REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 257 of 2011
General Officer Commanding …Appellant
Versus
CBI & Anr. …Respondents
WITH
CRIMINAL APPEAL NO.55 of 2006
Additional Director General …Appellant
Versus
Central Bureau Investigation …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Criminal Appeal No. 257 of 2011 has been preferred against the
impugned judgment and order dated 10.7.2007 passed by the High Court of
Jammu and Kashmir in Petition Nos. 78 and 80 of 2006 under Section 561-
A of the Code of Criminal Procedure, (J&K) (hereinafter called as
`Code’) by which the High Court upheld the order dated 30.11.2006
passed by the Additional Sessions Judge, Srinagar in File No.
16/Revision of 2006, and by the Chief Judicial Magistrate, Srinagar
dated 24.8.2006, rejecting the appellant’s application for not
entertaining the chargesheet filed by the Central Bureau of
Investigation (hereinafter called ‘CBI’).
2. Brief facts relevant to the disposal of this appeal are as
under:
A. In Village Chittising Pora, District Anantnag, J&K, 36 Sikhs
were killed by terrorists on 20.3.2000. Immediately thereafter, search
for the terrorists started in the entire area and 5 persons, purported
to be terrorists, were killed at village Pathribal Punchalthan,
District Anantnag, J & K by 7 Rashtriya Rifles (hereinafter called as
`RR’) Personnel on 25.3.2000 in an encounter.
B. In respect of killing of 5 persons by 7 RR on 25.3.2000 at
Pathribal claiming them to be responsible for Sikhs massacre at
Chittising Pora, a complaint bearing No. 241/GS(Ops.) dated 25.3.2000
was sent to Police Station Achchabal, District Anantnag, J&K by Major
Amit Saxena, the then Adjutant, 7 RR, for lodging FIR stating that
during a special cordon and search operation in the forests of
Panchalthan from 0515 hr. to 1500 hrs. on 25.3.2000, an encounter took
place between terrorists and troops of that unit and in that operation,
5 unidentified terrorists were killed in the said operation. On the
receipt of the complaint, FIR No. 15/2000 under Section 307 of Ranbir
Penal Code (hereinafter called ‘RPC’) and Sections 7/25 Arms Act, 1959
was registered against unknown persons. A seizure memo was prepared by
Major Amit Saxena (Adjutant) on 25.3.2000 showing seizure of arms and
ammunition from all the 5 unidentified terrorists killed in the
aforesaid operation which included AK-47 rifles (5), AK-47 Magazine
rifles (12), radio sets (2), AK-48 ammunition (44 rounds), hand
grenades (2) detonators (4) and detonator time devices (2). The said
seizure memo was signed by the witnesses Farooq Ahmad Gujjar and Mohd.
Ayub Gujjar, residents of Wuzukhan, Panchalthan, J & K.
C. The 7 RR deposited the said recovered weapons and ammunition
with 2 Field Ordnance Depot. However, the local police insisted that
the Army failed to hand over the arms and ammunition allegedly
recovered from the terrorists killed in the encounter, which
tantamounts to causing of disappearance of the evidence, constituting
an offence under Section 201 RPC. In this regard, there had been
correspondence and a Special Situation Report dated 25.3.2000 was sent
by Major Amit Saxena, the then Adjutant, to Head Quarter–I, Sector RR
stating that, based on police inputs, a joint operation with STF was
launched in the forest of Pathribal valley on 25.3.2000, as a
consequence, the said incident occurred. However, it was added that
ammunition allegedly recovered from the killed militants had been taken
away by the STF.
D. There had been long processions in the valley in protest of
killing of these 5 persons on 25.3.2000 by 7 RR alleging that they were
civilians and had been killed by the Army personnel in a fake
encounter. The local population treated it to be a barbaric act of
violence and there had been a demand of independent inquiry into the
whole incident. Thus, in view thereof, on the request of Government of
J & K, a Notification dated 19.12.2000 under Section 6 of Delhi Police
Special Establishment Act, 1946 (hereinafter called as `Act 1946’) was
issued. In pursuance thereof, Ministry of Personnel, Government of
India, also issued Notification dated 22.1.2003 under Section 5 of the
Act 1946 asking the CBI to investigate four cases including the
alleged encounter at Pathribal resulting in the death of 5 persons on
25.3.2000.
E. The CBI conducted the investigation in Pathribal incident and
filed a chargesheet in the court of Chief Judicial Magistrate-cum-
Special Magistrate, CBI, (hereinafter called the ‘CJM’) Srinagar, on
9.5.2006, alleging that it was a fake encounter, an outcome of criminal
conspiracy hatched by Col. Ajay Saxena (A-1), Major Brajendra Pratap
Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and
some members of the troops of 7 RR were responsible for killing of
innocent persons. Major Amit Saxena (A-5) (Adjutant) prepared a false
seizure memo showing recovery of arms and ammunition in the said
incident, and also gave a false complaint to the police station for
registration of the case against the said five civilians showing some
of them as foreign militants and false information to the senior
officers to create an impression that the encounter was genuine and,
therefore, caused disappearance of the evidence of commission of the
aforesaid offence under Section 120-B read with Sections 342, 304, 302,
201 RPC and substantive offences thereof. Major Amit Saxena (A-5)
(Adjutant) was further alleged to have committed offence punishable
under Section 120-B read with Section 201 RPC and substantive offence
under Section 201 RPC with regard to the aforesaid offences.
F. The learned CJM on consideration of the matter, found
that veracity of the allegations made in the chargesheet and the
analysis of the evidence cannot be gone into as it would tantamount to
assuming jurisdiction not vested in him. It was so in view of the
provisions of Armed Forces J & K (Special Powers) Act, 1990
(hereinafter called ‘Act 1990’), which offer protection to persons
acting under the said Act.
G. The CJM, Srinagar, granted opportunity to Army to exercise
the option as to whether the competent military authority would prefer
to try the case by way of court-martial by taking over the case under
the provisions of Section 125 of the Army Act, 1950 (hereinafter called
the `Army Act’). On 24.5.2006, the Army officers filed an
application before the court pointing out that no prosecution could be
instituted except with the previous sanction of the Central Government
in view of the provisions of Section 7 of the Act 1990 and, therefore,
the proceedings be closed by returning the chargesheet to the CBI.
H. The CJM vide order dated 24.8.2006 dismissed the application
holding that the said court had no jurisdiction to go into the
documents filed by the investigating agency and it was for the trial
court to find out whether the action complained of falls within the
ambit of the discharge of official duty or not. The CJM himself could
not analyse the evidence and other material produced with the
chargesheet for considering the fact, as to whether the officials had
committed the act in good faith in discharge of their official duty;
otherwise the act of such officials was illegal or unlawful in view of
the nature of the offence.
I. Aggrieved by the order of CJM dated 24.8.2006, the
appellant filed revision petition before the Sessions Court, Srinagar
and the same stood dismissed vide order dated 30.11.2006. However, the
revisional court directed the CJM to give one more opportunity to the
Army officials for exercise of option under Section 125 of the Army
Act.
J. The appellant approached the High Court under Section 561-A of
the Code. The Court vide impugned order dated 10.7.2007 affirmed the
orders of the courts below and held that the very objective of
sanctions is to enable the Army officers to perform their duties
fearlessly by protecting them from vexatious, malafide and false
prosecution for the act done in performance of their duties. However,
it has to be examined as to whether their action falls under the Act
1990. The CJM does not have the power to examine such an issue at the
time of committal of proceedings. At this stage, the Committal Court
has to examine only as to whether any case is made out and, if so, the
offence is triable by whom.
Hence, this appeal.
3. Criminal Appeal No. 55 of 2006 has been preferred against the
impugned judgment and order dated 28.3.2005 passed by the High Court of
Guwahati in Criminal Revision No.117 of 2004 by which it has upheld the
order of the Special Judicial Magistrate, Kamrup dated 10.11.2003
rejecting the application of the appellant seeking protection of the
provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958
(hereinafter called the `Act 1958’) in respect of the armed forces
personnel.
4. Facts and circumstances giving rise to this appeal are as
under:
A. In order to curb the insurgency in the North-East, the
Parliament enacted the Act 1958 authorising the Central Government as
well as the Governor of the State to declare, by way of Notification in
the official Gazette, the whole or part of the State as disturbed area.
Section 4 of the Act 1958 conferred certain powers on the Army
personnel acting under the Act which include power to arrest without
warrant on reasonable suspicion, destroy any arms, ammunitions dumped
and hide out, and also to open fire or otherwise use powers even to the
extent of causing death against any person acting in contravention of
law and order and further to carry out search and seizure. The entire
State of Assam was declared disturbed area under the Act 1958 vide
Notification dated 27.11.1990 and Army was requisitioned and deployed
in various parts of the State to fight insurgency and to restore law
and order.
B. On 22.2.1994, the 18th Battalion of Punjab Regiment was
deployed in Tinsukhia District of Assam to carry out the counter
insurgency operation in the area of Saikhowa Reserve Forest. The said
Army personnel faced the insurgents who opened fire from an ambush.
The armed battalion returned fire and in the process, some militants
died. The Battalion continued search at the place of encounter and
consequently, 5 bodies of the militants alongwith certain arms and
ammunitions were recovered. In respect of the said incident, an FIR
was lodged at P.S. Doom Dooma. Local Police also visited the place on
23.2.1994 and 1.3.1994 and investigated the case. The incident was
investigated by the Army under the Army Court of enquiry as provided
under the Army Act. Two Magisterial enquiries were held as per the
directions issued by the State Government and as per the appellant, the
version of the Army personnel was found to be true and a finding was
recorded that ‘the counter insurgency operation was done in exercise of
the official duty’.
C. Two writ petitions were filed before the High Court by the non-
parties alleging that the Army officials apprehended 9 individuals and
killed 5 of them in a fake encounter. The High Court directed the CBI
to investigate the matter.
D. The CBI completed the investigation and filed chargesheet
against 7 Army personnel in the Court of Special Judicial Magistrate,
Kamrup under Section 302/201 read with Section 109 of the Indian Penal
Code, 1860 (hereinafter called `IPC’). The Special Judicial Magistrate
issued notice dated 30.5.2002 to the appellant i.e. Army Headquarter to
collect the said chargesheet. The appellant requested the said Court
not to proceed with the matter as the action had been carried out by
the Army personnel in performance of their official duty and thus, they
were protected under the Act 1958 and in order to proceed further in
the matter, sanction of the Central Government was necessary. The
learned Special Judicial Magistrate rejected the case of the appellant
vide order dated 10.11.2003. Being aggrieved, the appellant preferred
the revision petition which has been rejected vide impugned order dated
28.3.2005 by the High Court.
Hence, this appeal.
5. As the facts and legal issues involved in both the appeals are
similar, we decide both the appeals by a common judgment taking the
Criminal Appeal No. 257 of 2011 as a leading case.
6. Shri Mohan Parasaran and Shri P.P. Malhotra, learned Addl.
Solicitor Generals appearing on behalf of the Union of India and Army
personnel, have contended that mandate of Section 7 of the Act 1990 is
clear and it clearly provides that no prosecution shall be instituted
and, therefore, cannot be instituted without prior sanction of the
Central Government. It is contended that the prosecution would be
deemed to have instituted/initiated at the moment the chargesheet is
filed and received by the court. Such an acceptance/receipt is without
jurisdiction. The previous sanction of the competent authority is a pre-
condition for the court in taking the chargesheet on record if the
offence alleged to have been committed in discharge of official duty
and such issue touches the jurisdiction of the court.
7. On the other hand, Shri H.P. Raval, learned ASG, Shri Ashok
Bhan, learned senior counsel appearing on behalf of the CBI, and Mr.
M.S. Ganesh appearing for the interveners (though application for
intervention not allowed) have vehemently opposed the appeals
contending that the institution of a criminal case means taking
cognizance of the case, mere presentation/filing of the chargesheet in
the court does not amount to institution. The court of CJM has not
taken cognizance of the offence, therefore, the appeals are premature.
Even otherwise, killing innocent persons in a fake encounter in
execution of a conspiracy cannot be a part of official duty and thus,
in view of the facts of the case no sanction is required. The appeals
are liable to be dismissed.
8. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
9. The matter is required to be examined taking into consideration
the statutory provisions of the Act 1990 and also considering the
object of the said Act. It is to be examined as to whether the court,
after the chargesheet is filed, can entertain the same and proceed to
frame charges without previous sanction of the Central Government. The
Act 1990 confers certain special powers upon members of the Armed
Forces in the disturbed area in the State of J & K. The disturbed area
is defined and there is no dispute that the place where the incident
occurred stood notified under the Act 1990. Section 4 of the Act 1990
confers special powers on the officer of armed forces to take measures,
where he considers it necessary to do so, for the maintenance of public
order. However, he must give due warning according to the circumstances
and even fire upon or use force that may also result in causing death
against any person acting in contravention of law and order in the
disturbed area and prohibit the assembly of five or more persons or
carrying of weapons etc. Such an officer has further been empowered to
destroy any arms dump, arrest any person without warrant who has
committed a cognizable offence and enter and search without warrant any
premises to make any arrest. Section 6 of the Act 1990 requires that
such arrested person and seized property be handed over to the local
police by such an officer.
10. Section 7 of the Act 1990 provides for umbrella protection to
the Army personnel in respect of anything done or purported to be done
in exercise of powers conferred by the Act. The whole issue is
regarding the interpretation of Section 7 of the Act 1990, as to
whether the term ‘institution’ used therein means
filing/presenting/submitting the chargesheet in the court or taking
cognizance and whether the court can proceed with the trial without
previous sanction of the Central Government.
11. The analogous provision to Section 7 of the Act 1990 exists in
Sections 45(1) and 197(2) of the Code of Criminal Procedure, 1973
(hereinafter called ‘Cr.P.C.’). The provisions of Section 7 of the Act
1990 are mandatory and if not complied with in letter and spirit before
institution of any suit, prosecution or legal proceedings against any
persons in respect of anything done or purported to be done in exercise
of the powers conferred by the Act 1990, the same could be rendered
invalid and illegal as the provisions require the previous sanction of
the Central Government before institution of the prosecution.
According to the appellants, institution of prosecution is a
stage prior to taking cognizance and, therefore, the word ‘institution’
is different from the words taking ‘cognizance’.
The scheme of the Act requires that any legal proceeding
instituted against any Army official working under the Act 1990 has to
be subjected to stringent test before any such proceeding can be
instituted. Special powers have been conferred upon Army officials to
meet the dangerous conditions i.e. use of the armed forces in aid of
civil force to prevent activities involving terrorist acts directed
towards overawing the government or striking terror in people or
alienating any section of the people or adversely affecting the harmony
amongst different sections of the people. Therefore, Section 7 is
required to be interpreted keeping the aforesaid objectives in mind.
12. The ‘prosecution’ means a criminal action before the court of
law for the purpose of determining ‘guilt’ or ‘innocence’ of a person
charged with a crime. Civil suit refers to a civil action instituted
before a court of law for realisation of a right vested in a party by
law. The phrase ‘legal proceeding’ connotes a term which means the
proceedings in a court of justice to get a remedy which the law permits
to the person aggrieved. It includes any formal steps or measures
employed therein. It is not synonymous with the ‘judicial proceedings’.
Every judicial proceeding is a legal proceeding but not vice-versa, for
the reason that there may be a ‘legal proceeding’ which may not be
judicial at all, e.g. statutory remedies like assessment under Income
Tax Act, Sales Tax Act, arbitration proceedings etc. So, the ambit of
expression ‘legal proceedings’ is much wider than ‘judicial
proceedings’. The expression ‘legal proceeding’ is to be construed in
its ordinary meaning but it is quite distinguishable from the
departmental and administrative proceedings, e.g. proceedings for
registration of trade marks etc. The terms used in Section 7 i.e.
suit, prosecution and legal proceedings are not inter-changeable or
convey the same meaning. The phrase `legal proceedings’ is to be
understood in the context of the statutory provision applicable in a
particular case, and considering the preceding words used therein. In
Assistant Collector of Central Excise, Guntur v. Ramdev Tobacco
Company, AIR 1991 SC 506, this Court explained the meaning of the
phrase “other legal proceedings” contained in Section 40(2) of the
Central Excises and Salt Act, 1944, wherein these words have been used
after suit and prosecution. The Court held that these words must be
read as ejusdem generis with the preceding words i.e. suit and
prosecution, as they constitute a genus. Therefore, issuance of a
notice calling upon the dealer to show cause why duty should not be
demanded under the Rules and why penalty should not be imposed for
infraction of the statutory rules and enjoin of consequential
adjudication proceedings by the appellate authority would not fall
within the expression “other legal proceedings” as in the context of
the said statute. ‘Legal proceedings’ do not include the administrative
proceedings.
In Maharashtra Tubes Ltd. v. State Industrial & Investment
Corporation of Maharashtra Ltd. & Anr., (1993) 2 SCC 144, this Court
dealt with the expressions ‘proceedings’ and ‘legal proceedings’ and
placed reliance upon the dictionary meaning of expression ‘legal
proceedings’ as found in Black Law Dictionary (Fourth Edition) which
read as under:
“Any proceedings in court of justice ... by which property
of debtor is seized and diverted from his general creditors
.... This term includes all proceedings authorised or
sanctioned by law, and brought or instituted in a court of
justice or legal tribunal, for the acquiring of a right or the
enforcement of a remedy.”
The Court came to the conclusion that proceedings before
statutory authorities under the provisions of the Act do not amount to
legal proceedings.
‘Legal proceedings’ means proceedings regulated or prescribed by
law in which a judicial decision may be given; it means proceedings in
a court of justice by which a party pursues a remedy which a law
provides, but does not include administrative and departmental
proceedings. (See also: S. V. Kondaskar, Official Liquidator v. V.M.
Deshpande, I.T.O. & Anr., AIR 1972 SC 878; Babulal v. M/s. Hajari Lal
Kishori Lal & Ors., AIR 1982 SC 818; and Binod Mills Co. Ltd., Ujjain
v. Shri. Suresh Chandra Mahaveer Prasad Mantri, Bombay, AIR 1987 SC
1739).
The provision of Section 7 of the Act 1990 prohibits
institution of legal proceedings against any Army personnel without
prior sanction of the Central Government. Therefore, chargesheet cannot
be instituted without prior sanction of the Central Government. The
use of the words ‘anything done’ or ‘purported to be done’ in exercise
of powers conferred by the Act 1990 is very wide in its scope and ambit
and it consists of twin test. Firstly, the act or omission complained
of must have been done in the course of exercising powers conferred
under the Act, i.e., while carrying out the duty in the course of his
service and secondly, once it is found to have been performed in
discharge of his official duty, then the protection given under Section
7 must be construed liberally. Therefore, the provision contained
under Section 7 of the Act 1990 touches the very issue of jurisdiction
of launching the prosecution.
(i) INSTITUTION OF A CASE:
13. The meaning of the aforesaid term has to be ascertained taking
into consideration the scheme of the Act/Statute applicable. The
expression may mean filing/presentation or received or entertained by
the court. The question does arise as to whether it simply means mere
presentation/filing or something further where the application of the
mind of the court is to be applied for passing an order.
14. In M/s. Lakshmiratan Engineering Works Ltd. v. Asst.
Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur & Anr., AIR
1968 SC 488, this Court dealt with the provisions of U.P. Sales Tax
Act, 1948 and rules made under it and while interpreting the proviso to
Section 9 thereof, which provided the mode of filing the appeal and
further provided that appeal could be “entertained” on depositing a
part of the assessed/admitted amount of tax. The question arose as
what was the meaning of the word ‘entertain’ in the said context, as to
whether it meant that no appeal would be received or filed or it meant
that no appeal would be admitted or heard and disposed of unless
satisfactory proof of deposit was available. This Court held that
dictionary meaning of the word ‘entertain’ was either ‘to deal with’ or
‘admit to consideration’. However, the court had to consider whether
filing or receiving the memorandum of appeal was not permitted without
depositing the required amount of tax or it could not be heard and
decided on merits without depositing the same. The court took into
consideration the words ‘filed or received’ in Section 6 of the Court
Fees Act and held that in the context of the said Act it would mean
‘admit for consideration’. Mere filing or presentation or receiving the
memorandum of appeal was inconsequential. The provisions provided that
the appeal filed would not be admitted for consideration unless the
required tax was deposited.
15. In Lala Ram v. Hari Ram, AIR 1970 SC 1093, this Court
considered the word ‘entertain’ contained in the provisions of Section
417(4) of the Code of Criminal Procedure, 1898 (analogous to Section
378 Cr.P.C.) providing for the period of limitation of 60 days for
filing the application for leave to appeal against the order of
acquittal. Thus, the question arose as to whether 60 days are required
for filing/presenting the application for leave to appeal or the
application should be heard by the court within that period. This Court
held that in that context, the word ‘entertain’ meant ‘filed or
received by the court’ and it had no reference to the actual hearing of
the application for leave to appeal. So, in that context ‘entertain’
was explained to receive or file the application for leave to appeal.
16. In Hindustan Commercial Bank Ltd. v. Punnu Sahu (dead)
through LRs., AIR 1970 SC 1384, this Court dealt with the expression
‘entertain’ contained in the proviso to Order XXI Rule 90 Code of Civil
Procedure, 1908 as amended by the High Court of Allahabad and rejected
the contention that it meant initiation of the proceeding and not to
the stage when the court takes up the application for consideration,
observing that ‘entertain’ means to “adjudicate upon” or “proceed to
consider on merits”.
17. In Martin and Harris Ltd. v. VIth Additional District Judge &
Ors., AIR 1998 SC 492, while dealing with the provisions of Section
21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972, the word “entertain” was interpreted as
considering the grounds for the purpose of adjudication on merits i.e.
thereby taking cognizance of an application by the statutory authority.
The Court rejected the contention that the term ‘entertain’ contained
in the said statutory provision was synonymous with the word
‘institute’.
18. In Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964 SC 1541, this
Court dealt with the expression ‘institution of a case’ and held that a
case can be said to be instituted in a court only when the court takes
cognizance of the offence alleged therein. Section 190(1) Cr.P.C.
contains the provision for taking cognizance of offence (s) by
Magistrate. Section 193 Cr.P.C. provides for cognizance of offence (s)
being taken by courts of Sessions on commitment to it by a Magistrate
duly empowered in that behalf.
This view has been reiterated, approved and followed by this
Court in Satyavir Singh Rathi, ACP & Ors. v. State through CBI, (2011)
6 SCC 1.
19. A similar view has been reiterated by this Court in Kamalapati
Trivedi v. The State of West Bengal, AIR 1979 SC 777, observing that
when a Magistrate applies his mind under Chapter XVI, he must be held
to have taken cognizance of the offences mentioned in the complaint.
Such a situation would not arise while passing order under Section
156(3) Cr.P.C. or while issuing a search warrant for the purpose of
investigation. In Devarapalli Lakshminarayana Reddy & Ors. v. V.
Narayana Reddy & Ors., AIR 1976 SC 1672, this Court held that
‘institution’ means taking cognizance of the offence alleged in the
chargesheet.
20. Mere presentation of a complaint cannot be held to mean that
the Magistrate has taken the cognizance. (Vide: Narsingh Das Tapadia v.
Goverdhan Das Partani & Anr., AIR 2000 SC 2946).
21. Thus, in view of the above, it is evident that the
expression “Institution” has to be understood in the context of the
scheme of the Act applicable in a particular case. So far as the
criminal proceedings are concerned, “Institution” does not mean filing;
presenting or initiating the proceedings, rather it means taking
cognizance as per the provisions contained in the Cr.P.C.
(ii) SANCTION FOR PROSECUTION:
22. The protection given under Section 197 Cr.P.C. is to protect
responsible public servants against the institution of possibly
vexatious criminal proceedings for offences alleged to have been
committed by them while they are acting or purporting to act as public
servants. The policy of the legislature is to afford adequate
protection to public servants to ensure that they are not prosecuted
for anything done by them in the discharge of their official duties
without reasonable cause, and if sanction is granted, to confer on the
Government, if they choose to exercise it, complete control of the
prosecution. This protection has certain limits and is available only
when the alleged act done by the public servant is reasonably connected
with the discharge of his official duty and is not merely a cloak for
doing the objectionable act. Use of the expression “official duty”
implies that the act or omission must have been done by the public
servant in the course of his service and that it should have been done
in discharge of his duty. The section does not extend its protective
cover to every act or omission done by a public servant in service but
restricts its scope of operation to only those acts or omissions which
are done by a public servant in discharge of official duty. If on
facts, therefore, it is prima facie found that the act or omission for
which the accused was charged had reasonable connection with discharge
of his duty, then it must be held to be official to which applicability
of Section 197 Cr.P.C. cannot be disputed. (See: R. Balakrishna Pillai
v. State of Kerala & Anr., AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal
Debnath & Anr., AIR 2004 SC 4174; Center for Public Interest Litigation
& Anr. v. Union of India & Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra
v. State of Bihar & Ors., AIR 2006 SC 820; Anjani Kumar v. State of
Bihar & Ors., AIR 2008 SC 1992; and State of Madhya Pradesh v. Sheetla
Sahai & Ors., (2009) 8 SCC 617).
23. The question to examine as to whether the sanction is required
or not under a statute has to be considered at the time of taking
cognizance of the offence and not during enquiry or investigation.
There is a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the cognizance of offence is
taken. It is also to be kept in mind that the cognizance is taken of
the offence and not of the offender. The sanction of the appropriate
authority is necessary to protect a public servant from unnecessary
harassment or prosecution. Such a protection is necessary as an
assurance to an honest and sincere officer to perform his public duty
honestly and to the best of his ability. The threat of prosecution
demoralises the honest officer. However, performance of public duty
under colour of duty cannot be camouflaged to commit a crime. The
public duty may provide such a public servant an opportunity to commit
crime and such issue is required to be examined by the sanctioning
authority or by the court. It is quite possible that the official
capacity may enable the pubic servant to fabricate the record or mis-
appropriate public funds etc. Such activities definitely cannot be
integrally connected or inseparably inter-linked with the crime
committed in the course of the same transaction. Thus, all acts done by
a public servant in the purported discharge of his official duties
cannot as a matter of course be brought under the protective umbrella
of requirement of sanction. (Vide: Bhanuprasad Hariprasad Dave & Anr.
v. The State of Gujarat, AIR 1968 SC 1323; Hareram Satpathy v. Tikaram
Agarwala & Ors., AIR 1978 SC 1568; State of Maharashtra v. Dr.
Budhikota Subbarao, (1993) 3 SCC 339; Anil Saran v. State of Bihar &
Anr., AIR 1996 SC 204; Shambhoo Nath Misra v State of U.P. & Ors., AIR
1997 SC 2102; and Choudhury Parveen Sultana v. State of West Bengal &
Anr., AIR 2009 SC 1404).
24. In fact, the issue of sanction becomes a question of paramount
importance when a public servant is alleged to have acted beyond his
authority or his acts complained of are in dereliction of the duty. In
such an eventuality, if the offence is alleged to have been committed
by him while acting or purporting to act in discharge of his official
duty, grant of prior sanction becomes imperative. It is so, for the
reason that the power of the State is performed by an executive
authority authorised in this behalf in terms of the Rules of Executive
Business framed under Article 166 of the Constitution of India insofar
as such a power has to be exercised in terms of Article 162 thereof.
(See : State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC
92).
25. In Satyavir Singh Rathi, (Supra), this Court considered
the provisions of Section 140 of the Delhi Police Act 1978 which bars
the suit and prosecution in any alleged offence by a police officer in
respect of the act done under colour of duty or authority in exercise
of any such duty or authority without the sanction and the same shall
not be entertained if it is instituted more than 3 months after the
date of the act complained of. A complaint may be entertained in this
regard by the court if instituted with the previous sanction of the
administrator within one year from the date of the offence. This Court
after considering its earlier judgments including Jamuna Singh (supra);
The State of Andhra Pradesh v. N. Venugopal & Ors., AIR 1964 SC 33;
State of Maharashtra v. Narhar Rao, AIR 1966 SC 1783; State of
Maharashtra v. Atma Ram & Ors., AIR 1966 SC 1786; and Prof. Sumer
Chand v. Union of India & Ors., (1994) 1 SCC 64, came to the
conclusion that the prosecution has been initiated on the basis of the
FIR and it was the duty of the police officer to investigate the matter
and to file a chargesheet, if necessary. If there is a discernible
connection between the act complained of by the accused and his powers
and duties as police officer, the act complained of may fall within the
description of colour of duty. However, in a case where the act
complained of does not fall within the description of colour of duty,
the provisions of Section 140 of the Delhi Police Act 1978 would not be
attracted.
26. This Court in State of Orissa & Ors. v. Ganesh Chandra Jew, AIR
2004 SC 2179, while dealing with the issue held as under:
“….. It is the quality of the act which is important and the
protection of this section is available if the act falls within
the scope and range of his official duty. There cannot be any
universal rule to determine whether there is a reasonable
connection between the act done and the official duty, nor is
it possible to lay down any such rule. One safe and sure test
in this regard would be to consider if the omission or neglect
on the part of the public servant to commit the act complained
of could have made him answerable for a charge of dereliction
of his official duty. If the answer to this question is in the
affirmative, it may be said that such act was committed by the
public servant while acting in the discharge of his official
duty and there was every connection with the act complained of
and the official duty of the public servant.”
(Emphasis added)
(See also: P. Arulswami v. State of Madras, AIR 1967 SC 776).
27. This Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay
Bhushan & Ors., AIR 1998 SC 1524, held as under:
“……The legislative mandate engrafted in sub-section (1) of
Section 197 debarring a Court from taking cognizance of an
offence except with a previous sanction of the concerned
Government in a case where the acts complained of are alleged
to have been committed by 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 his
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, the accused
after appearing before the Court on process being issued, by an
application indicating that Section 197(1) is attracted merely
assists the Court to rectify its error where jurisdiction has
been exercised which it does not possess. In such a case there
should not be any bar for the accused producing the relevant
documents and materials which will be ipso facto admissible,
for adjudication of the question as to whether in fact Section
197 has any application in the case in hand. It is no longer in
dispute and has been indicated by this Court in several cases
that the question of sanction can be considered at any stage of
the proceedings.” (Emphasis added)
28. In Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, the
Constitution Bench of this Court held that requirement of sanction may
arise at any stage of the proceedings as the complaint may not disclose
all the facts to decide the question of immunity, but facts
subsequently coming either to notice of the police or in judicial
inquiry or even in the course of prosecution evidence may establish the
necessity for sanction. The necessity for sanction may surface during
the course of trial and it would be open to the accused to place the
material on record for showing what his duty was and also the acts
complained of were so inter-related or inseparably connected with his
official duty so as to attract the protection accorded by law. The
court further observed that difference between “acting or purporting to
act” in the discharge of his official duty is merely of a language and
not of substance.
On the issue as to whether the court or the competent authority
under the statute has to decide the requirement of sanction, the court
held:
“Whether sanction is to be accorded or not is a matter for the
government to consider. The absolute power to accord or withhold
sanction conferred on the government is irrelevant and foreign
to the duty cast on the Court, which is the ascertainment of
the true nature of the act……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 we must
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 the official duty, though
possibly in excess of the needs and requirements of the
situation.” (Emphasis
added)
29. In Sankaran Moitra v. Sadhna Das & Anr., AIR 2006 SC 1599,
this Court held as under :
“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.”
(See also: Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors., AIR
2001 SC 2198).
30. In S.B. Saha & Ors. v. M.S. Kochar, AIR 1979 SC 1841, this
Court dealt with the issue elaborately and explained the meaning of
“official” as contained in the provisions of Section 197 Cr.P.C.,
observing:
"In considering the question whether sanction for
prosecution was or was not necessary, these criminal acts
attributed to the accused are to be taken as alleged…….. 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 in Section 197(1) of the Code, are capable of a
narrow as well as a wide interpretation. If these words are
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'. In the wider sense, these words 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 purports to be performed. The
right approach to the import of these words lies between 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 of
Section 197 (1), an act constituting an offence, directly and
reasonably connected with his official duty will require
sanction for prosecution under the said provision.”
31. In Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR
2007 SC 1274, this Court reiterated the same view while interpreting
the phrase “official duty”, as under:
“…Official duty therefore implies that the act or omission must
have been done by the public servant in course of his service
and such act or omission must have been performed as part of
duty which further must have been official in nature. The
Section has, thus, to be construed strictly, while determining
its applicability to any act or omission in course of service.
Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission has
been found to have been committed by a public servant in
discharge of his duty then it must be given liberal and wide
construction so far its official nature is concerned……”
32. In P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC
229, this Court dealt with the issue wherein an Army officer had
allegedly indulged in the offence punishable under Section 166 IPC -
public servant disobeying law, with intent to cause injury to any
person and Section 167 IPC - public servant framing incorrect document
with intention to cause injury, and as to whether in such an
eventuality sanction under Section 197 Cr.P.C. was required. The
Court held as under:
“As the offences under Sections 166 and 167 of the Penal Code
have a direct nexus with commission of a criminal misconduct on
the part of a public servant, indisputably an order of sanction
was prerequisite before the learned Judicial Magistrate could
issue summons upon the appellant.”
The Court further rejected the contention that sanction was not
required in view of the provisions of Sections 125 and 126 of the Army
Act, which provided for a choice of the competent authorities to try an
accused either by a criminal court or proceedings for court-martial.
Section 126 provides for the power of the criminal court to require
delivery of offender. The Court held that in case the competent
authority takes a decision that the accused was to be tried by ordinary
criminal court, the provisions of the Cr.P.C. would be applicable
including the law of limitation and the criminal court cannot take
cognizance of offence if it is barred by limitation. In case, the
delay is not condoned, the court will have no jurisdiction to take the
cognizance. Similarly, unless it is held that a sanction was not
required to be obtained, the court’s jurisdiction will be barred.
33. This Court in Nagraj v. State of Mysore, AIR 1964 SC 269, held
that:
“ The last question to consider is that if the Court comes at
any stage to the conclusion that the prosecution could not have
been instituted without the sanction of the Government, what
should be the procedure to be followed by it, i e., whether the
Court should discharge the accused or acquit him of the charge
if framed against him or just drop the proceedings and pass no
formal order of discharge or acquittal as contemplated in the
case of a prosecution under the Code. The High Court has said
that when the Sessions Judge be satisfied that the facts proved
bring the case within the mischief of S. 132 of the Code then
he is at liberty to reject the complaint holding that it is
barred by that section. We consider this to be the right order
to be passed in those circumstances. It is not essential that
the Court must pass a formal order discharging or acquitting
the accused. In fact no such order can be passed. If S. 132
applies, the complaint could not have been instituted without
the sanction of the Government and the proceedings on a
complaint so instituted would be void, the Court having no
jurisdiction to take those proceedings. When the proceedings be
void, the Court is not competent to pass any order except an
order that the proceedings be dropped and the complaint is
rejected.” (Emphasis added)
34. In Naga People’s Movement of Human Rights v. Union of India,
AIR 1998 SC 431, the Constitution Bench of this Court while dealing
with the issue involved herein under the provisions of Section 6 of the
Armed Forces (Special Powers) Act, 1958, held as under:
“Under Section 6 protection has been given to the persons
acting under the Central Act and it has been prescribed that no
prosecution, suit or other legal proceeding shall be instituted
against any person in respect of anything done or purported to
be done in exercise of the powers conferred by the said Act
except with the previous sanction of the Central Government.
The conferment of such a protection has been assailed on the
ground that it virtually provides immunity to persons
exercising the powers conferred under Section 4 inasmuch as it
extends the protection also to “anything purported to be done
in exercise of the powers conferred by this Act”. It has been
submitted that adequate protection for members of armed forces
from arrest and prosecution is contained in Sections 45 and 197
CrPC and that a separate provision giving further protection is
not called for. It has also been submitted that even if
sanction for prosecution is granted, the person in question
would be able to plead a statutory defence in criminal
proceedings under Sections 76 and 79 of the Indian Penal Code.
The protection given under Section 6 cannot, in our opinion, be
regarded as conferment of an immunity on the persons exercising
the powers under the Central Act. Section 6 only gives
protection in the form of previous sanction of the Central
Government before a criminal prosecution or a suit or other
civil proceeding is instituted against such person. Insofar as
such protection against prosecution is concerned, the provision
is similar to that contained in Section 197 CrPC which covers
an offence alleged to have been committed by a public servant
“while acting or purporting to act in the discharge of his
official duty”. Section 6 only extends this protection in the
matter of institution of a suit or other legal proceeding.
xx xx xx
In order that the people may feel assured that there is an
effective check against misuse or abuse of powers by the
members of the armed forces it is necessary that a complaint
containing an allegation about misuse or abuse of the powers
conferred under the Central Act should be thoroughly inquired
into and, if it is found that there is substance in the
allegation, the victim should be suitably compensated by the
State and the requisite sanction under Section 6 of the Central
Act should be granted for institution of prosecution and/or a
civil suit or other proceedings against the person/persons
responsible for such violation.” (Emphasis added)
35. In Jamiruddin Ansari v. Central Bureau of Investigation & Anr.,
(2009) 6 SCC 316, this Court while dealing with the provision of
Maharashtra Control of Organised Crime Act, 1999 (hereinafter called as
‘MCOCA’) held that:
“As indicated hereinabove, the provisions of Section 23 are
the safeguards provided against the invocation of the
provisions of the Act which are extremely stringent and far
removed from the provisions of the general criminal law. If, as
submitted on behalf of some of the respondents, it is accepted
that a private complaint under Section 9(1) is not subject to
the rigours of Section 23, then the very purpose of introducing
such safeguards lose their very raison d'être. At the same
time, since the filing of a private complaint is also
contemplated under Section 9(1) of MCOCA, for it to be
entertained it has also to be subject to the rigours of Section
23. Accordingly, in view of the bar imposed under sub-section
(2) of Section 23 of the Act, the learned Special Judge is
precluded from taking cognizance on a private complaint upon a
separate inquiry under Section 156(3) CrPC. The bar of Section
23(2) continues to remain in respect of complaints, either of a
private nature or on a police report.
In order to give a harmonious construction to the
provisions of Section 9(1) and Section 23 of MCOCA, upon
receipt of such private complaint the learned Special Judge has
to forward the same to the officer indicated in clause (a) of
sub-section (1) of Section 23 to have an inquiry conducted into
the complaint by a police officer indicated in clause (b) of
sub-section (1) and only thereafter take cognizance of the
offence complained of, if sanction is accorded to the Special
Court to take cognizance of such offence under sub-section (2)
of Section 23.” (Emphasis added)
36. This Court in Harpal Singh v. State of Punjab, (2007) 13 SCC
387, while dealing with the provision of Section 20A(2) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
called ‘TADA’) held as under:
“The important feature which is to be noted is that the
prosecution did not obtain sanction of the Inspector General of
Police or of the Commissioner of Police for prosecution of the
appellant under TADA at any stage as is required by Section 20-
A(2) of TADA. The trial of the appellant before the Designated
Court proceeded without the sanction of the Inspector General
of Police or the Commissioner of Police. In absence of previous
sanction the Designated Court had no jurisdiction to take
cognizance of the offence or to proceed with the trial of the
appellant under TADA”.
(Emphasis added)
37. In Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat, AIR
1997 SC 3475, this Court while dealing with the same provisions of
TADA, held that:
“…Thus a valid sanction is sine qua non for enabling the
prosecuting agency to approach the Court in order to enable the
Court to take cognizance of the offence under TADA as disclosed
in the report. The corollary is that, if there was no valid
sanction the Designated Court gets no jurisdiction to try a
case against any person mentioned in the report as the Court is
forbidden from taking cognizance of the offence without such
sanction. If the Designated Court has taken cognizance of the
offence without a valid sanction, such action is without
jurisdiction and any proceedings adopted thereunder will also
be without jurisdiction.”
38 In State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, this Court
while dealing with the issue held as under:
“Use of the words “no” and “shall” makes it abundantly clear
that the bar on the exercise of power of the court to take
cognizance of any offence is absolute and complete. The very
cognizance is barred. That is, the complaint cannot be taken
notice of.” (Emphasis added)
39. In broad and literal sense `cognizance’ means taking notice of
an offence as required under Section 190 Cr.P.C. `Cognizance’
indicates the point when the court first takes judicial notice of an
offence. The court not only applies its mind to the contents of the
complaint/police report, but also proceeds in the manner as indicated
in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide:
R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of
W.B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684).
40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR
2012 SC 1185, this Court dealt with the issue elaborately and explained
the meaning of the word ‘cognizance’ as under:
“In legal parlance cognizance is ‘taking judicial notice by the
court of law’, possessing jurisdiction, on a cause or matter
presented before it so as to decide whether there is any basis
for initiating proceedings and determination of the cause or
matter judicially.” (Emphasis added)
(See also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4 SCALE 191)
41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC
372, this Court explained the meaning of the term ‘the very cognizance
is barred’ as that the complaint cannot be taken notice of or
jurisdiction or exercise of jurisdiction or power to try and determine
causes. In common parlance, it means taking notice of. The court,
therefore, is precluded from entertaining a complaint or exercising
jurisdiction if it is in respect of a public servant who is accused of
an offence alleged to have been committed during discharge of his
official duty.
42. The relevant provisions in the Cr.P.C. read as under:
“45(1)- Notwithstanding anything contained in Sections 41 to 44
(both inclusive), no member of the Armed Forces of the Union shall
be arrested for anything done or purported to be done by him in the
discharge of his official duties except after obtaining the
consent of the Central Government.
197(2)- No Court shall take cognizance of any offence alleged to
have been committed by any member of the Armed Forces of the Union
while acting or purporting to act in the discharge of his official
duty, except with the previous sanction of the Central Government.”
Section 7 of the Act 1990, puts an embargo on the
complainant/investigating agency/person aggrieved to file a suit,
prosecution etc. in respect of anything done or purported to be done by
a Army personnel, in good faith, in exercise of power conferred by
the Act, except with the previous sanction of the Central Government.
43. Three expressions i.e. ‘except’, ‘good faith’ and ‘purported’
contained in the aforesaid provision require clarification/elaboration.
(i) Except :
To leave or take out: exclude; omit; save
Not including; unless. The word has also been construed to mean
until.
Exception – Act of excepting or excluding from a number
designated or from a description; that which is excepted or
separated from others in a general rule of description; a
person, thing, or case specified as distinct or not included; an
act of excepting, omitting from mention or leaving out of
consideration.
(ii) Purport :
Purport means to present, especially deliberately, the
appearance of being; profess or claim, often falsely. It means
to convey, imply, signify or profess outwardly, often falsely.
In other words it means to claim (to be a certain thing, etc.)
by manner or appearance; intent to show; to mean; to intend.
Purport also means ‘alleged’.
‘Purporting’ – When power is given to do something ‘purporting’
to have a certain effect, it will seem to prevent objections
being urged against the validity of the act which might
otherwise be raised. Thus when validity is given to anything
‘purporting’ to be done in pursuance of a power, a thing done
under it may have validity though done at a time when the power
would not be really exercisable. (Dicker v. Angerstein, 3 Ch D
600)
‘Purporting to be done’ – There must be something in the nature
of the act that attaches it to his official character. Even if
the act is not justified or authorised by law, he will still be
purporting to act in the execution of his duty if he acts on a
mistaken view of it.”
So it means that something is deficient or amiss: everything is
not as it is intended to be.
In Azimunnissa and Ors. v. The Deputy Custodian, Evacuee
Properties, District Deoria and Ors. AIR 1961 SC 365, Constitution
Bench of this court held:
“The word ‘purport’ has many shades of meaning. It means
fictitious, what appears on the face of the instrument; the
apparent and not the legal import and therefore any act which
purports to be done in exercise of a power is to be deemed to be
done within that power notwithstanding that the power is not
exercisable…..Purporting is therefore indicative of what appears
on the face of it or is apparent even though in law it may not
be so.” (Emphasis added)
(See also: Haji Siddik Haji Umar & Ors. v. Union of India, AIR 1983 SC
259).
(iii) GOOD FAITH:
44. A public servant is under a moral and legal obligation to
perform his duty with truth, honesty, honour, loyality and faith etc.
He is to perform his duty according to the expectation of the office
and the nature of the post for the reason that he is to have a
respectful obedience to the law and authority in order to accomplish
the duty assigned to him. Good faith has been defined in Section 3(22)
of the General Clauses Act, 1897, to mean a thing which is, in fact,
done honestly, whether it is done negligently or not. Anything done
with due care and attention, which is not malafide, is presumed to have
been done in good faith. There should not be personal ill-will or
malice, no intention to malign and scandalize. Good faith and public
good are though the question of fact, it required to be proved by
adducing evidence. (Vide: Madhavrao Narayanrao Patwardhan v. Ram
Krishna Govind Bhanu & Ors., AIR 1958 SC 767; Madhav Rao Scindia
Bahadur Etc. v. Union of India & Anr., AIR 1971 SC 530; Sewakram
Sobhani v. R.K. Karanjiya, Chief Editor, Weekly Blitz & Ors., AIR 1981
SC 1514; Vijay Kumar Rampal & Ors. v. Diwan Devi & Ors., AIR 1985 SC
1669; Deena (Dead) through Lrs. v. Bharat Singh (Dead) through LRs. &
Ors., (2002) 6 SCC 336; and Goondla Venkateshwarlu v. State of Andhra
Pradesh & Anr., (2008) 9 SCC 613).
In Brijendra Singh v. State of U.P. & Ors., AIR 1981 SC 636, this
Court while dealing with the issue held:
“…..The expression has several shades of meanings. In the
popular sense, the phrase 'in good faith' simply means
"honestly, without fraud, collusion, or deceit; really,
actually, without pretence and without intent to assist or act
in furtherance of a fraudulent or otherwise unlawful scheme".
(See Words and Phrases, Permanent Edition, Vol. 18A, page 91).
Although the meaning of "good faith" may vary in the context of
different statutes, subjects and situations, honest intent free
from taint of fraud or fraudulent design, is a constant element
of its connotation. Even so, the quality and quantity of the
honesty requisite for constituting 'good faith' is conditioned
by the context and object of the statute in which this term is
employed. It is a cardinal canon of construction that an
expression which has no uniform, precisely fixed meaning, takes
its colour, light and content from the context.”
45. For the aforesaid qualities attached to a duty one can attempt
to decipher it from a private act which can be secret or mysterious. An
authorised act or duty is official and is in connection with authority.
Thus, it cannot afford to be something hidden or non-transparent unless
such a duty is protected under some law like the Official Secrets Act.
46. Performance of duty acting in good faith either done or
purported to be done in the exercise of the powers conferred under the
relevant provisions can be protected under the immunity clause or not,
is the issue raised. The first point that has to be kept in mind is
that such a issue raised would be dependent on the facts of each case
and cannot be a subject matter of any hypothesis, the reason being,
such cases relate to initiation of criminal prosecution against a
public official who has done or has purported to do something in
exercise of the powers conferred under a statutory provision. The facts
of each case are, therefore, necessary to constitute the ingredients of
an official act. The act has to be official and not private as it has
to be distinguished from the manner in which it has been administered
or performed.
47. Then comes the issue of such a duty being performed in good
faith. ‘Good faith’ means that which is founded on genuine belief and
commands a loyal performance. The act which proceeds on reliable
authority and accepted as truthful is said to be in good faith. It is
the opposite of the intention to deceive. A duty performed in good
faith is to fulfil a trust reposed in an official and which bears an
allegiance to the superior authority. Such a duty should be honest in
intention, and sincere in professional execution. It is on the basis of
such an assessment that an act can be presumed to be in good faith for
which while judging a case the entire material on record has to be
assessed.
48. The allegations which are generally made are, that the act was
not traceable to any lawful discharge of duty. That by itself would not
be sufficient to conclude that the duty was performed in bad faith. It
is for this reason that the immunity clause is contained in statutory
provisions conferring powers on law enforcing authorities. This is to
protect them on the presumption that acts performed in good faith are
free from malice or illwill. ?The immunity is a kind of freedom
conferred on the authority in the form of an exemption while performing
or discharging official duties and responsibilities. The act or the
duty so performed are such for which an official stands excused by
reason of his office or post.
49. It is for this reason that the assessment of a complaint or
the facts necessary to grant sanction against immunity that the chain
of events has to be looked into to find out as to whether the act is
dutiful and in good faith and not maliciously motivated. It is the
intention to act which is important.
50. A sudden decision to do something under authority or the
purported exercise of such authority may not necessarily be
predetermined except for the purpose for which the official proceeds to
accomplish. For example, while conducting a raid an official may not
have the apprehension of being attacked but while performing his
official duty he has to face such a situation at the hands of criminals
and unscrupulous persons. The official may in his defence perform a
duty which can be on account of some miscalculation or wrong
information but such a duty cannot be labelled as an act in bad faith
unless it is demonstrated by positive material in particular that the
act was tainted by personal motives and was not connected with the
discharge of any official duty. Thus, an act which may appear to be
wrong or a decision which may appear to be incorrect is not necessarily
a malicious act or decision. The presumption of good faith therefore
can be dislodged only by cogent and clinching material and so long as
such a conclusion is not drawn, a duty in good faith should be presumed
to have been done or purported to have been done in exercise of the
powers conferred under the statute.
?51. There has to be material to attribute or impute an
unreasonable motive behind an act to take away the immunity clause. It
is for this reason that when the authority empowered to grant sanction
is proceeding to exercise its discretion, it has to take into account
the material facts of the incident complained of before passing an
order of granting sanction or else official duty would always be in
peril even if performed bonafidely and genuinely.
52. It is in the aforesaid background that we wish to record that
the protection and immunity granted to an official particularly in
provisions of the Act 1990 or like Acts has to be widely construed in
order to assess the act complained of. This would also include the
assessment of cases like mistaken identities or an act performed on the
basis of a genuine suspicion. We are therefore of the view that such
immunity clauses have to be interpreted with wide discretionary powers
to the sanctioning authority in order to uphold the official discharge
of duties in good faith and a sanction therefore has to be issued only
on the basis of a sound objective assessment and not otherwise.
53. Use of words like ‘No’ and ‘shall’ in Section 7 of the Act
1990 denotes the mandatory requirement of obtaining prior sanction of
the Central Government before institution of the prosecution, suit or
legal proceedings. From the conjoint reading of Section 197(2) Cr.P.C.
and Section 7 of the Act 1990, it is clear that prior sanction is a
condition precedent before institution of any of the aforesaid legal
proceedings.
54. To understand the complicacy of the issue involved herein, it
will be useful to compare the relevant provisions of different statutes
requiring previous sanction.
|CRIMINAL PROCEDURE |PREVENTION OF |ARMED FORCES |
|CODE, 1973 |CORRUPTION ACT, 1988|(SPECIAL POWERS) |
| | |ACT, 1990 |
|197. Prosecution of |19. Previous |7. Protection to |
|Judges and Public |sanction necessary |persons acting |
|servants.- (1) When|for prosecution.- |under Act.— No |
|any person who is or|(1) No court shall |prosecution, suit |
|was a Judge or |take cognizance of |or other legal |
|Magistrate or a |an offence |proceeding shall be|
|public servant not |punishable under |instituted, except |
|removable from his |Sections 7,10,11,13 |with the previous |
|office save by or |and 15 alleged to |sanction of the |
|with the sanction of|have been committed |Central Government,|
|the Government is |by a public servant,|against any person |
|accused of any |except with the |in respect of |
|offence alleged to |previous sanction. |anything done or |
|have been committed |(a) in the case of a|purported to be |
|by him while acting |person who is |done in exercise of|
|or purporting to act|employed in |the powers |
|in the discharge of |connection with the |conferred by this |
|his official duty, |affairs of the Union|Act. |
|no Court shall take |and is not removable|………………… |
|cognizance of such |from his office save|………………… |
|offence except with |by or with the | |
|the previous |sanction of the | |
|sanction. |Central Government, | |
|………………… |of that Government. | |
|………………… | | |
| |……………………. | |
| |……………………. | |
Thus, it is evident from the aforesaid comparative chart that
under the provisions of Cr.P.C. and Prevention of Corruption Act, it is
the court which is restrained to take cognizance without previous
sanction of the competent authority. Under the Act 1990, the
investigating agency/complainant/person aggrieved is restrained to
institute the criminal proceedings; suit or other legal proceedings.
Thus, there is a marked distinction in the statutory provisions under
the Act 1990, which are of much wider magnitude and are required to be
enforced strictly.
55. Thus, in view of the above, the law on the issue of sanction
can be summarised to the effect that the question of sanction is of
paramount importance for protecting a public servant who has acted in
good faith while performing his duty. In order that the public servant
may not be unnecessarily harassed on a complaint of an unscrupulous
person, it is obligatory on the part of the executive authority to
protect him. However, there must be a discernible connection between
the act complained of and the powers and duties of the public servant.
The act complained of may fall within the description of the action
purported to have been done in performing the official duty.
Therefore, if the alleged act or omission of the public servant can be
shown to have reasonable connection inter-relationship or inseparably
connected with discharge of his duty, he becomes entitled for
protection of sanction. If the law requires sanction, and the court
proceeds against a public servant without sanction, the public servant
has a right to raise the issue of jurisdiction as the entire action may
be rendered void ab-initio for want of sanction. Sanction can be
obtained even during the course of trial depending upon the facts of an
individual case and particularly at what stage of proceedings,
requirement of sanction has surfaced. The question as to whether the
act complained of, is done in performance of duty or in purported
performance of duty, is to be determined by the competent authority and
not by the court. The Legislature has conferred “absolute power” on the
statutory authority to accord sanction or withhold the same and the
court has no role in this subject. In such a situation the court would
not proceed without sanction of the competent statutory authority.
56. The present case stands squarely covered by the ratio of the
judgments of this Court in Matajog Dobey (Supra) and Sankaran Moitra
(Supra). Thus, we have no hesitation to hold that sanction of the
Central Government is required in the facts and circumstances of the
case and the court concerned lacks jurisdiction to take cognizance
unless sanction is granted by the Central Government.
57. The CJM Court gave option to the higher authorities of the Army
to choose whether the trial be held by the court-martial or by the
criminal court as required under Section 125 of the Army Act. Mr.
P.P. Malhotra, learned ASG, has submitted the original file of the
Army Authorities before the court, File notings reveal their decision
that in case it is decided by this Court that sanction is required and
the Central Government accords sanction, option would be availed at
that stage.
58. Military Authority may ask the criminal court dealing with the
case that the accused would be tried by the court-martial in view of
the provisions of Section 125 of the Army Act. However, the option
given by the Authority is not final in view of the provisions of
Section 126 of the Army Act. Criminal court having jurisdiction to try
the offender may require the competent military officer to deliver the
offender to the Magistrate concerned to be proceeded according to law
or to postpone the proceedings pending reference to the Central
Government, if that criminal court is of the opinion that proceedings
be instituted before itself in respect of that offence. Thus, in case
the criminal court makes such a request, the Military Officer either
has to comply with it or to make a reference to the Central Govt. whose
orders would be final with respect to the venue of the trial.
Therefore, the discretion exercised by the Military Officer is subject
to the control of the Central Govt. Such matter is being governed by
the provisions of Section 475 Cr.P.C. read with the provisions of the J
& K Criminal Courts and court-martial (Adjustment of Jurisdiction)
Rules, 1983.
Rule 6 of the said Rules, 1983, provides that in case the
accused has been handed over to the Army authorities to be tried by a
court-martial, the proceedings of the criminal court shall remain
stayed. Rule 7 thereof, further provides that when an accused has been
delivered by the criminal court to the Army authorities, the authority
concerned shall inform the criminal court whether the accused has been
tried by a court-martial or other effectual proceedings have been taken
or ordered to be taken against him. If the Magistrate is informed that
the accused has not been tried or other effectual proceedings have not
been taken, the Magistrate shall report the circumstances to the State
Government which may, in consultation with the Central Government, take
appropriate steps to ensure that the accused person is dealt with in
accordance with law.
59. Constitution Bench of this Court in Som Datt Datta v. Union of
India & Ors., AIR 1969 SC 414, held that option as to whether the
accused be tried by a criminal court or court-martial could be
exercised after the police has completed the investigation and
submitted the chargesheet. Therefore, for making such an option, the
Army Authorities do not have to wait till the criminal court takes
cognizance of the offence or frames the charges, which commences the
trial.
60. In Delhi Special Police Establishment, New Delhi v. Lt. Col.
S.K. Loraiya, AIR 1972 SC 2548, a similar view has been reiterated by
this Court observing that relevant Rules require that an option be
given as to whether the accused be tried by a court-martial or by
ordinary criminal court. The Magistrate has to give notice to the
Commanding Officer and is not to make any order of conviction or
acquittal or frame charges or commit the accused until the expiry of 7
days from the service of notice.
61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90,
this Court dealt with the provisions of the Air Force Act, 1950;
provisions of Cr.P.C. and criminal court and court-martial (Adjustment
of Jurisdiction) Rules, 1952 and reiterated the same view relying upon
its earlier judgment in Ram Sarup v. Union of India & Anr., AIR 1965 SC
247, wherein it has been held that there could be variety of
circumstances which may influence the justification as to whether the
offender be tried by a court-martial or by criminal court, and
therefore, it becomes inevitable that the discretion to make such a
choice be left to the Military Officers. Military Officer is to be
guided by considerations of the exigencies of the service, maintenance
of discipline in the Army, speedier trial, the nature of the offence
and the persons against whom the offence is committed.
62. Thus, the law on the issue is clear that under Section 125 of
the Army Act, the stage of making option to try an accused by a court-
martial and not by the criminal court is after filing of the
chargesheet and before taking cognizance or framing of the charges.
63. A question has further been raised by learned counsel for the
appellant that the Act 1990 is a special Act and Section 7 thereof,
provides full protection to the persons who are subject to the Army Act
from any kind of suit, prosecution and legal proceedings unless the
sanction of the Central Government is obtained . Thus, in such a fact-
situation, even if the Commanding Officer exercises his discretion and
opts that the accused would be tried by the court-martial, the
proceedings of court-martial cannot be taken unless the Central
Government accords sanction.
64. Learned counsel for the CBI and interveners have opposed the
submission contending that in case the accused are tried in the court-
martial, sanction is not required at all. The provisions of the Act
1990 would apply in consonance with the provisions of the Army Act.
Section 7 of the Act 1990 does not contain non-obstante clause.
Therefore, once the option is made that accused is to be tried by a
court-martial, further proceedings would be in accordance with the
provisions of Section 70 of the Army Act and for that purpose, sanction
of the Central Government is not required. The court-martial has been
defined under Section 3(VII) of the Army Act which is definitely
different from the suit and prosecution as explained hereinabove, and
has not been referred to in the Act 1990.
65. Undoubtedly, the court-martial proceedings are akin to criminal
prosecution and this fact has been dealt with elaborately by this Court
in Union of India & Ors. v. Major A. Hussain, AIR 1998 SC 577.
However, once the matter stands transferred to the Army for conducting
a court-martial, the court-martial has to be as per the provisions of
the Army Act. The Army Act does not provide for sanction of the Central
Government. Thus, we do not find any force in the contention raised
by the appellant and the same is rejected.
66. Sum up:
i) The conjoint reading of the relevant statutory provisions and
rules make it clear that the term “institution” contained in
Section 7 of the Act 1990 means taking cognizance of the
offence and not mere presentation of the chargesheet by the
investigating agency.
ii) The competent Army Authority has to exercise his discretion to
opt as to whether the trial would be by a court-martial or
criminal court after filing of the chargesheet and not after
the cognizance of the offence is taken by the court.
iii) Facts of this case require sanction of the Central Government
to proceed with the criminal prosecution/trial.
iv) In case option is made to try the accused by a court-martial,
sanction of the Central Government is not required.
67. In view of the above, the appeals stand disposed of with the
following directions:
I. The competent authority in the Army shall take a decision within
a period of eight weeks from today as to whether the trial would
be by the criminal court or by a court-martial and communicate
the same to the Chief Judicial Magistrate concerned immediately
thereafter.
II. In case the option is made to try the case by a court-martial,
the said proceedings would commence immediately and would be
concluded strictly in accordance with law expeditiously.
III. In case the option is made that the accused would be tried by
the criminal court, the CBI shall make an application to the
Central Government for grant of sanction within four weeks from
the receipt of such option and in case such an application is
filed, the Central Government shall take a final decision on the
said application within a period of three months from the date
of receipt of such an application.
IV. In case sanction is granted by the Central Government, the
criminal court shall proceed with the trial and conclude the
same expeditiously.
………..…………..……..J.
(Dr. B.S. CHAUHAN)
…….…………………..…J.
(SWATANTER KUMAR)
New Delhi,
May 1, 2012
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