The net result would be that when by virtue of explanation to Sub-Section 1 of Section 197 of the Code of Criminal Procedure, no previous sanction is required in respect of the offence punishable under Section 509 and when even no such sanction is required in respect of offence under the Atrocities Act, the perception of the Investigating Officer in treating the impugned decision as preventing him from filing any report and the stand of the State to that effect is grossly erroneous and unsustainable in law. When no previous sanction is required for carrying out investigation and filing a final report in respect of offence punishable under Section 509 of the Indian Penal Code and Section 3 of the Atrocities Act, the Investigating Officer is under statutory duty to submit a final report before the Special Court and the latter would not be debarred from taking cognizance thereof for want of sanction or because of the decision, not to accord the sanction. {Para 21}
24. In view of the above, we allow the writ petition partly as
under :
i. It is declared that no previous sanction as contemplated
under Section 197 would be necessary for carrying out
investigation and filing a final report in respect of offence
punishable under Section 509 of the Indian Penal Code and
Section 3 of the Atrocities Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1401 OF 2021
Dr. Rekha w/o Gowardhan Gaikwad Vs The State of Maharashtra
CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.
PRONOUNCED ON: 11.06.2024
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith. Learned
APP and the learned advocates for the respective respondents waive
service. At the joint request of the parties, the matter is heard finally at the stage of admission.
2. Shorn of the verbiage, the circumstances leading to the filing
of this writ petition are to the effect that the petitioner has been serving
as a Medical Officer Class – I and on the date of petition was posted in
the office of Health and Family Welfare and Training Centre, Aurangabad.
Respondent No.9 is the superior officer, whereas, respondent No.7 was
her colleague and respondent No.8 was also serving in the same
establishment as an Administrative Officer and were allegedly aware that
she belonged to a scheduled caste ‘Mahar’. Respondent No.9 allegedly
subjected her to humiliation and also used to make overtures since
03.06.2016. She approached Vedant Nagar Police Station and lodged a
detailed complaint on 29.01.2019. Since initially it was not accepted she
had to approach the Commissioner of Police and thereafter her complaint was received and Crime No.40/2019 was registered for the offences
punishable under Section 506 and 509 read with Section 34 of the Indian
Penal Code and for the offence punishable under Section 3 of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
(herein after the Atrocities Act) against respondents No.7 to 9.
3. Since the Investigating Officer was not filing any final report,
the petitioner filed Criminal Writ Petition No.402/2020 seeking a
direction for filing the report. Simultaneously, respondent Nos.7 to 9
filed separate applications under Section 482 of the Code of Criminal
Procedure seeking quashment of the crime.
4. It transpires that the Investigating Officer solicited sanction
to prosecute respondents No.7 to 9, in the light of Section 197 of the
Code of Criminal Procedure. It was pointed out to this Court that
pursuant to such requisition by the Investigating Officer, by
communication dated 17.02.2021, which is under challenge in this Writ
Petition, the Investigating Officer was informed by the Under Secretary in
the Public Health Department of the State that the competent authority
(Hon’ble Chief Minister) had refused to accord sanction for the time
being. In view of such supervening event in view of the stand of the
State and the Investigating Officer pointing out his inability to file a final
report/charge-sheet, by the common order dated 23.08.2021, the
criminal applications of respondents No.7 to 9 for quashment were
disposed of granting them liberty to again apply for quashment if the
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5.Crl.WP.1401.21.odt
charge-sheet was filed, in case the decision refusing to accord sanction
was set aside. To this later stage, by recording the submission of the
learned Senior advocate for the petitioner in respect of Writ Petition
No.402/2020, informing that the petitioner was still to decide if to
challenge the order/decision refusing to accord a sanction, and by
observing that the petitioner could challenge that decision, even that writ
petition was disposed of.
5. The present petition has been preferred with following
prayers :
“B] To quash and set-aside the order/communication dated
17.02.2021 passed by the under secretary Government of
Maharashtra in complaint bearing No.2018/pra.kra.57(bhag-
1)/seva 4 a By issuing appropriate writ, order direction as the
case may be.
C] To hold and declare that sanctioned under section 197 of
Cr.P.C. is not necessary in crime no.40 of 2019 registered with
Vedant-nagar police station Aurangabad. By issuing
appropriate writ, order direction as the case may be.
D] To direct the investigation agency to complete investigation
and file final report under Section 173 of Cr.P.C. in crime
no.40 of 2019 registered with Vedant-nagar police station
Aurangabad. By issuing appropriate writ, order direction as
the case may be.
E] To hold and declare that decision taken by the authority
refusing permission to submit charge-sheet in court in crime
No.40/2019 registered with Vedant-nagar Police Station
Aurangabad is illegal and contrary to the provisions of law by
issuing appropriate writ, order direction as the case may be.
F] To direct the investigation agency to complete investigation
and file final report under Section 173 of the Cr.P.C. in crime
no.40 of 2019 registered with vedant-nagar police station
Aurangabad. Pending hearing and final disposal of this
criminal writ petition.”
6. There being repetition of prayers, it can easily be gathered
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5.Crl.WP.1401.21.odt
that the petitioner is now putting up a challenge to the
decision/communication dated 17.02.2021 and as a consequence
soliciting a direction to the Investigating Officer to submit a chargesheet/
final report. In the process, she is also soliciting a declaration that
the sanction under Section 197 of the Code of Criminal Procedure is not
required at all.
7. During pendency of this petition, pursuant to the
observations of the Court recorded from time to time the prosecutor was
directed to take instructions in view of the fact that the impugned
communication merely stated that the sanction was being refused for the
time being, to ascertain if some final decision was to be taken. Pursuant
thereto, the learned APP tendered across the bar written communication
received by him dated 12.04.2024 from the Deputy Secretary of the
Public Health Department of the State together with the annexures
containing the office note, bearing signatures of the hierarchy of the
officers right up to the Secretary, as also of the learned Minister and the
decision taken by the Hon’ble Chief Minister under his signature
approving the office submission and refusing sanction to prosecute
respondents No.7 to 9 finally.
8. The learned Senior advocate Mr. Sapkal would vehemently
submit that in view of specific wording of Section 197 of the Code of
Criminal Procedure, a Magistrate cannot take cognizance of the offence
unless there is a sanction accorded by the competent authority as
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5.Crl.WP.1401.21.odt
respondents No.7 to 9 are the public servants. He would further submit
that in view of explanation to Sub-Section 1 of Section 197, even it is
clear that no sanction shall be required for proceeding against a public
servant for the offences inter alia punishable under Section 509 of the
Indian Penal Code. He would further submit that since the offence was
registered even under the Atrocities Act, bar contained under Section 197
cannot be read into the provisions of that Act which is a special statute
and which does not contain any such rider or precursor for taking
cognizance of the offence committed under that Act by a Special Judge.
9. He would then submit that assuming that sanction was
required for taking cognizance of the offence punishable under Section
506 of the Indian Penal Code, there should not have been any
impediment for the Investigating Officer to undertake the investigation
and depending upon the material collected by him to file a final
report/charge-sheet excluding that section, may be to the extent of
Section 509 of the Indian Penal Code and for the offence punishable
under Section 3 of the Atrocities Act. The impugned decision/order
refusing to accord sanction would not completely prohibit the
Investigating Officer in carrying out the investigation and submitting a
final report for the offences which do not require any sanction to
prosecute the public servants.
10. Mr. Sapkal would then submit that in fact, when the law
requires the competent authority to grant or refuse the sanction, there
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5.Crl.WP.1401.21.odt
should have been a speaking order. The impugned communication dated
17.02.2021 is devoid of any reasons for want of which the petitioner has
been deprived of an opportunity to objectively challenge that decision,
causing a serious prejudice to her. He would submit that the
communication placed on record by the learned APP dated 12.04.2024
(supra) is only an office note endorsed by hierarchy of officers, the
learned Minister and a one line decision by the competent authority
(Hon’ble Chief Minister) approving the office note and refusing sanction.
He would submit that there is no order. These office submissions
approved by Hon’ble Chief Minister cannot be taken as an order.
11. Mr. Sapkal would submit that in any case, when the law does
not require any previous sanction to prosecute a public servant for the
offence punishable under Section 509 of the Indian Penal Code and
Section 3 of the Atrocities Act, Hon’ble Chief Minister could have clarified
the decision by expressly mentioning so and in that case, the
Investigating Officer could have then proceeded to submit a final report
under Sections 169 or 173 of the Code of Criminal Procedure.
12. Mr. Sapkal would then take us through the specific
allegations contained in the FIR and even the office note to buttress his
submission that what has weighed with the competent authority, was the
fact that respondents No.7 to 9 were granted bail by the High Court and
the allegations levelled by the petitioner could not be substantiated in the
internal inquiry and in fact were found to be unsustainable and the
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5.Crl.WP.1401.21.odt
allegations in the FIR are the same as were the allegations inquired into
by the internal committee. He would submit that these could not have
been valid reasons for refusing sanction. Besides, these are now being
supplemented by the subsequent communication dated 12.04.2024 which
could not have been done in the light of Mohinder Singh Gill and Anr. Vs.
Chief Election Commissioner, New Delhi and Ors.; (1978) 1 SCC 405. Mr.
Sapkal would, therefore, submit that the writ petition be allowed and the
Investigating Officer be directed to file a final report.
13. The learned Additional Public Prosecutor Mr. Nerlikar would
vehemently submit that the law merely speaks about previous sanction of
the competent authority to prosecute a public servant. It is an
administrative decision and the competent authority is not under any
obligation to pass a reasoned order in strict sense. It is a matter of
decision making process. When the office submissions are put before the
competent authority after those were endorsed by several other
responsible officers and even the learned Minister, the decision cannot be
said to have been taken without any material. It is a matter of decision
making process and no objection can be raised on the ground that it is
not in any particular format. The reasons can easily be gathered and the
petitioner is aware about it. He would, therefore, submit that since now
the sanction has been refused by the competent authority, no direction
can be given to the Investigating Officer to submit a final report.
14. Having heard both the sides and having perused the record,
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5.Crl.WP.1401.21.odt
it is evident that there cannot be a dispute about the fact that the
competent authority (Hon’ble Chief Minister) by the impugned
communication had refused to accord sanction to prosecute respondents
No.7 to 9. Though it was initially being informed that the decision was
not final since a specific word ‘rwrkZl’ (for the time being) was used in the
impugned communication, as is observed herein above, during pendency
of this writ petition, the learned APP has received written communication
dated 12.04.2024 together with annexures which have been placed on
the record. It is abundantly clear that a detail office note was put up and
finally, the competent authority has refused to accord sanction to
prosecute. In spite of our specific query to Mr. Sapkal, as to if the
petitioner was not intending to challenge this final decision, he would
persist in submitting that there is no decision to be challenged inasmuch
as there is no speaking order.
15. It is trite that the sanction to prosecute as contemplated
under Section 197 of the Code of Criminal Procedure is an administrative
decision and not a quasi judicial one. The whole purpose and object of
providing for such a condition precedent for launching the prosecution
against a public servant, is to prevent unscrupulous complaint being
lodged against them which would demoralize them and would create
obstacles in their day to day functioning. It is like a filter. If the
competent authority objectively takes some decision either way, it would
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5.Crl.WP.1401.21.odt
be purely an administrative decision and it cannot be expected that he
would pass the detail order as if he was discharging a judicial or quasi
judicial function. A reference can be made to the decisions in the matter
of Surjit Singh Vs. State of Punjab; 1979 SCC OnLine P&H 64 (Punjab
and Haryana High Court) and State of Assam Vs. Niranjan Ghosh;
MANU/GH/0071/1994.
16. When, as is observed herein above, the decision was taken
pursuant to the office note conveying the reasons and it was duly
approved by the competent authority, it cannot be said that the decision
suffers from any vice merely because no specific and separate order in a
particular format was passed by the competent authority (Hon’ble Chief
Minister). We, therefore, hold that the submission of Mr. Sapkal on this
count is not sustainable in law.
17. However, all such discussion regarding sustainability or
otherwise of the decision of the competent authority, in either granting or
refusing sanction proceeds on the premise that in fact, the law mandates
such previous sanction to be preceded before cognizance is taken by a
Magistrate or a Special Court.
18. As is evident from the explanation to sub-Section 1 of
Section 197, it contains list of certain offences where the legislature has
clearly explained that no previous sanction to prosecute a public servant
for these offences would be required. It contains inter alia offence
punishable under Section 509 of the Indian Penal code which is one of
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5.Crl.WP.1401.21.odt
the offences registered pursuant to the FIR lodged by the petitioner.
19. Simultaneously, an offence has also been registered under
Section 3 of the Atrocities Act. A bar contained in Section 197 cannot be
read into the provisions of the Atrocities Act which does not contain any
such condition precedent. It is an offence under a special statute and
though the Special Judge would take cognizance, he would be doing so
pursuant to a specific provision contained in Section 14 of the Atrocities
Act and not under Section 190 of the Code of Criminal Procedure.
Besides, in view of the provision contained in Section 18-A of the
Atrocities Act, the Investigating Officer shall not require approval for
registration of an FIR and for arrest of the accused and cannot resort to a
procedure other than that is provided under the Act.
“18-A. No enquiry or approval required.—
(1) For the purposes of this Act,—
(a) preliminary enquiry shall not be required for registration of
a First Information Report against any person; or
(b) the investigating officer shall not require approval for the
arrest, if necessary, of any person,
against whom an accusation of having committed an offence
under this Act has been made and no procedure other than that
provided under this Act or the Code shall apply.
(2) The provisions of Section 438 of the Code shall not apply to
a case under this Act, notwithstanding any judgment or order or
direction of any Court.”
20. In this context, suffice for the purpose to refer to and rely
upon the decision of the Supreme Court in the matter of Union of India
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Vs. State of Maharashtra; (2020) 4 SCC 761. Relevant paragraphs read
as under :
“63. By the guidelines issued, the anomalous situation may crop
up in several cases. In case the appointing authority forms a
view that as there is no prima facie case the incumbent is not
to be arrested, several complications may arise. For the arrest
of an offender, may be a public servant, it is not the provision
of the general law of CrPC that permission of the appointing
authority is necessary. No such statutory protection is
provided to a public servant in the matter of arrest under IPC
and CrPC as such it would be discriminatory to impose such
rider in the cases under the 1989 Act. Only in the case of
discharge of official duties, some offence appears to have
been committed, in that case, sanction to prosecute may be
required and not otherwise. In case the act is outside the
purview of the official discharge of duty, no such sanction is
required.
64. The appointing authority cannot sit over an FIR in case of
cognizable, non-bailable offence and investigation made by
the police officer; this function cannot be conferred upon the
appointing authority as it is not envisaged either in CrPC or
the 1989 Act. Thus, this rider cannot be imposed in respect of
the cases under the 1989 Act, may be that provisions of the
Act are sometimes misused, exercise of power of approval of
arrest by the appointing authority is wholly impermissible,
impractical besides it encroaches upon the field reserved for
the legislature and is repugnant to the provisions of general
law as no such rider is envisaged under the general law.”
21. The net result would be that when by virtue of explanation to Sub-Section 1 of Section 197 of the Code of Criminal Procedure, no previous sanction is required in respect of the offence punishable under Section 509 and when even no such sanction is required in respect of offence under the Atrocities Act, the perception of the Investigating Officer in treating the impugned decision as preventing him from filing any report and the stand of the State to that effect is grossly erroneous and unsustainable in law. When no previous sanction is required for carrying out investigation and filing a final report in respect of offence punishable under Section 509 of the Indian Penal Code and Section 3 of the Atrocities Act, the Investigating Officer is under statutory duty to submit a final report before the Special Court and the latter would not be debarred from taking cognizance thereof for want of sanction or because of the decision, not to accord the sanction.
22. We would refer to and rely upon the decision of the Supreme
Court in the matter of A. Sreenivasa Reddy v. Rakesh Sharma, (2023) 8
SCC 711. Relevant paragraphs read as under :
“59. Thus, although in the present case, the appellant has been
discharged from the offences punishable under the PC Act, 1988
yet for IPC offences, he can be proceeded further in accordance
with law.
60. From the aforesaid, it can be said that there can be no thumb
rule that in a prosecution before the Court of Special Judge, the
previous sanction under Section 19 of the PC Act, 1988 would
invariably be the only prerequisite. If the offences on the charge
of which, the public servant is expected to be put on trial include
the offences other than those punishable under the PC Act, 1988
that is to say under the general law (i.e. IPC), the court is bound
to examine, at the time of cognizance and also, if necessary, at
subsequent stages (as the case progresses) as to whether there is
a necessity of sanction under Section 197 Cr.P.C.
61. There is a material difference between the statutory requirements
of Section 19 of the PC Act, 1988 on one hand, and Section 197
Cr.P.C., on the other. In the prosecution for the offences
exclusively under the PC Act, 1988, sanction is mandatory qua
the public servant. In cases under the general penal law against
the public servant, the necessity (or otherwise) of sanction under
Section 197 Cr.P.C. depends on the factual aspects. The test in the
latter case is of the “nexus” between the act of commission or
omission and the official duty of the public servant. To commit an
offence punishable under law can never be a part of the official
duty of a public servant. It is too simplistic an approach to adopt
and to reject the necessity of sanction under Section 197 Cr.P.C.
on such reasoning. The “safe and sure test”, is to ascertain if the
omission or neglect to commit the act complained of would have
made the public servant answerable for the charge of dereliction
of his official duty. He may have acted “in excess of his duty”, but
if there is a “reasonable connection” between the impugned act
and the performance of the official duty, the protective umbrella
of Section 197 Cr.P.C. cannot be denied, so long as the discharge
of official duty is not used as a cloak for illicit acts.”
23. In view of such state of affairs, in our considered view, the
impugned order though, cannot be said to be wholly erroneous or illegal,
it can only be treated as refusing to accord sanction wherever it is
required by law like for the offence punishable under Section 506.
Therefore, we do not find any flaw in the decision making process
leading to refusing to accord sanction and the reasons therefor
considered by the competent authority (Hon’ble Chief Minister).
24. In view of the above, we allow the writ petition partly as
under :
i. It is declared that no previous sanction as contemplated
under Section 197 would be necessary for carrying out
investigation and filing a final report in respect of offence
punishable under Section 509 of the Indian Penal Code and
Section 3 of the Atrocities Act.
ii. The Investigating Officer shall complete the investigation
and submit a final report except for the offence punishable
under Section 506.
iii. It would always be open for respondents No.7 to 9, in
accordance with the liberty granted by this Court (supra) to
apply for quashment of the charge-sheet by resorting to
Section 482 of the Code of Criminal Procedure.
iv. The investigation shall be concluded and final report shall
be filed as expeditiously as possible and in any case within
six weeks.
25. Rule is made absolute in above terms.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
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