TaxTMI 
TaxTMI 
2025 (2) TMI 1218
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....3. The appellant herein is stated to be an employee of the Bureau of Indian Standards (BIS). Briefly stated, the facts giving rise to the present case are that Dr. Manisha Narayan, the respondent No. 2 herein (hereinafter referred to as "complainant") had filed FIR No. 610/2018 dated 30.10.2018 at the Aliganj Police Station, District Lucknow. It was stated in the said FIR that during her tenure with the Food Safety and Standards Authority of India (hereinafter "FSSAI" or "authority") in New Delhi in the capacity of an Associate Director, she was sexually harassed on multiple occasions by Dr. S.S. Ghonkrorkta, the Enforcement Director therein. Being aggrieved, she disclosed the same to her mother who then filed a complaint before the FSSAI for action to be taken under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter "POSH Act"). An Internal Complaints Committee (ICC) was constituted to investigate the allegations of the complainant and the enquiry was referred to the ICC on 04.12.2014. The enquiry report of the ICC was submitted to the Chief Executive Officer of FSSAI on 22.06.2015, which found Dr. S.S. Ghon....
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..... No. 1505 of 2016, since the complainant was willing to represent herself independently in the case. Subsequently, the appellant was repatriated to her parent Department BIS on 25.07.2019. 6. In the interregnum, the FIR had already been filed by the complainant on 30.10.2018, though it did not name the appellant as an accused person. On 16.06.2020, the statement of the complainant under Section 161 of the Code of Criminal Procedure, 1973, (for short "CrPC") was recorded but the appellant was not named therein as well. Thereafter, on 14.10.2020, the statement of the complainant was recorded under Section 164 of the CrPC and it is here that the allegations against the appellant were brought out. These allegations primarily pertained to the counter affidavit filed by the appellant herein before the Tribunal. It was alleged that the appellant was representing the complainant before the Tribunal without her knowledge and consent and that the appellant had wrongfully submitted the affidavit before Tribunal to the effect that the complainant had authorized the appellant to represent her in those proceedings. 7. It was further alleged by the complainant that she was transferred from....
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....in refusing to quash the chargesheet and the summoning order with respect to the appellant, having regard to the facts and circumstances of the case. It was submitted that the appellant is a government servant who had acted in the course of her official duties and therefore, cognizance could not have been taken against the offences alleged against her in the absence of a valid sanction for prosecution granted by the concerned authority. That the competent authority to grant sanction for prosecution of the appellant herein is the BIS. However, the Investigating Officer failed to send the letter seeking sanction directly to the BIS and had sent it to FSSAI on 02.12.2021, as a result of which the letter was received by the BIS only on 29.07.2022, which was way beyond the stipulated period of four months for granting sanction. 13. The learned senior counsel drew our attention to the letter Ref. No. HRD/7:062545 dated 22.09.2022 sent by BIS to the Additional Chief Secretary, Department of Home, UP Police Division/4, Lucknow. In the said letter, the BIS had prima facie found the appellant to have not been involved in the aforesaid crime, but the BIS sought the copy of the FIR and othe....
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.... impression that the trial court had mechanically issued summons to the accused and not applied its mind, but in fact the trial court had also filed a separate detailed order dated 12.07.2022 while issuing process in the matter. It was also submitted that the appellant not only filed an affidavit before the Tribunal without the knowledge and consent of the complainant, but had also committed perjury by trying to protect the other accused persons of the Authority. That there has been dereliction of duty by the appellant insofar as the appellant in her capacity as the presiding officer of the ICC was duty-bound to keep the complainant informed about the proceedings in the case and to proceed in furtherance of the findings of the ICC in its investigation report. 16. With respect to the contention that the complainant did not name the appellant in the FIR and the statement under Section 161 of the CrPC is concerned, learned counsel has submitted that the police had initially refused to file the FIR against the appellant herein since her name was not mentioned in the ICC report and later during the stage of recording of her statement under Section 161 of the CrPC, the police forced t....
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....19. During this tenure, the appellant took over the position of Presiding Officer of ICC after the erstwhile presiding officer was repatriated to BIS, Ministry of Health on completion of her tenure in April 2016. The allegations of sexual harassment levelled by complainant date back to the year 2012. The enquiry under the provisions of the POSH Act took place during the year 2014-15 and the final enquiry report of the ICC was submitted on 22.06.2015 to the Chief Execution Officer of the Authority. Therefore, it is clear that the appellant was not in the picture or involved in the dispute till the submission of the enquiry report of the ICC in June 2015. 20. The report of the ICC was assailed by the accused Dr. S.S. Ghonkrokta before the Tribunal by filing of O.A. No. 1505 of 2016 on 16.03.2016. The appellant joined FSSAI, Delhi on 27.04.2016, after a month of filing of this Original Application before the Tribunal. In the subsequent month, she was appointed as the Presiding Officer of ICC. It is for the period thereafter, to which the allegations of the complainant pertain to. 21. The complainant in the present case has alleged that the appellant filed a counter affidavit bef....
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....2. This issue of sanction was decided by BIS within the stipulated period of four months. The relevant paragraph of the letter dated 14.11.2022 reads as under: "2. To examine the matter, the related documents i.e. the report of Internal Complaints Committee (ICC) and the copy of FIR was sought from FSSAI vide BIS letter dated 25 Aug 2022 and 22 Sep 2022 respectively. On perusal of the records received, the following facts are observed: i. The alleged offence (based on the complaint filed by Dr. Manisha Narayan against Dr. S. S. Ghonkrokta) took place during the period May 2012 to December 2012 and the ICC submitted its report in June 2015. ii. Smt. Suneeti Toteja Scientist-E was relieved on 27 April 2016 (FN) from BIS to lake up her assignment on deputation as Director in FSSAl, long after the occurrence of the alleged incident and submission of the report by the ICC. She was relieved from FSSAl on 25 July 2019 and reported back to BIS on 26 July 2019. iii. Dr S.S. Ghonkrokta had filed a case in CAT (O.A. No. 1505 of 2016) for setting aside the constitution of ICC. its proceedings and findings. Smt. Suneeti Toteja had signed the counter affidavit....
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....ged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (3A) Notwithstanding anything contained in subsection (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary conta....
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....uch offence except with the previous sanction". Therefore, for the purpose of application of Section 197, a sine qua non is that the public servant is accused of any offence which had been committed by him in "discharge of his official duty". The said expression would clearly indicate that Section 197 of the CrPC would not apply to a case if a public servant is accused of any offence which is de hors or not connected to the discharge of his or her official duty. However, there are a line of judgments which have considered this expression in two different ways which we shall now advert to." 27. In Amod Kumar Kanth vs. Association of Victim of Uphaar Tragedy, 2023 SCC Online SC 578 disposed of by a three-Judge Bench of this Court on 20.04.2023, of which one of us (Nagarathna, J.) was a member, it was observed that the question of cognizance being taken in the absence of sanction and thereby Section 197 of the CrPC being flouted 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 CrPC is protection being accorded to public servants. In paragraphs 28, 29 and 31, it was observed as u....
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....n the facts of the said case in taking cognizance against the appellant therein contrary to the mandate of Section 197 of the CrPC and on that short ground alone, the appeal was allowed and the proceedings challenged in Section 482 CrPC were quashed. However, it was observed that the same would not stand in the way of the competent authority taking a decision in the matter and/or granting sanction for prosecuting the appellant therein in accordance with law. 28. In another case titled Amrik Singh vs The State of PEPSU, AIR 1955 SC 309, this Court explained the scope of Section 197 of CrPC as follows: "8. ... It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; 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; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really ....
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....he said judgment reveals that it did not deal with Section 197 CrPC and rather it dealt with the investigation powers and procedures of Central Bureau of Investigation and Central Vigilance Commission. While it did mention that the time limits for grant of sanction for prosecution must be strictly adhered to, there is no observation to the effect that lack of grant of sanction for prosecution within the time limit would amount to deemed sanction for prosecution. 31. Similarly, learned counsel for the complainant had placed reliance on the judgment of this Court in Subramanian Swamy to lend credence to the argument of deemed sanction for prosecution. However, even the said judgment does not in any manner lay down the notion of deemed sanction. First, the said judgment dealt primarily with the Prevention of Corruption Act, 1988 and the sanction for prosecution under that Act. Secondly, G.S. Singhvi, J. while penning his separate but concurring opinion in the said judgment, had given some guidelines for the consideration of the Parliament, one of which is to the effect that at the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have bee....