Supreme Court of India
ROMESH LAL JAINversusNAGINDER SINGH RANA AND ORS.
- Citation
- 2005 INSC 540
- Decided
- 28 October 2005
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Sanction under Section 197 Cr.P.C. was not required because the alleged offences bore no reasonable nexus to the officer’s official duties, and the valid sanction under the 1988 Act could not be cancelled, leading to the setting aside of the High Court’s order.
Summary
The case arose from a FIR lodged by a Sub‑Inspector (the respondent) against M/s Jain Gas Agency under the Essential Commodities Act, which the appellant claimed was false and alleged that the officer had misappropriated gas cylinders and accepted a bribe. The Special Judge directed the investigating officer to obtain sanction for prosecution; a sanction was initially granted by the Deputy Inspector General of Police but later withdrawn by the State. The High Court quashed the Special Judge’s cognizance on the ground that no sanction under Section 197 Cr.P.C. had been obtained. On appeal, the Supreme Court examined whether sanction under Section 197 was required for offences under the IPC and the 1988 Prevention of Corruption Act, and whether the State alone could cancel a sanction granted by the DIG. The Court held that the alleged acts were not connected to the discharge of official duty, so no sanction under Section 197 was needed, and the valid sanction under the 1988 Act could not be set aside. Consequently, the High Court’s order was set aside and the appeal allowed.
Issues considered
- The necessity of obtaining sanction under Section 197 of the Cr.P.C. for prosecuting a public servant for offences under the IPC and the Prevention of Corruption Act, 1988.
- Whether the State is the sole competent authority to grant or withdraw sanction for police officers charged with offences relating to public order under the 1983 notification.
- The validity of the sanction order issued by the Deputy Inspector General of Police and its revocability by the State.
- The correctness of the High Court’s quashing of the Special Judge’s cognizance for lack of sanction.
- The distinction, if any, between sanction requirements for offences under the IPC versus those under the 1988 Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 173, s. 197, s. 482
- Essential Commodities Act, 1955s. 7
- Indian Penal Code, 1860s. 167, s. 218, s. 409, s. 419, s. 420, s. 465, s. 468, s. 471
- Prevention of Corruption Act, 1988s. 13(2), s. 19
Subjects
public servantsanctionSection 197 Cr.P.C.Prevention of Corruption Act 1988Essential Commodities Actpublic orderofficial duty nexuscriminal procedurepunishing authoritySupreme Court
Judgment
A ROMESH LAL JAIN
v.
NAGINDER SINGH RANA AND ORS.
OCTOBER 28, 2005
B [S.B. SINHA AND R.V. RAVEENDRAN, JJ.)
Penal Code, 1860-Sec. 409, 167, 218, 419, 420, 465, 468, 471-
Cr.P.C.-Sec. 197-13(2)-Sanction for prosecution against a public servant--
C For commission of an offence-sanction against Inspector of Police granted
by Dy. Inspector General of Police-Held, sanction valid-Further Held, no
sanction is required from State Government for prosecution under Sec. 197
Cr.P.C
Words and Phrases- public order-Meaning of-Explained.
D The First Respondent was a Sub Inspector. He lodged a First Information
Report against Mis. Jain Gas Agency, a proprietary concern of the son of the .·
Appellant, under Section 7 of the Essential Commodities Act, wherein it was
alleged that on an inspection made in its office and godown several
irregularities were found and furthermore some gas cylinders were said to
E have been sold in black market. The Appellant, who is also the District
Convener, LPG Dealers Association, sent a letter to the Inspector General of
Police, Internal Vigilance, Punjab, stating that the case registered was false,
that while seizing 767 cylinders, the First Respondent had shown that only
743 cylinder were seized and thereby misappropriated 24 cylinders and that
the First Respondent had demanded and taken a sum of Rs. 20,000 in cash
F from the Appellant by way of illegal gratification by putting pressure and.the
said amount was paid to him in order to avoid maltreatment at his hands. The
payment so made was shown in the cash book and the ledger maintained by
Mis. Jain Gas Agency. The prosecution against the said Mis Jain Gas Agency
under Section 7 of the Essential Commodities Act was found to be false and
G a final report under Section 173 Cr.P.C. was submitted for cancellation of
the case which was accepted on 11.8.1993.
On the basis of the allegations contained in Appellant's letter, a First
Information Report was lodged. An untraced report was sent to the Court of
868
H
ROMESH LAL JAIN v. NAGINDER SINGH RANA 869
Special Judge, Faridkot, who did not agree therewith and opined that the A
statements of the witnesses recorded during investigation supported the case
of the complainant and the matter required judicial verdict The Special Judge,
therefore, directed the Investigating Officer to obtain sanction for the
prosecution against the Respondent herein and submit a final report. This
order was challenged by the First Respondent in a Criminal Revision before
the Session Judge wherein it was observed that no cognizance could be taken B
by the Special Judge without obtaining proper sanction and it would be open
to the Sanctioning Authority to consider the same. The Deputy Inspector
General of Police, Jallandhar Range, issued an order of sanction. The said
order of sanction was withdrawn by the State. The Special Judge directed the
Investigating Officer to submit a final report within one month. C
A charge-sheet was filed and cognizance of the offence was taken. The
First Respondent filed an application before the High Court under Section
482 of the Code of Criminal Procedure, 1973, inter alia, praying for quashing
of the First Information Report dated 06.05.1994 and the proceedings
subsequent thereto including the report submitted under Section 173 Cr. P.C. D
which had been filed without obtaining sanction.
It was observed : (i) The earlier order attained finality and, thus, any
contention contrary thereto or inconsistent therewith would amount to
reviewing thereof which is impermissible in law; The State having refused to
grant a sanction and as the accusations made against the Respondent related E
to discharge of his duties as Investigating Officer, sanction of prosecution
was mandatory; The First Information Report cannot be quashed as it cannot
be said that the allegations made therein do not disclose any offence against
him. On the aforementioned grounds, the order of the Special Judge taking
cognizance and summoning the Respondent without sanction of the competent p
authority for his prosecution was quashed.
In appeal before this Court Appellant contended that : (i) The High Court
committed a manifest error in passing the impugned judgment insofar as it
failed and/or neglected to determine the question as to whether the act
complained of had a reasonable nexus with the official duty of the Respondent; G
(ii) The High Court misread and misinterpreted its earlier order; (iii) The
order of sanction having been passed by a competent authority for prosecution
of the Respondent for commission ofoffences punishable both under the 1988
Act as also various offences under the Indian Penal Code, the State could not
have cancelled the same.
H
870 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A Respondent contended that the purpose of enacting the provisions under
Section 197 Cr. P.C. being to protect acts of the public servants in discharge
of the public duty, the State was the only competent authority to grant or refuse
sanction for their prosecution; that by Reason of a Notification dated 5.5.1983
the requirement of obtaining sanction in terms of sub-section (3) of Section
197 Cr. P.C. had been extended to all the police officers charged with
B maintenance of public order; that the allegations made against the Respondent
by the Appellant herein must be held to have been performed in the process
of discharge of his official duty, and, thus, the alleged acts of misappropriation
and acceptance of a bribe paid by the complainant for avoiding maltreatment,
mandatorily require an order of sanction, that motive of an officer in this
C behalf, would be irrelevant; that an order of sanction which would mean a valid
sanction was found to be required and in view of the fact that the order of
sanction passed by the Deputy Inspector General of Police was set aside by
the State and moreover it having refused to grant any sanction, no valid order
of sanction exists; that the Deputy Inspector General of Police evidently had
no jurisdiction to grant sanction under Section 197 Cr. P.C., the State was
D the only competent authority and, thus, the said order was rightly cancelled
because the same was a composite one.
Allowing the appeal, the Court
HELD: I. Sanction required under Section 197 Cr. P.C. and sanction
E required under the 1988 Act stand on di°fferent footings. Whereas sanction
under the Indian Penal Code in terms of the Code of Criminal Procedure is
required to be granted by the State under the 1988 Act it can be granted also
by the authorities specified in Section 19 thereof. It is not in dispute that the
Deputy Inspector General of Police was the competent authority for grant of
p sanction as against the Respondent herein terms of the provisions of the 1988
Act The State of Haryana, thus, could not have interfered with that part of
the said order whereby requisite sanction had been granted under the 1988
Act The High Court in its impugned order, however, does not appear to have
taken that aspect of the matter into consideration. It failed to make a distinction
between an order of sanction required for prosecuting a person for commission
G of an offence under the Penal Code and an order of sanction required for
commission of an offence under the 1988 Act. (878-A, B, E]
2. It is beyond any cavil of doubt that an order granting or refusing
sanction must be preceded by application of mind on the part of the appropriate
H authority. If the complainant or accused can demonstrate·such an order
ROMF;SH LAL JAIN v. NAGINDF;R SINGH RANA 871
granting or refusing sanction to be suffering from non-application of mind,
the same may be called in question before a competent court of law. Evidently,
the requirement of obtaining a sanction under Section 197 Cr. P.C. from the
State in relation to the Respondent who at the material time was a Sub Inspector
of Police might not have arisen if the notification issued by the State in this
behalf on or about 05.05.1983 is read in proper context. [878-F, G [
B
3. The expression 'public order' has a distinct connotation. Investigation
into the offence under the Essential Commodities Act may not be equated with
the maintenance of public order as is commonly understood. The activities of
a single individual giving rise to irregularities of maintenance of books of
accounts as regard an essential commodity or resorting to black marketing, C
unless a volatile situation arises therefrom, cannot lead to disturbance of public
peace, safety and tranquility, which are essential requisites of a 'public order'.
The said notification therefore, has no application in the facts and
circumstances of the case and consequently it has to be held that no sanction
by the State in terms of Section 197 Cr. P.C. was necessary as the Respondent
could be removed from service by the Deputy faspector General of Police and D
not by or with the sanction of the Government. [879-B, C, D[
4. Whereas an order of sanction in terms of Section 197 Cr. P.C. is
required to be obtained when the offence complained against the public servant
is attributable to discharge of his public duty or has a direct nexus therewith,
but the same would not be necessary when the offence complained has nothing E
to do with the same. A plea relating to want of sanction although desirably
should be considered at an early stage of the proceedings, but the same would
not mean that the accused cannot take the said plea or the court cannot
consider the same at a later stage. Each case has to be considered on its own
facts. Furthermore, there may be cases where the question as to whether the F
sanction was required to be obtained or not would not be possible to be
determined unless some evidence is taken, and in such an event, the said
question may have to be considered even after the witnesses are examined.
[889-C, D[
Shreekantiah Ramayya Munipal/i v. The State of Bombay, [1955[ l SCR G
1177; P. K. Pradhan v. State of Sikkim represented by the Central Bureau of
Investigation, [2001] 6 SCC 704; State of U.P. v. M.P. Gupta, [2004] 2 SCC
. 349; Amrik Singh v. State of Pepsu, [1955] 1 SCR 1302; N. Bhargavan Pillai
' (dead) by LRs. and Anr. v. State of Kera/a, AIR (2004) SC 2317; State of
Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew,
[2004] 8 SCC 40; S.K. Zutshi and Anr. v. Bimal Debnath and Anr., [2004] 8 H
872 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A SCC 31; K. Kalimuthu v. State by DSP, 1200514 SCC 512; Matajog Dobey v.
H.C. Bhari, (195512 SCR 925; B.S. Sambhau v, T.S. Krishnaswamy, (198311
SCC 11; Om Prakash Gupta v. State of U.P., [1957] SCR 423; Manohar Nath
Kaul v. State ofJammu and Kashmir, (1983( 3 SCC 429; B. Saha and Ors. v.
M.S. Kochar, [1979] 4 SCC 177; Dr. Hori Ram v. Emperor, (1939) FCR: AIR
(1939) FC 43; State of Maharashtra v. Atma Ram and Ors., AIR (1966) SC
B 1786; Baijnath Gupta and Ors. v. The State of Madhya Pradesh, [1966] l
SCR 210; Harihar Prasad, etc. v. State of Bihar, 11972] 3 SCC 89 and Abdul
Wahab Ansari v. State of Bihar and Anr., [20001 8 SCC 500, referred to.
5. The contention of Respondent that the earlier order dated 23.05.1998
C attained finality and, thus, at a later stage in view could have been taken that
obtaining of any sanction was not necessary, is fallacious. In the said order,
the Special Judge did not say that the sanction would be necessary in terms
of Section 197 Cr. P.C. The Judge clarified that obtaining of sanction was
necessary from the Sanctioning Authority/Punishing Authority which would
obviously refer to the necessity of an order of sanction under the 1988 Act.
D There is no inherent contradiction in the said orders. The High Court was
not also correct in coming to the conclusion that the earlier order of the High
Court resulted in three consequences. By reason of the said order only that
portion of the order of the Special Judge whereby a direction was issued to
complete the investigation within one month was quashed and not the entire
E order. (889-G-H; 890-AI
6. The question as to whether an order of sanction would be found
essential would, thus, depend upon the facts and circumstances of each case.
Jn a case where ex facie no order of sanction has been issued when it is
admittedly a pre-requisite for taking cognizance of the offences or where such
F an order apparently has been passed by the authority not competent therefore,
the court may take note thereof at the outset. But where the validity or
otherwise of an order of sanction is required to be considered having regard
to the facts and circumstances of the case and furthermore when a contention
has to be gone into as to whether the act alleged against the accused has any
direct nexus with the disch.irge of his official act, it may be permissible in a
G given situation for the court to examine the said question at a later stage.
The Court does not intend to lay down a law that only because a contention
has been raised by the complainant or the prosecution that the question as
regard necessity of obtaining an order of sanction is dependent upon the
finding of fact that the nexus between the offences alleged and the official
H duty will have to be found out upon analyzing the evidences brought on records;
ROMESH LAL JAIN v. NAGINDER SINGH RANA [SINHA, J.] 873
the same cannot be done at an earlier stage. Each case will have to be A
considered having regard to the fact situation obtaining therein and no hard
and fast rule can be laid down therefor. [890-D, E, F, GJ
State of Karanataka through CBI v. C. Nagarajaswamy, (2005) 12 SC
349 and Raj Kishor Roy v. Kamleshwar Pandey and Anr., [2002) 6 SCC 543,
referred to. B
7. No order of sanction to prosecute the First Respondent under Section
197 Cr. P.C. was necessary to be obtained from the State. The High Court
was not right in passing the impugned order particularly in view of the fact
that a valid order of sanction was granted in relation to the offences committed
by the First Respondent under the 1988 Act. The impugned order of the High C
Court, therefore, cannot be sustained, which is set aside accordingly.
[891-C, DJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 691 of
2003.
D
From the Judgment and Order dated 6.5.2002 of the Punjab and Haryana
High Court in Crl. M. No. 39904-M of 200 I.
Neeraj Kumar Jain, Aditya Kr. Chaudhary, Bharat Singh, Sanjay Singh
and Ugra Shankar Prasad for the Appellant.
K.T.S. Tulsi, Rishi Malhotra, Prem Malhotra, Sanjay Jain, Vinay Arora, E
Adolf Mathew and Bimal Roy Jad for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. How far a sanction against a public servant for
commission of an offence punishable under 13(2) of the Prevention of F
Corruption Act, 1988 (for short, 'the 1988 Act') and Sections 409, 167, 218,
419, 420, 465, 468 and 471 of the Indian Penal Code is essential is in question
in this appeal, which arises from a judgment and order dated 06.05.2002
passed by the High Court of Punjab and Haryana in Criminal Misc. No.39904-
M of2002 allowing an application filed by the First Respondent herein under G
Section 482 of the Code of Criminal Procedure (for short, Cr. P.C.). The First
Respondent herein at the material time was a Sub Inspector posted in Police
Station Kotwali in the District of Faridkot. He in his said capacity purported
to have lodged a First Information Report against M/s Jain Gas Agency, a
proprietary concern of the son of the Appellant, under Section 7 of the
Essential Commodities Act, wherein it was alleged that on an inspection made H
874 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A in its office and godown several irregularities were found and furthermore
some gas cylinders were said to have been sold in black market. The Appellant,
who is also the District Convener, LPG Dealers Association, Faridkot, in a
letter dated 31.08.1992 addressed to the Inspector General of Police, Internal
Vigilance, Punjab, Chandigarh, alleged that the case registered was false, that
while seizing 767 cylinders, the First Respondent had shown that only 743
B cylinders were seized and thereby misappropriated 24 cylinders and that the
First Respondent had demanded and taken a sum of Rs. 20,000 in cash from
the Appellant by way of illegal· gratification by putting pressure and the said
amount was paid to him in order to avoid maltreatment at his hands. The
payment so made was shown in the cash book and the ledger maintained by
C Mis Jain Gas Agency. The prosecution against the said Mis Jain Gas Agency
under Section 7 of the Essential Commodities Act was found to be false and
a final report under Section 173 Cr. P.C. was submitted for cancellation of the
case which was accepted on 11.8.1993.
On the basis of the said allegations contained in Appellant's letter
D dated 31.8.1992, a First Information Report was lodged. However, upon
investigation an untraced report was sent to the Court of Hardian Singh,
Special Judge, Faridkot, who did not agree therewith and by an order dated
23.05.1998 opined that the statements of the witnesses recorded during
investigation supported the case of the complainant and the matter required
E judicial verdict. The learned Special Judge, therefore, directed the Investigating
Officer to obtain sanction for the prosecution against the Respondent herein
and submit a final report. The said order dated 23.05.1998 came to be challenged
by the First Respondent herein in a Criminal Revision which was marked as
Criminal Revision No. I I 00 of 1998 before the Session Judge wherein it was
observed that no cognizance could be taken by the Special Judge without
F obtaining proper sanction and it would be open to the Sanctioning Authority
to consider the same. In the meanwhile, the Respondent was promoted as
Inspector. The Deputy Inspector General of Police, Jallandhar Range, issued
an order of sanction on or about 04.02.1999, which is in the following terms:
"Therefore, now I Suresh Arora, JPS Deputy Inspector General of
G Police, Jalandhar Range, Jalandhar having powers to dismiss the SI
(now Inspector) Naginder Singh Rana No.501PR from service, grant
sanction under section 197 ofCr.P.C. and under section 13(2) P.C. Act,
88 so that the competent court may take legal action against him for
the above offence."
H
ROMESH LAL JAIN v. NAGINDER SINGH RANA [SINHA, J.) 875
However the said order of sanction was withdrawn by the State in terms A
of an order dated 10.12.1999 as contained in a letter addressed to the Additional
Director General of Police, Crime Punjab, Chandigarh, which is as under :
"2. Under section 197 Cr. P.C. only Government is competent to
accord prosecution sanction. Therefore, the prosecution accorded
by the Deputy Inspector General of Police, Jalandhar Range, B
Jalandhar, issued vide his order dt. 4.2.99 is hereby cancelled.
3. On the careful perusal of the enquiry report of Special Investigation
Cell of the Crime Branch and all other documents supplied by
you, the Government does not find fit case to accord prosecution
sanction in the present case." c
The learned Special Judge by an order dated 18.04.2000 directed the
lnyestigating Officer to submit a final report within one month, opining :
"The perusal of the record reveals that accused Naginder Singh
Rana was Sub Inspector in the police department when the offence D
was allegedly committed by him. The authority which was competent
to grant sanction being punishing authority is Deputy Inspector
General, Special Secretary, Department of Home, Punjab Chandigarh,
was nothing to do with the sanction. As the Deputy Inspector General
of Police, Jalandhar Range, Jalandhar, was the competent authority
being punishing authority and has already granted sanction to E
prosecute the accused, it could not be cancelled in such a camouflage
way. Apart from it, only sanction is required u/s 13 (2) of the P.C. Act,
and not under section 197 Cr.P.C. Even otherwise, the sanction has
already been obtained. Therefore, I do not agree at all with the
Investigating Officer. There being statements of the witnesses F
supporting the case of the complainant and the sanction has already
been granted by the competent authority, it is desirable that the
judicial verdict should come. So after preparing the challan and
completing all formalities, the Investigating Officer is directed to submit
the final report in view of the above observations, preferably within
one month." G
The aforementioned order came to be questioned by the First Respondent
herein by filing a Criminal Revision Application before the Punjab and Haryana
High Court, which was marked as Criminal Revision No.575 of2000 and by
an order dated 23.07.2001, the said application was disposed of.. stating :
H
..
876 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A " ... Under these circumstances, the time bound directions of learned
Special Judge deserve to be set aside. Therefore, the direction given
in the impugned order is hereby quashed. The investigating agency
shall be at liberty to continue the investigation and proceed in
accordance with law."
B Thereafter, a charge-sheet was filed and cognizance of the offence was
taken. The First Respondent filed an application before the High Court
purported to be under Section 482 of the Code of Criminal Procedure, 1973
(for short, Cr.P.C.), inter a/ia, praying for quashing of the First Information
Report dated 06.05.1994 and the proceedings subsequent thereto including
C the report submitted under Section 173 Cr. P.C. which had been filed without
obtaining sanction.
The High Court by reason of the impugned judgment, referring to the
earlier proceedings culminating in order dated 23.07.2001 observed:
"Three consequences flow from other order dated 23.07.2001
D
passed in Criminal Revision No.515 of 2000. Firstly, the time-bound
directions given by the Special Judge, Faridkot, in order dated
18.04.2000 to the Investigating Officer to submit final report within a
period of one month, were set aside; secondly, the impugned order
had also the effect of setting aside the observations of the Special.
E Judge to the effect that the Deputy Inspector General of Police is the
authority competent to grant sanction, being the punishing Authority
for prosecution of petitioner-accused and that the Department of
Home, Punjab, Chandigarh, had nothing to do with the sanction for
that reason, it could not be cancelled, and thirdly, the Investigating
Agency was given liberty to continue with the investigation and
F
proceed in accordance with law ...... "
It was observed: (i) The said order dated 23.07.2001 attained finality
and, thus, any contention contrary thereto or inconsistent therewith would
amount to reviewing thereof which is impermissible in law; (ii) The State
G having refused to grant a sanction and as the accusations made against the
Respondent related to discharge of his duties as Investigating Officer, sanction
of prosecution was mandatory; (iii) The First Information Report cannot be
quashed as it cannot be said that the allegations made therein do not disclose
any offence against him. On the aforementioned grounds, the order of the
learned Special Judge taking cognizance and summoning the Respondent
H without sanction of the competent authority for his prosecution was quashed.
ROMESH LAL JAIN v. NAGINDER SINGH RANA [SINHA, J.] 877
The complainant is, thus, in appeal before us. A
Mr. Neeraj Kumar Jain, the learned counsel appearing on behalfof the
Appellant would submit : (i) The High Court committed a manifest error in
passing the impugned judgment insofar as it failed and/or neglected to
determine the question as to whether the act complained of had a reasonable
nexus with the official duty of the Respondent; (ii) The High Court misread B
and misinterpreted its earlier order dated 23.07.200 I; (iii) The order of sanction
dated 04.02.1999 having been passed by a competent authority for prosecution
of the Respondent for commission o{ offences punishable both under the
1988 Act as also various offences under the Indian Penal Code, the State
could not have cancelled the same.
c
Mr. K.T:s. Tutsi, the learned Senior Counsel appearing on behalf of the
Respondent would, on the other hand, submit that the purpose of enacting
the provisions under Section 197 Cr. P.C. being to protect acts of the public
servants in discharge of the public duty, the State was the only competent
authority to grant or refuse sanction for their prosecution. D
Drawing our attention to a notification dated 05.05.1983, which is annexed
to the counter affidavit filed by the State, it was pointed out that by reason
thereof, the requirement of obtaining sanction in terms of sub-section (3) of
Section 197 Cr. P.C. had been extended to all the police officers charged with
maintenance of public order. The allegations made against the Respondent by E
the Appellant herein being consisting of : (i) raiding of godown; (ii) seizure
of 467 cylinders; (iii) lodging a First Information Report under the Essential
Commodities Act; must be held to have been performed in the process of
discharge of his official duty, and, thus, the alleged acts of misappropriation
of 24 cylinders and acceptance of a bribe of Rs. 20,000 paid by the co~plainant F
for avoiding maltreatment, mandatorily require an order of sanction. Motive
of an officer, it was contended, in this behalf, would be irrelevant. The learned
counsel referring to the order of the learned Special Judge dated 23.05.1998
would also argue that an order of sanction which would mean a valid sanction
was found to be required and in view of the fact that the order of sanction
passed by the Deputy Inspector General of Police was set aside by the State G
and moreover it having refused to grant any sanction, no valid order of
sanction exists. The Deputy Inspector General of Police, Mr. Tutsi would
· argue, evidently had no jurisdiction· to grant sanction under Section 197 Ci-.
P.C., wherefor the State was the only competent authority and, thus, the said
order was rightly cancelled because the same was a composite one.
H
878 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A Sanction required under Section 197 Cr. P.C. and sanction required
under the 1988 Act stand on different footings. Whereas sanction under the
Indian Penal Code in tenns of the Code of Criminal Procedure is required to
be granted by the State; under the 1988 Act it can be granted also by the
authorities specified in Section 19 thereof.
B It is not in dispute that the Deputy Inspector General of Police was the
competent authority for grant of sanction as against the Respondent herein
in terms of the provisions of the 1988 Act. The State of Haryana, thus, could
not have interfered with that part of the said order whereby requisite sanction
had been granted under the 1988 Act. The contention of Mr. Tulsi to the
C effect that the order of sanction passed by the Deputy Inspector General of
Police dated 04.02.1999 was a composite one and, thus, the State could cancel
the same, does not appeal to us. Offences under the Penal Code and offences
under the 1988 Act are different and distinct. On the face of the allegations
made against the Respondent, they do not have any immediate or proximate
connection. The test which is required to be applied in such a case is as to
D whether the offences for one reason or the other punishable under the Penal
Code is also required to be proved in relation to offences punishable under
the 1988 Act. If the answer to the said question is rendered in the negative,
the same test can be applied in relation to a matter of sanction.
The High Court in its impugned order, however, does not appear to l'iave
E taken that aspect of the matter into consideration. It failed to make a distinction
between an order of sanction required for prosecuting a person for commission
of an offence under the Penal Code and an order of sanction required for
commission of an offence under the 1988 Act.
F It is also beyond any cavil of doubt that an order granting or refusing
sanction must be preceded by application of mind on the part of the appropriate
authority.· If the complainant or accused can demonstrate such an order
granting or refusing sanction to be suffering from non-application of mind,
the same may be called in question before a competent court of law. Evidently,
the requirement of obtaining a sanction under Section 197 Cr. P.C. from the
G State in relation to the Respondent who at the material time was a Sub
Inspector of Police might not have arisen if the notification issued by the
State in this behalf on or about 05.05.1983 is read in proper context, which
is as under :
"No.3124-211 (1)-83/7773-In exercise of the powers conferred by
H
ROMESH LAL JAIN v. NAG IND ER SINGH RANA [SINHA, J.] 879
sub-section (3) of Section 197 Code of Criminal Procedure, 1973 (Central A
Act 2 of 1974), the Governor of Punjab is pleased that the provisions
of sub-section (2) of the said Section shall apply to serving police
officials of all ranks of the Punjab Police Force charged with the
maintenance of Public Order. "
The expression 'public order' has a distinct connotation. Investigation B
into the offence under the Essential Commodities Act may not be equated
with the maintenance of public order as is commonly understood. The activities
of a single individual giving rise to irregularities of maintenance of books of
accounts as regard an essential commodity or resorting to the black marketing,
unless a volatile situation arises therefrom, cannot lead to disturbance of C
public peace, safety and tranquility, which are essential requisites of a 'public
order'.
The said notification is, therefore, has no application in the facts and
circumstances of the case and consequently it has to be held that no sanction
by the State in terms of Section 197 Cr. P.C. was necessary as the Respondent D
cou Id be removed from service by the Deputy Inspector General of Police and
not by or with the sanction of the Government.
Furthermore the rival contentions of the parties are also required to be
considered in the fact situation of the case. It is one thing to say that while
discharging the official duties, the Government servant exceeds his right but E
it is another thing to say that the allegations made against a public servant
has no reasonable nexus therewith.
In Shreekantiah Ramayya Munipal/i v. The State of Bombay, [1955] I
SCR 1177, whereupon Mr. Tulsi placed a strong reliance, it was held :
F
"Now it is obvious that if Section 197 of the Code of Criminal Procedure
is construed too narrowly it can never be applied, for of course it is
no part of an official's duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because
an official act can be performed in the discharge of official duty as
well as in dereliction of it. The section has content and its language G
must be given meaning. What it says is-
"when any public servant ... 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 ...."
H
880 SUPREME COURT REPORTS [2005] SUPP.4 S.C.R.
A We have therefore first to concentrate on the word offence".
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
B an "entrustment" and/or "dominion"; second, that the entrustment
and/or dominion was "in his capacity as a public servant"; third,. that
there was~ "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
c 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
D save by. the doing of an official act, namely officially pennitting their
disposal: and that he did. He actually pennitted their release. and
purported to do it in a~ official capacity, and apart from the fact that
he did not pretend to act privately, there was no other way in which
he could ha.ve done it. Therefore, whatever the intention or motive
behind the act may have been, the physical part of it remained
E 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."
The factual matrix in that case was that three accused therein were
F Government servants, who were in charge of a depot containing stores worth
several lacs of rupees. Some iron stores were said to have been handed over
to the agent of the approver. The charge against them that they being in
charge of those stores and to whom they had been entrusted in various
capacities, entered into a conspiracy to defraud Government of the properties
G and pursuant thereto they arranged to sell them to the approver for a sum
of Rs.4,000.
In P.K. Pradhan v. State of Sikkim represented by the Cemral Bureau
of Investigation, [2001] 6 SCC 704, a three-Judge Bench of this Court upon
noticing.Shreekantiah Ramayya Munipalli (supra) and Matajog Dobey (supra)
H
ROM ESH LAL JAIN v. NAGINDER SINGH RANA [SINHA, J.] 881
laid down the law in the following terms : A
"Thus, from a conspectus of the aforesaid decisions, it will be clear
. that for claiming protection under Section 197 of the Code, it has to
be shown by the accused that there is reasonable connection between
the act complained of and t.he discharge ofofficial duty. An official
act can be performed in the discharge of official duty as well as in B
dereliction of it. For invoking protection under Section 197 of the
Code, the acts of the accused complained of must be such that the
same cannot be separated from the discharge of official duty, but if
there was no reasonable connection between them and the performance
of those duties, the official status furnishes only the occasion or C
opportunity for the acts, then no sanction would be required. If the
case as put forward by the prosecution fails or the defence establishes
that the act purported to be done is in discharge of duty, the
proceedings wi II have to be dropped. It is well settled that question
of sanction under Section 197 of the Code can be raised any time after
the cognizance; maybe immediately after cognizance or framing of D
charge or even at the time of conclusion of trial and after conviction
as well. But there may be certain cases where it may not be possible
to decide· the question effecti.vely without giving opportunity to the
defence to establish that what he did was in discharge of official duty.
In order to come to the conclusion whether claim of the accused that
the act that he did was in cou(se of the performance of his duty was E'
a reasonable one and neither pretended nor fanciful, can be examined
during the course of trial by giving opportunity to the defence to
establish it. In such an eventuality, the question of sanction should
be left open to be decided in the main judgment which may be
delivered upon conclusion of the trial." F
'
However, in State of U.P. v. M.P. Gupta, (2004] 2 SCC 349 upon, inter
alia, noticing Shreekantiah Rammayya Munipalli (supra) and Amrik Singh
v. State of Pepsu (1955] 1 SCR I302, in a case where offences alleged against
a public servant were under Sections 406, 409, 467, 468 and 471 !PC, this·.
Court held : G
"21.. That apart, the contention of the respondent that for offences
under Sections 406 and 409 read with Section 120-B !PC sanction
under Section 197 of the Code is a condition precedent for launching
the prosecution is equally fallacious. This Court has stated the lega!
position in .Shreekantiah Ramayya Munipalli ca.Se and also Amrik H
882 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A Singh case that it is not every offence committed by a public servant
which requires sanction for prosecution under Section 197 of the
Code, nor even every act done by him while he is actually engaged
in the performance of his official duties. Following the above legal
position it was held in Harihar Prasad v. State of Bihar as follows:
(SCC p. 115, para 66)
B
"As far as the offence of criminal conspiracy punishable
under Section 120-B, read with Section 409 of the Indian Penal
Code is concerned and also Section 5(2) of the Prevention of
Corruption Act are concerned, they cannot be said to be of the
nature mentioned in Section 197 of the Code of Criminal Procedure,
c To put it shortly, it is no part of the duty of a p1,1blic servant,
while discharging his official duties, to enter into a criminal
conspiracy or to indulge in criminal misconduct. Want of sanction
under Section 197 of the Code of Criminal Procedure is, therefore,
no bar."
D 22. Above views are reiterated in State of Kera/av. V. Padmanabhan
Nair Both Amrik Singh and Shreekantiah were noted in that case.
Sections 467, 468 and 471 IPC relate to forgery of valuable security,
Will etc; forgery for the purpose of cheating and using as genuine a
· forged document respectively. It is no part of the duty of a public
E servant while discharging his official duties to commit forgery of the
type· covered by the aforesaid offences. Want of sanction under
Section 197 of the Code is, therefore, no bar."
In N Bhargavan Pillai (dead) by LRs. and Anr. v. State of Kera/a, AIR
(2004) SC 2317, it was held
F
"12. As noted in State of H.P. v. MP. Gupta, JT (2003) IO SC 32,
sanction under Section 197 of the Code is not a condition precedent
for an offence under Section 409 IPC."
A Bench of this Court, however, in State of Orissa through Kumar
G Raghvendra Singh and Ors. V. Ganesh Chandra Jew (2004] 8 sec 40, wherein
an allegation was made against six officers of the Orissa Forest Department
that they had falsely implicated the complainant for offences punishable
under the Orissa Forest Act and the Wild Life (Protection) Act, 1972, and
being not content with the said illegal· acts, they seriously assaulted him and
thereby committed offences punishable under Sections 341, 323, 325, 506 and
H 386 read with Section 34 IPC, was of the opinion :
RO MESH LAL JAIN v. NA GINDER SINGH RANA [SINHA, J.) 883
-
. ' .. "Use of the expression "official duty" implies that the act or omission A
must have been done by the public servant in the course of his
service and that it should have been in discharge of his duty. The
section does not extend its protective cover to every act or omission
done by a public servant in service but restricts its scope of operation
to only those acts or omissions which are done by a public servant B
in discharge of official duty.
11. 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 must have been done by the public C
servant in the course of his service and such act or omission must
have been performed as part of duty which further must have been
official in nature. The section has, thus, to be construed strictly while
determining its applicability to any act or omission in the course of
service. Its operation has to be limited to those duties which are
discharged in the course of duty. But once any act or omission has D
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
as 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 E. ·
established that the 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 th~ objective of the section in favour
of the public servant. Other;wise 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 F
force, which may be an offence for the prosecution of which the
sanction may be necessary. But ifthe same officer commits an act in
the course of service but not in discharge of his duty and without any
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 G
servant in discharge of his duty can be deemed to be official was
explained by this Court in Matajog Dobey v. H.C. Bhari, thus: AIR
(1956) SC 44, paras 17 & 19)
"The offence alleged to have been committed (by the accused)
must have something to do, or must be related in some manner, H
884 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A with the discharge of official duty.
\
There must be·a reasonable connection between the act and the
discharge of official duty; the act must bear such relation to the duty
that the accused could lay a reasonable (claim), but not a pretended
·or fanciful claim, that he did it in the course of the performance of his
B duty."·
The said decision was relied upon by another Bench in S.,K. Zutshi and
Anr. v: Bima/ Debnath and Atll"., [2004) 8 SCC 3 holding that when the
. complaint was that illegal gratification was demanded and accepted, the shop
was ransacked and goods were taken away, no sanction would be required_._·
c ·•
However, a somewhat different view was taken in K. Kalimuthu v. State
by DSP [2005) 4 SCC 512 wherein the allegation made against the Appellant
was that he was guilty of various offences punishable under the Indian. !:'enal
Code as also under the 1988 Act. It was held :
D "12. 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 197 of the Code cannoi be disputed."
It was further. observed : ·
E
"15; 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
F stage to stage. Further,
. in cases where offences under. the Act. are
concerned, the effect of _Section 197, dealing with the question of
prejudice has also to be noted."
. Matajog Dobey v. H.C. Bhari, [1955) 2 SCR 925.is a decision rendered
by a Constitution Bench of this Court. In· that case search_of the premises
G was made by the officers of the Income Tax Department. They were authorized
. to make the search and they had with them a warrant_ issued by the
Commissioner for the said purpose. Allegedly, they broke open the door, went
' inside, interfered with some books and drawers oftabl~s. tied the co~plainant
with. a rope and a_;saulted, causing injuries. Chandrasekhara Aiyar J.,' speaking
H for the Constitutioii Bench was of the opinion :
ROMES!-! LAL JAIN v_ NAGINDER SINGH RANA [SINHA. J.] 885
"The objection based on entry into the wrong premises is of no A
substance; it is quite probable that the warrant specified 17 instead
of P-17 by a bona fide mistake or error; or it may be that the party
made an honest mistake. As a matter of fact, the account i:J9oks, etc.
were found in P-n,-the premises raided.
Slightly differing tests have been laid down in the d_ecided cases B
to ascertain the scope and the meaning of the relevant words occurring
in Section 197 of the Code; "any offence alleged to have been ·
committed by him while acting or purporting to act in the discharge
of his official duty". But the difference is only in language and not
in substance. The offence alleged to have been committed must have C
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 an offence; the only point to determine
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 D
for the discharge of the duty, as this question will arise only at a later
stage when the trial proceeds on the merits~ Whai we must find out
is whether the act and the official duty are so inter-related that one
can postulate reasonably. that it was done by the accused in the
performance of the official duty, though possibly in excess of the
needs and requirements of the situation." E
In-8.S. Sambhau v. TS. Krishnaswamy, [1983] l SCC 11, relying on
Mata;og Dobey_ (supra), this Court held that defamatory language used by a
judge to an advocate does not attract the requirement of Section 197 Cr. P.C.
In Om Prakash Gupta v. State of U.P., [1957] SCR 423, another F
Constitution Bench of this Court distinguished offences punishable under the
1988 Act and the Criminal Breach Trust, stating :
" ..... These two offences can co-exist and the one will not be considered
as overlapping the other. A course of conduct can be proved when
a person is arraigned under ss.5(I)(a) and 5(l)(b), but such a course G
is impossible to be let in evidence when an offence under s~. 161 and
162 is being enquired into or tried. Similarly there are a number of
elements which can be proved in an inquiry or trial under s. 5(I)(c)
that cannot be let in by the prosecution when a person is charged for
an offence under s. 405 of the Indian Penal Code. In s. 405 of the H
886 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A Indian Penal Code the offender must willfully suffer another person
~o misappropriate the property entrusted, but in s. 5( I)(c) if he allows
another person to dishonestly or fraudulently misappropriate or
otherwise convert for his own use any property so entrusted, then it
is an offence. There is a vast difference between willfully suffering
another and allowing a person to do a particular thing and in our view
B the word "allows" is much wider in its import. Wilfully pre-supposes
a conscious action, while even by negligence one can allow another
to do a thing.
It seems to us, therefore, that the two offences are distinct and
separate ..... "
c
In Manohar Nath Kaui v. State ofJammu & Kashmir [ 1983] 3 SCC 429,
this Court was of the opinion that cheating by drawing T.A. does not answer
the test of connection between the act in the discharge of official duty and
the performance of the official duty and, thus, sanction for prosecution under
D Section 420 l.P.C. was not required.
In B. Saha and Ors., v. MS. Kochar, [1979] 4 SCC 177 relied upon by
Mr. Tulsi, the accused had tampered with, broke the seal of the consignment
seized by them and removed some of the goods and, thus, abused their
position, this Court applying the test laid down by the Federal Court in Dr.
E Hori Ram v. Emperor, (1939) FCR 159: AIR (1939) FC 43 that the official
capacity is material only in connection with the 'entrustment' and does not
necessarily enter into the later act of misappropriation. or conversion, which
is the act complained of, opined :
"This, however, should not be understood as an invariable proposition
F of law. The question, as already explained, depends on the facts of
each case. Cases are conceivable where on their special facts it can
be said that the act of criminal misappropriation or conversion
complained of is inseparably intertwined with the performance of the
official duty of the accused and therefore, sanction under Section
197(1) of the Code of Criminal Procedure for prosecution of the accused
G for an offence under Section 409, Indian Penal Code was necessary."
It was further held :
"In the light of all that has been said above, we are of opinion that
on the facts of the present case, sanction of the appropriate
H Government was not necessary for the prosecution of the appellants
ROMESH LAL JAIN v. NAG IN DER SINGH RANA f SINHA, J.] 887
for an offence under Sections 409/120-B, Indian Penal Code, because A
the, alleged act of criminal misappropriation complained of was not
committed by them while they were acting ot purporting to act in the
discharge of their official duty, the commission of the offence having
no direct connection or inseparable link with their duties as public
servants. At the most, the official status of the appellants furnished
them with an opportunity or occasion to commit the alleged criminal B
act."
We may furthermore notice that in some cases, for example, State of
Maharashtra v. Atma Ram and Ors. AIR (1966) SC 1786 Baijnath Gupta and
Ors. v. The State of Madhya Pradesh, [1966] l SCR 210 and Harihar Prasad, C
etc. v. State of Bihar, (1972] 3 SCC 89, having regard to the fact situation
obtaining therein, this Court opined that the order of sanction for prosecution
of the Government Servant was not necessary.
In Om Prakash Gupta, (supra), the Constitution Bench observed
"The last argument of Mr. Isaacs is that despite the fact tat the D
prosecution is under s.409 of the Indian Penal Code, still sanction to
prosecute is necessary. Quite a large body of case law in all the High
Courts has held that a public servant committing criminal breach of
trust does not normally act in his capacity as a public servant, see
(a) The State v. Panduran Baburao, (supra)
E
(b) Bhup Narain Saxena v. State, (supra)
(c) State v. Guiab Singh, AIR (1954) Raj. 211.
We are in agreement with the view expressed by Hari Shankar and F.
Randhir Singh JJ. that no sanction is necessary and the view expressed
by Mull J. to the contrary is not correct.,"
Abdul Wahab Ansari v. State of Bihar and Anr., [2000] 8 SCC 500 is
another decision whereupon Mr. Tulsi relied upon, wherein in regard to a
dispute between two sets of Mohammedan residents, allegation of G
encroachment of the property belonging to a mosque was made by one group
against the other and while removing the encroachment several miscreants
armed with weapons started hurling stones and as the situation became out
of control, the appellant therein gave order for opening fire and on that basis
said to have committed offences punishable under Section 302, 307, 380, 427, H
888 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A 504, 147, 148 and 149 of the Indian Penal Code; this Court framed the following
question :
"Whether in the facts and circumstances of the present case, is
it possible for the Court to come to a conclusion that the appellant .
was discharging his official duty and in course of such discharge of
B duty, ordered for opening of fire--...to. control the mob in consequence
.
of which a person died and two persons were injured and in which
event, the provisions of Section 197 of the Code of Criminal Procedure
·can be held to be attracted?"
The said question was answered in the. following terms :
c
"Coming to the second question, it is now well settled· by the
Constitution Bench decision of this Court in Matajog Dobey v. H.C.
Bhari, that in the matter of grant of sanction under Section I 97 of the
Code of Criminal Procedure the offence alleged to have been committed
by the accused must have something to do, or must be related in some
D manner, with the discharge of official duty. In other words, 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. In
E the said case it had been further held that where a power is conferred
or a duty imposed by statute or otherwise, and there is nothing said
expressly inhibiting the exercise of the power or the performance of
the_ duty by any limitations or restrictions, it is reasonable to hold that
it carries with it the power of doing all such acts or employing such
means as are reasonably necessary for such execution, because it is
a rule that when the law commands a thing to be done, it authorises
the performance of whatever may be necessary for executing its
command....... "
The said decision, therefore, has no application m the facts and
circumstances of this case.
G
In Harihar Prasad (supra), it was held :
"The real question therefore is whether the acts complained of in the
present case were directly concerned with the official duties of the
three public servants. As far as the offence of criminal conspiracy .
H
ROMESH LAL JAIN v. NAGINDER SINGH RANA [SINHA. J.] 889
punishable under Section 120-B, read with Section 409 of the Indian A
Penal Code is concerned and also Section 5(2) of the Prevention of
Corruption Act, are concerned they cannot be said to be of the nature
mentioned in Section 197 of the Code of Criminal Procedure. To put
it shortly, it is no part of the duty of a public servant, while discharging
his official duties, to enter into a criminal conspiracy or to indulge in
criminal misconduct.. ... " B
The upshot of the aforementioned discussions is that whereas an order
of sanction in terms of Section 197 Cr. P.C. is required to be obtained when
the offence complained against the public servant is attributable to discharge
of his public duty or has a direct nexus therewith, but the same would not C
be necessary when the offence complained has nothing to do with the .same.
A plea relating to want of sanction although desirably should be considered
at an early stage of the proceedi~gs, but the same would not mean that the
accused cannot take the said plea or the court cannot consider the same ·at
a later stage. 'Each case has to be considered on its own facts. Furthermore,
there may be cases where the question as to whether the sanction was D
required.to be obtained or not would not be possible to be determined unless
some evidence is taken, and in such an event, the said question may have
to be considered even after the witnesses are examined.
The raid and seizure in the .office and godown of the Appellant were
made on 18.03.1992. Seizure of gas cylinders and the lodgment of the First E
Information Report are no doubt acts of official capacity; but undoubtedly the
prosecution was withdrawn on the ground that the same was false. It is in
.the aforementioned context also the question of criminal breach of trust and
other allegations made as also demand and acceptance of a sum of Rs. 20,000
may have to be viewed. p
The contention of Mr. Tulsi that the order dated 23.05.1998 attained
finality and, thus, at a later stage a view could have been taken that obtaining
of any sanction was not necessary, is fallacious. In the said order dated
23.05.1998, the Special Judge did not say that the sanction would be necessary
in terms of Section 197 Cr. P.C. In his order dated 23.05.1998, the learned Judge G
clarified that obtaining of sanction was necessary from the Sanctioning
Authority/Punishing Authority which would obviously refer to the necessity
of an order of sanction under the 1988 Act. We, therefore, do not find any
inherent contradiction in the said orders. The High Court was not also correct
in coming_to the conclusion that the earlier order of the High Court passed
H
890 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A on 23.07.2001 resulted in three consequences. By reason of the said order, as
noticed supra, only that portion of the order of the learned Special Judge
whereby a direction was issued to complete the investigation within one
month was quashed and not the entire order.
The other two consequences inferred by the High Court in the impugned
B order were, therefore, wholly unwarranted.
Furthermore, the statements purported to have been made on behalf of
the prosecution that an order of sanction has to be obtained would not mean
that the complainant has no locus to raise a question that in relation to the
offences punishable under the Penal Code, no order of sanction was necessary
C to be obtained.
The question as to whether an order of sanction would be found
essential would, thus, depend upon the facts and circumstances of each case.
Jn a case where ex facie no order of sanction has been issued when it is
D admittedly a pre-requisite for taking cognizance of the offences or where such
an order apparently has been passed by the authority not competent therefor,
the court may take note thereof at the outset. But where the validity or
otherwise of an order of sanction is required to be considered having regard
to the facts and circumstances of the case and furthennore when a contention
has to be gone into as to whether the act alleged against the accused has
E any direct nexus with the discharge of his official act, it may be permissible
in a given situation for the court to examine the said question at a later stage.
We may hasten to add that we do not intend to lay down a law that
only because a contention has been raised by the complainant or the
prosecution that the question as regard necessity of obtaining an order of
F sanction is dependent upon the finding of fact that the nexus between the
offences alleged and the official duty will have to be found out upon analyzing
the evidences brought on records; the same cannot be done at an earlier
stage. What we intend to say is that each case will have to be considered
having regard to the fact situation obtaining therein and no hard and fast rule
G can be laid down therefor.
1
We have come across cases where the question of validity of sanction
has been raised at the trial and the courts have passed appropriate orders
upon arriving at a conclusion that the order of sanction was defective. [See
State of Karnataka through CBI v. C. Nagarajaswamy, JT (2005) 12 SC 349].
H
ROMESH LAL JAIN v. NAGINDER SINGH RANA [SINHA, J.] 891
The question as to whether sanction is necessary or not, thus, in an A
appropriate case, may have to be determined at different stages. [See Raj
Kishor Roy v. Kamleshwar Pandey and Anr., [2002] 6 SCC 543].
The State before us has, however, taken a stand different from one
taken before the High Court, as it was submitted that it was not a case where
there was no valid order of sanction for prosecution of the First Respondent B
under the 1988 Act and, thus, the entire question should be directed to be
considered at a later stage.
Having regard to the facts and circumstances of the case and keeping
in view the decision of this Court, we are of the opinion that no order of
sanction to prosecute the First Respondent under Section 197 Cr. P.C. was C
necessary to be obtained from the State.
The High Court was, thus, not right in passing the impugned order
particularly in view of the fact that a valid order of sanction was granted in
relation to the offences committed by the First Respondent under the 1988 D
Act. The impugned order of the High Court, therefore, cannot be sustained,
which is set aside accordingly.
The appeal is allowed. No costs.
VM Appeal allowed. E
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public servant"Sign in to search