The error in framing of charge also does not vitiate the order. Section 464 IPC, itself mandates that no finding sanction or order by a court of competent jurisdiction becomes invalid unless it is so that a failure of justice has in fact been occasioned because of any error omission or irregularity in the charge including in misjoinder of charge. The burden is on the accused to show that in fact failure of justice has been occasioned.
Supreme Court of India
State Of U.P. vs Paras Nath Singh on 5 May, 2009
HELD: 1.1. Section 197 CrPC falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set into motion. The cognizance of any offence, by any court, as regards public servants is barred by Section 197 unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. [Para 4] [91-D-E-G-H; 92-A-D]
Black's Law Dictionary, referred to.
1.2. Use of the expression, `official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. [Para 6] [93-C-D]
B. Saha and Ors. v. M. S. Kochar 1979 (4) SCC 177, referred to.
1.3. The scope has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. But once any act or omission has been found to have been committed by a public servant in discharge of his duty, then it must be given liberal and wide construction so far its official nature is concerned. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. [Para 7] [93-D-G; 94-A]
1.4. If on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held as official to which applicability of Section 197 CrPC cannot be disputed. [Para 8] [94-E-F]
Matajog Dobey v. H. C. Bhari AIR 1956 SC 44, relied on
S.A. Venkataraman v. The State AIR 1958 SC 107; C. R. Bansi v. The State of Maharashtra 1970 (3) SCC 537, referred to.
1.5. It is not correct to say that for offences u/ss. 406 and 409 r/w Section 120-B IPC, sanction u/s. 197 CrPC is a condition precedent for launching the prosecution. It is not every offence committed by a public servant, which requires sanction for prosecution u/s. 197 CrPC, nor even every act done by him while he is actually engaged in the performance of his official duties. [Para 10] [95-A-C]
Harihar Prasad, etc. v. State of Bihar 1972 (3) SCC 89; S.R. Munnipalli v. Bombay 1955 (1) SCR 1177; Amrik Singh v. State Pepsu 1955 RD-SC 9; State of Kerala v. Padmanabhan Nair 1999 (5) SCC 690 and State of H.P. v. M.P. Gupta 2004 (2) SCC 349, relied on.
2.1. The question relating to Section 313 CrPC loses significance when considered in the background as to whether there was any need for sanction. The first Appellate Court and the High Court have not kept this aspect in view. [Paras 13 and 14] [96-A-B]
2.2. The error in framing of charge also does not vitiate the order. Section 464 IPC, itself mandates that no finding sanction or order by a court of competent jurisdiction becomes invalid unless it is so that a failure of justice has in fact been occasioned because of any error omission or irregularity in the charge including in misjoinder of charge. The burden is on the accused to show that in fact failure of justice has been occasioned. [Paras 13, 16 and 17] [96-A; 97-A-B]
Case Law Reference:
1979 (4) SCC 177 Referred to Para 5
AIR 1956 SC 44 Relied on Para 7
AIR 1958 SC 107 Referred to Para 9
1970 (3) SCC 537 Referred to Para 9
1955 (1) SCR 1177 Relied on Para 10
1955 RD-SC 9) Relied on Para 10
1972 (3) SCC 89 Relied on Para 10
1999 (5) SCC 690 Relied on Para 11
2004 (2) SCC 349 Relied on Para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 499 of 2004.
From the Judgment & Order dated 03.04.2003 of the High Court of Judicature at Allahabad, Lucknow Bench Lucknow in Criminal Misc. Case No. 1074/2000.
Shail Kumar Dwivedi, AAG, Manoj Kr. Diwedi, AAG, Pramod Swarup, G.V. Rao and Javed Mahmud Rao for the Appellant.
J.S. Attri and Rajender Pd. Saxena for the Respondents.
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