Supreme Court of India
PARKASH SINGH BADAL AND ANR.versusSTATE OF PUNJAB AND ORS.
- Citation
- 2006 INSC 960
- Decided
- 6 December 2006
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Sanction under Section 197 CrPC is required only when the accused public servant holds the relevant office at the time of taking cognizance, and the prosecution against Badal satisfied this requirement, rendering the appeals untenable.
Summary
The petitioners, including former Chief Minister Parkash Singh Badal, challenged prosecutions under the Prevention of Corruption Act, 1988 and the IPC on the ground that no prior sanction under Section 197 of the CrPC was obtained and that the complaints were filed with malafide intent. The Court examined the scope of the protection afforded to public servants by Section 19 of the PC Act and Section 197 of the CrPC, emphasizing that such protection applies only when the accused is a public servant at the time the court takes cognizance and the act is connected with the discharge of official duties. It held that the sanction requirement is satisfied if the public servant holds office when cognizance is taken, and that the alleged offences were committed while Badal was in office, making the sanction valid. The plea of malafides was rejected as it was not specifically pleaded or proved. The Court also clarified that a First Information Report must be registered under Section 154 CrPC irrespective of the informant's credibility, and that the charge sheet need not detail every offence at the framing stage. Consequently, the appeals were dismissed.
Issues considered
- The necessity of prior sanction under Section 197 CrPC for prosecuting a public servant under the Prevention of Corruption Act, 1988.
- Whether Section 19(1) of the PC Act provides protection when the public servant has ceased to hold the office alleged to be misused.
- The validity of the plea that the complaints were filed with malafide intent.
- The adequacy of the charge sheet and the requirement of detailed particulars at the stage of framing charges.
- Whether Articles 233 and 234 of the Constitution are attracted by the appointment of a Special Judge.
- The mandatory registration of a cognizable offence under Section 154 CrPC irrespective of the informant's credibility.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 173, s. 197, s. 2, s. 41
- Constitution of Indias. 233, s. 234
- Indian Penal Code, 1860s. 1208, s. 161, s. 162, s. 163, s. 164, s. 165, s. 420, s. 467, s. 468, s. 471
- Prevention of Corruption Act, 1947s. 6(2)
- Prevention of Corruption Act, 1988s. 10, s. 11, s. 13, s. 15, s. 19, s. 7, s. 8, s. 9
Subjects
public servantsanctionSection 197 CrPCPrevention of Corruption ActmalafidesFIR registrationspecial judgeimmunityabuse of office
Judgment
-
PARKASH SINGH BADAL AND ANR. A
v.
STATE OF PUNJAB AND ORS.
DECEMBER 6, 2006
[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B
Prevention of Corruption Act, 1947; s. 6(2)/Prevention of Corruption
Act, 1988; ss. 7, 8, 9, 10, 11, 13, 15 and 19/Code of Criminal Procedure,
1973; ss. 2, 41, 154, 173 and 197: c
Prosecution of public servant-Protection from-Sanction before
prosecution-Necessities of-Held: Principle of immunity protects only those
acts ofa public servant performed in exercise offunction of the Government-
But it does not protect criminal acts of a public servant though performed
under the colour of authority but in reality performed for its own pleasure/ D
benefit-Proiection so given is to protect a responsible public servant against
institution of vexatious criminal proceedings for offences allegedly committed
by him ·while acting/purporting discharge of official duties-Sanction to
prosecute, ifgranted, confers on Government complete control ofprosecution-
In terms of Section 197 Cr.P.C., bar on exercise of power by Court to take E
cognizance of any offence against public servant is absolute and complete-
Protection afforded to public servant available subject to fulfilment of certain
conditions-Conditions specified under the provisions are mandatory in
nature-Protection available only to those acts/omission purportedly done
in exercise of official duties-If act done in course of service but not in
discharge of official duties bar to prosecute without sanction from competent F
authority not available to public servant-Sanction need not be obtained
at the time of lodging of complaint but at any stage of proceedings .
Public Servant-Prosecution-Information to Magistrate-Framing of
charges-Requirements of-Held: Information/Report to Magistrate sufficient G
elaborate details not necessary-At the stage offraming of charges, material
available on record need not be analysed minutely-Sanctioning authority
need not separately specifY each of offences against accused public servant.
Complaint-Misuse of office by public servant-Plea of malafides-
Held: Plea ofmalafides not only required to be clearly pleaded but specifically H
197
198 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A proved-Merely because the political opponent was the complainant that
does not per se lead to such an inference to dismiss the complaint/no notice
should be taken thereof-Hence the plea of malafides as raised cannot be
maintained in the facts and circumstances of the case.
Constitution of India, 1950; Articles 233 and 234:
B
Appointment of special Judge to a Special Court-High Court-
Jurisdiction and power of-Held: In the facts and circumstances of the case,
Articles 233 and 234 not attracted
C Section I 54 Cr.P.C.-FIR-Legal principles governing registration of
a cognizable offence-Discussed
Words and Phrases:
"Absence of sanction' and 'Invalidity on account of non-application of
D mind'-Distinction between-Discussed
Abuse of Office-Test-Requirement of-Discussed.
Criminal Misconduct-Requirements of-Discussed in the context of s.
13 of the Prevention of Corruption Act, 1988.
E
'Failure ofjustice', 'in the opinion of-Meaning of in the context of sub-
section (3) and (4) of s.19 of Prevention of Corruption Act, 1988.
'lncuria'-Meaning of
F Public Functionary-Public servant-Abuse of office-Mischief Rule-
Invoking of
Questions which arose for determination in these appeals were about
validity of proceedings initiated against appellant, the then Chief Minister of
Punjab and Ors, under the Prevention of Corruption Act, 1988 and/or the
G Indian Penal Code, 1860; and also as to the necessities of sanction before
prosecuting them in terms of s. 197 Cr.P.C. and the legality thereof.
Appellants contended that the proceedings were initiated against them
on the basis of complaints which were lodged malajide and as an act of political
vendetta; that allegations are vague, lack in details and even if accepted at the
! TJ. face value, did not show the commission of any offence; that though the High
Court primarily relied on a Constitution Bench decision of this Court in R.S.
.....
PARKASH SINGHBADALv. STATE OF PUNJAB 199
. Nayak v. A.R. Antulay, [1984) 2 SCC 183, the said decision was rendered in A
the context of the Prevention of Corruption Act, 1947 (Old Act); that the
provisions contained in Section 6 thereof are in pari materia to Section 19 of
the 1988 Act; the effect of Section 6(2) of the Old Act corresponding to Section
19(2) of the Act was lost sight of; that the voluminous charge sheets filed are
extremely vague and do not indicate commission of any definite offence; that B
the offences alleged to have been committed under IPC had close nexus with
the workmen who are on official duty and therefore sanction under Section
197 Cr.P.C. is mandatory; that even offences punishable under Sections 468,
471 and 1208 have been in certain cases held to be relatable to the official
duty thereby mandating sanction in terms of Section 197 of the Code; that
the malafuie intention is clear as all these cases were registered at Mohali C
Police Station which was declared to be the police station for the purpose of
investigation of the concerned cases and new Court was established for the
trial of the concerned cases and jurisdiction was conferred on one officer
without following the due process of consultation with the High Court. These
are indicative of the fact that action was taken with ma/a fide intention only
to harass them; that this was a case of casus omissus; that a public servant D
who continues to remain so (on transfer) has got to be protected as long as he
continues to hold his office; that even ifthe offending act is committed by a
public servant in his former capacity and even if such a public servant has
not abused his subsequent office still such a public servant needs protection
of Section 19(1) of the Act; that charge sheet is a bundle of confusions and E
no definite material is placed on record to substantiate the allegation of
commission of any offence; and that in the documents filed only Section 13(1)
of the Act has been only mentioned and not the exact alleged infraction.
Respondent-State and others submitted that the decision in R.S. Nayak's
case correctly lays down the position; that the allegations of mala fide are F
clearly unfounded; that no new court was established and in fact Special Judge
of Special Court who was appointed only after consultation with the High
Court, he was only designated to hear the cases; that the decision in R.S.
Nayak's case is not per incuriam as contended. Under Section 19(1) of the
Act previous sanction is prescribed for a public servant if (a) he is a public G
servant at the time of taking cognizance of the offence and (b) the accused
continues to hold office alleged to have been mis-used at the time of taking
cognizance of the offence by the Court; and that where the public servant has
ceased to be a public servant in one capacity by ceasing to hold office which
is alleged to have been misused, the fortuitous circumstance of the accused
being in another capacity holding an entirely different public office is H
200
•
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. -
A irrelevant.
Dismissing the appeals, the Court
HELD: 1.1. This Court in the decided case of R.S. Nayak v. A. R. Antu/ay
adopted a construction which is based on the avoidance of mischief rule. That
B being so, the plea that the effect of Section 6(2) of the Old Act (Prevention of
Corruption Act, 1947) was not kept in view does not merit acceptance. Though
a mere reference to a provision in all cases may not in all cases .imply
consciousness as to the effect of that provision the case at hand.does notfall
to that category. In this case not only was there reference to that provision,
C but also this Court adopted a construction which kept in view the object of the
statute and the need for interpretation in.a particular way. (222-A-B-C)
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, referred to.
(1977) Imperial Court Report (662), referred to.
D 1.2. The principle of immunity protects all acts which the public servant
has to perform in the exercise of the functions of the Government The purpose
for which they are performed protects these acts from criminal prosecution.
However, there is an exception. Where a criminal act is performed under the
colour of authority but which in reality is for the public servant's own
E pleasure or benefit then such acts shall not be protected under the doctrine
of State immunity. Where the act performed under the colour of office is for J;-
the benefit of the officer or for his own·pleasure Section 19(1) will come in.
Therefore, Section 19(1) is time and offence related. (223-C-D-E)
Habibulla Khan v. State of Orissa and Anr., (1995) 2 SCC.437· and
F Shreekantiah Ramayya Munipalli v. The State of Bombay, (1955) l SCR 1177,
referred to.
1.3. If a public servant in his subsequent position is not accused of any
criminal acts then there is no question of invoking the mischiefrule. Protection
to public servants under Section 19(1)(a) of the Prevention of Corruption Act,
G 1988 has to be confined to the time related criminal acts performed under
the colour or authority for public servant's own pleasure or benefit as
categorized under Sections 7, 10, 11, 13 and 15 of the Act This is the principle
behind the test propounded by this court, namely,.the test of abuse of office.
(225-B-C)
H Balakrishnan Ravi Menon v. Union of India, (2007] 1 SCC 45, referred
PARKASH SINGH BADAL v. STATE OF PUNJAB 201
to. A
1.4. Effect of sub-sections (3) and (4) of Section 19 of the Act are of
considerable significance. In Sub-Section (3) the stress is on "failure of
justice" and that too "in the opinion of the Court". In sub-section (4), the
stress is on raising the plea at the appropriate time. Significantly, the "failure
of justice" is relatable to error, omission or irregularity in the sanction. B
Therefore, mere error, omission or irregularity in sanction is considered
fatal unless it has resulted in failure of justice or has been occasioned thereby.
Section 19(1) is a matter of procedure and does not go to root of jurisdiction
as observed by this Court in the Narasimha Rao 's case. Sub-section (3)(c) of
Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act/ C
Section 19(2) of the Act question relates to doubt about authority to grant
sanction and not whether sanction is necessary. (226-C-D-E)
P. V. Narasimha Rao v. State, (1998) 4 SCC 626, referred to.
2.1. "lncuria" literally means "carelessness". In practice per incuriam D
is taken to mean per ignoratium. English courts have developed this principle
in relaxation of the rule of stare decisis. The "quotable in law" as held in
Young v. Bristol Aeroplane Co. Ltd. is avoided and ignored if it is rendered
"in ignoratium of a statute or other binding authority". Same has been
accepted, approved and adopted by this Court while interpreting Article 141
of the Constitution which embodies the doctrine of precedents as a matter of E
law. (227-A-B-CI
Govt. ofA.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262; State of UP.
v. Synthetics and Chemicals Ltd., [1991) 4 SCC 139; Babu Parasu Kaikadi
(dead) by Lrs. v. Babu (dead) thr. Lrs., (2004) 1 SCC 681 and Sunita Devi v.
State of Bihar and Anr., (2005) 1 SCC 608, relied on. F
Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, referred to.
Halsbury's Laws of England, 4th Edn., Vol. 26, referred to.
2.2. The question is not as to the nature of the offence such as whether G
the alleged offence contained an element necessarily dependent upon the
offender being a public servant, but whether it was committed by a public
servant acting or purporting to act as such in the discharge of his official
capacity. Before Section 197 Cr.P.C. can be invoked, it must be shown that
the official concerned was accused of an offence alleged to have been committed H
202 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A by him while acting or purporting to act in the discharge of his official duties.
It is not the duty which requires examination so much as the act, because the
act can be performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of the official
duties of the public servant concerned. It is the quality of the act which is
B important and the protection of this section is available if the act falls within
the scope and range of his official duty. There cannot be any universal rule
to determine whether there is a reasonable connection between the act done
and the official duty, nor is it possible to lay down any such rule. This aspect
makes it clear that the concept of Section 197 Cr.P.C. does not immediately
get attracted on institution of the complaint case. (220-C-D-E-F)
c Bakhshish Singh Brar v. S1!1t. Gurmej Kaur and Anr., AIR (1988) SC
257 and P. Arulswami v. State ofMadras, AIR (1967) SC 776, relied on.
2.3. Section 197 Cr.P.C. not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and circumstances
D in which it shall be available and the effect in law ifthe conditions are satisfied.
The mandatory character of the protection afforded to a public servant is
brought out by the expression, 'no court shall take cognizance of such offence
except with the previous sanction'. Use of the words, 'no' and 'shall' make it
abundantly clear that the bar on the exercise of power by the court to take
cognizance of any offence is absolute and complete. Very cognizance is barred.
E That is the complaint, cannot be taken notice of. (230-A-B-C)
Black's Law Dictionary, referred to.
2.4. Section 197 Cr.P.C. does not extend its protective cover to every
act or omission done by a public servant in service but restricts its scope of
F operation to only those acts or omissions which are done by a public servant
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 that
the act or omission m_ust have been done by the public servant in course of
G his service and such act or omission must have been performed as part of
duty which further must have been official in nature. The Section has, thus,
to be construed strictly, while determining its applicability to any act or
omission in course of service. 1231-A-B-C)
B. Saha and Ors. v. MS. Kochar, 11979) 4 SCC 177 and Matajog Dobey
H v. H. C. Bhari, AIR (1956) SC 44, relied on.
PARKASH SINGH BADAL v. STATE OF PUNJAB 203
2.5. If on facts it is prima facie found that the act or omission for which A
the accused was charged had reasonable connection with discharge of his duty
then it must be held to be official to which applicability of Section 197 of the
Code cannot be disputed. 1232-A-B)
State ofH.P. v. MP. Gupta, (2004) 2 SCC 349; State ofOrissa through
Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew, JT (2004) 4 SC B
52; Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath and Anr., JT (2004) 6
SC 323; K. Kalimuthu v. State by DSP, (2005) 4 SCC 512 and Rakesh Kumar
Mishra v. The State of Bihar and Anr., (2006) l SCC 557, relied on.
3.1. 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 C
and on the allegations contained therein. This question may arise at any stage
of the proceeding. (234-G-H)
3.2. So far as the question about the non application of mind in the
sanction or absence of sanction is concerned, this has been answered in the D
first question i.e. where the public servant has ceased to be a public servant
since he has ceased to hold the office where the alleged offence is supposed
to have been taken place, the other questions really become academic.
1235-A-BI
3.3. The report in terms of Section 173 Cr.P.C. is in the nature of E
information to the Magistrate. Statutory requirement is complied with ifthe
requisite information is given. It purports to be an opinion and therefore
elaborate details are not necessary. 1239-B-C)
K. Veeraswamiv. Union ofIndia and Ors., (1991) 3 SCC 655, relied on.
F
3.4. Mere non-description of the offences in detail is really not material.
At the stage of framing charge it can be urged that no offence is made out.
1240-B)
3.5. With reference to the absence of allegations under Sections 8 and
9 of the Act, it is submitted whether the charge sheet has reference to any G
particular material referred to in it and the relevance of it is to be considered
at the time when the charge is framed. It would not be desirable to analyse
minutely the materials as at that stage the Court is primarily concerned with
the question as to whether charge is to be framed in respect of any offence
and whether there prima facie appears existence of any material and not the H
204 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A sufficiency of the materials. Therefore, the appellants' stand that the charge
sheet does not refer to any particular material cannot be accepted, more
particularly, in view of the specific materials referred to by the respondent-
State. [240-B-C-DI
3.6. The offence of criminal mis-conduct is defined in Section 13. Five
B clauses contained in the said provision represent different types of infraction
under which the offence can be said to have been committed. If there is material
to show that the alleged offence falls in any of these categories, it is not
necessary at the stage of filing of the charge sheet to specify as to which
particular clause covers the alleged offence. It is the stand of the respondent-
C State that clauses (a), (b) (d) and (e) are all attracted and not clause (c).
Therefore, the sanctioning authority has rightly referred to Section 13(1)
and that does not make the sanction order vulnerable. [240-F-G]
3.7. Sanctioning authority is not required to separately specify each of
the offence against the accused public servant. This is required to be done at
D the stage of framing of charge. Law requires that before the sanctioning
authority materials must be placed so that the sanctioning authority can apply
his mind and take a decision. Whether there is an application of mind or not
would depend on the facts and circumstances of each case and there cannot
be any generalized guidelines in that regard. [240-G-H; 241-Al
E 3.8. The sanction in the instant case related to offences relatable to Act.
There is a distinction between the absence of sanction and the alleged invalidity
on account of non application of mind. The former question can be agitated at
the threshold but the latter is a question which has to be raised during trial.
[241-B)
F 4.1. The offence of cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and 1208 can by no stretch of
imagination by their very nature be regarded as having been committed by
any public servant while acting or purporting to act in discharge of official
duty. In such cases, official status only provides an opportunity for commission
G of the offence. [241-E)
Rakesh Kumar Mishra v. The State of Bihar and Anr., [2006) 1 SCC
557, distinguished.
Baijnath v. State ofMP., [1966) SCR 210, referred to.
H 4.2. The opening word of Sections 8 and 9 of the Act is "whoever". The
PARKASH SINGH BADAL v. ST ATE OF PUNJAB 205
expression is very wide and would also cover public servants accepting A
gratification as a motive or reward for inducing any other public servant by
corrupt or illegal means. Restricting the operation of the expression by
curtailing the ambit of Sections 8 and 9 and confining to private persons
would not reflect the actual legislative intention. [241-H; 242-A)
Ram Krishan andAnr. v. State of Delhi, AIR (1956) SC 476, referred B
to.
4.3. Section 13(1 )(d) of the Act envisages obtaining of any valuable thing
or pecuniary advantage, on the other hand Sections 8 and 9 of the Act are
much wider arid envisage taking of "any gratification whatever". It would not C
be permissible to contend that a public servant would be covered by Section
13(1)(d) of the Act and therefore the public servant would not be covered by
Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the
offences under Sections 8 and 9 of Act are different and separate. [242-E-F)
4.4. If a public servant accepts gratification for inducing any public D
servant to do or to forbear to do any official act, etc. then he would fall in the
net of Sections 8 and 9. In Section 13(1)(d) it is not necessary to prove that
any valuable thing or pecuniary advantage has been obtained for inducing any
public servant. (242-G-H]
4.5. The word 'gratification' is not restricted to pecuniary gratifications E
or to gratifications estimable in money. Thus, Sections 8 and 9 are wider
than Section 13(1)(d) and clearly constitute different offences. (243-Bl
5.1. A plea of malafides has not only to be clearly pleaded but specifically
proved by adducing cogent evidence. Mere allegation and suspicions would
not be sufficient. The person against whom malafides conduct is attributed F
is interestingly not a party in the proceedings. (243-E)
5.2. Merely because the political opponent was the complainant that does
not per se lead to an inference that the complaint has to be thrown out or that
no notice should be taken thereof. [243-F-G)
G
6.1. The legal mandate enshrined in Section 154 (1) Cr.P.C. is that every
information relating to the commission of a 'cognizable offence' (as defined
under section 2 (c) of the Code) if given orally (in which case it is to be reduced
into writing) or in writing to "an officer incharge of a police station" (within
the meaning of Section 2(o) of the Code) and signed by the informant should H
206 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
. A be entered in a book to be kept by such officer in such form as the State
Government may prescribe which form is commonly called as "First
Information Report" and which act of entering the information in the said
form is known as registration of a crime or a case. (244-E-Fl
6.2. At the stage of registration of a crime or a case on the basis of the
B information disclosing a cognizable offence in compliance with the mandate
of Section 154 (I) Cr.P.C., the concerned police officer cannot embark upon
an enquiry as to whether the information, laid by the informant is reliable
and genuine or otherwise and refuse to register a case on tht ground that
the information is not reliable or credible. 1244-F-Gj
c 6.3. Evidently, the non-qualification of the word "information" in Section
154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason
that the police officer should not refuse to record an information relating to
the commission of a cognizable offence and to register a case thereon on the
ground that he is.not satisfied with the reasonableness or credibility of the
D information. (245-D-El
6.4. An overall reading of the Codes of 1861, 1872, 1882 and 1898
makes it clear that the condition which is sine-qita-non for recording a First
Information Report is that there must be an information and that information
must disclose a cognizable offence. It is, therefore, manifestly clear that if
E any information disclosing a cognizable offence is laid before an officer
incharge of a police station satisfying the requirements of Section 154(1) of
the Code, the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register a case on
the basis of such info.rmation. Though a police officer cannot investigate a
F non-cognizable offence on his own as in the cas~ of cognizable offence, he
can investigate a non-cognizable offence under the order of a Magistrate
having power to try such non-cognizable case or commit the same for trial
within the terms under Section 155(2) of the Code but subject to Section 155(3)
of the Code. [245-G-H; 246-A-B-C)
G State of Haryana and Ors. v. Bhajan Lal and Ors., 11992 I Supp I SCC
.335 and State of Punjab and Anr. v. Gurdial Singh and Ors., 11980) 2 SCC
471, referred to.
6.5. Obligation to register a case is not to be confused with the remedy
if same is not registered. The ultimate test therefore is whether the allegations
H have any substance. An investigation should not be shut out at the threshold
PARKASH SINGH BADAL v. STATE OF PUNJAB 207
political opponent or a person with political difference raises an allegation of A
, commission of offence. Therefore, the plea of malafides as raised cannot be
maintained. (248-A-BJ
Gangadhar Janardan Mhatre v. State of Maharashtra and Ors., (20041
7 sec 768, relied on.
B
7.1. So far as conferment of jurisdiction with the police station over
the whole State is concerned, it appears that the same was created on
31.10.1994 by the then Government of Chandigarh and by order dated
20.4.1995 the office of Superintendent of Police, Vigilance Flying Squad-I/
Criminal Investigation Agency was shifted to Police Station, Mohali. This C
order continued to operate subsequently. As rightly contended by the
respondent-State that the fresh notification was issued creating some more
police stations qua other districts. It is pointed out that PS Mohali falls within
the Ropar district and within the area of Special Judge, Ropar as was
specified in consultation with the Punjab and Haryana High Court. The Special
Judges are transferred by the High Court and, therefore, the allegation of D
choosing any Special Judges with oblique motive is clearly without any
substance. )248-C-D-EJ
7.2. Notification regarding re-organization of the police station with
Police Station, Mohali having jurisdiction over the whole State of Punjab was
notified on 19.12.2002. At this juncture, it is relevant to note that allegations E
of impropriety were made because of the Notification dated 17.11.2003 relating
to jurisdiction of the Special Judge. The controversy revolves around the said
Notification regarding P.S., Mohali with Statewide jurisdiction. So far as the
Notification dated 17.11.2003 is concerned, the expression used is "appoint".
It was clarified that though the said expression has been used, it did not
F
actually mean appointment of a Sessions Judge and First Additional Sessions
Judge, Ropar as Special Judges. They were already appointed and designated
as stated in the Notification itself. What was intended is related to allocation
of cases registered at P.S., Mohali to the existing Courts of Special Judges,
Ropar. There is also no dispute that P.S., Mohali falls within the area of
district Ropar over which Special Judges, Ropar had jurisdiction as approved G
by the High Court (248-E-F-G; 249-A-B-C]
8.1. There is no doubt that the control of the High Court is
comprehensive, exclusive and effective and it is to subserve the basic feature
of Constitution. (249-EI
H
208 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and
Anr., f 1998) 3 SCC 72 and Registrar (Admn.), High Court ofOrissa,, Cuttack
v. Sisir Kanta Satapathy (dead) by Lrs. and Anr., (1999)·7 SCC 725, referred
to.
8.2. Articles 233 and 234 of the Constitution are not attracted because
B this is not a case where appointment of persons to be Special Judges or their
postings to a particular Special Court is involved. It is however factually
conceded that the expression "notwithstanding the jurisdiction of other Special
Judges in the State of Punjab" is not necessary. Once group of cases are
allocated to Special Court, consequentially other Special Courts cannot deal
C with them. (249-F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5636 of2006.
From the Judgment and final Order dated 2.9.2004 of the High Court of
Punjab and Haryana at Chandigarh in C.W.P. No. 9410/2004.
D Gopal Subramanium, A.S.G., Mohan Parasaran, A.S.G. R.S. Checma,
A.A.G., Soli J. Sorabjee, K.K. Vengupoal, P.P. Rao, Arun Jaitley, L.N. Rao,
Trivedi, Mukul Rohtagi, H.S. Mattewal, Rakesh Dwivedi, Dr. A.M. Singhvi,
K.B. Sinha, Ashok H. Desai, Ranjit Kumar, K.R. Sasiprabhu, M.K. Sreegesh,
Hari Priya, Fazlim Anam, E.M.S. Anam, S. Janani, D. Mahesh Babu, Krishnan
E Venugopal, S. Udaya Kumar Sagar, Bina Madhavan, H.S. Sidhu, Shweta Garg,
Hari Kumar, G., Vinayagam, Vikram Choudh~ry, Dashmeeta Chadha (for Mis.
Lawyer's Knit & Co.). Jayshree Anand, Karunakar Mahalik, P.H. Parekh, E.R.
Kumar, Shakum Sha;rma, Abhishek Kumar, Ailshuman Ashok, Purushottam
Tripathi, K. Ramesh (for Mis. P.H. Parekh & Co.) Aparajita Singh, T. Mahipal,
Sudhir Wali~, Sanjay Hegde, Priank Adhyaru, Sanjay Jain, Mukesh Kumar,
F Hinmat Singh Shergill, Arun K. Sinha, R. Satish, Pallav Shishodia, Gopal
f Singh, Nishakant Pandey, Vimla Sinha, Chidananda D.L. K.K. Senthilvelan,
Gaurav Dhingra, P. Parmeswaran and Ajay Sharma for the appearing parties.
The Judgment of the Court was delivered by
G DR. ARIJIT PASAYAT, J. Leave granted.
In each of these appeals challenge is to the judgment of the Punjab and
Haryana High Court dismissing the petition filed by the appellant in each
case questioning the validity of proceedings initiated under the Prevention
of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code,
H
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.] 209
1860 (in short the 'IPC'). In the latter category of cases the question raised A
is either lack of sanction in terms of Section 197 of the Code of Criminal
Procedure, 1973 (in short the 'Code') or the legality thereof.
It is the stand of the appellant in each case that the proceedings were
initiated on the basis of complaints which were lodged ma/a fide and as an
act of political vendetta. It is stated that allegations are vague, lack in details B
and even if accepted at the face value, did not show the commission of any
offence. It is stated that though the High Court primarily relied on a
Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay,
[1984} 2 SCC 183, the said decision was rendered in the context of the
Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted C
that the provisions contained in Section 6 thereof are in pari materia to
Section 19 of the Act so far as relevant for the purpose of this case; the effect
of Section 6(2) of the Old Act (corresponding to Section 19(2) of the Act) was
lost sight of. The decision in the said case was to the effect that if an accused
is a public servant who has ceased to be a public servant and/or is a public
servant of different category then no sanction in terms of Section 19( I) of the D
Act corresponding to Section 6(1) of the Old Act is necessary.
So far as the factual scenario of these cases is concerned appellant Sri
Parkash Singh Badal was at the relevant point of time the Chief Minister of
the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is
his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed E
offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri
Gurdev Singh B\ldal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan
were Ministers during the concerned period and were at the time of taking
cognizance members of Legislative Assembly. Shri Sukhbir -Singh Badal was
a member of the Parliament. As noted above, primary stand is that the effect F
of Section 6(2) of the Old Act corresponding to Section 19 (2) of the Act was
not considered and in that view of the matter the judgment in Antulay 's case
(supra) is to be considered per incuriam. Additionally, it is submitted that the
voluminous charge sheets filed are extremely vague and do not indicate
commission of any definite offence. Some allegations of general nature have
been made. The decision in P. v. Narasimha Rao V. State, [1998] 4 sec 626, G
specifically dissented from the view regarding vertical hierarchy which appears
to be the foundation for the conclusion that the authority competent to
remove the accused from office alone could give sanction. It is submitted that
the offences alleged to have been committed under IPC had close nexus with
the workmen who are on official duty and therefore sanction under Section H
210 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 197 of the Code is mandatory. With reference to several judgments of this
Court it is submitted that even offences punishable under Sections 468, 471
and l20B have been in certain cases held to be relatable to the official duty
thereby mandating sanction in terms of Section 197 of the Code.
It is pointed out that the ma/a fide intention is clear as· all these cases
B were registered at Mohali Police Station which was declared to be the police
station for the purpose of investigation of the concerned cases and new
Court was established for the trial of the concerned cases and jurisdiction was
conferred on one officer without following the process of consultation with
the High Court. These are indicative of the fact that action was taken with
C ma/a fide intention only to harass the accused persons as noted above.
Learned counsel for the respondents on the other hand submitted that
the decision in R.S. Nayak 's case (supra) correctly lays down the position.
Several attempts were made in the past to distinguish said case and to
propound that the said decision did not indicate the correct position in law.
D The allegations of ma/a fide are clearly unfounded. No new court was
established and in fact Special Judge of Special Court who was appointed to
have consultation with the High Court was only designated to hear the cases.
In fact for the sake of convenience these cases having link with each other
can be disposed of early if they are taken up together by one Court.
E In essence, it is submitted that the decision in R.S. Nayak's case (supra)
is not per incuriam as contended. Under Section 19(1) of the Act previous
sanction is prescribed for a public servant if (a) he is a public servant at the
time of taking cognizance of the offence and (b) the accused continues to
hold office alleged to have been mis-used at the time of taking cognizance
F of the offence by the Court. This is the view expressed in R. S. Nayak 's case
(supra).
Section 6 of the Old Act and Section 19 of the Act read as follows:
"6. Power to try summarily.-{l) Where a special Judge tries any
offence specified in sub-section ( 1) of section 3, alleged to have been
G committed by a public servant in relation to the contravention of any
special order referred to in sub-section ( 1) of section 12 A of the
Essential Commodities Act, 1955 ( 10 of 1955) or of an order referred
to in clause (a) of sub-section (2) of that section, then, notwithstanding
anything contained in sub-section (1) of section 5 of this Act or
H section 260 of the Code of Criminal Procedure, 1973 (2of1974), the
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.] 211
special Judge shall try the offence in a summary way, and the provisions A
of sections 262 to 265 (both inclusive) of the said Code shall, as far
as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under
this section, it shall be lawful for the special Judge to pass a sentence
of imprisonment for a term not exceeding one year: ·B
Provided further that wher. at the commencement of, or in the course
of, a summary trial under this section, it appears to the special Judge
that the nature of the case is such that a sentence of imprisonment
for a term exceeding one year may have to be passed or that it is, for
any other reason, undesirable to try the, cac;e summarily, the special C
Judge shall, after hearing the parties, record an order to that effect and
thereafter recall any witnesses who may have been examined and
proceed to hear or re-hear the ease in accordance with the procedure
prescribed by the said Code for the trial of warrant cases by Magistrates.
(2) Notwithstanding anything to the contrary contained in this Act or D
in the Code of Criminal Procedure, 1973 (2of1974), there shall he no
appeal by a convicted person in any case tried summarily under this
section in which the special Judge passes a sentence of imprisonment
not exceeding one month, and of fine not exceeding two thousand
rupees whether or not any order under section 452 of the said Code E
is made in addition to such sentence, but an appeal shall lie where any
sentence in excess of the aforesaid limits is passed by a special Judge.
19. Previous sanction necessary for prosecution.-{ I) No court shall
take cognizance of an offence punishable under sections 7, 10, 11, 13
and 15 alleged to have been committed by a public servant, except p
with the previous sanction,-
1 (a) in the case of a person who is employed in connection with the
affairs of the Union and is not removable from his office save by or
with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the G
affairs of a State and is not removable from his office save by or with
the sanction of the State Government, of that Government;
(c) in the case of Cijly other person, of the authority competent to
remove him from his office.
H
212 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A (2) Where for any reason whatsoever any doubt arises as to whether
the previous sanction as required under sub-section (I) should be
given by the Central Government or the State Government or any
other authority, such sanction shall be given by that Government or
authority which would have been competent to remove the public
servant from his office at the time when the offence was alleged to
B have been committed.
(3) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2of1974),
(a) no finding, sentence or order passed by a special Judge shall be
c reversed or altered by a Court in appeal, confinnation or revision on
the ground of the absence of, or any error, omission or irregularity
in, the sanction required under sub-section ( 1), unless in the opinion
of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground
D of any error, omission or irregularity in the sanction granted by the
authority, unless it is satisfied that such error, omission or irregularity
has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other
ground and no court shall exercise the powers of revision in relation
E to any interlocutory order passed in any inquiry, trial, appeal or other
proceedings.
(4) In determining under sub-section (3) whether the absence of, or
any error, omi~sion or irregularity in, such sanction has occasioned or
resulted in a failure of justice the court shall have regard to the fact
F whether the objection could and should have been raised at any
earlier stage in the proceedings.
Explanation-For the purposes of this section,-
(a) error includes competency of the authority to grant sanction;
G
(b) a sanction required for prosecution includes reference to any
requirement that the prosecution shall be at the instance of a
specified authority or with the sanction of a specified person or any
requirement of a similar nature.
H IPC provided for offences by or relating to public servants under Chapter
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.] 213
IX including Sections 161to165A. The Old Act was enacted on 12.3. 1947, A
with the object of making provisions for the prevention of bribery and
corruption more effective. In I 952 a Committee headed by Dr. Bakshi Tek
Chand was constituted. The said Committee examined the true intent and
purpose of Section 6 of the Old Act. It was inter alia noted by the Committee
as follows:
B
"Section 6 of the Act prescribes that no prosecution under Section
5(2) is to be instituted without the previous sanction of the authority
competent to remove the accused officer from his office. The exact
implications of this provisions have on occasions given rise to a
certain amount of difficulty. There have been cases where an offence C
has been disclosed after the officer concerned has ceased to hold
office, e.g., by retirement. In such cases it is not entirely clear whether
any sanction is at all necessary. Another aspect of the same problem
is presented by the type of case which, we are told, is fairly common-
where an officer is transferred from one jurisdiction to another or an
officer who is lent to another Department, commits an offence while D
serving in his temporary office and then returns to his parent
Department before the offence is brought to light. In a case of this
nature doubts have arisen as to the identity of the authority from
whom sanction for prosecution is to be sought. In our opinion there
should be an unambiguous provision in the law under which the E
appropriate authority for according sanction is to be determined on
the basis of competence to remove the accused public servant from
office at the time when the offence is alleged to have been committed."
The Law Commission of India in its 41 st Report recommended amendment
to Section 197 of the Code suggesting to grant protection of previous F
sanction to a public servant who is or was a public servant at the time of
cognizance. Following the report of the Law Commission oflndia, Section 197
of the Code was amended in 1969. The Act was enacted on 9.9.1988 and the
Statement of Objects and Reasons indicated widening of the scope of the
definition of"public servant" and the incorporation of offences already covered
under Sections 161 to l 65A of the IPC in the Act. New Section 19 as was G
enacted virtually the same as section 6 of the Old Act. Earlier to R.S. Nayak 's
case (supra) this Court had occasion to deal with the issues in S. A.
Venkataraman v. State, AIR (1958) SC 107., In para 14 it was stated as
follows:
" ..... 14 .. There is nothing in the words used in Section 6(1) to even H
214 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R. --
A remotely suggest that previous sanction was necessary before a court
could take cognizance of the offences mentioned therein in the case
of a person who had .ceased to be a public servant at the time the
Court was asked to take cognizance, although he had been such a
person at the time the offence was committed ...... A public servant
who has ceased to be a public servant is not a person removable from
B any office by a competent authority ......"
Following the decision rendered in Venkataraman's case (supra) and
C.R~ Bansi v. State of Maharashtra, [1970) 3 SCC 537, the High Court
accepted the view of learned trial Judge and declined relief as noted a~ove.
c The use of the expression "is" in Section 19 of the Act vis-a-vis the
expression "is" or "was" is indicative of the legislative intent. Though certain
changes were made in the Code no corresponding change was made in the
Act.
D Mr. P.P, Rao, learned senior counsel for the appellants in connected
case contended that this was .a case of casus omissus. The discussions
indicate that the reports of Dr. Bakshi Tek Chand and of the Law Commis.sion
of India were to be accepted so far as they relate to covering the ex publ~c
servants. This plea shall be dealt with in the cases separately.
E In reply, learned counsel for the respondents submitted that much
before R.S. Nayak's case (supra) this Court in C.R. Bansi's case (supra) held
as follows:
"9 .....But if a person ceases to be a public servant the question of
harassment does not arise. The fact that an appeal is pending does
F not make him a public servant. The appellant ceased to be a public
servant when the order of dismissal was passed. There is no force in
the contention of the learned counsel and the trial cannot be held to
be bad for lack of sanction under Section 6 of the Act." \
It is their stand that where the public servant has ceased to be a public
G servant in one capacity by ceasing to hold office which is alleged to have
been misused, the fortuitous circumstance of the accused being in another
capacity holding an entirely different public office is irrelevant. It was
categorically held in R. S. Nayak's case (supra) in para 13 that "on analysis
of the policy of the whole section the authority competent to remove the
H public servant from the office alleged to have mis-used is alone the competent .
.... PARKASHSINGHBADALv. STATEOFPUNJAB(PASAYAT,J.] 215
A
sanctioning authority."
In that case, it was inter alia, held as follows:
"13. Section 5 of the 1947 Act defines the offence of criminal misconduct
and a public servant who commits an offence of criminal misconduct B
is liable to be punished with imprisonment for a term which shall not
be less than one year but which may extend to seven years and shall
also be liable to fine. Section 6 provides for a sanction as a pre-
condition for a valid prosecution for offences punishable under
Sections 161, 164, 165 IPC and Section 5 of the 1947 Act. It reads as
under: c
6. (l) No court shall take cognizance of an offence punishable under
Section 161 or Section 165 of the Indian Penal Code, or under sub-
section (2) of Section 5 of this Act, alleged to have been committed
by a public servant, except with the previous sanction,
D
(a) in the case of a person who is employed in connection with affairs
of the Union and is not removable from his office save by or with the
sanction of the Central Government,
(b) in the case of a person who is employed in connection with the
affairs of a State and is not removable from his office save by or with E
the sanction of the State Government,
(c) in the case of any other person, of the authority competent to
remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the F
previous sanction as required under sub-section (l) should be given
by the Central or State Government or any other authority, such
sanction shall be given by that Government or authority which would
have been competent to remove the public servant from his office at
the time when the offence was alleged to have been committed.
G
Xx xx xx xx
19. Section 6 bars the court from taking cognizance of the offences
therein enumerated alleged to have been committed by a public servant
except with the previous sanction of the competent authority
H
216 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. ...
A empowered to grant the requisite sanction. Section 8 of 1952 Act
prescribes procedure and powers of Special Judge empowered to try
offences set out in Section 6 of I 947 Act. Construction of Section 8
has been a subject to vigorous debate in the cognate appeal. In this
appeal we will proceed on the assumption that a Special Judge Can
take cognizance of offences he is competent to try on a private
B complaint. Section 6 creates a. bar to the court from taking cognizance
of offences therein enumerated except with the previous sanction of
the authority set out in clauses (a), (b) and (c) oJ sub-section (l). The
object underlying such provision was to save the public servant from
the harassment of frivolous or unsubstantiated allegations. The policy
c underlying Section 6 and similar sections, is that there should not be
unnecessary harassment of public servant. (See C.R. Bansi v. State
ofMaharashtra, [1971] 3 SCR 236. Existence thus of a valid sanction
is a prerequisite to the taking or"cognizance of the enumerated offences
alleged to have been committed by a public servant. The bar is to the
taking of cognizance of offence by the court. Therefore, when the
D court is called upon to take cognizance of such offenc~s, it must
enquire whether there is a valid sanction to prosecute the public
servant for the offence alleged to have been -committed by him as
public servant. Undoubtedly, the accused must be a public servant
when he is alleged to have committed the offence of which he is
E accused because Sections 161, 164, 165 IPC and Section 5(2) of the
1947 Act clearly spell out that the offences therein defined can be
committed by a public servant. If it is contemplated to prosecute
public servant who has committed such offences, when the court is
called upon to take cognizance of the offence; a sanction ought to be
available otherwise the court would hav_e no jurisdi~tion to take
F cognizance of the offence. Atrial without a vajid sanction ":'here one
is necessary under Section 6 has been held to be a trial without
jurisdiction by the court. (See R.R. Chari v. State of UP., [1963] I SCR
121) and S.N. Bose v. State ofBihar, (1968] 3 SCR 563 In Mohd. Iqbal
Ahmad v. State of A .. P., [1979] 2 SCR 1007 it was held that a trial
G without a sanction renders the proceedings ab initio void. But the
terminus a quo for a valid sanction is the time when the court is called
upon to take cognizance of the offence. Iftherefore, when the offence
is alleged to have been committed, the accused was a public servant
but by the time the, court is called upon to take cognizance of the
offence committed by him as public servant, he has ceased to be a
H public servant, no sanction would he necessary for taking cognizance
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.) 217
of the offence against him. This approach is in accord with the policy A
underlying Section 6 in that a public servant is not to be exposed to
harassment of a frivolous or speculative prosecution. If he has ceased
to be a public servant in the meantime, this vital consideration ceases
to exist. As a necessary corollary, if the accused has ceased to be
a public servant at the time when the court is called upon to take
cognizance of the offence alleged to have been committed by him as B
public servant, Section 6 is not attracted. This aspect is no more res
integra. In S.A. Venkataraman v. State, [1958] SCR 1040 this Court
held as under:
In our opinion, in giving effect to the ordinary meaning of the
words used in Section 6 of the Act, the conclusion is inevitable C
that at the time a court is asked to take cognizance not only the
offence must have been committed by a public servant but the
person accused is still a public servant removable from his office
by a competent authority before the provisions of Section 6 can
apµly. In the present appeals, admittedly, the appellants had D
ceased to be public servants at the time the court took cognizance
of the offences alleged to have been committed by them as public
servants. Accordingly, the provisions of Section 6 of the Act did
not apply and the prosecution against them was not vitiated by
the lack of a previous sanction by a competent authority.
E
And this view has been consistently followed in CR Bansi case and
K.S. Dharmadatan v. Central Government, [1979] 3 SCR 832. It
therefore appears well settled that the relevant date with reference
to which a valid_ sanction is sine qua non for taking cognizance of
an offence committed by a public servant as required by Section 6
is th~ date on which the court is called upon to take cognizance of F
the offence of which he is accused
(underlined for emphasis)
Xx xx xx
G
23. Offences prescribed in Sections 161, 164 and 165 IPC and Section
5 of the 1947 Act have an intimate and inseparable relation with the
office of a public servant. A public servant occupies office which
renders him a public servant and occupying the office carries with it
the powers conferred on the office. Power generally is not conferred
H
218 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A on an individual person. In a society governed by rule of law power
is conferred on office or acquired by statutory status and the individual
occupying the office or on whom status is conferred enjoys the power
of office or power flowing from the status. The holder of the office
alone would have opportunity to abuse or misuse the office. These
sections codify a well-recognised truism that power has the tendency
B to corrupt. It is the holding of the office which gives an opportunity
to use it for corrupt motives. Therefore, the corrupt conduct is directly
attributable and flows from the power conferred on the office. This
interrelation and interdependence between individual and the office
he holds is substantial and not severable. Each of the three clauses
c of sub-section (1) of Section 6 uses the expression office' and the
power to grant sanction is conferred on the authority competent to
remove the public servant from his office and Section 6 requires a
sanction before taking cogn·~~nce of offences committed by public
servant. The offence would 1ie committed by the public servant by
misusing or abusing the power of office and it is from that office, the
D autbority must be competent to remove him so as to be entitled to
grant sanction. The -removal would bring about cessation of
interrelation between the office and abuse by the holder of the office.
The link between power with opportunity to abuse and the holder of
office would be severed by. removal from office. Therefore, when a
E public servant is accused of an offence of taking gratification other
than legal remuneration for cluing or forbearing to do an official act
(Section 161 IPC) or as a public servant abets. offences punishable
under Sections 161 and 163 (Section 164 IPC) or as public servant
obtains a valuable thing without consideration from person concerned
in any proceeding or business transacted by such public serv'ant
F (Section 165. TPC) or commits criminal misconduct as defined in Section
5 of the 1947 Act, it is implicit in the various offences that the public
servant has• misused or abused the power of office held by him as
public servant. The expression 'office' In the three sub-clauses of
Section 6(1) would clearly denote that office which the public servant
misused or abused for corrupt motives for which he is to he prosecuted
G
and in respect of \\'..hich a sanction to prosecute him is necessary by
the competent authority, ~ntitled to remove him from that office which
he has abused. This interr!elation between the office and its abuse if
severed would render Section 6 devoid of any meaning. And this
interrelation clearly provides a clue to the understanding of the
H provision in Section 6 providing for sanction by a competent authority
PARKASH SINGH BADAL v. STATE OF PUNJAB [PASA YAT, J.] 219
who would he able to judge the action of the public servant before A
removing the bar, by granting sanction, to the taking of the cognizance
of offences by the court against the public servant. Therefore, it
unquestionably follows that the sanction to prosecute can he given
by an authority competent to remove the public servant from the
office which he has misused or abused because that authority alone B
would be able to know whether there has been a misuse or abuse of
the office by the public servant and not some rank outsider. By a
catena of decisions, it has been held that the authority entitled to
grant sanction must apply its mind to the facts of the case, evidence
collected and other incidc.ntal facts before according sanction. A
grant of sanction is not an idle formality but a solemn and sacrosanct C
act which removes the umbrella of protection of Government servants
against frivolous prosecutions and the aforesaid requirements must
therefore, be strictly complied with before any prosecution could be
launched against public servants. (See Mohd. Iqbal Ahmad v. State
of A.P.,) [1979] 2 SCR 1007). The Legislature advisedly conferred D
power on the authority competent to remove the public servant from
the office to grant sanction for the obvious reason that that authority
alone would be able, when facts and evidence ·are placed before him,
to fudge whether a serious offence is committed or the prosecution
is either frivolous or speculativt. That authority alone would be
competent to judge whether on the facts alleged, there has been an E
abuse or misuse of office held by the public servant. That authority
would he in a position to know what was the power conferred on the
office which the public servant holds, how that power could he
abused for corrupt motive and whether prima facie it has been so
done. That competent authority alone would know the nature and
functions discharged by the public servant holding the office and F
whether the same has been abused or misused. It is the vertical
hierarchy between the authority comp~tent to remove the public servant
from that office and the nature of the office he by the public servant
against whom sanction is sought which would indicate a hierarchy
and which would therefore, permit inference o knowledge about the G
functions and duties of the office and its misuse or abuse by the
public servant. That is why the Legislature clearly provided that that
authority alone would be competent to grant', sanction which is
entitled to remove the public servant against whom sanction is sought
from the office.
H
220 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A 24. Now ifthe public servant holds two offices and he is accused
of having abused one and from which he is removed but
continues to hold the other which is neither alleged to have been
used nor abused, is a sanction of the authority competent to
remove him from the office which is neither alleged or shown to
have been abused or misused necessary? The submission is that
B if the harassment of the public servant by a frivolous prosecution
and criminal waste ofhis time in law courts keeping him away
from discharging public duty, are the objects underlying Section
6, the same would be defeated if it is held that the sanction of
the latter authority is not necessary. The submission does not
c commend to use. We fail to see how the competent authority
entitled to remove the public servant from an office which is
neither alleged to have been used or abused would be able to
decide whether the prosecution is frivolous or tendentious. An
illustration was posed to the learned Counsel that a Minister who
is indisputably a public servant greased his palms by abusing his
__D office as Minister, and then ceased to hold the office before the
court was called upon to take cognizance of the offence against
him and therefore, sanction as contemplated by Section 6 would
not be necessary; but if after committing the offence and before
the date of taking of cognizance of the offence, he was elected
E as a Municipal President in which capacity he was a public
servant under the relevant Municipal law, and was holding that
office on the date on which court proceeded to take cognizance
of the offence committed by him as a Minister, would a sanction
be necessary and that too of that authority competent to remove
him from the office of the Municipal President. The answer was-
F in affirmative. But the very illustration would show that such
cannot be the law. Such an interpretation of Section 6 would
render it as a shield to an unscrupulous public servant. Someone
interested in protecting may shift him from one office of public
servant to another and thereby defeat the process of law. Ode
can legitimately envisage a situation wherein a person may hold
G
a dozen different offices, each one clothing him with the status
of a public servant under Section 21 iPC and even if he has
abused only one office for which either there is a valid sanction
to prosecute him or he has ceased to hold that office by the time
court was called upon to take cognizance, yet on this assumption,
H sanction of 11 different competent authorities each of which was
PARKASH SINGH BADAL v. STATE OF PUNJAB [PASAYA T, J.] 221
entitled to remove him from 11 different public offices would be A
necessary before the court can take cognizance of the offence
committed bysuch public servant/while abusing one office which
he may have ceased to hold. Such an interpretation in contrary
to all canons of construction and leads to an absurd and product
which of necessity must be avoided. Legislation must at all
costs be interpreted in such a way that it would not operate as
B
a rougue's charter. (See Davis & Sons Ltd. v. Atkins, [1977]
Imperial Court Reports, 662)
xx xx xx
26. Therefore upon a true construction of Section 6, it is implicit C
therein that sanction of that competent authority alone would be
necessary which is competent to remove the public servant from the
office which he is alleged to have misused or abused for corrupt
motive and for which a prosecution is intended to be launched
against him".
D
Para 18 of the said judgment is also of considerable importance. It
reads as follows:
"18. Re. (a) The 1947 Act was enacted, as its long title shows, to
make more effective provision for the prevention of bribery and
corruption. Indisputably, therefore, the provisions of the Act must E
receive such construction at the hands of the court as would advance
the object and purpose underlying the Act and at any rate not defeat
it. If the words of the statute are clear and unambiguous, it is the
plainest duty of the court to give effect to the natural meaning of the
words used in the provision. The question of construction arises F
only in the event of an ambiguity or the plain meaning of the words
used in the statute would be self-defeating. The court is entitled to
ascertain the intention of the legislature to remove the ambiguity by
construing the provision of the statute as a whole keeping in view
what was the mischief when the statute was enacted and to remove
which the legislature enacted the statute. This rule of construction G
is so universally accepted that it need not be supported by precedents.
} Adopting this. rule of construction, whenever a question of
construction arises upon ambiguity or where two views are possible
of a provision, it would be the duty of the court to adopt that
construction which would advance the object underlying the Act, H
222 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A namely, to make effective provision for the prevention of bribery and
corruption and at any rate not defeat it."
As is clear from a bare reading of the paragraph, this Court adopted a
construction which is based on the avoidance of mischief rule. That being so,
the plea that the effect of Section 6(2) of the .Pld Ac~ was not kept in view
B does not merit acceptance. Though a mere reference to a provision in all cases
may not in all cases imply consciousness as to the effect of that provision
the case at hand does not fall to that category. In this case not only was
there reference to that provision, but also this Court adopted a construction
which kept in view the object of the statute and the need for interpretation
C in a particular way. Foundation for the interpretation is found in para 24 of
the judgment. With reference to Davis & Sons Ltd. v. Atkins (1977 Imperial
Court Report 662) it was held that legislation must at all costs be interpreted
in such a way that it would not operate as a rogue's charter.
In Habibul/a Khan v. State of Orissa and Anr., [1995)2 SCC 437 it was
D held was as follows:
"12. However, it was contended that while the Governor had given
sanction to prosecute the Chief Minister when he continued to be an
MLA in the case of R.S. Nayak v. A.R. Antulay, the question whether
the sanction was necessary to prosecute an MLA as a public servant
E did not arise. It was, therefore, contended that although the offence
alleged to have been committed was during the appellants' tenure as
Ministers, the appellants continued to be MLAs and, therefore, as
public servants on the day of the launching of prosecution and hence
sanction of the Governor under Article 192 of the Constitution was
necessary. This question has also been answered in R.S. Nayak v.
F A.R. Antulay. Referring to this Court's decision in State (S.P.E.,
Hyderabad) v. Air Commodore Kai/ash Chand this Court held: (SCC
pp. 208-09, paras 25-26):
"We would however, like to make it abundantly clear that if the two
d.!cisions purport to lay down that even if a public servant has ceased
G to hold that office as public servant which he is alleged to have
abused or misused for corrupt motives, but on the date of taking
cognizance of an offence alleged to have been committed by him as
a public servant which he ceased to be and holds an entirely different
public office which he is neither alleged to have misused or abused
H for· corrupt motives, yet the sanction of authority competent to remove
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.} 223
him from such latter office would be necessary before taking A
cognizance of the offence alleged to have been com!llitted by the
public servant while holding an office which he is alleged to have
abused or misused and which he has ceased to hold, the decisions
in our opinion, do not lay down the correct Jaw and cannot be
accepted as making a correct interpretation of Section 6.
B
Therefore, upon a true construction of Section 6, it is implicit
therein that sanction of that competent authority alone would be
necessary which is competent to remove the public servant from the
office which he is alleged to have misused or abused for corrupt
motive and for which a prosecution is intended to be launched against C
him."
The principle of immunity protects all acts which the public servant has
to perform in the exercise of the functions of the Government. The purpose
for which they are performed protects these acts from criminal prosecution.
; However, there is an exception. Where a criminal act is performed under the D
colour of authority but which in reality is for the public servant's own
pleasure or benefit then such acts shall not be protected under the doctrine
of State immunity.
In other words, where the act performed under the colour of office is
for the benefit of the officer or for his own ple11Sure Section 19(1) will come E
in. Therefore, Section 19(1) is time and offence related.
This Court in Shreekantiah Ramayya Munipalli v. The State ofBombay,
reported in (1955) 1 SCR 1177 at pages 1186-1187 held as follows:
"We have therefore first to concentrate on the word "offence". p
Now an offence seldom consists of a single act. It is usually
composed of several elements and, as a rule, a whole series of acts
must be proved before it can be established. In the present case, the
elements alleged against the second accused are, first, that there was
an "entrustment" and/or "dominion"; second, that the entrustment G
and/or dominion was "in his capacity as a public servant"; third, that
there was a "disposal"; and fourth, that the disposal was "dishonest".
Now it is evident that the entrustment and/or dominion here were in
an official capacity, and it is equally evident that there could in this
case be no disposal, lawful or otherwise, save by an act done or
H
224 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A purporting to be done in an official capacity. Therefore, the act
complained of, namely the disposal, could not have been done in any
other way. If it was innocent, it was an official act; if dishonest, it was
the dishonest doing of an official act, but in either event the act was
official because the second accused could not dispose of the goods
save by the doing of an official act, namely officially permitting their
B disposal; and that he did. He actually permitted their release and
purported to do it in an official capacity, and apart from the fact that
he did not pretend to act privately, there was no other way in which
he could have done it. Therefore, whatever the intention or motive
behind the act may have been, the physical part of it remained
c unaltered, so if it was official in the one case it was equally official
in the other, and the only difference would lie in the intention with
which it was done : in the one event, it would be done in the
discharge of an official duty and in the other, in the purported discharge
of it.
D The act of abetment alleged against him stands on the same
footing, for his part in the abetment was to permit the disposal of the
goods by the doing of an official act and thus "wilfully suffer"
another person to use them dishonestly : section 405 of the Indian
Penal Code. In both cases, the "offence" in his case would be
incomplete without proving the official act. "
E
(underlined for emphasis)
The main contention advanced by Shri Venugopal Learned senior
counsel appearing for the appellant is that a public servant who continues
to remain so (on transfer) has got to be protected as long as he continues
..
I
F to hold his office. According to the learned counsel, even if the offending act
is committed by a public servant in his former capacity and even if such a
public servant has not abused his subsequent office still such a public
servant needs protection of Section 19(1) of the Act. According to the
learned counsel, the judgment of this Court in R.S. Nayak 's case (supra)
G holding that the subsequent position of the public servant to be unprotected
was erroneous. According to the learned counsel, the public servant needs
protection all throughout as long as he continues to be in the employment.
The plea is clearly untenable as Section 19(1) of the Act is time and
offence related.
H
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.] 225
Section 19( I) of the Act has been quoted above. A
The underlying principle of Sections 7, 10, 11, 13 and 15 have been
noted above. Each of the above Sections indicate that the public servant
taking gratification (S. 7), obtaining valuable thing without consideration (S.11 ),
committing acts of criminal misconduct (S.13) are acts performed under the
colour of authority but which in reality are for the public servant's own B
pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts.
Therefore, if a public servant in his subsequent position is not accused of
any such criminal acts then there is no question of invoking the mischiefrule.
Protection to public servants under Section 19(l)(a) has to be confined to the
time related criminal acts performed under the colour or authority for public C
servant's own pleasure or benefit as categorized under Sections 7, I 0, 11, 13
and 15. This is the principle behind the test propounded by this court, namely,
the test of abuse of office.
Further, in cases where offences under the Act are concerned the effect
of Section 19 dealing with question of prejudice has also to be noted. D
In Balakrishnan Ravi Menon v. Union of India (SLP (Crl.) No.3960 of
2002 decided on 17.9.2002 a similar plea was rejected. It was inter alia held
as follows:
"Hence, it is difficult to accept the contention raised by U.R. Lalit, the E
learned senior counsel for the petitioner that the aforesaid finding
given by this Court in Antulay's case is obiter.
Further, under Section 19 of the PC Act, sanction is to be given by
the Government or the authority which would have been competent
to remove the public servant from his office at the time when offence F
was alleged to have been committed. The question of obtaining
sanction would arise in a case where the offence has been committed
by a public servant who is holding the office and by misusing or
abusing the powers of the office, he has committed the offence. The
word 'office' repeatedly used in Section 19 would mean the 'office'
which the public servant misuses or abuses by corrupt motive for G
which he is to be prosecuted.
xx xx
Clauses (a) and (b) of sub-section (1) specifically provide that in case
of a person who is employed and is not removable from his office by H
226 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A the Central Government or the State Government, as the case may be,
sanction to prosecute is required to be obtained either from the
Central Government or the State Government. The emphasis is on the
words "who is employed" in connected with the affairs of the Union
or the State Government. If he is not employed then Section 19
nowhere provides for obtaining such sanction. Further, under sub-
B section (2) the question of obtaining sanction is relatable to the time
of holding the office when the _offence was alleged to have been
committed. In case where the person is not holding the said office as
he might have retired, superannuated, discharged or dismissed then
the question of removing would not arise."
c The effect of sub-sections (3) and (4) of Section 19 of the Act are of
considerable significance. In Sub-Section (3) the stress is on "failure of
justice" and that too "in the opinion of the Court". In sub-section (4), the
stress is on raising the plea at the appropriate time. Significantly, the "failure
of justice" is relatable to error, omission or irregularity in the sanction.
D
-
Therefore, mere error, omission or irregularity in sanction is considered fatal
unless it has resulted in failure of justice or has been occasioned thereby.
Section 19( I) is a matter of procedure and does not go to root of jurisdiction
as observed in para 95 of the Narasimha Rao 's case (supra). Sub-section
(3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the
E Old Act (Section 19(2) of the Act) question relates to doubt about authority
to grant sanction and not whether sanction is necessary.
In Halsbu~'s Laws of England, 4th Edn., Vol. 26 it is stated:
"A decision is given per incuriam when the court has acted_ in ignorance
of a previous decision of its own or of a court of coordinate jurisdiction
F which covered the case before it, in which case it must decide which
case to follow; or when it has acted in ignorance of a House of Lords
decision, in which case it must follow that decision; or when the
decision is given in ignorance of the terms of a statute or rule having
statutory. force."
G
In Govt. ofA.P. v. B. Satyanarayana Rao, [2000] 4 SCC 262 it has been
held as follows:
"The rule of per incuriam can be applied where a court C'mits to
consider a binding precedent of the same court or the superior court
rendered on the same issue or where a court omits to consider any
H
PARKASH SINGH BADALv. STATE OF PUNJAB [PASAYAT,J.] 227
statute while deciding that issue." A
"Jncuria" literally means "carelessness". In practice per incuriam is
taken to mean per ignoratium. English courts have developed this principle
in relaxation of the rule of stare decisis. The "quotable in law" as held in
Young v. Bristol Aeroplane Co. Ltd, [1944] 2 All ER 293 is avoided and
ignored if it is rendered "in ignoratium of a statute or other binding authority". B
Same has been accepted, approved and adopted by this .Court while interpreting
Article 141 of the Constitution which embodies the doctrine of precedents as
a matter of law. The above position was highlighted in State of U.P. v.
Synthetics and Chemicals Ltd, [1991] 4 SCC 139. To perpetuate an error is
no heroism. To rectify it is the compulsion of the judicial conscience. C
The above position was highlighted in Babu Parasu Kaikadi (dead)
by Lrs. v. Babu (dead) thr. Lrs., [2004] l SCC 681 and Sunita Devi v. State
of Bihar and Anr., [2005) 1 SCC 608.
As regards applicability of Section 197 of the Code,. the position in law D
has been elaborately dealt with in several cases.
In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr., AIR (1988) SC
257, this Court while emphasizing on the balance between protection to the
• officers and the protection to the citizens observed as follows:-
"It is necessary to protect the public servants in the discharge of E
their duties. In the facts and circumstances of each case protection
of public officers and public servants functioning in discharge of
official duties and protection of private citizens have to be balanced
by finding out as to what extent and how far is a public servant
working in discharge of his duties or purported discharge of his F
duties, and whether the public servant has exceeded his limit. It is true
that Section 196 states that no cognizance can be taken and even after
cognizance having been taken if facts come to light that the acts
complained of were done in the discharge of the official duties then
the trial may have to be stayed unless sanction is obtained. But at the G
same time it has to be emphasised that criminal trials should not be
stayed in all cases at the preliminary stage because that will cause
great damage to the evidence."
The protection given under Section I97 is to protect responsible public
servants against the institution of possibly vexatious criminal proceedings for H
228 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A offences alleged to have been committed by them while they are acting or
purporting to act as public servants. The policy of the legislature is to afford
adequate protection to public servants to ensure that they are not prosecuted
for anything done by them in the discharge of their official duties without
reasonable cause, and if sanction is granted, to confer on the Government,
if they choose to exercise it, complete control of the prosecution. This
B protection has certain limits and is available only when the alleged act done
by the public servant is reasonably connected with the discharge of his
official duty and is not merely a cloak for doing the objectionable act. If in
doing his official duty, he acted in excess of his duty, but there is a reasonable
connection between the act and the performance of the official duty, the
C excess will not be a sufficient ground to deprive the public servant from the
protection. The question is not as to the nature of the offence such as
whether the alleged offence contained an element necessarily dependent
upon the offender being a public servant, but whether it was committed by
a public servant acting or purporting to act as such in the discharge of his
official capacity. Before Section 197 can be invoked, it must be shown that
D the official concerned was accused of an offence alleged to have been
committed by him while acting or purporting to act in the discharge of his
official duties. It is not the duty which requires examination so much as the
act, because the act can be performed both in the discharge of the official
duty as well as in dereliction of it. The act must fall within the scope and
E range of the official duties of the public servant concerned. It is the quality
of the act which is important and the protection of this section is available
if the act falls within the scope and range of his official duty. There cannot
be any universal rule to determine whether there is a reasonable connection
between the act done and the official duty, nor is it possible to lay down any
such rule. This aspect makes it clear that the concept of Section 197 does not
F immediately get attracted on institution of the complaint case.
At this juncture, we may refer to P. Arulswami v. State of Madras, AIR
( 1967) SC 776, wherein this Court held as urider:
" ... It is not therefore every offence committed by a public servant
G that requires sanction for prosecution under Section I 97( I) of the
Criminal Procedure Code; nor even every act done by him while he
>
is actually engaged in the performance of his official duties; but if the
act complained of is directly concerned with his official duties so that,
if questioned, it could be claimed to have been done by virtue of the
office, then sanction would be necessary. It is quality of the act that
H
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.) 229
is important and if it falls within the scope and range of his official A
duties the protection contemplated by Section I 97 of the Criminal it
is unconnected with the filed official duty there can be no protection.
It is only when it is the either within the scope of the official duty or
in excess of it that the protection is claimable.
Section I 97(1) and (2) of the Code reads as under: B
"197. (I) 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 C
except with the previous sanction -
(a) in the case of 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;
D
(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.
* * *
(2) No Court shall take cognizance of any offence alleged to have
E
been committed by any member of the Armed Forces of the Union
while acting or purporting to act in the discharge of his official duty,
except with the previous sanction of the Central Government."
The section falls in the chapter dealing with conditions requisite for initiation F
of proceedings. That is if the conditions mentioned are not made out or are
absent then no prosecution can be set in motion. For instance no prosecution
can be initiated in a Court of Sessions under Section 193, as it cannot take
cognizance, as a court of original jurisdiction, of any offence unless the case
has been committed to it by a Magistrate or the Code expressly provides for
it. And the jurisdiction of a Magistrate to take cognizance of any offence is G
provided by Section 190 of the Code, either on receipt of a complaint, or upon
a police report or upon infonnation received from any person other than
police officer, or upon his knowledge that such offence has been committed.
So far public servants are concerned the cognizance of any offence, by any
court, is barred by Section 197 of the Code unless sanction is obtained from H
230 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A the appropriate authority, ifthe offence, alleged to have been committed, was
in discharge of the official duty. The section not only specifies the persons
to whom the protection is afforded but it also specifies the conditions and
circumstances in which it shall be available and the effect in law if the
conditions are satisfied. The mandatory character of the protection afforded
to a public servant is brought out by the expression, 'no court shall take
B cognizance of such offence except with the previous sanction'. Use of the
words, 'no' and 'shall' make it abundantly clear that the bar on the exercise
of power by the court to take cognizance of any offence is absolute and
complete. Very cognizance is barred. That is the complaint, cannot be taken
notice of. According to Black's Law Dictionary the word 'cognizance' means
C 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine
causes'. In common parlance it means 'taking notice of. A court, therefore,
is precluded from entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused of an offence
alleged to have committed during discharge of his official duty.
D Such being the nature of the provision the question is how should the
expression, 'any offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty', be understood?
What does it mean? 'Official' according to dictionary, means pertaining to an
office, and official act or official duty means an act or duty done by an officer
E in his official capacity. In B. Saha and Ors. v. MS. Kochar, [1979] 4 SCC 177,
it was held : (SCC pp. 184-85, para 17)
"The words 'any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty'
employed in Section 197(1) of the Code, are capable of a narrow as
F well as a wide interpretation. If these words are construed too narrowly,
the section will be rendered altogether sterile, for, 'it is no part of an ,
official duty to commit an offence, and never can be'. In the wider '
sense, these words will take under their umbrella every act constituting
{
G
an offence, committed in the course of the same transaction in which
the official duty is performed or purports to be performed. The right
approach to the import of these words lies between two extremes.
While on the one hand, it is not every offence committed by a public
' •
servant while engaged in the performance of his official duty, which
is entitled to the protection of Section 197 ( l), an act constituting an
offence, directly and reasonably connected with his official duty will
require sanction for prosecution under the said provision."
H
,,.
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.) 231
Use of the expression, 'official duty' implies that the act or omission must A
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 ~ pqblic servant in
service but restricts its scope of operation to only those acts or omissions
which are done by a public servant in discharge of official duty.
B
·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 cofour of office. Official duty therefore implies that the act or
omission must have been done by the public servant in course of his service
and such act or omission must have been performed as part of duty which C
further must have been official in nature. The Section has, thus, to be construed
strictly, while determining its applicability to any act or omission in course of
service. Its operation has to be limited to those duties which are discharged
in course of duty. But once any act or omission has been found to have been
committed by a public servant in discharge of his duty then it must be given
liberal and wide construction so far its official nature is concerned. For D
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 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 E
public servant. Otherwise the entire purpose of affording protection to a
public servant without sanction shall stand frustrated. For instance a police
officer in discharge of duty may have to use force which may be an offence
for the prosecution of which the sanction may be necessary. But if the same
officer commits an act in course of service but not in discharge of his duty
and without any justification therefor then the bar under Section 197 of the F
Code is not attracted. To what extent an act or omission performed by a public
servant in discharge of his duty can be deemed to be official was explained
by this Court in Matajog Dobey v. H. C. Bhari, AIR (1956) SC 44 thus:
"The offence alleged to have been committed (by the accused) must
have something to do, or must be related in some manner with the G
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 performance of his duty."
H
....
232 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A If on facts, therefore, it is prima facie found that the act or omission
for which the accused was charged had reasonable connection with discharge
of his duty then it must be held to be official to which applicability of Section
I 97 of the Code cannot be disputed.
The above position was highlighted in State of H.P. v. MP. Gupta,
B [2004] 2 SCC 349, State of orissa through Kumar Raghvendra Singh & Ors.
v. Ganesh Chandra Jew, JT (2004) 4 SC 52, Shri S.K. Zutshi and Anr. v. Shri
Bimal Debnath and Anr., JT (2004) 6 SC 323, K. Kalimuthu v. State by DSP, r
[2005] 4 SCC 512 and Rakesh Kumar Mishra v. The State of Bihar and Anr.,
[2006] 1 sec 557.
c In Rakesh Kumar Mishra 's case (supra) it was inter alia observed as
follows:
"14. Jn S.A. Venkataraman v. The State, AIR (1958) SC 107 and in C.
R. Bansi v. The State of Maharashtra, [1970] 3 SCC 537 this Court has
held that:
D
"There is nothing in the words used in Section 6( 1) to even
remotely suggest that previous sanction was necessary before a
court could take cognizance of the offences mentioned therein in
the case of a person who had ceased to be a public servant at
the time the court was asked to take cognizance, although he had
E
been such a person at the time the offence was committed." .
..,
Xx
16. When the newly-worded section appeared in the Code (Section
I 97) with the words "when any person who is or was a public servant"
F (as against the truncated expression in the corresponding provision
of the old Code of Criminal Procedure, I 898) a contention was raised
before this Court in Kalicharan Mahapatra v. State of Orissa, [1998]
6 SCC 41 I that the legal position must be treated as changed even in
regard to offences under the Old Act and New Act also. The said
contention was, however, repelled by this Court wherein a two-Judge
G Bench has held thus:
"A public servant who committed an offence mentioned in the
Act, while he was a public servant, can be prosecuted with the
sanction contemplated in Section 197 of the Act if he continues
H
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.] 233
to be a public servant when the court takes cognizance of the A
offence. But if he ceases to be a public servant by that time, the
court can take cognizance of the offence without any such
sanction."
17. The correct legal position, therefore, is that an accused facing
prosecution for offences under the Old Act or New Act cannot claim B
any immunity on the ground of want of sanction, if he ceased to be
a public servant on the date when the court took cognizance of the
said offences. But the position is different in cases where Section 197
of the Code has application.
18. Section 197(1) provides that when any person who is or was a C
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 the case of a person ~ho is D
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 and (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,
or the State Government. E
19. We may mention that the Law Commission in its 4lst Report in
paragraph 15.123 while dealing with Section 197, as it then stood,
observed:
"it appears to us that protection under the Section is needed as
F
much after retirement of the public servant as before retirement.
The protection afforded by the Section would be rendered illusory
if it were open to a private person harbouring a grievance to wait
until the public servant ceased to hold his official position, and
then to lodge a complaint. The ultimate justification for the
protection conferred by Section 197 is the public interest in G
seeing that official acts do not lead to needless or vexatious
prosecution. It should be left to the Government to determine
from that point of view the question of the expediency of
prosecuting any public servant".
H
234 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A It was in pursuance of this observation that the expression 'was'
come to be employed after the expression 'is' to make the sanction
applicable even in cases where a retired public servant is sought to
be prosecuted."
In P.K. Pradhan v. State of Sikkim, [2001] 6 SCC 704 it has, inter alia,
B held as follows:
"The le!;islative mandate en grafted in sub-section (1) of Section
197 debarring a court from taking cognizance of concerned in a case
where the acts complained of are alleged tQ have been committed by
a public servant in discharge of his official duty or purporting to be
c 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 prohibition imposed
by the Statute from taking cognizance. Different tests have been laid
down in decided cases to ascertain the scope and meaning of the
D 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." The offence alleged to have
been committed must have something to do, or must be related in
some manner, with the discharge of official duty. No question of
sanction can arise under Section 197, unless the act complained .of is
E an offence; the only point for 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 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
F
act and the official duty are so interrelated that one can postulate
reasonably that it was done by the accused in the performance of
official duty, though, possibly I excess of the needs and requirements
of the situation."
G 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.
H
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.] 235
So far as the question about the non application of mind in the sanction A
or absence of sanction is concerned, this has been answered in the first
question i.e. where the public servant has ceased to be a public servant since
he has ceased to hold the office where the alleged offence is supposed to
have been taken place, the other questions really become academic.
A plea has been taken that charge sheet is a bundle of confusions and B
no definite material is placed on record to substantiate the allegation of
commission of any offence. This assertion has been refuted by learned counsel
for the respondent-State with regard to various definite materials indicating
commission of offence. Particular reference has been made to the following:
Pages 396-397, Volume 3 discloses how Rs.9 crores were recycled by C
Badal family through the accounts of K.S. Siddhu into the project ORBIT
Resort.
Pages 398-399, 404-407, 416-420, 448 establishes facts showing recycling
of several crores of rupees with the aid of Narottam Singh Dhillon, an NRI D
and close to Badal family. Illegally earned money used to be deposited in the
account of Narottam Singh Dhillon who used to then get FDRs issued and
thereafter used to take loans against the FDRs. His bank account ·shows
operation during 1997-2002. This loan money has been given to Parkash
Singh Badal, S. Kaur and Sukhbir Singh Badal as loans which have never
been returned. This recyling involved making of fake entries in the bank. E
There is evidence showing taking of gratification in transfers, postings and
promotions.
Pages 430-434 show purchases of property and shares in the name of
Satnam Singh and Namta Singh who were close to Badal family and the
transfer of their interest to SB in the year 200 I. F
Pages 489-494: Evidence collected shows amassing ofbenami property
in the name of Shri Harbans Lal and his family members who are close to
Badal family.
Pages 499-502: reveals routing of black money into the transport G
companies being run by the Badal family.
Pages 553-566 present a detailed analysis of the assets of Badal family
generated during the check period. Total disproportionate asset is to the tune
of Rs.78.39 crores. But disproportion could not be explained. Present market H
236 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A worth is over Rs.500 crores.
At pages 571-580 there is evidence to show flow of money from abroad.
At page 582, it is specifically concluded that Parkash Singh Badal
colluded with his wife and son and other persons and committed corruption
B at large scale and huge wealth and money was amazed which is more than
their disclosed income.
Page 611 onwards relates to only of the income and ~ealth tax returns
of Badal family during the check period. Thus all relevant facts disclosing the
offences committed by Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal
C in collusion with each other and with other persons is clearly set out in the
charge sheet and the same was submitted to the Speaker along with relevant
materials. The charge sheet is neither jumbled nor unclear and sanctioning
authority applies his mind.
D As regards the plea relating to non-definite offence, a few provisions
of the Code need to be noted. Sections 173, 215 and 220 reads as follows:
173. Report of police officer on completion of investigation.-{!)
Every investigation under this Chapter shall be completed without
unnecessary delay.
E (2) (i) As soon as it is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance
of the offence on a police report, a report in the form prescribed by
the State Government, stating-
(a) the names of the parties;
F
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
(d) whether any offence appears to have been committed and, if so,
G
by whom;
(e) whether the accused has been arrested;
(t) whether he has been released on his bond and, if so, whether with
or .without sureties;
H
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.] 237
(g) whether he has been forwarded in custody under section 170. A
(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the
person, if any whom the infonnation relating to the commission of the
offence was first given.
B
(3) Where a superior officer of police has been appointed under
section 158, the report, shall, in any case in which the State Government
by general or special order so directs, be submitted through that
officer, and he may, pending the orders of the Magistrate, direct the
officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section
c
that the accused has been released on his bond, the Magistrate shall
make such order for the discharge of such bond or otherwise as he
thinks fit.-
(5) When such report is in respect of a case to which section 170 D
applies, the police officer shall forward to the Magistrate along with
the report
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the
Magistrate during investigation; E
(b) the statements recorded under section 161 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(6) If the. police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the proceeding or F
that its disclosure to the accused is not essential in the interests of
justice and is in~xpedient in the public interest, he shall indicate that
part of the statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the accused and
stating his reasons for making such request. G
(7) Where the police officer investigating the case finds it convenient
so to do, he may furnish to the accused copies of all or any of the
documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further H
investigation in respect of an offence after a report under sub-section
238 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A (2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in l:harge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a
further report or reports regarding, such evidence in the form prescribed;
and the provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in relation to
B a report forwarded under sub-section (2).
215. Effect of errors.-No error in stating either the offence or the
particulars required to be stated in the charge, and no omission to
state the offence or those particul.ars, shall be regarded at any stage
of the case as material, unless the accused was in fact misled by such
c error or omission, and it has occasioned a failure of justice.
220. Trial for more than one offence.--{l) If, in one series of acts so
connected together as to form the same transaction, more offences
than one are committed by the same person, he may be charged with,
and tried at one trial for, every such offence.
D
(2) When a person charged with one or more offences of criminal
breach of trust or dishonest misappropriation of properly as provided
in sub-section (2) of section 212 or in sub-section (I) of section 219,
is accused of committing, for the purpose of facilitating or concealing
the commission of that offence or those offences, one or more offences
E
of falsification of accounts, he may be charged with, and tried at one
trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more
separate definitions of any law in force for the time being by which
F offences are defined or punished, the person accused of them may be
charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute when combined a different
offence, the person accused of them·may be charged with, and tried
G at one trial for the offence constituted by such acts when combined,
and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect section 71 of the
Indian Penal Code (45of1860).
Section 72 IPC is also relevant. Same reads as follows:
H
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.) 239
"72. Punishment of person guilty of one of several offences, the A
judgment stating that it is doubtful of which.-In all cases in which
judgment is given that a person is guilty of one of several offences
specified in the judgment, ·but that it is doubtful of which of these
offences, he is guilty, the offender shall be punished for the offence
for which the lowest punishment is provided if the same punishment B
is not provided for all".
The report in terms of Section 173 of the Code is in the nature of
information to the Magistrate. Statutory requirement is complied with if the
requisite information is given. It purports to be an opinion and therefore
elaborate details are not necessary. In K. Veeraswami v. Union of India and C
Ors., [1991] 3 SCC 655 it was held as follows:
"The charge sheet is nothing but a final report of police officer under
Section 173(2) of the Cr.P.C. The Section 173(2) provides that on
completion of the investigation the police officer investigating into a
cognizable offence shall submit a report. The report must be in the D
form prescribed by the State Government and stating therein (a) the
names of the parties; (b) the nature of the information; (c) the names
of the persons who appear to be acquainted with the circumstances
of the case; ( d) whether any offence appears to have been committed
and, if so, by whom (e) whether the accused has been arrested; (t)
whether he had been released on his bond and, if so, whether with E
or without sureties; and (g) whether he has been forwarded in custody
under Section 170. As observed by this Court in Satya Narain Musadi
and Ors. v. State of Bihar, [1980] 3 SCC 152; that the statutory
requirement of the report under Section 173(2) would be complied with
ifthe various details prescribed therein are included in the report. This F
report is an intimation to the magistrate that upon investigation into
a cognizable offence the investigating officer has been able to procure
sufficient evidence for the Court to inquire into the offence and the
necessary information is being sent to the Court. In fact, the report
under Section 173(2) purports to be an opinion of the investigating
officer that as far as he is concerned he has been able to procure. G
sufficient material for the trial of the accused by the Court. The report
is complete if it is accompanied with all the documents and statements
of witnesses as required by Section 175(5). Nothing more need be
stated in the report of the Investigating Officer. lt is also not necessary
that all the details of the offence must be stated. The details of the
H
240 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A offence are required to be proved to bring home the guilt to the
accused at a later stage i.e. in the course of the trial of the case by
adducing acceptable evidence."
Mere non-description of the offences in detail is really not material. At
the stage of framing charge it can be urged that no offence is made out.
B
With reference to the absence of allegations under Sections 8 and 9 of
the Act, it is submitted whether the charge sheet has reference to any
particular material referred to in it and the relevance of it is to be considered
at the time when the charge is framed. It would not be desirable to analyse
minutely the materials as at that stage the Court is primarily concerned with
C the question as to whether charge is to be framed in respect of any offence
and whether there prima facie appears existence of any material and not the
sufficiency of the materials. Therefore, the appe!lants' stand that the charge
sheet does not refer to any particular material cannot be accepted, more
particularly, in view of the specific materials referred to by learned counsel for
D the respondent-State.
It is the stand of the State that the appellant-Parkash Singh Badal was
the fulcrum around which the entire corruption was woven by the members
of his family and others and it was his office of Chief Minister-ship which
had been abused. Therefore, Sections 8 and 9 of the Ac~ would not be
E applicable to him and would apply only to his wife, son and others. It is the
stand of the appellants that in the documents filed only Section 13(1) has
been only mentioned and not the exact alleged infraction. It is to be noted
that the offence of criminal mis-conduct is defined in Section I 3. Five clauses
contained in the said provision represent different types of infraction under
F which the offence can be said to have been committed. If there is material to
show that the alleged offence falls in any of the aforesaid categories, it is not
necessary at the stage of filing of the charge sheet to specify as to which
particular clause covers the alleged offence. It is the stand of the respondent-
State that clauses (a), (b) (d) and (e) are all attracted and not clause (c).
Therefore, the sanctioning authority has rightly referred to Section I 3(1) and
G that does not make the sanction order vulnerable.
The sanctioning authority is not required to separately specify each of
the offence against the accused public servant. This is required to be doni::
at the stage of framing of charge. Law requires that before the sanctioning
authority materials must be placed so that the sanctioning authority can apply
H
PARKASH SINGH BADAL v. ST ATE OF PUNJAB [PASA YAT, J.] 241
his mind and take a decision. Whether there is an application of mind or not A
would depend on the facts and circumstances of each case and there cannot
be any generalized guidelines in that regard.
The sanction in the instant case related to offences relatable to Act.
There is a distinction between the absence of sanction and the alleged
invalidity on account of non application of mind. The former question can be B
agitated at the threshold but the latter is a question which has to be raised
during trial.
Great emphasis has been led on certain decisions of this Court to show
that even in relation to offences punishable under Section 467 and 468
sanction is necessary. The foundation of the position has reference to some C
offences in Rakesh Kumar Mishra 's case (supra). That decision has no
relevance because ultimately this Court has held that the absence of search
warrant was intricately with the making of search and the allegations about
alleged offences had their matrix on the absence of search warrant and other
circumstances had a detenninative role in the issue. A decision is an authority D
for what it actually decides. Reference to a particular sentence in the context
of the factual scenario cannot be read out of context.
The offence of cheating under Section 420 or for that matter offences
relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination
by their very nature be regarded as having been committed by any public E
servant while acting or purporting to act in discharge of official duty. In such
cases, official status only provides an opportunity for commission of the
offence.
In Baijnath v. State of MP., [1966] SCR 210 the position was succinctly
stated as follows: F
" ...... it is the quality of the Act that is important and if it falls within
the scope and range of his official duty the protection contemplated
by Section 197 of the Code of Criminal Procedure will be attracted."
So far as the appellant Sukhbir Singh Badal is concerned, the stand is G
that he being a member of the Parliament is a public servant and cannot be
charged with offences under Sections 8 and 9 of the Act. His contention is
that Sections 8, 9, 12, 14 and 24 of the Act are applicable to private persons
and not to public servants. The opening word of Sections 8 and 9 is "whoever".
The expression is very wide and would also cover public servants accepting H
242 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A gratification as a motive or reward for inducing any other public servant by
corrupt or illegal means. Restricting the operation of the expression by curtailing
the ambit of Sections 8 and 9 and confining to private persons would not
reflect the actual legislative intention.
B If Section 8 is analytically dissected then it would read as below:
(i) Whoever
(ii) Accepts or obtains gratification from any person
(iii) For inducing any public servant (by corrupt or illegal means)
C (iv) To render or attempt to render any services or disservice (etc.)
(v) With any public servant (etc.)
So far as Section 9 is concerned the only difference is that inducement
is "by the exercise of personal influence". The above analysis shows that
D public servants may be involved.
Sections 8 and 9 ofthe Act.correspond to Sections 1~2 and 163 oflPC.
During the currency of Old Act, Sections ! 61 to l 65A of IPC were operating.
This Court had occasion to examine Section 5(1)(d) of the Old Act and
Sections 161 and 162 IPC. It has been held that they constitute different
E offences. (See Ram Krishan and Anr. v. State of Delhi, AIR (1956) SC 476]
In view of the above, it would not be permissible to contend that a
public servant would be covered by Section 13(1)(d) (similar to section 5(1)(d)
of Old Act) and ·therefore the public servant would not be covered by
Sections 8 and 9 of tlie Act. The offences under Section 13(1)(d) and the
F offences under Sections 8 and 9 of Act are different and separate. Assuming,
Section 13(1){d){i) covers public servants who obtain for 'himself or for any
other person' any valuable thing or pecuniary advantage by corrupt or illegal
means, that would not mean that he would not fall within the scope of
Sections 8 and 9. The ingredients are different. If a public servant accepts
G gratification for inducing any public servant to do or to forbear to do any
official act, etc. then he would fall in the net of Sections 8 and 9. In Section
13(l)(d) it is not necessary to prove that any valuable thing or pecuniary
advantage has been obtained for inducing any public servant.
Another difference is that Section 13( I)(d) envisages obtaining of any
H valuable thing or pecuniary advantage. On the other hand Sections 8 and 9
PARKASH SINGH BADAL v. STATE OF PUNJAB [PASA YAT, J.] 243
are much wider and envisages taking of "any gratification whatever". A
Explanation (b) of Section 7 is also relevant.
. The word 'gratification' is not restricted to pecuniary gratifications or
to gratifications estimable in money. Thus, Sections 8 and 9 are wider than
Section 13(1)(d) and clearly constitute different offences.
B
Section 24 envisages the making of a statement by a person in any
proceeding against the public servant for an offence under Sections 7 to 11
or Sections 13 and 15. It is clear from Section 24 that there can be a proceeding
against public servant for which offence under Sections 7 to 11 which includes
Sections 8 and 9. On the face of this provision, it cannot be contended that C
a public servant cannot be proceeded against Sections 8 and 9.
Great emphasis has been led by the appellants 6n some factual scenario
to show that the complainant was close to incumbent Chief Minister and he
has been rewarded subsequently for making the complaint. In essence, the
plea is that ma/a fldes are involved. This allegation of ma/a fldes is also D
linked with the so called confennent of power with the particular police station
at Mohali and confennent of jurisdiction on a particular Special Judge by
Notification dated 17.11.2003.
A plea of ma/a fldes has not only to be clearly pleaded but specifically
proved by adducing cogent evidence. Mere allegation and suspicions would E
not be sufficient. The person against whom ma/a fldes conduct is attributed
is interestingly not a party in the proceedings.
So far as the allegation that political opponent had lodged the complaint
is concerned, that itself is not .sufficient for the Court to interfere. When the
allegation is made, investigation is undertaken to find out whether there is F
any substance in the allegation. Merely because the political opponent was
the complainant that does not per se lead to an inference that the complaint
has to be thrown out or that no notice should be taken thereof.
Before dealing further whether the submissions ought to prevail, the
legal piinciples governing the registration of a cognizable offence and the G
investigation arising thereon need to be noted. Section 154(1) is the relevant
provision regarding the registration of a cognizable offence and that provision
reads as follows:
H
244 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A "154. Information in cognizable cases.-(!) Every information relating
to the commission of a cognizable offence, if given orally to an officer ·· ·
in charge of a police station, shall be reduced to writing by him or
under his direction, and be read over to the informant; and every
such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance
B thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in his behalf'.
The above sub-section corresponds to Section 154 of the Old Code
(Act of 1898 to which various amendments were made by Act 26of1955 and
C also to Section 154 of the Code of Criminal Procedure of 1882 (Act 10of1882)
except for the slight variation in that expression 'local government' had been
used in 1882 in the place of 'State Government'. Presently, on the
recommendations of the Forty-first Report of the Law Commission, the sub-
sections (2) and (3) have been newly added but we are not concerned with
those provisions as they are not relevant for the purpose of the disposal of
D this case except for making some reference at ·the appropriate places, if
necessitated. Section 154(1) regulates the manner of recording the first
information report relating to the commission of a cognizable offence.
The legal mandate enshrined in Section 154 (I) is that every information
relating to the commission of a 'cognizable offence' (as defined under section
E 2(c) of the Code) if given orally ( in which case it is to be reduced into writing)
or in writing to "an officer incharge of a police station" (within the meaning
of Section 2(o) of the Code) and signed by the informant should be entered
in a book to be kept by such officer in such form as the State Government
may prescribe which form is commonly called as "First Information Report"
p and which act of entering the information in the said form is known as
registration of a crime or a case.
At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the mandate
of Section 154 (I) of the Code, the concerned police officer cannot embark
G upon an enquiry as to whether the information, laid by the informant is
reliable and genuine or otherwise and refuse to register a case on the ground
that the information is not reliable or credible. On the other hand, the officer
in charge of a police station is statutorily obliged to register a case and then
to proceed with the investigation if he has reason to suspect the commission
H
PARKA SH SINGH BADAL v. ST ATE OF PUNJAB [PASA YAT, J.] 245
of an offence which he is empowered under Section 156 of the Code to A
investigate, subject to the proviso to Section 157 thereof. In case, an officer
in charge of a police station refuses to exercise the jurisdiction vested in him
and to register a case on the information of a cognizable offence reported and
thereby violates the statutory duty cast upon him, the person aggrieved by
such refusal can send the substance of the information in writing and by post
to the Superintendent of Police concerned who if satisfied that the information B
forwarded to him discloses a cognizable offence, should either investigate the
case himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by sub-section (3) of Section 154
of the Code.
It has to be noted that in Section 154(1) of the Code, the legislature in
c
its collective wisdom has carefully and cautiously used the expression
"information" without qualifying the same as in Section 41 (l )(a) or (g) of the
Code wherein the expressions, "reasonable complaint" and "credible
information" are used. Evidently, the non-qualification of the word
"information" in Section 154(1) unlike in Section 41(1)('1) and (g) of the Code D
may be for the reason that the police officer should not refuse to record an
information relating to the commission of a cognizable offence and to register
a case thereon on the ground that he is not satisfied with the reasonableness
or credibility of the information. In other words, 'reasonableness' or 'credibility'
of the said information is not a condition precedent for registration of a case. E
A comparison of the present Section 154 with those of the earlier Codes will
indicate that the legislature had purposely thought it fit to employ only the
word "information" without qualifying the said word. Section 139 of the Code
of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative
Council of India read that 'every complaint or information' preferred to an
officer incharge of a police station should be reduced into writing which F
provision was subsequently modified by Section 112 of the Code of 1872 (Act
X of 1872) which thereafter read that 'every complaint' preferred to an officer
incharge ofa police station shall be reduced in writing. The word 'complaint'
which occurred in previous two Codes of 1861 and 1872 was deleted and in
that place the word 'information' was used in the Codes of 1882 and 1898
which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An G
· overall reading of all the Codes makes it clear that the condition which is sine-
qua-non for recording a First Information Report is that there must be an
information and that information must disclose a cognizable offence.
H
246 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A It is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer incharge of a police station satisfying
the requirements of Section 154(1) of the Code, the said police officer has no ...
other option except to enter the substance thereof in the prescribed form, that
is to say, to register a case on the basis of such information.
B In this connection, it may be noted that though a police officer cannot
investigate a non-cognizable offence on his own as in the case of cognizable
offence, he can investigate a non-cognizable offence under the order of a
Magistrate having power to try such non-cognizable case or commit the same
for trial within the terms under Section 155(2) of the Code but subject to
C Section 155(3) of the Code. Further, under sub-section (4) to Section 155,
where a case relates to two offences to which at least one is cognizable, the
case shall be deemed to be a cognizable case notwithstanding that the other
offences are non-cognizable and, therefore, under such circumstances the
police officer can investigate such offences with the same powers as he has
while investigating a cognizable offence.
D
The next key question that arises for consideration is whether the
registration of a criminal case under Section 154(1) of the Code ipso facto
warrants the setting in motion of an investigation under Chapten XII of the
Code.
E Section 157(1) requires an Officer Inchargeofa Police Station who 'from
information received or otherwise' has reason to suspect the commissil!n of
an offence-that is a cognizable offence-which he is empowered to investigate
under Section 156, to forthwith send a report to a Magistrate empowered to
take cognizance of such offence upon a police report and to either proceed
F in person or depute any one of his subordinate Officers not being below such
rank as the State Government may, by general or special order, prescribe in
this behalf, to proceed to the spot, to investigate the facts and circumstances
of the case and if necessary, to take measures for the discovery and arrest
of the offender. This provision is qualified by a proviso which is in two parts
(a) .and (b). As per Clause (a) the Officer Incharge of a Police Station need
G not proceed in person or depute a subordinate officer to make an investigation
on the spot if the information as to the commission of any such offence is
given against any person by name and the case is not of a serious nature.
According to Clause (b), if it appears to the Officer Incharge of a Police
Station that there is no sufficient ground for entering on an investigation, he
H
/
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.] 247
shall not investigate the case. Sub-section (2) of Section 157 demands that A
in each of the cases mentioned in Claus<!s (a) and (b) of the proviso to Sub-
section (I) of Section 157, the Officer Incharge of the Police Station must state
in his report, required to be forwarded to the Magistrate his reasons for not
fully complying with the requirements of Sub-section (I) and when the police
officer decides not to investigate the case for the reasons mentioned in
Clause (b) of the proviso, he in addition to his report to the Magistrate, must B
forthwith notify to the informant, if any, in such manner as may be prescribed
by the State Government, the fact that he will not investigate the case or
cause the case to be investigated. Section 156(1) which is to be read in
conjunction with Section 157(1) states that any Officer lncharge of a Police
Station may without an order of a Magistrate, investigate any cognizable case C
which a Court having jurisdiction over the local area within the limits of the
concerned police station would have power to enquire into or try under
provisions of Chapter XHI. Section 156(3) vests a discretionary power on a
Magistrate empowered under Section 190 to order an investigation by a police
officer as contemplated in Section 156(1 ). It is pertinent to note that this
provision does not empower a Magistrate to stop an investigation undertaken D
by the police. (See State ofBihar andAnr. v. J.A.C. Sa/danha and Ors., [1980]
1 SCC 554) In that case, power of the Magistrate under Section 156(3) to direct
further investigation after submission of a report by the investigating officer
under Section 173(2) of the Code was dealt with. It was observed as follows:
"The power of the Magistrate under Section 156(3) to direct further
E
investigation is clearly an independent power and does not stand in
conflict with the power of the State Government as spelt out
hereinbefore. The power conferred upon the Magistrate under Section
156(3) can be exercised by the Magistrate even after submission of a
report by the investigating officer which would mean that it would be F
open to the Magistrate not to accept the conclusion of the
investigating officer and direct further investigation. This provision
does not in any way affect the power of the investigating officer to
further investigate the case even after submission of the report as
provided in Section 173(8)."
G
The above position has been highlighted in State of Haryana and Ors. v.
Bhajan Lal and Ors., [1992] Supp I SCC 335).
In State of Punjab and Anr. v Gurdial Singh and Ors., [1980] 2 sec
471 it was observed as follows:
H
248 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A " .... .If the use of the power is for the fulfilment of a legitimate object
the actuation or catalysation by malice is not legicidal."
At this stage it needs to be clarified that the obligation to register a case
is not to be confused with the remedy if same is not registered. Issue of the
remedy has been decided by this Court in several cases. (See Gangadhar
B Janardan Mhatre v. State of Maharashtra and Ors., [2004] 7 SCC 768)
The ultimate test therefore is whether the allegations have any substance.
An investigation should not be shut out at the threshold because a political
opponent or a person with political difference raises an allegation of commission
of offence. Therefore, the plea of malafides as raised cannot be maintained.
c
So far as conferment of jurisdiction with the police station over the
whole State is concerned, it appears that the same was created on 31.10.1994
by the then Government of Chandigarh and by order dated 20.4.1995 the
office of Superintendent of Police, Vigilance Flying Squad-I/Criminal
D Investigation Agency, Chandigarh was shifted to Police Station, Mohali. This
order continued to operate subsequently. As rightly contended by learned
counsel for the respondent-State, the fresh notification was issued creating
some more police stations qua other districts. It is pointed out that PS Mohali
falls within the Ropar district and within the area of Special Judge, Ropar as
was specified in consultation with the Punjab and Haryana High Court. The
E Special Judges are transferred by the High Court and, therefore, the allegation
of choosing any Special Judges with oblique motive is clearly without any
substance. The notification regarding the re-organization of the police station
with Police Station, Mohali having jurisdiction over the whole State of Punjab
was notified on 19.12.2002.
F At this juncture, it is relevant to note that allegations of impropriety
were made because of the Notification dated 17 .11.2003 relating to jurisdiction
of the Special Judge. A few relevant aspects need to be noted at this juncture.
The Court of Special Judge, Ropar was created by Notification dated 5.1.1990
of the State Government which was issued in consultation with the High
G Court for the area of Ropar District. Another Notification was issued on
5.9.2000 in consultation with the High Court. By this Notification, Sessions
Judges in the State of Punjab were appointed as Special Judges within their
respective districts. The Notification dated 31.10.1994 creating P.S., Chandigarh
with Statewide jurisdiction which was shifted to P.S., Mohali by order dated
20.4.1995 was already in existence when Sessions Judges were made Special
H Judges. There is no dispute about this fact.
- PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.]
The controversy revolves around the Notification dated 19.10.2002
249
regarding P.S., Mohali with Statewide jurisdiction. According to learned counsel
A
for the respondent-State it represents a continuity and there was no new
creation. So far as the Notification dated 17.11.2003 is concerned, undisputedly,
the expression used is "appoint". It was clarified that though the said
expression has been used, it did not actually mean appointment of a Sessions B
Judge and First Additional Sessions Judge, Ropar as Special Judges. They
were already appointed and designated as stated in the Notification itself.
What was intended related to allocation of cases registered at P.S., Mohali
to the existing Courts of Special Judges, Ropar. There is also no dispute that
P.S., Mohali falls within the area of district Ropar over which Special Judges,
Ropar had jurisdiction as approved by the High Court. C
Stand of learned counsel for the State is that since the impugned
notification allocated certain cases to Courts of Special Judges already
established with the consultation with the High Court, no further consultation
was required.
D
It is pointed out that said re-allocation does not impinge upon the
control of the High Court as envisaged by Article 235 of the Constitution.
There is no doubt that the control of the High Court is comprehensive,
exclusive and effective and it is to subserve the basic feature of Constitution,
i.e. independence of judiciary. [See High Court of Judicature for Rajasthan E
v. Ramesh Chand Paliwal and Anr., [ 1998] 3 SCC 72 and Registrar (Admn.),
High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by Lrs. and
Anr., [1999] 7 SCC 725]
Articles 233 and 234 of the Constitution are not attracted because this
is not a case where. appointment of persons to be Special Judges or their F
postings to a particular Special Court is involved. It is however factually
conceded that the expression "notwithstanding the jurisdiction of other Special
Judges in the State of Punjab" is not necessary.
Once group of cases are allocated to Special Court, consequentially G
other Special Courts cannot deal with them. Use of the afore-said expression
was really unnecessary. We consider it to be severable and so direct.
At this juncture, it is to be noted that learned counsel for the State
submitted that to avoid any fear of forum shopping, the State is even willing
to abide by the decision of this Court if the trial takes place in Chandigarh H
250 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A or wherever this Court directs, and to show that the State has no intention
to the trial being conducted at a particular place and to prove its transparency
the stand is taken. We do not think it necessary to so direct, because the
expression "notwithstanding the jurisdiction of other Special Judges in the
State of Punjab" has already been stated to be unnecessary and would be
B of no consequence. That being so, the plea in that regard as raised by the
appellants also fails.
Since all the challenges have been held to be without substance, the
inevitable result is that the appeals deserve to be dismissed which we direct.
C S.K.S. Appeals dismissed.
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