“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
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
