TaxTMI 
TaxTMI 
2024 (12) TMI 935
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....r short, the "CrPC") whereby the High Court allowed the applications and quashed the proceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others) pending before the CJM, Firozabad, both arising out of Case Crime No. 617 of 2007 registered for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for short, the "IPC") with the Dakshin Police Station, District Firozabad, Uttar Pradesh. A. FACTUAL MATRIX 3. On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the "appellant") lodged a First Information Report (hereinafter, "FIR") as Case Crime No. 617 of 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307 of IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Dixit and three others. The FIR alleged that the appellant's brother, Suman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad, was killed and his brother's son Harsh aged about 4 ½ years was grievously injured by the....
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.... the offence under Section 34 of the Excise Act in Murar, Gwalior allegedly for the purpose of shielding the accused, Ashok Dixit, was still pending. 6. Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded the statements of SHO D.S. Khushawa, respondent no. 3, respondent no. 4 and respondent no. 5 respectively of the Murar Police Station, Gwalior under Section 161 of CrPC. 7. Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad moved an application before the CJM, Gwalior, Madhya Pradesh, requesting that the proceedings in Case No. 15003 of 2007 relating to the Case Crime No. 967 of 2007 under Section 34 of the Excise Act filed against the accused Ashok Dixit, pending before him, be stayed. The application alleged that the respondent no. 1 who was posted in Gwalior as Town Inspector (for short, "TI") was a relative of the accused Ashok Dixit. It was further alleged that the respondent nos. 1, 3, 4 and 5 respectively had conspired to shield the accused from the offence of murder by creating a bogus case under Section 34 of the Excise Act with the sole object of providing the accused with an alibi for the crime alleged to have been committed in Firozabad. ....
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.... preferred Criminal Misc. Writ Petition No. 10181 of 2008 before the High Court of Allahabad and vide order dated 23.07.2008, the arrest of respondent no. 1 was stayed. 12. On 30.07.2008, the Superintendent of Police, Firozabad, addressed one another letter to the D.I.G., Gwalior in the form of a reminder to accord sanction under Section 197 CrPC for prosecuting the respondents herein. However, on 02.08.2008, the D.I.G., Gwalior replied to the Superintendent of Police, Firozabad, informing him that sanction for prosecution cannot be granted till the disposal of the trial in connection with Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior for the offence under Section 34 of the Excise Act. 13. On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 of 2008 under Section 482 CrPC before the High Court of Madhya Pradesh at Gwalior for quashing the criminal proceedings concerning Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007 registered for the offence under Section 34 of the Excise Act pending before the Court of CJM, Gwalior. In the alternative, it was prayed that the proceeding be stayed till a decision is arrived at in the....
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....arge Sheet was filed since he had found out that the respondent no. 1 was not posted at the Murar Police Station, Gwalior at the time of the arrest of Ashok Dixit for the offence under Section 34 of the Excise Act and therefore, the provision of sanction under Section 197 CrPC would not be attracted against the respondent no. 1. It is pertinent to observe here that it is the case of the respondent no. 1 herein that the Charge Sheet No. 3A of 2008 was backdated to 03.11.2008 when in fact it was actually filed on 24.11.2008 before the Magistrate. 15. The mother of respondent no.1, while alleging that the appellant was trying to falsely implicate the respondent no. 1 in the case of murder, moved an application before the D.I.G., Firozabad, requesting that the investigation be transferred from the Dakshin Police Station to some other police station. The D.I.G., Firozabad vide order dated 11.11.2008 directed the Senior Superintendent of Police, Firozabad (for short, "S.S.P.") to look into the matter. Thereafter, the S.S.P. called for a status report on the case from the Circle Officer vide letter dated 14.11.2008. The status report submitted by the Circle Officer revealed that while ....
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....stigation I.O. has submitted its report to SSP, Gwalior and JM, Gwalior and stated that the case was false. The above mentioned police officials have been suspended after conducting a departmental investigation also they have been named for conspiring the death along with accused Ashok Dixit in the charge sheet that has been presented before CJM, Firozabad in which they have been charged u/s 302, 120B I.P.C... It is correct that the distance of 160 kilometres cannot be covered in one hour and if accused Ashok Dixit was at Murar, Gwalior at 9.30 a.m., then he cannot be involved in the commission of incident at Firozabad at 8.30 a.m. It was contended in this regard on behalf of the prosecution that accused Ashok Dixit is a cunning criminal. He showed his presence there colluding with Murar Police station, Gwalior in order to escape himself from the offence of murder. The investigator SHO Shri Baldhari Singh made enquiries after going there, then the whole matter was found forged and the investigator gave an application to SSP Gwalior in this regard and also submitted an application before JM Gwalior Madhya Pradesh and keeping the investigation in progress, it was found that ....
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....r passed in Misc. Case No.5971. The copy of the order passed by the Hon'ble High court bench at Gwalior is filed on record from 613B/25 to 613B/30. SLP has been filed against the said order before the Hon'ble Supreme court which was not admitted for hearing, the copy of the same is filed on record at 613B/31, Therefore, no profit of case under Section 34 of Excise Act cannot be given to accused Ashok Dixit and his presence at Murar, District Gwalior at the time of incident under the case of 34 Excise Act has been found forged and the accused has made a forged plea of alibi colluding with the police officials." (emphasis supplied) 19. The High Court at Allahabad heard the Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed them vide the common Judgment and Order dated 19.04.2018. The High Court quashed the proceedings in Case Nos. 67 of 2008 and 67A of 2009 respectively essentially on the ground that sanction to prosecute the respondent nos. 1, 3, 4, and 5 respectively under Section 197 CrPC was necessary & since it had not been obtained, the trial cannot proceed. The relevant observations are reproduced hereinbelow: "A....
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....ok Dixit in Murar, Gwalior was found to be false & bogus and therefore, charge sheet came to be filed against those police officials for acting in collusion with Ashok Dixit. Furthermore, those police officials have also been suspended and a departmental enquiry has been initiated against them. Therefore, it was submitted that the respondent no. 1 cannot assert that he has been erroneously implicated in Case Crime No. 617 of 2007 registered for the offence under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with the Dakshin Police Station, Firozabad, Uttar Pradesh. 22. The counsel submitted that the High Court fell in serious error while passing the impugned order. The High Court could be said to have travelled beyond its jurisdiction by quashing the criminal proceedings against the respondents on the ground that the Trial Court has already decided the case against Ashok Dixit and the other accused. The Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty of the offence of murder of the appellant's brother. 23. The counsel submitted that the High Court erroneously quashed the criminal pro....
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....nsible for the registration of Case Crime No. 967 of 2007 in any manner, since he was neither posted at the Murar Police Station nor he had instructed any of the concerned officials to register such an FIR. In fact, the respondent no. 1 was posted at District Shivpuri which is 120 kms away from Gwalior at the time of filing the Case Crime No. 967 of 2007 on 12.10.2007. 28. The counsel submitted that the respondent no. 1 had neither filed the FIR in Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior nor was he associated with the said police station in any manner. However, assuming without conceding that the said FIR was registered at the behest of respondent no. 1, sanction for prosecution with respect to Case Crime No. 617 of 2007 is required. It is an admitted fact that sanction was refused by the D.I.G., Gwalior vide its letter dated 02.08.2008. 29. The counsel further submitted that there are bleak chances of conviction of the respondent no. 1 for the following reasons - (a) the respondent no. 1 was not posted at the Murar Police Station, Gwalior where the Case Crime No. 967 of 2007 was registered, (b) the respondent no. 1 is 72 years old and no purpose would....
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....alibi was provided in order to shield Ashok Dixit by registering an FIR under the Excise Act in Gwalior. The said alleged act was made after the commission of the offence of murder and there is nothing on record to even remotely suggest that the respondent no. 1 had knowledge about the incident of murder. 33. In light of the above, the counsel submitted that the impugned Judgment and Order of the High Court quashing the criminal proceedings against the respondent no. 1 may not be interfered with. D. SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS. 3, 4 AND 5. 34. Ms. Nanita Sharma, the learned counsel appearing for the respondent nos. 3, 4, and 5 respectively submitted that the Uttar Pradesh police was bent upon falsely implicating her clients for the offence under Sections 302 and 120-B IPC. This is evident from the following - (a) the statements of Ramesh Yadav and Barelal were recorded under Section 161 CrPC after a gap of one year from the date of the offence committed at Firozabad i.e., 12.10.2007, (b) the address of Barelal as recorded by the IO while recording his statement under Section 161 CrPC was found to be incorrect and as per the information of the Sarpanch, no p....
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....ection 197 CrPC? In other words, whether the offence or the act alleged to have been committed by the respondent nos. 1, 3, 4 and 5 respectively could be said to have been done "while acting or purporting to act in the discharge of official duty"? F. ANALYSIS 39. Section 197 CrPC reads as under: "197. Prosecution of Judges and public servants. - (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 Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the aff....
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....ing the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (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." 40. The 41st Report of the Law Commission of India contextualizes the object behind the enactment of Section 197 CrPC by pointing out that it enables the more important categories of public servants, performing onerous and responsible functions, to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. Under the erstwhile Code of Criminal Procedure, 1898, the ambit of the Section was co....
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....ial duty" but "in respect of any act done or purporting to be done in the execution of his duty." The two expressions are obviously not identical. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of the duty. The reference as obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact connected with it. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be n....
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....rely in a private capacity by a public servant but only to those acts ostensibly done by him in his official capacity and in execution of his duty. Therefore, merely because the act was committed at a time when he held such office or when he was engaged in his official business would not make the section automatically applicable. 44. His Lordship, Varadachariar, J, in his concurring opinion, expressed that the question of whether or not the act complained of is one "purporting to be done in execution of his duty" as a public servant is substantially one of fact which is to be determined with reference to the act complained of along with the attendant circumstances. It would not be wise nor desirable to lay down any hard and fast tests in this regard. 45. The Judicial Committee of the Privy Council in Gill and Another v. The King reported in AIR 1948 PC 128 was faced with deciding whether sanction was required under Section 197 CrPC for the prosecution of a public servant charged with the offence of bribery and/or conspiracy to take bribes. The Court was of the opinion that it was impossible to distinguish or differentiate between S. 270 of the Government of India Act, 1935 an....
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.... given its true meaning. However, it is not the duty but the act which has to be examined because an official act can be performed in the discharge of official duty as well as in the dereliction of it. The relevant observations are as follows: "14. Now it is obvious that if Section 197 of the Criminal Procedure Code 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 must be given meaning. ..." (emphasis supplied) 48. In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309, the appellant was charged under Section 465 IPC for forging the thumb- impression of an individual and under Section 409 IPC for the criminal misappropriation of a certain sum. The Court opined that if the act complained of is directly concerned with the official duty of the public servant so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would ....
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.... If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. (emphasis supplied) 49. A five-Judge Bench of this Court in Matajog Dobey v. H.C. Bhari reported in AIR 1956 SC 44 acknowledged that slightly differing tests had been laid down under Section 197 CrPC but the difference in those tests were only in language and not in substance. The Court laid down a more refined test that there must be a reasonable connection between the act done and the discharge of the official duty and the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Therefore, what one must ascertain is whether the act and the official duty are so interrelated such that it can be reasonably postulated that it was done in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. The relevant observations are as follows: "17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in ....
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....r is in excess of it, then Section 197 CrPC would stand attracted. The Court had stated as thus: "...It is not therefore every offence committed by a public servant that requires sanction for prosecution under s. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by s. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable..." (emphasis supplied) 52. In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3 SCC 89 the appellant....
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....979) 4 SCC 177, the appellants were charged for the offences under Sections 409 and 120-B IPC. The Court opined that while it is not an invariable proposition of law that the act of criminal misappropriation or conversion cannot be inseparably intertwined with the performance of the official duty, yet in the facts of the present case, the alleged act of criminal misappropriation could not reasonably be said to be imbued with the color of office or having a direct connection with the duties of the appellants as public servants. Therefore, sanction was not considered necessary. While observing so, the Court stated that the expression "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" must neither be construed narrowly nor widely and the right approach would be to arrive at a balance between the two extremes. Therefore, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be committed by the public servant either in his official capacity or under the color of the office held by him such that there is a direct or reasonable connection between....
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....act, so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities in the discharge of his duty and to that extent, the section must be construed narrowly and in a restricted manner. However, once it is established that the act or omission was done by the public servant while discharging his duty, then the scope of it being "official" should be interpreted such that the objective of the section is advanced in favor of the public servant. 55. In R. Balakrishna Pillai v. State of Kerala and Another reported in (1996) 1 SCC 478, the appellant who was the then Minister for Electricity for the State of Kerala was alleged to have entered into a criminal conspiracy to sell electricity to an industry in the State of Karnataka without the consent of the Government of Kerala. The Court stressed that the quality of the act must be looked into and there can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant, the protection under Section 197 CrPC would have no application. The question of whether the act complained of had a direct nexus with the discharge of official....
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....t or omission done by a public servant in service but be restricted to only those acts or omissions which are done by a public servant in the discharge of his "official" duty. The scope can be widened further by also extending protection to those acts or omissions which are done in the "purported" exercise of "official" duty i.e., under the color of office, but not more. 58. Dr. Arijit Pasayat, J, went on to state that the protection given under Section 197 CrPC must not be viewed as limitless. This protection has certain limits and is available only when the alleged act done is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act. However, if the public servant acted in excess of his official duty but there exists a reasonable connection between the act and the performance of his official duty, the excess cannot be a sufficient ground to deprive him of the protection under Section 197 CrPC. Therefore, it was re-iterated that it is the "quality" of the act which is important and such an act must fall within the scope and range of the public servant's official duty. While there cannot be any universal rule to determin....
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....a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant..." (emphasis supplied) 59. In Sankaran Moitra v. Sadhna Das and Another reported in (2006) 4 SCC 584, the appellant police officer was accused of killing the complainant's husband while carrying out a lathi-charge near the polling- booth on an election day. While the Bench in its majority opinion had held that the appellant was acting in the discharge of his official duty, C.K. Thakker, J, in his minority opinion had stated that the act complained of had no nexus, reasonable connection or relevance to the official act or duty of such public servant and was otherwise, illegal, unlawful and high- handed. He went on to state that it is not only the "power" but the "duty" of the court to apply its mind to the factual situation before it. The Courts must ensure that on the one hand, the public servant is protected if the case is covered by Section 197 CrPC and on the ....
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....nd under the guise of his position as public servant, he is trying to take undue advantage." (emphasis supplied) 60. In Choudhury Parveen Sultana v. State of West Bengal and Another reported in (2009) 3 SCC 398 the appellant's husband had suffered grievous injury in a shoot-out for which a case was registered and police investigation was undertaken. The appellant had filed a complaint before the Magistrate that the respondent no. 2 (Investigating Officer) and the co- accused visited her house under the pretext of conducting an investigation, threatened her and her husband to make a tutored statement and had also tried to obtain the husband's signature on a blank paper under threatening circumstances. While the Magistrate had taken cognizance, the High Court had quashed the proceedings for want of sanction. In such circumstances, the following observations were made: "18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course ....
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....d with video cameras, to carry out a search of the appellant's house. It was further alleged that R was forced to remove his clothes in front of the other officials and that both the appellant and R were taken to a Civil Hospital where they were forced to undergo a medical examination against their will. The medical examination of the appellant was also alleged to have been conducted by a male doctor. Furthermore, it was alleged that when the appellant and R filed a complaint against M, the respondent threatened them to withdraw the same. The Court stated that none of the acts alleged against the respondent, can by any stretch of imagination, be held to have been carried out in his capacity as an Executive Magistrate. Hence, the invocation of Section 197 CrPC was wholly uncalled for. While emphasizing that the test of direct and reasonable connection between the official duty of the accused and the acts allegedly committed by him is the true test, the Court stressed that public functionaries cannot, under the cloak of the purported discharge of official duties, resort to the harassment and humiliation of the citizens on the pretext of a complaint having been received by them. The r....
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....dragging both of them to the police station for medical examination against their wishes, especially when male doctors were asked to examine the complainant which added insult to injury, all remain unsupported by any lawful justification and have no connection with the duties that were cast upon the respondent as a public servant, even if a complaint alleging an adulterous relationship between the appellant and R.C. Chopra had been received by the SDM. The alleged acts of the respondent cannot, therefore, be said to be in discharge of his official duties or in the purported discharge of such duties. 66. Public functionaries cannot under the cloak of purported discharge of official duties resort to harassment and humiliation of the citizens on the pretext of a complaint having been received by them, especially when the same does not disclose the commission of any offence triable by the Executive Magistrate or cognizable by the police; nor was there any other proceeding in connection with which such conduct could be justified in law. The plea of the respondent that the prosecution was barred under Section 197 CrPC has, therefore, to be rejected." (emphasis supplied) 62....
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....tioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary....' 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 punishable under Section 120-B read with Section 409 of the 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. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar." [Ed. : As observed in Harihar Prasad v. State of Bihar, (1972) 3 SCC 89, 115, para 66 : 1972 SCC (Cri) 409.] ' [Ed. : Quoted from State of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690, 692, para 7 : 1999 SCC (Cri) 1031.] " 17. Likewise, in Shambhoo Nath Misra v. State of U.P. [(1997) 5 SCC 326 : 1997 SCC (Cri) 676 : AIR 1997 SC ....
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.... Government. Such acts were held to not be in the discharge of their official duty. The observations made are reproduced hereinbelow: "11. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only." (emphasis supplied) 64. This Court in Surinderjit Singh Mand and Another v. State of Punjab and Another reported in (2016) 8 SCC 722 was faced with a factual scenario wherein an accused was allegedly arrested in a theft case by the appellant police officers on 24.06.1999 but was formally and officially shown to have been arrested only on 28.06.1999. Prosecution was initiated against the appellant officers on the basis of an FIR registered at the instance of the mother of the accused in relation to the alleged illegal detention of the accused for the p....
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....erence to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court to the above effect." (emphasis supplied) 65. Thus, the legal position that emerges from a conspectus of all the decisions referred to above is that it is not possible to carve out one universal rule that can be uniformly applied to the multivarious facts and circumstances in the context of which the protection under Section 197 CrPC is sought for. Any attempt to lay down such a homogenous standard would create unnecessary rigidity as regards the scope of application of this provision. In this context, the position of law may be summarized as under: - (i) The object behind the enactment of Section 197 CrPC is to protect responsible public servants against institution of possibly false or vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act in their official capacity. It is to ensure that the public servants are not prosecuted for anything which is done by them in the discharge of their official duties, without any reasonable cause. The provision is in the form of an assurance to the....
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....ful claim, that his actions were in the course of performance of his duty. Therefore, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be committed by the public servant either in his official capacity or under the color of the office held by him such that there is a direct or reasonable connection between the act and the official duty. (vii) If in performing his official duty, the public servant acts in excess of his duty, the excess by itself will not be a sufficient ground to deprive the public servant from protection under Section 197 CrPC if it is found that there existed a reasonable connection between the act done and the performance of his official duty. (viii) It is the "quality" of the act that must be examined and the mere fact that an opportunity to commit an offence is furnished by the official position would not be enough to attract Section 197 CrPC. (ix) The legislature has thought fit to use two distinct expressions "acting" or "purporting to act". The latter expression means that even if the alleged act was done under the color of office, the protection under Sec....
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....under the protective umbrella of Section 197 CrPC. 67. In light of the same, it follows that when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same. On examining the quality of the act, it is evident that there exists no reasonable or rational nexus between such an act and the duties assigned to the public servant for the claim that it was done or purported to be done in the discharge of his official duty. The mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply Section 197 CrPC. Allowing so, would enable the accused to use their status as public servants as a facade for doing an objectionable, illegal and unlawful act and take undue advantage of their position. If the Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior, by respondent nos. 3, 4 and 5 respectively, was a false case, then there is no doubt that the refusal to grant sanction woul....
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....have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at p. 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty". It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case." (emphasis supplied) 69. In Pukhraj v. State of Rajasthan and Another reported in (1973) 2 SCC 701, the 2nd respondent was alleged to have abused and kicked his clerk who was his subordinate and was charged under Sections 323 and 504 IPC. The Court opined that such an act cannot be said to be in the purported exercise of his duty and he....
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....he rationale adopted in B. Saha (supra), this Court in State of Bihar v. Kamla Prasad Singh and Others reported in (1998) 5 SCC 690 also re-affirmed that while determining whether the public servant was "acting in the discharge of his official duty", the Court must consider not only the allegations made in the complaint but also other materials available on record. 71. In Bakhshish Singh Brar v. Gurmej Kaur and Another reported in (1987) 4 SCC 663, the petitioner police officer along with 14 other persons was charged under Sections 148, 149, 302, 323 and 325 IPC for allegedly causing hurt to the complainant and also causing the death of her son. This Court had emphasized that a balance has to be struck between protecting public servants from being harassed in criminal prosecutions and protecting the rights of the citizens against unlawful acts of public servants. This must be done by examining as to what extent and how far is a public servant working in the discharge or purported discharge of his duties and whether the public servant had exceeded his limit. Having said so, it was observed that criminal trials must also not be stayed in all cases at the preliminary stage because ....
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....clusion of trial and after conviction as well. However, there may be certain cases where it may not be possible to decide the question of sanction effectively without giving opportunity to the defence to establish that what he did, he did in the discharge of official duty. In such cases, the question of sanction must be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. The relevant observations are as follows: "15....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 well. But there may be certain cases where it may not be possible to decide the question effectively 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 course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence ....
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....n discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct, there is no requirement of any sanction. However, it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of the prosecution version and can re- decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official du....
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.... offence under the Excise Act is said to have been made at 09:30 am on the very same day in Gwalior, Madhya Pradesh. Evidently the accused in both the cases i.e., Ashok Dixit could not have been simultaneously present at both the places on the same day, especially when the distance between the two locations is 160 Kms and such a distance cannot be covered by road in one hour. This is precisely the reason why the appellant asserts that the case registered at Gwalior is false or in other words concocted. 76. It is relevant to note that the Trial Court vide its order dated 10.07.2015 held the accused, Ashok Dixit along with 11 others guilty of murder of the appellant's brother. In doing so, the Trial Court had made some pertinent observations regarding the registration of the case under the Excise Act by the accused respondents. The Trial Court had arrived at a categorical finding that the second FIR was registered as a result of collusion by the present accused respondents with Ashok Dixit. It has been observed that the IO at Dakshin, Firozabad after thorough investigation had found out that the entire case was concocted and hence, the Charge Sheets giving rise to Case Nos. 67 of ....
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.... Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW 8 recorded under Section 161 CrPC while observing that the appellants were having the lathis." (emphasis supplied) 78. The aforesaid position of law was reiterated in Birbal Nath v. State of Rajasthan reported in 2023 SCC OnLine SC 1396 which observed as thus: "19. Statement given to police during investigation under Section 161 cannot be read as an "evidence". It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure (Cr.P.C.). 20. No doubt statement given before police during investigation under Section 161 are "previous statements" under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to "contradict" such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the High Court hav....
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....her duly verified while the case was registered under the Excise Act. Despite the appellant's allegation that the release of the said accused on bail from the police station was done hurriedly, almost immediately after arrest, in order to conceal the identity of the person who was released and that an unconnected stranger might have been released from the police station, no other material which substantiates the bona fides of respondent nos. 3, 4 and 5 have been made available before us at the present moment. 82. It is the case of the IO at Dakshin, Firozabad that sanction for prosecution of the accused respondents was not granted by the D.I.G., Gwalior citing the pendency of Case No. 15003 of 2007 in Case Crime No. 967 of 2007 registered for the offence under the Excise Act before the CJM, Gwalior. However, those proceedings have been stayed by the High Court of Madya Pradesh vide order dated 25.08.2009 and therefore, the question of sanction can be re-visited, if found necessary. 83. As far as respondent no. 1 is concerned, it is made clear that there would be no requirement for sanction since he was not acting in the discharge of his official duty by virtue of not being po....