2005 Supreme(SC) 1428

2005(8) Supreme 106
Supreme Court of India
(From Punjab and Haryana High Court)
S.B. Sinha & R.V. Raveendran, JJ.
Romesh Lal Jain —Appellant
versus
Naginder Singh Rana & Ors. —Respondents
Criminal Appeal No. 691 of 2003
Decided on 28-10-2005
Counsel for the Parties :
For the Appellant : Neeraj Kumar Jain, Aditya Kr. Chaudhary, Bharat Singh, Sanjay Singh and Ugra Shankar Prasad, Advocates.
For the Respondents : K.T.S. Tulsi, Sr. Advocate, Rishi Malhotra, Prem Malhotra, Sanjay Jain, Vinay Arora, Adolf Mathew and Bimal Roy Jad, Advocates.

Important point
Whereas an order of sanction in terms of Section 197 Cr.P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same.

Headnote:Prevention of Corruption Act, 1988—Section 13(2)—Indian Penal Code, 1860—Sections 409, 167, 218, 419, 420, 465, 468 and 471—Sanction for prosecution of a public servant—Accusations made against respondent, a Sub Inspector, relating to discharge of his duties as Investigating Officer—Raid and seizure in the office and godown of appellant were made—It was alleged that several irregularities were found and some gas cylinders were said to have been sold in black market—Appellant, District Convener, LPG Dealers Association alleged that the case registered was false and that 1st respondent, IO had misappropriated 24 cylinders and had taken Rs. 20,000/- in cash from appellant by way of illegal gratification by putting pressure—Prosecution against Gas Agency u/s 7 of Essential Commodities Act was found to be false—On basis of allegations made by appellant, FIR was lodged against 1st respondent—Special Judge directed the Investigating Officer to obtain sanction for prosecution against respondent—Whether an order of sanction to prosecute 1st respondent u/s 197 Cr.P.C. was necessary to be obtained from the State—(No)—A valid order of sanction was granted in relation to offences committed by 1st respondent under the 1988 Act.

       Held : An order of sanction in terms of Section 197 Cr.P.C. is required to be obtained when the offence complained against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined. The raid and seizure in the office and godown of the Appellant were made on 18.03.1992. Seizure of gas cylinders and the lodgment of the First Information Report are no doubt acts of official capacity; but undoubtedly the prosecution was withdrawn on the ground that the same was false. It is in the aforementioned context also the question of criminal breach of trust and other allegations made as also demand and acceptance of a sum of Rs. 20,000/- may have to be viewed. (Paras 36 and 37)

       The question as to whether an order of sanction would be found essential would, thus, depend upon the facts and circumstances of each case. In a case where ex facie no order of sanction has been issued when it is admittedly a pre-requisite for taking cognizance of the offences or where such an order apparently has been passed by the authority not competent therefor, the court may take note thereof at the outset. But where the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the court to examine the said question at a later stage. We may hasten to add that we do not intend to lay down a law that only because a contention has been raised by the complainant or the prosecution that the question as regard necessity of obtaining an order of sanction is dependent upon the finding of fact that the nexus between the offences alleged and the official duty will have to be found out upon analyzing the evidences brought on records; the same cannot be done at an earlier stage. What we intend to say is that each case will have to be considered having regard to the fact situation obtaining therein and no hard and fast rule can be laid down therefor. (Paras 41 and 42)

       Having regard to the facts and circumstances of the case and keeping in view the decision of this Court, we are of the opinion that no order of sanction to prosecute the First Respondent under Section 197 Cr.P.C. was necessary to be obtained from the State. (Para 46)

       The High Court was, thus, not right in passing the impugned order particularly in view of the fact that a valid order of sanction was granted in relation to the offences committed by the First Respondent under the 1988 Act. The impugned order of the High Court, therefore, cannot be sustained, which is set aside accordingly. (Para 47)