Sec.197 Cr. P.C. - want of sanction - Whether it can be raised at stage of trial by Accused - Trial court dismissed the objections raised by Accused on the ground the in some cases Sanction not obtained as he is an IAS officer and in some cases sanction obtained much prior to framing of charges - High court also dismissed the revision giving liberty to raise this issue at any time during trial - Apex court held that it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required under Section 197 of the Code. Notwithstanding the above, the High Court had granted liberty to the appellant to raise the issue of sanction, if so required, depending on the evidence that may come on record in the course of the trial. =
the appellant filed revision applications before the
learned Sessions Judge, Patna challenging the orders passed by the learned
Trial Court, primarily, on the ground that the said orders were without
jurisdiction and incompetent in law inasmuch as sanction for prosecution of
the appellant under Section 197 of the Code of Criminal Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to the
date of taking of cognizance. The revision applications filed by the
appellant were dismissed by the learned Additional Sessions Judge, Fast
Track Court No.2, Patna by orders of different dates. The said orders of
the learned Additional Sessions Judge were challenged before the High Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and 3192/2011.
The High Court by the common impugned order dated 27.11.2012 negatived the
challenge made by the appellant leading to the present appeals. =
whether the acts giving rise to the alleged offences had
been committed by the accused in the actual or purported discharge of his
official duties.
In a series of pronouncements commencing with Satwant
Singh vs. State of Punjab[2]; Harihar Prasad vs. State of Bihar[3] and
Prakash Singh Badal & Anr. vs. State of Punjab & Ors.[4]
it has been
consistently held that it can be no part of the duty of a public servant or
acting in the discharge of his official duties to commit any of the
offences covered by Section 406, 409, 420 etc. and the official status of
the public servant can, at best, only provide an opportunity for commission
of the offences.
Therefore, no sanction for prosecution of the public
servant for such offences would be required under Section 197 of the Code.
Notwithstanding the above, the High Court had granted liberty to the
appellant to raise the issue of sanction, if so required, depending on the
evidence that may come on record in the course of the trial.
Despite the
view taken by this Court in the series of pronouncements referred to above,
the opportunity that has been provided by the High Court to the benefit of
the appellant need not be foreclosed by us inasmuch as
in Matajog Dobey vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash Singh Badal
(supra)
this Court had consistently held that the question of sanction
under Section 197 of the Code can be raised at any time after cognizance
had been taken and may have to be determined at different stages of the
proceeding/trial.
The observations of this Court in this regard may be usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings.
The complaint may
not disclose that the act constituting the offence was done or purported to
be done in the discharge of official duty;
but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for
sanction.
Whether sanction is necessary or not may have to be determined
from stage to stage. The necessity may reveal itself in the course of the
progress of the case.”
P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the Code
can be raised any time after the cognizance; may be 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 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.”
Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]
“The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. ...”
10. In view of the discussions we will have no occasion to cause any
interference with the orders passed by the High Court in the proceedings
instituted before it by the appellant which have been impugned in the
appeals under consideration. Consequently, we dismiss all the appeals and
maintain the orders passed by the High Court in all the cases before it.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1359 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3020 OF 2013)
CHANDAN KUMAR BASU ... APPELLANT (S)
VERSUS
STATE OF BIHAR ... RESPONDENT (S)
WITH
CRIMINAL APPEAL No.1362 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3022 OF 2013)
CRIMINAL APPEAL No.1361 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3016 OF 2013)
CRIMINAL APPEAL No.1360 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3014 OF 2013)
CRIMINAL APPEAL No.1363 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3074 OF 2013)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. The appellant, at the relevant point of time, was a member of the
Indian Administrative Service and serving on deputation as the
Administrator-cum-Managing Director of the Bihar State Housing Cooperative
Federation Ltd. The aforesaid Federation is a society registered under the
Bihar Cooperative Societies Act, 1935. On the basis of the various
complaints made against the appellant, FIR Nos. 837/2002 dated 16.12.2002,
859/2002 and 860/2002 both dated 24.12.2002, 19/2003 dated 07.01.2003 and
41/2003 dated 18.01.2003 under Sections 409/420/467/468/ 471/34/120-B of
the Indian Penal Code (hereinafter for short ‘IPC’) were registered at
Police Station Gardani Bagh (Shastri Nagar), Patna. On completion of
investigation in all the cases, chargesheets were submitted before the
competent court on the basis of which the learned Chief Judicial
Magistrate, Patna took cognizance of the offences alleged against the
appellant. Aggrieved, the appellant filed revision applications before the
learned Sessions Judge, Patna challenging the orders passed by the learned
Trial Court, primarily, on the ground that the said orders were without
jurisdiction and incompetent in law inasmuch as sanction for prosecution of
the appellant under Section 197 of the Code of Criminal Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to the
date of taking of cognizance. The revision applications filed by the
appellant were dismissed by the learned Additional Sessions Judge, Fast
Track Court No.2, Patna by orders of different dates. The said orders of
the learned Additional Sessions Judge were challenged before the High Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and 3192/2011.
The High Court by the common impugned order dated 27.11.2012 negatived the
challenge made by the appellant leading to the present appeals. There is
yet another proceeding instituted by the appellant before the High Court
i.e. Crl. Misc. No. 41263/2010 in respect of P.S. Case No. 859/2002 which
has been dismissed by the High Court by its order dated 18.07.2012 on the
ground that the order taking cognizance by the learned Trial Court had not
been specifically challenged before it and it is only the order of the
learned Sessions Judge that has been assailed by the appellant. The
aforesaid order dated 18.7.2012 of the High Court has also been challenged
by the appellant in the present group of appeals.
3. We have heard Mr. Santosh Mishra, learned counsel for the appellant
and Mr. Abhinav Mukerji, learned counsel for the State.
4. As the arguments advanced on behalf of the rival parties are a
reiteration of the arguments advanced before the High Court the detailed
and specific contentions need not be taken note of and it will suffice to
say that while the appellant contends that grant of sanction under Section
197 of the Code is a sine qua non for his prosecution for the offences
alleged, according to the State of Bihar the appellant is not a public
servant within the meaning of Section 21 of the IPC and in any case none of
the offences alleged can be attributed to acts that arise out of or have
any proximity with the discharge of official duties by the appellant so as
to require sanction for his prosecution.
5. Section 197(1) of the Code will be required to be noticed at this
stage and is therefore extracted below.
“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 –
(a) in 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].
6. A reading of the provisions of Section 197(1) of the Code reveals
that there are three mandatory requirements under Section 197(1) of the
Code, namely,
(a) that the accused is a public servant
(b) that the public servant can be removed from the post by or with the
sanction either of the Central or the State Government, as the case may be
(c) the act(s) giving rise to the alleged offence had been committed by
the public servant in the actual or purported discharge of his official
duties.
7. Insofar as the first requirement is concerned, the position of
officers belonging to the Indian Administrative Service serving on
deputation in a cooperative society was decided in S.S. Dhanoa vs. MCD[1].
Dealing with clause 12 of Section 21 of the IPC, this Court had held that
the word ‘corporation’ appearing in clause 12(b) of Section 21 IPC meant
corporations established by a statute and would have no application to a
cooperative society. In the present case, the materials on record, i.e.,
the incorporation of the Bihar State Housing Cooperative Federation under
the provisions of the Bihar Cooperative Societies Act, 1935 would seem to
indicate that the said cooperative federation is a cooperative society.
The above, however, is a prima facie view on the materials available on
record at this stage. It has been argued on behalf of the appellant that
at the relevant point of time the federation was under supersession and it
was being exclusively controlled by the State. The above contention i.e.
the extent of State control over the management of the Federation will be
required to be established by means of relevant evidence before the legal
effect thereof on the status of the appellant as a public servant can be
decided. Possibly it is on account of the said fact that the High Court in
the impugned order had granted the liberty to the appellant to raise all
other points as and when they arise and had also required the Trial Court
to decide all such issues, including the requirement of sanction, in the
light of such subsequent facts that may come on record.
8. Insofar as the second requirement for the applicability of Section
197(1) of the Code is concerned, namely, whether the post held by the
appellant at the relevant time was one from which he could not be removed
except by or with the sanction of the State Government, no evidence,
whatsoever, has been led on the said question. The correct position in law
with regard to the applicability of the second requirement under Section
197(1) can, therefore, be answered only at a subsequent stage i.e. after
evidence on the issue, if any, is forthcoming.
9. The above discussion will now require the Court to consider the
question as to whether the acts giving rise to the alleged offences had
been committed by the accused in the actual or purported discharge of his
official duties. In a series of pronouncements commencing with Satwant
Singh vs. State of Punjab[2]; Harihar Prasad vs. State of Bihar[3] and
Prakash Singh Badal & Anr. vs. State of Punjab & Ors.[4] it has been
consistently held that it can be no part of the duty of a public servant or
acting in the discharge of his official duties to commit any of the
offences covered by Section 406, 409, 420 etc. and the official status of
the public servant can, at best, only provide an opportunity for commission
of the offences. Therefore, no sanction for prosecution of the public
servant for such offences would be required under Section 197 of the Code.
Notwithstanding the above, the High Court had granted liberty to the
appellant to raise the issue of sanction, if so required, depending on the
evidence that may come on record in the course of the trial. Despite the
view taken by this Court in the series of pronouncements referred to above,
the opportunity that has been provided by the High Court to the benefit of
the appellant need not be foreclosed by us inasmuch as in Matajog Dobey vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash Singh Badal
(supra) this Court had consistently held that the question of sanction
under Section 197 of the Code can be raised at any time after cognizance
had been taken and may have to be determined at different stages of the
proceeding/trial. The observations of this Court in this regard may be
usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings. The complaint may
not disclose that the act constituting the offence was done or purported to
be done in the discharge of official duty; but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for
sanction. Whether sanction is necessary or not may have to be determined
from stage to stage. The necessity may reveal itself in the course of the
progress of the case.”
P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the Code
can be raised any time after the cognizance; may be 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 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.”
Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]
“The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. ...”
10. In view of the discussions we will have no occasion to cause any
interference with the orders passed by the High Court in the proceedings
instituted before it by the appellant which have been impugned in the
appeals under consideration. Consequently, we dismiss all the appeals and
maintain the orders passed by the High Court in all the cases before it.
……..……………........………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
……..……………........………………………J.
[RANJAN GOGOI]
NEW DELHI,
JULY 7, 2014.
-----------------------
[1] (1981) 3 SCC 431
[2] AIR 1960 SC 266
[3] (1972) 3 SCC 89
[4] (2007) 1 SCC 1
[5] AIR 1956 SC 44
[6] (2001) 6 SCC 704
-----------------------
11
the appellant filed revision applications before the
learned Sessions Judge, Patna challenging the orders passed by the learned
Trial Court, primarily, on the ground that the said orders were without
jurisdiction and incompetent in law inasmuch as sanction for prosecution of
the appellant under Section 197 of the Code of Criminal Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to the
date of taking of cognizance. The revision applications filed by the
appellant were dismissed by the learned Additional Sessions Judge, Fast
Track Court No.2, Patna by orders of different dates. The said orders of
the learned Additional Sessions Judge were challenged before the High Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and 3192/2011.
The High Court by the common impugned order dated 27.11.2012 negatived the
challenge made by the appellant leading to the present appeals. =
whether the acts giving rise to the alleged offences had
been committed by the accused in the actual or purported discharge of his
official duties.
In a series of pronouncements commencing with Satwant
Singh vs. State of Punjab[2]; Harihar Prasad vs. State of Bihar[3] and
Prakash Singh Badal & Anr. vs. State of Punjab & Ors.[4]
it has been
consistently held that it can be no part of the duty of a public servant or
acting in the discharge of his official duties to commit any of the
offences covered by Section 406, 409, 420 etc. and the official status of
the public servant can, at best, only provide an opportunity for commission
of the offences.
Therefore, no sanction for prosecution of the public
servant for such offences would be required under Section 197 of the Code.
Notwithstanding the above, the High Court had granted liberty to the
appellant to raise the issue of sanction, if so required, depending on the
evidence that may come on record in the course of the trial.
Despite the
view taken by this Court in the series of pronouncements referred to above,
the opportunity that has been provided by the High Court to the benefit of
the appellant need not be foreclosed by us inasmuch as
in Matajog Dobey vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash Singh Badal
(supra)
this Court had consistently held that the question of sanction
under Section 197 of the Code can be raised at any time after cognizance
had been taken and may have to be determined at different stages of the
proceeding/trial.
The observations of this Court in this regard may be usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings.
The complaint may
not disclose that the act constituting the offence was done or purported to
be done in the discharge of official duty;
but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for
sanction.
Whether sanction is necessary or not may have to be determined
from stage to stage. The necessity may reveal itself in the course of the
progress of the case.”
P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the Code
can be raised any time after the cognizance; may be 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 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.”
Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]
“The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. ...”
10. In view of the discussions we will have no occasion to cause any
interference with the orders passed by the High Court in the proceedings
instituted before it by the appellant which have been impugned in the
appeals under consideration. Consequently, we dismiss all the appeals and
maintain the orders passed by the High Court in all the cases before it.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41746
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1359 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3020 OF 2013)
CHANDAN KUMAR BASU ... APPELLANT (S)
VERSUS
STATE OF BIHAR ... RESPONDENT (S)
WITH
CRIMINAL APPEAL No.1362 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3022 OF 2013)
CRIMINAL APPEAL No.1361 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3016 OF 2013)
CRIMINAL APPEAL No.1360 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3014 OF 2013)
CRIMINAL APPEAL No.1363 OF 2014
(Arising out of Special Leave Petition (Crl) No. 3074 OF 2013)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. The appellant, at the relevant point of time, was a member of the
Indian Administrative Service and serving on deputation as the
Administrator-cum-Managing Director of the Bihar State Housing Cooperative
Federation Ltd. The aforesaid Federation is a society registered under the
Bihar Cooperative Societies Act, 1935. On the basis of the various
complaints made against the appellant, FIR Nos. 837/2002 dated 16.12.2002,
859/2002 and 860/2002 both dated 24.12.2002, 19/2003 dated 07.01.2003 and
41/2003 dated 18.01.2003 under Sections 409/420/467/468/ 471/34/120-B of
the Indian Penal Code (hereinafter for short ‘IPC’) were registered at
Police Station Gardani Bagh (Shastri Nagar), Patna. On completion of
investigation in all the cases, chargesheets were submitted before the
competent court on the basis of which the learned Chief Judicial
Magistrate, Patna took cognizance of the offences alleged against the
appellant. Aggrieved, the appellant filed revision applications before the
learned Sessions Judge, Patna challenging the orders passed by the learned
Trial Court, primarily, on the ground that the said orders were without
jurisdiction and incompetent in law inasmuch as sanction for prosecution of
the appellant under Section 197 of the Code of Criminal Procedure
(hereinafter for short ‘the Code’) was not obtained or granted prior to the
date of taking of cognizance. The revision applications filed by the
appellant were dismissed by the learned Additional Sessions Judge, Fast
Track Court No.2, Patna by orders of different dates. The said orders of
the learned Additional Sessions Judge were challenged before the High Court
of Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and 3192/2011.
The High Court by the common impugned order dated 27.11.2012 negatived the
challenge made by the appellant leading to the present appeals. There is
yet another proceeding instituted by the appellant before the High Court
i.e. Crl. Misc. No. 41263/2010 in respect of P.S. Case No. 859/2002 which
has been dismissed by the High Court by its order dated 18.07.2012 on the
ground that the order taking cognizance by the learned Trial Court had not
been specifically challenged before it and it is only the order of the
learned Sessions Judge that has been assailed by the appellant. The
aforesaid order dated 18.7.2012 of the High Court has also been challenged
by the appellant in the present group of appeals.
3. We have heard Mr. Santosh Mishra, learned counsel for the appellant
and Mr. Abhinav Mukerji, learned counsel for the State.
4. As the arguments advanced on behalf of the rival parties are a
reiteration of the arguments advanced before the High Court the detailed
and specific contentions need not be taken note of and it will suffice to
say that while the appellant contends that grant of sanction under Section
197 of the Code is a sine qua non for his prosecution for the offences
alleged, according to the State of Bihar the appellant is not a public
servant within the meaning of Section 21 of the IPC and in any case none of
the offences alleged can be attributed to acts that arise out of or have
any proximity with the discharge of official duties by the appellant so as
to require sanction for his prosecution.
5. Section 197(1) of the Code will be required to be noticed at this
stage and is therefore extracted below.
“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 –
(a) in 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].
6. A reading of the provisions of Section 197(1) of the Code reveals
that there are three mandatory requirements under Section 197(1) of the
Code, namely,
(a) that the accused is a public servant
(b) that the public servant can be removed from the post by or with the
sanction either of the Central or the State Government, as the case may be
(c) the act(s) giving rise to the alleged offence had been committed by
the public servant in the actual or purported discharge of his official
duties.
7. Insofar as the first requirement is concerned, the position of
officers belonging to the Indian Administrative Service serving on
deputation in a cooperative society was decided in S.S. Dhanoa vs. MCD[1].
Dealing with clause 12 of Section 21 of the IPC, this Court had held that
the word ‘corporation’ appearing in clause 12(b) of Section 21 IPC meant
corporations established by a statute and would have no application to a
cooperative society. In the present case, the materials on record, i.e.,
the incorporation of the Bihar State Housing Cooperative Federation under
the provisions of the Bihar Cooperative Societies Act, 1935 would seem to
indicate that the said cooperative federation is a cooperative society.
The above, however, is a prima facie view on the materials available on
record at this stage. It has been argued on behalf of the appellant that
at the relevant point of time the federation was under supersession and it
was being exclusively controlled by the State. The above contention i.e.
the extent of State control over the management of the Federation will be
required to be established by means of relevant evidence before the legal
effect thereof on the status of the appellant as a public servant can be
decided. Possibly it is on account of the said fact that the High Court in
the impugned order had granted the liberty to the appellant to raise all
other points as and when they arise and had also required the Trial Court
to decide all such issues, including the requirement of sanction, in the
light of such subsequent facts that may come on record.
8. Insofar as the second requirement for the applicability of Section
197(1) of the Code is concerned, namely, whether the post held by the
appellant at the relevant time was one from which he could not be removed
except by or with the sanction of the State Government, no evidence,
whatsoever, has been led on the said question. The correct position in law
with regard to the applicability of the second requirement under Section
197(1) can, therefore, be answered only at a subsequent stage i.e. after
evidence on the issue, if any, is forthcoming.
9. The above discussion will now require the Court to consider the
question as to whether the acts giving rise to the alleged offences had
been committed by the accused in the actual or purported discharge of his
official duties. In a series of pronouncements commencing with Satwant
Singh vs. State of Punjab[2]; Harihar Prasad vs. State of Bihar[3] and
Prakash Singh Badal & Anr. vs. State of Punjab & Ors.[4] it has been
consistently held that it can be no part of the duty of a public servant or
acting in the discharge of his official duties to commit any of the
offences covered by Section 406, 409, 420 etc. and the official status of
the public servant can, at best, only provide an opportunity for commission
of the offences. Therefore, no sanction for prosecution of the public
servant for such offences would be required under Section 197 of the Code.
Notwithstanding the above, the High Court had granted liberty to the
appellant to raise the issue of sanction, if so required, depending on the
evidence that may come on record in the course of the trial. Despite the
view taken by this Court in the series of pronouncements referred to above,
the opportunity that has been provided by the High Court to the benefit of
the appellant need not be foreclosed by us inasmuch as in Matajog Dobey vs.
H.C. Bhari[5], P.K. Pradhan vs. State of Sikkim[6] and Prakash Singh Badal
(supra) this Court had consistently held that the question of sanction
under Section 197 of the Code can be raised at any time after cognizance
had been taken and may have to be determined at different stages of the
proceeding/trial. The observations of this Court in this regard may be
usefully extracted below.
Matajog Dobey vs. H.C. Bhari (para 21)
“The question may arise at any stage of the proceedings. The complaint may
not disclose that the act constituting the offence was done or purported to
be done in the discharge of official duty; but facts subsequently coming to
light on a police or judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for
sanction. Whether sanction is necessary or not may have to be determined
from stage to stage. The necessity may reveal itself in the course of the
progress of the case.”
P.K. Pradhan vs. State of Sikkim (para 15)
“It is well settled that question of sanction under Section 197 of the Code
can be raised any time after the cognizance; may be 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 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.”
Prakash Singh Badal & Anr. vs. State of Punjab & Ors. [Para 27]
“The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. ...”
10. In view of the discussions we will have no occasion to cause any
interference with the orders passed by the High Court in the proceedings
instituted before it by the appellant which have been impugned in the
appeals under consideration. Consequently, we dismiss all the appeals and
maintain the orders passed by the High Court in all the cases before it.
……..……………........………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
……..……………........………………………J.
[RANJAN GOGOI]
NEW DELHI,
JULY 7, 2014.
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[1] (1981) 3 SCC 431
[2] AIR 1960 SC 266
[3] (1972) 3 SCC 89
[4] (2007) 1 SCC 1
[5] AIR 1956 SC 44
[6] (2001) 6 SCC 704
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