2001(3) Crimes 323 (SC)
Supreme Court of India
(From Sikkim High Court)
G.B. Pattanaik, S.N. Phukan and B.N. Agrawal, JJ.
P.K. Pradhan —Appellant
versus
The State of Sikkim represented by C.B.I. —Respondent
Criminal Appeal No. 1118 of 2000
Decided on 24-7-2001
Counsel for the Parties :
For the Appearing Parties : L. Nageswara Rao and P.P. Malhotra, Sr. Advocates, D.K. Singh, D. Bharat Kumar, Abhijit Sen­gupta, A.D.N. Rao, P. Parmeswaran, A. Mariarputham, Mrs. Aruna Mathur, Brijender Chahar, Ashok Mathur, Advocates.

Important Point
In this case public servant is claiming that he did not abuse his position as a public servant and works contracts were awarded to contractors at a rate permissible under law and not at low rates. These facts are to be established which can be done at the trial. Therefore, it is not necessary to drop the prose­cution in the absence of sanction u/s 197 of Cr.P.C. 1973 at this stage.

Headnote:Indian Penal Code, 1860—Section 120B r/w Section 5(2) with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (=Sections 13(2) r/w 13(1)(d) of 1988 Act)—Offences under by public servant— Criminal Procedure Code, 1973—Section 197 —Sanction under—FIR lodged against Ex-Chief Minister of Sikkim his Secretary and certain contractors for said offences under IPC r/w PCA —Public servant alleging acts were done according to law—Whether sanction u/s 197 Cr.P.C. was necessary at that stage? (No, as accused failed to show that there was reasonable nexus between the act of conspiracy to accept illegal gratification and the discharge of official duty)—Dismissal by Special Judge as facts are required to be established—Whether correct? (Yes)—Appeal dismissed—Case law discussed.

       Held : The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.” The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation. (Para 5)

       After reviewing case law held : Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. (Para 15)

       Held on facts : In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of law laid down in this case without being prejudiced by any observation in the impugned orders. (Para 16)

       Held finally : For the forgoing reasons, the appeal fails and is accordingly dismissed. (Para17)