TaxTMI 
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2023 (4) TMI 1431
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....S Tulsi, Sr. Adv., Mr. Sukant Vikram, AOR, Mr. Aditya Pratap Singh, Adv., Mrs. Pallavi Malhotra, Adv., Mr. Avish Bhati, Adv.. JUDGMENT (1) By the impugned order, the High Court has dismissed the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). The petition under Section 482 Cr.P.C. was filed against the order passed by the Additional Sessions Judge Metropolitan Magistrate rejecting the closure report filed by the Central Bureau of Investigation (hereinafter referred to as 'CBI' for short) which was filed against the appellant. The closure report filed by the CBI was not accepted by the Magistrate, who instead took cognizance on the protest petition filed by the first respondent before us (Association of Victims of Uphaar Tragedy). As noted by the learned Judge in the impugned judgment on 13.06.1997, 59 persons lost their lives and over 100 persons received serious injuries while viewing a film sitting in the balcony of Uphaar theater. The unfortunate and tragic incident led to a criminal prosecution against 16 accused. While the trial was ongoing, an application was filed under Section 31....
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....eeking and obtaining sanction as is contemplated under Section 197. The Magistrate has proceeded to take cognizance in the teeth of the unambiguous bar against such cognizance. He would submit that on this short point the impugned order must perish. (4) He would elaborate and submit on the facts, as to what transpired as follows. Somewhere in the year 1976, a decision was taken by the Lieutenant Governor of Delhi to reduce the price of cinema tickets. Bearing in mind that this decision would cause a financial loss to the theater owners, it was decided to permit the theaters to be fitted with more seats so that from the revenue earned thereunder, the loss caused by the reduction in the price of the cinema tickets could be offset. On the strength of the said decision which was taken in 1976, theaters in Delhi came to be equipped with more seats. The appellant took over as Deputy Commissioner of Police on 02.02.1979. In his capacity as the DCP, he also came to be entrusted with the duties of a licensing officer under the Cinematograph Act, 1952 and the Rules. He continued in this official position till 26.05.1980. There was a change of policy brought about by the Lieutenant Governor.....
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....ns were carried out subsequently. The appellant came to be transferred and he vacated the post on 26.05.1980. There was another inspection which was conducted on 09.06.1983 and 17.06.1983 by a joint inspection team comprising the licensing branch of the Delhi Police. The Municipal Corporation of Delhi and the Delhi Fire Services also were part of the team. Large scale safety violations were found. The license of Uphaar theater came to be suspended on 27.06.1983. From 1980- 1997, it is pointed out that the theater in question was inspected every year. The suspension order passed against the theater in question was the subject matter of challenge in the two writ petitions and the suspension was kept in abeyance. The theater continued to operate. It is nearly 17 years after the order dated 24.12.1979, on 13.06.1997 that a fire broke out which led to the unfortunate passing away of 59 persons besides injury to several others. He would, therefore, point out that, at best or at worst, what could be projected against the appellant could not take it out of the ambit of Section 197. In other words, it could not be said despite all that has happened that he was not exercising power which flo....
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.... State of Rajasthan and Another (2021) 8 SCC 768 to the following paragraphs: "10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. (See Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him ....
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....etent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well." (7) Next, the learned senior counsel for the appellant would contend that the Court must not be oblivious to the facts of the case as well. The appellant's acts or omissions are traceable to the year 1979-1980. The incident in question took place a good 17 years thereafter. Annual inspections took place. Other officers have had powers of oversight and exercised it from time to time. Several theaters apart from Uphaar theater had extra seats. It is only in this unfortunate case that the occurring of the fire in 1997 has led to the entire proceedings. He would submit that following the principle in State of Haryana and Others v. Bhajan Lal and Others 1992 Supp (1) SCC 335, it is a fit case where no criminality can be attached to the alleged acts and omissions. (8) Thirdly, he would also submit that, as noticed, in this narration above, though an application was filed to take action under Section ....
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.... cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similar contention had been advanced by Mr Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed: (SCC pp. 217-18, para 23) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained 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 his office....
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....he said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jain case [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] and in a recent judgment of this Court in the case of Gauri Shankar Prasad v. State of Bihar [(2000) 5 SCC 15 : 2000 SCC (Cri) 872] . The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed: (SCC p. 21, para 14) "[I]t is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged t....
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....n on the basis of facts alleged against an accused, as against, Section 319 of the Code whereunder action is triggered against the person concerned only if it appears from the evidence recorded during the trial that the said person 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 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 that the 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. The learned counsel emphasised that when a court itself had determined 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 court concerned if its judicial determination was consider....
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....an be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits. 39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence....
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.... that all the additional seats which were installed in the cinema theatres were contrary to the Rules and must, therefore, be dismantled without any consideration as to how many of these seats were in consonance with the Rules and how many of them were contrary to the Rules. 12. Our finding on Proposition 3 is, therefore, that the Administration will apply their mind to the additional seats with a view to determine which of them have contravened which rules and to what extent. They will bear in mind that the compliance with the Rules is to be substantial and not rigid and inflexible." If while carrying out the above directive, the authorities concerned turned a blind eye to the fundamental requirement of the Rules by ignoring the closure of the right side exit and gangway prescribed as an essential requirement under the DCR, 1953, they acted in breach of the rules and in the process endangered the safety of the patrons. 135. We shall presently turn to the question whether the repeal of the notification had the effect of obliging the occupier/licensee of the Cinema to remove the seats and restore the gangways and exits as originally sanctioned. But we cannot ignore the fact th....
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....caused by the fire could have been avoided. (19) Shri KTS Tulsi, learned senior counsel appearing on behalf of the first respondent, would submit that cognizance is taken of the offence and not the offender. No wrong has been done by the Magistrate in taking cognizance in a case as grave as the present case. He points out that the proportions of the tragedy that overtook the lives of as many as 59 persons should not be lost sight of by the Court. He reiterates the argument of Smt. Aparajita that the matter has engaged the attention of three Courts which includes this Court and the blame of officers of the licensing bodies which includes the appellant and that the same cannot be overlooked. (20) Learned senior counsel would submit that a perusal of the pleadings of the appellant would also reveal conduct unbecoming on the part of an applicant before the High Court. It is the requirement of an applicant who comes to Court to conduct himself fairly. He elaborates by pointing out that at one juncture, appellant had a case that he had personally inspected the theater. It is contrasted with his pleading wherein he took the stand that he has not personally inspected the theaters whereas....
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....ation in these theaters within the Rules, though the provision of some of the additional seats may perhaps have been to some extent contrary to some of the Rules. It is not necessary for us to speculate on this question. It is enough to say that the result of the cancellation of the relaxation is simply the withdrawal of the relaxation. It does not automatically mean that all the additional seats which installed in the cinema theatres were contrary to the Rules and must, therefore, be dismantled without any consideration as to how many of these seats were in consonance, with the Rules and how many of them were contrary to the Rules. Our finding on proposition No. 3, therefore, that the Administration will apply their mind to the additional seats with a view to determine which of them have contravened which rules and to what extent. They will bear in mind that the compliance with the Rules is to be substantial and not rigid and inflexible. With these guidelines furnished by the Act itself, they will determine which of the additional seats infringe upon the Rules and in respect of only such seats they will have the power to order removal of such seats." "Proposition 4 It is n....
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....nges which may have to be made to them in future after the Administration examine the questions on merits and take steps. No costs. Pending the determination by the Administration as to the substantial compliance with the Rules by the additional seats or such of them as may be singled out by the Administration in each of the buildings of the licensees, the interim order dated 02.08.1979 will continue in force subject to the limitation that if no determination is made in respect of each building within one month by the Administration, then those licenses in respect of whose buildings the determination is not made shall be free to sell tickets for the additional seats in their building." (25) It is, thereafter, that, on 06.12.1979, the appellant in purported compliance of the High Court order proceeded to issue a show cause notice to the licencee of Uphaar Cinema. A committee was indeed constituted as noticed by us earlier. Finally on 24.12.1979 purporting to act on the basis of the recommendations of the Committee, the appellant ordered the removal of additional six seats from the balcony. 56 seats were directed to be removed from the other part of the theater. A total of 62 addi....
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....ument that sanction is not forthcoming is whether the officer was acting in the exercise of his official duties. It goes further. Even an officer who acts in the purported exercise of his official power is given the protection under Section 197 of the Cr.P.C. 1 Sushil Ansal v. State through CBI 2014(6) SCC 173 This is for good reason that the officer when he exercises the power can go about exercising the same fearlessly no doubt with bona fides as public functionaries can act only bona fide. In fact, the requirement of the action being bona fide is not expressly stated in Section 197 of the Cr.P.C., though it is found in many other statutes protecting public servants from action, civil and criminal against them. (30) Once we bear this cardinal principle in mind and judge the action or omission on the part of the appellant, we would think that it cannot be found that, having regard to the admitted facts, the appellant was not acting in the discharge of his official functions. All that happened, under his oversight starting with his notice which he issued on 28.07.1979, to the counter affidavit which he filed in the writ petitions, the subsequent show cause notice which he issued, ....
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....ced 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. (32) We notice that Shri R. Basant, learned senior counsel, drew our attention to the judgment of this Court in MCD v. Uphaar Tragedy Victims Assn. (2011) 14 SCC 481 to contend that this Court has exonerated the licensing authority of liablity: "54. It is evident from the decisions of this Court as also the decisions of the English and Canadian Courts that it is not proper to award damages against public authorities merely because there has been some inaction in the performance of their statutory duties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the courts will not award damages u....