MAIN POINTS
Principles for application of section 197, and grant or otherwise of sanction culled out.
Trial court has to proceed initially o the prosecution version. It is open to the accused to adduce evidence to show official nature of duty while committing the offence. Trial court has to decide the issue from stage to stage as evidence come in.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 197 – Protection to public servant – Sanction – Grant of – Principles culled out – If act or omission is done in discharge of duty, official nature of the duty should be liberally and widely construed – In case of criminal activity section 197 should ebe construed narrowly and in a restricted manner – If there is reasonable nexus between the act done and official duty, public servant will be entitled to the protection – Necessity of sanction has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment – Question of sanction can be raised at any stage: at the time of cognizance or at the time of framing of charge and it can be decided prima facie on the basis of accusation – It can be decided afresh in light of evidence adduced even after conclusion of trial or at the appellate stage – Question of good faith or bad faith may be decided on conclusion of trial. (Para 37)
       AIR 1939 FC 43; (1955) 1 SCR 1177; (1955) 2 SCR 925; 1981 (Supp) SCC 12; (1993) 3 SCC 339; (1997) 7 SCC 622; (1998) 1 SCC 205; (2000) 5 SCC 15; (2000) 8 SCC 500; (2001) 6 SCC 704; (2004) 2 SCC 349; (2004) 8 SCC 40; (2005) 4 SCC 512; (2005) 8 SCC 370; (2006) 4 SCC 584; (2007) 13 SCC 387; (2012) 6 SCC 228; (2015) 12 SCC 231; (2012) 12 SCC 72; (2016) 1 SCC 594; (1997) 5 SCC 326; (2004) 8 SCC 31; (2000) 8 SCC 131; (2011) 6 SCC 1; (1996) 7 SCC 20 – Relied upon
       (2000) 8 SCC 498 – Referred
       (b) Code of Criminal Procedure, 1973 – Section 197 – Alleged case of fake encounter or death caused by torture – If so, sanction u/s 197 not required – Open to appellants to adduce evidence in defence to prove official nature of duty – Trial court to decide the issue from stage to stage as evidence come in or even at the time of conclusion of the trial at the time of judgment. (Para 38)
       Facts of the case:
       The appellants are officers of Punjab Police. During anti terrorist operations four persons were killed in an encounter on 22.7.1993.
       On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused but at the relevant time, sanction from Central Government was required. On the basis of sanction obtained from the State Government, the CBI filed chargesheet against the accused persons in the Court of Special Judge, Patiala.
       The Special Court dismissed the application filed by the accused persons. Aggrieved thereby, they approached the High Court by filing a criminal revision and the same has also been dismissed. The High Court has held that as per prosecution case it is a case of fake encounter, as such sanction is not required. The same could not be said to be an act in discharge of official duties.
       Finding of the Court:
       Prima facie sanction is not required at the initial stage. Trial court has to decide the issue from stage to stage as evidence come in.
       Result:
       Appeal disposed of.

JUDGMENT :

Arun Mishra, J.

1. Leave granted in all the special leave petitions.

2. In the appeals the question involved is whether in view of the provisions contained in section 6 of Punjab Disturbed Areas Act, 1983 (as amended in 1989) (for short “the 1983 Act”) the prosecution or other legal proceedings relating to Police officers can be instituted without prior sanction of the Central Government.

3. The case set up by the appellants in Criminal Appeal No.190 of 2003 is that they are the officers of the Punjab Police. At the relevant time they were entrusted with the duties and responsibilities of public order and peace in the State of Punjab. It is averred by the appellants that, in the early 1980s, there was a sudden spurt in the terrorist activities, massive killings at the hands of terrorists, looting, extortions, kidnapping, resulting into total collapse of the civil administration. More than 25,000 civilians, 1800 men in uniform and their relatives had been killed at the hands of the terrorists resulting into migration of civil population in the border districts of Amritsar, Ferozpur and Gurdaspur. District Amritsar was bifurcated into three police districts for the purpose of better administration, namely Amritsar, Taran Taran and Majitha. The present cases arise from police district Taran Taran which is the closest police district to Pakistan.

It is further averred that on 22.7.1993 four persons were killed in an encounter with the police. The prosecution alleged that they were killed in a fake encounter. On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused as at the relevant time, under section 6 of the 1983 Act, sanction from Central Government was required. However, on the basis of sanction obtained from the State Government, the CBI filed chargesheet against the accused persons in the Court of Special Judge, Patiala. The appellants filed application under section 227 of the Cr.P.C. for discharge on the ground that they had acted in the incident in the course of their duty and sanction granted by the State Government was without jurisdiction, illegal and void.

4. The CBI contested the application on the ground that sections 4 and 5 of the 1983 Act were not applicable and there was no need for obtaining any sanction because the deceased had been killed in a fake encounter. The Special Court dismissed the application filed by the accused persons. Aggrieved thereby, they approached the High Court by filing a criminal revision and the same has also been dismissed. The High Court has held that as per prosecution case it is a case of fake encounter, as such sanction is not required. The same could not be said to be an act in discharge of official duties. Aggrieved thereby the appellants are before this Court. The facts are more or less similar in all the cases.

5. Writ Petition (Crl.) No.139/2012 has been filed by Chaman Lal with a prayer that Union of India may be directed to grant sanction under section 197 Cr.P.C. for prosecution of police officer as set out in the affidavit of CBI filed in Appeal No.190/2003.

6. This Court vide order dated 20.7.2001 stayed the further proceedings before the trial court in SLP (Crl.) No.2336/2001-Balbir Singh & Ors. v. State of Punjab. Similar orders of interim stay were passed in other cases also. One such order was passed on 21.1.2002 in SLP (Crl.) Nos.3072-75/2001 and these matters had been tagged. On behalf of the accused appellants, order dated 16.2.2006 has been referred to in which it has been observed that the CBI had stated during the course of the arguments that the mater be sent to the Central Government with the entire record to consider the question of sanction in terms of section 6 of the 1983 Act. This Court in view of the stand taken by the CBI continued the interim stay on operation of the impugned orders and observed that the Central Government will consider the matter

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2016 Supreme(SC) 325

Cases Referred (25)