2023 (4) TMI 1431 - SC - Indian Laws

Sanction Required for Prosecution Under Section 197 Cr.P.C; Magistrate's Order Set Aside for Lack of Sanction

Amod Kumar Kanth Versus Association of Victim of Uphaar Tragedy And Anr.

The SC allowed the appeal, setting aside the Magistrate's order taking cognizance against the appellant without sanction, in violation of Section 197 ... Rejection of closure report filed by the Central Bureau of Investigation (CBI) which was filed against the appellant - cognizance by Magistrate against public servant - Delhi Police is the authority which sanctions prosecution under Section 197 of the Cr.P.C. - HELD THAT:- The period in question when he had a connection with the theater in question can be seen as 1979-1980. We have already indicated indisputably the train of events which unfolded and the genesis of which is the issuance of the notification in 1976 by the Lieutenant Governor. The number of seats were allowed to be increased. The appellant had nothing to do with that. Based on the decision, the seats were increased. Again the appellant was nowhere near the scene at the time. The appellant took over on 02.02.1979. On 27.07.1979, a notification came to be issued revoking the earlier notification issued on 13.09.1976. Acting strictly in obedience to the said notification revoking the earlier notification, the appellant did issue an order dated 28.07.1979. The subsequent notification revoking the earlier notification as also the action of the appellant came to be impugned before the High Court of Delhi. An interim order followed. The appellant did defend the action as was expected of him as an official respondent. It is thereafter that the High Court proceeded to render its judgment. The High Court found that the relaxations granted under the proviso to Rule 3(3) were capable of being modified or revoked and in the circumstances, the cancellations of the relaxations were justified and legal. It may be true that with the benefit of hindsight, following the unfortunate tragedy which took place nearly 17 years, thereafter, the loopholes fatal as it turned out to be, the action of the appellant and the members of the Committee had been laid bare - On considering the question of cognizance being taken in the absence of sanction and thereby Section 197 of the Cr.P.C. being flouted it is not to be conflated and thereby confused with the question as to whether an offence has been committed. The salutary purpose behind Section 197 of the Cr.P.C. is protection being accorded to public servants. When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat the salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts and therefore, would have to be decided on a case to case basis. The Magistrate erred in the facts of this case in taking cognizance against the appellant contrary to the mandate of Section 197 of the Cr.P.C. On that short ground alone, the appellant succeeds. The appeal is allowed. The impugned order will stand set aside. The proceedings challenged in Section 482 will stand quashed. It is made clear that this will not stand in the way of the competent authority taking a decision in the matter and/ or granting sanction for prosecuting the appellant in accordance with law. Appeal allowed. 1. ISSUES PRESENTED and CONSIDERED 1. Whether cognizance can be taken against a public servant for offences allegedly committed in the discharge or purported discharge of official duties without prior sanction under Section 197 of the Code of Criminal Procedure, 1973 (Cr.P.C.). 2. Whether the order directing further investigation under Section 173(8) Cr.P.C. after conclusion of trial and judgment is legally permissible. 3. Whether the delay of nearly 17 years between the appellant's official acts/omissions and the incident in question affects the criminal liability or the applicability of Section 197 Cr.P.C. 4. Whether the conduct and pleadings of the public servant (appellant) affect the entitlement to protection under Section 197 Cr.P.C. 5. Whether the principle that cognizance is taken of the offence and not the offender affects the requirement of sanction under Section 197 Cr.P.C. in the present case. 6. Whether the absence of sanction under Section 197 Cr.P.C. vitiates the cognizance taken and the summons issued against the appellant. 7. Whether the appellant's official acts related to the licensing and regulation of cinema theaters, including orders for removal of additional seats, were within the scope of his official duties. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Requirement of sanction under Section 197 Cr.P.C. for prosecution of public servants - Legal Framework and Precedents: Section 197 Cr.P.C. mandates prior sanction of the competent authority before taking cognizance of offences alleged to have been committed by a public servant while acting or purporting to act in the discharge of official duties. The protection is intended to shield public servants from frivolous, vexatious, or malicious prosecution arising from official acts. Key precedents include: D. Devaraja v. Owais Sabeer Hussain: Emphasized that cognizance cannot be taken without sanction if the act is reasonably connected with official duty; Section 482 Cr.P.C. can be invoked to quash proceedings lacking sanction. Indra Devi v. State of Rajasthan: Clarified that the test is whether the act charged has a reasonable connection with official duties; sanction is required if so, even if the accused is charged with conspiracy. Abdul Wahab Ansari v. State of Bihar: Held that the question of sanction affects the jurisdiction of the court to take cognizance; the accused can raise the plea of absence of sanction at any stage, including before framing of charges. Surinderjit Singh Mand v. State of Punjab: Distinguished between cognizance on facts (Section 190) and cognizance on evidence (Section 319), but reaffirmed that sanction is required for offences committed in discharge of official duties. Devinder Singh v. State of Punjab: Summarized principles that sanction is necessary to protect honest public servants; the connection between act and official duty must be reasonable; sanction can be considered at any stage; courts are not sanctioning authorities. - Court's Interpretation and Reasoning: The Court held that the appellant was a public servant acting in the discharge or purported discharge of official duties related to licensing and regulation of cinema theaters. All acts including issuing orders for removal of additional seats, filing counter affidavits, and issuing show cause notices were within official functions. The Court emphasized the distinction between the question of whether an offence has been committed and whether sanction is required for prosecution. The absence of sanction vitiates the jurisdiction of the Magistrate to take cognizance. The Court found that both the Magistrate and High Court erred in ignoring the mandatory requirement of sanction under Section 197 Cr.P.C. before taking cognizance against the appellant. - Key Evidence and Findings: Documents including the notification revoking earlier permissions, orders issued by the appellant, counter affidavits filed by him, and the High Court's directions on substantial compliance with rules were considered. The appellant's acts were connected to official duties. - Application of Law to Facts: Applying the test of reasonable connection with official duty, the Court concluded that the appellant's acts fell within the scope of Section 197 Cr.P.C. protection. Therefore, cognizance without sanction was illegal. - Treatment of Competing Arguments: The respondents argued that the severity of the tragedy and multiple court findings against licensing authorities justified cognizance. The Court acknowledged the tragedy but held that legal safeguards under Section 197 cannot be bypassed. The contention that cognizance taken under Section 319 Cr.P.C. (summoning additional accused during trial) obviates the need for sanction was rejected based on authoritative precedent. - Conclusion: The absence of prior sanction under Section 197 Cr.P.C. renders the cognizance and summons issued against the appellant invalid. Protection under Section 197 applies even if offences are alleged, provided acts are connected to official duties. Issue 2: Legality of ordering further investigation under Section 173(8) Cr.P.C. after trial conclusion - Legal Framework and Precedents: Section 173(8) Cr.P.C. allows further investigation during trial if new facts emerge. However, the power under Section 319 Cr.P.C. to summon additional accused must be exercised before pronouncement of judgment and sentence. Reference was made to Sukhpal Singh Khaira v. State of Punjab, which held that summoning additional accused after conclusion of trial and judgment is impermissible. - Court's Interpretation and Reasoning: The Court noted that the Sessions Judge ordered further investigation after convicting the original accused, and the CBI filed a closure report thereafter. The application under Section 319 Cr.P.C. against the appellant was pending without orders during the trial and only received attention post-judgment. The Court indicated that this procedure departed from the legal requirement that Section 319 Cr.P.C. powers be exercised before sentencing. - Conclusion: The order for further investigation and subsequent summoning of the appellant after trial conclusion was not in accordance with law. However, since the appeal succeeded on the sanction ground, the Court did not pronounce finally on this issue. Issue 3: Effect of delay between official acts and incident on criminal liability and applicability of Section 197 Cr.P.C. - Legal Framework and Precedents: Delay alone does not negate the applicability of Section 197 Cr.P.C. if the acts are connected to official duties. The principle in State of Haryana v. Bhajan Lal suggests that criminality must be established on merits. - Court's Interpretation and Reasoning: The Court observed that the appellant's acts occurred in 1979-1980, whereas the tragedy happened in 1997. Inspections and oversight by other authorities continued during the intervening years. The Court found that the delay and subsequent events do not remove the protection under Section 197 Cr.P.C. for acts done in discharge of official duties. - Conclusion: The temporal gap does not affect the requirement of sanction or the protection under Section 197 Cr.P.C. Issue 4: Effect of appellant's conduct and pleadings on entitlement to Section 197 Cr.P.C. protection - Court's Interpretation and Reasoning: The respondents pointed to inconsistencies in the appellant's pleadings (e.g., whether he personally inspected the theater) to argue against immunity. The Court held that such conduct or change of stance does not negate the applicability of Section 197 Cr.P.C. protection if the acts are connected to official duties. - Conclusion: The appellant's conduct or pleadings do not disentitle him from protection under Section 197 Cr.P.C. Issue 5: Whether cognizance of offence and not offender affects requirement of sanction - Court's Interpretation and Reasoning: Respondents argued that cognizance is of the offence, not the offender, so sanction is not mandatory. The Court rejected this, emphasizing that Section 197 Cr.P.C. protects public servants from prosecution for offences committed in official capacity, regardless of whether cognizance is taken of offence or offender. - Conclusion: The principle that cognizance is taken of the offence does not override the statutory requirement of sanction under Section 197 Cr.P.C. Issue 6: Effect of absence of sanction on cognizance and summons - Court's Interpretation and Reasoning: Without prior sanction, the Magistrate lacked jurisdiction to take cognizance or issue summons against the appellant for offences allegedly committed in official capacity. The Court held that such proceedings are liable to be quashed under Section 482 Cr.P.C. to prevent abuse of process. - Conclusion: The absence of sanction vitiates the proceedings; quashing is warranted. Issue 7: Whether appellant's official acts related to licensing and regulation fell within official duties - Court's Interpretation and Reasoning: The appellant's acts-issuing orders to remove additional seats, filing counter affidavits, issuing show cause notices-were all connected with his role as Deputy Commissioner of Police and licensing officer under the Cinematograph Act, 1952. The Court noted the High Court judgment which held that compliance with rules was to be substantial and not rigid, and that the appellant acted within this framework. - Conclusion: Appellant's acts were within the discharge or purported discharge of official duties, attracting Section 197 Cr.P.C. protection.