referred to hereinabove, leaves no room for any doubt, that under
Section 197 of the ‘Code’ and/or sanction mandated under a special
statute (as postulated under Section 19 of the Prevention of
Corruption Act) would be a necessary pre-requisite, before a Court
of competent jurisdiction, takes cognizance of an offence (whether
under the Indian Penal Code, or under the concerned special
statutory enactment). The procedure for obtaining sanction would
be governed by the provisions of the ‘Code’ and/or as mandated
under the special enactment. The words engaged in Section 197 of
the ‘Code’ are, “...no court shall take cognizance of such offence
except with previous sanction...”. Likewise sub-section (1) of
Section 19 of the Prevention of Corruption Act provides, “No Court
shall take cognizance.. except with the previous sanction...”. The
mandate is clear and unambiguous, that a Court “shall not” take
cognizance without sanction. The same needs no further
elaboration. Therefore, a Court just cannot take cognizance,
without sanction by the appropriate authority. Thus viewed, we find
no merit in the second contention advanced at the hands of learned
counsel for the respondents, that where cognizance is taken under
Section 319 of the ‘Code’, sanction either under Section 197 of the
‘Code’ (or under the concerned special enactment) is not a
mandatory pre-requisite.
23. According to learned counsel representing respondent no. 2,
the position concluded above, would give the impression, that the
determination rendered by a Court under Section 319 of the ‘Code’,
is subservient to the decision of the competent authority under
Section 197. No, not at all. The grant of sanction under Section
197, can be assailed by the accused by taking recourse to judicial
review. Likewise, the order declining sanction, can similarly be
assailed by the complainant or the prosecution.
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.565 OF 2016
(Arising out of SLP(Crl.)No.3406 of 2008)
SURINDERJIT SINGH MAND & ANR. .
V
STATE OF PUNJAB & ANR.
Jagdish Singh Khehar, J.
Citation: 2016(3) ALLMR(JOURNAL) 82,(2016) 8 SCC722
2. Surinderjit Singh Mand and P.S. Parmar, the appellants before
this Court, while holding the rank of Deputy Superintendent of
Police, were posted in District Kapurthala, in the State of Punjab,
during the relevant period in 1999. Piara Lal (holding the rank of
Assistant Sub-Inspector), was also posted at Kapurthala, at the
same time. The above mentioned Piara Lal’s son - Neeraj Kumar was
officially arrested on 28.06.1999. The arrest of Neeraj Kumar, was
made in furtherance of a First Information Report bearing No.30,
which was registered at Police Station City, Kapurthala on
03.03.1999. Before the arrest of Neeraj Kumar, his father Piara Lal
was placed under suspension on 10.06.1999. The aforesaid FIR
No.30, we were informed, was in respect of complaints made by
residents of Kapurthala, pertaining to theft of motorcycles and
other vehicles in the city.
3. It was pointed out, that while investigating into the
allegations contained in the complaint dated 03.03.1999, three
persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj
Kumar was granted bail on 30.06.1999. In the above view of the
matter, it is apparent that Neeraj Kumar had remained in jail for
just about two/three days (from 28.06.1999 to 30.06.1999). Usha
Rani - mother of Neeraj Kumar (detained during the investigation of
FIR No. 30), filed a representation asserting, that her son had
been detained on 24.06.1999 (and not on 28.06.1999, as alleged).
That would make the duration of his arrest as of six/seven days.
The present controversy pertains to the additional four/five days
of the arrest of Neeraj Kumar. Her complaint highlighted, that her
son – Neeraj Kumar was apprehended illegally and unauthorisedly for
the period from 24.06.1999 to 28.06.1999 i.e., for four/five days.
4. Investigation into the complaint made by Usha Rani, was
directed to be conducted in the first instance, by Munish Chawla,
IPS. In the report submitted by him, it was concluded, that the
charge levelled by the mother of Neeraj Kumar, could not be
substantiated. Yet again, based on the accusations levelled by Usha
Rani, another investigation was ordered. This time, it was
required to be conducted by M.F. Farooqi, IPS. Yet again, in the
second enquiry, it was concluded, that there was no material to
establish that Neeraj Kumar had been in police detention from
24.06.1999 onwards, till his formal arrest on 28.06.1999. Despite
the two reports submitted by two senior police officers, wherein it
was found that there was no substance in the allegations levelled
by Usha Rani, Gurpreet Deo, IPS, at her own, investigated into the
matter. She too arrived at the same conclusion, that there was no
substance in the claim of Usha Rani, that her son had been
illegally and unauthorisedly detained by police personnel, prior to
his formal arrest on 28.06.1999.
5. Usha Rani (mother of Neeraj Kumar) made another written
complaint, this time to the Hon'ble Administrative Judge (a sitting
Judge of the Punjab and Haryana High Court) having charge of
Sessions Division, Kapurthala, on 01.10.1999. In her complaint,
she reiterated, that her son Neeraj Kumar had been illegally
detained by police personnel, on 24.06.1999. The Hon'ble
Administrative Judge marked the complaint, dated 01.10.1999, to an
Additional District and Sessions Judge, posted in the Sessions
Division of Kapurthala, requiring him to look into the matter. On
25.09.2000, the concerned Additional District and Sessions Judge,
Kapurthala, submitted a report concluding, that Neeraj Kumar had
been falsely implicated, because he and some other accused had been
discharged by a Court, from the proceedings initiated against them.
Based on the aforesaid report dated 25.09.2000, First Information
Report bearing No.46, came to be registered at Police Station City
Kapurthala, on 22.10.2002.
6. After completion of police investigation in the above FIR
No.46, a chargesheet was filed against six police officials, in the
Court of the Chief Judicial Magistrate, Kapurthala, on 25.05.2003.
Before the aforesaid chargesheet was filed, the prosecution had
obtained sanction under Section 197 of the Code of Criminal
Procedure (hereinafter referred to as, the ‘Code’) for prosecuting
the six concerned police officials. It is also relevant to
mention, that it was the express contention of the appellants, that
on the conclusion of investigation, no involvement of the
appellants had emerged, and therefore, their names were recorded in
Column No.2. It was submitted, that the aforesaid depiction of the
names of the appellants in Column No.2 by itself, demonstrates
their innocence (with reference to the allegations made by Usha
Rani, that her son Neeraj Kumar had been illegally detained from
24.06.1999).
7. It is not a matter of dispute, that after the statements of
three prosecution witnesses were recorded by the trial Court, Usha
Rani moved an application under Section 319 of the ‘Code’ before
the trial Judge – the Chief Judicial Magistrate, Kapurthala, for
taking cognizance against the appellants herein. The aforesaid
application was allowed by the trial Court, on 06.09.2003.
Thereupon, the appellants were summoned by the Chief Judicial
Magistrate, Kapurthala, to face trial. The appellants contested
their summoning before the trial Court by asserting, that their
prosecution was unsustainable in law, because no sanction had been
obtained by the prosecution under Section 197 of the ‘Code’, before
cognizance was taken against them.
8. Consequent upon the appellants having been summoned by the
trial Court, charges were framed against them on 23.12.2006. The
order passed by the trial Court framing charges against the
appellants on 23.12.2006 was assailed by the appellants, through
Criminal Revision No.348 of 2007. The primary submission advanced
on behalf of the appellants before the High Court was, that the
Chief Judicial Magistrate, Kapurthala, could not have proceeded
against them, in the absence of sanction of prosecution, under
Section 197 of the ‘Code’. The High Court, by its order dated
09.01.2008, dismissed the Criminal Revision filed by the
appellants. The above order dated 09.01.2008 is subject matter of
challenge through the instant appeal.
9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf
of the appellants, in order to support the claim of the appellants,
has drawn our attention to Section 197 of the ‘Code’, which is
extracted hereunder:
“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)-
(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
affairs of a State, of the State Government:
Provided that where the alleged offence was committed
by a person referred to in clause (b) during the
period while a Proclamation issued under clause (1)
of article 356 of the Constitution was in force in aPage 6
6
State, clause (b) will apply as if for the expression
"State Government" occurring therein, the expression
"Central Government" were substituted.
XXX XXX XXX
(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.”
(emphasis is ours)
The learned senior counsel highlighted, that sanction under Section
197 of the ‘Code’ is mandatory, where the concerned public servant
is alleged to have committed an offence “while acting or purporting
to act in the discharge of his official duty”.
10. In order to demonstrate the ambit and scope of the term “while
acting or purporting to act in the discharge of his official duty”,
learned senior counsel placed reliance on Dr. Hori Ram Singh vs.
Emperor, AIR (1939) FC 43, wherein the Court has observed as under:
“But Sec.477-A in express terms covers the case of
an officer, who willfully falsifies accounts which may be
his duty to maintain. They have apparently put theft,
embezzlement, or breach of trust on exactly the same
footing as falsification of accounts, and have not
considered the charge of falsifying the accounts
separately from that of criminal breach of trust. This is
ignoring the significance of the words “purporting to be
done” which are no less important. They have thought that
an act done or purporting to be done in the execution of
his duty as a servant of the Crown cannot by any
stretching of the English language be made to apply to an
act which is clearly a dereliction of his duty as such.
But if an act has purported to be done in execution of
duty, it may be done so, only ostensibly and not really,
and if done dishonestly may still be a dereliction of
duty. The High Court Bench have taken the view that the
Section is clearly meant to apply to an act by a public
servant which could be done in good faith, but which
possibly might also be done in bad faith.....The Section
cannot be meant to apply to cases where there could be no
doubt that the act alleged must be in bad faith.
So far as sub-s. (1) is concerned, the question of good
faith or bad faith cannot strictly arise, for the words
used are not only “any act done in the execution of his
duty” but also “any act purporting to be done in the
execution of his duty.” When an act is not done in the
execution of his duty, but purports to have been done in
the execution of his duty, it may very well be done in
bad faith; and even an act which cannot at all be done in
execution of duty if another is made to believe wrongly
that it was being done in execution of duty. It is
therefore not possible to restrict the applicability of
the Section to only such cases where an act could
possibly have been done both in good and bad faith. Of
course, the question of good or bad faith cannot be gone
into at the early stage at which objection may be taken.
Making false entries in a register may well be an act
purported to be done in execution of duty, which would be
an offence, although it can never be done in good faith.
It is sub-sec. (2) only which introduces the element of
good faith, which relieves the Court of its obligation to
dismiss the proceedings. But that sub-section relates to
cases even previously instituted and in which there may
not be a defect of want of consent, and is therefore
quite distinct and separate, and not merely ancillary to
sub-s.(1), as the learned Sessions Judge supposed. Having
regard to the ordinary and natural meaning of the words
“purporting to be done,” it is difficult to say that it
necessarily implies “purporting to be done in good
faith,” for a person who ostensibly acts in execution of
his duty still purports so to act, although he may have a
dishonest intention.”
(emphasis is ours)
Reliance was also placed on Sankaran Moitra vs. Sadhna Das, (2006)
4 SCC 584, wherefrom our attention was drawn to the following
paragraph:
“25. The High Court has stated that killing of a
person by use of excessive force could never be
performance of duty. It may be correct so far as it
goes. But the question is whether that act was done in
the performance of duty or in purported performance of
duty. If it was done in performance of duty or purported
performance of duty, Section 197(1) of the Code cannot
be bypassed by reasoning that killing a man could never
be done in an official capacity and consequently Section
197(1) of the Code could not be attracted. Such a
reasoning would be against the ratio of the decisions of
this Court referred to earlier. The other reason given
by the High Court that if the High Court were to
interfere on the ground of want of sanction, people willPage 8
8
lose faith in the judicial process, cannot also be a
ground to dispense with a statutory requirement or
protection. Public trust in the institution can be
maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it
diligently, in accordance with law and the established
procedure and without delay. Dispensing with of
jurisdictional or statutory requirements which may
ultimately affect the adjudication itself, will itself
result in people losing faith in the system. So, the
reason in that behalf given by the High Court cannot be
sufficient to enable it to get over the jurisdictional
requirement of a sanction under Section 197(1) of the
Code of Criminal Procedure. We are therefore satisfied
that the High Court was in error in holding that
sanction under Section 197(1) was not needed in this
case. We hold that such sanction was necessary and for
want of sanction the prosecution must be quashed at this
stage. It is not for us now to answer the submission of
learned counsel for the complainant that this is an
eminently fit case for grant of such sanction.”
(emphasis is ours)
In order to substantiate the proposition being canvassed, the
learned senior counsel, also invited our attention to R.
Balakrishna Pillai vs. State of Kerala, (1996) 1 SCC 478, wherein
this Court has held as under:Page 9
9
“6. The next question is whether the offence alleged
against the appellant can be said to have been committed
by him while acting or purporting to act in the discharge
of his official duty. It was contended by the learned
counsel for the State that the charge of conspiracy would
not attract Section 197 of the Code for the simple reason
that it is no part of the duty of a Minister while
discharging his official duties to enter into a criminal
conspiracy. In support of his contention, he placed
strong reliance on the decision of this Court in Harihar
Prasad vs. State of Bihar, (1972) 3 SCC 89. He drew our
attention to the observations in paragraph 74 of the
judgment where the Court, while considering the question
whether the acts complained of were directly concerned
with the official duties of the public servants
concerned, observed that it was no duty of a public
servant to enter into a criminal conspiracy and hence
want of sanction under Section 197 of the Code was no bar
to the prosecution. The question whether the acts
complained of had a direct nexus or relation with the
discharge of official duties by the public servant
concerned would depend on the facts of each case. There
can be no general proposition that whenever there is a
charge of criminal conspiracy levelled against a public
servant in or out of office the bar of Section 197(1) of
the Code would have no application. Such a view would
render S ection 197(1) of the Code specious. Therefore,
the question would have to be examined in the facts of
each case. The observations were made by the Court in the
special facts of that case which clearly indicated that
the criminal conspiracy entered into by the three
delinquent public servants had no relation whatsoever
with their official duties and, therefore, the bar of
Section 197(1) was not attracted. It must also be
remembered that the said decision was rendered keeping in
view Section 197(1), as it then stood, but we do not base
our decision on that distinction. Our attention was next
invited to a three-Judge decision in B. Saha vs. M.S.
Kochar, (1979) 4 SCC 177. The relevant observations
relied upon are to be found in paragraph 17 of the
judgment. It is pointed out that the words “any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty”
employed Section 197(1) of the code, are capable of both
a narrow and a wide interpretation but their Lordships
pointed out that if they were construed too narrowly, the
section will be rendered altogether sterile, for, "it is
no part of an official duty to commit an offence, and
never can be". At the same time, if they were too widely
construed, they will take under their umbrella every act
constituting an offence committed in the course of the
same transaction in which the official duty is performedPage 10
10
or is purported to be performed. The right approach, it
was pointed out, was to see that the meaning of this
expression lies between these two extremes. While on the
one hand, it is not every offence committed by a public
servant while engaged in the performance of his official
duty, which is entitled to the protection. Only an act
constituting an offence directly or reasonably connected
with his official duty will require sanction for
prosecution. To put it briefly, it is the quality of the
act that is important, and if it falls within the scope
of the aforequoted words, the protection of Section 197
will have to be extended to the public servant concerned.
This decision, therefore, points out what approach the
Court should adopt while construing Section 197(1) of the
Code and its application to the facts of the case on
hand.
7. In the present case, the appellant is charged with
having entered into a criminal conspiracy with the
co-accused while functioning as a Minister. The criminal
conspiracy alleged is that he sold electricity to an
industry in the State of Karnataka “without the consent
of the Government of Kerala which is an illegal act”
under the provisions of the Electricity (Supply) Act,
1948 and the Kerala Electricity Board Rules framed
thereunder. The allegation is that he in pursuance of the
said alleged conspiracy abused his official position and
illegally sold certain units to the private industry in
Bangalore (Karnataka) which profited the private industry
to the tune of Rs.19,58,630.40 or more and it is,
therefore, obvious that the criminal conspiracy alleged
against the appellant is that while functioning as the
Minister for Electricity he without the consent of the
Government of Kerala supplied certain units of
electricity to a private industry in Karnataka.
Obviously, he did this in the discharge of his duties as
a Minister. The allegation is that it was an illegal act
inasmuch as the consent of the Government of Kerala was
not obtained before this arrangement was entered into and
the supply was effected. For that reason, it is said that
he had committed an illegality and hence he was liable to
be punished for criminal conspiracy under Section 120-B,
I.P.C. It is, therefore, clear from the charge that the
act alleged is directly and reasonably connected with his
official duty as a Minister and would, therefore, attract
the protection of Section 197(1) of the Act.”
(emphasis is ours)Page 11
11
Reliance was finally placed on P.K. Pradhan vs. State of Sikkim,
(2001) 6 SCC 704, and our attention was drawn, to the following
observations recorded therein:
“5. The legislative mandate engrafted in sub section (1)
of Section 197 debarring a court from taking cognizance
of an offence except with the 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 office save by or with the
sanction of the Government, touches the jurisdiction of
the court itself. It is a prohibition imposed by the
Statute from taking cognizance. Different tests have been
laid down in decided cases to ascertain the scope and
meaning of the relevant words occurring in Section 197 of
the Code, "any offence alleged to have been committed by
him while acting or purporting to act in the discharge of
his official duty." The offence alleged to have been
committed must have something to do, or must be related
in some manner, with the discharge of official duty. No
question of sanction can arise under Section 197, unless
the act complained of is an offence; the only point for
determination is whether it was committed in the
discharge of official duty. There must be a reasonable
connection between the act and the official duty. It does
not matter even if the act exceeds what is strictly
necessary for the discharge of the duty, as this question
will arise only at a later stage when the trial proceeds
on the merits. What a court has to find out is whether
the act and the official duty are so inter-related that
one can postulate reasonably that it was done by the
accused in the performance of official duty, though,
possibly in excess of the needs and requirements of
situation.
XXX XXX XXX
15. Thus, from a conspectus of the aforesaid decisions,
it will be clear that for claiming protection under
Section 197 of the Code, it has to be shown by the
accused that there is reasonable connection between the
act complained of and the discharge of official duty. An
official act can be performed in the discharge of
official duty as well as in dereliction of it. For
invoking protection under Section 197 of the Code, the
acts of the accused complained of must be such that the
same cannot be separated from the discharge of official
duty, but if there was no reasonable connection between
them and the performance of those duties, the officialPage 12
12
status furnishes only the occasion or opportunity for the
acts, then no sanction would be required. If the case as
put forward by the prosecution fails or the defence
establishes that the act purported to be done is in
discharge of duty, the proceedings will have to be
dropped. 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 to establish it. In such an eventuality, the
question of sanction should be left open to be decided in
the main judgment which may be delivered upon conclusion
of the trial.”
(emphasis is ours)
All in all, based on the judgments referred to above, it was
contended, that even if it was assumed that Neeraj Kumar had been
detained with effect from 24.06.1999, his detention by the
appellants was “while acting or purporting to act” in the discharge
of the appellants’ official duties. And as such, the Chief
Judicial Magistrate, Kapurthala, could not have taken cognizance,
without sanction under Section 197 of the ‘Code’.
11. Mr. Varinder S. Rana, learned counsel, who entered appearance
on behalf of respondent no. 2, seriously contested the submissions
advanced on behalf of the appellants. Learned counsel representing
respondent no. 2, placed reliance on the following observations
recorded by the High Court, in the impugned order :
“As far as question of sanction for prosecution ofPage 13
13
petitioners is concerned, the contentions raised by
learned counsel for the petitioners could possibly be
applicable for the detention period since 28.06.1999 when
Neeraj Kumar was shown to have been arrested in FIR No.30
dated 03.03.1999. However, the petitioners are not
entitled to protection of Section 197 of the Code for
illegal detention and torture of Neeraj Kumar since
24.06.1999 till 28.06.1999 when his arrest was shown in
FIR No.30 dated 03.03.1999. The said period of illegal
detention and torture has no nexus much less reasonable
nexus with the discharge or purported discharge of the
official duty of the petitioners. Consequently, the
impugned order cannot be said to be illegal because
sanction for prosecution of the petitioners is not
required for illegal detention and torture of Neeraj
Kumar during the aforesaid period.”
(emphasis is ours)
In order to support the conclusions drawn by the High Court,
learned counsel for respondent no. 2, also drew our attention to,
Om Prakash vs. State of Jharkhand, (2012) 12 SCC 72, wherein this
Court held as under :
“32. The true test as to whether a public servant was
acting or purporting to act in discharge of his duties
would be whether the act complained of was directly
connected with his official duties or it was done in the
discharge of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh v. State of Punjab,
AIR 1960 SC 266). The protection given under Section 197
of the Code has certain limits and is available only when
the alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is
not merely a cloak for doing the objectionable act. If in
doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act and
the performance of the official duty, the excess will not
be a sufficient ground to deprive the public servant of
the protection (State of Orissa vs. Ganesh Chandra Jew,
(2004) 8 SCC 40). If the above tests are applied to the
facts of the present case, the police must get protection
given under Section 197 of the Code because the acts
complained of are so integrally connected with or
attached to their office as to be inseparable from it. It
is not possible for us to come to a conclusion that the
protection granted under Section 197 of the Code is used
by the police personnel in this case as a cloak for
killing the deceased in cold blood.”Page 14
14
(emphasis is ours)
Reliance was then placed on Usharani vs. The Commissioner of
Police, (2015) 2 KarLJ 511 (a judgment rendered by the Karnataka
High Court), to highlight the importance and significance of
personal liberty, specially with reference to unlawful detention
wherein it has been observed as under:
“10. In Constitutional and Administrative Law by Hood
Phillips and Jackson, it is stated thus:
“The legality of any form of detention may be challenged
at common law by an application for the writ of habeas
corpus. Habeas corpus was a prerogative writ, that is, one
issued by the King against his officers to compel them to
exercise their functions properly. The practical
importance of habeas corpus as providing a speedy judicial
remedy for the determination of an applicant’s claim for
freedom has been asserted frequently by judies and
writers. Nonetheless, the effectiveness of the remedy
depends in many instances on the width of the statutory
power under which a public authority may be acting and the
willingness of the Courts to examine the legality of
decision made in reliance on wideranging statutory
provision. It has been suggested that the need for the
“blunt remedy’ of habeas corpus has diminished as judicial
review has developed into an ever more flexible
jurisdiction. Procedural reform of the writ may be
appropriate, but it is important not to lose sight of
substantive differences between habeas corpus and remedies
under judicial review. The latter are discretionary and
the court may refuse relief on practical grounds; habeas
corpus is a writ of right, granted ex debito justitiae.”
11. The ancient prerogative writ of habeas corpus takes
its name from the two mandatory words “habeas” and
“corpus”. ‘Habeas Corpus’ literally means ‘have his body’.
The general purpose of these writs as their name indicates
was to obtain the production of the individual before a
Court or a Judge. This is a prerogative process for
securing the liberty of the subject by affording an
effective relief of immediate release from unlawful or
unjustifiable detention, whether in prison or in private
custody. This is a writ of such a sovereign and
transcendent authority that no privilege of power or place
can stand against it. It is a very powerful safeguard of
the subject against arbitrary acts not only of private
individuals but also of the Executive, the greatestPage 15
15
safeguard for personal liberty, according to all
constitutional jurists. The writ is a prerogative one
obtainable by its own procedure. In England, the
jurisdiction to grant a writ existed in Common Law, but
has been recognized and extended by statute. It is well
established in England that the writ of habeas corpus is
as of right and that the Court has no discretion to refuse
it. “Unlike certiorari or mandamus, a writ of habeas
corpus is as of right “to every man who is unlawfully
detained. In India, it is this prerogative writ which has
been given a constitutional status under Articles 32 and
226 of the Constitution. Therefore, it is an extraordinary
remedy available to a citizen of this Country, which he
can enforce under Article 226 or under Article 32 of the
Constitution of India.”
(emphasis is ours)
12. The first task, which a Court is obliged to embark upon, when
confronted with a proposition of the nature in hand, is to
ascertain as to whether the alleged offence, attributed to the
accused, had been committed by an accused “while acting or
purporting to act in the discharge of his official duty”. In the
facts and circumstances of the present case, the alleged action
constituting the allegations levelled against the appellants, is
based on the arrest and detention of Neeraj Kumar from 24.06.1999
upto 28.06.1999 (before, he was admitted to have been formally
arrested on 28.06.1999).Page 16
16
13. Insofar as the power of arrest and detention by police
officials/officers is concerned, reference may be made to Section
36 of the ‘Code’ which postulates, that all police officers
superior in rank to an officer in charge of a police station, are
vested with an authority to exercise the same powers (throughout
the local area, to which they are appointed), which can be
exercised by the officer in charge of a police station. Section 49
of the ‘Code’ postulates, the manner in which a police officer is
to act, while taking an individual in custody. Section 49 of the
‘Code’, cautions the person making the arrest to ensure, that the
individual taken into custody, is not subjected to more restraint
than is necessary, to prevent his escape. Section 50 of the ‘Code’
mandates, that every police officer arresting a person without a
warrant (as is the position, alleged in the present case), is
mandated to forthwith disclose to the person taken in custody, full
particulars of the offence for which he is arrested, as also, the
grounds for such arrest. Section 50A obliges the police officer
making the arrest, to immediately inform friends/relatives of the
arrested person (on obtaining particulars from the arrested
person), regarding his detention. And an entry of the arrest, and
the communication of the information of the arrest to the person
nominated by the detenu, has to be recorded in a register
maintained at the police station, for the said purpose. Section 50A
of the ‘Code’ also mandates, that the Magistrate before whom such
an arrested person is produced, would satisfy himself that the
obligations to be discharged by the arresting officer, had beenPage 17
17
complied with.
14. Based on the aforesaid provisions of the ‘Code’, there cannot
be any serious doubt about the fact, that Surinderjit Singh Mand
and P.S. Parmar, were holding the rank of Deputy Superintendent of
Police, at the relevant time (from 24.06.199 to 28.06.1999). Both
the appellants were “...officers superior in rank to an officer in
charge of a police station...”. Both the appellants were therefore
possessed with the authority to detain and arrest, Neeraj Kumar at
the relevant time (from 24.06.1999 to 28.06.1999). The question
for complying with the requirements in Sections 49, 50 and 50A does
not arise for the period under reference (from 24.06.1999 to
28.06.1999), because Neeraj Kumar according to official police
records, was arrested only on 28.06.1999. The position adopted by
the appellants was, that Neeraj Kumar was not under detention for
the period from 24.06.1999 to 28.06.1999.
15. Keeping the legal position emerging from the provisions of the
‘Code’ referred to in the foregoing paragraphs in mind, it was the
contention of learned counsel for the respondents, that in order to
require sanction under Section 197 of the ‘Code’, it needs to be
further established, that the appellants had acted in the manner
provided for under the provisions of the ‘Code’, during the period
Neeraj Kumar was allegedly arrested (from 24.06.1999 to
28.06.1999), i.e., before his admitted formal arrest on 28.06.1999.
And only if they had done so, the requirement of seeking sanction
under Section 197 would arise, because in that situation, thePage 18
18
offence allegedly committed would be taken to have been committed
“while acting or purporting to act in the discharge of their
official duties”. In the present case, the arrest and detention of
Neeraj Kumar from 24.06.1999 to 28.06.1999, is denied. The
formalities postulated under the ‘Code’, on the alleged arrest of
Neeraj Kumar on 24.06.1999, were admittedly not complied with, as
according to the appellants, Neeraj Kumar was not arrested on that
date. It was therefore submitted, that any arrest or detention
prior to 28.06.1999, if true, was obviously without following the
mandatory conditions of arrest and detention, contemplated under
the provisions (referred to above). And therefore, would not fall
within the realm of “acting or purporting to act in the discharge
of their official duties”.
16. In order to support the submissions recorded in the foregoing
paragraphs, learned counsel for the respondents placed reliance on
P.P. Unnikrishnan vs. Puttiyottil Alikutty, (2000) 8 SCC 131, and
invited our attention to the following observations recorded
therein:
“21. If a police officer dealing with law and order duty
uses force against unruly persons, either in his own
defence or in defence of others and exceeds such right it
may amount to an offence. But such offence might
fall within the amplitude of Section 197 of the
Code as well as Section 64(3) of the KP Act. But if a
police officer assaults a prisoner inside a lock-up he
cannot claim such act to be connected with the
discharge of his authority or exercise of his duty
unless he establishes that he did such acts in his
defence or in defence of others or any property.
Similarly, if a police officer wrongfully confines a
person in the lock-up beyond a period of 24 hours
without the sanction of a Magistrate or an order of a
court it would be an offence for which he cannot claimPage 19
19
any protection in the normal course, nor can he claim
that such act was done in exercise of his official duty.
A policeman keeping a person in the lock-up for more
than 24 hours without authority is not merely abusing his
duty but his act would be quite outside the contours of
his duty or authority.”
(emphasis is ours)
Based on the provisions of the ‘Code’, pertaining to arrest and
detention of individuals at the hands of police personnel (referred
to above), it was submitted, that the arrest of Neeraj Kumar from
28.06.1999 to 30.06.1999 would unquestionably fall within the
purview of “acting or purporting to act in the discharge of his
official duties” (of the concerned police officers/officials who
arrested Neeraj Kumar). It was however asserted, that if the arrest
of Neeraj Kumar from 24.06.1999 to 28.06.1999 (before he was
formally detained on 28.06.1999) is found to be factually correct,
such arrest of Neeraj Kumar cannot be accepted to have been made by
the appellants – Surinderjit Singh Mand and P.S.Parmar, while
acting or purporting to act in the discharge of their official
duties. It was therefore submitted, that any alleged criminality,
in connection with the detention of Neeraj Kumar from 24.06.1999 to
28.06.1999, would not require to be sanctioned under Section 197,
before the concerned Court, took cognizance of the matter, against
the concerned public servants.Page 20
20
17. Having given our thoughtful consideration to the contention
advanced at the hands of learned counsel for the respondents, we
are of the view, that the decision rendered by this Court in the
P.P. Unnikrishnan case (supra) is clear and emphatic. The same does
not leave any room for making any choice. It is apparent, that the
official arrest of Neeraj Kumar in terms of the provisions of the
‘Code’, referred to hereinabove, would extend during the period
from 28.06.1999 to 30.06.1999. The above period of apprehension can
legitimately be considered as, having been made “while acting or
purporting to act in the discharge of their official duties”. The
factual position expressed by the appellants is, that Neeraj Kumar
was not detained for the period from 24.06.1999 to 28.06.1999. His
detention during the above period, if true, in our considered view,
would certainly not emerge from the action of the accused while
acting or purporting to act in the discharge of their official
duties. If it emerges from evidence adduced before the trial
Court, that Neeraj Kumar was actually detained during the period
from 24.06.1999 to 28.06.1999, the said detention cannot be taken
to have been made by the accused while acting or purporting to act
in the discharge of their official duties. More so, because it is
not the case of the appellants, that they had kept Neeraj Kumar in
jail during the period from 24.06.1999 to 28.06.1999. If they had
not detained him during the above period, it is not open to anyone
to assume the position, that the detention of Neeraj Kumar, during
the above period, was while acting or purporting to act in the
discharge of their official duties. Therefore, in the peculiarPage 21
21
facts and circumstances of this case, based on the legal position
declared by this Court in the P.P. Unnikrishnan case (supra), we
are of the considered view, that sanction for prosecution of the
accused in relation to the detention of Neeraj Kumar for the period
from 24.06.1999 to 28.06.1999, would not be required, before a
Court of competent jurisdiction, takes cognizance with reference to
the alleged arrest of Neeraj Kumar. We therefore hereby, endorse
the conclusions drawn by the High Court, to the above effect. Page 22
22
18. It was also the contention of learned counsel for the
appellants, that the protection afforded to public servants under
Section 197 of the ‘Code’, postulating sanction prior to
prosecution, on account of the acts committed while discharging
their official duties, is to shield public servants from frivolous
harassment of prosecution, at the hands of private individuals. It
was therefore, the submission of learned counsel for the
respondents, that the scope and purview of Section 197 of the
‘Code’, should be limited to the initiation of criminal proceedings
under Chapter-XIV of the ‘Code’, wherein such initiation is
postulated under Section 190 (upon receipt of a complaint, wherein
facts disclose the commission of an offence, or upon a police
report of such facts, or upon information received from any person
other than a police officer, that such offence had been committed).
In all the above situations, it is open to a Magistrate to take
cognizance of such offence subject to the condition, that the same
falls within the jurisdictional competence of the said Magistrate.
The Magistrate would however proceed against a public servant,
after sanction has been granted by the concerned Government. And
in case, the same does not fall within the competence of a
Magistrate, to commit it to a Court of Session, which can take
cognizance of the same, as provided for by Section 193 of the
‘Code’. Whereupon, the Court to which the matter is committed may
proceed against a public servant, after sanction has been granted
by the concerned Government under Section 197 of the ‘Code’. In
emphasizing on the above scope of sanction, it was pointed out,Page 23
23
that Section 197 of the ‘Code’ being a part of Chapter-XIV of the
‘Code’, its applicability would extend to the provisions under
Chapter-XIV alone. It was submitted, that Section 319 of the
‘Code’ is contained in Chapter XXIV, over which Section 197 can
have no bearing.Page 24
24
19. In continuation of the submissions noticed in the foregoing
paragraphs, it was asserted by learned counsel representing the
respondents, that the prosecution contemplated under Section 197 of
the ‘Code’, and the action of the Court in taking cognizance,
pertain to actions initiated on the basis of complaints, which
disclose the commission of an offence, or on a police report of
such facts, or upon receipt of information from a person other than
the police officer, that such offence had been committed. It was
asserted, that the above action of taking cognizance by a Court, is
based on alleged “facts” and not “on evidence” recorded by a Court.
The above distinction was drawn by referring to Section 190 of the
‘Code’ which contemplates initiation of action on the basis of
facts alleged against an accused, as against, Section 319 of the
‘Code’ whereunder action is triggered against the concerned person
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 aPage 25
25
Court itself. Learned counsel emphasized, 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 concerned Court, if its judicial
determination, was considered subservient to the decision taken by
the authorities contemplated under Section 197 of the ‘Code’.
Based on the submissions noticed above, it was the vehement
contention of learned counsel for the respondents, that the mandate
of Section 197 would not extend to cases where cognizance had been
taken under Section 319 of the ‘Code’.
20. While dealing with the first contention, we have already
recorded our conclusions, which are sufficient to dispose of the
matter under consideration. But, an important legal proposition
has been canvassed, as the second submission, on behalf of the
respondents (which we have recorded in the foregoing paragraph).
Since it squarely arises in the facts and circumstances of this
case, we consider it our bounden duty, to render our determination
thereon, as well. In the succeeding paragraphs, we will deal with
the second contention.Page 26
26
21. Insofar as the second contention advanced at the hands of
learned counsel for the respondents is concerned, we are of the
view that there is sufficient existing precedent, to draw a
conclusion in respect of the proposition canvassed. Reference in
the first instance may be made to Dilawar Singh vs. Parvinder Singh
alias Iqbal Singh, (2005) 12 SCC 709. The following observations
in the above cited judgment are of relevance to the present issue:
“2. It is necessary to mention the basic facts giving
rise to the present appeals. On the complaint made by the
wife, a case was registered against Parvinder Singh @
Iqbal Singh under Section 406/498-A IPC. On 27.1.2000
Parvinder Singh @ Iqbal Singh gave a complaint to the
SSP, Barnala alleging that on 23.1.2000, Jasbir Singh,
ASI and a Home Guard came to his house on a scooter and
forcibly took him to the Police Station Barnala. He was
beaten and tortured and was subjected to third-degree
methods. Some of his relatives, namely, Jarnail Singh,
Sukhdev Singh, Sadhu Singh Grewal and Sukhdev Singh Virk
came to the police station and requested the police
personnel not to beat or torture him. It was further
alleged in the complaint that Jasbir Singh, ASI, told
them that they should talk to Dilawar Singh, S.H.O., who
was sitting there on a chair. Dilawar Singh then
demanded an amount of Rs.20,000/- for releasing Parvinder
Singh. His relations then brought the amount, out of
which Rs.15,000/- was offered to Dilawar Singh but he
said that the money may be handed over to ASI Jasbir
Singh. The amount of Rs.15,000/- was then given to ASI
Jasbir Singh, who kept the same in the pocket of his
coat. Parvinder Singh was medically examined on
28.1.2000 and a case was registered under Section 13(2)
of the Prevention of Corruption Act, 1988 (hereinafter
referred to as "the Act"). After investigation,
charge-sheet was submitted only against ASI Jasbir Singh.
A closure report was submitted against Dilawar Singh,
S.H.O. as in the opinion of the investigating officer he
had not committed any offence. It may be mentioned here
that for prosecution of ASI Jasbir Singh, necessary
sanction had been obtained from the competent authority
under Section 19 of the Act. After the statement of the
complainant Parvinder Singh had been recorded, he moved
an application under Section 319 Cr.P.C. for summoning
Dilawar Singh, S.H.O. as a co-accused in the case. After
hearing the counsel for the parties, the learned Special
Judge dismissed the application by the order datedPage 27
27
7.1.2002. Parvinder Singh filed a revision petition
against the aforesaid order which has been allowed by the
High Court by the impugned order dated 3.7.2002 and a
direction has been issued to summon Dilawar Singh and try
him in accordance with law.
XXX XXX XXX
4. In our opinion, the contention raised by the
learned counsel for the appellant is well founded.
Sub-section (1) of Section 19 of the Act, which is
relevant for the controversy in dispute, reads as under :
"19. Previous sanction necessary for
prosecution.-(1) No court shall take cognizance of
an offence punishable under sections 7, 10, 11, 13
and 15 alleged to have been committed by a public
servant, except with the previous sanction, -
(a) in the case of a person who is employed in
connection with the affairs of the Union and is
not removable from his office save by or with
the sanction of the Central Government, of that
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is
not removable from his office save by or with
sanction of the State Government, of that
Government;
(c) in the case of any other person, of the
authority competent to remove him from his
office."
This section creates a complete bar on the power of
the Court to take cognizance of an offence punishable
under Sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
sanction of the competent authority enumerated in clauses
(a) to (c) of this sub-section. If the sub-section is
read as a whole, it will clearly show that the sanction
for prosecution has to be granted with respect to a
specific accused and only after sanction has been granted
that the Court gets the competence to take cognizance of
an offence punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by such public servant.
It is not possible to read the section in the manner
suggested by the learned counsel for the respondent that
if sanction for prosecution has been granted qua one
accused, any other public servant for whose prosecution
no sanction has been granted, can also be summoned to
face prosecution.
5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the
Court was examining the scope of Section 6(1) of thePage 28
28
Prevention of Corruption Act, 1947, which is almost
similar to sub-section (1) of Section 19 of the Act.
After quoting the provisions of Section 6(1) of the
Prevention of Corruption Act, 1947, it was held as under
in para 5 of the Report: (SCC pp. 552-53)
"5. From a plain reading of the above section it is
evidently clear that a Court cannot take cognizance
of the offences mentioned therein without sanction
of the appropriate authority. In enacting the above
section, the legislature thought of providing a
reasonable protection to public servants in the
discharge of their official functions so that they
may perform their duties and obligations undeterred
by vexatious and unnecessary prosecutions."
6. In Jaswant Singh v. State of Punjab, AIR 1958 SC
124, sanction had been granted for prosecution of the
accused for an offence under Section 5(1)(d) of the
Prevention of Corruption Act, 1947, but no sanction had
been granted for his prosecution under Section 5(1)(a) of
the said Act. It was held that no cognizance could be
taken for prosecution of the accused under Section 5(1)
(a) of the Prevention of Corruption Act, 1947, as no
sanction had been granted with regard to the said
offence, but the accused could be tried under Section
5(1)(d) of the said Act as there was a valid sanction for
prosecution under the aforesaid provision.
7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130,
decided by this Bench on 29.9.2005, it was held that in
the absence of a valid sanction on the date when the
Special Judge took cognizance of the offence, the taking
of the cognizance was without jurisdiction and wholly
invalid. This being the settled position of law, the
impugned order of the High Court directing summoning of
the appellant and proceeding against him along with
Jasbir Singh, ASI is clearly erroneous in law.
(emphasis is ours)
The above issue was also examined by this Court in Paul Varghese
vs. State of Kerala, (2007) 14 SCC 783, wherein this Court observed
as under :
“2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Kerala High Court allowing
the revision filed by the Respondent 2 in the present
appeal who was the petitioner before the High Court. He
had questioned correctness of the order passed by the
Inquiry Commissioner and Special Judge, Trichoor, byPage 29
29
which the prayer for his impleadment as the accused in
terms of Section 319 of the Code of Criminal Procedure,
1973 (in short “the Code”) was accepted. By the said
order the Trial Court had held that Section 319 of the
Code overrides the provisions of Section 19 of the
Prevention of Corruption Act, 1988 (in short “the Act”)
and for exercise of power under the former provision, the
only conditions required to be fulfilled are set out in
sub-section (4) of Section 319 itself. The High Court
felt that the view was not sustainable in view of what
has been stated by this Court in Dilawar Singh v.
Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC
709). Accordingly, the order was set aside.
XXX XXX XXX
4. As has been rightly held by the High Court in view
of what has been stated in Dilawar Singh's case (supra),
the Trial Court was not justified in holding that Section
319 of the Code has to get preference/primacy over
Section 19 of the Act, and that matter stands
concluded.....”
(emphasis is ours)
Last of all, reference may be made to a recent decision of this
Court in Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64. For
the issue under reference, the following observations recorded in
the above judgment are relevant:Page 30
30
“74. Keeping those principles in mind, as we must, if we
look at Section 19 of the P.C. Act which bars a Court
from taking cognizance of cases of corruption against a
public servant under Sections 7, 10, 11, 13 and 15 of
the Act, unless the Central or the State Government, as
the case may be, has accorded sanction, virtually
imposes fetters on private citizens and also on
prosecutors from approaching Court against corrupt
public servants. These protections are not available to
other citizens. Public servants are treated as a special
class of persons enjoying the said protection so that
they can perform their duties without fear and favour
and without threats of malicious prosecution. However,
the said protection against malicious prosecution which
was extended in public interest cannot become a shield
to protect corrupt officials. These provisions being
exceptions to the equality provision of Article 14 are
analogous to the provisions of protective discrimination
and these protections must be construed very narrowly.
These procedural provisions relating to sanction must be
construed in such a manner as to advance the causes of
honesty and justice and good governance as opposed to
escalation of corruption.
75. Therefore, in every case where an application
is made to an appropriate authority for grant of
prosecution in connection with an offence under the
P.C. Act it is the bounden duty of such authority to
apply its mind urgently to the situation and decide the
issue without being influenced by any extraneous
consideration. In doing so, the authority must make a
conscious effort to ensure the Rule of Law and cause of
justice is advanced. In considering the question of
granting or refusing such sanction, the authority is
answerable to law and law alone. Therefore, the
requirement to take the decision with a reasonable
dispatch is of the essence in such a situation. Delay
in granting sanction proposal thwarts a very valid
social purpose, namely, the purpose of a speedy trial
with the requirement to bring the culprit to book.
Therefore, in this case the right of the sanctioning
authority, while either sanctioning or refusing to
grant sanction, is coupled with a duty.”
(emphasis is ours)
22. The law declared by this Court emerging from the judgments
referred to hereinabove, leaves no room for any doubt, that under
Section 197 of the ‘Code’ and/or sanction mandated under a special
statute (as postulated under Section 19 of the Prevention of
Corruption Act) would be a necessary pre-requisite, before a Court
of competent jurisdiction, takes cognizance of an offence (whether
under the Indian Penal Code, or under the concerned special
statutory enactment). The procedure for obtaining sanction would
be governed by the provisions of the ‘Code’ and/or as mandated
under the special enactment. The words engaged in Section 197 of
the ‘Code’ are, “...no court shall take cognizance of such offence
except with previous sanction...”. Likewise sub-section (1) of
Section 19 of the Prevention of Corruption Act provides, “No Court
shall take cognizance.. except with the previous sanction...”. The
mandate is clear and unambiguous, that a Court “shall not” take
cognizance without sanction. The same needs no further
elaboration. Therefore, a Court just cannot take cognizance,
without sanction by the appropriate authority. Thus viewed, we find
no merit in the second contention advanced at the hands of learned
counsel for the respondents, that where cognizance is taken under
Section 319 of the ‘Code’, sanction either under Section 197 of the
‘Code’ (or under the concerned special enactment) is not a
mandatory pre-requisite.
23. According to learned counsel representing respondent no. 2,
the position concluded above, would give the impression, that the
determination rendered by a Court under Section 319 of the ‘Code’,
is subservient to the decision of the competent authority under
Section 197. No, not at all. The grant of sanction under Section
197, can be assailed by the accused by taking recourse to judicial
review. Likewise, the order declining sanction, can similarly be
assailed by the complainant or the prosecution.
24. For the reasons recorded hereinabove, and in view of the
conclusions recorded by us in paragraph 17, we are of the view that
there is no merit in the instant appeal and the same deserves to be
dismissed. Ordered accordingly.
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(C.NAGAPPAN)
NEW DELHI;
JULY 05, 2016.Page 33
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