Supreme Court of India
SURINDERJIT SINGH MAND & ANR.versusSTATE OF PUNJAB & ANR.
- Citation
- 2016 INSC 493
- Decided
- 5 July 2016
- Disposal
- Dismissed
- Bench
- S KHEHAR
Holding
Section 197 of the CrPC is a mandatory pre‑condition for taking cognizance even under Section 319, but the alleged detention from 24‑06‑1999 to 28‑06‑1999 does not require sanction as it was not while acting or purporting to act in discharge of official duty.
Summary
The case concerned the arrest and alleged illegal detention of Neeraj Kumar between 24‑06‑1999 and 28‑06‑1999 by two Deputy Superintendents of Police, Surinderjit Singh Mand and P.S. Parmar. The prosecution, after obtaining sanction under Section 197 of the CrPC for the later arrest on 28‑06‑1999, sought to take cognizance of the earlier alleged detention under Section 319. The appellants argued that no sanction was required for the period before the formal arrest because it was not "while acting or purporting to act in discharge of official duty". The Supreme Court examined the scope of Section 197, held that the alleged detention from 24‑06‑1999 to 28‑06‑1999 did not fall within the protected category and therefore no sanction was needed for that period, but affirmed that Section 197 is a mandatory pre‑condition even when cognizance is taken under Section 319. Consequently, the appeal was dismissed.
Issues considered
- The applicability of Section 197 of the CrPC to offences alleged to have been committed before the formal arrest of the accused.
- Whether cognizance taken under Section 319 CrPC requires prior sanction under Section 197.
- The necessity of sanction for prosecution of police officials for alleged illegal detention from 24‑06‑1999 to 28‑06‑1999.
- The interpretation of "acting or purporting to act in discharge of official duty" in the context of police arrest powers.
Legislation cited
- Code of Criminal Procedure, 1973s. 197, s. 319, s. 36, s. 49, s. 50, s. 50A
- Prevention of Corruption Act, 1988s. 19
Subjects
Section 197 CrPCSection 319 CrPCsanction for prosecutionpublic servant protectionillegal detentioncognizancepolice arrest powersCriminal Procedure
Judgment
[2016] 5 S.C.R. 653
SURINDERJIT SINGH MAND & ANR. A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 565 of2016)
JULY 05, 2016 B
(JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
Code of Criminal Procedure, 1973:
s. I 97 - Sanction before prosecution - Arrest of one person
by police officials on 28. 6.1999 - Complaint by 111other of the c
arrestee alleging illegal and unauthorised detention of her son fro111
24.6.1999 to 28.6.1999 - Prosecution against six police officials
aper obtaining wnction uls. 197 - Application of the complainant
uls. 319 for taking cognizance against the appellants-police
officials - Charges framed against appellants - Assailed in
D
Revision on the ground that appellants could not have been
prosecuted in absence of sanction for prosecution - Revision
dismissed by High Court - On appeal, held: For applying s.197,
it has to be ascertained as to whether the alleged offence had been
committed "while acting or purporting to act in the discharge of
his official duty" - Jn the present case, the period of apprehension E
from 28. 6.1999 (when arrest was admitted) can be considered to
have been made "while acting or purporting to act in the discharge
of their official duty", but not the period fro111 24. 6.1999 to
28.6.1999 - Therefore, sanction for prosecution in respect of the
appellants-accused was not required.
F
ss. 197, 319 - Scope of s.197 - Whether the mandate of s.197
would extend to cases where cognizance taken under s.319 Cr.P.C.
- Held: Mandate of sanction uls.197 is a mandatory pre-requisite,
before a court of competent jurisdiction takes cognizance, even
when cognizance is taken u/s. 319 Cr.P.C.
G
Dismissing the appeal, the Court
HELD: 1. The alleged action constituting the allegations
levelled against the appellants, is based on the arrest and
detention of 'N' from 24.06.1999 upto 28.06.1999 (before, he
H
653
654 SUPREME COURT REPORTS [2016) 5 S.C.R.
A was admitted to have been formally arrested on 28.06.1999).
Insofar as the power of arrest and detention by police officials/
officers is concerned, reference may be made to Sections 36,
49, 50 and 50A of Cr.P.C. In view of s. 36 Cr.P.C, there cannot
be any serious doubt about the fact, that the appellants were
holding the rank of Deputy Superintendent of Police, at the
B
relevant time (from 24.06.199 to 28.06.1999). Both the
appellants were " ... officers superior in rank to an officer in
charge of a police station ... ". Both the appellants were therefore
possessed with the authority to detain and arrest, 'N' at the
relevant time (from 24.06.1999 to 28.06.1999). The question
c for complying with the requirements in Sections 49, 50 and 50A
does not arise for the period under reference (from 24.06.1999
to 28.06.1999), because 'N' according to official police records,
was arrested only on 28.06.1999. [Paras 12, 13 and 14)(670-G-
H; 671-A-D, F]
D 1.2 Court is obliged to embark upon, when confronted with
a proposition of the nature in hand, is to ascertain as to whether
the alleged offence, attributed to the accused, had been
committed by an accused "while acting or purporting to act in
the discharge of his official duty". The official arrest of 'N' in
terms of the pro\'isions of Cr.P.C.would extend during the period
E from 28.06.19<;9 to 30.06.1999. The above period of
apprehension can legitimately be considered as, having been
made "while acting or purporting to act in the discharge of their
official duties". The factual position expressed by the appellants
is, that 'N' was not detained for the period from 24.06.1999 to
F 28.06.1999. His detention during the above period, if true, would
certainly not emerge froin the action of the accused while acting
or purporting to act in the discharge of their official cl uties. If it
emerges from evidence adduced before the trial Court, that 'N'
was actually detained during the period from 24.06.1999 to
28.06.1999, the said detention cannot be taken to have been
G made by the accused while acting or purporting to act in the
discharge of their official duties. More so, because it is not the
case of the appellants, that they had kept 'N' in jail during the
period from 24.06.1999 to 28.06.1999. [Paras 12 and 17l[670-
F; 673-E-H; 674-A]
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 655
& ANR.
1.3 Therefore, sanction u/s. 197 Cr.P.C., for prosecution A
of the accused in relation to the detention of 'N' for the period
from 24.06.1999 to 28.06.1999, would not be required, before a
Court of competent jurisdiction, takes cognizance with reference
to the alleged arrest of 'N'. [Para 17](674-B-C)
P.P. Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC B
131 : 2000 (3) Suppl. SCR 142 - relied on.
Dr. Hori Ram Singh v. Emperor AIR (1939) FC 43;
Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584 :
2006 (3) SCR 305; R. Balakrislma Pillai 1: State of
Kera/a (1996) 1 SCC 478 : 1995 (6) Suppl. SCR 236; C
P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704 :
2001 (3) SCR 1119; Om Prakash v. Slale of Jharkhand
(2012) 12 SCC 72 : 2012 (9) SCR 125; Usharani v.
The Commissioner of Police (2015) 2 KarLJ 511 -
referred to.
D
2. Under Section 197 of Cr.P.C. and/or sanction mandated
under a special statute (as postulated under Section 19 of the
Prevention of Corruption Act) would be a necessary pre-requisite,
before a Court of competent jurisdiction, takes cognizance of an
offence (whether under the Indian Penal Code, or under the
concerned special statutory enactment). The procedure for E
obtaining sanction would be governed by the provisions of Cr.P.C.
and/or as mandated under the special enactment. The words in
Section 197 of Cr.P.C. are, " ... no court shall take cognizance of
such offence except with previous sanction ... ". Likewise sub-
section (1) of Section 19 of the Prevention of Corruption Act F
provides,"No Court shall take cognizance .. except with the
previous sanction ... ". The mandate is clear and unambiguous,
that a Court "shall not" take cognizance without sanction.
Therefore, a Court just cannot take cognizance, without sanction
by the appropriate authority. Thus, it cannot be said that where
cognizance is taken under Section 319 of Cr.P.C., sanction either G
under Section 197 of Cr.P.C. (or under the concerned special
enactment) is not a mandatory pre-requisite. However, it does
not mean that the determination rendered by a Court under
Section 319 Cr.P.C., is subservient to the decision of the
competent authority under Section 197. The grant of sanction H
656 SUPREME COURT REPORTS [2016] 5 S.C.R.
A under Section 197, can be assailed by the accused by taking
recourse to judicial review. Likewise, the order declining sanction,
can similarly be assailed by the complainant or the prosecution.
[Paras 22 and 23)(681-E-H; 682-B-C]
Dilawar Singh vs. Parvinder Singh alias Iqbal Singh
B (2005) 12 SCC 709 : 2005 (5) Suppl. SCR 83; Paul
Varghese vs. State of Kera/a (2007) 14 SCC 783 : 2007
(4) SCR 1155; Subra111a11ia11 Swamy vs. Manmohan
Singh (2012) 3 SCC 64 : 2012 (3) SCR 52 - relied on.
Case Law Reference
c AIR_ (1939) FC 43 referred to Para 10
2006 (3) SCR 305 referred to Para 10
1995 (6) Suppl. SCR 236 referred to Para 10
2001 (3) SCR 1119 referred to Para 10
D
2912 (9) SCR 125 referred to Para 11
(2015) 2 KarLl 511 referred to Para 11
2000 (3) Suppl. SCR 142 relied on Para 16
2005 (5) Suppl. SCR 83 relied on Para 21
E
2007 (4) SCR 1155 relied on Para 21
2012 (3) SCR 52 relied on Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
565 of2016.
F
From the Judgment and Order dated 09.01.2008 in Criminal
Revision No. 348 of 2007 passed by the High Court of Punjab and
Haryana, Chandigarh.
Ram Jethmalani, Sr. Adv., Chirag Madan, Anirudh Anand, Ajay
Awasthi,Anubhav, P.R. Mala, Yash Pal Dhingra, Advs. for the Appellants.
G
Jayant K. Sud, AAG, Ms. Jasleen Chahal, Asst. AG, Varinder
Singh Rana, Jeevan Gautam(For Subhasish Bhowmick), Honney Khanna,
Ajay P. Tushir (For Kuldip Singh), Ad vs. for the Respondents.
The Judgment of the Court was delivered by
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 657
& ANR.
JAGDISH SINGH KHEHAR, J. I. Leave granted. A
2. Surindeijit Singh Mand and P.S. Parmar, the appellants before
this Court, while holding the rank of Deputy Superintendent of Police,
were posted in District Kapurthala, in the State of Punjab, during the
relevant period in I 999. Piara Lal (holding the rank of Assistant Sub-
Inspector), was also posted at Kapurthala, at the same time. The above B
mentioned Piara Lal's son - Neeraj Kumar was officially arrested on
28.06.1999. The arrest ofNeeraj Kumar, was made in furtherance of a
First Information Report bearing No.30, which was registered at Police
Station City, Kapurthala on 03.03. I 999. Before the arrest of Neeraj
Kumar, his father Piara Lal was placed under suspension on I 0.06. I 999.
The aforesaid FIR No.30, we were informed, was in respect of c
complaints made by residents of Kapm1hala, pe11aining to theft of
motorcycles and other vehicles in the city.
3. It was pointed out, that while investigating into the allegations
contained in the complaint dated 03.03. I 999, three persons including
Neeraj Kumar were arrested on 28.06. I 999. Neeraj Kumar was granted D
bail on 30.06.1999. In the above view of the matter, it is apparent that
Neeraj Kumar had remained in jail for just about two/three days (from
28.06. I 999 to 30.06.1999). Usha Rani - mother of Neeraj Kumar
(detained during the investigation of FIR No. 30), filed a representation
asserting, that her son had been detained on 24.06.1999 (and not on
28.06. I 999, as alleged). That would make the duration of his arrest as E
of six/seven days. The present controversy pertains to the additional
four/five days of the arrest ofNeeraj Kumar. Her complaint highlighted,
that her son - Neeraj Kumar was apprehended illegally and
unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for
four/five days. F
4. Investigation into the complaint made by Usha Rani, was directed
to be conducted in the first instance, by Munish Chawla, IPS. In the
report submitted by him, it was concluded, that the charge levelled by
the mother ofNeeraj Kumar, could not be substantiated. Yet again, based
on the accusations levelled by Usha Rani, another investigation was
ordered. This time, it was required to be conducted by M.F. Farooqi, G
IPS. Yet again, in the second enquiry, it was concluded, that there was
no material to establish that Neeraj Kumar had been in police detention
from 24.06. I 999 onwards, till his formal arrest on 28.06. I 999. Despite
the two reports submitted by two senior police officers, wherein it was
found that there was no substance in the allegations levelled by Usha H
658 SUPREME COURT REPORTS [2016) 5 S.C.R.
A Rani, Gurpreet Deo, IPS, at her own, investigated into the matter. She
too arrived at the same conclusion, that there was no substance in the
claim of Usha Rani, that her son had been illegally and unauthorisedly
detained by police personnel, prior to his formal arrest on 28.06.1999.
5. Usha Rani (mother ofNeeraj Kumar) made another written
B complaint, this time to the Hon'ble Administrative Judge (a sitting Judge
of the Punjab and Haryana High Court) having charge of Sessions
Division, Kapmihala, on 0 I. I0.1999. In her complaint, she reiterated,
that her son Neeraj Kumar had been illegally detained by police personnel,
on 24.06.1999. The Hon'bleAdministrative Judge marked the complaint,
dated 01.10.1999, to an Additional District and Sessions Judge, posted in
c the Sessions Division ofKapu1ihala, requiring him to look into the matter.
On 25.09.2000, the concerned Additional District and Sessions Judge,
Kapurthala, submitted a report concluding, that Neeraj Kumar had been
falsely implicated, because he and some other accused had been
discharged by a Court, from the proceedings initiated against them. Based
D on the aforesaid report dated 25.09.2000, First Information Report bearing
No.46, came to be registered at Police Station City Kapurthala, on
22.10.2002.
6. After completion of pol ice investigation in the above FIR No.46,
a chargesheet was filed against six police officials, in the Court of the
E Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Before the
aforesaid chargesheet was filed, the prosecution had obtained sanction
under Section 197 of the Code of Criminal Procedure (hereinafter
referred to as, the 'Code') for prosecuting the six concerned police
officials. It is also relevant to mention, that it was the express contention
of the appellants, that on the conclusion of investigation, no involvement
F of the appellants had emerged, and therefore, their names were recorded
in Column No.2. It was submitted, that the aforesaid depiction of the
names of the appellants in Column No.2 by itself, demonstrates their
innocence (with reference to the allegations made by Usha Rani, that
her son Neeraj Kumar had been illegally detained from 24.06.1999).
G 7. It is not a matter of dispute, that after the statements of three
prosecution witnesses were recorded by the trial Court, Usha Rani moved
an application under Section 319 of the 'Code' before the trial Judge -
the Chief Judicial Magistrate, Kapurthala, for taking cognizance against
the appellants herein. The aforesaid application was allowed by the trial
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 659
& ANR. [JAGDISH SINGH KHEHAR, J.]
Court, on 06.09.2003. Thereupon, the appellants were summoned by A
the Chief Judicial Magistrate, Kapurthala, to face trial. The appellants
contested their summoning before the trial Court by asserting, that their
prosecution was unsustainable in law, because no sanction had been
obtained by the prosecution under Section 197 of the 'Code', beftlre
cognizance was taken against them.
B
8. Consequent upon the appellants having been summoned by the
trial Court, charges were framed against them on 23 .12.2006. The order
passed by the trial Court framing charges against the appellants on
23.12.2006 was assailed by the appellants, through Criminal Revision
· No.348 of 2007. The primary submission advanced on behalf of the
appellants before the High Court was, that the Chief Judicial Magistrate,
c
Kapurthala, could not have proceeded ·against them, in the absence of
sanction of prosecution, under Section 197 of the 'Code'. The High
Court, by its order dated 09.01.2008, dismissed the Criminal Revision
filed by the appellants. The above order dated 09.01.2008 is subject
matter of challenge through the instant appeal. D
9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf
of the appellants, in order to support the claim of the appellants, has
drawn our attention to Section 197 of the 'Code', which is extracted._
hereunder:
"197. Prosecution of Judges and public servants. E
( 1) When any person who is or was a Judge or Magistrate
or a public servant not removable from his office save by '
or with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty, no F
Court shall take cognizance of such offence except with
the previous sanction (save as otherwise provided in the
Lokpal and LokayuktasAct, 2013)-
(a) in the case of a person who is employed or, as
the case may be, was at the time of commission of G
the alleged offence employed, in 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
H
660 SUPREME COURT REPORTS [2016] 5 S.C.R.
A the alleged offence employed, in connection with the
affairs ofa State, of the State Government:
Provided that where the alleged offence was
committed by a person referred to in clause (b) during
the period while a Proclamation issued under clause
B (1) of article 356 of the Constitution was in force in a
State, clause (b) will apply as if for the expression
"State Government" occurring therein, the expression
"Central Government" were substituted.
xxx xxx xxx
c (4) The Central Government or the State Government, as
the case may be, may determine the person by whom, the
manner in which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which
the trial is to be held."
D
(emphasis is ours)
The learned senior counsel highlighted, that sanction under Section
197 of the 'Code' is mandatory, where the concerned public servant is
alleged to have committed an offence "while acting or purporting to act
E in the discharge of his official duty".
I 0. In order to demonstrate the ambit and scope of the tenn "while
acting or purporting to act in the discharge of his official duty", learned
senior counsel placed reliance on Dr. Hori Ram Singh vs. Emperor, AIR
(1939) FC 43, wherein the Court has observed as under:
F "But Sec.4 77-A in express terms covers the case of an
officer, who willfully falsifies accounts which may be his
duty to maintain. They have apparently put theft,
embezzlement, or breach of trust on exactly the same footing
as falsification of accounts. and have not considered the
charge of falsifying the accounts separately from that of
G
criminal breach of trust. This is ignoring the significance of
the words "purporting to be done" which are no less
important. They have thought that an act done or purporting
to be done in the execution of his duty as a servant of the
Crown cannot by any stretching of the English language be
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 661
& ANR. [JAGDISH SINGH KHEHAR, J.]
made to apply to an act which is clearly a dereliction ofhis A
duty as such.
But if an act has purported to be done in execution of duty,
it may be done so, only ostensibly and not really, and if done
dishonestly may still be a dereliction of duty The High Court
Bench have taken the view that the Section is clearly meant B
to apply to an act by a public servant which could be done
in good faith, but which possibly might also be done in bad
faith ..... The Section cannot be meant to apply to cases
where there could be no doubt that the act alleged must be
in bad faith.
c
So far as sub-s. (I) is concerned, the question of good faith
or bad faith cannot strictly arise, for the words used are not
only "any act done in the execution of his duty" but also
"any act purporting to be done in the execution of his duty."
When an act is not done in the execution of his duty, but
purports to have been done in the execution of his duty, it D
may very well be done in bad faith: and even an act which
cannot at all be done in execution of duty if another is made
to believe wrongly that it was being done in execution of
duty It is therefore not possible to restrict the applicability
of the Section to only such cases where an act could E
possibly have been done both in good and bad faith. Of
course, the question of good or bad faith cannot be gone
into at the early stage at which objection may be taken.
Making false entries in a register may well be an act
purported to be done in execution of duty, which would be
an offence, although it can never be done in good faith. It is F
sub-sec. (2) only which introduces the element of good faith,
which relieves the Court of its obligation to dismiss the
proceedings. But that sub-section relates to cases even
previously instituted and in which there may not be a defect
of want of consent, and is therefore quite distinct and G
separate, and not merely ancillary to sub-s.( I), as the learned
Sessions Judge supposed. Having regard to the ordinary
and natural meaning of the words "purporting to be done,"
it is difficult to say that it necessarily implies "purporting to
be done in good faith," for a person who ostensibly acts in
H
662 SUPREME COURT REPORTS [2016) 5 S.C.R.
A execution of his duty still purports so to act, although he
may have a dishonest intention."
(emphasis is ours)
Reliance was also placed on Sankaran Moitra vs. Sadhna Das,
B (2006) 4 sec 584, wherefrom our attention was drawn to the following
paragraph:
"25. The High Court has stated that killing of a person by
use of excessive force could never be performance of duty.
It may be correct so far as it goes. But the question is
c whether that act was done in the performance of duty or in
purported performance of duty. If it was done in
performance of duty or purported performance of duty,
Section 197( 1) of the Code cannot be bypassed by reasoning
that killing a man could never beuone in an official capacity
D and consequently Section 197{1) of the Code could not be
attracted. Such a reasoning would be against the ratio of
the decisions of this Court referred to earlier. The other
reason given by the High Court that ifthe High Court were
to interfere on the ground of want of sanction, people will
lose faith in the judicial process, cannot also be a ground to
E dispense with a statutory requirement or protection. Public
trust in the institution can be maintained by entertaining
causes coming within its jurisdiction, by performing the duties
entrusted to it diligently, in accordance with law and the
established procedure and without delay. Dispensing with
F of jurisdictional or statutory requirements which may
ultimately affectthe adjudication itself, will itselfresult in
people losing faith in the system. So, the reason in that behalf
given by the High Court cannot be sufficient to enable it to
get over the jurisdictional requirement of a sanction under
Section 197(1) of the Code of Criminal Procedure. We are
G therefore satisfied that the High Court was in error in holding
that sanction under Section 197(1) was not needed in this
case. We hold that such sanction was necessary and for
want of sanction the prosecution must be quashed at this
stage. It is not for us now to answer the submission of
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 663
& ANR. [JAGDISH SINGH KHEHAR, J.]
learned counsel for the complainant that this is an eminently A
fit case for grant of such sanction."
(emphasis is ours)
In order to substantiate the proposition being canvassed, the learned
senior counsel, also invited our attention to R. Balakrishna Pillai vs. State B
ofKerala, (1996) I SCC 478, wherein this Court has held as under:
"6. The next question is whether the offence alleged against
the appellant can be said to have been committed by him
while acting or purporting to act in the discharge of his
official duty. It was contended by the learned counsel for c
the State that the charge of conspiracy would not attract
Section 197 of the Code for the simple reason that it is no
part of the duty of a Minister while discharging his official
duties to enter into a criminal conspiracy. In support of his
contention, he placed strong reliance on the decision of this D
Court in Harihar Prasad vs. State of Bihar, (1972) 3 SCC
89. He drew our attention to the observations in paragraph
74 of the judgment where the Court, while considering the
question whether the acts complained of were directly
concerned with the official duties of the public servants
concerned, observed that it was no duty of a public servant E
to enter into a criminal conspiracy and hence want of
sanction under Section 197 of the Code was no bar to the
prosecution. The guestion whether the acts complained of
had a direct nexus or relation with the discharge of official
duties by the public servant concerned would depend on F
the facts of each case. There can be no general proposition
that whenever there is a charge of criminal conspiracy
levelled against a public servant in or out of office the bar
of Section 197(1) of the Code would have no application.
Such a view would render Section 197(1) of the Code
specious. Therefore, the guestion would have to be G
examined in the facts of each case. The observations were
made by the Court in the special facts of that case which
clearly indicated that the criminal conspiracy entered into
by the three delinguent public servants had no relation
H
664 SUPREME COURT REPORTS [2016] 5 S.C.R.
A whatsoever with their official duties and, therefore, the bar
of Section J 97( 1) was not attracted. It must also be
remembered that the said decision was rendered keeping
in view Section 197( I), as it then stood, but we do not base
our decision on that distinction. Our attention was next
invited to a three-Judge decision in B. Saha vs. M.S. Kochar,
B
( 1979) 4 SCC 177. The relevant observations relied upon
are to be found in paragraph 17 of the judgment. It is pointed
out that the words "any offence alleged to have been
committed by him while acting or purpotting to act in the
discharge of his official duty" employed Section 197( 1) of
c the code, are capable of both a narrow and a wide
interpretation but their Lordships pointed out that if they
were construed too narrowly, the section will be rendered
altogether sterile, for, "it is no part of an official duty to
commit an offence, and never can be". At the same time, if
they \vere too widely construed, they will take under their
D
umbrella every act constituting an offence committed in
the course of the same transaction in which the official
duty is performed or is purported to be performed. The
right approach, it was pointed out, was to see that the
meaning of this expression lies between these two extremes.
E 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. Only an
act constituting an offence directly or reasonably connected
with his official duty will require sanction for prosecution.
To put it briefly, it is the quality of the act that is important,
F
and if it falls within the scope of the aforequoted words, the
protection of Section 197 will have to be extended to the
public servant concerned. This decision, therefore, points
out what approach the Coutt should adopt while construing
Section 197(1) of the Code and its application to the facts
G o{the case on hand.
7. In the present case, the appellant is charged with having
entered into a criminal conspiracy with the co-accused while
functioning as a Minister. The criminal conspiracy alleged
is that he sold electricity to an industry in the State of
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 665
& ANR. [JAGDISH SINGH KHEHAR, J.)
Karnataka "without the consent of the Government of A
Kerala which is an illegal act" under the provisions of the
Electricity (Supply) Act, 1948 and the Kerala Electricity
Board Rules framed thereunder. The allegation is that he in
pursuance of the said alleged conspiracy abused his official
position and illegally sold certain units to the private industry
B
in Bangalore (Karnataka) which profited the private industry
to the tune of Rs.19,58,630.40 or more and it is, therefore,
obvious that the criminal conspiracy alleged against the
appellant is that while functioning as the Minister for
Electricity he without the consent of the Government of
Kerala supplied certain units of electricity to a private c
industry in Karnataka. Obviously, he did this in the discharge
of his duties as a Minister. The allegation is that it was an
illegal act inasmuch as the consent of the Government of
Kerala was not obtained before this arrangement was
entered into and the supply was effected. For that reason,
D
it is said that he had committed an illegality and hence he
was liable to be punished for criminal conspiracy under
Section 120-B, I.P.C. lt is, therefore, clear from the charge
that the act alleged is directly and reasonably connected
with his official duty as a Minister and would, therefore,
attract the protection of Section 197(1) of the Act." E
(emphasis is ours)
Reliance was finally placed on P.K. Pradhan vs. State of Sikkim,
(2001) 6 sec 704, and our attention was draw~, to the following F
observations recorded therein:
"5. The legislative mandate engrafted in sub section (1) of
Section 197 debarring a com1 from taking cognizance of an
offence except with the previous sanction of the
Government concerned in a case where the acts complained G
of are alleged to have been committed by a public servant
in discharge of his official duty or purporting to be in the
discharge of his official duty and such public servant is not
removable from office save by or with the sanction of the
Government, touches the jurisdiction of the court itself. It is
H
666 SUPREME COURT REPORTS [2016) 5 S.C.R.
A a prohibition imposed by the Statute from taking cognizance.
Different tests have been laid down in decided cases to
ascertain the scope and meaning of the relevant words
occurring in Section 197 of the Code, "any offence alleged
to have-been committed by him while acting or purporting
to act in the discharge of his official duty." The offence
8
alleged to have been committed must have something to
do, or must be related in some manner, with the discharge
of official duty. No question of sanction can arise under
Section I 97, unless the act complained of is an offence; the
only point for determination is whether it was committed in
c the discharge of official duty. There must be a reasonable
connection between the act and the official duty. It does
not matter even ifthe act exceeds what is strictly necessary
for the discharge of the duty, as this question will arise only
at a later stage when the trial proceeds on the merits. What
a court has to find out is whether the act and the official
D
duty are so inter-related that one can postulate reasonably
that it was done by the accused in the performance of official
duty, though, possibly in excess of the needs and
requirements of situation.
E
xxx xxx xxx
15. 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
F reasonable connection between the act complained of and
the discharge of official duty. An official act can be
performed in the discharge of official duty as well as in
dereliction ofit. 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
G 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 opportunity
for the acts, then no sanction would be required. If the case
as put forward by the prosecution fails or the defence
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 667
& ANR. [JAGDISH SINGH KHEHAR, J.]
establishes that the act purported to be done is in discharge A
of duty, the proceedings will 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 charge or even
at the time of conclusion of trial and after conviction as
B
wel I. But there may be certain cases where it may not be
possible to decide the question effectively without giving
oppo1tunity to the defence to establish that what he did was
in discharge of official duty. Jn order to come to the
conclusion whether claim of the accused, that the act that
he did was in course of the performance of his duty was a c
reasonable one and neither pretended nor fanciful, can be
examined during the course of trial by giving oppo1tunity 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
D
trial."
(emphasis is ours)
All in all, based on the judgments referred to above, it was
contended, that even if it was assumed that Neeraj Kumar had been
detained with effect from 24.06.1999, his detention by the appellants E
was "while acting or purporting to act" in the discharge of the appellants'
official d.uties. And as such, the Chief Judicial Magistrate, Kapurthala,
could not have taken cognizance, without sanction under Section 197 of
the 'Code'.
11. Mr. Varinder S. Rana, learned counsel, who entered F
appearance on behalf of respondent no. 2, seriously contested the
submissions advanced on behalf of d1e appellants. Learned counsel
representing respondent no. 2, placed reliance on the following
observations recorded by the High Court, in the impugned order:
"As far as question of sanction for prosecution of petitioners G
is concerned, the contentions raised by learned counsel for
the petitioners could possibly be applicable for the detention
period since 28.06.1999 when Neeraj Kumar was shown
to have been arrested in FIR No.30 dated 03.03.1999.
However. the petitioners are not entitled to protection of
H
668 SUPREME COURT REPORTS (2016) 5 S.C.R.
A Section 197 of the Code for illegal detention and torture of
Neeraj Kumar since 24.06.1999 till 28.06.1999 when his
arrest was shown in FIR No.30 dated 03.03.1999. The said
period of illegal detention and torture has no nexus much
less reasonable nexus with the discharge or purported
discharge of the official duty of the petitioners.
B
Consequently, the impugned order cannot be said to be illegal
because sanction for prosecution of the petitioners is not
JMUired for illegal detention and torture ofNeeraj Kumar
during the aforesaid period."
(emphasis is ours)
c
In order to support the conclusions drawn by the High Court,
learned counsel for respondent no. 2, also drew our attention to, Om
Prakash vs. State of Jharkhand, (2012) 12 SCC 72, wherein this Court
held as under :
D "32. The true test as to whether a public servant was acting
or purporting to act in discharge of his duties would be
whether the act complained of was directly connected with
his official duties or it was done in the discharge of his
official duties or it was so integrally connected with or
attached to his office as to be inseparable from it (K. Satwant
E Singh v. State of Punjab, AIR 1960 SC 266). The protection
given under Section 197 of the Code has certain limits and
is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his
official duty and is not merely a cloak for doing the
F 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 perfonnance of the official duty,
the excess will not be a sufficient ground to deprive the
public servant of the protection (State ofOrissa vs. Ganesh
Chandra Jew, (2004) 8 SCC 40). If the above tests are
G applied to the facts of the present case, the police must get
protection given under Section 197 of the Code because
the acts complained ofare so integrally connected with or
attached to their office as to be inseparable from it. It is not
possible for us to come to a conclusion that the protection
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 669
& ANR. [JAGDISH SINGH KHEHAR, J.]
granted under Section 197 of the Code is used by the po lice A
personnel in this case as a cloak for killing the deceased in
cold blood."
(emphasis is ours)
Reliance was then placed on Usharani vs. The Commissioner of
Police, (2015) 2 KarLJ 511 (a judgment rendered by the Karnataka 8
High Court), to highlight the importance and significance of personal
liberty, specially with reference to unlawful detention wherein it has been
observed as under:
"I 0. In Constitutional and Administrative Law by Hood
Phillips and Jackson, it is stated thus: c
"The legality of any form of detention may be challenged
at common law by an application for the writ of habeas
corpus. Habeas corpus was a prerogative writ, that is, one
issued by the King against his officers to compel them to
exercise their functions properly. The practical impo1tance D
of habeas corpus as providing a speedy judicial remedy for
the determination of an applicant's claim for freedom has
been asserted frequently by ju dies and writers. Nonetheless,
the effectiveness of the remedy depends in many instances
on the width of the statutory power under which a public E
authority may be acting and the willingness of the Comts to
examine the legality of decision made in reliance on
wideranging statutory provision. It has been suggested that
the need for the "blunt remedy' of habeas corpus has
diminished as judicial review has developed into an ever
more flexible jurisdiction. Procedural reform of the writ may F
be appropriate, but it is important not to lose sight of
substantive differences between habeas corpus and
remedies under judicial review. The latter are discretionary
and the court may refuse relief on practical grounds; habeas
corpus is a writ ofright, granted ex debito justitiae." G
11. The ancient prerogative writ of habeas corpus takes its
name from the two mandatory words "habeas" and
"corpus". 'Habeas Corpus' literally means 'have his body'.
The general purpose of these writs as their name indicates
H
670 SUPREME COURT REPORTS [20 I 6] 5 S.C.R.
A was to obtain the production of the individual before a Court
or a Judge. This is a prerogative process for securing the
liberty of the subject by affording an effective relief of
immediate release from unlawful or unjustifiable detention,
whether in prison or in private custody. This is a writ of
such a sovereign and transcendent authority that no privilege
B
of power or place can stand against it. It is a very powerful
safeguard of the subject against arbitrary acts not only of
private individuals but also of the Executive, the greatest
safeguard for personal liberty, according to all constitutional
jurists. The writ is a prerogative one obtainable by its own
c procedure. In England. the jurisdiction to grant a writ existed
in Common Law, but has been recognized and extended by
statute. It is well established in England that the writ of
habeas corpus is as of right and that the Court has no
discretion to refuse it. "Unlike ce11iorari or mandamus, a
writ of habeas corpus is as of right "to every man who is
D
unlawfully detained. In India, it is this prerogative writ which
has been given a constitutional status under Articles 32 and
226 of the Constitution. Therefore, it is an extraordinary
remedy available to a citizen of this Country, which he can
enforce under Article 226 or under Article 32 of the
E Constitution oflndia."
(emphasis is ours)
12. The first task, which a Court is obliged to embark upon, when
confronted with a proposition of the nature in hand, is to ascertain as to
whether the alleged offence, attributed to the accused, had been
F committed by an accused "while acting or purporting to act in the
discharge of his official duty". In the facts and circumstances of the
present case, the alleged action constituting the allegations levelled against
the appellants, is based on the arrest and detention of Neeraj Kumar
from 24.06. I 999 upto 28.06. I999 (before, he was admitted to have been
G formally arrested on 28.06. I 999).
13. Insofar as the power of arrest and detention by police officials/
officers is concerned, reference may be made to Section 36 of the 'Code'
which postulates, that all police officers superior in rank to an officer in
charge of a pol ice station, are vested with an authority to exercise the
H
SURINDERJlT SINGH MAND & ANR. v. STATE OF PUNJAB 671
& ANR. [JAGDISH SINGH KHEHAR, J.]
same powers (throughout the local area, to which they are appointed), A
which can be exercised by the officer in charge of a police station.
Section 49 of the 'Code' postulates, the manner in which a police officer
is to act, while taking an individual in custody. Section 49 of the 'Code',
cautions the person making the arrest to ensure, that the individual taken
into custody, is not subjected to more restraint than is necessary, to prevent
B
his escape. Section 50 of the 'Code' mandates, that every police officer
arresting a person without a warrant (as is the position, alleged in the
present case), is mandated to forthwith disclose to the person taken in
custody, full particulars of the offence for which he is arrested, as also,
the grounds for such arrest. Section 50A obliges the police officer making
the arrest, to immediately inform friends/relatives of the arrested person c
(on obtaining particulars from the arrested person), regarding his detention.
And an entry of the arrest, and the communication of the.information of
the arrest to the person nominated by the detenu, has to be recorded in
a register maintained at the pol ice station, for the said purpose. Section
50A of the 'Code' also mandates, that the Magistrate before whom
D
such an arrested person is produced, would satisfy himself that the
obligations to be discharged by the arresting officer, had been complied
with.
14. Based on the aforesaid provisions of the 'Code', there cannot
be any serious doubt about the fact, that Surinderjit Singh Mand and P.S.
· Parmar, were holding the rank of Deputy Superintendent of Police, at E
the relevant time (from 24.06.199 to 28.06.1999). Both the appellants
were " ... officers superior in rank to an officer in charge of a police
station ... ". Both the appellants were therefore possessed with the
authority to detain and arrest, Neeraj Kumar at the relevant time (from
24.06.1999 to 28.06.1999). The question for complying with the F
requirements in Sections 49, 50 and 50A does not arise for the period
under reference (from 24.06.1999 to 28.06.1999), because Neeraj Kumar
according to official police records, was arrested only on 28.06.1999.
The position adopted by the appellants was, that Neeraj Kumar was not
under detention for the period from 24.06.1999 to 28~06.1999.
G
15. Keeping the legal position emerging from the provisions of the
'Code' referred to in the foregoing paragraphs in mind, it was the
contention oflearned counsel for the respondents, that in order to require
sanction under Section 197 of the 'Code', it needs to be further established,
H
672 SUPREME COURT REPORTS (2016] 5 S.C.R.
A that the appellants had acted in the manner provided for under the
provisions of the 'Code', during the period Neeraj Kumar was allegedly
arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formal
arrest on 28.06.1999. And only if they had done so, the requirement of
seeking sanction under Section 197 would arise, because in that situation,
the offence allegedly committed would be taken to have been committed
B
"while acting or purporting to act in the discharge of their official duties".
In the present case, the arrest and detention of N eeraj Kumar from
24.06.1999 to 28.06.1999, is denied. The formalities postulated under
the 'Code', on the alleged arrest ofNceraj Kumaron 24.06.1999, were
admittedly not complied with, as according to the appellants, Neeraj
c Kumar was not arrested on that date. It was therefore submitted, that
any arrest or detention prior to 28.06.1999, if true, was obviously without
following the mandatOI)' conditions ofarrest and detention, contemplated
under the provisions (referred to above). And therefore, would not fall
within the realm of"acting or purporting to act in the discharge of their
official duties".
D
16. In order to support the submissions recorded in the foregoing
paragraphs, learned counsel for the respondents placed reliance on P.P.
Unnikrishnan vs. Puttiyottil Alikutty. (2000) 8 SCC 131, and invited our
attention to the following observations recorded therein:
E "21. If a police officer dealing with law and order duty uses
force against unruly persons, either in his own defence or
in defence of others and exceeds such right it may amount
to an offence. But such offence 111 ight fall within
the amplitude of Section 197 of the Code as wel I as
Section 64(3) of the KP Act. But ifa police officer assaults
F a prisoner inside a lock-up he cannot claim such act to be
connected with the discharge of his authority or exercise
of his duty unless he establishes that he did such acts in his
defence or in defence of others or any property. Similarly,
if a police officer wrongfully confines a person in the
G lock-up beyond a period of24 hours without the sanction
ofa Magistrate or an orderof a court it would be an offence
for which he cannot claim any protection in the normal
course, nor can he claim that such act was done in
exercise of his official duty. A policeman keeping a person
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 673
& ANR. [JAGDISH SINGH KHEHAR, J.]
in the fock-up for more than 24 hours without authority is A
not merely abusing his duty but his act would be quite outside
the contours of his duty or authority."
(emphasis is ours)
Based on the provisions of the 'Code', pertaining to arrest and
detention of individuals at the hands of police personnel (referred to B
above), it was submitted, that the arrest of Neeraj Kumar from
28.06.1999 to 30.06.1999 would unquestionably fall within the purview
of"acting or purporting to act in the discharge of his official duties" (of
the concerned police officers/officials who arrested Neeraj Kumar). It
was however asserted, that ifthe arrest ofNeeraj Kumar from 24.06.1999 c
to 28.06.1999 (before he was formally detained on 28.06.1999) is found
to be factually correct, such arrest ofNeeraj Kumar cannot be accepted
to have been made by the appellants - Surinderjit Singh Mand and
P.S.Parmar, while acting or purporting to act in the discharge cf their
official duties. It was therefore submitted, that any alleged criminality, in
connection with the detention of Neeraj Kumar from 24.06.1999 to D
28.06.1999, would not require to be sanctioned under Section 197, before
the concerned Court, took cognizance of the matter, against the concerned
public servants.
17. Having given our thoughtful consideration to the contention
advanced at the hands of learned counsel for the respondents, we are of E
the view, that the decision rendered by this Court in the P.P. Unnikrishnan
case (supra) is clear and emphatic. The same does not leave any room
for making any choice. It is apparent, that the official arrestofNeeraj
Kumar in terms of the provisions of the 'Code', referred to hereinabove,
would extend during the period from 28.06.1999 to 30.06.1999. The above F
period of apprehension can legitimately be considered as, having been
made "while acting or purporting to act in the discharge of their official
duties". The factual position t;xpressed by the appellants is, that Neeraj
Kumar was not detained for the period from 24.06.1999 to 28.06.1999.
His detention during the above period, if true, in our considered view,
would certainly not emerge from the action of the accused while acting G
or purporting to act in the discharge of their official duties. If it emerges
from evidence adduced before the trial Court, that Neeraj Kumar was
actually detained during the period from 24.06.1999 to 28.06.1999, the
said detention cannot be taken to have been made by the accused while
H
674 SUPREME COURT REPORTS (2016] 5 S.C.R.
A acting or purporting to act in the discharge of their official duties. More
so, because it is not the case of the appel !ants, that they had kept N eeraj
Kumar in jail during the period from 24.06.1999 to 28.06.1999. If they
had not detained him during the above period, it is not open to anyone to
assume the position, that the detention ofNeeraj Kumar, during the above
period, was while acting or purporting to act in the discharge of their
B
official duties. Therefore, in the peculiar facts and circumstances of
this case, based on the legal position declared by this Court in the P.P.
Unnikrishnan case (supra), we are of the considered view, that sanction
for prosecution of the accused in relation to the detention of Neeraj
Kumar for the period from 24.06.1999 to 28.06.1999, would not be
c required, before a Court of competent jurisdiction, takes cognizance with
reference to the alleged arrest ofNeeraj Kumar. We therefore hereby,
endorse the conclusions drawn by the High Court, to the above effect.
18. It was also the contention oft earned counsel for the appellants,
that the protection afforded to public servants under Section 197 of the
D 'Code', postulating sanction prior to prosecution, on account of the acts
committed while discharging their official duties, is to shield public servants
from frivolous harassment of prosecution, at the hands of private
individuals. It was therefore, the submission of learned counsel for the
respondents, that the scope and purview of Section 197 of the 'Code',
should be limited to the initiation of criminal proceedings under Chapter-
E XIV of the 'Code', wherein such initiation is postulated under Section
190 (upon receipt ofa complaint, wherein facts disclose the commission
of an offence, or upon a police report of such facts, or upon information
received from any person other than a police officer, that such offence
had been committed). In all the above situations, it is open to a Magistrate
F to take cognizance of such offence subject to the condition, that the
same falls within the jurisdictional competence of the said Magistrate.
The Magistrate would however proceed against a public servant, after
sanction has been granted by the concerned Government. And in case,
the same does not fall within the competence of a Magistrate, to commit
it to a Court of Session, which can take cognizance of the same, as
G provided for by Section 193 of the 'Code'. Whereupon, the Court to
which the matter is committed may proceed against a public servant,
after sanction has been granted by the concerned Government under
Section 197 of the 'Code'. In emphasizing on the above scope of sanction,
it was pointed out, that Section 197 of the 'Code' being a part of Chapter-
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 675
& ANR. [JAGDISH SINGH KHEHAR, J.]
XIV of the 'Code', its applicability would extend to the provisions under A
Chapter-XIV alone. It was submitted, that Section 319 of the 'Code' is
contained in Chapter XXIV, over which Section 197 can h~ve"no bearing.
19. In continuation of the submissions noticed in the foregoing
paragraphs, it was asserted by learned counsel representing the
respondents, thatthe prosecution contemplated under Section 197 of the B
'Code', and the action of the Court in taking cognizance, pertain to actiolll'
initiated on the basis of complaints, which disclose the commission of an
offence, or on a police report of such facts, or upon receipt of information
from a person other than the police officer, that such offence had been
committed. It was asserted, that the above action of taking cognizance
by a Court, is based on alleged "facts" and not "on evidence" recorded
c
by a Court. The above distinction was drawn by referring to Section
190 of the 'Code' which contemplates initiation of action on the basis of
facts alleged against.an accused, as against, Section 319 of the 'Code'
whereunder action is triggered against the concerned person only if it
appears from the evidence recorded during the trial, that the said person D
was involved in the commission of an offence. While making a reference
to Section 319 of the 'Code', it was submitted on behalf of the
respondents, that cognizance taken under Section 319 of the 'Code',
was by the Court itself, and therefore, the same having been based on
"evidence'', as also, the satisfaction of the Court itself, that such person
E
needed to be tried together with the "other accused'', it seemed
unreasonable, that sanction postulated under Section 197 of the 'Code'
should still be required. It was pointed out, thatthe protection contemplated
under Section 197 of the 'Code', was not a prerequisite necessity, when
cognizance was based on the evaluation of"evidence" by a Court itself.
Learned counsel emphasized, that when a Court itself had determined, F
that cognizance was required to be taken, based on evidence which had
been recorded by the same Court, it would be undermining the authority
of the concerned Court, if its judicial determination, was considered
subservient to the decision taken by the authorities contemplated under
Section 197 of the 'Code'. Based on the submissions noticed above, it
was the vehement contention of learned counsel for the respondents, G
that the mandate of Section 197 would not extend to cases where
cognizance had been taken under Section 319 of the 'Code'.
20. While dealing with the first contention, we have already
H
676 SUPREME COURT REPORTS [2016] 5 S.C.R.
A recorded our conclusions, which are sufficient to dispose of the matter
under consideration. But, an important legal proposition has been
canvassed, as the second submission, on behalf ofthe respondents (which
we have recorded in the foregoing paragraph). Since it squarely arises
in the facts and circumstances of this case, we consider it our bounden
duty, to render our determination thereon, as well. In the succeeding
B
paragraphs, we will deal with the second contention.
21. Insofar as the second contention advanced at the hands of
learned counsel for the respondents is concerned, we are of the view
that there is sufficient existing precedent, to draw a conclusion in respect
of the proposition canvassed. Reference in the first instance may be
c made to Dilawar Singh vs. Parvinder Singh alias Iqbal Singh, (2005) 12
SCC 709. The following observations in the above cited judgment are
ofrelevance to the present issue:
"2. It is necessary to mention the basic facts giving rise to
the present appeals. On the complaint made by the wife, a
D case was registered against Parvinder Singh@ Iqbal Singh
under Section 406/498-A IPC. On 27.1.2000 Parvinder Singh
@ Iql'lal Singh gave a complaint to the SSP, Barna la alleging
that on 23.1.2000, Jasbir Singh, AS! and a Home Guard
came to his house on a scooter and forcibly took him to the
E Police Station Bamala. He was beaten and tortured and
was subjected to third-degree methods. Some of his relatives,
namely, Jamail Singh, Sukhdev Singh, Sadhu Singh Grewal
and Sukhdev Singh Virk came to the police station and
requested the police personnel not to beat or torture him. It
was f1:11'ther alleged in the complaint that Jasbir Singh, AS!,
F told them that they should talk to Dilawar Singh, S.H.0.,
who was sitting there on a chair. Dilawar Singh then
demanded an amount ofRs.20,000/- for releasing Parvinder
Singh. His relations then brought the amount, out of which
Rs.15,000/- was offered to Dilawar Singh but he said that
G the money may be handed over to ASI Jasbir Singh. The
amount ofRs.15,000/- was then given to ASI Jasbir Singh,
who kept the same in the pocket of his coat. Parvinder
Singh was medically examined on 28.1.2000 and a case
was registered under Section 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as "the Act").
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 677
& ANR. [JAGDISH SINGH KHEHAR, J.]
After investigation, charge-s~eet was submitted only against A
ASI Jasbir Singh. A closure report was submitted against
Dilawar Singh, S.H.0. as in the opinion of the investigating
officer he had not committed any offence. It may be
mentioned here that for prosecution of ASI Jasbir Singh,
necessary sanction had been obtained from the competent
B
authority under Section 19 of the Act. After the statement
of the complainant Parvinder Singh had been recorded, he
moved an application under Section 319 Cr.P.C. for
summoning Dilawar Singh, S.H.O. as a co-accused in the
case. After hearing the counsel for the parties, the learned
Special Judge dismissed the application by the order dated c
7.1.2002. Parvinder Singh filed a revision petition against
the aforesaid order which has been allowed by the High
Court by the impugned order dated 3. 7.2002 and a direction
has been issued to summon Dilawar Singh and try him iri
accordance with .law.
D
xxx xxx xxx
4. Jn our opinion, the contention raised by the learned counsel
forthe appellant is well founded. Sub-section (I) of Section
19 of the Act, which is relevant for the controversy in
dispute, reads as under : E
"19. Previous sanction necessa1:y for prosecution.-
( I) No court shall take cognizance of an offence
punishable under sections 7, I 0, 11, 13 and l 5 alleged
to have been committed by a public servant, except
with the previous sanction, - F
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the sanction
of the Central Government, of that Government;
(b) in the case of a person who is employed in G
connection with the affairs of a State and is not
removable from his office save by or with sanction
of the State Government, of that Government;
(c) in the case of any other person, of the authority
H
678 SUPREME COURT REPORTS [2016) 5 S.C.R.
A competent to remove him from his office."
This section creates a complete bar on the power of the
Court to take cognizance of an offence punishable under
Sections 7, 10, 11, l3 and 15 alleged to have been committed
by a public servant, except with the previous sanction of
B the competent authority enumerated in clauses (a) to (c) of
this sub-section. If the sub-section is read as a whole, it will
clearly show that the sanction for prosecution has to be
granted with respect to a specific accused and only after
sanction has been granted that the Court gets the
competence to take cognizance of an offence punishable
c under Sections 7, 10, 11, 13 and 15 alleged to have been
committed by such public servant. It is not possible to read
the section in the manner suggested by the learned counsel
for the respondent that if sanction for prosecution has been
granted qua one accused, any other public servant for whose
D prosecution no sanction has been granted, can also be
summoned to face prosecution.
5. In State v. Raj Kumar Jain, ( 1998) 6 SCC 551, the Court
was examining the scope of Section 6(1) of the Prevention
of Corruption Act, 1947, which is almost similar to sub-
E section (1) of Section 19 of the Act. After quoting the
provisions of Section 6(1) of the Prevention of Corruption
A~t. 194 7, it was held as under in para 5 of the Report:
{SCC pp. 552-53)
"5. From a plain reading of the above section it is
F evidently clear that a Court cannot take cognizance
of the offences mentioned therein without sanction
of the appropriate authority. In enacting the above
section, the legislature thought of providing a
reasonable protection to public servants in the
discharge of their official functions so that they may
G perform their duties and obligations undeterred by
vexatious and unnecessary prosecutions."
6. Ir! Jaswant Singh v. State of Punjab, AIR 1958 SC 124,
sanction had been granted for prosecution of the accused
for an offence under Section 5(1)(d) of the Prevention of
H
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 679
& ANR. [JAGDISH SINGH KHEHAR, J.]
Corruption Act 194 7, but no sanction had been granted for A
his prosecution under Section 5( l)(a) of the said Act. It
!Vas held that no cognizance could be taken for _prosecution
of the accused under Section 5( l)(a) of the Prevention of
Corruption Act, 1947. as no sanction had been granted with
regard to the said offence, but the accused could be tried
B
under Section 5( 1)(d) of the said Act as there was a valid
sanction for prosecution under the aforesaid provision.
7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130,
decided by this Bench on 29.9.2005, it was held that in the c
absence ofa valid sanction on the date when the Special
Judge took cognizance of the offence, the taking of the
cognizance was without jurisdiction and wholly invalid. This
being the settled position oflaw, the impugned order of the
High Court directing summoning of the appellant and
p1oceeding against him along with Jasbir Singh, ASI is clearly D
erroneous in law.
(emphasis is ours)
The above issue was also examined by this Court in Paul Varghese
vs. State of Kerala, (2007) 14 SCC 783, wherein this Court observed as E
under:
"2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Kera la High Court allowing the
revision filed by the Respondent 2 in the present appeal
who was the petitioner before the High Court. He had
F
questioned correctness of the order passed by the Inquiry
Commissioner and Special Judge, Trichoor, by which the
prayer for his impleadment as the accused in terms of
Section 319 of the Code of Criminal Procedure, 1973 (in
short "the Code") was accepted. By the said order the
Trial Court had held that Section 319 of the Code overrides G
the provisions of Section 19 of the Prevention of Corruption
Act, 1988 (in short "the Act") and for exercise of power
under the former provision, the only conditions required to
be fulfilled are set out in sub-section (4) of Section 319
H
680 SUPREME COURT REPORTS [2016] 5 S.C.R.
A itself. The High Court felt that the view was not sustainable
in view of what has been stated by this Court in Dilawar
Singh v. Parvinder Singh alias Iqbal Singh and Anr. (2005
(12) SCC 709). Accordingly, the order was set aside.
xxx xxx xxx
B 4. As has been rightly held by the High Court in view of
what has been stated in Dilawar Singh's case (supra), the
Trial Court was not justified in holding that Section 319 of
the Code has to get preference/primacy over Section 19 of
the Act, and that matter stands concluded ....."
c (emphasis is ours)
Last of all, reference may be made to a recent decision of this
Court in Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64.
For-the issue under reference, the following observations recorded in
D the above judgment are relevant:
"74. Keeping those principles in mind, as we must, if we
look at Section 19 of the P.C. Act which bars a Court from
taking cognizance of cases of corruption against a public
servant under Sections 7, 10, 11, 13 and 15 of the Act, unless
E th~ Central or the State Government, as the case may be,
has accorded sanction, virtually imposes fetters on private
citizens and also on prosecutors from approaching Court
against corrupt pub Iic servants. These protections are not ·
available to other citizens. Public servants are treated as a
special class of persons enjoying the said protection so that
F they can perform their duties without fear and favour and
w'.thout threats of malicious prosecution. However, the said
protection against malicious prosecution which was extended
in public interest cannot become a shield to protect corrupt
officials. These provisions being exceptions to the equality
G provision of Article 14 are analogous to the provisions of
protective discrimination and these protections must be
construed very narrowly. These procedural provisions
relating to sanction must be construed in such a manner as
to advance the causes of honesty and justice and good
H ~··
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB 681
& ANR. [JAGDISH SINGH KHEHAR, J.]
governance as opposed to escalation of corruption. A
75. Therefore, in every case where an application is made
to an appropriate authority for grant of prosecution in
connection with an offence under the P.C. Act it is the
bounden duty of such authority to apply its mind urgently to
the situation and decide the issue without being influenced B
by any extraneous consideration. In doing so, the authority
must make a conscious effort to ensure the Rule of Law
and cause of justice is advanced. In considering the question
of granting or refusing such sanction, the authority is
answerable to law and law alone. Therefore, the
requirement to take the decision with a reasonable dispatch c
is of the essence in such a situation. Delay in granting
sanction proposal thwarts a very valid social purpose,
namely, the purpose of a speedy trial with the requirement
to bring the culprit to book. Therefore, in this case the right
of the sanctioning authority, while either sanctioning or D
refusing to grant sanction, is coupled with a duty."
(emphasis is ours)
22. The law declared by this Court emerging from the judgments
referred to hereinabove, leaves no room for any doubt, that under Section
197 of the 'Code' and/or sanction mandated under a special statute (as E
postulated under Section 19 of the Prevention of Corruption Act) would
be a necessary pre-requisite, before a Court of competent jurisdiction,
takes cognizance of an offence (whether under the Indian Penal Code,
or under the concerned special statutory enactment). The procedure
for obtaining sanction would be governed by the provisions of the 'Code' F
and/or as mandated under the special enactment. The words engaged
in Section 197 of the 'Code' are, " ...no court shall take cognizance of
such offence except with previous sanction ... •. Likewise sub-section
(I) of Section 19 of the Prevention of Corruption Act provides, "No
Cou~ shall take cognizance .. except with the previous sanction... ". The
mandate is clear and unambiguous, that a Court "shall not" take cognizance G
without sanction. The same needs no further elaboration. Therefore, a
Court just cannot take cognizance, without sanction by the appropriate
authority. Thus viewed, we find no merit in the second contention
advanced at the hands of learned counsel for the respondents, that where
H
682 SUPREME COURT REPORTS [2016] 5 S.C.R.
A cognizance is taken under Section 319 of the 'Code', sanction either
under Section 197 of the 'Code' (or under the concerned special
enactment) is not a mandatory pre-requisite.
23. According to learned counsel representing respondent no. 2,
the position concluded above, would give the impression, that the
B determination rendered by a Court under Section 319 of the 'Code', is
subservient to the decision of the competent authority under Section
197. No, not at all. The grant of sanction under Section 197, can be
assailed by the accused by taking recourse to judicial review. Likewise,
the order declining sanction, can similarly be assailed by the complainant
or the prosecution.
c
24. For the reasons recorded hereinabove, and in view of the
conclusions recorded by us in paragraph 17, we are of the view that
there is no merit in the instant appeal and the same deserves to be
dismissed. Ordered accordingly.
D
Kalpana K. Tripathy Appeal dismissed.
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