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Wednesday, July 13, 2016

The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution. -Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under the P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty.” - under Section 197 of the ‘Code’ and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). The procedure for obtaining sanction would be governed by the provisions of the ‘Code’ and/or as mandated under the special enactment. The words engaged in Section 197 of the ‘Code’ are, “...no court shall take cognizance of such offence except with previous sanction...”. Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides, “No Court shall take cognizance.. except with the previous sanction...”. The mandate is clear and unambiguous, that a Court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite.

                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.565 OF 2016
                  (Arising out of SLP(Crl.)No.3406 of 2008)


SURINDERJIT SINGH MAND & ANR.                     .......APPELLANTS

                                   VERSUS

STATE OF PUNJAB & ANR.                           .......RESPONDENTS


                               J U D G M E N T

Jagdish Singh Khehar, J.


1.    Leave granted.

2.    Surinderjit Singh Mand and P.S. Parmar,  the  appellants  before  this
Court, while holding the rank  of  Deputy  Superintendent  of  Police,  were
posted in District Kapurthala, in the State of Punjab, during  the  relevant
period in 1999. Piara Lal (holding the  rank  of  Assistant  Sub-Inspector),
was also posted at Kapurthala, at the same time.  The above mentioned  Piara
Lal’s son - Neeraj Kumar was officially arrested on 28.06.1999.  The  arrest
of Neeraj Kumar, was made in  furtherance  of  a  First  Information  Report
bearing No.30, which was registered at Police Station  City,  Kapurthala  on
03.03.1999. Before the arrest of Neeraj Kumar,  his  father  Piara  Lal  was
placed under suspension on 10.06.1999.  The aforesaid  FIR  No.30,  we  were
informed, was in respect of complaints  made  by  residents  of  Kapurthala,
pertaining to theft of motorcycles and other vehicles in the city.

3.    It was pointed out, that  while  investigating  into  the  allegations
contained in the complaint dated 03.03.1999, three persons including  Neeraj
Kumar were  arrested  on  28.06.1999.  Neeraj  Kumar  was  granted  bail  on
30.06.1999. In the above view of the matter,  it  is  apparent  that  Neeraj
Kumar had remained in jail for just about two/three  days  (from  28.06.1999
to 30.06.1999).  Usha Rani - mother of Neeraj  Kumar  (detained  during  the
investigation of FIR No. 30), filed a  representation  asserting,  that  her
son had been detained on 24.06.1999 (and not  on  28.06.1999,  as  alleged).
That would make the duration of  his  arrest  as  of  six/seven  days.   The
present controversy pertains to the additional four/five days of the  arrest
of Neeraj Kumar.  Her complaint highlighted, that her  son  –  Neeraj  Kumar
was apprehended illegally and unauthorisedly for the period from  24.06.1999
to 28.06.1999 i.e., for four/five days.

4.    Investigation into the complaint made by Usha Rani,  was  directed  to
be conducted in the first instance, by Munish Chawla, IPS.   In  the  report
submitted by him, it was concluded, that the charge levelled by  the  mother
of Neeraj Kumar, could  not  be  substantiated.  Yet  again,  based  on  the
accusations levelled by Usha Rani, another investigation was ordered.   This
time, it was required to be conducted by M.F. Farooqi, IPS.  Yet  again,  in
the second enquiry,  it  was  concluded,  that  there  was  no  material  to
establish that Neeraj Kumar had been in  police  detention  from  24.06.1999
onwards, till his formal arrest  on  28.06.1999.  Despite  the  two  reports
submitted by two senior police officers, wherein it  was  found  that  there
was no substance in the allegations levelled by  Usha  Rani,  Gurpreet  Deo,
IPS, at her own, investigated into the matter. She too arrived at  the  same
conclusion, that there was no substance in the claim of Usha Rani, that  her
son had been illegally and  unauthorisedly  detained  by  police  personnel,
prior to his formal arrest on 28.06.1999.

5.    Usha Rani (mother of Neeraj Kumar)  made  another  written  complaint,
this time to the Hon'ble  Administrative  Judge  (a  sitting  Judge  of  the
Punjab  and  Haryana  High  Court)  having  charge  of  Sessions   Division,
Kapurthala, on 01.10.1999.  In her complaint, she reiterated, that  her  son
Neeraj  Kumar  had  been  illegally  detained  by   police   personnel,   on
24.06.1999.  The Hon'ble Administrative Judge marked  the  complaint,  dated
01.10.1999, to an Additional District and  Sessions  Judge,  posted  in  the
Sessions Division of Kapurthala, requiring him to look into the  matter.  On
25.09.2000,  the  concerned  Additional   District   and   Sessions   Judge,
Kapurthala, submitted a  report  concluding,  that  Neeraj  Kumar  had  been
falsely implicated, because he and some other accused  had  been  discharged
by a Court, from the  proceedings  initiated  against  them.  Based  on  the
aforesaid report dated 25.09.2000, First Information Report  bearing  No.46,
came to be registered at Police Station City Kapurthala, on 22.10.2002.

6.    After completion of police investigation in the  above  FIR  No.46,  a
chargesheet was filed against six police officials,  in  the  Court  of  the
Chief Judicial Magistrate, Kapurthala, on 25.05.2003.  Before the  aforesaid
chargesheet was filed, the prosecution had obtained sanction  under  Section
197 of the Code of Criminal  Procedure  (hereinafter  referred  to  as,  the
‘Code’) for prosecuting the six concerned  police  officials.   It  is  also
relevant to mention, that it was the express contention of  the  appellants,
that on the conclusion of investigation, no involvement  of  the  appellants
had emerged, and therefore, their names were recorded in  Column  No.2.   It
was submitted, that the aforesaid depiction of the names of  the  appellants
in Column No.2 by itself, demonstrates their innocence  (with  reference  to
the allegations made by Usha Rani,  that  her  son  Neeraj  Kumar  had  been
illegally detained from 24.06.1999).

7.    It is not a matter of dispute, that  after  the  statements  of  three
prosecution witnesses were recorded by the trial Court, Usha Rani  moved  an
application under Section 319 of the ‘Code’ before the  trial  Judge  –  the
Chief Judicial Magistrate, Kapurthala, for  taking  cognizance  against  the
appellants herein.  The aforesaid  application  was  allowed  by  the  trial
Court, on 06.09.2003.  Thereupon, the appellants were summoned by the  Chief
Judicial Magistrate, Kapurthala, to face trial.   The  appellants  contested
their summoning before the trial Court by asserting, that their  prosecution
was unsustainable in law, because no  sanction  had  been  obtained  by  the
prosecution under Section 197 of the ‘Code’,  before  cognizance  was  taken
against them.

8.    Consequent upon the appellants  having  been  summoned  by  the  trial
Court, charges were framed against them on 23.12.2006.  The order passed  by
the trial Court framing charges against the  appellants  on  23.12.2006  was
assailed by the appellants, through Criminal Revision No.348  of  2007.  The
primary submission advanced on behalf of  the  appellants  before  the  High
Court was, that the Chief Judicial Magistrate, Kapurthala,  could  not  have
proceeded against them, in the absence of  sanction  of  prosecution,  under
Section 197 of the ‘Code’. The High Court, by its  order  dated  09.01.2008,
dismissed the Criminal Revision filed by the  appellants.  The  above  order
dated 09.01.2008 is subject matter of challenge through the instant appeal.

9.    Mr. Ram Jethmalani, learned senior counsel appearing on behalf of  the
appellants, in order to support the claim of the appellants, has  drawn  our
attention to Section 197 of the ‘Code’, which is extracted hereunder:
            “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 (save as otherwise provided  in  the  Lokpal  and  Lokayuktas  Act,
2013)-
(a) in the case of a person who is employed or, as the case may be,  was  at
the time of commission of the alleged offence employed, in  connection  with
the affairs of the Union, of the Central Government;
(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.
                       XXX                   XXX             XXX
(4) The Central Government or the State Government, as the case may be,  may
determine the person by whom, the  manner  in  which,  and  the  offence  or
offences for which, the prosecution of  such  Judge,  Magistrate  or  public
servant is to be conducted, and may  specify  the  Court  before  which  the
trial is to be held.”
                                         (emphasis is ours)
The learned senior counsel highlighted, that sanction under Section  197  of
the ‘Code’ is mandatory, where the concerned public servant  is  alleged  to
have committed an  offence  “while  acting  or  purporting  to  act  in  the
discharge of his official duty”.

10.   In order to demonstrate the ambit and scope of the term “while  acting
or purporting to act in the discharge of his official duty”, learned  senior
counsel placed reliance on Dr. Hori Ram Singh vs.  Emperor,  AIR  (1939)  FC
43, wherein the Court has observed as under:
“But Sec.477-A  in  express  terms  covers  the  case  of  an  officer,  who
willfully falsifies accounts which may be his duty to  maintain.  They  have
apparently put theft, embezzlement, or breach of trust on exactly  the  same
footing as falsification of accounts, and have not considered the charge  of
falsifying the accounts separately from that of criminal  breach  of  trust.
This is ignoring the significance of  the  words  “purporting  to  be  done”
which are no  less  important.  They  have  thought  that  an  act  done  or
purporting to be done in the execution of his  duty  as  a  servant  of  the
Crown cannot by any stretching of the English language be made to  apply  to
an act which is clearly a dereliction of his duty as such.
But if an act has purported to be done in execution of duty, it may be  done
so, only ostensibly and not really, and if done dishonestly may still  be  a
dereliction of duty. The High Court Bench  have  taken  the  view  that  the
Section is clearly meant to apply to an act by a public servant which  could
be done in good faith,  but  which  possibly  might  also  be  done  in  bad
faith.....The Section cannot be meant to apply to cases  where  there  could
be no doubt that the act alleged must be in bad faith.
So far as sub-s. (1) is concerned, the question of good faith or  bad  faith
cannot strictly arise, for the words used are not only “any act done in  the
execution of his duty” but also “any  act  purporting  to  be  done  in  the
execution of his duty.” When an act is not done  in  the  execution  of  his
duty, but purports to have been done in the execution of his  duty,  it  may
very well be done in bad faith; and even an act which cannot at all be  done
in execution of duty if another is made  to  believe  wrongly  that  it  was
being done in execution of duty. It is therefore not  possible  to  restrict
the applicability of the Section to only  such  cases  where  an  act  could
possibly have been done both in good and bad faith. Of course, the  question
of good or bad faith cannot be  gone  into  at  the  early  stage  at  which
objection may be taken. Making false entries in a register may  well  be  an
act purported to be done in execution of duty, which would  be  an  offence,
although it can never be done in good faith. It is sub-sec. (2)  only  which
introduces the element of good  faith,  which  relieves  the  Court  of  its
obligation to dismiss the  proceedings.  But  that  sub-section  relates  to
cases even previously instituted and in which there may not be a  defect  of
want of consent, and is therefore  quite  distinct  and  separate,  and  not
merely ancillary to sub-s.(1),  as  the  learned  Sessions  Judge  supposed.
Having regard to the ordinary and natural meaning of the  words  “purporting
to be done,” it is difficult to say that it necessarily implies  “purporting
to be done in good faith,” for a person who ostensibly acts in execution  of
his duty still purports  so  to  act,  although  he  may  have  a  dishonest
intention.”
                                                          (emphasis is ours)

Reliance was also placed on Sankaran Moitra vs. Sadhna  Das,  (2006)  4  SCC
584, wherefrom our attention was drawn to the following paragraph:
“25. The High Court has stated that killing of a person by use of  excessive
force could never be performance of duty. It may be correct  so  far  as  it
goes. But the question is whether that act was done in  the  performance  of
duty or in purported performance of duty. If it was done in  performance  of
duty or purported performance of duty, Section 197(1) of the Code cannot  be
bypassed by reasoning that killing a man could never be done in an  official
capacity  and  consequently  Section  197(1)  of  the  Code  could  not   be
attracted. Such a reasoning would be against the ratio of the  decisions  of
this Court referred to earlier. The other reason given  by  the  High  Court
that if the High Court were to interfere on the ground of want of  sanction,
people will lose faith in the judicial process, cannot also be a  ground  to
dispense with a statutory requirement or protection.  Public  trust  in  the
institution can be maintained  by  entertaining  causes  coming  within  its
jurisdiction, by performing  the  duties  entrusted  to  it  diligently,  in
accordance with  law  and  the  established  procedure  and  without  delay.
Dispensing with  of  jurisdictional  or  statutory  requirements  which  may
ultimately affect the adjudication itself,  will  itself  result  in  people
losing faith in the system. So, the reason in that behalf given by the  High
Court cannot be sufficient to enable  it  to  get  over  the  jurisdictional
requirement of a sanction under Section  197(1)  of  the  Code  of  Criminal
Procedure. We are therefore satisfied that the High Court was  in  error  in
holding that sanction under Section 197(1) was not needed in this  case.  We
hold that  such  sanction  was  necessary  and  for  want  of  sanction  the
prosecution must be quashed at this stage. It is not for us  now  to  answer
the submission of learned counsel  for  the  complainant  that  this  is  an
eminently fit case for grant of such sanction.”
                                                          (emphasis is ours)

In order to  substantiate  the  proposition  being  canvassed,  the  learned
senior counsel, also invited our attention  to  R.  Balakrishna  Pillai  vs.
State of Kerala, (1996) 1 SCC 478, wherein this Court has held as under:
“6. The next question is whether the offence alleged against  the  appellant
can be said to have been committed by him while acting or purporting to  act
in the discharge of his official duty.  It  was  contended  by  the  learned
counsel for the State that  the  charge  of  conspiracy  would  not  attract
Section 197 of the Code for the simple reason that it  is  no  part  of  the
duty of a Minister while discharging his official duties  to  enter  into  a
criminal  conspiracy.  In  support  of  his  contention,  he  placed  strong
reliance on the decision of this  Court  in  Harihar  Prasad  vs.  State  of
Bihar, (1972) 3 SCC 89.  He  drew  our  attention  to  the  observations  in
paragraph 74  of  the  judgment  where  the  Court,  while  considering  the
question whether the acts complained of were  directly  concerned  with  the
official duties of the public servants concerned, observed that  it  was  no
duty of a public servant to enter into a criminal conspiracy and hence  want
of sanction under Section 197 of the Code was no  bar  to  the  prosecution.
The question whether the acts complained of had a direct nexus  or  relation
with the discharge of official duties by the public servant concerned  would
depend on the facts of each case. There can be no general  proposition  that
whenever there is a charge of criminal conspiracy levelled against a  public
servant in or out of office the bar of Section  197(1)  of  the  Code  would
have no application. Such a view would render Section  197(1)  of  the  Code
specious. Therefore, the question would have to be examined in the facts  of
each case. The observations were made by the Court in the special  facts  of
that case which clearly indicated that the criminal conspiracy entered  into
by the three delinquent public servants  had  no  relation  whatsoever  with
their official duties and, therefore, the bar  of  Section  197(1)  was  not
attracted. It must also be remembered that the said  decision  was  rendered
keeping in view Section 197(1), as it then stood, but we  do  not  base  our
decision on that distinction. Our attention was next  invited  to  a  three-
Judge decision in B. Saha vs. M.S. Kochar, (1979) 4 SCC  177.  The  relevant
observations relied upon are to be found in paragraph 17  of  the  judgment.
It is pointed  out  that  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 Section 197(1) of the code, are capable  of  both  a
narrow and a wide interpretation but their Lordships  pointed  out  that  if
they were 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". At the same time, if they were  too  widely  construed,  they
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 is purported to  be  performed.  The  right  approach,  it  was
pointed out, was to see that the meaning of  this  expression  lies  between
these 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.   Only   an   act
constituting an offence directly or reasonably connected with  his  official
duty will require sanction for prosecution. To put it  briefly,  it  is  the
quality of the act that is important, and if it falls within  the  scope  of
the aforequoted words, the  protection  of  Section  197  will  have  to  be
extended to the public servant concerned. This decision,  therefore,  points
out what approach the Court should adopt while construing Section 197(1)  of
the Code and its application to the facts of the case on hand.

7.    In the present case, the appellant  is  charged  with  having  entered
into a criminal conspiracy  with  the  co-accused  while  functioning  as  a
Minister. The criminal conspiracy alleged is that he sold electricity to  an
industry in the State of Karnataka “without the consent  of  the  Government
of Kerala which is an illegal act” under the provisions of  the  Electricity
(Supply)  Act,  1948  and  the  Kerala  Electricity   Board   Rules   framed
thereunder. The allegation is that he  in  pursuance  of  the  said  alleged
conspiracy abused his official position and illegally sold certain units  to
the private industry in Bangalore (Karnataka)  which  profited  the  private
industry to the tune of  Rs.19,58,630.40  or  more  and  it  is,  therefore,
obvious that the criminal conspiracy alleged against the appellant  is  that
while functioning as the Minister for Electricity he without the consent  of
the Government of Kerala supplied certain units of electricity to a  private
industry in Karnataka. Obviously, he  did  this  in  the  discharge  of  his
duties as a Minister. The allegation is that it was an illegal act  inasmuch
as the consent of the Government of Kerala  was  not  obtained  before  this
arrangement was entered into and the supply was effected. For  that  reason,
it is said that he had committed an illegality and hence he  was  liable  to
be punished for criminal conspiracy  under  Section  120-B,  I.P.C.  It  is,
therefore, clear from the charge  that  the  act  alleged  is  directly  and
reasonably connected with  his  official  duty  as  a  Minister  and  would,
therefore, attract the protection of Section 197(1) of the Act.”

                                                          (emphasis is ours)
Reliance was finally placed on P.K. Pradhan vs. State of  Sikkim,  (2001)  6
SCC 704,  and  our  attention  was  drawn,  to  the  following  observations
recorded therein:
“5. The legislative mandate engrafted in sub  section  (1)  of  Section  197
debarring a court from taking cognizance  of  an  offence  except  with  the
previous sanction of the Government 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  a  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 inter-related that one can  postulate  reasonably  that  it  was
done by the accused in the performance of official  duty,  though,  possibly
in excess of the needs and requirements of situation.
                       XXX                   XXX             XXX

15. Thus, from a conspectus of the aforesaid decisions,  it  will  be  clear
that for claiming protection under Section 197 of the Code,  it  has  to  be
shown by the accused that there is reasonable  connection  between  the  act
complained of and the discharge of official duty. An  official  act  can  be
performed in the discharge of official duty as well  as  in  dereliction  of
it. For invoking protection under Section 197 of the Code, the acts  of  the
accused complained of must be such that the same cannot  be  separated  from
the discharge of official duty, but if there was  no  reasonable  connection
between them and the  performance  of  those  duties,  the  official  status
furnishes only the occasion or opportunity for the acts,  then  no  sanction
would be required. If the case as put forward by the  prosecution  fails  or
the defence establishes that the act purported to be done  is  in  discharge
of duty, the proceedings will have to be dropped. It is  well  settled  that
question of sanction under Section 197 of the Code can be  raised  any  time
after the cognizance; maybe  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 a  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.”
                                                          (emphasis is ours)



All in all, based on the judgments referred  to  above,  it  was  contended,
that even if it was assumed that Neeraj Kumar had been detained with  effect
from 24.06.1999, his detention  by  the  appellants  was  “while  acting  or
purporting to act” in the discharge  of  the  appellants’  official  duties.
And as such, the Chief  Judicial  Magistrate,  Kapurthala,  could  not  have
taken cognizance, without sanction under Section 197 of the ‘Code’.

11.   Mr. Varinder S. Rana,  learned  counsel,  who  entered  appearance  on
behalf of respondent no. 2, seriously contested the submissions advanced  on
behalf of the appellants.  Learned counsel representing  respondent  no.  2,
placed reliance on the following observations recorded by  the  High  Court,
in the impugned order :
“As  far  as  question  of  sanction  for  prosecution  of  petitioners   is
concerned, the contentions raised by learned  counsel  for  the  petitioners
could possibly be applicable for the detention period since 28.06.1999  when
Neeraj Kumar was shown to have been arrested in FIR No.30 dated  03.03.1999.
However, the petitioners are not entitled to protection of  Section  197  of
the Code for illegal detention and torture of Neeraj Kumar since  24.06.1999
till 28.06.1999 when his arrest was shown in  FIR  No.30  dated  03.03.1999.
The said period of illegal detention and torture  has  no  nexus  much  less
reasonable nexus with the discharge or purported discharge of  the  official
duty of the petitioners.  Consequently, the impugned order  cannot  be  said
to be illegal because sanction for prosecution of  the  petitioners  is  not
required for illegal detention  and  torture  of  Neeraj  Kumar  during  the
aforesaid period.”
                                                          (emphasis is ours)

In order to support  the  conclusions  drawn  by  the  High  Court,  learned
counsel for respondent no. 2, also drew our attention  to,  Om  Prakash  vs.
State of Jharkhand, (2012) 12 SCC 72, wherein this Court held as under :
“32. The true test as to whether a public servant was acting  or  purporting
to act in discharge of his duties would be whether  the  act  complained  of
was directly connected with his official  duties  or  it  was  done  in  the
discharge of his official duties or it was so integrally connected  with  or
attached to his office as to be inseparable from it  (K.  Satwant  Singh  v.
State of Punjab, AIR 1960 SC 266). The protection given  under  Section  197
of the Code has certain limits and is available only when  the  alleged  act
done by the public servant is reasonably connected  with  the  discharge  of
his official duty and is not merely a  cloak  for  doing  the  objectionable
act. If in doing his official duty, he acted in  excess  of  his  duty,  but
there is a reasonable connection between the act and the performance of  the
official duty, the excess will not be a sufficient  ground  to  deprive  the
public servant of the protection (State of Orissa vs.  Ganesh  Chandra  Jew,
(2004) 8 SCC 40). If the above  tests  are  applied  to  the  facts  of  the
present case, the police must get protection given under Section 197 of  the
Code because the acts complained of are  so  integrally  connected  with  or
attached to their office as to be inseparable from it. It  is  not  possible
for us to come to a conclusion that the  protection  granted  under  Section
197 of the Code is used by the police personnel in this case as a cloak  for
killing the deceased in cold blood.”
                                                          (emphasis is ours)

Reliance was then placed on Usharani vs. The Commissioner of Police,  (2015)
2 KarLJ 511 (a judgment rendered by the Karnataka High Court), to  highlight
the  importance  and  significance  of  personal  liberty,  specially   with
reference to unlawful detention wherein  it  has  been  observed  as  under:

“10. In Constitutional and Administrative Law by Hood Phillips and  Jackson,
it is stated thus:

“The legality of any form of detention may be challenged at  common  law  by
an  application  for  the  writ  of  habeas  corpus.  Habeas  corpus  was  a
prerogative writ, that is, one issued by the King against  his  officers  to
compel them to exercise their functions properly. The  practical  importance
of  habeas  corpus  as  providing  a  speedy   judicial   remedy   for   the
determination  of  an  applicant’s  claim  for  freedom  has  been  asserted
frequently by judies and writers. Nonetheless,  the   effectiveness  of  the
remedy depends in many instances on the width of the statutory  power  under
which a public authority may be acting and the willingness of the Courts  to
examine the legality of decision made in reliance on  wideranging  statutory
provision. It has been suggested that the need for  the  “blunt  remedy’  of
habeas corpus has diminished as judicial review has developed into  an  ever
more  flexible  jurisdiction.  Procedural  reform  of  the   writ   may   be
appropriate,  but  it  is  important  not  to  lose  sight  of   substantive
differences between habeas corpus and remedies under  judicial  review.  The
latter are discretionary and  the  court  may  refuse  relief  on  practical
grounds; habeas corpus is a writ of right, granted ex debito justitiae.”

11. The ancient prerogative writ of habeas corpus takes its  name  from  the
two mandatory words “habeas” and “corpus”. ‘Habeas Corpus’  literally  means
‘have his body’. The general purpose of these writs as their name  indicates
was to obtain the production of the individual before a Court  or  a  Judge.
This is a prerogative process for securing the liberty  of  the  subject  by
affording  an  effective  relief  of  immediate  release  from  unlawful  or
unjustifiable detention, whether in prison or in private custody. This is  a
writ of such a sovereign and transcendent authority  that  no  privilege  of
power or place can stand against it. It is a very powerful safeguard of  the
subject against arbitrary acts not only of private individuals but  also  of
the Executive, the greatest safeguard for  personal  liberty,  according  to
all constitutional jurists. The writ is a prerogative one obtainable by  its
own procedure. In England, the jurisdiction  to  grant  a  writ  existed  in
Common Law, but has been recognized and extended  by  statute.  It  is  well
established in England that the writ of habeas corpus is  as  of  right  and
that the Court has  no  discretion  to  refuse  it.  “Unlike  certiorari  or
mandamus, a writ of habeas corpus is as  of  right  “to  every  man  who  is
unlawfully detained. In India, it is this prerogative writ  which  has  been
given  a  constitutional  status  under  Articles  32   and   226   of   the
Constitution. Therefore, it  is  an  extraordinary  remedy  available  to  a
citizen of this Country, which he can enforce under  Article  226  or  under
Article 32 of the Constitution of India.”
                                                          (emphasis is ours)

12.   The first task,  which  a  Court  is  obliged  to  embark  upon,  when
confronted with a proposition of the nature in hand, is to ascertain  as  to
whether the alleged offence, attributed to the accused, had  been  committed
by an accused “while acting or purporting to act in  the  discharge  of  his
official duty”.  In the facts and circumstances of  the  present  case,  the
alleged  action  constituting   the   allegations   levelled   against   the
appellants, is based on the  arrest  and  detention  of  Neeraj  Kumar  from
24.06.1999 upto 28.06.1999 (before, he was admitted to  have  been  formally
arrested on 28.06.1999).

13.    Insofar  as  the  power   of   arrest   and   detention   by   police
officials/officers is concerned, reference may be made to Section 36 of  the
‘Code’ which postulates, that all police officers superior  in  rank  to  an
officer in charge of a police station,  are  vested  with  an  authority  to
exercise the same powers (throughout the  local  area,  to  which  they  are
appointed), which can be exercised by the officer  in  charge  of  a  police
station.  Section 49 of the ‘Code’ postulates, the manner in which a  police
officer is to act, while taking an individual in custody. Section 49 of  the
‘Code’,  cautions  the  person  making  the  arrest  to  ensure,  that   the
individual taken into custody, is not subjected to more  restraint  than  is
necessary, to prevent his escape.  Section 50 of the ‘Code’  mandates,  that
every police officer arresting  a  person  without  a  warrant  (as  is  the
position, alleged in the present case), is mandated  to  forthwith  disclose
to the person taken in custody, full particulars of the  offence  for  which
he is arrested, as also, the grounds for such arrest.  Section  50A  obliges
the   police   officer   making   the   arrest,   to   immediately    inform
friends/relatives of the arrested person (on obtaining particulars from  the
arrested person), regarding his detention.  And an entry of the arrest,  and
the communication of the information of the arrest to the  person  nominated
by the detenu, has to be recorded in a register  maintained  at  the  police
station, for the said purpose. Section 50A  of  the  ‘Code’  also  mandates,
that the Magistrate before whom such an arrested person is  produced,  would
satisfy himself that the obligations  to  be  discharged  by  the  arresting
officer, had been complied with.

14.   Based on the aforesaid provisions of the ‘Code’, there cannot  be  any
serious doubt about the fact, that Surinderjit Singh Mand and  P.S.  Parmar,
were holding the rank of Deputy Superintendent of Police,  at  the  relevant
time (from 24.06.199 to 28.06.1999).  Both the appellants were  “...officers
superior in rank to an officer in charge of a police station...”.  Both  the
appellants were  therefore  possessed  with  the  authority  to  detain  and
arrest, Neeraj Kumar at the relevant time (from 24.06.1999  to  28.06.1999).
The question for complying with the requirements in Sections 49, 50 and  50A
does  not  arise  for  the  period  under  reference  (from  24.06.1999   to
28.06.1999), because Neeraj Kumar according to official police records,  was
arrested only on 28.06.1999.  The position adopted by  the  appellants  was,
that Neeraj Kumar was not under detention for the period from 24.06.1999  to
28.06.1999.

15.   Keeping the legal position emerging from the provisions of the  ‘Code’
referred to in the foregoing paragraphs in mind, it was  the  contention  of
learned counsel for the respondents,  that  in  order  to  require  sanction
under Section 197 of the ‘Code’, it needs to be  further  established,  that
the appellants had acted in the manner provided for under the provisions  of
the ‘Code’, during the period Neeraj  Kumar  was  allegedly  arrested  (from
24.06.1999 to 28.06.1999),  i.e.,  before  his  admitted  formal  arrest  on
28.06.1999. And only if  they  had  done  so,  the  requirement  of  seeking
sanction under Section 197 would  arise,  because  in  that  situation,  the
offence allegedly committed would be taken to  have  been  committed  “while
acting or purporting to act in the discharge of their official duties”.   In
the present case, the arrest and detention of Neeraj Kumar  from  24.06.1999
to 28.06.1999, is denied.  The formalities postulated under the  ‘Code’,  on
the alleged arrest of  Neeraj  Kumar  on  24.06.1999,  were  admittedly  not
complied with,  as  according  to  the  appellants,  Neeraj  Kumar  was  not
arrested on that date.  It was  therefore  submitted,  that  any  arrest  or
detention prior to 28.06.1999, if true, was obviously without following  the
mandatory  conditions  of  arrest  and  detention,  contemplated  under  the
provisions (referred to above).  And therefore, would not  fall  within  the
realm of “acting or purporting to act in the  discharge  of  their  official
duties”.

16.   In  order  to  support  the  submissions  recorded  in  the  foregoing
paragraphs, learned counsel for the  respondents  placed  reliance  on  P.P.
Unnikrishnan vs. Puttiyottil Alikutty, (2000) 8 SCC  131,  and  invited  our
attention to the following observations recorded therein:
“21.  If a police officer  dealing  with  law  and  order  duty  uses  force
against unruly persons, either in his own defence or in  defence  of  others
and exceeds such right it may amount to an   offence.   But   such   offence
might  fall  within    the amplitude  of  Section 197 of the  Code  as  well
as  Section 64(3) of the KP  Act.   But  if  a  police  officer  assaults  a
prisoner  inside  a lock-up he cannot claim such act  to  be connected  with
the  discharge  of  his  authority  or  exercise  of  his   duty  unless  he
establishes that he did such acts in his defence or in defence of others  or
any property.  Similarly, if   a   police   officer  wrongfully  confines  a
person  in the lock-up beyond a period of 24 hours without the  sanction  of
a Magistrate or an order of a court it would be an  offence for   which   he
cannot claim any protection  in   the normal course,     nor  can  he  claim
that such act was done in exercise  of  his  official   duty.  A   policeman
keeping  a   person  in  the  lock-up  for   more   than  24  hours  without
authority is not merely  abusing  his  duty  but  his  act  would  be  quite
outside the contours of his duty or authority.”
                                                          (emphasis is ours)

Based on the provisions of the ‘Code’, pertaining to  arrest  and  detention
of individuals at the hands of police personnel (referred to above), it  was
submitted, that the arrest of Neeraj Kumar  from  28.06.1999  to  30.06.1999
would unquestionably fall within the purview of  “acting  or  purporting  to
act in the discharge of  his  official  duties”  (of  the  concerned  police
officers/officials who arrested Neeraj  Kumar).  It  was  however  asserted,
that if the arrest of Neeraj Kumar from 24.06.1999 to 28.06.1999 (before  he
was formally detained on 28.06.1999) is found to be factually correct,  such
arrest of Neeraj  Kumar  cannot  be  accepted  to  have  been  made  by  the
appellants  –  Surinderjit  Singh  Mand  and  P.S.Parmar,  while  acting  or
purporting to act  in  the  discharge  of  their  official  duties.  It  was
therefore submitted, that any alleged criminality, in  connection  with  the
detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, would  not  require
to be sanctioned  under  Section  197,  before  the  concerned  Court,  took
cognizance of the matter, against the concerned public servants.

17.   Having given our thoughtful consideration to the  contention  advanced
at the hands of learned counsel for the respondents, we  are  of  the  view,
that the decision rendered by this  Court  in  the  P.P.  Unnikrishnan  case
(supra) is clear and emphatic. The same does not leave any room  for  making
any choice. It is apparent, that the official  arrest  of  Neeraj  Kumar  in
terms of the provisions  of  the  ‘Code’,  referred  to  hereinabove,  would
extend during the period from 28.06.1999 to 30.06.1999. The above period  of
apprehension can legitimately be considered  as,  having  been  made  “while
acting or purporting to act in the  discharge  of  their  official  duties”.
The factual position expressed by the appellants is, that Neeraj  Kumar  was
not detained for the period from 24.06.1999 to  28.06.1999.   His  detention
during the above period, if true, in our considered  view,  would  certainly
not emerge from the action of the accused while acting or purporting to  act
in the discharge of their official duties.   If  it  emerges  from  evidence
adduced before the trial Court, that  Neeraj  Kumar  was  actually  detained
during the period from 24.06.1999 to 28.06.1999, the said  detention  cannot
be taken to have been made by the accused while acting or purporting to  act
in the discharge of their official duties. More so, because it  is  not  the
case of the appellants, that they had kept Neeraj Kumar in jail  during  the
period from 24.06.1999 to 28.06.1999.  If they had not detained  him  during
the above period, it is not open to anyone to assume the position, that  the
detention of Neeraj Kumar, during the above  period,  was  while  acting  or
purporting to act in the discharge of their official duties.  Therefore,  in
the peculiar facts and circumstances  of  this  case,  based  on  the  legal
position declared by this Court in the P.P. Unnikrishnan  case  (supra),  we
are of the considered view, that sanction for prosecution of the accused  in
relation to the detention of Neeraj Kumar for the period from 24.06.1999  to
28.06.1999,  would  not  be  required,   before   a   Court   of   competent
jurisdiction, takes cognizance with  reference  to  the  alleged  arrest  of
Neeraj Kumar.  We therefore hereby, endorse the  conclusions  drawn  by  the
High Court, to the above effect.

18.   It was also the contention of  learned  counsel  for  the  appellants,
that the protection afforded to public servants under  Section  197  of  the
‘Code’, postulating sanction prior to prosecution, on account  of  the  acts
committed while discharging their  official  duties,  is  to  shield  public
servants from frivolous harassment of prosecution, at the hands  of  private
individuals. It was therefore, the submission of  learned  counsel  for  the
respondents, that the scope and  purview  of  Section  197  of  the  ‘Code’,
should be limited to the initiation of criminal proceedings  under  Chapter-
XIV of the ‘Code’, wherein such initiation is postulated under  Section  190
(upon receipt of a complaint, wherein facts disclose the  commission  of  an
offence, or upon  a  police  report  of  such  facts,  or  upon  information
received from any person other than a police officer, that such offence  had
been committed).  In all the above situations, it is open  to  a  Magistrate
to take cognizance of such offence subject to the condition, that  the  same
falls within the jurisdictional  competence  of  the  said  Magistrate.  The
Magistrate would however proceed against a public  servant,  after  sanction
has been granted by the concerned Government.  And in case,  the  same  does
not fall within the competence of a Magistrate, to commit it to a  Court  of
Session, which can take cognizance of the same, as provided for  by  Section
193 of the ‘Code’.  Whereupon, the Court to which the  matter  is  committed
may proceed against a public servant, after sanction  has  been  granted  by
the concerned Government under Section 197 of the ‘Code’. In emphasizing  on
the above scope of sanction, it was pointed out, that  Section  197  of  the
‘Code’ being a part of Chapter-XIV of the ‘Code’,  its  applicability  would
extend to the provisions under Chapter-XIV alone.  It  was  submitted,  that
Section 319 of the ‘Code’ is contained in Chapter XXIV, over  which  Section
197 can have no bearing.

19.    In  continuation  of  the  submissions  noticed  in   the   foregoing
paragraphs,  it  was  asserted   by   learned   counsel   representing   the
respondents, that the prosecution contemplated  under  Section  197  of  the
‘Code’, and the action  of  the  Court  in  taking  cognizance,  pertain  to
actions initiated on the basis of complaints, which disclose the  commission
of an offence, or on a police report of  such  facts,  or  upon  receipt  of
information from a person other than the police officer, that  such  offence
had been committed.  It was  asserted,  that  the  above  action  of  taking
cognizance by a Court, is based on alleged “facts”  and  not  “on  evidence”
recorded by a Court.  The  above  distinction  was  drawn  by  referring  to
Section 190 of the ‘Code’ which contemplates initiation  of  action  on  the
basis of facts alleged against an accused, as against, Section  319  of  the
‘Code’ whereunder action is triggered against the concerned person  only  if
it appears from the evidence  recorded  during  the  trial,  that  the  said
person was involved in  the  commission  of  an  offence.   While  making  a
reference to Section 319 of the ‘Code’, it was submitted on  behalf  of  the
respondents, that cognizance taken under Section 319 of the ‘Code’,  was  by
the Court itself, and therefore, the same having been based  on  “evidence”,
as also, the satisfaction of the Court itself, that such  person  needed  to
be tried together with the “other accused”,  it  seemed  unreasonable,  that
sanction postulated  under  Section  197  of  the  ‘Code’  should  still  be
required. It  was  pointed  out,  that  the  protection  contemplated  under
Section  197  of  the  ‘Code’,  was  not  a  prerequisite  necessity,   when
cognizance was based on the evaluation of  “evidence”  by  a  Court  itself.
Learned counsel emphasized, that when a Court itself  had  determined,  that
cognizance was required to be  taken,  based  on  evidence  which  had  been
recorded by the same Court, it would be undermining  the  authority  of  the
concerned Court, if its judicial determination, was  considered  subservient
to the decision taken by the authorities contemplated under Section  197  of
the ‘Code’.  Based on the submissions noticed above,  it  was  the  vehement
contention of learned counsel for  the  respondents,  that  the  mandate  of
Section 197 would not extend to cases where cognizance had been taken  under
Section 319 of the ‘Code’.

20.   While dealing with the first contention, we have already recorded  our
conclusions,  which  are  sufficient  to  dispose  of   the   matter   under
consideration.  But, an important legal proposition has been  canvassed,  as
the second submission, on behalf of the respondents (which we have  recorded
in the foregoing paragraph).  Since it squarely  arises  in  the  facts  and
circumstances of this case, we consider it our bounden duty, to  render  our
determination thereon, as well.  In the succeeding paragraphs, we will  deal
with the second contention.

21.   Insofar as the second contention advanced  at  the  hands  of  learned
counsel for the respondents is concerned, we are of the view that  there  is
sufficient existing precedent, to  draw  a  conclusion  in  respect  of  the
proposition canvassed. Reference in  the  first  instance  may  be  made  to
Dilawar Singh vs. Parvinder Singh alias Iqbal  Singh,  (2005)  12  SCC  709.
The following observations in the above cited judgment are of  relevance  to
the present issue:
“2.   It is necessary to mention the basic facts giving rise to the  present
appeals. On the complaint made by the wife, a case  was  registered  against
Parvinder Singh @ Iqbal Singh under  Section  406/498-A  IPC.  On  27.1.2000
Parvinder Singh @ Iqbal Singh gave a complaint to the SSP, Barnala  alleging
that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his  house  on
a scooter and forcibly took him  to  the  Police  Station  Barnala.  He  was
beaten and tortured and was subjected to third-degree methods. Some  of  his
relatives, namely, Jarnail Singh, Sukhdev  Singh,  Sadhu  Singh  Grewal  and
Sukhdev Singh Virk came to the  police  station  and  requested  the  police
personnel not to beat  or  torture  him.  It  was  further  alleged  in  the
complaint that Jasbir Singh,  ASI,  told  them  that  they  should  talk  to
Dilawar Singh, S.H.O., who was sitting there on  a  chair.    Dilawar  Singh
then demanded an amount of Rs.20,000/- for releasing  Parvinder  Singh.  His
relations then brought the amount, out of which Rs.15,000/- was  offered  to
Dilawar Singh but he said that the money may be handed over  to  ASI  Jasbir
Singh.  The amount of Rs.15,000/- was then given to ASI  Jasbir  Singh,  who
kept the same in the pocket of his  coat.   Parvinder  Singh  was  medically
examined on 28.1.2000 and a case was registered under Section 13(2)  of  the
Prevention of Corruption Act, 1988 (hereinafter referred to as  "the  Act").
After investigation, charge-sheet was  submitted  only  against  ASI  Jasbir
Singh. A closure report was submitted against Dilawar Singh,  S.H.O.  as  in
the opinion of the investigating officer he had not committed  any  offence.
It may  be  mentioned  here  that  for  prosecution  of  ASI  Jasbir  Singh,
necessary sanction had been obtained  from  the  competent  authority  under
Section 19 of the Act.  After the statement  of  the  complainant  Parvinder
Singh had been recorded, he moved an application under Section  319  Cr.P.C.
for summoning Dilawar Singh, S.H.O. as a  co-accused  in  the  case.   After
hearing the counsel for the parties, the  learned  Special  Judge  dismissed
the application by the  order  dated  7.1.2002.   Parvinder  Singh  filed  a
revision petition against the aforesaid order which has been allowed by  the
High Court by the impugned order dated 3.7.2002 and  a  direction  has  been
issued to summon Dilawar Singh and try him in accordance with law.
                       XXX                   XXX             XXX

4.     In our opinion, the contention raised by the learned counsel for  the
appellant is well founded.  Sub-section (1) of Section 19 of the Act,  which
is relevant for the controversy in dispute, reads as under :

"19. Previous sanction necessary for prosecution.-(1)  No court  shall  take
cognizance of an offence punishable under sections 7,  10,  11,  13  and  15
alleged to have  been  committed  by  a  public  servant,  except  with  the
previous sanction, -
(a)   in the case of a  person  who  is  employed  in  connection  with  the
affairs of the Union and is not removable from his office save  by  or  with
the sanction of the Central Government, of that Government;
(b)   in the case of a  person  who  is  employed  in  connection  with  the
affairs of a State and is not removable from his  office  save  by  or  with
sanction of the State Government, of that Government;
(c)   in the case of any other person, of the authority competent to  remove
him from his office."

This section creates a complete bar on  the  power  of  the  Court  to  take
cognizance of an offence punishable under Sections 7,  10,  11,  13  and  15
alleged to have  been  committed  by  a  public  servant,  except  with  the
previous sanction of the competent authority enumerated in  clauses  (a)  to
(c) of this sub-section. If the sub-section is read  as  a  whole,  it  will
clearly show that the sanction  for  prosecution  has  to  be  granted  with
respect to a specific accused and only after sanction has been granted  that
the Court gets the competence to take cognizance of  an  offence  punishable
under Sections 7, 10, 11, 13 and 15 alleged to have been committed  by  such
public servant.  It is not possible  to  read  the  section  in  the  manner
suggested by the learned counsel for the respondent  that  if  sanction  for
prosecution has been granted qua one accused, any other public  servant  for
whose prosecution no sanction has been granted,  can  also  be  summoned  to
face prosecution.

5.    In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was  examining
the scope of Section 6(1) of the Prevention of Corruption Act,  1947,  which
is almost similar to sub-section  (1)  of  Section  19  of  the  Act.  After
quoting the provisions of Section 6(1) of the Prevention of Corruption  Act,
1947, it was held as under in para 5 of the Report: (SCC pp. 552-53)

"5.   From a plain reading of the above section it is evidently  clear  that
a Court cannot take cognizance of the  offences  mentioned  therein  without
sanction of the appropriate authority.  In enacting the above  section,  the
legislature thought of providing a reasonable protection to public  servants
in the discharge of their official functions so that they may perform  their
duties   and   obligations   undeterred   by   vexatious   and   unnecessary
prosecutions."

6.    In Jaswant Singh v. State of Punjab, AIR 1958  SC  124,  sanction  had
been granted for prosecution of the accused for  an  offence  under  Section
5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had  been
granted for his prosecution under Section 5(1)(a) of the said  Act.  It  was
held that no cognizance could be taken for prosecution of the accused  under
Section 5(1)(a) of the Prevention of Corruption Act, 1947,  as  no  sanction
had been granted with regard to the said offence, but the accused  could  be
tried under Section 5(1)(d) of the said Act as there was  a  valid  sanction
for prosecution under the aforesaid provision.

7.    In State of Goa v. Babu Thomas, (2005) 8  SCC  130,  decided  by  this
Bench on 29.9.2005, it was held that in the absence of a valid  sanction  on
the date when the Special Judge took cognizance of the offence,  the  taking
of the cognizance was without jurisdiction and wholly  invalid.  This  being
the settled position of law, the impugned order of the High Court  directing
summoning of the appellant and proceeding  against  him  along  with  Jasbir
Singh, ASI is clearly erroneous in law.
                                                          (emphasis is ours)

The above issue was also examined by this Court in Paul Varghese  vs.  State
of Kerala, (2007) 14 SCC 783, wherein this Court observed as under :
“2. Challenge in this appeal is to the order  passed  by  a  learned  Single
Judge  of  the  Kerala  High  Court  allowing  the  revision  filed  by  the
Respondent 2 in the present appeal who was the petitioner  before  the  High
Court.  He had questioned correctness of the order  passed  by  the  Inquiry
Commissioner and Special Judge,  Trichoor,  by  which  the  prayer  for  his
impleadment as the accused in terms of Section 319 of the Code  of  Criminal
Procedure, 1973 (in short “the Code”) was accepted.  By the said  order  the
Trial Court had held that Section 319 of the Code overrides  the  provisions
of Section 19 of the Prevention of  Corruption  Act,  1988  (in  short  “the
Act”) and for exercise  of  power  under  the  former  provision,  the  only
conditions required to be fulfilled  are  set  out  in  sub-section  (4)  of
Section 319 itself.  The High Court felt that the view was  not  sustainable
in view of what has been stated by this Court in Dilawar Singh v.  Parvinder
Singh alias Iqbal Singh and Anr.  (2005  (12)  SCC  709).  Accordingly,  the
order was set aside.
            XXX                   XXX             XXX
4.    As has been rightly held by the High Court in view of  what  has  been
stated in Dilawar Singh's case (supra), the Trial Court  was  not  justified
in holding that Section 319 of the Code has to get  preference/primacy  over
Section 19 of the Act, and that matter stands concluded.....”
                                                          (emphasis is ours)

Last of all, reference may be made to a recent decision  of  this  Court  in
Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64. For the  issue  under
reference, the following observations recorded in  the  above  judgment  are
relevant:
“74. Keeping those principles in mind, as we must, if we look at Section  19
of the P.C. Act which bars a  Court  from  taking  cognizance  of  cases  of
corruption against a public servant under Sections 7, 10, 11, 13 and  15  of
the Act, unless the Central or the State Government, as  the  case  may  be,
has accorded sanction, virtually imposes fetters  on  private  citizens  and
also on prosecutors from approaching Court against corrupt public  servants.
These protections are not available to other citizens. Public  servants  are
treated as a special class of persons enjoying the said protection  so  that
they can perform their duties without fear and favour  and  without  threats
of malicious prosecution. However, the  said  protection  against  malicious
prosecution which was extended in public interest cannot become a shield  to
protect  corrupt  officials.  These  provisions  being  exceptions  to   the
equality provision  of  Article  14  are  analogous  to  the  provisions  of
protective discrimination and  these  protections  must  be  construed  very
narrowly.  These  procedural  provisions  relating  to  sanction   must   be
construed in such a manner as to advance the causes of honesty  and  justice
and good governance as opposed to escalation of corruption.

75.    Therefore,  in  every  case  where  an  application  is  made  to  an
appropriate authority  for  grant  of  prosecution  in  connection  with  an
offence under the P.C. Act it is the  bounden  duty  of  such  authority  to
apply its mind urgently to the situation and decide the issue without  being
influenced by any extraneous consideration. In doing so, the authority  must
make a conscious effort to ensure the Rule of Law and cause  of  justice  is
advanced.  In  considering  the  question  of  granting  or  refusing   such
sanction, the authority is answerable to law and law alone.  Therefore,  the
requirement to take the decision  with  a  reasonable  dispatch  is  of  the
essence in such a situation. Delay in granting sanction proposal  thwarts  a
very valid social purpose, namely, the purpose of a speedy  trial  with  the
requirement to bring the culprit to book. Therefore, in this case the  right
of the sanctioning authority, while either sanctioning or refusing to  grant
sanction, is coupled with a duty.”

                                                          (emphasis is ours)

22.   The law declared by this Court emerging from  the  judgments  referred
to hereinabove, leaves no room for any doubt, that under Section 197 of  the
‘Code’ and/or sanction mandated  under  a  special  statute  (as  postulated
under Section 19 of the Prevention of Corruption Act) would be  a  necessary
pre-requisite, before a Court of competent  jurisdiction,  takes  cognizance
of an offence (whether under the Indian Penal Code, or under  the  concerned
special statutory enactment).  The procedure for  obtaining  sanction  would
be governed by the provisions of the ‘Code’ and/or  as  mandated  under  the
special enactment.  The words engaged in Section  197  of  the  ‘Code’  are,
“...no court shall take cognizance of  such  offence  except  with  previous
sanction...”.  Likewise sub-section (1) of Section 19 of the  Prevention  of
Corruption Act provides, “No Court shall take cognizance.. except  with  the
previous sanction...”.  The mandate is clear and unambiguous, that  a  Court
“shall not” take cognizance without sanction.  The  same  needs  no  further
elaboration.  Therefore,  a  Court  just  cannot  take  cognizance,  without
sanction by the appropriate authority. Thus viewed, we find no merit in  the
second  contention  advanced  at  the  hands  of  learned  counsel  for  the
respondents, that where  cognizance  is  taken  under  Section  319  of  the
‘Code’, sanction either under Section  197  of  the  ‘Code’  (or  under  the
concerned special enactment) is not a mandatory pre-requisite.


23.   According to  learned  counsel  representing  respondent  no.  2,  the
position concluded above, would give the impression, that the  determination
rendered by a Court under Section 319 of the ‘Code’, is subservient  to  the
decision of the competent authority under Section  197.   No,  not  at  all.
The grant of sanction under Section 197, can be assailed by the  accused  by
taking  recourse  to  judicial  review.   Likewise,  the   order   declining
sanction, can similarly be assailed by the complainant or the prosecution.


24.   For the reasons recorded hereinabove, and in view of  the  conclusions
recorded by us in paragraph 17, we are of the view that





there is no merit in  the  instant  appeal  and  the  same  deserves  to  be
dismissed.  Ordered accordingly.



                                                ..........................J.
                                            (JAGDISH SINGH KHEHAR)




..........................J.
                                 (C.NAGAPPAN)

NEW DELHI;
JULY 05, 2016.











ITEM NO.1A               COURT NO.3               SECTION IIB


               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).565/2016 @ SLP(Crl.) No.3406/2008

SURINDERJIT SINGH MAND & ANR.                      Appellant(s)

                                VERSUS

STATE OF PUNJAB & ANR.                             Respondent(s)

[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE C.NAGAPPAN, JJ.]


Date : 05/07/2016 This appeal was called on for pronouncement of
     judgment today.


For Appellant(s) Mr. Yash Pal Dhingra,Adv.


For Respondent(s)      Mr. Kuldip Singh,Adv.

                       Mr. Rajat Sharma, Adv.
                       for Mr. Subhasish Bhowmick,AOR


             Hon'ble  Mr.  Justice  Jagdish  Singh  Khehar  pronounced   the
judgment of the Bench comprising His Lordship and  Hon'ble  Mr.  Justice  C.
Nagappan.
            For the reasons recorded in the Reportable  judgment,  which  is
placed on the file, the appeal is dismissed.

(Renuka Sadana)                        (Parveen Kumar)
 Court Master                                   AR-cum-PS

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