It has also been observed by this Court that, at times, the issue
whether the alleged act is intricately connected with the discharge of
official functions and whether the matter would come within the
expression ‘while acting or purporting to act in discharge of their official
duty’, would get crystalized only after evidence is led and the issue of
sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State
of Sikkim represented by the Central Bureau of Investigation13, this
Court stated:-
“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 official 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
13 (2001) 6 SCC 704
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.”
(underlined by us)
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO .1837 OF 2019
STATION HOUSE OFFICER, CBI/ACB/BANGALORE
Vs B.A. SRINIVASAN
Dated:December 05, 2019.
Uday Umesh Lalit, J.
1. Leave granted.
2. This Appeal challenges the judgment and order dated 08.08.2018
passed by the High Court1 allowing Criminal Revision Petition No.834 of
2015 preferred by the Respondent No. 1; and thereby discharging the
Respondent No.1 of the offences punishable under Sections 419, 420, 467,
468, 471 read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, for
1 The High Court of Karnataka at Bangalore
short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act,
1988 (‘the Act’, for short).
3. The Respondent No. 1 retired on 31.10.2012 as Assistant General
Manager, Vijaya Bank. On 28.10.2013, FIR being RC 12(A)/2013 was
registered pursuant to complaint given by the General Manager, Vijaya
Bank, Head Office, Bangalore against the Respondent No.1 in respect of
the offences mentioned hereinabove. After completion of investigation,
charge-sheet was filed on 31.10.2014 against the Respondent No.1 and
other accused in respect of said offences. It was alleged inter alia :-
“3. That Shri B.A. Srinivasan (A-1) while working as
Assistant General Manager (AGM) and Branch Head,
Vijaya Bank, Mayo Hall Branch, Bangalore during
the period from 11.01.2010 to 20.10.2012 entered into
a criminal conspiracy with Shri B.Lakshman (A-3),
Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5)
to cheat and defraud Vijaya Bank, Mayohall Branch,
Bangalore and to extend undue financial
accommodation to M/s. Nikhara Electronics and
Allied Technics (A-2) on the basis of fake and
fabricated documents and in furtherance of the said
criminal conspiracy, Shri B.A. Srinivasan (A-1)
sanctioned and disbursed Rs.200 lakhs of Term Loan
and Rs.100 lakhs of Cash Credit Hypothecation
(Working Capital) in favour of M/s. Nikhara
Electronics and Allied Technics (A-2) without proper
due diligence and in gross violation of all extant rules
and regulations of Vijaya Bank, and hence, facilitated
A-3 and A-4 to divert the loan-funds against the terms
and conditions, thereby causing wrongful loss to
Vijaya Bank and corresponding gains to others.
8. That Shri B. Lakshnian (A-3) and his wife Smt.
Shanta Gowda (A-4) fraudulently created an
agreement dated 10.06.2011 on the photocopy of estamp
paper having franking No.57724 dated
08.06.2011 and submitted a copy of the same to
Vijaya Bank to support their dishonest claim of taking
over M/s. Nikhara Electronics & Allied Technics,
proprietary concern by making a payment of Rs.1.00
Crore as goodwill to Shri Venkataramana Bhat (A-6).
Shri B.A. Srinivasan (A-1) dishonestly accepted the
photocopy of the agreement intentionally omitting to
ascertain its genuineness or authenticity. It is revealed
that the above agreement was fraudulently created on
the photocopy of e-stamp paper franked vide 57724
dated 08.06.2011 and the original stamp paper
remained blank was seized from the office premises
of Shri S.V. Isloor (A-5). It is thus established the
fraudulent intentions of all the accused persons to
create forged documents as and when required and to
misrepresent that the proprietary unit was taken over
by A-3 and A-4 from A-6.
… … …
16. That Shri B.A. Srinivasan (A-1) in furtherance of
criminal conspiracy with the other accused
dishonestly, by abusing his official position as AGM
& Branch Head of Vijaya Bank, Mayohall Branch
fraudulently considered the loan application,
processed loan proposals in gross violation of the
rules and regulations of Vijaya Bank in this regard in
order to favour the accused persons. He intentionally
accepted the inflated financial statements submitted
by A-3 and A-4 even though they were not audited
and considered them for working out the credit
assessment of the borrower firm i.e., M/s. Nikhara
Electronics and Allied Technics (A-2). He purposely
did not exercise due diligence to analyse the financial
statements submitted by the borrower firm which
contained several inconsistencies. He also did not
conduct the mandatory pre-sanction verification at the
address of the borrower firm to ascertain whether any
business activities such as manufacturing of electric
equipment etc., were going on as claimed in the loan
application. The criminal acts of Shri B.A. Srinivasan
(A-1) facilitated the accused private persons to
misrepresent the existence of M/s. Nikhara
Electronics and Allied Technics (A-2), which actually
existed only on the forged partnership deed dated
10.06.2011, created by A-3 and A-4.
17. That Shri B.A. Srinivasan (A-1) prepared the
Credit Process Note himself and obtained the
signatures of Shri Jyoti Prakash Shetty, the then Asst.
Manager in the column of appraising official. Shri
Nabeel Ahmed, the then Probationary Manager was
also made to put his initials in the process note,
merely as a token of his training. It is revealed that A-
1 prepared the proposals for an aggregate amount of
Rs.300 lakh (term loan of Rs.200 lakhs and cash
credit of Rs.100 lakhs) as against the request for
Rs.350 lakhs (term Loan of Rs.200 lakhs; working
capital of Rs.130 lakhs and Bank Guarantee of Rs.20
lakhs) without there being any
clarification/justification for such reduction in the
requirements of the applicant.
18. That Shri B. Lakshman (A-3) fraudulently
submitted a forged Letter No. REFREF: SP: QT: 155:
2011 dated 10.08.2011 purportedly signed as JAK,
Partners, M/s. V-Tech Engineering Enterprises along
with Quotations/Proforma Invoices for an aggregate
amount of Rs.2,69,60,496/- which were purportedly
issued by M/s.V-Tech Engineering Enterprises.
… … …
33. That Shri B.A. Srinivasan (A-1) was also fully
aware that property offered as collateral security was
in occupation of third parties (tenants). However, A-1
dishonestly and fraudulently chose to ignore this
important fact, in spite of his field inspection and also
the observations made by the valuer in his Valuation
Report. Concurrent Auditor of the Bank also pointed
out this fact in her report adding that the tenants in
occupation of collateral security would adversely
affect the interests of the bank, in the event of
necessity, to enforce sale of the property to recover its
dues. It is also revealed that tenants were paying rents
to Shri Nagesh s/o late Krishnappa, who sold the
property to Shri Nilakanth Sanikop, from whom A-3
purchased the property. A-1 intentionally omitted to
make any endeavour to ascertain the nature of rights
of the tenants, despite the fact that in future it would
affect the enforceability of the mortgaged property by
the bank.
34. That Shri B.A. Srinivasan (A-1) also violated the
extant rules of the bank by not obtaining the Legal
Audit Report, on the mortgaged property, prior to
processing and sanctioning of loans to M/s. Nikhara
Electronics and Allied Tekchnics. Shri B.A.
Srinivasan (A-1) obtained this report only on
19.04.2012, more than six months after the loan was
sanctioned and disbursed.
35. By the above said acts, Shri B.A. Srinivasan (A-
1), the then AGM, Vijaya Bank, Mayo Hall Branch,
Bangalore; M/s. Nikhara Electronics and Allied
Technics (A-2); Shri B. Lakshman @ Lakshman
Reddy (A-3); Smt. Shanta Gowda (A-4); Shri
S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6)
committed the offences of cheating and personating as
proprietor, M/s. V-Tech Engineering Enterprises,
committed forgery of documents such as Quotations,
Cash/Credit Bills, vouchers etc. for the purpose of
cheating, using the forged documents as genuine in
pursuance of the criminal conspiracy among
themselves, thereby causing wrongful loss to the bank
and corresponding gains to themselves and others.
Investigation also establishes that Shri B.A.
Srinivasan (A-1) committed the offence of criminal
misconduct by gross abuse of his official position as
the then AGM of Vijaya Bank, Mayo Hall Branch,
Bangalore, and caused accrual of pecuniary advantage
to the accused private persons, attracting the penal
provisions of the Prevention of Corruption Act, 1988.
That, the above acts of Shri B.A. Srinivasan (A-1),
M/s. Nikhara Electronics and Allied Technics (A-2),
Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4),
Shri Shripad Vishwanath Isloor (A-5) and Shri
Venkataramana Bhat (A-6) constitute offences
punishable u/s 120-B r/w 420, 419, 468 & 471 IPC
and 13(2) r/2 13(1)(d) of the Prevention of Corruption
Act, 1988.
36. That Shri B.A. Srinivasan (A-1) is retired from
the services of Vijaya Bank on 31.10.2012; hence
sanction for prosecution u/s 19 of the PC Act, is not
required.”
4. After the cognizance was taken by the concerned court, an
application was moved by the Respondent No.1 seeking discharge in terms
of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (‘the
Code’, for short). This application was rejected by the Additional City
Civil and Sessions Judge and Principal Special Judge for CBI cases,
Bangalore, vide order dated 13.04.2015. It was observed:-
“…As can be seen from the charge sheet and
statement of witnesses, accused No.1 has deliberately
violated the rules and regulations and bank norms of
the bank while processing the loan application of
accused No.2 firm and thereby he had entered into
criminal conspiracy with accused Nos.3 to 6 and
accepted the fabricated and forged vouchers, invoices
inflated financial statements in order to facilitate
accused Nos.3 and 4 to avail the term loan of Rs. Two
Crores cash credit and Rs. One Crore. The said term
loan and cash credit of Rs.Three Crores were
misutilised for the purpose other than for which the
loan was sanctioned. Thus, all materials clearly go to
show that there was dishonest intention on the part of
the accused No.1 from the inception itself. The said
circumstances and materials collected by the
Investigating Officer clearly reveal that accused No.1
had entered into criminal conspiracy with accused
Nos. 3 to 6 and he had accepted the forged, fabricated
invoices and inflated financial statement knowingly
fully well that they were forged. …
… … …
Though accused No.1 was public servant, it is alleged
that he has retired from the service from Vijaya Bank
on 31.10.2013. Therefore, sanction as required u/s 19
of PC Act, 1988 to prosecute accused No.1 is not
required. The discharge application filed by accused
No.1 is devoid of merits and on the contrary, there are
sufficient materials against accused No.1 for framing
charge for the offences punishable u/s 120B, 420, 471
IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988….”
5. The Respondent No.1, being aggrieved, preferred Criminal
Revision Petition No. 834 of 2015 in the High Court, which was allowed
by the judgment and order presently under appeal. The High Court, thus set
aside the order dated 13.04.2015 as regards the Respondent No.1 and
discharged him of the offences with which he was sought to be charged.
6. While dealing with the submission that the allegations against the
Respondent No.1 could, at best, be administrative lapses, the High Court
observed:-
“10… …These aspects of administrative lapses, it is
to be stated, cannot be considered at the time of
framing charge. Unless the witnesses are subjected to
cross-examination, no finding can be given whether
the omission in following the procedure amounts to
administrative lapse or was deliberate. Therefore, this
point of argument cannot be a ground for discharging
accused No.1. Therefore, given a conclusion, it can
be opined that the materials on record are sufficient to
frame a charge against accused no.1, the findings of
the Special Court in this regard do not indicate nonapplication
of mind or, any infirmity or illegality in
coming to an opinion that accused no.1 cannot be
discharged on this ground. This finding needs to be
sustained.
On the issue of sanction, the High Court, however, stated:-
“11. However, another finding regarding sanction
cannot be sustained. The special court has held that
the sanction is not necessary as accused no.1 has
retired by the time charge-sheet was filed. But the
argument of petitioner’s counsel is that sanction in
accordance with Section 197 CrPC is necessary.
Before adverting to this point, I think it necessary to
opine that the offences triable by Special Judge
related to time when an accused was in service as a
public servant. Sanction under Section 19 of
Prevention of Corruption Act is necessary to see that a
public servant is not entangled in a frivolous and false
case. Sanction insulates a public servant from a false
or vexatious or frivolous prosecution. Therefore, a
protection available to a public servant while in
service should also be available after his retirement.
It cannot be forgotten that even after retirement, he is
prosecuted for offences under prevention of
Corruption Act. Indeed, the retirement removes one
from the garb of a public servant; but justice requires
that same protection should be available even after
one’s retirement. …”
(underlined by us)
Thereafter, while dealing with submissions based on the decisions
of this Court in Kalicharan Mahapatra vs. State of Orissa2, R.
2 AIR 1998 SC 2595
Balakrishna Pillai vs. State of Kerala3, State of Punjab vs. Labh
Singh4 and N.K. Ganguly vs. CBI, New Delhi5, the matter was
considered as under:-
“The learned standing counsel for CBI submitted
insofar as offences under Indian Penal Code are
concerned, they cannot be said to have been
committed in discharge of official duty; sanction
therefore is not necessary even under Section 197
CrPC. If the allegations levelled against the first
accused are seen, and particularly with reference to
conspiracy, it is to be stated at the stage of framing
charge, it is difficult to discern whether offences can
be connected to official capacity or not. Thorough
trial requires to be held. If facts in N.K. Ganguly
(supra) are seen, there also the accused were sought to
be prosecuted for the offences under Prevention of
Corruption Act in addition to some of the offences
under Indian Penal Code. Thus seen, the first accused
should get the benefit of discharge for absence of
sanction under Section 197 of CrPC. …”
Thus, it was concluded that the material on record was sufficient
to frame a charge against Respondent No.1. The benefit of discharge was
however granted on the issue of absence of sanction under Section 197 of
the Code.
7. In this appeal challenging the view taken by the High Court, we
heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the
3 (1996) 1 SCC 478
4 (2014) 16 SCC 807
5 (2016) 2 SCC 143
appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent
No.1.
8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the
protection under Section 19 of the Act is available to a public servant only
till he is in the employment and no sanction is necessary after the public
servant has demitted office or has retired from service. As regards sanction
under Section 197 of the Code, it was submitted that for an action to come
within the purview of Section 197 of the Code, it must be integrally
connected with the official duties or functions of a public servant and that
if the office was merely used as a cloak to indulge in activities which result
in unlawful gain to the beneficiaries, the protection under said Section 197
would not be available.
It was also submitted that the decision of this Court in N.K.
Ganguly vs. Central Bureau of Investigation, New Delhi5 was in the
context of the peculiar facts involved therein.
On the other hand, Mrs. V. Mohana, learned Senior Advocate,
submitted that the Respondent No. 1 retired in the year 2012; that the
allegations levelled against him would, at best, amount to administrative
lapses on his part and there was certainly no criminal intent so as to attract
the charges under the relevant sections; and that this Court may not in its
jurisdiction under Article 136(1) of the Constitution interfere in the matter.
9. In S.A. Venkataraman vs. The State6 while dealing with the
requirement of sanction under the pari materia provisions of the
Prevention of Corruption Act, 1947, it was laid down that the protection
under the concerned provisions would not be available to a public servant
after he had demitted his office or retired from service. It was stated:-
“… …if an offence under s. 161 of the Indian Penal
Code was committed by a public servant, but, at the
time a court was asked to take cognizance of the
offence, that person had ceased to be a public servant
one of the two requirements to make s. 6 of the Act
applicable would be lacking and a previous sanction
would be unnecessary. The words in s. 6(1) of the Act
are clear enough and they must be given effect to.
There is nothing in the words used in s. 6(1) to even
remotely suggest that previous sanction was necessary
before a court could take cognizance of the offences
mentioned therein in the case of a person who had
ceased to be a public servant at the time the court was
asked to take cognizance, although he had been such a
person at the time the offence was committed. … …”
The law so declared by this Court has consistently been followed.
For example, in Labh Singh4 it was observed:-
“9. In the present case the public servants in question
had retired on 13-12-1999 and 30-4-2000. The
sanction to prosecute them was rejected subsequent to
6 [1958] SCR 1037
their retirement i.e. first on 13-9-2000 and later on 24-
9-2003. The public servants having retired from
service there was no occasion to consider grant of
sanction under Section 19 of the PC Act. The law on
the point is quite clear that sanction to prosecute the
public servant for the offences under the PC Act is not
required if the public servant had already retired on
the date of cognizance by the court. In S.A.
Venkataraman v. State6 while construing Section 6(1)
of the Prevention of Corruption Act, 1947 which
provision is in pari materia with Section 19(1) of the
PC Act, this Court held that no sanction was
necessary in the case of a person who had ceased to
be the public servant at the time the court was asked
to take cognizance. The view taken in S.A.
Venkataraman6 was adopted by this Court in C.R.
Bansi v. State of Maharashtra7 and in Kalicharan
Mahapatra v. State of Orissa2 and by the Constitution
Bench of this Court in K. Veeraswami v. Union of
India8. The High Court was not therefore justified in
setting aside the order passed by the Special Judge
insofar as charge under the PC Act was concerned.”
10. Consequently, there was no occasion or reason to entertain any
application seeking discharge in respect of offences punishable under the
Act, on the ground of absence of any sanction under Section 19 of the Act.
The High Court was also not justified in observing ‘that the protection
available to a public servant while in service, should also be available
after his retirement’. That statement is completely inconsistent with the
law laid down by this Court in connection with requirement of sanction
under Section 19 of the Act.
7 (1970) 3 SCC 537
8 (1991) 3 SCC 655
11. Again, it has consistently been laid down that the protection under
Section 197 of the Code is available to the public servants when an offence
is said to have been committed ‘while acting or purporting to act in
discharge of their official duty’, but where the acts are performed using
the office as a mere cloak for unlawful gains, such acts are not protected.
The statements of law in some of the earlier decisions were culled out by
this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another9 as under:-
“7. No doubt, while the respondents indulged in the alleged
criminal conduct, they had been working as public servants.
The question is not whether they were in service or on duty
or not but whether the alleged offences have been
committed by them “while acting or purporting to act in
discharge of their official duty”. That question is no more
res integra. In Shambhoo Nath Misra v. State of U.P.10, at
para 5, this Court held that: (SCC p. 328)
“5. The question is when the public servant is
alleged to have committed the offence of
fabrication of record or misappropriation of
public fund, etc. can he be said to have acted in
discharge of his official duties. It is not the
official duty of the public servant to fabricate the
false records and misappropriate the public funds,
etc. in furtherance of or in the discharge of his
official duties. The official capacity only enables
him to fabricate the record or misappropriate the
public fund, etc. It does not mean that it is
integrally connected or inseparably interlinked
with the crime committed in the course of the
9 (2015)13 SCC 87
10 (1997) 5 SCC 326
same transaction, as was believed by the learned
Judge. Under these circumstances, we are of the
opinion that the view expressed by the High
Court as well as by the trial court on the question
of sanction is clearly illegal and cannot be
sustained.”
8. In Parkash Singh Badal v. State of Punjab11, at para 20
this Court held that: (SCC pp. 22-23)
“20. The principle of immunity protects all acts
which the public servant has to perform in the
exercise of the functions of the Government.
The purpose for which they are performed
protects these acts from criminal prosecution.
However, there is an exception. Where a
criminal act is performed under the colour of
authority but which in reality is for the public
servant’s own pleasure or benefit then such acts
shall not be protected under the doctrine of State
immunity.”
and thereafter, at para 38, it was further held that: (Parkash
Singh Badal case11, SCC p. 32)
“38. The question relating to the need of sanction
under Section 197 of the Code is not necessarily
to be considered as soon as the complaint is
lodged and on the allegations contained therein.
This question may arise at any stage of the
proceeding. The question whether sanction is
necessary or not may have to be determined from
stage to stage.”
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at
para 18, this Court has taken the view that: (SCC p. 521)
“18. … even while discharging his official
duties, if a public servant enters into a criminal
conspiracy or indulges in criminal misconduct,
11 (2007) 1 SCC 1
12 (2015) 1 SCC 513
such misdemeanour on his part is not to be
treated as an act in discharge of his official
duties and, therefore, provisions of Section 197
of the Code will not be attracted.”
(emphasis already supplied)
12. It has also been observed by this Court that, at times, the issue
whether the alleged act is intricately connected with the discharge of
official functions and whether the matter would come within the
expression ‘while acting or purporting to act in discharge of their official
duty’, would get crystalized only after evidence is led and the issue of
sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State
of Sikkim represented by the Central Bureau of Investigation13, this
Court stated:-
“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 official 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
13 (2001) 6 SCC 704
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.”
(underlined by us)
13. The offences involved in the case of N.K. Ganguly5 were under
Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e.
relating to conspiracy to commit offences punishable under the provisions
of the Act. Secondly, the conclusion was drawn in the context of the facts
available therein which is evident from the following: -
“35. From a perusal of the case law referred to supra,
it becomes clear that for the purpose of obtaining
previous sanction from the appropriate Government
under Section 197 CrPC, it is imperative that the
alleged offence is committed in discharge of official
duty by the accused. It is also important for the Court
to examine the allegations contained in the final
report against the appellants, to decide whether
previous sanction is required to be obtained by the
respondent from the appropriate Government before
taking cognizance of the alleged offence by the
learned Special Judge against the accused. In the
instant case, since the allegations made against the
appellants in the final report filed by the respondent
that the alleged offences were committed by them in
discharge of their official duty, therefore, it was
essential for the learned Special Judge to correctly
decide as to whether the previous sanction from the
Central Government under Section 197 CrPC was
required to be taken by the respondent, before taking
cognizance and passing an order issuing summons to
the appellants for their presence.”
(underlined by us)
14. We now turn to the cases relied upon by Mrs. V. Mohana, learned
Senior Advocate. In Rishipal Singh vs. State of Uttar Pradesh and
another14 this Court observed:-
“13. What emerges from the above judgments is that
when a prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made in the
complaint prima facie establish the case. The courts
have to see whether the continuation of the complaint
amounts to abuse of process of law and whether
continuation of the criminal proceeding results in
miscarriage of justice or when the court comes to a
conclusion that quashing these proceedings would
otherwise serve the ends of justice, then the court can
exercise the power under Section 482 CrPC. While
exercising the power under the provision, the courts
have to only look at the uncontroverted allegation in
the complaint whether prima facie discloses an
offence or not, but it should not convert itself to that
of a trial court and dwell into the disputed questions
of fact.”
14 (2014) 7 SCC 215
This decision thus dealt with the parameters which ought to be
considered while entertaining an application under Section 482 of the
Code and is not a decision directly on the point. The decision in Anil
Kumar Bose vs. State of Bihar15 pertained to a case which had arisen
after a full fledged trial, where, as regards offence punishable under
Section 420/34 IPC, it was observed that the essential ingredient being
mens rea, mere failure on part of the concerned employees to perform
their duties or to observe the rules/procedure may be administrative lapses
but could not be said to be enough to attract the penal provisions under
Section 420 IPC. The matter was considered after the facts had
crystalized in the form of evidence before the court and as such, this
decision is of no relevance for the present purposes.
15. Having considered the matter in entirety, in our view, the High
Court clearly erred in allowing Criminal Revision Petition and accepting
the challenge raised by the Respondent No.1 on the issue of sanction.
We, thus, allow this Appeal, set aside the view taken by the High Court,
restore the order passed by the Trial Court and dismiss the application
seeking discharge preferred by the Respondent No.1.
15 (1974) 4 SCC 616
16. It is made clear that we have adverted to the facts and the
allegations only for the purpose of considering the basic issue pertaining to
issue of sanction and we shall not be taken to have expressed any view on
merits which shall be considered independently. It has been stated by the
learned counsel that the matter is listed before the Special Court on
11.12.2019. The Respondent No.1 shall appear before the Special Court
on that day and the matter shall, thereafter, be proceeded in accordance
with law.
17. This Appeal is allowed in aforestated terms.
………………………J.
[Uday Umesh Lalit]
………………………J.
[Indu Malhotra]
………………………J.
[Krishna Murari]
New Delhi;
December 05, 2019.
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