Holding

Sanction under Section 197 is required only if the act complained of is reasonably connected with the discharge of official duty; otherwise no sanction is needed.

Summary

The appellant, P.K. Pradhan, a former Secretary of the Rural Development Department of Sikkim, and the then Chief Minister were charged under Section 120‑B IPC and the Prevention of Corruption Acts for conspiring to award rural water‑scheme contracts at low rates. The Special Judge held that no prior sanction under Section 197 of the CrPC was required; the High Court affirmed. The Supreme Court examined whether a public servant’s alleged acts must have a reasonable connection with the discharge of official duty to invoke the sanction provision. It reiterated that sanction is required only when the act is inseparably linked to official duties; otherwise the official status merely provides opportunity and no sanction is needed. Since the factual nexus could only be determined at trial, the Court declined to intervene and dismissed the appeal, directing the trial court to consider the issue afresh.

Issues considered

Whether prosecution of a public servant for offences under IPC 120‑B and the Prevention of Corruption Acts requires prior sanction under Section 197 of the Code of Criminal Procedure.
Whether the alleged conspiratorial acts are reasonably connected with the discharge of official duty.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Indian Penal Code, 1860s. 120-B
Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2), s. 6
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 19

Subjects

Section 197 CrPCpublic servantsanction requirementPrevention of Corruption ActconspiracyIPC 120‑Bofficial dutycriminal prosecution

Judgment

P.K. PRADHAN A
v.
STATE OF SIKKIM REPRESENTED BY THE CENTRAL BUREAU
OF INVESTIGATION

JULY 24, 2001
B
[G.B. PATTANAIK, S.N. PHUKAN AND B.N. AGRAWAL, JJ.]

Code of Criminal Procedure, 1973: Section 197.

Public servant-Prosecution of-Sanction-Requirement of-Held: C
There has to be a reasonable connection between the act complained of and

... the discharge of official duty-If there is no such reasonable connection no
sanction is required-Question of sanction can be raised any time after
cognizance, at the time of conclusion of trial or even after conviction-The
question of sanction may be left open to be decided in the main judgment- D
. Prevention of Corruption Act, 1947, Ss. 5(2) and 5(/)(d)-Prevention of
Corruption Act, 1988, Ss. 13(2) and 13(/)(d).

A charge sheet was filed against the appellant-public servant under
Section 120-B of the Penal Code, 1860 read with Sections 5(2) and S(l)(d)
of the Prevention of Corruption Act, 1947. By the time the Special Judge E
took cognizance upon the charge sheet the appellant ceased to be a public
servant. The appellant raised a preliminary objection before the Special
Judge to the effect that his prosecution was not warranted as sanction under
Section 197 of the Code of Criminal Procedure, 1973 was not obtained. The
Special Judge held that no sanction was required. The High Court upheld F
this order. Hence this appeal.

On behalf of the appellant it was contended that the act of the appellant
complained of had a reasonable connection with the discharge of official duty
and both were so interwoven that one could not be separated from the other,
as such for prosecuting the appellant, sanction was required under Section G
197 of the Code.

On behalf of the respondent-State it was contended that the acts of the
appellant complained of had absolutely no connection with the discharge of
official duty inasmuch as commission of offence of conspiracy could never
1119 tl
""\-·
r

1120 SUPREME COURT REPORTS [2001] 3 S.C.R.

A be treated to be in discharge of official duty and, therefore, no sanction for
prosecution under Section 197 of the Code was at all required.

Dismissing the appeal, the Court

HELD: 1. For claiming protection under Section 197 of the Code of
B Criminal Procedure,_ 1973, it has to be shown by the accused that there is
a reasonable connection between the act complained of and the discharge of
official duty. An official act can be performed in the discharge of official duty
as well as in dereliction of it. For invoking protection under Section 197 of
the Code, the ·acts of the accused complained of must be such that the same
cannot be separated from the discharge of official duty, but if there was no
C reasonable connection between them and the performance of those duties, the
official status furnishes only the occasion or opportunity for the acts, then
no sa~ction would be required. If the case as put forward by the prosecution
fails or the defence establishes that the act purported to be done is in
discharge of duty, the proceedings will have to be dropped. It is well settled
p 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 the accused did was in discharge of official duty. In order tO come
E to the conclusion whether the 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
F delivered upon conclusion of the trial. [1127-D-H)

Amrik Singh v. The State of Pepsu, [1955) 1 SCR 1302; Matajog Dobey
v. HC Bhari, (1955) 2 SCR 925; Bajinath Gupta v. The State of MP, (1966)
1 SCR 210; Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan,
[1998) 1 SCC 205; Abdul Wahab Ansari v. State of Bihar, [2000) 8 SCC 500;
G K. Satwant Singh v. The State of Punjab, (1960} 2 SCR 89; Om Prakash
Gupta v. State of UP., (1957) SCR 423; Shreekantiah Ramayya Munipal/i
v. The State of Bombay, (1955) 1 SCR 1177; Hori Ram Singh v. The Crown,
(1939) FCR 159 and HHB Gill v. The King, AIR (1948) PC 128, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
H 1118 or2000.
-(
P.K. PRADHAN v. STATE OF SIKKIM REPRESENTED BY THEC.B.l. [AGRAWAL, J.Jl 121

From the Judgment and Order dated 8.6.99 of the Sikkim High Court in A
Crl.R. No. 16of1998 .

. L. Nageswara Rao and P.P. Malhotra, D.K. Singh, D. Bharat Kumar,
Abhijit Sengupta, A.D.N. Rao, P. Parmeswaran, A. Mariarputham, Aruna
Mathur, Brije~der Chahar and Ashok Mathur for the appearing parties.
B
The Judgment of the Court was delivered by
'

B.N. AGRAWAL, J. In this appeal by Special Leave, order passed by
Sikkim High Court, in Criminal Revision Application dismissing the same after
holding that no sanction under Section 197 of the Code of Criminal Procedure, C
1974 (hereinafter referred to as the "Code") is required for prosecution of the
appellant and thereby upholding order passed by the Special Judge refusing
to drop the prosecution in the absence of sanction under Section 197 of the
Code, has been impugned.

A First Information Report was lodged for prosecution of Shri Nar D
Bahadur Bhandari, the then Chief Minister of Sikkim, and the appellant who
was the then Secretary of Rural Development Department, Government of
Sikkim, besides certain contractors under Sections 120-B of the Indian Penal
Code read with Section 5(2) read with Section 5(1)(d) of the Prevention of
Corruption Act, 1947 (hereinafter referred to as the "1947 Act") which E
correspond to Section 13(2) read with Section 13(1 )( d) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as the "1988 Act") and the
prosecution case, in short, was that during the year 1983-84, the State Cabinet
of Sikkim decided to implement 36 Rural Water Supply Schemes in the State
of Sikkim under minimum needs programme for a total cost of Rs. 1,62,31,630
and while approving the above proposal the Cabinet specifically decided that F
the works worth more than Rs. 1,00,000 shall be put to open tender while
works below Rs. 1,00,000 shall be executed through Panchayat nominees. The
approval of the State Cabinet was communicated to the Rural Development
Department for necessary follow up action for iniplementation of these schemes.
In order to implement 19 of the schemes, the Department issued tender notice G
on 19-12-1983 inviting sealed tenders from enlisted contractors having
resources and experience in such government works. In response to this
notice various tenders were received by the Department and the same were
opened on 18th January, 1984 by a tender committee. Necessary action for
acceptance/rejection of tender then followed in respective files. It was alleged
that when the matter was thus being processed, Shri Nar Bahadur Bhandari, H
1122 SUPREME COURT REPORTS [2001) 3 S.C.R.

A the then Chief Minister of Sikkim, Shri P.K.Pradhan, the then Secretary, Rural
Development Department, Government of Sikkim who is the appellant in this
appeal along with fifteen contractors, named in the First Information Report,
entered into a criminal conspiracy with the object of securing contract works
in favour of the said contractors by corrupt or illegal means or by otherwise
B abusing the position of the then Chief Minister and the appellant as public
servant and got the works awarded in favour of contractors aforesaid at low
rates thereby causing pecuniary advantage and corresponding loss to the
State of Sikkim, by various commissions and omissions.

After registering the case, the matter was duly investigated and charge
C sheet was. submitted against the appellant and the aforesaid accused who was
the then Chief Minister of Sikkim under Section 5(2) read with Section 5(1 )(d)
of the 1947 Act corresponding to Section 13(2) read with Section 13(1)(d) of
the 1988 Act. Charge sheet was also submitted against the aforesaid two
official accused persons besides fifteen contractors referred to above for their
prosecution under Section 120-B of the Indian Penal Code read with Section
D 5(2) read with Section 5(l)(d) of the 1947 Act corresponding to Section 13(2)
read with Section 13(1)(d) of the 1988 Act. It may be stated that before
cognizance was taken upon the charge sheet, the then Chief Minister Shri Nar
Bahadur Bhandari ceased to continue as such and the appellant ceased to be
l -
public servant. By order dated 14th September, 1994, the Special Judge took ~~
E cognizance and summoned all Qf the aforesaid accused persons including the
appellant. On behalf of the appellant, who was Secretary, Department of Rural
Development, Government of Sikkim at the time of commission of the alleged
offence, a preliminary objection was raised before the Special Judge to the
effect that hi_s prosecution under Section 120-B of the Indian Penal Code read
with Sections 5(2) and 5( 1)(d) of the 1947 Act was not warranted as he being
F a public servant at the relevant time, sanction was required under Section 197
of the Code and the same having not been obtained, the prosecution for these
offences was not fit to continue.. Similar objection was taken on behalf of
another accused-Shri Nar Bahadur Bhandari, the then Chief Minister of Sikkim.
The Special Judge by order dated 17th November, 1998 rejected the preliminary
G objection and held that no sanction was required. Challenging the aforesaid
order, the appellant and the aforesaid Shri Nar Bahadur Bhandari moved
Sikkim High Court by filing separate revision applications which having been
dismissed by the impugned order holding that no sanction under Section 197
of the Code was required, the present appeal by Special Leave.

H Shri L. Nageswara Rao, learned Senior Counsel appearing on behalf of
P.K. PRADHAN v. STATE OF SIKKIM REPRESENTED BY THEC.B.I. [AGRAWAL, J.JJ 123

the appellant, submitted that act of the appellant complained of had reasonable A
connection with the discharge of official duty and both were so inter-woven
that one could not be separated from the other, as such for prosecuting the
appellant, sanction was required under Section 197 of the Code and the High
Court was not justified in hoiding otherwise. Learned Counsel, however, did
not challenge continuance of the prosecution of the appellant under Section
5(2) read with Section 5(l)(d) of the 1947 Act which corresponds to Section B
13(2) read with Section 13(1)(d) of the 1988 Act as no sanction for prosecution
under Section 6 of the 1947 Act and Section 19 of the 1988 Act was required
in view of the fact that before the date of taking cognizance, the appellant
ceased to be public servant inasmuch as under the aforesaid sections, sanction
is required only if, on the date of cognizance, accused was continuing to be C
public servant and not otherwise. On the other hand, Shri P.P. Malhotra,
learned Senior Counsel appearing on behalf of the Central Bureau of
Investigation and Shri A. Mariarputham, learned counsel appearing on behalf·
of the State of Sikkim, submitted that acts of the accused complained of, had
absolutely no connection with the discharge of official duty inasmuch as
commission of offence of conspiracy can never be treated to be in discharge D
of official duty, therefore, no sanction for prosecution under Section 197 of
the Code was at all required. In view of the rival contentions, the only
question that arises is as to whether sanction for prosecution of the appellant
was required under Section 197 of the Code for offences punishable under
Section 120-B of the Indian Penal Code and with Sections 5(2 ) and 5(l)(d) E
of 1947 Act..

The legislative mandate engrafted in sub section (1) of Section 197
debarring a court from taking cognizance of an offence except with the
previous sanction of the Government concerned in a case where the acts
complained of are alleged to have been committed by a public servant in F
discharge of his official duty or purporting to be in the discharge of his
official duty and such public servant is not removable from office save by or
with the sanction of the Government touches the jurisdiction of the court
itself. It is a prohibition imposed by the statute from taking cognizance.
Different tests have been laid down in decided cases to ascertain the scope G
and meaning of the relevant words occurring in Section 197 of the Code; 'any
offence alleged to have been committed by him while acting or purporting to
act in the discharge of his official duty.' 1be offence alleged to have been
committed must have something to do, or must be related in some man."ler,
with the discharge of official duty. No question of sanction can arise under
Section 197, unless the act complained of is an offence; the only point for H
1124 SUPREME COURT REPORTS [2001] 3 S.C.R.

A determination is whether it was committed in.the discharge of official duty.
There must be a reasonable connection between the act and the official duty.
It does not matter even if the act exceeds what is strictly necessary for the .i. .
discharge of the duty, as this question will arise only at a later stage when
the trial proceeds on the merits. What a court has to find out is whether the
B · act and the official duty are so inter-related that one can postulate reasonably
that it was done by the accused in the performance of official duty, though,
possibly in excess of the needs and requirements of situation.

In the case of Hori Ram Singh v. The Crown, (1939) Federal Court
Reports 159, question was considered as to whether the protection under ·~
C Section 197 of the Code can be confined only to such acts of the public
servant which are directly in pursuance of his public uffice, though in excess
of the duty or under a mistaken belief as to the existence of such duty. In
that case, while laying down the law, Sulairnan, J., observed thus at page 178:-

"The section cannot be confined to only such acts as are done by
a public servarit directly in pursuance of his public office, though in
D
excess of the duty -or under a mistaken belief as to the existence of
such duty."

It was further observed thus at page 179:- -

"Of course, if the case as put forward fails or the defence establishes
E that the act purported to be done in execution of duty, the proceedings
will have to be dropped and the complaint dismissed on that ground."

The view taken by Sulaiman, J. has been approved by the Privy
Council in H.H.B. Gill and another v. The King, AIR (1948) Privy Council 128,
where the Court laid down the law at page 133 which runs thus:-
F
"A public servant can only be said to act or to purport to act in the
discharge of his official duty, if his act is such as to lie within the
scope of his official duty. Thus a Judge neither acts nor purports to
act as a Judge in receiving a bribe, though the Judgment which he
delivers may be such an act : nor does a Government medical officer
G
act or purport to act as a public servant in picking the pocket of a
patient whom he is examining, though the examination itself may be
such an act. The test may well be whether the public servant, if
challenged, can reasonably claim that, what he does, he does in
virtue of his office."
H [Emphasis added]
P.K. PRADHAN v. STATE OF SIKKIM REPRESENTED BY THE C.B.I. [AGRAWAL, J.Jl 125

In the case of Shreekantiah Ramayya Munipalli v. The State of Bombay, A
(1955) 1 SCR 1177, the view taken by the Privy Council in the case of Hori
Ram Singh, (supra) had been approved and this Court observed that Section
197 of the Code should not be construed in such a narrow way so that the
same can never be applied. In the said case, Vivian Bose, J. speaking for the
Court laid down thus at page 1186 :-
B
"Now it is obvious that if section 197 of the Code of Criminal Procedure
is construed too narrowly it can never be applied, for of course it is
no part of an official's duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because
an official act can ·be performed in the discharge of official duty as C
well as in dereliction of it. The section has content and its language
must be given meaning.
[Emphasis added)

In the case of Amrik Singh v. The State of Pepsu, [1955) 1 SCR 1302,
upon a detailed discussion, this Court was of the view that if the discharge D
of official duty and the act of the accused complained of are inseparable,
sanction under Section 197 of the Code would be necessary. Venkatarama
Ayyar, J., speaking for the Court observed at page 1307-08 which runs thus:-
"If the acts complained of are so integrally connected with the duties
attaching to the office as to be inseparable from them, then sanction E
under Section 197(1) would be necessary; but if there was no
necessary connection between them and the performance of those
duties, the official status furnishing only the occasion or opportunity
for the acts, then no sanction would be required."
[Emphasis added]
F
In the case of Matajog Dobey v. H.C.Bhari, [1955] 2 SCR 925, a
Constitution Bench of this Court clearly laid down that where a power is
conferred or a duty is imposed by a statute or otherwise and there is nothing
said expressly inhibiting the exercise of the power or the performance of the
, duty by any limitations or restrictions, it is reasonable to hold that it carries G
with it the power of doing all such acts or employing such means as are
reasonably necessary for such execution because it is a rule. that when the
.. · - \. law commands a thing to be done, it authorises the performance of whatever
may be necessary for executing its command. The Court was considering in
the said case the allegation that the official authorised in pursuance of a
warrant issued by the Iqcome Tax Investigation Commission in connection H
1126 SUPREME COURT REPORTS [2001] 3 S.C.R.

A with certain pending proceedings before it, forcibly broke open the entrance
door and when some resistance was put, the said officer not only entered
forcibly but tied the person offering resistance with a rope and assaulted him
causing injuries and for such an act, a complaint had been filed against the
public officers concerned. This Court, however, held in that case that such
B a complaint cannot be entertained without sanction of the competent authority
as provided under Section 197 of the Code. The Court had observed that
before arriving at a conclusion whether the provisions of Section 197 of the
Code will apply, the court must conclude that there is a reasonable connection
between the act complained of and the discharge of official duty; the act must
bear such relation to the duty that the accused could lay a reasonable, but
C not a pretended or fanciful claim, that he did it in the course of the performance
of his duty.

In the case of Baijnath Gupta and others v. The State of Madhya
Pradesh, [1966] 1 SCR 210, it has been observed that !11 relation to charge
under Sections 477-A/109 of the Indian Penal Code, sanction i~ necessary
D under Section 197 of the Code as the same was committed within the scope
of official duties though may be in derelii:tion of them.

In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and
others, [1998) 1 SCC 205, relying upon Matajog Dobey case (supra) and
bearing in mind the legislative mandate engrafted in sub-section ( 1) of Section
E ' 197 debarring a court from. taking c~gnizanc~ of an offence except with
previous sanction of the Government concerned, this Court has laid down
that the said provision is a prohibition impos~d by the statute from taking
cognizance and, as s~ch, exercising jurisdiction of.th~ court in the matter of
taking cognizance and, therefore, a court will not be justified in taking
F cogrzizance of the offence without such sanction on a finding that the acts
complained .of ar.e in excess of the.
discharge
. . of the. official duty of the
'

government servan_t concerned..

In the case of Abdul WahabAnsari v. State oflJihar and another, [2000]
8 sec 500, while considering the scope of Section 197 of the Cod~, this Court
G obser\red at page 507 which runs thus:-

"We have no hesitation to come to the conclusion that the appellant
had been directed by the Sub-Divisional Magistrate to be present with '
police force and remove the encroachment in question and in course
of discharge of his duty to control the mob, when he had directed for
H opening of fire, it must be held that the order .of opening of fire was
P.K. PRADHAN v. STATE OF SIKKIM REPRESENTED BY THE C.B.I. [AGRAWAL, J.Jl 127

........ in exercise of the power conferred upon him and the duty imposed A
--" upon him under the orders of the Magistrate and in that view of the
matter the provisions of Section 197( 1) applies to the facts of the
present case."

In the case of K. Satwant Singh v. The State of Punjab, [1960] 2 SCR
89, a Constitution Bench of this Court observed that some offences cannot B
by their vary nature be regarded as having been committed by public servant
while acting or purporting to act in the discharge of their official duty. For
instance, acceptance of bribe, an offence punishable under Section 161 of the
Indian Penal Code is one of them and offence of cheating and abetment
thereof is another. Likewise, another Constitution Bench in the case of Om c
Prakash Gupta v. State of U.P., [1957] SCR 423, observed that a public
·servant committing criminal breach of trust does not normally act in his public
capacity as such no sanction is required for such an act.

Thus, from a conspectus of the aforesaid decisions, it will be clear that
for claiming protection under Section 197 of the Code, it has to be shown by D
the accused that there is reasonable connection between the act complained
--~ of and the discharge of official duty. An official act can be performed in the
discharge of official duty as well as in dereliction of it. For invoking protection
under Section 197 of the Code, the acts of the accused complained of must
be such that the same cannot be separated from the discharge of official duty,
E
but if there was no reasonable connection between them and the performance
of those duties, the official status furnishes only the occasion or opportunity
for the acts, then no sanction would be required. If the case as put forward
by the prosecution fails or the defence establishes that the act purported to
be done is in discharge of duty, the proceedings will have to be dropped. It
is well settled that question of sanction under Section 197 of the Code can F
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
G
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. H
1128 SUPREME COURT REPORTS (200 I] 3 S.C.R.

A In the present case, the accused is claiming that in awarding contract
in his capacity as Secretary, Department of Rural Development, Government
of Sikkim, he did not abuse his position as a public servant and works.were
awarded in favour of the contractor at a rate permissible under law and not
low rates. These facts are required to be established which can be done at
B the trial. Therefore, it is not possible to grant any relief to the appellant at
this stage. However, we may observe that during the course of trial, the court
below shall examine this question afresh and deal with the same in the main
judgment in the light of law laid down in this case without being prejudiced
by any observation in the impugned order_s. .
'
C For the foregoing reasons, the appeal fails and is accordingly dismissed.

V.S.S. Appeal dismissed.

•,
)-

' .

'I '