Holding

Section 197(1) of the Criminal Procedure Code can be invoked at any stage of the proceedings, and the appellant's actions were in discharge of official duty, rendering the magistrate's cognizance illegal without prior sanction.

Summary

The appellant, a public servant appointed as a duty magistrate, ordered open firing to disperse a mob at an encroachment site, resulting in one death and injuries. A private complaint was filed alleging multiple offences under the IPC and the Arms Act, and the Chief Judicial Magistrate took cognizance and issued non‑bailable warrants. The appellant contended that, because the act was performed in discharge of official duty, Section 197(1) of the Criminal Procedure Code required prior sanction from the appropriate authority before cognizance could be taken. The Supreme Court held that the requirement of prior sanction is a jurisdictional bar that can be raised at any stage of the proceedings, not merely at the charge‑framing stage. It further found that the appellant's actions were directly connected to his official duty, so Section 197(1) applied and the lack of sanction rendered the magistrate's cognizance illegal. Consequently, the Court quashed the criminal proceedings against the appellant and allowed the appeal.

Issues considered

Whether a plea invoking Section 197(1) of the Criminal Procedure Code must be raised only at the charge‑framing stage or can be raised at any stage of the proceedings.
Whether the appellant's order to open fire was committed in discharge of his official duty, thereby attracting the protection of Section 197(1).

Legislation cited

Arms Acts. 27
Code of Criminal Procedure, 1973s. 197(1)
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 380, s. 427, s. 504

Subjects

Section 197 CrPCpublic servant immunitycognizanceprevious sanctionofficial dutyjurisdictionquash of proceedings

Judgment

., ABDUL WAHAB ANSARI A
v.
STATE OF BIHAR AND ANR.

OCTOBER 17, 2000

[G.B. PATTANAIK, M.B. SHAH AND S.N. PHUKAN, JJ.] B

Criminal Procedure Code, 1973: Section 197(1)

Public servant-Commission ofoffence while discharging official duty-
Congnizance of-Plea regarding previous sanction from Appropriate C
Authority-Raising of-At what stage-Held, can be raised at any stage of
proceeding and there is no need to wait for taking such plea till the framing
of charge. ·

Public servant-Appointed as Duty Magistrate to remove the D
encroachment-Order for firing to control the mob at the encroachment site
resulting in death of a person and injuring serval others-Held, the action
of the public servant to order open firing was in discharge of his official
duties-Provisions of Section 197 is applicable and no cognizance can be
taken against him without previous sanction from appropriate-Oovernment-
Thus, order of Magistrate quashed E
Appellant, a public servant was appointed as Duty Magistrate for
removing certain encroachment. When appellant went to the site of
encroachment, several miscreants armed with weapons, started hurling stones
and the situation went out of control. Appellant after giving due warning F
ordered for opening fire to disperse the mob. On account of such firillg, one
pc~ died and several others injured. Respondent No. 2, son of the deceased
filed a ·complaint before the Chief Judicial Magistrate alleging that appellant

- had committed offence under Ss. 302, 307, 380, 427, 504, 147, 148 and 149
IPC as wen as S. 27 of the Arms Act. The Magistrate holding that a prima
facie case was established against the appellant, issued a non-bailable warrant G
1 Appd!aa~filed an app,Jjcation before the High Court under Section 482 of the

Criminal Procedure Code contending that since he was discharging his
official duty, n~ cogni7.ance can be taken against him without pr;evious sanction
from the Appropriate Authority under section 197(1) of the Code. However,
High Court disposed of the said application holding that the plea regarding H
747
748 . SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.
,.
A previous sanction can be raised at the time of framing of charges. Hence the
,..
present appeal

It was contended on behalf of the appellant that under Section 197 of
the Code of Criminal Procedure, ~he Court is debarred from taking
cognizance of the offence committecfi~ discharge of official duty except with
B the previous sanction of the competent authority, and there is no justification
for the accused to wait till the stage of framing of charge and therefore, High
Court erred in not exercising the jurisdiction vested in law.

Allowing the appeal, the Court

c HELD : 1.1. High Court was not justified in holding that the plea
regarding previous sanction under Section 197(1) of the Code of Criminal
Procedure, 1973 can be raised only at the stage of framing of charges and
not prior to it. [754-C)

D 1.2. Previous sanction «?fthe competent authority being a pre-condition
for the Court in ta~ing cognizance of the offence if the offence alleged to
have been committed by th.e accused can be said to be an act in discharge of
his official duty, the question touches the jurisdiction of the Magistrate in
the matter of taking cognizance· and, therefore, there is no requirement that
an accused should wait for taking such plea till the charges are framed. (752-C)
E
Suresh Kumar .Bhikamchand Jain v. Pandey Ajay Bhushan and Ors.,
(1998) 1 SCC 205; Ashok Sahu v. Gokul Saikia and Anr., (1990) Supp. SCC
41 and P. Saha and Ors. v. MS. Kochar, (1979) 4 SCC 177, relied on.

Birendra K. Singh v. State of Bihar, JT (2000) 8 SC 248, overruled.
F
2. In order to attract the provision of S. 197 of the Code, the offence
alleged to have been committed by the accused must have.something to do, or
must be related in some manner, with the discharge of official duty. In the
instant case, appellant had been directed by the Sub-Divisional Magistrate to
G be present with police force and remove the encroachment in question and in
course of discharge of his duty to control the mob when he had directed for
opening of fire, it must be held that the order of opening of fire was in exercise
of the power conferred upon him and the duty imposed upon him under the
orders of the Magistrate and in that view of the matter the provisions of Section
197(1) applies to the facts of the present case. Admittedly, there being no
H sanction, the cognizance taken by the Magistrate is bad in law and unless the
0

ABDUL WAHAB ANSA RI v. STATE OF BIHAR [PATTANAIK, J.] 749

same is quashed qua the appellant, it will be an abuse of the process of Court. A
[754-D; 755-C, D, E]

Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925, followed.

,... Gauri Shanker Prasad v. State ofBihar and Anr., [2000) 5 SCC 15 and
Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors., [19981 1 B
sec 205, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 885 of
2000.

From the Judgment and Order dated 16.l l .99 of the Patna High Court C
in Crl. M. No. 18954of1995.

Pradeep Ranjan Tiwary, Santosh Kumar and Rakesh K. Shanna for the
Appellant.

B.B. Singh and S.K. Sinha for the Respondents. D
The Judgment of the Court was delivered by

PATIANAIK, J. Leave Granted.

The appellant is a public Servant and on 26.4.1993, the Sub Divisional E
Magistrate asked for an explanation from him as to why the encroachment in
question is not being removed notwithstanding the direction of the High
Court. The said Sub Divisional Magistrate by order dated 25th of June, 1993,
appointed the appellant as a Duty Magistrate and one Shri Vinod Pal Singh
as Senior In-charge Magistrate of the Police Force, who were required to
remove the encroachment in question. The said appellant visited the F
encroachment site and requested the encroachers for removal of encroachment
and on 16. 7.1993 was able to remove the encroachment partially and reported
the said fact to his senior officer, but on 17. 7.l 993, when the appellant along
with armed force, reached the encroachment site, several miscreants anned
with weapons, started hurling stone and as the situation became out of G
control, after giving due warning, the appellant was compelled to give order
for opening fire and dispersed the mob. On account of such firing, one of the
persons died and two others were injured and the appellant then sent a report
to his senior officer about the incident. The son of the deceased, who is
respondent No. 2, filed a complaint before the Chief Judicial Magistrate,
alleging commission of offence by the appellant under Sections 302, 307, 380, H
750 SUPREME COURT REPOR1'8 [2000] SUPP. 3 S.C.R.
' ·~
A 427, 504, 147, 148 and 149 IPC as well as Section 27 of the Arms Act. The
Chief Judicial Magistrate by his order dated 24.11.1995, came to the conclusion
that there is sufficient evidence available to establish that prima facie case
under Sections 302, 307, 147, 148, 149 and 380 is made out against the accused
and, therefore, he directed issuance of non-bailable warrants against the
B appellant and other accused persons. The Chief Judicial Magistrate was also
of the opinion that the provisions of Section 197 of the Code of Criminal
Procedure will have no appli~ation to the facts of the case. The appellant then
-
moved the High Court under Section 482 of the Code of Criminal Procedure,
praying inter alia that no cognizance could be taken without a sanction of
the appropriate Government, a~ required under sub-section (2) of Section 197
C of the Code of Criminal Procedure, when the appellant was discharging his
official duty pursuant to an order of the Competent Authority. The High
Court, however without going into the merits of the matter and being of the
opinion that all the questions may be raised at the time of framing of charge,
disposed of the application filed by the appellant and hence the present
appeal in this Court. It may be stated that there was a dispute between two
D sets of Mohammedan residents, one set complaining against the other about
the encroachment of the property belonging to the mosque and the appellant
as the Ci~cle Inspector, on the basis of the said complaint had inquired into
the matter and on the basis of a detailed inquiry, a finding had been arrived
at, that the situation at the site was volatile. for which on 27th of March, 1991,
E order under Section 144 Cr.P.C. had been promulgated. Thereafter the appellant
had made several requests to the encroachers for removai of the encroachment .
and ultimately the Sub Divisional Magistrate, Aurangabad by his order dated
25th of June, 1993, appointed the appellant as Duty Magistrate for use of
Police Force to remove encroachment in question. When the present appeal
-'
had· been listed before us, a judgment of this Court in th~ case of Birendra
F K. Singh v. --State of Bihar, reported fa JT (2000) 8 SC 248, had been placed
before us and it was contended that the question of applicability of the
provisions of Section 197 Cr.P.C. can be raised at the stage of framing of
charge and, therefore, the impugned order of the High Court does not require
any interference by this Court. The aforesaid decision no doubt supports the
·a contention of the learned counsel, appearing for the respondent to a great
extent but as we doubted the correctness of the aforesaid enunciation of law,
the matter had been referred to a Three Judge Bench and that is how we are
in session of the matter.

The learned counsel appearing for the appellant contende~ before us
\. H that on the plain language of Section 197 of the Code of Criminal: Procedure,

\ \
ABDUL WAHAB ANSARI v.CSTATE OF BIHAR [PATTANAIK, J.] 751

when the Court is debarred from taking cognizance of the offence excep~ with A
the previous sanction of the competent authority, if it is established that the
offence alleged had been committed by him while acting or purporting to act
in discharge of his official duty, there is no justification for the accused to
wait till the stage of framing of charge is reached and the High Court,
therefore was in error in not exercising the jurisdiction vested in law. On the B
facts of the case, the learned counsel submitted that the appellant being
present at the place of occurrence pursuant to an order of the Magistrate with
the Police Force and was required to remove the encroachment in question
and he ordered for firing when the situation went out of control, while
discharging the duty of removal of encroachment and pursuant to such firing,
a person died and two persons were injured, the irresistible conclusion is that C
the use of police force related to the performance of the official duty of the
accused appellant, within the meaning of Section 197 of the Code of Criminal
Procedure and consequently, without prior sanction of the competent authority,
the Court could not have taken cognizance of the offence on the basis of a
private complaint.
D
Mr. S.K. Sinha, the learned counsel appearing for the complainant-
respondent as well as Mr. B.B. Singh, the learned counsel appearing for the
State of Bihar, fairly stated that the judgment of this Court in Birendra K.
Singh 's case has been too widely stated and there is no requirement for the
accused to wait till the stage of framing of the charge is reached for raising E
the contention with regard to the applicability of Section 197 of the Code of

....
'r
Criminal Procedure. So far as the applicability of the provisions of Section 197
of the Code of Criminal Procedure is concerned, in the facts and circumstances
of the present case, though Mr. B.B. Singh, appearing for the State of Bihar
submitted that the gravamen of the allegation made in the complaint
unequivocally indicate that the appellant was discharging his official duty F
when he directed for opening of fire to control the mob and, therefore, the
provisions of Section 197 of the Code of Criminal Procedure would apply. Mr.
Sinha, the learned counsel appearing for the complainant-respondent on the
other hand contended that the act complained of cannot be held to be in
discharge of official duty of the appellant and, therefore the provisions of G
Section 197 of the Code of Criminal Procedure will have no application.

In view of the rival submissions at the Bar, two questions arise for our
consideration:
I. Assuming the provisions of Section 197 of the Code of Criminal
Procedure applies, at what stage the accused can take such H
752 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A plea? Is it immediately after the cognizance is taken and process
is issued or it is only when the Court reaches the stage of
framing of charge as held by this Court in Birendra K. Singh 's
case. ?
2 Whether in the facts and circumstances of the present case, is
B it possible for the Court to come to a conclusion that the appellant
was discharging his official duty and in course of such discharge
of duty, ordered for opening of fire to control the mob in
consequence of which a person died and two persons were
injured and in which event, the provisions of Section 197 of the
Code of Criminal Procedure can be held to be attracted?
c
So far as the first question is concerned, on a plain reading of the
provisions of Section 197 makes it crystal clear that the Court is prohibited
from taking cognizance of the offence except with the previous sanction of
the competent authority. For a better appreciation of the point in issue,
D Section 197( 1) is quoted herein- below in extenso:

"Section 197(1). When any person who is or was a Judge or
Magistrate or a public servant not removable from his office save by
or with the sanction of the Government is accused of any offence
alleged to have been committed by him while acting or purporting to
E act in the discharge of his official duty, no Court shall take cognizance
of such offence except with the previous sanction-

(~) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed,
in connection with the affairs of the Union, of the Central
Government;
(b) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed,
in connection with the affairs ofa State, of the State Government."

G Previous sanction of the competent authority being a pre-condition for
the Court in taking cognizance of the offence if the offence alleged to have
been committed by the accused can be said to be an act in discharge of his
official duty, the que_stion touches the jurisdiction of the Magistrate in the
matter of taking cognizance and, therefore, there is no requirement that an
accused should wait for taking such plea till the charges are framed. In Suresh
H Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors., [1998] l SCC;
ABDUL WAH:AB ANSARI v. STATE OF BIHAR [PATTANAIK, J.] 753

205, a similar contention had been advanced by Mr. Sibbal, the learned senior A
-- counsel appearing for the appellants in that case. In that case, the High Court
had held on the application of the accused that the provisions of Section 197
gets attracted. Rejecting the /contention, this court had observed:

"The legislative mandate engrafted in sub-section (I) of Section 197
debarring a court from taking cognizance of an offence except with a B
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 his office save by or with the sanction of the Government
c
touches the jurisdiction of the court itself. It is a prohibition imposed
by the statute from taking cognizance, the accused after appearing

• before the Court on process being issued, by an application indicating
that Section 197(1) is attracted merely assists the court to rectify its
error where jurisdiction has been exercised which it does not possess.
I ~
In such a case there should not be any bar for the accused producing D
the relevant documents and materials which will be ipso facto
admissible, for adjudication of the question as to whether in fact
Section 197 has any application in the case in hand. It is no longer
in dispute and has been indicated by this Court in several cases that
the question of sanction can be considered at any stage of the
proceedings."
E

- The Court had further observed:

"The question of applicability of Section 197 of the Code and the
consequential ouster of jurisdiction of the court to take cognizance
without a valid sanction is genetically different from the plea of the F
accused that the averments in the complaint do not make out an
offence and as such the order of cognizance and/or the criminal
1

- proceedings be quashed. In the aforesaid premises we are of the
considered opinion that an accused is not debarred from producing
the relevant documentary materials which can be legally looked into G
without any formal proof, in support of the stand that the acts
complained of were committed in exercise of his jurisdiction or
purported jurisdiction as a public servant in discharge of his official
duty thereby requiring sanction of the appropriate authority."

In the case of Ashok Sahu v. Gokul Saikia and Anr., [1990} Supp. SCC 41, H
754 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A this court had said that want of sanction under Section 197 of the. Code is
a prohibition against institution of the proceedings, and the applicability of
the Section must be judged at the earliest stage of the proceedings and in
that case, the Court directed the Magistrate to consider the question of
sanction before framing a charge. In yet another case, in the case of P. Saha
and ors. v. MS. Kochar, [1979] 4 SCC 17_7, a three Judge Bench of this Court
B had held that the question of sanction under Section 197 Cr.P.C. can be raised
and considered at any stage of the proceedings and further in considering
the question whether or not sanction for prosecution was required, it is not
necessary/ for...___
the .
Court
.
to confine itself to the allegations in the complaint,
and it can take into account all the material on the record at the time when
C the question is raised and falls for consideration. This being the position, we
are of the considered opinion that the decision of this Court in Birendra K.
Singh 's case JT (2000) 8 SC 248, does not lay down the correct law by
directing that the objection on the question· of sanction can ~e raised at the
stage of framing of charge and not at any prior point of time.

D Coming to the second question, it is now well settled by the Constitution
Bench decision of this Court in Matajog Dobey v. H.C. Bhari, [1955] 2 SCR
925, that in the matter of grant of sanction under Section 197 of the Code of
Criminal Procedure the offence alleged to have been committed by the accused
must have something to do, or must be related in some manner, with the
E discharge of official duty. In other words, there must be a reasonable
connection between the act and the discharge of official duty; the act must
bear such relation to the duty that the accused could lay a reasonable claim, 1
but not a pretended or fanciful claim, that he did it in the course of the
performance of his duty. In the said case it had been further held that where
a power is conferred or a duty imposed by statute or otherwise, and there is
F nothing said expressly inhibiting the exercise of the power or the performance
of the duty by any limitations or restrictions, it is reasonable to hold that it
carries with it the power of doing all such acts or employing such means as
are reasonably necessary for such execution, because it is a rule that when
the Jaw commands a thing to be done, it authorises the performance of
G whatever may be necessary for executing its command. This decision was
followed by this Court in Suresh Kumar Bhikamchand Jain's case, [ 1998] I
SCC 205, and in a recent judgment of this Court in the case of Gauri Shankar
Prasad v. State of Bihar and Anr., [2000] 5 SCC 15. The aforesaid case has
.full force even to the facts of the present case inasmuch as in the said case,
the Court had observed:
H
ABDUL WAHAB ANSARI v. STATE OF BIHAR [PATTANAIK, J.] 755

"It is manifest that the appellant was present at the place of occurrence A
in his official capacity as Sub-Divisional Magistrate for the purpose
of removal of encroachment from government land and in exercise of
such duty, he is alleged to have committed the acts which form the
gravamen of the allegations contained in the complaint lodged by the
respondent. In such circumstances, it cannot but be held that the acts B
complained of by the respondent against the appellant have a
reasonable nexus with the official duty of the appellant. It follows,
therefore, that the appellant is entitled to the immunity from criminal
proceedings without sanction provided under Section 197 Cr.P.C."

It is not necessary for us to multiply authorities on this point and bearing in C
mind the ratio of the aforesaid cases and applying the same to the facts of
the present case as indicated in the complaint itself, we have no hesitation
to come to the conclusion that the appellant had been directed by the Sub-
Divisional Magistrate to be present with police force and remove the
encroachment in question and in course of dis!,':harge of his duty to control
the mob, when he had directed for openirig of fire, it must be held that the D
order of opening of fire was in exercise of the power conferred upon him and
the duty imposed upon him under the orders of the Magistrate and in that
view of the matter the provisions of Section 197(1) applies to the facts of the
present case. Admittedly, there being no sanction, the cognizance taken by
the Magistrate is bad in law and unless the same is quashed qua the appellant,
it will be an abuse of the process of Court. Accordingly, we allow this appeal E
and quash the criminal proceeding, so far as the appellant is concerned.

S.VK Appeal allowed.