* Author
[2024] 1 S.C.R. 429 : 2024 INSC 42
Shadakshari
v.
State of Karnataka & Anr.
(Criminal Appeal No.256 of 2024)
17 January 2024
[Abhay S. Oka and Ujjal Bhuyan*, JJ.]
Issue for Consideration
Whether sanction u/s. 197 Cr.P.C. is required to prosecute
respondent No. 2 who faces accusation amongst others of
creating fake documents by misusing his official position as a
Village Accountant, thus a public servant. The competent authority
has declined to grant sanction to prosecute. High Court has held
that in the absence of such sanction, respondent No. 2 cannot
be prosecuted and consequently has quashed the complaint as
well as the chargesheet, giving liberty to the appellant to assail
denial of sanction to prosecute respondent No. 2 in an appropriate
proceeding, if so advised.
Headnotes
Code of Criminal Procedure, 1973 – s.197 – Sanction under –
Appellant-complainant lodged an FIR alleging that respondent
no.2 and another were irregularly creating documents of
property in the name of dead person despite knowing the fact
those were fake documents – The High Court observed that
respondent no.2 was a public servant – The offence complained
against him, as per prosecution, was committed while
discharging his duties as a public servant – Sanction sought
by the investigating officer was denied – Consequently, the
High Court held that since sanction was refused, prosecution
for criminal offence against public servant cannot continue
– Propriety:
Held: It is settled that s.197 Cr.P.C. does not extend its protective
cover to every act or omission of a public servant while in
service – It is restricted to only those acts or omissions which are
done by public servants in the discharge of official duties – The
430 [2024] 1 S.C.R.
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question whether respondent No.2 was involved in fabricating
official documents by misusing his official position as a public
servant is a matter of trial – Certainly, a view can be taken
that manufacturing of such documents or fabrication of records
cannot be a part of the official duty of a public servant – If that
be the position, the High Court was not justified in quashing the
complaint as well as the chargesheet in its entirety, more so
when there are two other accused persons besides respondent
No.2 – There is another aspect of the matter – Respondent
No.2 had unsuccessfully challenged the complaint in an earlier
proceeding u/s. 482 Cr.P.C. – Though liberty was granted by the
High Court to respondent No.2 to challenge any adverse report
if filed subsequent to the lodging of the complaint, instead of
confining the challenge to the chargesheet, respondent No.2
also assailed the complaint as well which he could not have
done – The High Court erred in quashing the complaint as well
as the chargesheet in its entirety. [Paras 23, 25]
Code of Criminal Procedure, 1973 – s. 197 – Ambit, scope
and effect of:
Held: The object of such sanction for prosecution is to protect a
public servant discharging official duties and functions from undue
harassment by initiation of frivolous criminal proceedings. [Para 19]
Case Law Cited
State of Orissa Vs. Ganesh Chandra Jew, [2004] 3
SCR 504:(2004) 8 SCC 40; D. Devaraja Vs. Obais
Sanders Hussain, [2020] 6 SCR 453:(2020) 7 SCC
695 – relied on.
A.Srinivasulu v. State Rep. by the Inspector of Police,
[2023] 10 SCR 11: 2023 SCC OnLine SC 900 –
distinguished.
Lalita Kumari Vs. Govt. of Uttar Pradesh, [2013] 14
SCR 713:(2014) 2 SCC 1; Shambhoo Nath Misra Vs
State of U.P., [1997] 2 SCR 1139:(1997) 5 SCC 326
– referred to.
List of Acts
Code of Criminal Procedure, 1973 – s. 197.
[2024] 1 S.C.R. 431
Shadakshari v. State of Karnataka & Anr.
List of Keywords
Public servant; Fabrication of record; Discharge of official
duties; Sanction; Protective cover to act or omission by
public servant.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 256
of 2024.
From the Judgment and Order dated 25.11.2020 of the High Court of
Karnataka at Bengaluru in CRP No.4998 of 2020.
Appearances for Parties
C. B. Gururaj, Prakash Ranjan Nayak, Animesh Dubey, T. G. Ravi,
Advs. for the Appellant.
D. L. Chidananda, Rahul Kaushik, Anil C Nishani, V Murnal, Krishna
M Singh, Rajivkumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
Heard learned counsel for the parties.
2. Challenge made in this appeal is to the order dated 25.11.2020
passed by the High Court of Karnataka at Bengaluru in Criminal
Petition No.4998 of 2020 (Sri. Mallikarjuna Vs. State of Karnataka)
quashing the complaint dated 19.12.2016 lodged by the appellant;
the chargesheet in C.C. No.116 of 2018 including the order dated
28.03.2018 passed therein by the learned Judicial Magistrate First
Class, Belur.
3. Facts lie within a very narrow compass. The appellant as the
complainant lodged a first information report dated 19.12.2016
(referred to as ‘the complaint’ in the impugned order) alleging that
respondent No.2 and another were irregularly creating documents of
property in the name of dead person despite knowing the fact that
those were fake documents, such as, death certificate, family tree
of the original successor of land of the appellant etc. for illegal gain.
The said first information was received and registered by Haleebedu
432 [2024] 1 S.C.R.
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Police Station, Belur as Crime No. 323/2016 under Sections 409,
419, 420, 423, 465, 466, 467, 468, 471 and 473 of the Indian Penal
Code, 1860 (IPC) read with Section 149 and Section 34 thereof.
4. It may be mentioned that respondent No.2 is working as Village
Accountant, Kirigdalu Circle in the district of Hassan, Karnataka State.
5. Respondent No.2 filed a petition under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.PC) for quashing of the said FIR before
the High Court of Karnataka at Bengaluru (‘High Court’ for short).
The same was registered as Criminal Petition No.9580 of 2017.
5.1 The High Court in its order dated 05.01.2018 noted that the
specific case of the appellant was that land admeasuring 1 acre
13 guntas in survey No.7/6 situated at Chattanahalli Village,
Halebeedu Hobli, Belur Taluk, Hassan District belonged to
the appellant and his family members. The same was given
to accused No.1 for the purpose of cultivation. Accused No.1
in collusion with revenue officials including accused No.2
(respondent No.2 herein) created lot of fake documents in favour
of respondent No.1. High Court vide the order dated 05.01.2018
observed that there were specific and serious allegations against
respondent No.2 even as to creation of death certificate of a
living person. It was observed that a reading of the FIR made
out a case for investigation and that it was too premature to
interfere with such FIR. Adverting to the case of Lalita Kumari
Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1, the High Court did
not interfere though granted liberty to respondent No.2 to seek
his legal remedy in the event any adverse report was made.
6. Sub Inspector of Police, Haleebedu Police Station, who was the
investigating officer submitted final report under Section 173 of the
Cr.PC in the Court of the Additional Civil Judge (Junior Division)
and Judicial Magistrate First Class, Belur on 20.03.2018 which was
registered as chargesheet No.12/2018. The following persons have
been named as accused in the chargesheet:
i. Accused No.1 - Ramegowda
ii. Accused No.2 - Mallikarjuna (respondent No.2)
iii. Accused No.3 - Manjunath Aras
[2024] 1 S.C.R. 433
Shadakshari v. State of Karnataka & Anr.
They have been charged under Sections 471, 468, 467, 465, 420,
409, 466 and 423 read with Section 34 of IPC. The chargesheet
also mentions the names of thirty-one witnesses.
7. As per the chargesheet, the deceased husband of witness No.2
Somashekharappa had permitted his deceased younger brother
Thumbegowda to use the subject land for cultivation about 40-50
years ago. After the death of Thumbegowda, his son i.e. accused
No.1 was cultivating the subject land. During the year 1993,
Somashekharappa died but accused No.1 in collusion with accused
No. 2 (respondent No.2) created a fake certificate of death to the
effect that Somashekharappa had died during the year 2010.In this
fake document, father of the deceased Thumbegowda was mentioned
as Somashekharappa instead of Sannasiddegowda. By creating such
fake document, the accused sought to make illegal gain.
8. Respondent No.2 again approached the High Court by filing a petition
under Section 482Cr.PC for quashing the complaint dated 19.12.2016
as well as the chargesheet and the order dated 28.03.2018 (what is
the order dated 28.03.2018 has not been mentioned by respondent
No.2). It may be mentioned that upon the chargesheet being filed
in the court of the Additional Civil Judge (Junior Division) and
Judicial Magistrate First Class, Belur, the same was registered as
C.C. No.116 of 2018. The quash petition of respondent No.2 was
registered as Criminal Petition No.4998 of 2020. The High Court
observed that respondent No.2 was a public servant. The offence
complained against him, as per the prosecution, was committed while
discharging his duties as a public servant. Investigating officer had
sought for sanction to prosecute respondent No.2 but sanction was
denied. In such circumstances, High Court held that since sanction
was refused, prosecution for criminal offence against a public servant
cannot continue. Consequently, the complaint, the chargesheet as
well as the order dated 28.03.2018 were set aside by the High Court
vide the order dated 25.11.2020.
9. Aggrieved thereby, the complainant as the appellant has instituted
the present proceeding.
10. This court by order dated 15.05.2023 granted permission to the
appellant to file special leave petition. After condoning the delay,
notice was issued.Thereafter, respondent No.2 filed counter affidavit.
On perusal of the counter affidavit of the second respondent this
434 [2024] 1 S.C.R.
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court in the proceedings held on 21.11.2023 noted that Annexure R-1
annexed to the said affidavit was a file noting recording the opinion
of some officers that it was not a fit case to accord sanction under
Section 197 Cr.PC to prosecute the second respondent. However, this
Court noticed that there was no decision of the competent authority
granting sanction. In such an eventuality, this Court directed the
State to file an affidavit dealing with the aspect of sanction and to
produce the relevant document.
11. Pursuant thereto respondent No. 1 i.e State of Karnataka has filed an
affidavit. The affidavit says that the investigating officer had written to
the Deputy Commissioner, Hassan, on 22.01.2018 seeking sanction
to prosecute the village accountant Mallikarjun (Responsible No. 2).
It is further seen that the Additional Deputy Commissioner, Hassan
had informed the investigating officer vide letter dated 17.03.2018
that upon examination of the concerned file and considering the
opinion of the legal advisor, sanction for prosecution of respondent
No. 2 was not granted.
12. Learned counsel for the appellant submits that the High Court was
not justified in quashing the complaint as well as the chargesheet
and the related cognizance order. He submits that no sanction to
prosecute was required qua respondent No. 2 as making of a fake
document cannot be said to be carried out by respondent No. 2 in
the discharge of his official duty. In support of his contention, he
has placed reliance on the decision of this Court in Shambhoo Nath
Misra Vs State of U.P., (1997) 5 SCC 326.
13. Learned State counsel supports the contentions of the learned
counsel for the appellant.
14. On the other hand, learned counsel for respondent No. 2 supports the
order of the High Court and submits that the High Court had rightly
quashed the complaint and the chargesheet. Without sanction to
prosecute a public servant the latter cannot be prosecuted. This is a
well-settled proposition and in this connection has placed reliance on
a decision of this Court in D. Devaraja Vs. Obais Sanders Hussain,
(2020) 7 SCC 695.
15. Submissions made by learned counsel for the parties have received
the due consideration of this court.
[2024] 1 S.C.R. 435
Shadakshari v. State of Karnataka & Anr.
16. The question for consideration in this appeal is whether sanction
is required to prosecute respondent No. 2 who faces accusation
amongst others of creating fake documents by misusing his official
position as a Village Accountant, thus a public servant? The competent
authority has declined to grant sanction to prosecute. High Court
has held that in the absence of such sanction, respondent No. 2
cannot be prosecuted and consequently has quashed the complaint
as well as the chargesheet, giving liberty to the appellant to assail
denial of sanction to prosecute respondent No. 2 in an appropriate
proceeding, if so advised.
17. Section 197 Cr.PC deals with prosecution of judges and public
servants. Section 197 reads as under:
“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.]
436 [2024] 1 S.C.R.
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[Explanation — For the removal of doubts it is hereby
declared that no sanction shall be required in case of a
public servant accused of any offence alleged to have
been committed under section 166A, section 166B, section
354, section 354A, section 354B, section 354C, section
354D, section 370, section 375, section 376, section
376A, section 376AB, section 376C, section 376D, section
376DA, section 376DB or section 509 of the Indian Penal
Code (45 of 1860).]
(2) No Court shall take cognizance of any offence alleged
to have been committed by any member of the Armed
Forces of the Union while acting or purporting to act in
the discharge of his official duty, except with the previous
sanction of the Central Government.
(3) The State Government may, by notification, direct
that the provisions of Sub-Section (2) shall apply to such
class or category of the members of the Forces charged
with the maintenance of public order as may be specified
therein, wherever they may be serving, and thereupon
the provisions of that sub-section will apply as if for the
expression “Central Government” occurring therein, the
expression “State Government” were substituted.
[(3A) Notwithstanding anything contained in sub-section
(3), no Court shall take cognizance of any offence, alleged
to have been committed by any member of the Forces
charged with the maintenance of public order in a State
while acting or purporting to act in the discharge of his
official duty during the period while a Proclamation issued
under clause (1) of article 356 of the Constitution was in
force therein, except with the previous sanction of the
Central Government.]
[(3B) Notwithstanding anything to the contrary contained
in this Code or any other law, it is hereby declared that
any sanction accorded by the State Government or any
cognizance taken by a Court upon such sanction, during
the period commencing on the 20th day of August, 1991
and ending with the date immediately preceding the date
on which the Code of Criminal Procedure (Amendment) Act,
1991, receives the assent of the President, with respect
[2024] 1 S.C.R. 437
Shadakshari v. State of Karnataka & Anr.
to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of
article 356 of the Constitution was in force in the State,
shall be invalid and it shall be competent for the Central
Government in such matter to accord sanction and for the
Court to take cognizance thereon.]
(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.”
18. As per sub section (1) of Section 197 where 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
of the Central Government or the State Government, as the case
may be.
19. The ambit, scope and effect of Section 197 Cr.PC has received
considerable attention of this court. It is not necessary to advert to
and dilate on all such decisions. Suffice it to say that the object of
such sanction for prosecution is to protect a public servant discharging
official duties and functions from undue harassment by initiation of
frivolous criminal proceedings.
20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this
court explained the underlying concept of protection under Section
197 and held as follows:
“7. The protection given under Section 197 is to protect
responsible public servants against the institution of
possibly vexatious criminal proceedings for offences
alleged to have been committed by them while they are
acting or purporting to act as public servants. The policy
of the legislature is to afford adequate protection to public
servants to ensure that they are not prosecuted for anything
done by them in the discharge of their official duties without
reasonable cause, and if sanction is granted, to confer on
438 [2024] 1 S.C.R.
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the Government, if they choose to exercise it, complete
control of the prosecution. This protection has certain limits
and is available only when the alleged act done by the
public servant is reasonably connected with the discharge
of his official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in
excess of his duty, but there is a reasonable connection
between the act and the performance of the official duty,
the excess will not be a sufficient ground to deprive the
public servant of the protection. The question is not as
to the nature of the offence such as whether the alleged
offence contained an element necessarily dependent upon
the offender being a public servant, but whether it was
committed by a public servant acting or purporting to act
as such in the discharge of his official capacity. Before
Section 197 can be invoked, it must be shown that the
official concerned was accused of an offence alleged to
have been committed by him while acting or purporting to
act in the discharge of his official duties. It is not the duty
which requires examination so much as the act, because
the official act can be performed both in the discharge of
the official duty as well as in dereliction of it. The act must
fall within the scope and range of the official duties of the
public servant concerned. It is the quality of the act which
is important and the protection of this section is available if
the act falls within the scope and range of his official duty.
There cannot be any universal rule to determine whether
there is a reasonable connection between the act done
and the official duty, nor is it possible to lay down any
such rule. One safe and sure test in this regard would
be to consider if the omission or neglect on the part of
the public servant to commit the act complained of could
have made him answerable for a charge of dereliction
of his official duty. If the answer to this question is in the
affirmative, it may be said that such act was committed
by the public servant while acting in the discharge of his
official duty and there was every connection with the act
complained of and the official duty of the public servant.
This aspect makes it clear that the concept of Section
197 does not get immediately attracted on institution of
the complaint case.”
[2024] 1 S.C.R. 439
Shadakshari v. State of Karnataka & Anr.
21. This aspect was also examined by this court in Shambhu Nath
Misra (supra). Posing the question as to whether a public servant
who allegedly commits the offence of fabrication of records or
misappropriation of public funds can be said to have acted in the
discharge of his official duties. Observing that it is not the official
duty to fabricate records or to misappropriate public funds, this court
held as under:
“5. The question is when the public servant is alleged
to have committed the offence of fabrication of record
or misappropriation of public fund etc. can he be said
to have acted in discharge of his official duties. It is not
the official duty of the public servant to fabricate the
false records and misappropriate the public funds etc. in
furtherance of or in the discharge of his official duties. The
official capacity only enables him to fabricate the record
or misappropriate the public fund etc. It does not mean
that it is integrally connected or inseparably interlinked
with the crime committed in the course of the same
transaction, as was believed by the learned Judge. Under
these circumstances, we are of the opinion that the view
expressed by the High Court as well as by the trial court
on the question of sanction is clearly illegal and cannot
be sustained.”
22. Even in D. Devaraja (supra) relied upon by learned counsel for
respondent No. 2, this court referred to Ganesh Chandra Jew (supra)
and held as follows:
“35. In State of Orissa v. Ganesh Chandra Jew [State of
Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004
SCC (Cri) 2104] this Court interpreted the use of the
expression “official duty” to imply that the act or omission
must have been done by the public servant in course of
his service and that it should have been in discharge of his
duty. Section 197 of the Code of Criminal Procedure does
not extend its protective cover to every act or omission
done by a public servant while in service. The scope of
operation of the section is restricted to only those acts or
omissions which are done by a public servant in discharge
of official duty.”
440 [2024] 1 S.C.R.
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23. Thus, this court has been consistent in holding that Section 197
Cr.PC does not extend its protective cover to every act or omission
of a public servant while in service. It is restricted to only those acts
or omissions which are done by public servants in the discharge of
official duties.
24. After the hearing was over, learned counsel for respondent No.2
circulated a judgment of this Court in A. Srinivasulu Vs. State Rep.
by the Inspector of Police, 2023 SCC OnLine SC 900 in support of
the contention that a public servant cannot be prosecuted without
obtaining sanction under Section 197 of Cr.PC. We have carefully
gone through the aforesaid decision rendered by a twoJudge Bench
of this Court in A. Srinivasulu(supra). That was a case where seven
persons were chargesheeted by the Central Bureau of Investigation
(CBI) for allegedly committing offences under Section 120B read with
Sections 420, 468, 471 along with Sections 468 and 193 IPC read
with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption
Act, 1988 (for short ‘P.C. Act, 1988’). Four of the accused persons
being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals
Limited, a public sector undertaking and thus were public servants
both under the IPC as well as under the P.C. Act, 1988. Accused
No.1 had retired from service before filing of the chargesheet. Insofar
accused Nos. 3 and 4, the competent authority had refused to grant
sanction but granted the same in respect of accused No.1. It was in
that context that this court considered the requirement of sanction
under Section 197 Cr.P.C qua accused No.1 and observed that
accused No.1 could not be prosecuted for committing the offence
of criminal conspiracy when sanction for prosecuting accused Nos.3
and 4 with whom criminal conspiracy was alleged, was declined.
This court held as follows:
“52. It must be remembered that in this particular case,
the FIR actually implicated only four persons, namely
PW-16, A-3, A-4 and A-5. A-1 was not implicated in the
FIR. It was only after a confession statement was made
by PW-16 in the year 1998 that A-1 was roped in. The
allegations against A-1 were that he got into a criminal
conspiracy with the others to commit these offences. But
the Management of BHEL refused to grant sanction for
prosecuting A-3 and A-4, twice, on the ground that the
decisions taken were in the realm of commercial wisdom
[2024] 1 S.C.R. 441
Shadakshari v. State of Karnataka & Anr.
of the Company. If according to the Management of the
Company, the very same act of the co-conspirators fell
in the realm of commercial wisdom, it is inconceivable
that the act of A-1, as part of the criminal conspiracy,
fell outside the discharge of his public duty, so as to
disentitle him for protection under Section 197(1) of
the Code.”
24.1 Admittedly, facts of the present case are clearly distinguishable
from the facts of A. Srinivasulu (supra) and, therefore, the said
decision cannot be applied to the facts of the present case.
25. The question whether respondent No.2 was involved in fabricating
official documents by misusing his official position as a public servant
is a matter of trial. Certainly, a view can be taken that manufacturing
of such documents or fabrication of records cannot be a part of the
official duty of a public servant. If that be the position, the High Court
was not justified in quashing the complaint as well as the chargesheet
in its entirety, more so when there are two other accused persons
besides respondent No.2. There is another aspect of the matter.
Respondent No.2 had unsuccessfully challenged the complaint in
an earlier proceeding under Section 482 Cr.PC. Though liberty was
granted by the High Court to respondent No.2 to challenge any
adverse report if filed subsequent to the lodging of the complaint,
instead of confining the challenge to the chargesheet, respondent No.2
also assailed the complaint as well which he could not have done.
26. That being the position, we are of the unhesitant view that the High
Court had erred in quashing the complaint as well as the chargesheet
in its entirety. Consequently, we set aside the order of the High Court
dated 25.11.2020 passed in Criminal Petition No. 4998/2020. We
make it clear that observations made in this judgment are only for
the purpose of deciding the present challenge and should not be
construed as our opinion on merit. That apart, all contentions are
kept open.
27. Appeal is accordingly allowed. No costs.
Headnotes prepared by: Ankit Gyan Result of the case: Appeal allowed.
