INDRA DEVIversusSTATE OF RAJASTHAN & ANR.

                         [2021] 8 S.C.R. 23                              23


                           INDRA DEVI                                    A
                                  v.
                STATE OF RAJASTHAN & ANR.
                 (Criminal Appeal No. 593 of 2021)
                           JULY 23, 2021                                 B
   [SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
      Code of Criminal Procedure, 1973: s.197 – Sanction for
prosecution – Case of complainant was that in a sale transaction,
the purchaser fabricated the agreement with the intention to defraud
                                                                         C
her – This was allegedly done in collusion with the then executive
officer of the municipality, junior engineer and the concerned
clerk by enlarging the dimensions of the plot whch was sold to him
with the intention to grab the land and house occupied by the
complainant and her husband – Respondent no.2 was the concerned
clerk during the relevant period though he was neither named in          D
the FIR nor in the charge sheet – Respondent no.2 filed application
u/s.197, however it was dismissed on the ground that he was liable
to be prosecuted for having committed criminal offence of preparing
forged lease – High Court, however, allowed s.482 application filed
by respondent no.2 – On appeal, held: Superior officers, who had
                                                                         E
dealt with the file, were granted protection while the clerk, who did
the paper work, i.e. Respondent No.2, was denied similar protection
by the trial court even though the allegation was of really conspiring
with his superior officers – Neither the State nor the complainant
appealed against the protection granted u/s.197 qua these two other
officers – A similar protection ought to have been granted to            F
Respondent No.2 as was done in the case of the other two officials
– High Court was, therefore, right in holding that sanction u/s.197
was required before triggering prosecution.
      Dismissing the appeals, the Court
      HELD: 1. Section 197 of the CrPC seeks to protect an               G
officer from unnecessary harassment, who is accused of an offence
committed while acting or purporting to act in the discharge of
his official duties and, thus, prohibits the court from taking
cognisance of such offence except with the previous sanction of
the competent authority. Public servants have been treated as a          H
                               23
24            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A    special category in order to protect them from malicious or
     vexatious prosecution. At the same time, the shield cannot protect
     corrupt officers and the provisions must be construed in such a
     manner as to advance the cause of honesty, justice and good
     governance. The alleged indulgence of the officers in cheating,
     fabrication of records or misappropriation cannot be said to be in
B
     discharge of their official duty. However, such sanction is
     necessary if the offence alleged against the public servant is
     committed by him “while acting or purporting to act in the
     discharge of his official duty” and in order to find out whether the
     alleged offence is committed “while acting or purporting to act in
C    the discharge of his official duty”, the yardstick to be followed is
     to form a prima facie view whether the act of omission for which
     the accused was charged had a reasonable connection with the
     discharge of his duties. The real question, therefore, is whether
     the act committed is directly concerned with the official duty. [Para
     9][28-E-H; 29-A-C]
D
            2. The factum of Respondent No. 2 not being named in the
     FIR is not of much significance as the alleged role came to light
     later on. However, what is of significance is the role assigned to
     him in the alleged infraction, i.e. conspiring with his superiors.
     What emerges therefrom is that insofar as the processing of the
E    papers was concerned, the Executive Officer, had put his initials
     to the relevant papers which was held in discharge of his official
     duties. Not only that, Junior Engineer who was part of the alleged
     transaction, was also similarly granted protection. The work which
     was assigned to Respondent No. 2 pertained to the subject matter
F    of allotment, regularisation, conversion of agricultural land and
     fell within his domain of work. In the processing of application,
     the file was initially put up to the Executive Officer who directed
     the inspection and the inspection was carried out by the Junior
     Engineer and only thereafter the Municipal Commissioner signed
     the file. The result was that the superior officers, who dealt with
G    the file, were granted protection while the clerk, who did the
     paper work, i.e. Respondent No. 2, was denied similar protection
     by the trial court even though the allegation was of really
     conspiring with his superior officers. Neither the State nor the
     complainant appealed against the protection granted under
H    Section 197 of the CrPC qua these two other officers. The sanction
        INDRA DEVI v. STATE OF RAJASTHAN & ANR.                             25


from competent authority would be required to take cognisance.              A
[Paras 10, 11][29-C-H]
      Devi Dan v. State of Rajasthan Crim. Misc. Pet.
      No.2177/2013 decided on 10.10.2014; B. Saha & Ors.
      v. M.S. Kochar (1979) 4 SCC 177 : [1980] 1 SCR 111;
      State of Maharashtra v. Dr. Budhikota Subbarao (1993)                 B
      3 SCC 339 : [1993] 2 SCR 311; Subramanian Swamy
      v. Manmohan Singh (2012) 3 SCC 64 : [2012] 3 SCR 52
      – referred to.
                        Case Law Reference
[1980] 1 SCR 111                 referred to          Para 8                C

[1993] 2 SCR 311                 referred to          Para 8
[2012] 3 SCR 52                  referred to          Para 9
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
593 of 2021.                                                                D
      From the Judgment and Order dated 03.10.2017 of the High Court
of Judicature for Rajasthan at Jodhpur in S. B. Criminal Misc (Pet.) No.
3138 of 2017.
      With
                                                                            E
      Criminal Appeal No. 594 of 2021.
       Dr. Manish Singhvi, Manoj Swarup, Sr. Advs., Arunava Mukherjee,
Balaji Srinivasan, Sandeep Kumar Jha, H. D. Thanvi, Achal Singh Bule,
Rishi Matoliya, Advs. for the appearing parties.
      The Judgment of the Court was delivered by                            F
      SANJAY KISHAN KAUL, J.
      1. Indra Devi, the appellant, is the complainant in FIR No.80 dated
23.02.2011 registered under Sections 420/467/468/471/120B of the IPC
and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled
                                                                            G
Tribe (Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. It
was alleged that she and her husband Bhanwar Lal purchased two plots
in Khasra No. 1179/03 located in Distt. Barmer. Out of these two plots,
one plot was sold to one Megharam while another plot was sold to one
Chetan Choudhary. In the plot purchased in the name of her husband, a
residential house and shops are stated to have been made. Megharam is       H
26            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A    alleged to have tampered with and fabricated the agreement with the
     intention to defraud. This was allegedly done in collusion with the then
     executive officer of the Municipality, one Surender Kumar Mathur and
     “the concerned clerk and others”, by enlarging the dimensions of the
     plot which have been sold to him with the intention to grab the land and
     house occupied by the complainant and her husband. The Khasra number
B
     is also alleged to have been changed from 1179/03 to 1143/04. This fact
     is stated to have come to the notice of the complainant only when they
     were served with a court notice when they were in physical possession
     of the plot with the house and the shop. Her husband is stated to have
     gone to Jaipur for treatment of cancer. The accused persons are, thus,
C    alleged to have committed the offences of fraudulently making a scheduled
     caste women, her cancer diagnosed husband and other family members
     homeless. It may be noted that Respondent No.2 herein, Yogesh Acharya
     was not named in the FIR but, apparently, he is stated to be “the concerned
     clerk”.
D          2. In pursuance of the investigation, a chargesheet was filed and
     charges were framed vide order dated 10.04.2012 against Megharam.
     Once again Respondent No.2 was not named in the chargesheet but a
     reference was made to Megharam acting in collusion with “co-accused
     persons”.
E           3. The records placed before us do not reflect how Respondent
     No.2 was exactly roped in, but suffice to say, Respondent No.2 moved
     an application under Section 197 of the CrPC before the trial court stating
     that he was a public servant and what he did in respect of allotment of
     lease, that was executed in favour of Megharam, was done during the
     course of his official duty and thus he was entitled to protection under
F    the aforementioned provision. He also sought to assail the chargesheet
     as the same had been filed without obtaining sanction of the competent
     authority under Section 197 of the CrPC.
            4. The trial court dismissed the application vide order dated
     10.08.2017, while noticing that Respondent No.2 had not been mentioned
G    in the FIR. It was opined that it was the duty of Respondent No.2 to
     bring irregularities to the knowledge of the competent officers,
     i.e.Megharam had mentioned the wrong Khasra number in the lease but
     no documents of ownership of the land were produced. The trial court
     was of the view that had the discrepancies been brought to the knowledge
H    of the competent officers by Respondent No.2, the disputed lease would
            INDRA DEVI v. STATE OF RAJASTHAN & ANR.                              27
                   [SANJAY KISHAN KAUL, J.]

not have been issued. The result of the failure to do so caused the forged       A
lease to be prepared. Respondent No.2 had also drafted the disputed
lease in which he failed to mention necessary details. It was, thus, opined
that Respondent No.2 was liable to be prosecuted against for having
committed criminal offence to procure a forged lease. What Respondent
No.2 did was held not to be done by the public servant in discharge of
                                                                                 B
his official duty and thus protection under Section 197 of the CrPC would
not come to his aid.
       5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/
2017 under Section 482 of the CrPC before the High Court of Judicature
at Jodhpur assailing the said order of the trial court. The High Court,
vide impugned order dated 03.10.2017, allowed the petition. It was opined        C
that the case was similar to the one of Devi Danv. State of Rajasthan1.
The High Court had opined therein that sanction under Section 197 of
the CrPC was required before triggering any prosecution against the
Station House Officer for filing/failing to file an FIR and for other criminal
acts committed during the discharge of his duties. The complainant,              D
aggrieved by the said judgment, has approached this court by filing a
special leave petition. The State has also filed an SLP. Leave was granted
in both the matters.
       6. The appellant contended before us that the involvement of
Respondent No.2 only came to light during investigation. He had failed           E
to bring the irregularities to the knowledge of his superiors which was
instrumental in issuing the forged lease. Thus, he had conspired with his
superiors in dishonestly concealing the forgery, and intentionally omitting
mentioning the date of the proceedings on the order sheet. Such action
of forging documents would not be considered as an act conducted in
the course of his official duties and, thus Section 197 of the CrPC would        F
not give protection to Respondent No.2.
       7. On the other hand, Respondent No.2 endeavoured to support
the impugned judgment of the High Court by emphasising that in FIR
only Megharam alongwith some unnamed officials were mentioned.
Surender Kumar Mathur, the Executive Officer of the Nagar Palika,                G
had filed a petition under Section 482 of the CrPC relating to the same
transaction and the High Court had granted him protection under Section
197 of the CrPC vide order dated 22.02.2018. The conduct of putting his

1
    Crim. Misc. Pet. No.2177/2013 decided on 10.10.2014                          H
28             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A    initials was held to be an act done in discharge of his duties. Similarly,
     Sandeep Mathur, a Junior Engineer, who was part of the same
     transaction, was granted protection by the Sessions Court vide order
     dated 19.03.2020, once again under the same provision, i.e., Section 197
     of the CrPC. Both the orders remained unchallenged by the complainant
     and the State. Further, it has been argued that Respondent No.2 was
B
     simply carrying out his official duty which is apparent from the work
     allotted to him that pertained to allotment, regularisation, conversion of
     agricultural land and all kinds of work relating to land and conversion.
     The application of Megharam was routed through the office, and the
     proceedings show that the file was initially put up before the Executive
C    Officer, who directed inspection, which was carried out by the Junior
     Engineer. Thereafter, file was placed before the Executive Officer again
     and only then was it signed by the Municipal Commissioner. The two
     key people involved in the process had already been granted protection
     and thus Respondent No.2 herein, who was merely a Lower Division
     Clerk, could not be denied similar protection.
D
            8. Learned counsel for Respondent relied upon the judgments of
     this Court in B. Saha & Ors. Vs. M.S. Kochar 2 and State of
     Maharashtra Vs. Dr.Budhikota Subbarao3 to contend that Section
     197 of the CrPC ought to be read in a liberal sense for grant of protection
     to the public servant with respect to actions, which though constitute an
E    offence, are “directly and reasonably” connected with their official duties.
            9. We have given our thought to the submissions of learned counsel
     for the parties. Section 197 of the CrPC seeks to protect an officer from
     unnecessary harassment, who is accused of an offence committed while
     acting or purporting to act in the discharge of his official duties and, thus,
F    prohibits the court from taking cognisance of such offence except with
     the previous sanction of the competent authority. Public servants have
     been treated as a special category in order to protectthem from malicious
     or vexatious prosecution. At the same time, the shield cannot protect
     corrupt officers and the provisions must be construed in such a manner
G    as to advance the cause of honesty, justice and good governance. [See
     Subramanian Swamy Vs. Manmohan Singh4]. The alleged indulgence
     of the officers in cheating, fabrication of records or misappropriation

     2
       (1979) 4 SCC 177
     3
       (1993) 3 SCC 339
     4
H      (2012) 3 SCC 64
            INDRA DEVI v. STATE OF RAJASTHAN & ANR.                             29
                   [SANJAY KISHAN KAUL, J.]

cannot be said to be in discharge of their official duty. However, such         A
sanction is necessary if the offence alleged against the public servant is
committed by him “while acting or purporting to act in the discharge of
his official duty” and in order to find out whether the alleged offence is
committed “while acting or purporting to act in the discharge of his official
duty”, the yardstick to be followed is to form a prima facie view whether
                                                                                B
the act of omission for which the accused was charged had a reasonable
connection with the discharge of his duties. [See State of Maharashtra
Vs. Dr.Budhikota Subbarao]5. The real question, therefore, is whether
the act committed is directly concerned with the official duty.
        10. We have to apply the aforesaid test to the facts of the present
case. In that behalf, the factum of Respondent No.2 not being named in          C
the FIR is not of much significance as the alleged role came to light later
on. However, what is of significance is the role assigned to him in the
alleged infraction, i.e. conspiring with his superiors. What emerges
therefrom is that insofar as the processing of the papers was concerned,
Surendra Kumar Mathur, the Executive Officer, had put his initials to           D
the relevant papers which was held in discharge of his official duties.
Not only that, Sandeep Mathur, who was part of the alleged transaction,
was also similarly granted protection. The work which was assigned to
Respondent No.2 pertained to the subject matter of allotment,
regularisation, conversion of agricultural land and fell within his domain
of work. In the processing of application of Megharam, the file was             E
initially put up to the Executive Officer who directed the inspection and
the inspection was carried out by the Junior Engineer and only thereafter
the Municipal Commissioner signed the file. The result is that the superior
officers, who have dealt with the file, have been granted protection while
the clerk, who did the paper work, i.e. Respondent No.2, has been denied        F
similar protection by the trial court even though the allegation is of really
conspiring with his superior officers. Neither the State nor the complainant
appealed against the protection granted under Section 197 of the CrPC
qua these two other officers.
       11. We are, thus, not able to appreciate why a similar protection        G
ought not to be granted to Respondent No.2 as was done in the case of
the other two officials by the Trial Court and High Court respectively.
The sanction from competent authority would be required to take
cognisance and no sanction had been obtained in respect of any of the
5
    supra                                                                       H
30              SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A    officers. It is in view thereof that in respect of the other two officers, the
     proceedings were quashed and that is what the High Court has directed
     in the present case as well.
            12. In view of the aforesaid, the appeals are dismissed leaving the
     parties to bear their own costs.
B

     Devika Gujral                                                Appeals dismissed.




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