognizance
had been taken and may have to be determined  at  different  stages  of  the
proceeding/trial.  The observations of this Court  in  this  regard  may  be
usefully extracted below.
Matajog Dobey  vs.  H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings. The  complaint  may
not disclose that the act constituting the offence was done or purported  to
be done in the discharge of official duty; but facts subsequently coming  to
light on a police  or  judicial  inquiry  or  even  in  the  course  of  the
prosecution  evidence  at  the  trial,  may  establish  the  necessity   for
sanction. Whether sanction is necessary or not may  have  to  be  determined
from stage to stage. The necessity may reveal itself in the  course  of  the
progress of the case.”

P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the  Code
can be raised any time  after  the  cognizance;  may  be  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 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.”


Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]

“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. ...”

10.   In view of the discussions we will  have  no  occasion  to  cause  any
interference with the orders passed by the High  Court  in  the  proceedings
instituted before it by the  appellant  which  have  been  impugned  in  the
appeals under consideration.  Consequently, we dismiss all the  appeals  and
maintain the orders passed by the High Court in all the cases before it.

                       ……..……………........………………………J.
                       [SUDHANSU JYOTI MUKHOPADHAYA]




                                                ……..……………........………………………J.
                       [RANJAN GOGOI]
NEW DELHI,
JULY  7, 2014.

-----------------------
[1]    (1981) 3 SCC 431
[2]    AIR 1960 SC 266
[3]    (1972) 3 SCC 89
[4]    (2007) 1 SCC 1
[5]     AIR 1956 SC 44
[6]    (2001) 6 SCC 704

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