Holding

The appellant, acting on a superior's directive, did not commit an offence under Section 427 IPC and prosecution without prior sanction under Section 197 CrPC was unlawful.

Summary

The appellant, an Assistant Engineer, removed a tea stall from a hospital campus on the explicit direction of the Executive Engineer, in accordance with a government policy to eliminate kiosks for public health reasons. A complaint was filed by the stall owner's husband, but it made no allegation against the appellant; nevertheless, the police charged him under Section 427 IPC based solely on the Executive Engineer's statement. The appellant sought discharge on the ground that prosecution required prior sanction under Section 197 of the CrPC, which was not obtained. The Supreme Court held that the appellant’s act was merely execution of a superior’s order and did not satisfy the ingredients of Section 427, and that sanction under Section 197 was a prerequisite. Consequently, the High Court’s order setting aside the magistrate’s discharge was reversed and the appeal was allowed.

Issues considered

Whether the appellant committed an offence under Section 427 IPC by removing the tea stall.
Whether prosecution of a public servant for such act required prior sanction under Section 197 CrPC.
Whether the charge‑sheet was valid in the absence of any allegation against the appellant in the complaint.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 197
Indian Penal Code, 1860s. 427

Subjects

Section 427 IPCSection 197 CrPCpublic servantofficial dutygovernment policysanction requirementcharge-sheettea stall removalhospital premises

Judgment

A JAYASINGH
V.

K.K. VELA YUTHAM AND ANR.

APRIL 25, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860-Section 427-Policy decision of Government to
remove kiosks etc. from hmpital premises in public interest-Removed by
C accused on direction of his superior officer---Complaint against removal-No
complaint against the accused-During investigation statement of superior
officer to the effect that the accused by letter informed that he had removed
the kiosk---Charge-sheet on the basis of the statement-Propriety of- Held:
Offence not proved-Accused had only complied with the order of superior
officer.
D
Code of Criminal Procedure, 1973---Section !97---Act of accused in
discharge of official duty-Prosecution without obtaining order of sanction
under the provision-Prior sanction-Requirement of-Held: In the facts of

-
the case sanction for the prosecution of the accused was necessary.

E Wife of respondent No.I was running a tea stall. State Government
issued a Government Order containing a policy decision to remove all such
kiosks, tea stalls and bunks from the hospital premises in public interest.
The validity of such policy decision was upheld in N. Jagadeesan and Ors.
v. Distt. Collector, North Arcot and Ors., I 1997) 4 SCC 508.
F
Direction was issued to the appellant herein by the Executive
Engineer to remove the tea stall. In pursuance to the direction, appellant
removed the tea stall. The contempt petition for this act of the appellant
was also dismissed.

G Respondent No. I filed a complaint, wherein no allegation was made
against the appellant. During investigation Executive Engineer alleged that
the appellant had informed by a letter that he had removed the shop; and
•
the same was done by the appellant by engaging his men in his own
supervision. On the basis of the statement of the Executive Engineer,
H charge-sheet was filed against the appellant. Appellant filed application
348
JAY AS!NGH v. K.K. VELA YUTHAM 349
for discharge on the ground that no sanction was obtained as required A
u/s 197 Cr.P.C. The plea was accepted by the Metropolitan Magistrate.
Revision Petition by respondent No. 1 was allowed by High Court. Hence
the present appeal.

Allowing the appeal, the Court
B
HELD: I. Appellant only complied with a the order of the Executive
Engineer asking him to remove the said tea stall; thereby he cannot be
said to have committed any offence whatsoever. The name of the appellant
was taken by the Executive Engineer himself, under whose direction he
acted. He, in his statement made before the police, merely stated that the C
appellant by his letter intimated to him that the tea stall had been removed.
On the basis of the said statement no inference could be drawn that the
appellant committed an offence purported to be under Section 427 IPC.
From a perusal of the charge-sheet, as also the materials which are
available on record, it does not appear that there is anything to show as
to how and in what manner the appellant could be said to have committed D
a mischief or how the ingredients of the said provision stood satisfied. The
statement of the Executive Engineer, on the basis whereof the appellant
had been charge-sheeted, even if given face value and taken to be correct
in its entirety does not disclose an offence. [355-C-E)

-· 1.2. No allegation had been made against the appellant either in his
complaint filed by respondent No. 1 or in his statement under Section 161
Cr.P.C. that he had transgressed his authority or committed the alleged
E

crime. (355-F)

2.1. Even if the statement of the Executive Engineer on the basis F
whereof the charge sheet has been filed against the Appellant is accepted
to be correct, sanction for his prosecution, as envisaged under Section 197
Cr.P.C. in the facts and circumstances of this case was necessary. The
prosecution should have obtained an order of sanction in terms of Section
197 Cr.P.C. [355-E-G)
G
2.2. The provisions of Section 197 of the Criminal Procedure Code
would be attracted if the offence alleged to have been committed [by the
accused] must have something to do or must be related in some manner
with the discharge of official duty. There must be a reasonable connection
between the act and the discharge of official duty; the act must bear such H
relation to the duty that the accused could lay a reasonable claim but not
350 SUPREME COURT REPORTS (2006) SUPP. I S.C.R.

A a pretended or fanciful claim, that he did it in the course of the
performance of his duty. (355-H; 356-A-BI

2.3. Whether for prosecution of a public servant, sanction is
necessary to be obtained or not would depend upon the facts and
circumstances of each case. Similarly, whether in view of the allegations
B made in the complaint an order of sanction would be essential or not would
again depend upon facts· and circumstances of each case. [356-B-Cj

Matajog Dobey v. HC Bhari, (1955) 2 SCR 925, followed.

Romesh Lal Jain v. Naginder Singh Rana and Ors., (200611 SCC 294
C and Rakesh Kumr Mishra v. State of Bihar and Ors., [200611 SCC 557, relied
on.

Sankaran Moitra v. Sadhna Das and Anr., referred to.

O CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1368
of 2004.

From the Final Order dated 19.l 1.2003 of the High Court of Judicature
at Madras in Cr. R.C. No. 1465/2003.

-
M.N. Rao, Mrs. Promila Thananjayan and S. Thananjayan for the
E Appellant.

V. Krishna Murthy, R. Gopalakrishnan, Jai Kishore and Subramonium
Prasad for the Respondents.

F The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal is directed against a judgment and order
dated 19.11.2003 passed by the High Court of Judicature at Madras in
Crl.R.C.No.1465 of2003, whereby and whereunder the revision petition filed
by the Appellant herein against an order dated 25.8.2003 was dismissed. The
G wife of the respondent No.2 was running a kiosk in the hospital premises.
The Government of Tamil Nadu had taken a policy decision to remove all
kiosks, bunks and tea stalls, etc. from the hospital premises as they were
causing inconvenience to the public and as food stuffs were also supplied
from the said kiosks, bunks and tea stalls which were prepared in unhygienic
conditions causing health hazards. A Government order was issued for
H removing all the said kiosks on 30. l 0.1987. The Public Works Department
JAY ASINGH v. K.K. VELA YUTHAM [SINHA, J.] 351
thereafter issued directions to the Executive Engineer to take steps for removal A
thereof on or about 9.5.1996. The Chief Engineer also directed the Executive
Engineer to take steps in furtherance of the said G.O.M.No.2055 dated
30.10.1987. The wife of the respondent herein, who had been running a tea
stall in the said premises, was requested through a letter by the Executive
Engineer to remove the same as the Dean of Kilpauk Medical College had
made such a request in thatbehalf. Admittedly, a direction was also issued B
to the Appellant herein by the Executive Engineer to remove the said tea
stall. Pursuant to or in furtherance of the said direction, the Appellant herein
requested the Assistant Commissioner of Police, Kilpauk to give police
protection for the purpose of causing such removal.

A writ petition was filed by the wife of the respondent No. I herein,
c
which was disposed of by the High Court with certain directions. In the
meanwhile, however, the said tea stall was removed whereupon a contempt
petition was filed against the Appellant. The said contempt petition was
dismissed. The matter thereupon came before this Court. This Court in N.
Jagadeesan & Ors. v. District Collector, NorthArcot & Ors., [since reported D
in [ 1997] 4 sec 508], opined:

"We are of the opinion that the appellants-petitioners can have no
legitimate grievance against the action taken to remove their bunks/
kiosks inasmuch as the removal is confined only to (I) hospitals and
medical institutions and (2) road margins of main thoroughfares, viz., E
three specified thoroughfares in Madras City and one each in Vellore
and Tiruppur. The reasons given by the State for removing them are
reasonable and acceptable. It is also specifically averred by the State
that they are not removing any bunk with a view to allow some other
person to install a bunk in that place. The removal is only for the F
purpose of removal of health hazard or in the interests of smooth and
unobstructed flow of traffic. Indeed, the Government has offered to
consider the applications, if any, made by the evicted persons for
locating them on other road margins or premises, as the case may
be."
G
It was further observed :

" ...... .In our opinion, by seeking to remove the bunks and kiosks
located within the hospital premises or within the premises of other
medical institutions or their removal from the road margins of
... important and busy thoroughfares in the aforesaid three cities in Tamil H
352 SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A Nadu, the respondents are not acting in any manner, inconsistent with
the propositions enunciated in the said judgment. We are not able to
say that the reasons assigned are neither relevant nor germane nor is
it possible to say that reasons given are only a make-believe."

The said decision was rendered by this Court on 21st February, 1997.
B A Complaint Petition was filed by the respondent No. I herein, who is the
husband of the said owner of the tea stall against the Dean of Kilpauk Medical
College and Hospital, Chennai purported to be under Sections 166, 448, 427,
380, 392 and 506(11) of the Indian Penal Code on 3rd September, 1997. The
Metropolitan Magistrate, Egmore, Chennai sent the Complaint Petition for
C inquiry to the police authority whereupon a First Information Report (FIR)
was lodged. It is not disputed that during investigation the name of the
Appellant was taken by one Thiru V. Ramarajan, Executive Engineer, P.W.D.,
North Presidency Division, Chepauk, Chennai, who alleged:

"I am working as an Executive Engineer in P.W.D. The Kilpauk
D Medical College wing comes under my jurisdiction, wherein inside
the campus, Tmt. Lakshmi Vclayutham ran a tea-shop on lease
agreement and as the Dean of the Medical college did not give no
objection certificate to the Shop from 1992, the lease agreement period
was not extended. Further the Dean of the college wrote several
letters stating that due to the tea-shop, health hazards are caused and
E therefore requested to remove the said shop. Further, I adviced to
make arrangements to evict the shop of Tmt. Velayutham from the
college campus subject to rules. Accordingly, the Asst. Engineer,
Thiru. R. Jayasingh, BE., MBA., P.W.D. KMC wing, Kilpauk,
Chennai-10 who was in charge of KMC area, informed in his letter
No.16K/97 dt. 2.7.97, that he removed the shop of said Lakhsmi
F
Velayutham on 1.7.97. The Asst. Engineer engaged men on his own
supervision and removed the shop. Today, 26.4.2000, you the Inspector
of G3 Kilpauk P.S. enquire me and I narrated the above details."

Relying on or on the basis of the said statement, the Appellant herein
G was made an accused and a charge-sheet was filed by the Investigating Officer
also against him stating:

"In the said case, it was ordered that the tea-shop which is in
possession of the PW! should be vacated subject to Rules and
Regulation. On obtaining such court order, A I and A2 even after
H knowing the order, with the intention to cause loss to the complainant,
JAY ASINGH v. K.K. VELA YUTHAM [SINHA, J.) 353

on 2. 7. 97 at about 11.00 a.m., A I Thiru. Ganesan former dean of A
KMC and A2 Thiru. Jayasingh, former Asst. Engineer, PWD Kilpauk,
Hospital wing with the help of some unknown hooligans, went to the
tea shop of the complainant which was functioning inside the Kilpauk
Medical College Hopsital campus, and without taking any legal steps
as per the Court order, they trespassed the teashop and the adjoining B
fancy stones and removed the refrigerator, Mixie, Stone, Biscuit which
were kept for business and A 1 Thiru. Ganesan look those articles in
his custody and with the help of the hooligans, he demolished the tea-
shop built by the complainant PWl in his own cost which was situated
in the car shed, in the Hospital which came under Al's jurisdiction
and caused damages to PWl to an extent of Rs.3 Lakhs, and he C
removed the aforesaid valuables belonging to PW I with the help of
unknown persons from the car-shed inside the campus and
misappropriated the same and thereby caused loss illegally to PW I to
an extent of Rs.4 Lakhs."

In the said charge-sheet only the allegations made in the complaint D
petition were repeated. What transpired during investigation had not been
disclosed. The learned Magistrate took cognizance against the Appellant herein
on the basis of the said purported charge-sheet. The Investigating Officer
noticed that removal of the tea shop was effected as per an order of a Court
of law. Validity or otherwise of the action on the part of the appellant is not E
in question. An application for discharge was filed before the learned
Metropolitan Magistrate by the Appellant, inter a/ia, on the ground that no
sanction was obtained as was required mandatorily in terms of Section 197
of the Criminal Procedure Code, which plea came to be accepted by the
learned Metropolitan Magistrate by an order 25th August, 2003, opining:
F
"I opine that the argument on the side of the petitioner that the
act of the petitioner was so, in order to execute the order given to
him, but the nature of the case filed against him M/s. 166, 448, 427,
380, 392 and 506 (II) IPC are baseless, is acceptable. Further the
nature of the act of the 2nd accused/petitioners and what offence he
committed, had not been stated in the case. The petitioner is a Govt. G
__.... Servant. No permission has been obtained to prosecute him. The
procedures to be followed u/s. 197 Cr.P.C. had not been followed in
this case."

The revision petition filed by the respondent No. I herein before the
High Court against the said order, however, was allowed, stating: H
354 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A "On a complaint given by the petitioner herein, a case was
registered against A- I only on the specific allegations that the bunk
stall of the petitioner was damaged and was removed, thereby causing
damages to the tune of Rs. 7 lakhs. It is pertinent to point out that the
Executive Engineer at the time of investigation, has categorically
spoken to the fact that it was A-2, who wrote a letter to the said
B official that it was he who was responsible for the removal of the
bunk stall. Under the stated circumstances, it has become necessary
for the police agency to include the first respondent/second accused.
This Court is at a loss to understand as to why not the case be
proceeded against A-2. Hence, the lower court has taken an erroneous
c view that there is no primafacie case against A-2 was not mentioned.
There is no legal impediment to add a person, if he was actually
involved in the crime, though his name was not found in the complaint.

The next contention as to the lack of sanction order is concerned,
the lower court can well go into the question as to the availability of
D sanction and if necessary in the instant case, it could be decided at the
time of trial. Under the stated circumstances, the order of the lower
court has got to be corrected only by upsetting the same. The order
of the lower court is set aside. The lower court is directed to proceed
against the second accused also along with the other accused. This
petition is ordered accordingly."
E
Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
Appellant would contend that in view of the fact that Appellant removed the
tea stall pursuant to the order passed by the Government in terms of its policy
decision, it was obligatory on the part of the prosecution to obtain prior
F sanction therefor as was mandatorily required under Section 197 of the
Criminal Procedure Code.

Mr. Subramonium Prasad, learned counsel appearing on behalf of the
State, on being questioned, very fairly submitted that apart from the statement
made by the Executive Engineer, as noticed hereinbefore, no other material
G exists as against the Appellant.
Mr. V. Krishna Murthy, learned counsel appearing on behalf of the
respondent No. I, on the other hand, would submit that from a perusal of the
charge-sheet it would be evident that the Appellant herein had caused huge
loss and damages to the respondent No. I herein.
H
JAYASINGH v. K.K. VELA YUTHAM [SINHA, J.] 355
The basic fact of the matter is not in dispute. The fact that the wife of A
the respondent No.I herein was running a tea stall is admitted. It further more
stands admitted that the Government of Tamil Nadu issued a Government
Order containing a policy decision to remove all such kiosks, tea stalls and
bunks from the hospital premises in public interest, inter alia, on the ground
that food prepared in such tea stalls in unhygienic conditions and the same B
had otherwise been causing nuisance to others. No court has declared such
a policy decision to be ultra vires. We have noticed hereinbefore that, in fact,
the validity of such a policy decision has been upheld by this Court in
Jagadeesan (supra).

If, in the aforementioned situation, the Appellant herein only complied C
with the order of the Executive Engineer asking him to remove the said tea
stall; we are of the opinion that thereby he cannot be said to have committed
any offence whatsoever. The name of the appellant was taken by the Executive
Engineer himself, under whose direction he acted. He, in his statement made
before the police, merely stated that the Appellant by his letter dated 2.8.1997
intimated to him that the tea stall had been removed. On the basis of the said D
statement no inference could be drawn that the Appellant committed an offence
purported to be under Section 427 of the Indian Penal Code. From a perusal
of the charge-sheet, as also the materials which are available on record, it
does not appear that there is anything to show as to how and in what manner
the Appellant could be said to have committed a mischief or how the E
ingredients of the said provision stood satisfied.

The statement of the Executive Engineer, on the basis whereof the
Appellant had been charge-sheeted, even if given face value and taken to be
correct in its entirety does not disclose an offence. The respondent No. I
herein filed a complaint. He, in view of the fact that a contempt petition was p
filed against the Appellant, presumably knew him personally. Despite the
same, he had not been named in the complaint petition. No allegation had
been made. against him either in his complaint or in his statement under
Section 161 of the Code of Criminal Procedure that he had transgressed his
a~thority or committed the alleged crime. In the aforementioned provisions,
we are of the considered view that the prosecution should have obtained an G
order of sanction in terms of Section 197 of the Code of Criminal Procedure.

In Matajog Dobey v. HC. Bhari, [1955] 2 SCR 925 a Constitution
Bench of this Court held that the provisions of Section 197 of the Criminal
Procedure Code would be attracted if the offence alleged to have been H
356 SUPREME COURT REPORTS (2006] SUPP. I S.C.R.

A committed (by the accused] must have something to do or must be related in
some manner with the discharge of official duty. There must be a reasonable
connection between the act and the discharge of official duty; the act must
bear such relation to the duty that the accused could lay a reasonable (claim),
but not a pretended or fanciful claim, that he did it in the course of the
B performance of his duty.
Whether for prosecution of a public servant sanction is necessary to be
obtained or not would depend upon the facts and circumstances of .:ach case.
Similarly, whether in view of the allegations made in the complaint an order
of sanction would be essential or not would again depend upon facts and
C circumstances of each case.
In Ramesh Lal Jain v. Naginder Singh Rana & Ors., [2006] l SCC 294
a Bench of this Court, of which one of us (Sinha, J. was a member), relying
upon Matujog Dobey (supra) and various other decisions, ·opined :

D
"The question as to whether an order of sanction would be found
essential would, thus, depend upon the facts and circumstances of
each case. In a case where ex facie no order of sanction has been
..
issued when it is admittedly a pre-requisite for taking cognizance of
the offences or where such an order apparently has been passed by
the authority not competent therefor, the court may take note thereof
E at the outset. But where the validity or otherwise of an order of
sanction is required to be considered having regard to the facts and
circumstances of the case and furthermore when a contention has to
be gone into as to whether the act alleged against the accused has any
direct nexus with the discharge of his official act, it may be permissible
in a given situation for the court to examine the said question at a
F later stage.

We may hasten to add that we do not intend to lay down a law
that only because a contention has been raised by the complainant or
the prosecution that the question as regard necessity of obtaining an
order of sanction is dependent upon the finding of fact that the nexus
G between the offences alleged and the official duty will have to be
found out upon analysing the evidences brought on record; the same
cannot be done at an earlier stage. What we intend to say is that each
case will have to be considered having regard to the fact situation
obtaining therein and no hard and fast rule can be laid down therefor."
H
JAY A SINGH v. K.K. VELAYUTHAM [SINHA, J.) 357

It was held therein that the question as to whether sanction is necessary A
or not that may be appropriately raised at different stages of the stage
depending upon the allegations made in the complaint.

Yet again, in Rakesh Kumar Mishra v. State of Bihar & Ors., [2006]
I SCC 557, this Court held:
B
"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 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 C
in discharge of official duty.

It has been widened further by extending protection to even those
acts or omissions which are done in purported exercise of official
duty; that is under the colour of office. Official duty, therefore, implies D
that the act or omission must have been done by the public servant
in the 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 the course of service. Its
operation has to be limited to those duties which are discharged in the E
course of duty. But once any act or omission has been found to have
been committed by a public servant in the discharge of his duty then
it must be given liberal and wide construction so far its official nature
is concerned. For instance a public servant is not entitled to indulge
in criminal activities. To that extent the section has to be construed
narrowly and in a restricted manner. But once it is established that an F
act or omission was done by the public servant while discharging his
duty then the scope of its being official should be construed so as to
advance the objective of the section in favour of the public servant.
Otherwise the entire purpose of affording protection to a public servant
without sanction shall stand frustrated. For instance a police officer G
in the discharge of duty may have to use force which may be an
offence for the prosecution of which the sanction may be necessary.
But ifthe same officer commits an act in the course of service but not
in the discharge of his duty and without any justification therefor
then the bar under Section 197 of the Code is not attracted .... There
H
358 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the
accused could lay a reasonable (claim), but not a pretended or fanciful
claim, that he did it in the course of the performance of his duty."

[See Sankaran Moitra v. Sadhna Das & Anr., JT (2006) 4 SC 34.]
B
In view of the aforementioned authoritative pronouncements, as noticed
hereinbefore, we are of the opinion that the impugned order cannot be sustained
as:

(i) no case was made out to frame charges against the Appellant
C herein.
(ii) Even if the statement of the Executive Engineer on the bas:s
whereof the chargesheet has been filed against the Appellant is
accepted to be correct, sanction for his prosecution, as envisaged
under Section 197 of the Code of Criminal Procedure, in the
D facts and circumstances of this case was necessary.

The High Court, therefore, was not correct in allowing the Revision
Case filed by the respondent No. I herein setting aside the order dated
25.8.2003 of the Metropolitan Magistrate. The impugned order is set aside.
The appeal is allowed accordingly.
E
K.KT. Appeal allowed.