IMPORTANT POINTS
(1) Sanction for prosecution of public servant – When Court considers question of cognizance being taken in absence of sanction and thereby Section 197 of Cr.P.C. being flouted it is not to be conflated and thereby confused with question as to whether an offence has been committed.
(2) Exercise of power cannot be divorced from context in which and the time at which power is exercised or if it is a case of an omission, when omission takes place.

JUDGMENT :

1. By the impugned order, the High Court has dismissed the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity). The petition under Section 482 Cr.P.C. was filed against the order passed by the Additional Sessions Judge Metropolitan Magistrate rejecting the closure report filed by the Central Bureau of Investigation (hereinafter referred to as ‘CBI’ for short) which was filed against the appellant. The closure report filed by the CBI was not accepted by the Magistrate, who instead took cognizance on the protest petition filed by the first respondent before us (Association of Victims of Uphaar Tragedy). As noted by the learned Judge in the impugned judgment on 13.06.1997, 59 persons lost their lives and over 100 persons received serious injuries while viewing a film sitting in the balcony of Uphaar theater. The unfortunate and tragic incident led to a criminal prosecution against 16 accused. While the trial was ongoing, an application was filed under Section 319 Cr.P.C. against inter-alia the present appellant. It is not in dispute that no orders were immediately passed thereon. The trial against the 16 accused culminated in the judgment dated 23.11.2007. The learned Sessions Judge while disposing of Sessions Case No. 13/07 ordered the CBI to conduct a further investigation under Section 173(8) of the Cr.P.C. The learned Sessions Judge, no doubt, proceeded to find the accused who were arraigned in Sessions Case No. 13/2007 guilty of various charges. It is after so finding and awarding appropriate sentences as against them that further investigation was ordered vide the judgment dated 23.11.2007. The CBI after investigation filed a closure report on 05.03.2009. It is therein stated that no criminal act was found against any officer other than those who were chargesheeted earlier. The first respondent thereupon, filed protest petition dated 13.05.2009. As already noticed, rejecting the closure report but accepting the complaint in the protest petition the Magistrate issued summons against the appellant. Cognizance has been taken for offences under Section 304A, 337, 338 of the Indian Penal Code, 1860 and the provisions under Section 14 of the Cinematograph Act, 1952 read with the Rules. It is the order issuing summons that was the subject matter of the proceeding under Section 482 of the Cr.P.C. and which has finally culminated in the impugned order.

2. We have heard Shri R. Basant, learned senior counsel appearing for the appellant. We have also heard Shri K.M. Nataraj, learned Additional Solicitor General, who appears on behalf of the additional Respondent namely Delhi Police. Besides, we have also heard Smt. Aparajita, learned senior counsel appearing on behalf of the CBI. We further heard Shri K.T.S. Tulsi, learned senior counsel who appears on behalf of the first respondent.

3. Shri Basant, learned senior counsel for the appellant would essentially address three contentions before us. First and foremost, he would contend that the impugned order upholding the order of the Magistrate taking cognizance and issuing summons is afflicted with an incurable illegality. The illegality consists in both the Courts overlooking the mandatory command in Section 197 of the Cr.P.C. In other words, cognizance has been taken against the appellant for the offences comprehended within the ambit of Section 197 Cr.P.C. without seeking and obtaining sanction as is contemplated under Section 197. The Magistrate has proceeded to take cognizance in the teeth of the unambiguous bar against such cognizance. He would submit that on this short point the impugned order must perish.

4. He would elaborate and submit on the facts, as to what transpired as follows. Somewhere in the year 1976, a decision was taken by the Lieutenant Governor of Delhi to reduce the price of cinema tickets. Bearing in mind that this decision would cause a financial loss to the theater o