Supreme Court of India
RAKESH KUMAR MISHRAversusTHE STATE OF BIHAR AND ORS.
- Citation
- 2006 INSC 3
- Decided
- 3 January 2006
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
Section 197 CrPC bars cognizance of offences against a public servant acting in discharge of official duty unless prior sanction is obtained, and the warrantless search in this case was connected to official duty, so the magistrate's cognizance was invalid.
Summary
The appellant, a police officer supervising a dacoity case, ordered a warrantless search of the residence of Respondent No.2, the father of a suspect, which led to a complaint alleging harassment. The Judicial Magistrate took cognizance of offences under IPC sections 342, 389, 469, 471 and 1208, and the appellant sought to quash the order under Section 482 CrPC, arguing that prior sanction under Section 197 CrPC was required. The High Court dismissed the petition, holding that the absence of a search warrant made Section 197 inapplicable. The Supreme Court held that where the act (search) is prima facie connected with the discharge of official duty, Section 197 protection applies irrespective of the lack of a warrant, and that the bar on cognizance is absolute without prior sanction. Consequently, the magistrate's order taking cognizance was set aside and the appeal was allowed.
Issues considered
- Whether Section 197 of the Code of Criminal Procedure, 1973 applies to a police officer who conducted a warrantless search in the discharge of his official duties.
- Whether the absence of prior sanction under Section 197 bars the court from taking cognizance of the offences alleged against the public servant.
- What is the scope of the terms "official duty" and "reasonable connection" under Section 197.
- Whether the protection under Section 197 extends to retired public servants.
Legislation cited
- Code of Criminal Procedure, 1973s. 100(4), s. 165, s. 166, s. 197, s. 41, s. 482
- Indian Penal Code, 1860s. 1208, s. 342, s. 389, s. 469, s. 471
Subjects
Section 197 CrPCprior sanctionpublic servant protectioncognizancesearch without warrantdacoityofficial dutyquashing of proceedings
Judgment
A RAKESH KUMAR MISHRA
v.
THE STATE OF BIHAR AND ORS.
JANUARY 3,2006
B [ARIJIT PASAYAT AND G.P. MATHUR, JJ.]
Code of Criminal Procedure, 1973-Sectiun 197:
C
Prosecution ofpublic servant-Need for prior sanction---Scope and ambit
of protection under S.197 Cr PC-Held: If it is prim a facie found that the act
-
or omission for which the public servant was charged had reasonable
connection with discharxe of his official duty, then it must be held to be
official to which applicubi/ity of S.197 cannot be disputed-But no universal
rule to determine whether there is u reasonable connection between the act
D done and the official duty.
Protection under S.197 C'rPC - Is available even in cases where a retired
public servant is sought to be prosecuted.
Commission of dacoity -Residence of accused searched on directions of
E appellant police officer·-Search conducted without warrant-Complaint against
appellant under various provisions of !PC alleging that the search was
motivated-Magistrate took cogni::ance, though sanction under S. 197 not
obtained-Sustainabilit:~-Held, not sustainab/e---High Court erred in holding
S.197 to be inapp/icahle and in declining to quash the order of Magistrate
under S. 482 Cr PC It erroneously focussed only on absence ofsearch warrant
F and totally ignored other relevant aspects which had a determinative rule in
the issue -··Penal Code, 1860-Sections 1208, 342, 389, 469 & 471.
Words and Phrases:
"Cognizance "-Meaning of
G
"Official" and "Official dwy "_Meaning of-In context tu S.197 of
Code of Criminal Procedure, 1973.
Appellant police officer was supervising a case of dacoity. On receipt
H 124
.....- '
-...A RAKESH KUMAR MISHRA v.THE STATE OF BIHAR 125
of certain source information, he gave spot instruction to arrest the A
suspects and conduct search. Son of Respondent No.2 was amongst the
accused. A team of police officials visited the house of Respondent no.2
for conducting search, and arrest his son, if necessary. There was no
seizure. Alleging that the search was motivated and was for the purpose
of humiliating and harassing Respondent no.2 and his son, as the B
concerned police officials did not have a search warrant, a complaint was
· filed by Respondent No.2: Consequently the Judicial Magistrate took
cognizance of offences under Ss. 342, 389, 469, 471 and 1208, IPC against
the Appellant. Appellant filed petition under S.482 CrPC seeking quashing
of the order of Magistrate on ground that in absence of sanction as
contemplated under S.197 CrPC, the proceedings could not be continue.d. C
High Court however dismissed the petition holding that since the
requirement of S.100(4) CrPC were not followed while search was
conducted in Respondent no.2's premises, the provisions of S.197 CrPC
were inapplicable. Hence the present appeal.
Allowing the appeal, the Court D
HELD: I.I. So far public servants are concerned, the cognizance of
any offence, by any Court, is barred by Section 197, CrPC unless sanction
is obtained from the appropriate authority, if the offence, alleged to have
been committed, was in discharge of the official duty. I 130-G-H !
E
1.2. The protection given under Section 197, CrPC i~ to protect
.) responsible public servants against the institution of possili>ly vexatious
\
criminal proceedings for 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 F
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 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 G
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 conne1ction between
the act and the performance of the official duty, the 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 H
126 SUPREME COURT REPORTS [2006] 1 S.C.R.
A 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 the official
concerned was accused of an offence alleged to have been committed by
B 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 official 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 important and the protection of this section is available if
C 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. One safe and sure test in this regard would be to
consider if the omission or neglect on the part of the public servant to
commit the act complained of could have made him answerable for a
D charge of dereliction of his official duty, if tt.e answer to his question is in
the affirmative, it may be said that such act was committed by the public
servant while acting in the discharge of his official duty and there was
every connection with the act complained of and the official duty of the
public servant. This aspect makes it clear that the concept of Section 197
E does not get immediately attracted on institution of the complaint case.
[131-B-HI
1.3. 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'
F 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. [133-EI
1.4. According to Black's Law Dictionary the word 'cognizance'
G means '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
H official duty. 1133-FI
'1.
•
lo -h RAKESH KUMAR MISHRA v. THE ST ATE OF BIHAR 127
1.5. 'Official' according to dictionary, means pertaining to an office, A
and official act or official duty means an act or duty done by an officer in
his official capacity. Use of the expression, 'official duty' implites that the
act or omission must have been done by the public in the cou.rse of bis
service and that it should have been in discharge of his duty.
(133-H; 134-DI
R
·y 1.6. The protective cover under Section 197 CrPChas been widened
further by extending the protection to even those acts or omissions w.l1ich
are done in purported exercise of official duty; that \s under the colour" of
office. Official duty, therefore, implies that the act oi- 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 further must
c
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 D
be given liberal and wide construction so far its official nature is
concerned. For instance a public servant is not entitled to indulge·in
criminal activities. To that extent the Section.has to be construed narrowly
and in a restricted manner. But once it is established that act or omission
was done by the public servant while discharging his duty then the scope
E
of its being official should be construed so as to advance the objective of
_the Section in favour of the public servant. Otherwise the entire ; •urpose
\
\ of affording protection to a public servant without 1sanction shall stand
frustrated. (134-F-H; 135-Af
I. 7. If on facts; therefore, it is prima facie found that the act or F
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 197 CrPC cannot be disputed. (135-Df
1.8 The Law Commission in its 41st Report in paragraph 15.123
while dealing with Section 197, as it then stood, made certain observations, G
~ in pursuance ·of which the expression 'was' came 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. (136-G; 137-Af
R. Balakrishna Pillai v. State of Kera/a, AIR (1996) SC 901; State of
MP. v. MP. Gupta, (20041 2 SCC 349; State of Orissa through Kumar H
128 SUPREME COURT REPORTS (2006) I S.C.R.
A Raghvendra Singh and Ors. v. Uanesh Chandra Jew, !20041 8 SCC 40 and
Shri S.K. Lutshi and Anr. v. Shri Primal Debnath and Anr., 120041 8 SCC
31, relied on. 1137-BI
Bakhshish Singh Brar v. Smt. Uurmej Kaur and Anr., AIR (1988) SC
257; P.Arulswami v. State of Madras, AIR (1967) SC 776; B. Saha and Ors.
B v. MS. Kuchar, 1197914 SCC 177; Matajog Dobey v. H.C. Bhari, AIR (1956)
SC 44,; S.A. Venkataraman v. The State, AIR (1958) SC 107; C.R. Bansi v. -..1
The State of Maharashtra, 11970! 3 SCC 537; State of Maharashtra v. Dr.
Budhikota Subbarao, (199313 SCC 339; Ka/icharan Mahapatra v. State of
Orissa, (19981 6 SCC 411, referred to. 1130-E; 132-A; 134-A; 135-C, E,
C G; 136-AI
Black's Law Dictionary and 41 st Report of the Law Commission .
Paragraph 15.12 3, referred to. 1136-G I
2. When the factual position is considered in the background of the
D aforesaid legal principles, the inevitable "Onclusion is that the High Court
was not justified in holding that the Section 197 was not applicable to the
facts of the case. In the instant case, Section 197 of the Code had clear
application. High Court only focused on the absence of the search warrant
and totally ignored other relevant aspects. Though the allegations about
alleged offences had their matrix on the absence of search warrant, the
E other circumstances noted above had a determinative role in the issue. The
order of the Magistrate taking cognizance is consequently set aside.
I137-C, D-FI I
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 12
of 2006.
F
From the Judgment and Order dated 22.09.2004 of the High Court of
Patna in Crl. Misc. 22766 of 2002.
A.K. Thakur, R.K. Singh and Anil K. Chopra for the Appellant.
Gopal Singh for the State of Bihar.
G
Krishnanand Pandeya and Mr. Rajesh Pathak for the State of Jharkhand.
Respondent No. 2 In-Person.
The Judgment of the Court was delivered by
H ARIJIT PASAYAT, J. Leave granted.
~ RAKESH KUMAR MISHRA v.THE STATE OF BIHAR [PASAY AT. J.] 129
Appellant calls in question legality of the judgment rendered by a learned A
Single judge of the Patna High Court dismissing the petition filed by the
appellant under Section 482 of the Code of Criminal Procedure, 1973 (in
short the 'Code') seeking quashing of the order of cognizance taken by
learned Judicial Magistrate, Patna, on a complaint filed by Ramesh Kumar
Dubey (Respondent No. 2 in this Appeal). By L de1 Jated 11.1.2000 learned
Judicial Magistrate took cognizance of offences punishable under Sections
B
'-'
342, 389, 469, 471and120(8) of the Indian Penal Code, 1860 (in short the
'IPC'). Learned Chief Judicial Magistrate, Patna had transferred the case on
18.1.1997 to the learned Magistrate for enquiry and disposal and that is how
the matter was placed before learned Judicial Magistrate, First Class. Primary
stand taken by the appellant before the High Court was that in the absence c
of sanction as contemplated under Section 197 of the Code, the proceeding
cannot be continued. The High Court by the impugned judgment rejected the
prayer holding that since the requirement of Section 100(4) of the Code were
~
4f..· not followed, while search was conducted in the respondent No.2's premises
the provisions of Section 197 of the Code were not applicable.
D
Learned counsel for the appellant submitted that without noticing relevant
' factual background the High Court has held that the protection under Section
197 of the Code were not available. According to him a report about the
commission of dacoity ori 8/9-7-1996 was received and Jasidih PS. Case No.
103 of 1997 was registered in respect of commission of offence punishable
E
under Section 395 of the !PC. The Special Report in respect of the case was
\
250 of 1996. Supervision of the case was being done by the appellant. Source
~ information was received about the involvement of certain persons, one of
whom was Ratnesh Kumar Dubey - alias Chhotu, son of respondent No.2. On
the basis of such information the appellant gave spot instruction to arrest the
suspects and conduct search. Search was to be conducted in the house of F
respondent no.2. Three Sub-Inspectors were deputed for the purpose and the
investigating officer of the case was directed to continue investigation on
other lines. On 11.7.1996 the team constituted for the purpose of search
requested the police officials of Shastri Nagar Police Station in Patna for
cooperation. A requisition slip for the purpose was given. The team of three
~
sub-inspectors and local police officials visited the house of respondent no.2
G
" on 11.7.19992 for the purpose of search and to arrest Ratnesh, if necessary.
Elder son of Respondent no. 2 told the police officials that Ratnesh had gone
to Delhi and was not present. Though search was conduct<!d no material of
any substance was seized. Alleging that the search was motivated and was for
the purpose of humiliatin.g and harassing, as the concerned officials did not H
130 SUPREME COURT REPORTS 12006] I S.C.R.
A have a search warrant, the respondent no.2 and his son Chhotu, complaint
was filed on 26.11.1996 in the Court of Chief Judicial Magistrate, Patna.
Subsequently, as noted above, the appellant filed the application under Section
482 of the Code which came to be dismissed by the impugned judgment. It
was submitted by learned counsel for the appellant that the factual scenario
B clearly proves the bonafides and in view of the fact that all possible procedure
were taken to follow the mandate of law, Section 197 of the Code is clearly
applicable. It is submitted that the High Court made reference only to the
Section I 00 of the Code, overlooking the powers available to be exercised
under Sections 41, 165 and 166 of the Code and Rule 165 of the Bihar Police
Manual. It was, therefore, submitted that the judgment of the High Court is
C indefensible. Learned counsel for the State of Bihar and Jharkhand supported
the stand taken by the appellant.
Respondent no.2 who appeared in person submitted that no .material
has been brought on record as from what source the name of Ratneshwar
cropped up. The acts done were clearly outside the scope of official duty and
D therefore, the protection under Section 197 of the Code is not available.
Reference was made to certain alleged events to contend that the intention
was to falsely implicate Ratnesh and, therefore, the police officials went to
the extent of forging alleged confessional statement of one Sanjay Singh.
The pivotal issue i.e. applicability of Section 197 of the Code needs
E careful consideration. 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:- I
"It is necessary to protect the public servants in the discharge of their
F 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 duties, and whether the
G public servant has exceeded his limit. It is true that Section 197 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 same time it has to
be emphasised that criminal trials should not be stayed in all cases at
H
RAKESH KUMAR MISHRA v.THE STATE OF BIHAR [PASAYAT. J.] 131
.#,
the preliminary stage because that will cause great damage to the A
evidence."
The protection given under Section 197 is to protect responsible public
servants against the institution of possibly vexatious criminal proceedings for
offences alleged to have been committed by them while they are acting or
purporting to act as public servants. The policy of Lhe !egislature is to afford B
\.~
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 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
c
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 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 D
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 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
E
.,\
which requires examination so much as the act, because the official 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 qu.ality of the act which is important
and the protection of this section is available ifthe act falls within the scope F
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 io lay down any such rule. One safe and sure test in
this regard would be to consider ifthe omission or neglect on the part of the
public servant to commit the act complained of could have made him
,. answerable for a charge of dereliction of his official duty, if the answer to G
_>. his question is in the affirmative, it may be said that such act was committed
by the public servant while acting in the discharge of his official duty and
there was every connection with the act complained of and the official duty
of the public servant. This aspect makes it clear that the concept of Section
197 does not get immediately attracted on institution of the complaint case. H
132 SUPREME COURT REPORTS (2006) I S.C.R.
A At this juncture, we may refer to P. Arulswami v. State of Madras, AIR
( 1967) SC 776, wherein this Court held as under:
" ... It is not therefore every offence committed by a public servant
that requires sanction for prosecution under Section 197( I) of the
Criminal Procedure Code; nor even every act done by him while he
B is actually engaged in the performance of his official duties; but ifthe
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 qui:lity of the act
that is important and if it falls within the scope and range of his
official duties the protection contemplated by Section 197 of the
c Criminal Procedure Code will be attracted. An offence may be entirely
unconnected with the official duty as such or it may be committed
within the scope of the official duty. Where it is unconnected with
the official duty there can be no protection. It is only when it is either
within the scope of the official duty or in excess of it that the protection
D is claimable."
It would be appropriate to examine the nature of power exercised by
the Court under Section 197 of the Code and the extent of protection it
affords to public servant, who apart, from various hazards in discharge of
their duties, in absence of a provision like the one may be exposed to vexatious
E prosecutions. Section 197( 1) and (2) of the Code reads as under:
"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
F discharge of his official duty, no Court shall take cognizance of such
offence 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
G
connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be,
..
was at the time of commission of the alleged offence employed, in
connection with the affairs of a State, of the State Government.
•••
H
134 SUPREME COURT REPORTS (2006) I S.C.R.
.\_
A officer in his official capacity. In 8. Saha and Ors. v. MS. Kochar. [1979]
4 sec 177, it was held :
"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( I) of the Code, are capable of a narrow as
B well as a wide interpretation. If these words are construed too nar:owly,
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
an offence, committed in the course of the same transaction in which
the official duty is performed or purports to be performed. The right
c 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 (I), an Act constituting an
offence, directly and reasonably connected with his official duty will
D require sanction for prosecution and the said provision."
Use of the expression, 'official duty' implies that the act or omission
must have been done by the public in the course of his service and that it
should have been in discharge of his duty. The Section does not extend its
protective cover to every act or omission done by a pub Iic servant in service
E but restricts its scope of 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
I
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
F 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 ·
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 Jim ited to those duties which are discharged
G 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 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
H discharging his duty then the scope of its being official should be construed
RAK~.S.H KUMAR MISHRA v.THE STATE OF BIHAR [PASAYAT, J.] !35
so as t<r advance ·the objective of the Section in favour of the public servant A
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 S1!nction may be necessary. But ifthe same officer commits an act
in course of service but not in discharge of his duty and without any B
justification therefor then the bar under Section 197 of the 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 C
have something to do, or must be related in some manner with the
discharge of official duty ... there must be a reasonable connection
between the act and the discharge of official duty; the act must bear
such relation to the duty that the accused could lay a reasonable
(claim) but not a pretended- or fanciful claim, th.at he did it in the D
course of the performance of his duty."
Ifon facts, therefore, it is primafacie 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 official to which applicability of Section I 97
of the Code cannot be disputed. E
In SA. Venkataraman v. The State, AIR (1958) SC I07 and in C. R.
Bansi v. The State of Maharashtra, [1970] 3 SCC 537 this Court has held
that:
)
\
"There is nothing in the words used in Section 6( I) to even remotely F
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."
G
The above position was illuminatingly highlighted in State of
Maharashtra v. Dr. Bµdhikota Subbarao, [1993] .3 SCC 339.
When the newly-worded section appeared in the Code (Section I97)
with the words "when any person who is or was a public servant" (as against H
136 SUPREME COURT REPORTS (20061 I S.C.R.
A the truncated expression in the corresponding provision of the old Code of , \..
Criminal Procedure, 1898) a contention was raised before this Court in
Kalicharan Mahapatra v. State of Orissa [ 1998] 6 SCC 411 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
B Court wherein a two-Judge 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 to be a public
- .,
servant when the court takes cognizance of the offence. But if he
c ceases to be a public servant by that time, the court can take cognizance
of the offence without any such sanction."
The correct legal position, therefore, is that an accused facing prosecution
for offences under the Old Act or New Act cannot claim any immunity on
the ground of want of sanction, if he ceased to be a public servant on the date
D when the court took cognizance of the said offences. But the position is
,'
different in cases where Section 197 of the Code.has application.
Section 197( I) provides that when any person who is or was a public
servant not removable from his office save by or with the sanction of the
E 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 who is employed or, as the case may be, was at
the time of commission of the ali~ged offence employed, in connection with
the affairs of the Union, of the Central Government and (b) in the case of a 'I
F 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.
We may mention that the Law Commission in its 41 st Report in
G 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 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
H the protection conferred by Section 197 is the public interest in seeing that
RAKESH KUMAR MISHRA v.THE STATE OF BIHAR [PASAYAT, J.]137
J·
official acts do not lead to needless or vexatious prosecution. It should be left A
to the Government to determine from that point of view the question of the
expediency of prosecuting any public servant". 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.
B
Above position was highlighted in R. Balakrishna Pillai v.. State of
Kera/a, AIR (1996) SC 901, in State of MP. v. MP. Gupta, [2004] 2 SCC
349, in State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh
Chandra Jew [2004] 8 SCC 40, and in Shri S.K. Lutshi and Anr. v. Shri
Primal Debnath and Anr., [2004] 8 SCC 31. c
When the factual position is considered in the background of legal
principles elaborated above the inevitable conclusion is that the High Court
was n<Jt" justified in holding that the Section 197 was not applicable to the
facts of the case. In the instant case, therefore Section 197 of the Code had
" clear application. High Court only focused on the absence of the search D
warrant and totally ignored other relevant aspects. Though the allegations
about alleged offences had their matrix on the absence of search warrant, the
other circumstances noted above had a determinative role in the issue. The
events, if any, which allegedly took place after 11.7.1996 on which emphasis
was laid by the respondent no.2 have really no relevance for the issue under
E
consideration. Their effect, if any, can be considered at the appropriate stage.
We make it clear that the view expressed by us is only in respect of
applicability of Section 197 of the Code.
)
\.
The appeal in the above said circumstances is allowed. The order of the
Magistrate taking cognizance consequently is set aside. F
B.B.B. Appeal allowed.
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