Important point
Question relating to need of sanction u/s. 197 Cr.P.C. is not necessarily be considered as soon as complaint is lodged and question may arise at any stage of the proceedings.

Headnote:Prevention of Corruption Act, 1947—Section 5(2) r/w 5(1)(d)—Criminal Procedure Code, 1973—Section 197—Appellant-accused were charge-sheeted for offences under—Petition by accused before Special Judge that in absence of requisite sanction u/s 197 Cr.P.C. it was beyond jurisdiction of Court to take cognizance and Court accepted the contention—High Court set aside the order in revision—Appeal—To invoke protection u/s 197 Cr.P.C. it must be shown that official concerned was accused of offence alleged to have been committed while acting or purporting to act in discharge of his official duties—Act must fall within the scope and range of official duties—Provision is to be construed strictly while determining its applicability to any act or omission in course of service—Question whether sanction was necessary or not might be determined from stage to stage and in cases where offences under the Act were concerned, effect of Section 19 of the Act dealing with question of prejudice could be noted—No infirmity in impugned order declining to consider applicability of Section 197 Cr.P.C., and it would be open to appellant to raise that question at appropriate stage during trial.
Held : The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection 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 from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. (Para 7)
The question relating to the need of sanction under Section 197 of the Code is not necessarily 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. Further, in cases where offences under the Act are concerned the effect of Section 19, dealing with question of prejudice has also to be noted. Therefore, we do not find any infirmity in the judgment of the High Court declining to consider the applicability of Section 197 of the Code at the present juncture. It is open to the appellant to raise that question if occasion so arises at an appropriate stage during trial. (Paras 15 and 16)

Judgment

Arijit Pasayat, J.—Leave granted.

2. All these appeals involve identical question of law and are, therefore, taken up together. In each of these cases, on the allegation that the appellant was guilty of various offences under the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (in short the ‘Act’), information was lodged, investigation was undertaken and on completion of investigation, charge sheet was filed. The appellant in each case filed petition before the Principal Special Judge for CBI cases, Chennai, contending that in the absence of requisite sanction under Section 197 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) it was beyond jurisdiction of the Court to take cognizance of the alleged offences. The stand taken in the petitions was that the alleged acts were directly and reasonably connected with official duty and since there was a direct nexus and relationship between the discharge of his alleged act and the official duties and because of the absence of requisite sanction as contemplated under Section 197 of the Code, cognizance could not have been taken. The plea found favour with the concerned court in the matter of K. Kalimuthu. The State questioned correctness of the judgment by filing revision taking the stand that Section 197 of the Code has no application to the facts of the case. The plea was accepted by the High Court, which is the subject matter of challenge in the appeal relatable to SLP (Crl.) No. 1770/2004. But the plea was not accepted by the concerned court in the other two cases to which the appeals arise out of SLP (Crl.) Nos. 2926/2004 and 681/2005. In these cases High Court rejected the plea raised by the concerned appellants about protections available under Section 197 of the Code.

3. In all the three cases the High Court took the view that the person claiming protection under Section 197 of the Code has to show that there is a reasonable connection between the act complained of and the discharge of official duty. Accordingly, the order passed by the Special Judge for CBI cases, in favour of accused-appellant in the appeal relating to SLP (Crl.) No. 1770/2004, was set aside and in other two cases view adopted by the Special Judge for CBI cases was maintained and the applications filed by the appellants - S. Chandramohan and N. Chandrasekaran were dismissed.

4. In support of the appeals, learned counsel for the appellants submitted that the High Court failed to notice the true scope and ambit of Section 197 of the Code. There was unmistakable link between the act alleged and the official duties and, therefore, Section 197 of the Code was clearly applicable.

5. In response, Mr. P.P. Malhotra, learned Additional Solicitor General for the prosecution took the stand that the High Court kept in view the law as laid down by this Court in various cases and rightly held that the protection under Section 197 of the Code was not available to the accused persons.

6. The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-

“It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of

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2005 Supreme(SC) 523

Important pointQuestion relating to need of sanction u/s. 197 Cr.P.C. is not necessarily be considered as soon as complaint is lodged and question may arise at any stage of the proceedings.

Cases Referred (8)

Important point
Question relating to need of sanction u/s. 197 Cr.P.C. is not necessarily be considered as soon as complaint is lodged and question may arise at any stage of the proceedings.