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Monday, December 14, 2015

Section 197 of CrPC - previous sanction= for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.

  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.798 OF 2015


PROF. N.K. GANGULY                      ……APPELLANT

                                     Vs.

CBI NEW DELHI                            ……RESPONDENT

                                    WITH

                        CRIMINAL APPEAL No. 799/2015
                        CRIMINAL APPEAL No. 800/2015
                        CRIMINAL APPEAL NO. 801/2015
                        CRIMINAL APPEAL No. 930/2015
                                     AND
                        CRIMINAL APPEAL  No.1537/2015
                 (Arising Out of SLP (Crl) No.9838 of 2015)
      (@ SLP (Crl)………………… CRL. M.P. NO.9612 of 2015)





                               J U D G M E N T
V.GOPALA GOWDA, J.
      Delay   condoned.   Leave   granted   in   Special   Leave    Petition
(Crl)………………Crl.M.P. No.9612 of 2015.
These appeals arise out of the common judgment and  order  dated  27.05.2013
passed in Application  Nos. 480 of 2013, 41206, 40718, 41006  and  41187  of
2012 and judgment and order by the High Court  of  Judicature  at  Allahabad
dated 07.10.2014 passed in Application No. 277KH of  2014  in  Special  Case
No. 18 of 2012  by  the  learned  Special  Judge,  whereby  the  High  Court
dismissed the applications filed by the appellants herein under Section  482
of the Code of Criminal Procedure, 1973 (hereinafter  referred  to  as  “the
CrPC”) to quash the criminal proceedings of Special Case No. 18 of  2012  as
well as the summoning order dated 08.11.2012 passed by the  learned  Special
Judge, Anti Corruption, CBI, Ghaziabad. All the appeals are  being  disposed
of by this common judgment.

As the facts in all the appeals are common, for the sake of convenience,  we
refer to the facts of Criminal Appeal No. 798  of  2015,  in  this  judgment
which are briefly stated hereunder:



The Indian Council of Medical Research (hereinafter referred to as  “ICMR”),
a registered society  under  the  Societies  Registration  Act,  1860  is  a
premier research institute dealing with the  formulation,  coordination  and
promotion of bio-medical research. Its functional  object  is  to  initiate,
aid develop and coordinate medical and scientific research in India  and  to
promote  and  assist  institutions  for  the  study   of   diseases,   their
prevention, causation and remedy. It is fully funded by  the  Government  of
India through Department of Health Research, Ministry of Health  and  Family
Welfare. The  Institute  of  Cytology  &  Preventive  Oncology  (hereinafter
referred to as “ICPO”) is one of the institutes of ICMR,  the  main  aim  of
which is to promote research in the field of cancer.



 On 30.11.2010, a criminal case was registered under Section  120-B  of  the
Indian Penal Code (hereinafter referred to as the “IPC”) read  with  Section
13(1)(d) and 13(2) of the Prevention of Corruption  Act,  1988  (hereinafter
referred to as the “P.C. Act, 1988”)  on  the  basis  of  written  complaint
filed by M.R. Atrey, Sub-Inspector of  Police,  CBI,  EOU,  VII,  New  Delhi
against the  appellants  herein  namely  N.K.  Ganguly,  the  then  Director
General, Mohinder Singh, the then Sr.Dy. Director General-Admin, P.D.  Seth,
the then Financial Advisor, A.K. Srivastava, Executive  Engineer,  all  from
ICMR, New Delhi and B.C. Das,  the  then  Director  ICPO,  NOIDA  and  other
unknown persons in the matter  relating  to  the  alleged  unauthorized  and
illegal transfer of plot no.119, Sector 35,  NOIDA,  measuring  9712.62  sq.
meters from ICPO, NOIDA to ICPO-ICMR Cooperative Group Housing Society  Ltd.
NOIDA (hereinafter referred to as the “ICPO-ICMR Housing Society”).



In the preliminary inquiry in the matter, it was found  that  the  aforesaid
officials and  the  other  unknown  persons  had  entered  into  a  criminal
conspiracy by abusing their official position as  public  servants  and  had
unauthorisedly and illegally transferred the aforesaid  plot  from  ICPO  to
ICPO-ICMR Housing Society at a consideration of Rs.4,33,90,337/-  which  was
much lower than the then prevailing sector rate of Rs.18,000/- per  sq.mtrs.
of NOIDA, thereby, giving themselves and  other  members  of  the  ICPO-ICMR
Housing Society an undue pecuniary advantage. It was also  revealed  in  the
enquiry that the membership of the ICPO-ICMR Housing Society was granted  to
such persons who were otherwise not eligible for getting membership  as  per
the bye-laws  of  the  society  and  terms  and  conditions  stipulated  and
approved by ICMR  for  membership  in  the  said  society.  It  was  further
revealed that the officers of New  Okhla  Industrial  Development  Authority
(hereinafter referred to as “NOIDA”) allowed the transfer of the  said  plot
unauthorisedly  and  illegally  from  ICPO  to  ICPO-ICMR  Housing  Society,
despite the fact that  they  were  not  competent  to  pass  such  order  of
transfer.



During the course of investigation by CBI, apart from  the  aforesaid  named
accused persons in the FIR, the fact of the involvement of  other  officials
namely, L.D. Pushp, the then Administrative Officer, ICPO,  Jatinder  Singh,
the then Senior Accounts Officer, ICMR,  Dr.  S.K.  Bhattacharya,  the  then
Additional Director General, ICMR, Dr. Bela  Shah,  Head  of  NCD  Division,
ICMR, Smt. Bhawani  Thiagarajan,  the  then  Joint  Secretary,  Ministry  of
Health and Family Welfare, Government  of  India,  S.C.  Pabreja,  the  then
Manager (Residential Plots), NOIDA and R.S. Yadav, OSD (Residential  Plots),
NOIDA, was revealed.



After completion of the investigation, a charge-sheet was filed against  the
appellants for  the  alleged  offences  committed  by  them  on  account  of
unauthorised and illegal transfer of the plot in question in favour  of  the
ICPO-ICMR Housing Society.



The competent authority of ICMR granted sanction under  Section  19  of  the
P.C. Act, 1988 for prosecuting  A.K.  Srivastava  and  Dr.  Bela  Shah.  The
charge-sheet was filed before the learned Special  Judge,  Anti  Corruption,
CBI (hereinafter referred  to  as  the  “Special  Judge”)  against  all  the
appellants, except R.S. Yadav, OSD, NOIDA, under Section 173(2) of CrPC  for
the offences punishable  under  Section  120-B  of  IPC  read  with  Section
13(1)(d) and 13(2) of  the  P.C.  Act,  1988.  The  requisite  sanction  for
prosecution against R.S. Yadav was  declined  by  the  Competent  Authority.
After considering the charge-sheet and other materials available on  record,
the learned Special Judge came to the conclusion that  a  prima  facie  case
appeared  to  have  been  made  out  by  the  CBI  against  the  appellants.
Accordingly, the learned Special Judge vide his order dated  08.11.2012  has
taken cognizance and summons were issued against the appellants to face  the
trial for the said offences.



Aggrieved of the order of taking cognizance and  issuance  of  summons,  the
appellants filed applications before  the  High  Court  of  Allahabad  under
Section 482 of CrPC, urging various  grounds  and  prayed  that  the  entire
proceedings on the file of the learned Special Judge in the case No.  18  of
2012 be  quashed.  Finding  no  merit  in  the  applications  filed  by  the
appellants, the High Court refused  to  interfere  with  the  order  of  the
learned Special Judge dated 08.11.2012 and dismissed the same.  The  learned
Judge of the High Court held as under:



“.....at this stage it cannot be said that no  offence  under  Section  120B
IPC read with Section 13(2) and 13(1)(d) of  the  Prevention  of  Corruption
Act is made out against the  petitioners.  There  are  sufficient  materials
available on record which may prima facie establish the involvement  of  the
petitioners accused in commission of the aforesaid offences by  getting  the
plot in question transferred for the purposes of constructing flats to ICPO-
ICMR Cooperative Group Housing Society (a private housing society) in  which
they were also the members and ultimately after construction  of  the  flats
they also obtained individual flats  after  getting  pecuniary  benefit  for
themselves and others and caused  loss  to  the  ICPO/ICMR  (a  fully  govt.
funded body). Due to the said transfer of plots allotted to ICPO  for  staff
quarters, the officials of  the  ICPO  have  been  permanently  deprived  of
getting official quarters in future.



......In this case, the role of each petitioners  in  processing,  approving
and ultimately  getting  the  plot  in  question  transferred  to  ICPO-ICMR
Cooperative Group Housing Society  (a  private  housing  society)  has  been
categorically assigned by the prosecution and after conducting thorough  and
detailed investigation in the matter, the charge sheet  has  been  submitted
against them, on which the learned  Special  Judge,  Anti  Corruption,  CBI,
Ghaziabad has taken cognizance. In my considered opinion, there  appears  to
be  no  infirmity,  illegality,  irregularity  or  jurisdictional  error  in
submitting the charge sheet by the CBI and taking cognizance thereon by  the
learned Special Judge, Anti Corruption, CBI, Ghaziabad.”





Hence the present appeals.



We have heard Mr. P.P Khurana, Mr. Gopal Subramanium and Mr. R  Basant,  the
learned senior counsel appearing on behalf of the appellants,  and  Mr.  P.S
Patwalia, the learned Additional  Solicitor  General  and  Ms.  Kiran  Suri,
learned senior counsel appearing on behalf of the respondent. On  the  basis
of the factual evidence on record produced before us, the  circumstances  of
the case and also in the light of the rival legal contentions urged  by  the
learned senior counsel for both the parties,  we  have  broadly  framed  the
following points that would arise for our consideration:-



1) Whether an offence under  Section  120B  IPC  is  made  out  against  the
appellants, and if so, whether previous sanction of the  Central  Government
is required to prosecute them for the same?

2) Whether the order dated 08.11.2012 passed by the  learned  Special  Judge
taking cognizance of the offence against the appellants is legal and  valid?


3) What order?


Answer to Point Nos. 1 and 2:
As the point numbers 1 and 2 are inter-related, we answer them  together  by
assigning the following reasons:

The issue of prior sanction required to be obtained against  the  appellants
in order to prosecute them for the offence said to have  been  committed  by
them under Section 120B, IPC has to be examined in light of the  allegations
contained in the charge-sheet that was  filed  before  the  learned  Special
Judge by the respondent herein.



The learned senior counsel appearing on behalf of the  appellants  contended
that the entire transaction of transferring the plot in question  in  favour
of the ICPO-ICMR Housing Society was handled in a  transparent  manner,  and
it was done keeping in view the dire need of housing  of  the  employees  of
ICPO-ICMR. The learned senior counsel submitted that  the  transfer  of  the
said plot from  ICPO  to  the  ICPO-ICMR  Housing  Society  was  done  after
obtaining  legal  opinions  and  necessary  sanction  from   the   competent
authority of NOIDA. The learned senior counsel further  contended  that  the
CBI withheld the report of the Comptroller  and  Auditor  General  of  India
(CAG) while submitting the charge-sheet before the  learned  Special  Judge,
which is not tenable in law.



It is further contended by Mr. P.P. Khurana, and Mr. Gopal Subramanium,  the
learned senior counsel appearing on behalf of some of  the  appellants  that
no prior sanction was  obtained  from  the  Central  Government,  which  was
mandatorily  required  under  Section  197,  CrPC  as  the  appellants  were
employed as public servants  at  the  time  of  commission  of  the  alleged
offences. It is contended by them that the transfer of the plot in  question
occurred when the appellants were holding  public  office  and  the  alleged
offences were committed by them, if at all, in discharge of  their  official
duty. Thus, the learned Special Judge erred  in  taking  cognizance  of  the
offences alleged against  the  appellants  without  prior  sanction  of  the
Central Government having been  obtained  by  the  respondent.  The  learned
senior counsel further contended that the learned Special Judge  should  not
have taken cognizance in the absence of prior  sanction  obtained  from  the
Central Government, especially in light of the fact that  taking  cognizance
of the alleged offences and  setting  the  wheel  of  the  criminal  justice
system in motion is a matter  which  could  affect  the  fundamental  rights
guaranteed  to  the  appellants  under  Articles  14,  19  and  21  of   the
Constitution of India.



 The other learned counsel appearing on  behalf  of  other  appellants  have
adopted the arguments made by Mr. P.P Khurana and Mr. Gopal Subramanium  and
they have filed their written submissions in support of  their  contentions,
which are also considered by this Court.



On the other hand, Mr.  P.S.  Patwalia,  the  learned  Additional  Solicitor
General and Ms. Kiran Suri, learned senior counsel appearing  on  behalf  of
the respondent contended that the legal submissions advanced by the  learned
senior counsel appearing on behalf of the appellants  are  wholly  untenable
in law for the reason that the very act  of  the  appellants  constitute  an
offence under IPC, as they entered into a conspiracy to  illegally  transfer
the plot in question in  favour  of  the  said  society  referred  to  Supra
without obtaining the permission of the competent authority of  NOIDA,  with
an ulterior motive to make unlawful  gain  for  themselves.  The  appellants
became members of the ICPO-ICMR Housing Society, even though they  were  not
eligible to be enrolled as members of the society, and thereafter  proceeded
to transfer the plot at a value which was much lesser  than  the  prevailing
market rate at the time, thus making an unlawful gain for themselves,  which
is an offence under Section 13(1)(d)  of  the  P.C.  Act,  1988,  punishable
under Section 13(2) of the Act. It is further contended that the  CBI  filed
the  charge-sheet  against  the  appellants  after  due  investigation,  and
therefore, the High Court has rightly dismissed the  applications  filed  by
them under Section 482 of CrPC by passing a valid judgment and  order  which
does not call for interference by this Court in exercise  of  its  appellate
jurisdiction. The illegal acts done by the appellants  in  transferring  the
said plot at a lower price cannot be  said  to  have  been  carried  out  in
exercise of their official duty. Therefore, no previous  sanction  from  the
Competent Authority was required under Section 197 of CrPC to prosecute  the
appellants  for  the  alleged  offence.  The  learned  Additional  Solicitor
General  and  the  learned  senior  counsel  appearing  on  behalf  of   the
respondent submit that this is the reason that the  present  cases  are  not
ones which warrant for this Court to  exercise  its  appellate  jurisdiction
and quash the proceedings as prayed by the Appellants.



The FIR and the charge-sheet both  contain  references  to  the  allegations
made against the appellants and other unknown  persons,  that  they  entered
into a criminal conspiracy by abusing their  official  positions  as  public
servants during the year 2006-2007 and illegally  transferred  the  plot  in
question from ICPO to ICPO-ICMR Housing Society at a much lower  price  than
the then prevailing sector rate. On this  basis,  it  is  alleged  that  the
appellants dishonestly obtained an undue pecuniary advantage for  themselves
and others to the extent of Rs.13,14,36,823/- by illegally transferring  the
plot in favour of the above  said  society  with  an  ulterior  motive.  The
process of transfer of  the  plot  was  initiated  by  B.C.  Das,  the  then
Director,  ICPO,  vide  letter  dated  29.03.2006  on   the   basis   of   a
representation prepared by L.D.  Pushp,  the  then  Administrative  Officer,
ICPO, containing signatures of  51  employees  of  ICPO  sent  to   Mohinder
Singh, Sr. Dy. Director General (Admn), ICMR. The  said  representation  was
for the purpose of establishment of the ICPO-ICMR Housing  Society  with  an
object to promote control,  coordinate  and  take  charge  of  the  plot  in
question. The final approval for transfer of the plot and formation  of  the
proposed ICPO-ICMR society was given by  the  appellant  N.K.  Ganguly,  the
then Director General of ICMR on 06.06.2006 and the same  was  approved  and
communicated by  A.K.  Srivastava,  Executive  Engineer  vide  letter  dated
09.06.2006 to B.C. Das. On 12.06.2006, N.K. Ganguly recorded a note  in  the
file stating that “the proposal was  approved  provided  it  was  under  the
provisions of laws and land use for which it was  acquired”.  The  aforesaid
allegations contained in the  chargesheet  suggest  that  a  conspiracy  was
hatched by the appellants to commit an offence  under  Section  13(1)(d)  of
the P.C. Act, 1988. A perusal of  the  chargesheet  reveals  that  there  is
sufficient material on record to  indicate  the  existence  of  the  alleged
conspiracy. In view of the same, Section 197 of CrPC is squarely  applicable
to the facts of the present case.



At  this  stage,  it  is  important  to  examine  the  concept  of  criminal
conspiracy as defined in IPC. Section 120-A of the IPC reads as under:

“When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by  illegal  means,  such  an  agreement  is
designated a criminal conspiracy:  Provided  that  no  agreement  except  an
agreement to commit an offence shall amount to a criminal conspiracy  unless
some act besides the agreement is done  by  one  or  more  parties  to  such
agreement in pursuance thereof.”

In the instant case, it is alleged in the charge-sheet that  the  appellants
entered into an agreement to commit an illegal  act,  which  is  an  offence
punishable under Section 120B of IPC. Therefore, the  provision  of  Section
197 of CrPC is squarely applicable to the facts of the case. Prior  sanction
of the Central Government was required to be taken by the respondent  before
the learned Special Judge took cognizance of  the  offence  once  the  final
report was filed under Section 173(2) of CrPC. In  this  regard,  Mr.  Gopal
Subramanium, learned senior counsel appearing on  behalf  of  the  appellant
has very aptly placed reliance on the decision of a  three  judge  bench  of
this Court in the case of R.R. Chari v. State of Uttar Pradesh[1],  wherein,
while examining the scope of  Section  197  of  CrPC,  this  Court  made  an
observation indicating that the term “cognizance”  indicates  the  stage  of
initiation of  proceedings  against  a  public  servant.  The  Court  placed
reliance upon the judgment of the Calcutta High Court delivered in the  case
of Superintendent and Remembrance of Legal Affairs, West  Bengal  v.  Abhani
Kumar Bannerjee[2], wherein it was held that  before  taking  cognizance  of
any offence, a Magistrate must not only be said to have applied his mind  to
the contents of the petition-

“but he must have done so for the purpose of proceeding in a particular  way
as indicated in  the  subsequent  provisions  of  this  Chapter,--proceeding
under Section 200, and thereafter sending it for enquiry  and  report  under
Section 202. When the Magistrate applies his mind not  for  the  purpose  of
proceeding under the subsequent sections of this  Chapter,  but  for  taking
action of some  other  kind,  e.g.,  ordering  investigation  under  Section
156(3), or issuing a search warrant for the purpose  of  the  investigation,
he cannot be said to have taken cognizance of the offence.”



Both the learned senior counsel placed reliance on  another  judgment  of  a
three judge bench of this Court in Shreekantiah Ramayya Munipalli  v.  State
of Bombay[3]. In that case, the allegation  against  the  appellant  therein
and two other government servants was that they  had  conspired  to  defraud
the Government in respect of certain properties and  arranged  to  sell  the
goods to the approver. The case against them was  registered  under  Section
120-B read with  Section  409  of  IPC.  While  considering  the  contention
advanced that the said acts could not be said  to  have  been  committed  in
discharge of official duty, Bose, J. placed reliance upon  the  observations
made by the Federal Court in the case of Dr. Hori Ram Singh  v.  Emperor[4],
wherein Vardachariar, J observed that in respect of a charge  under  Section
409 of IPC, the official capacity is relevant only for entrustment, and  not
necessarily in respect of misappropriation or conversion which  may  be  the
act complained of. It was held by this Court that the  correct  position  of
law was laid down in the case of Hori Ram Singh, which is as under:-

“I would observe at the outset that the question  is  substantially  one  of
fact, to be determined with reference to  the  act  complained  of  and  the
attendant  circumstances;  it  seems  neither  useful   nor   desirable   to
paraphrase the language of the section in attempting to lay  down  hard  and
fast tests.”

Bose, J., further held in Shreekantiah case referred  to  supra  that  there
are cases and cases and each must be decided on its own facts. It  was  held
as under:

“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.”
            (emphasis laid by this Court)


While considering the facts of the case, Bose J. observed that  the  offence
in question, could not have been  committed  any  other  way,  and  held  as
under:

“...If it was innocent, it was an official act; if  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  order,  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.”

          (emphasis laid by this Court)


Mr. Gopal Subramanium, the learned senior counsel on behalf of some  of  the
appellants has further rightly placed  reliance  upon  the  judgement  of  a
three judge bench of this Court in the case  of  Amrik  Singh  v.  State  of
Pepsu[5] to buttress the contention that the issue of requirement  of  prior
sanction under Section 197 of Cr.PC can  be  raised  at  any  stage  of  the
proceedings, and not just at stage of framing of charges.  The  decision  in
the  case  of  Hori  Ram  Singh  (supra)  was  also  quoted  with  approval,
especially the categorisation of situations in three scenarios, as under:

“a) Decision which held that sanction was necessary when the act  complained
of attached to the official character of the person doing it;
b) Judgments which held that sanction was necessary in all  cases  in  which
the official character of  the  person  gave  him  an  opportunity  for  the
commission of the crime; and
Those which held it was necessary when the offence was committed  while  the
accused was actually engaged in the performance of official duties.“



It was further held in the Amrik Singh case that:

“The result of the authorities may thus  be  summed  up:  it  is  not  every
offence  committed  by  a  public  servant  that   requires   sanction   for
prosecution u/s 197 of the Cr.PC; 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;  and  that   would   be   so,
irrespective of whether it was, in fact, a proper discharge of  his  duties,
because that would really be a matter of defence on the merits, which  would
have to be invested at the trial and could not arise at the stage  of  grant
of sanction, which must precede the institution of the prosecution.”

         (emphasis laid by this Court)


The position of law, as laid down in the case of Hori  Ram  Singh  was  also
approved by the Privy Council in the case of H.H.B.  Gill  v.  The  King[6],
wherein it was observed as under:



“A public servant can only  be  said  to  act  or  purport  to  act  in  the
discharge of his official duty, if his act is such  as  to  lie  within  the
scope of his official duty.”





Reliance was further rightly placed by the learned  senior  counsel  on  the
decision of a constitution bench of this Court in the case of Matajog  Dobey
v. H.C. Bhari[7], which pertained to an income  tax  investigation.  It  was
alleged by the  appellant  therein  that  while  conducting  a  search,  the
officials of the income tax department had forcibly broke open the  entrance
door of the house and interfered with the boxes and drawers of  the  tables.
It was also alleged by the appellant therein that  the  officials  tied  him
and beat him up. Upon an enquiry of the said complaint, the magistrate  came
to the conclusion that a prima facie case  had  been  made  out  and  issued
process. During the course  of  trial,  the  issue  pertaining  to  want  of
sanction was urged. This Court held as under:

“Article 14 does not render  Section  197,  Criminal  Procedure  Code  ultra
vires as the discrimination is based upon a rational classification.  Public
servants    have to  be  protected  from  harassment  in  the  discharge  of
official duties while ordinary citizens not so engaged do not  require  this
safeguard.”
                      (emphasis laid by this Court)


On the other hand, ordinary citizens not so  engaged  do  not  require  this
safeguard. It was further observed that:-
“....Whether sanction is to  be  accorded  or  not,  is  a  matter  for  the
Government to consider. The absolute power to accord  or  withhold  sanction
on the Government is irrelevant and foreign to the duty cast on  that  Court
which is the ascertainment of the true nature of the act.”





The Court finally summed up the result of the discussion as follows:-
“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, but not a pretended or fanciful claim, that  he  did
it in the course of the performance of his duty.....”

                 (emphasis laid by this Court)


In the case of Satwant Singh v. State of Punjab[8], a constitution bench  of
this Court while examining the scope of Section 197  of  CrPC,  observed  as
follows:
“It appears to us to be clear  that  some  offences  cannot  by  their  very
nature be regarded as having been committed by public servants while  acting
or purporting to act in the discharge of their official duty. For  instance,
acceptance of a bribe, an offence punishable under s.161 of IPC, is  one  of
them and the offence of cheating or abetment thereof is another...  where  a
public servant commits the offence  of  cheating  or  abets  another  so  to
cheat, the offence committed by him  is  not  one  while  he  is  acting  or
purporting to act in the discharge of his official duty,  as  such  offences
have no necessary connection between them and the performance of the  duties
of a public servant, the official status furnishing  only  the  occasion  or
opportunity for the commission of the offences......
...the Act of cheating or abetment  thereof  has  no  reasonable  connection
with the discharge of official duty. The act must bear such relation to  the
duty that the public servant could lay a reasonable but not a  pretended  or
fanciful claim, that he did it in the  course  of  the  performance  of  his
duty.”

In the case of R.R. Chari referred to supra, while examining  the  scope  of
Section 197 of CrPC, this Court held as follows:
“It is clear that the first  part  of  Section  197(1)  provides  a  special
protection, inter alia, to public servants who are not removable from  their
offices save by or with the sanction of the State Government or the  Central
Government where they are  charged  with  having  committed  offences  while
acting or purporting to act in the discharge of their official  duties;  and
the form which this protection has taken is that  before  a  criminal  Court
can take cognizance of any offence alleged to have been  committed  by  such
public  servants,  a  sanction  should  have  been  accorded  to  the   said
prosecution by the appropriate authorities. In other words, the  appropriate
authorities must be satisfied that there is a prima facie case for  starting
the prosecution and this prima facie satisfaction has been interposed  as  a
safeguard before the actual prosecution commences.  The  object  of  Section
197(1) clearly is to save public servants form frivolous prosecution.....”
         (emphasis laid by this Court)




The learned senior counsel further placed reliance on a  three  judge  bench
decision of this Court in the case of Baijnath  Gupta  v.  State  of  Madhya
Pradesh[9], wherein the question that arose before this  Court  was  whether
the conviction of the appellant under Sections 409 and 477A of the  IPC  was
illegal for want of sanction. This Court observed as follows:

“It is not that 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 the 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.”
         (emphasis laid by this Court)


In the case of B. Saha v. M.S Kochar[10], the  constitution  bench  of  this
Court observed that the question of  sanction  under  Section  197  of  CrPC
could be raised and considered at any  stage  of  the  proceedings.  On  the
issue of when the protection of Section  197  of  CrPC  is  attracted,  this
Court held as under:

“In sum, the sine qua non for the applicability of this Section is that  the
offence charged, be it one of commission or omission, must be one which  has
been committed by the public servant either  in  his  official  capacity  or
under colour of the office held by him.”


The learned senior counsel further placed reliance  on  the  decision  of  a
constitution bench of  this  Court  in  the  case  of    R.S  Nayak  v.  A.R
Antulay[11], wherein certain observations were made with regard  to  Section
6 of P.C Act, 1988, as under:

“Therefore, it unquestionably follows that the sanction to prosecute can  be
given by an authority competent  to  remove  the  public  servant  from  the
office which he has misused or abused because that authority alone would  be
able to know whether there has been a misuse or abuse of the office  by  the
public servant and not some rank outsider. By a catena of decisions, it  has
been held that the authority entitled to grant sanction must apply its  mind
to the facts of the case, evidence  collected  and  other  incidental  facts
before according sanction. A grant of sanction is not an idle formality  but
a solemn and sacrosanct act which removes  the  umbrella  of  protection  of
Government  servants  against  frivolous  prosecutions  and  the   aforesaid
requirements  must  therefore,  be  strictly  complied   with   before   any
prosecution could be launched  against  public  servants....The  Legislative
advisedly conferred power on the authority competent to  remove  the  public
servant from the office to grant sanction for the obvious reason  that  that
authority alone would be able, when facts and  evidence  are  placed  before
him to judge whether a serious offence is committed or  the  prosecution  is
either frivolous or speculative. That authority alone would be competent  to
judge whether on the facts alleged, there has been an  abuse  or  misuse  of
office held by the public servant. That authority would be in a position  to
know what was the power conferred on the office  which  the  public  servant
holds, how taht power could be abused for corrupt motive and  whether  prima
facie it has been so done. That competent authority  alone  would  know  the
nature and functions discharged by the public  servant  holding  the  office
and whether the same  has  been  abused  or  misused.  It  is  the  vertical
hierarchy between the authority competent to remove the public servant  from
that office and the nature of the office held by the public servant  against
whom sanction is sought which would indicate a  hierarchy  and  which  would
therefore, permit interference of knowledge about the  fuctions  and  duties
of the office and its misuse or abuse by the public  servant.  That  is  why
the  legislature  clearly  provided  that  that  authority  done  would   be
competent to grant sanction which is entitled to remove the  public  servant
against whom sanction is sought from the office......

         (emphasis laid by this Court)





Mr. P.P. Khurana, the learned senior counsel appearing on behalf of some  of
the appellants has further placed reliance upon the judgments of this  Court
in the cases of R. Balakrishna Pillai v. State of  Kerala[12],  Abdul  Wahab
Ansari v. State of Bihar[13], Shankaran Moitra v. Sadhna Das[14]  and  State
of M.P v. Sheetla Sahai[15], in support of  his  submission  that  the  acts
constituting the  offence  were  alleged  to  have  been  committed  by  the
appellant in discharge of his official duty and that being the fact, it  was
not open to the Special Judge court  to  take  cognizance  of  the  offences
without obtaining the previous sanction of the  Central  Government  by  the
respondent.



The learned Additional Solicitor General, on the other  hand,  appearing  on
behalf of CBI placed strong reliance on the decision of this  Court  in  the
case  of  Prakash  Singh  Badal  v.  Union  of  India[16]  to  buttress  his
contention that no sanction was required to be taken in the instant case  as
the Appellants have  entered  into  a  criminal  conspiracy,  therefore,  it
cannot be said to be a part of their official duty as the  public  servants.
The act of the appellants of transferring the plot in question in favour  of
the aforesaid society, allotted  in  favour  of  ICMR  for  the  purpose  of
construction of the flats and allotting the same in favour of the  employees
of ICPO-ICMR  society  without  obtaining  the  order  from  either  CEO  or
Chairman of the NOIDA with a motive to make  wrongful  gain  for  themselves
after entering into a conspiracy cannot be said to be an act that  has  been
carried out in discharge of their  official  duty.  The  learned  Additional
Solicitor General  placed  reliance  on  the  following  paragraphs  of  the
Prakash Singh Badal  case (supra):-



“49. Great emphasis has been led on certain decisions of this Court to  show
that even in relation to offences  punishable  under  Section  467  and  468
sanction is necessary. The foundation of the position has reference to  some
offences in Rakesh Kumar Mishra's  case.  That  decision  has  no  relevance
because ultimately this Court has held that the absence  of  search  warrant
was intricately with the making of search and the allegations about  alleged
offences had their matrix  on  the  absence  of  search  warrant  and  other
circumstances had a determinative role  in  the  issue.  A  decision  is  an
authority for what it actually decides. Reference to a  particular  sentence
in the context of the factual scenario cannot be read out of context.



50. The offence of cheating under Section 420 or for  that  matter  offences
relatable to  Sections  467,  468,  471  and  120B  can  by  no  stretch  of
imagination by their very nature be regarded as  having  been  committed  by
any public servant while  acting  or  purporting  to  act  in  discharge  of
official duty. In such cases, official status only provides  an  opportunity
for commission of the offence.”



Mr. P.P Khurana and  Mr.  Gopal  Subramaniam,  the  learned  senior  counsel
appearing on behalf of some of the appellants, on the  other  hand,  contend
that the decision in the Prakash Singh Badal case needs  to  be  appreciated
in light of the facts of that case. Thus, while stating  that  the  offences
under Sections 420,467,468,471  and  120B  of  IPC  can  by  no  stretch  of
imagination and by their very nature be regarded as  having  been  committed
by any public servant while acting or purporting to act in discharge of  his
official duty, this Court did not mean that merely because an  official  was
charged with an offence under these sections, no sanction  was  required  to
be taken. The learned counsel placed reliance on the following paragraph  of
the judgment to emphasise the same:

“51. In Baijnath v. State of M.P.  (1966  (1)  SCR  210)  the  position  was
succinctly stated as follows:

"..it is the quality of the Act that is important and  if  it  falls  within
the scope and range of his official  duty  the  protection  contemplated  by
Section 197 of the Code of Criminal Procedure will be attracted.”"



The learned senior counsel also placed reliance on  the  three  judge  bench
decision of  this  Court  rendered  in  the  case  of  Shreekantiah  Ramayya
Munipalli, referred to supra, wherein it was held as under:

“18. ....If Section 197 of the Code of Criminal Procedure is  construed  too
narrowly it can never be applied, for of  ofcourse  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....
19. 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.... Now it  is  evident  that  the  entrustment
and/ or domino 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....”


From a perusal of the case law referred to supra, it becomes clear that  for
the purpose of obtaining previous sanction from the  appropriate  government
under Section 197 of CrPC, it is imperative  that  the  alleged  offence  is
committed in  discharge  of  official  duty  by  the  accused.  It  is  also
important for the Court to examine the allegations contained  in  the  final
report against the  Appellants,  to  decide  whether  previous  sanction  is
required to be obtained by the respondent from  the  appropriate  government
before taking cognizance of the  alleged  offence  by  the  learned  Special
Judge against the accused. In the instant case, since the  allegations  made
against the Appellants in the final report filed by the respondent that  the
alleged offences were committed by  them  in  discharge  of  their  official
duty,  therefore,  it  was  essential  for  the  learned  Special  Judge  to
correctly decide as to  whether  the  previous  sanction  from  the  Central
Government under Section 197 of  CrPC  was  required  to  be  taken  by  the
respondent, before taking cognizance and passing an  order  issuing  summons
to the appellants for their presence.





Answer to Point No.3



We have  adverted  to  the  contentions  advanced  by  the  learned  counsel
appearing on behalf  of  both  the  parties.  We  find  much  merit  in  the
contention advanced by the learned senior counsel & other counsel  appearing
on behalf of the appellants and accept the same.  We  accordingly  pass  the
following order:





For the aforesaid reasons, we set aside the impugned judgment and  order  of
the High Court dated 27.05.2013 passed in Application   Nos.  480  of  2013,
41206, 40718, 41006 and 41187 of 2012 and order dated  7.10.2014  passed  in
Application No. 277KH of 2014 in Special Case No. 18 of 2012 and  quash  the
proceedings taking cognizance and issuing  summons  to  the  appellants   in
Special Case No. 18 of 2012 by the Special  Judge,  Anti  Corruption  (CBI),
Ghaziabad, U.P. in absence of previous sanction obtained  from  the  Central
Government to prosecute the appellants as  required  under  Section  197  of
CrPC. The appeals  are  allowed.  All  the  applications  are  disposed  of.


                       ………………………………………………………J.
                       [V. GOPALA GOWDA]


                                ………………………………………………………J.
                                [AMITAVA ROY]
 New Delhi,
 November 19, 2015

ITEM NO.1A-For Judgment      COURT NO.10               SECTION II

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  798/2015

PROF. N.K.GANGULY                                  Appellant(s)

                                VERSUS

CBI NEW DELHI                                      Respondent(s)

WITH
 Crl.A. No. 799/2015

 Crl.A. No. 800/2015

 Crl.A. No. 801/2015

 Crl.A. No. 930/2015

 Crl.A. No. 1537/2015 @ SLP (CRL.) NO.9838/2015 @ SLP (CRL.)...CRLMP
No.9612/2015

Date : 19/11/2015 These appeals were called on today  for  pronouncement  of
JUDGMENT.

For Appellant(s)  Mr. P.P. Khurana, Sr. Adv.
                     Mr. Arun K. Sinha,Adv.
                        Mr. Rajesh Singh Chauhan, Adv.
                        Mr. Sachin Sood, Adv.

                        Mr. Jetendra Singh, Adv.
                        Ms. Kalpana Sabharwal, Adv.
                        Ms. Priyanka Singh, Adv.
                     Ms. Manju Jetley,Adv.
                        Mr. Kumar Kaushik, Adv.
                        Mr. Bhupesh Sharma, Adv.
                        Mr. Shiv Ram Pandey, Adv.

                        Mr. S.D. Singh, Adv.
                        Mr. Vijay Kumar, Adv.
                        Mr. J. Singh, Adv.
                     Ms. Bharti Tyagi,Adv.

                        Mr. T. Srinivasa Murthy, Adv.
                        Ms. Shruti Iyer, Adv.
                        Mr. T. Rahman, Adv.
                        Mr. Kushagra Pandey, Adv.
                     Mr. Senthil Jagadeesan,Adv.

For Respondent(s)
                     Mr. B. V. Balaram Das,Adv.



  Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment  of  the  Bench
comprising His Lordship and Hon'ble Mr. Justice Amitava Roy.
       Delay  condoned.    Leave   granted   in   Special   Leave   Petition
(Crl.).........Crl.M.P. No.9612 of 2015.
      The appeals are allowed in terms of the signed Reportable Judgment.
      All the applications are disposed of.

|(VINOD KUMAR)                          | |(MALA KUMARI SHARMA)                  |
|COURT MASTER                           | |COURT MASTER                          |

(Signed Reportable Judgment is placed on the file)
-----------------------
[1]   [2]AIR 1951 SC 207
[3]   [4] AIR 1950 Cal 437
[5]   [6] AIR 1955 SC 287
[7]   [8] AIR 1939 FC 43
[9]   [10] AIR 1955 SC 309
[11]  [12] AIR 1948 PC 128
[13]  [14] AIR 1956 SC 44
[15]  [16] AIR 1960 SC 266
[17]  [18] AIR 1966 SC 220
[19]  [20] (1979) 4 SCC 177
[21]  [22] (1984) 2 SCC 183
[23]  [24] (1996) 1 SCC 478
[25]  [26] (2000) 8 SCC 500
[27]  [28] (2006) 4 SCC 584
[29]  [30] (2009)8 SCC 617
[31]  [32] (2007) 1 SCC 1

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