AMOD KUMAR KANTHversusASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND ANR.

                          [2023] 6 S.C.R. 669                            669


                     AMOD KUMAR KANTH                                    A
                                  v.
  ASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND
                       ANR.
                 (Criminal Appeal No. 1359 of 2017)                      B
                           APRIL 20, 2023
           [K. M. JOSEPH, B.V. NAGARATHNA AND
                      ARAVIND KUMAR, JJ.]
       Code of Criminal Procedure, 1973 – s.197 –Ambit of –
Uphaar Tragedy case – Closure report filed by the CBI against the        C
appellant was rejected by the Magistrate,who instead took
cognizance on the protest petition filed by the first respondent and
issued summons against the appellant – Cognizance was taken for
offences u/ss.304A, 337, 338, IPC and u/s.14, Cinematograph Act
r/w the Rules – Appellant filed petition u/s.482, CrPC challenging       D
the order issuing summons – Dismissed – On appeal, held: When
considering the question of cognizance being taken in the absence
of sanction and thereby s.197 being flouted it is not to be conflated
and thereby confused with the question as to whether an offence
has been committed – The salutary purpose behind s.197 is protection
being accorded to public servants – The most important question          E
which must be posed and answered by the Court when dealing with
the argument that sanction is not forthcoming is whether the officer
was acting in the exercise of his official duties – Even an officer
who acts in the purported exercise of his official power is given the
protection u/s.197– In the present case, having regard to the            F
admitted facts, it cannot be said that the appellant was not acting in
the discharge of his official functions –The subtle and nuanced
distinction between the question as to whether the offence has been
committed and if an offence has been committed, whether a sanction
is required for prosecuting a public servant who is alleged to have
committed the same, must not be lost sight of – Magistrate and the       G
High Court overlooked this distinction – Magistrate erred in taking
cognizance against the appellant contrary to the demands of s.197
–Impugned order set aside –Proceedings challenged in s.482 stand
quashed–Penal Code, 1860– ss.304A, 337, 338 – Cinematograph
Act, 1952 – s.14.
                                                                         H
                                 669
670            SUPREME COURT REPORTS                         [2023] 6 S.C.R.


A           D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC
            695 : [2020] 6 SCR 453; Indra Devi v. State of
            Rajasthan and Another (2021) 8 SCC 768; State of
            Haryana and Others v. Bhajan Lal and Others 1992
            Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; Sukhpal
            Singh Khaira v. State of Punjab (2023) 1 SCC 289;
B
            Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC
            500 : [2000] 3 Suppl. SCR 747; Surinderjit Singh Mand
            v. State of Punjab, (2016) 8 SCC 722 : [2016] 5 SCR
            653; Devinder Singh v. State of Punjab, (2016) 12 SCC
            87 : [2016] 6 SCR 295; Sushil Ansal v. State through
C           CBI 2014 (6) SCC 173 : [2014] 9 SCR 571; Shantaben
            Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and
            Others 2021 SCC Online SC 974; MCD v. Uphaar
            Tragedy Victims Assn. (2011) 14 SCC 481: [2011] 16
            SCR 1 – referred to.
D                             Case Law Reference
      [2020] 6 SCR 453                 referred to             Para 5
      [1990] 3 Suppl. SCR 259          referred to             Para 7
      [2000] 3 Suppl. SCR 747          referred to             Para 13
E     [2016] 5 SCR 653                 referred to             Para 14
      [2016] 6 SCR 295                 referred to             Para 15
      [2014] 9 SCR 571                 referred to             Para 16, 29
      [2011] 16 SCR 1                  referred to             Para 32
F          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No.1359 of 2017.
            From the Judgment and Order dated 03.10.2013 of the High Court
      of Delhi at New Delhi in CRLM No.2746 of 2010.

G           R. Basant, Mathai M Paikaday, Sr. Advs., Ms. Liz Mathew, Ms.
      Biji Rajesh, A.K. Singh, Ms. Mohini Priya, Akshay Sahay, Ms. Mallika
      Agarwal, Ms. Vasudha Jain, Sudarshan Singh Rawat, Sajjan Singh Nahar,
      Sanjay Jain, Advs. for the Appellant.
            Tushar Mehta, Solicitor General, K. M. Nataraj, A.S.G., KTS Tulsi,
      Sr. Adv., Sukant Vikram, Aditya Pratap Singh, Mrs. Pallavi Malhotra,
H
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                671
          UPHAAR TRAGEDY AND ANR.

Avish Bhati, T A Khan, B K Satija, Ms. Swati Ghildiyal, Shantnu Sharma,       A
Sharath Nambiar, Arvind Kumar Sharma, Mukesh Kumar Maroria,
Shreekant Neelappa Terdal, Shailesh Madiyal, Veer Vikrant Singh, Indira
Bhakar, Dr. N. Visakamurthy, Advs. for the Respondents.
      The following Judgment of the Court was delivered :
                             JUDGMENT                                         B

       (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           C
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           D
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    E
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           F
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        G
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         H
672             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     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
B     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.
C
             (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
D     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
E     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.
F     Bearing in mind that this decision would cause a financial loss to the
      theater owners, it was decided to permit the theaters to be fitted with
      more seats so that from the revenue earned thereunder, the loss caused
      by the reduction in the price of the cinema tickets could be offset. On
      the strength of the said decision which was taken in 1976, theaters in
      Delhi came to be equipped with more seats. The appellant took over as
G     Deputy Commissioner of Police on 02.02.1979. In his capacity as the
      DCP, he also came to be entrusted with the duties of a licensing officer
      under the Cinematograph Act, 1952 and the Rules. He continued in this
      official position till 26.05.1980. There was a change of policy brought
      about by the Lieutenant Governor. The earlier decision which was taken
H     in the year 1976 to increase seats came to be revoked. This was done
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                673
          UPHAAR TRAGEDY AND ANR.

on 27.07.1979. The appellant, according to the learned senior counsel,        A
issued orders to the cinema theaters directing them to remove the extra
seats and to report compliance by 04.08.1979 failing which their licenses
would be suspended. The notification dated 27.07.1979 issued by the
Lieutenant Governor and the order passed by the appellant dated
28.07.1979 came to be impugned in a batch of writ petitions in the High
                                                                              B
Court of Delhi. The High Court of Delhi passed an interim order dated
02.08.1979 granting protection to the owners, in that, the direction to
remove the extra seats was kept in abeyance but they were forbidden
from issuing tickets in regard to the additional seats. A joint inspection
came to be carried out on 05.10.1979. The joint inspection recommended
the complete removal of the additional seats. The appellant on 22.10.1979     C
filed a counter affidavit before the High Court. Therein it is pointed out
that the appellant stoutly opposed the plea of the writ petitioners that
additional seats may be allowed to be preserved. On 29.11.1979, it is
pointed out that the High Court rejected the report of the joint inspection
team. The High Court also did not find favour with the stand taken by
                                                                              D
the appellant in the counter affidavit. The High Court by its judgment
dated 29.11.1979, in short, directed the appellant to look into the matter
and find out whether the seats could be continued on their being a
substantial and not too rigid and inflexible compliance. Show cause notices
was issued on 06.12.1979 to the theater owners. On 19.12.1979, joint
inspection was carried out by the Executive Engineer (PWD), Chief             E
Fire Officer and the Assistant Commissioner of Police (Licensing). A
hearing was afforded to the theater owners. This included the owners
of the UphaarTheater. This took place on 20.12.1979. It is, thereafter,
that on 24.12.1979, according to the appellant, on the recommendations
of the committee, the appellant ordered the removal of 06 seats in the
                                                                              F
balcony and 56 seats in the rest of the floor of Uphaar Theater. This
means a total of 62 additional seats out of the total of 100 seats which
had been put in place on the strength of the notification issued in 1976
came to be ordered to be removed. It is stated by the appellant that
annual inspections were carried out subsequently. The appellant came
to be transferred and he vacated the post on 26.05.1980. There was            G
another inspection which was conducted on 09.06.1983 and 17.06.1983
by a joint inspection team comprising the licensing branch of the Delhi
Police. The Municipal Corporation of Delhi and the Delhi Fire Services
also were part of the team. Large scale safety violations were found.
The license of Uphaar theater came to be suspended on 27.06.1983.
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674             SUPREME COURT REPORTS                            [2023] 6 S.C.R.


A     From 1980-1997, it is pointed out that the theater in question was inspected
      every year. The suspension order passed against the theater in question
      was the subject matter of challenge in the two writ petitions and the
      suspension was kept in abeyance. The theater continued to operate. It is
      nearly 17 years after the order dated 24.12.1979, on 13.06.1997 that a
      fire broke out which led to the unfortunate passing away of 59 persons
B
      besides injury to several others. He would, therefore, point out that, at
      best or at worst, what could be projected against the appellant could not
      take it out of the ambit of Section 197. In other words, it could not be
      said despite all that has happened that he was not exercising power
      which flowed from his office. He did whatever he did in the discharge
C     of his official functions. Section 197 immunisesa person if his act is in
      exercise of his official power. Whichever way one looks at it, whatever
      he has done, or even if there is an excess, even if there has been
      negligence, he would be entitled in law to the protection afforded by
      Section 197 of the Cr.P.C. The Courts have ignored this salutary principle
      enshrined in Section 197 of the Cr.P.C. The principle enshrined by Section
D
      197 of the Cr.P.C. is intended to protect public servants. It is not to be
      confused with the question as to whether an offence has been committed.
      The law mandates that once the person against whom cognizance is
      taken was holding a public office within the meaning of Section 197 of
      the Cr.P.C. and the act or omission attributed to him is done in the discharge
E     of his official duties or in the purported exercise of his official duties, it
      would be completely illegal for the judicial officer concerned to move
      the law forward against him by taking cognizance in the absence of
      sanction. In the facts of the case before the Court, he would submit that
      it was clear that whatever he did or did not, it arose within the discharge
      of his official functions. In this regard, he drew inspiration from the
F
      following decisions:
            (5) In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC
      695, he drew our attention to the following:
                “71. If the act alleged in a complaint purported to be filed against
G               the policeman is reasonably connected to discharge of some
                official duty, cognizance thereof cannot be taken unless requisite
                sanction of the appropriate Government is obtained under
                Section 197 of the Code of Criminal Procedure and/or Section
                170 of the Karnataka Police Act.

H
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 675
          UPHAAR TRAGEDY AND ANR.

      74. It is well settled that an application under Section 482 of the      A
      Criminal Procedure Code is maintainable to quash proceedings
      which are ex facie bad for want of sanction, frivolous or in abuse
      of process of court. If, on the face of the complaint, the act alleged
      appears to have a reasonable relationship with official duty, where
      the criminal proceeding is apparently prompted by mala fides and
                                                                               B
      instituted with ulterior motive, power under Section 482 of the
      Criminal Procedure Code would have to be exercised to quash
      the proceedings, to prevent abuse of process of court.”
      (6) Next, he drew our attention to Indra Devi v. State of
Rajasthan and Another (2021) 8 SCC 768 to the following paragraphs:
                                                                               C
      “10. We have given our thought to the submissions of the learned
      counsel for the parties. Section 197 CrPC seeks to protect an
      officer from unnecessary harassment, who is accused of an
      offence committed while acting or purporting to act in the discharge
      of his official duties and, thus, prohibits the court from taking
      cognizance of such offence except with the previous sanction of          D
      the competent authority. Public servants have been treated as a
      special category in order to protect them from malicious or
      vexatious prosecution. At the same time, the shield cannot protect
      corrupt officers and the provisions must be construed in such a
      manner as to advance the cause of honesty, justice and good              E
      governance. (See Subramanian Swamy v. Manmohan
      Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3
      SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .)
      The alleged indulgence of the officers in cheating, fabrication of
      records or misappropriation cannot be said to be in discharge of
      their official duty. However, such sanction is necessary if the          F
      offence alleged against the public servant is committed by him
      “while acting or purporting to act in the discharge of his official
      duty” and in order to find out whether the alleged offence is
      committed “while acting or purporting to act in the discharge of
      his official duty”, the yardstick to be followed is to form a prima      G
      facie view whether the act of omission for which the accused
      was charged had a reasonable connection with the discharge of
      his duties. (See State of Maharashtra v. Budhikota
      Subbarao [State of Maharashtra v. Budhikota Subbarao,
      (1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question,
                                                                               H
676            SUPREME COURT REPORTS                             [2023] 6 S.C.R.


A           therefore, is whether the act committed is directly concerned with
            the official duty.
            11. We have to apply the aforesaid test to the facts of the present
            case. In that behalf, the factum of Respondent 2 not being named
            in the FIR is not of much significance as the alleged role came to
B           light later on. However, what is of significance is the role assigned
            to him in the alleged infraction i.e. conspiring with his superiors.
            What emerges therefrom is that insofar as the processing of the
            papers was concerned, Surendra Kumar Mathur, the Executive
            Officer, had put his initials to the relevant papers which was held
            in discharge of his official duties. Not only that, Sandeep Mathur,
C           who was part of the alleged transaction, was also similarly granted
            protection. The work which was assigned to Respondent 2
            pertained to the subject-matter of allotment, regularisation,
            conversion of agricultural land and fell within his domain of work.
            In the processing of application of Megharam, the file was initially
D           put up to the Executive Officer who directed the inspection and
            the inspection was carried out by the Junior Engineer and only
            thereafter the Municipal Commissioner signed the file. The result
            is that the superior officers, who have dealt with the file, have
            been granted protection while the clerk, who did the paper work
            i.e. Respondent 2, has been denied similar protection by the trial
E           court even though the allegation is of really conspiring with his
            superior officers. Neither the State nor the complainant appealed
            against the protection granted under Section 197 CrPC qua these
            two other officers.
            12. We are, thus, not able to appreciate why a similar protection
F           ought not to be granted to Respondent 2 as was done in the case
            of the other two officials by the trial court and High Court,
            respectively. The sanction from the competent authority would
            be required to take cognizance and no sanction had been obtained
            in respect of any of the officers. It is in view thereof that in respect
G           of the other two officers, the proceedings were quashed and that
            is what the High Court has directed in the present case as well.”
             (7) Next, the learned senior counsel for the appellant would contend
      that the Court must not be oblivious to the facts of the case as well. The
      appellant’s acts or omissions are traceable to the year 1979-1980. The
H     incident in question took place a good 17 years thereafter. Annual
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 677
          UPHAAR TRAGEDY AND ANR.

inspections took place. Other officers have had powers of oversight and        A
exercised it from time to time. Several theaters apart from Uphaar theater
had extra seats. It is only in this unfortunate case that the occurring of
the fire in 1997 has led to the entire proceedings. He would submit that
following the principle in State of Haryana and Others v. Bhajan Lal
and Others 1992 Supp (1) SCC 335, it is a fit case where no criminality
                                                                               B
can be attached to the alleged acts and omissions.
       (8) Thirdly, he would also submit that, as noticed, in this narration
above, though an application was filed to take action under Section 319
of the Cr.P.C. pending the trial against the original accused, no orders
were passed thereon. It received final attention of the Court only when
the matter was finally disposed of by way of the judgment convicting the       C
original accused.
       (9) The Court, he would point out, departed from the requirement
of the law by directing investigation under Section 173(8) after the trial
was concluded and judgment was pronounced. This is according to him,
not permissible in law. He drew our attention to Sukhpal Singh Khaira          D
v. State of Punjab (2023) 1 SCC 289:
      “39.(I) Whether the trial court has the power under Section
      319CrPC for summoning additional accused when the trial with
      respect to other co-accused has ended and the judgment of
      conviction rendered on the same date before pronouncing the              E
      summoning order?
      The power under Section 319 CrPC is to be invoked and exercised
      before the pronouncement of the order of sentence where there
      is a judgment of conviction of the accused. In the case of acquittal,
      the power should be exercised before the order of acquittal is           F
      pronounced. Hence, the summoning order has to precede the
      conclusion of trial by imposition of sentence in the case of
      conviction. If the order is passed on the same day, it will have to
      be examined on the facts and circumstances of each case and if
      such summoning order is passed either after the order of acquittal       G
      or imposing sentence in the case of conviction, the same will not
      be sustainable.”
      (10) He also presses for our consideration the aspect that the
appellant is a highly decorated officer with an impeccable track record.
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678            SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A           (11) Shri K. M. Nataraj, learned Additional Solicitor General, who
      appears for the additional respondent-Delhi Police would submit that the
      Delhi Police is the authority which sanctions prosecution under Section
      197 of the Cr.P.C.
             (12) Shri K. M. Nataraj, would submit that it is indispensable for
B     taking cognizance against a public servant within the meaning of Section
      197 of the Cr.P.C., that the sanctioning authority grants sanction. He
      would in this regard appear to us to support the contention taken by the
      appellant. He also seeks fortification from the following case law:
            (13) He drew our attention to Abdul Wahab Ansari v. State of
C     Bihar, (2000) 8 SCC 500 wherein this Court held:
            7. Previous sanction of the competent authority being a
            precondition 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 question
D           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 Kumar Bhikamchand Jain v. Pandey Ajay
            Bhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similar
            contention had been advanced by Mr Sibal, the learned Senior
E           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 get attracted. Rejecting the contention,
            this Court had observed: (SCC pp. 217-18, para 23)
               “The legislative mandate engrafted in sub-section (1) of Section
F              197 debarring a court from taking cognizance of an offence
               except with a 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
G              such public servant is not removable from his 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, 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
H
AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                               679
        UPHAAR TRAGEDY AND ANR.

     rectify its error where jurisdiction has been exercised which it      A
     does not possess. In such a case there should not be any bar
     for the accused producing 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
                                                                           B
     indicated by this Court in several cases that the question of
     sanction can be considered at any stage of the proceedings.”
  The Court had further observed: (SCC pp. 218-19, para 24)
     “The question of applicability of Section 197 of the Code and
     the consequential ouster of jurisdiction of the court to take         C
     cognizance without a valid sanction is genetically different from
     the plea of the accused that the averments in the complaint do
     not make out an offence and as such the order of cognizance
     and/or the criminal proceedings be quashed. In the aforesaid
     premises we are of the considered opinion that an accused is
     not debarred from producing the relevant documentary                  D
     materials which can be legally looked into 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.”                     E
  9. Coming to the second question, it is now well settled by the
  Constitution        Bench      decision         of    this     Court
  in MatajogDobey v. H.C. Bhari [AIR 1956 SC 44 : (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             F
  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 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, but not a pretended or fanciful claim, that he did     G
  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 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   H
680      SUPREME COURT REPORTS                             [2023] 6 S.C.R.


A     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 law commands a thing to be
      done, it authorises the performance of whatever may be necessary
      for executing its command. This decision was followed by this
      Court in Suresh Kumar Bhikamchand Jain case [(1998) 1 SCC
B
      205 : 1998 SCC (Cri) 1] and in a recent judgment of this Court in
      the case of Gauri Shankar Prasad v. State of Bihar [(2000) 5
      SCC 15 : 2000 SCC (Cri) 872] . The aforesaid case has full force
      even to the facts of the present case inasmuch as in the said case,
      the Court had observed: (SCC p. 21, para 14)
C        “[I]t is manifest that the appellant was present at the place of
         occurrence 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
D        in the complaint lodged by the respondent. In such
         circumstances, it cannot but be held that the acts 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
E        CrPC.”
      It is not necessary for us to multiply authorities on this point and
      bearing in 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
F     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 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
G     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
H
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 681
          UPHAAR TRAGEDY AND ANR.

      and quash the criminal proceeding, so far as the appellant is            A
      concerned.
      (14) He also brought to the notice of the Court, the decision in
Surinderjit Singh Mand v. State of Punjab, (2016) 8 SCC 722:
      25. In continuation of the submissions noticed in the foregoing
      paragraphs, it was asserted by the learned counsel representing          B
      the respondents that the prosecution contemplated under Section
      197 of the Code and the action of the Court in taking cognizance
      pertain to actions initiated on the basis of complaints which disclose
      the commission of an offence, or on a police report of such facts,
      or upon receipt of information from a person other than the police       C
      officer that such offence had been committed. It was asserted
      that the above action of taking cognizance by a court is based on
      alleged “facts” and not “on evidence” recorded by a court. The
      above distinction was drawn by referring to Section 190 of the
      Code which contemplates initiation of action on the basis of facts
      alleged against an accused, as against, Section 319 of the Code          D
      whereunder action is triggered against the person concerned only
      if it appears from the evidence recorded during the trial that the
      said person was involved in the commission of an offence. While
      making a reference to Section 319 of the Code, it was submitted
      on behalf of the respondents that cognizance taken under Section         E
      319 of the Code was by the Court itself and therefore, the same
      having been based on “evidence”, as also, the satisfaction of the
      Court itself that such person needed to be tried together with the
      “other accused”, it seemed unreasonable that sanction postulated
      under Section 197 of the Code should still be required. It was
      pointed out that the protection contemplated under Section 197 of        F
      the Code was not a prerequisite necessity when cognizance was
      based on the evaluation of “evidence” by a court itself. The learned
      counsel emphasised that when a court itself had determined that
      cognizance was required to be taken, based on evidence which
      had been recorded by the same court, it would be undermining             G
      the authority of the court concerned if its judicial determination
      was considered subservient to the decision taken by the authorities
      contemplated under Section 197 of the Code. Based on the
      submissions noticed above, it was the vehement contention of the
      learned counsel for the respondents that the mandate of Section
                                                                               H
682            SUPREME COURT REPORTS                              [2023] 6 S.C.R.


A           197 would not extend to cases where cognizance had been taken
            under Section 319 of the Code.
            (15) He further drew our attention to the decision in Devinder
      Singh v. State of Punjab, (2016) 12 SCC 87
            “39. The principles emerging from the aforesaid decisions are
B           summarised hereunder:
            39.1. Protection of sanction is an assurance to an honest and
            sincere officer to perform his duty honestly and to the best of his
            ability to further public duty. However, authority cannot be
            camouflaged to commit crime.
C
            39.2. Once act or omission has been found to have been committed
            by public servant in discharging his duty it must be given liberal
            and wide construction so far its official nature is concerned. Public
            servant is not entitled to indulge in criminal activities. To that extent
            Section 197 CrPC has to be construed narrowly and in a restricted
D           manner.
            39.3. Even in facts of a case when public servant has exceeded
            in his duty, if there is reasonable connection it will not deprive him
            of protection under Section 197 CrPC. There cannot be a universal
            rule to determine whether there is reasonable nexus between the
E           act done and official duty nor is it possible to lay down such rule.
            39.4. In case the assault made is intrinsically connected with or
            related to performance of official duties, sanction would be
            necessary under Section 197 CrPC, but such relation to duty should
            not be pretended or fanciful claim. The offence must be directly
F           and reasonably connected with official duty to require sanction. It
            is no part of official duty to commit offence. In case offence was
            incomplete without proving, the official act, ordinarily the provisions
            of Section 197 CrPC would apply.
            39.5. In case sanction is necessary, it has to be decided by
G           competent authority and sanction has to be issued on the basis of
            sound objective assessment. The court is not to be a sanctioning
            authority.
            39.6. Ordinarily, question of sanction should be dealt with at the
            stage of taking cognizance, but if the cognizance is taken
H
   AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 683
           UPHAAR TRAGEDY AND ANR.

      erroneously and the same comes to the notice of court at a later          A
      stage, finding to that effect is permissible and such a plea can be
      taken first time before the appellate court. It may arise at inception
      itself. There is no requirement that the accused must wait till
      charges are framed.
      39.7. Question of sanction can be raised at the time of framing of        B
      charge and it can be decided prima facie on the basis of accusation.
      It is open to decide it afresh in light of evidence adduced after
      conclusion of trial or at other appropriate stage.
      39.8. Question of sanction may arise at any stage of proceedings.
      On a police or judicial inquiry or in course of evidence during trial.    C
      Whether sanction is necessary or not may have to be determined
      from stage to stage and material brought on record depending
      upon facts of each case. Question of sanction can be considered
      at any stage of the proceedings. Necessity for sanction may reveal
      itself in the course of the progress of the case and it would be
      open to the accused to place material during the course of trial for      D
      showing what his duty was. The accused has the right to lead
      evidence in support of his case on merits.
      39.9. In some cases it may not be possible to decide the question
      effectively and finally without giving opportunity to the defence to
      adduce evidence. Question of good faith or bad faith may be               E
      decided on conclusion of trial.
       (16) Smt. Aparajita, learned senior counsel appearing on behalf
of the respondent-CBI though finding herself in an unenviable position
for the reason that her client CBI has, after investigation found nothing
against the appellant, she stated that she would have to redeem the             F
position, in the interest of justice. She canvassed for the position that the
contention of the appellant that there was no sanction would not advance
his case. She would submit that the trial Court, the High Court in appeal
and what is more, this Court have found against the licensing authorities
which includes the appellant. She took us through the judgment of this          G
Court reported in Sushil Ansalv. State through CBI 2014(6) SCC 173.
They read as follows:
      “134. That apart, a seating plan, which was in breach of the
      statutory provisions and compromised the safety requirements
      prescribed under the DCR, 1953, could hardly support a belief in
                                                                                H
684      SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     good faith that exhibition of films with such a plan was legally
      justified. That is so especially when the repeal of the Notification
      dated 30-9-1976 by which Uphaar was permitted 100 more seats
      was followed by a demand for removal of the additional seats.
      Instead of doing so the occupiers/owners assailed that demand in
      Isherdas Sahni and Bros. v. Delhi Admn. [Isherdas Sahni and
B
      Bros. v. Delhi Admn., AIR 1980 Del 147] before the High Court
      of Delhi in which the High Court directed the authorities to have
      a fresh look from the standpoint of substantial compliance with
      the provisions of the Cinematograph Act. The High Court observed
      : (AIR p. 152, paras 11-12)
C        “11. Proposition 3 : It has been already made clear above
         that the relaxation was granted after considering the public
         health and the fire hazard aspects. It is also clear that the very
         fact that the relaxation could not be granted after bearing these
         main considerations in mind would show that there was some
D        rule for the extension of the sitting accommodation in these
         theatres within the Rules, though the provision of some of the
         additional seats may perhaps have been to some extent contrary
         to some of the Rules. It is not necessary for us to speculate on
         this question. It is enough to say that the result of the
         cancellation of the relaxation is simply the withdrawal of the
E        relaxation. It does not automatically mean that all the additional
         seats which were installed in the cinema theatres were contrary
         to the Rules and must, therefore, be dismantled without any
         consideration as to how many of these seats were in consonance
         with the Rules and how many of them were contrary to the
F        Rules.
         12. Our finding on Proposition 3 is, therefore, that the
         Administration will apply their mind to the additional seats with
         a view to determine which of them have contravened which
         rules and to what extent. They will bear in mind that the
G        compliance with the Rules is to be substantial and not rigid and
         inflexible.”
      If while carrying out the above directive, the authorities concerned
      turned a blind eye to the fundamental requirement of the Rules by
      ignoring the closure of the right side exit and gangway prescribed
H     as an essential requirement under the DCR, 1953, they acted in
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 685
          UPHAAR TRAGEDY AND ANR.

      breach of the rules and in the process endangered the safety of          A
      the patrons.
      135. We shall presently turn to the question whether the repeal of
      the notification had the effect of obliging the occupier/licensee of
      the Cinema to remove the seats and restore the gangways and
      exits as originally sanctioned. But we cannot ignore the fact that       B
      the occupiers/licensees of the Cinema, had opposed the removal
      of the additional seats even when the respondents in the writ
      petition had expressed concerns about the safety of the patrons if
      the additional seats were not removed which removal it is evident
      would have by itself resulted in the restoration of the right side
      gangway. So also the authorities ought to have insisted on the           C
      restoration of the right side exit by removal of the eight-seater
      box which was allowed in the year 1978, ostensibly because with
      the right side gangway getting closed by additional seats occupying
      that space the authorities considered the continuance ofthe right
      side exit to be of no practical use. Withdrawal of relaxation in the     D
      year 1979 ought to have resulted in the reversal of not only the
      fixing of additional seats but all subsequent decisions that proceeded
      on the basis thereof. It is difficult to appreciate how even applying
      the test of substantial compliance the authorities could consider
      the theatre to be compliant with the DCR, 1953 especially insofar
      as the same related to an important aspect like gangways and             E
      exits so very vital for speedy dispersal from the cinema hall.”
       (17) She would also seek support from the reasoning which has
been employed by both the trial Court and the High Court viz., the fact
that here is an officer who stoutly defended his action taken under order
dated 28.07.1979 in the light of the notification dated 27.07.1979 revoking    F
the earlier decision to grant extra seats which was not followed to its
logical culmination when it came to the removal of the extra seats. In
other words, here is a person who prevaricated without justification,
what is more, contrary to the statutory rules governing the safety features
which must be indispensably maintained and fostered.                           G
      (18) She also sought to draw support from the recent judgment of
this Court viz., ShantabenBhurabhaiBhuriyav. Anand Athabhai
Chaudhari and Others 2021 SCC Online SC 974. She would point out
on the strength of the said judgment that even if this Court finds that
sans sanction, cognizance became vulnerable, it would still justify this       H
686             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     Court directing grant of sanction be considered and given. The tragedy
      which occurred after 17 years could have been averted. The causa
      causans was the refusal to remove the extra seats which means the
      immediate cause for the fire and the deaths caused by the fire could
      have been avoided.
B            (19) Shri KTS Tulsi, learned senior counsel appearing on behalf
      of the first respondent, would submit that cognizance is taken of the
      offence and not the offender. No wrong has been done by the Magistrate
      in taking cognizance in a case as grave as the present case. He points
      out that the proportions of the tragedy that overtook the lives of as many
      as 59 persons should not be lost sight of by the Court. He reiterates the
C     argument of Smt. Aparajita that the matter has engaged the attention of
      three Courts which includes this Court and the blame of officers of the
      licensing bodies which includes the appellant and that the same cannot
      be overlooked.
              (20) Learned senior counsel would submit that a perusal of the
D     pleadings of the appellant would also reveal conduct unbecoming on the
      part of an applicant before the High Court. It is the requirement of an
      applicant who comes to Court to conduct himself fairly. He elaborates
      by pointing out that at one juncture, appellant had a case that he had
      personally inspected the theater. It is contrasted with his pleading wherein
E     he took the stand that he has not personally inspected the theaters
      whereas, actually, inspection was done by the members of the inspecting
      team. In other words, here is a person, who even though is wearing the
      robes of a public servant, he cannot claim immunity under Section 197
      of the Cr.P.C. by reason of his conduct. Learned senior counsel would
      submit that the change from the strict posture that he adopted when he
F     filed the counter affidavit is inexplicable and it invited cognizance being
      legitimately taken. No case has been made by the appellant, in other
      words, for interfering with the impugned order.
            ANALYSIS

G             (21) There is no dispute that the appellant was a public servant.
      The period in question when he had a connection with the theater in
      question can be seen as 1979-1980. We have already indicated
      indisputably the train of events which unfolded and the genesis of which
      is the issuance of the notification in 1976 by the Lieutenant Governor.
      The number of seats were allowed to be increased. The appellant had
H     nothing to do with that. Based on the decision, the seats were increased.
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 687
          UPHAAR TRAGEDY AND ANR.

Again the appellant was nowhere near the scene at the time. The appellant      A
took over on 02.02.1979. On 27.07.1979, a notification came to be issued
revoking the earlier notification issued on 13.09.1976. Acting strictly in
obedience to the said notification revoking the earlier notification, the
appellant did issue an order dated 28.07.1979. The subsequent notification
revoking the earlier notification as also the action of the appellant came
                                                                               B
to be impugned before the High Court of Delhi. An interim order followed.
The appellant did defend the action as was expected of him as an official
respondent. It is thereafter that the High Court proceeded to render its
judgment. The High Court inter alia held as follows:
       (22) The High Court found that the relaxations granted under the
proviso to Rule 3(3) were capable of being modified or revoked and in          C
the circumstances, the cancellations of the relaxations were justified
and legal.
      (23) Thereafter the Court, inter alia, went on to hold as follows:
      “Proposition No. 3:                                                      D
      It has been already made clear above that the relaxation was
      granted after considering the public health and the fire hazard
      aspects. It is also clear that the very fact that the relaxation could
      not be granted after bearing these main considerations in mind
      would show that there was some rule for the extension of the             E
      sitting accommodation in these theaters within the Rules, though
      the provision of some of the additional seats may perhaps have
      been to some extent contrary to some of the Rules. It is not
      necessary for us to speculate on this question. It is enough to say
      that the result of the cancellation of the relaxation is simply the
      withdrawal of the relaxation. It does not automatically mean that        F
      all the additional seats which installed in the cinema theatres were
      contrary to the Rules and must, therefore, be dismantled without
      any consideration as to how many of these seats were in
      consonance, with the Rules and how many of them were contrary
      to the Rules.                                                            G
      Our finding on proposition No. 3, therefore, that the Administration
      will apply their mind to the additional seats with a view to determine
      which of them have contravened which rules and to what extent.
      They will bear in mind that the compliance with the Rules is to be
      substantial and not rigid and inflexible.
                                                                               H
688             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A           With these guidelines furnished by the Act itself, they will determine
            which of the additional seats infringe upon the Rules and in respect
            of only such seats they will have the power to order removal of
            such seats.”
            “Proposition 4
B           It is not disputed that some of the cinema theatres had existed
            prior to the promulgation of 1953 rules. Advisedly, Rule 3(3) makes
            a distinction between these theatres and other theatres which have
            come into existence after the promulgation of these Rules. It would
            appear from the opening words of Rule 3(3) that licences may be
C           granted or reviewed in respect of preexisting theatres which were
            already licensed prior to 1953 for buildings exhibition without their
            compliance with Rule 3(2). This is the effect of the words
            “Notwithstanding anything in the preceding sub-rule” with which
            Rule 3(3) begins. The preceding sub-rule is Rule 3(2) which insists
            that the requirements set forth in the First Schedule of the Rules
D           have to be fulfilled before a licence can be granted to a building
            which is permanently equipped for cinematograph exhibition. This
            distinction will surely be bore in mind by the Administration in
            dealing with these two kinds of buildings. This will also be in
            accordance with the requirement already set out in sections
E           12(1)(a) and 17 that the compliance with the Rules has to be
            substantial and not rigid or inflexible.”
             (24) The Court found that affording an opportunity of hearing
      would have been a mere formality but the Court further notes that the
      appellant would be well advised in giving a hearing to the writ petitioners
F     before the cancellation. This would be necessary, it was found, because
      the question, as to, how many of the additional seats substantially complied
      with the Rules and how many contravened the Rules as at present has
      not been determined and has to be determined by the Administrator
      later.

G           “The main order has been passed during the currency of the
            licenses. But this is inevitable. Any any rate, in the light of the
            observations made above, the dismantling of the seats on the
            ground that they do no substantially comply with the Rules will be
            done in future after the Administration apply their mind to the
            question.
H
   AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                    689
           UPHAAR TRAGEDY AND ANR.

       It cannot be expected as to exactly when this would occur. It is            A
       not, therefore, possible to ensure that any change in the sitting
       accommodation would be enforced by the Administration only at
       the end of any particular licensing period.
       For the above reasons, the writ petitions are disposed of in the
       light of the findings given above and in the light of the observations      B
       as to the existing additional seats and as to the changes which
       may have to be made to them in future after the Administration
       examine the questions on merits and take steps. No costs.
       Pending the determination by the Administration as to the
       substantial compliance with the Rules by the additional seats or            C
       such of them as may be singled out by the Administration in each
       of the buildings of the licensees, the interim order dated 02.08.1979
       will continue in force subject to the limitation that if no determination
       is made in respect of each building within one month by the
       Administration, then those licenses in respect of whose buildings
       the determination is not made shall be free to sell tickets for the         D
       additional seats in their building.”
       (25) It is, thereafter, that, on 06.12.1979, the appellant in purported
compliance of the High Court order proceeded to issue a show cause
notice to the licencee of Uphaar Cinema. A committee was indeed
constituted as noticed by us earlier. Finally on 24.12.1979 purporting to          E
act on the basis of the recommendations of the Committee, the appellant
ordered the removal of additional six seats from the balcony. 56 seats
were directed to be removed from the other part of the theater. A total
of 62 additional seats came to be ordered to be removed. As we have
noticed, the unfortunate fire took place nearly 17 years thereafter.               F
       (26) Both the Courts have drawn considerable support from the
stand taken by the appellant in his counter affidavit. According to the
appellant, the stand taken was in keeping with the notification which
was issued revoking the earlier notification and also his notice. It is the
further case of the appellant that the Court must bear in mind that                G
whatever be his pleadings, the matter came to be considered by the
High Court and the judgment followed and the appellant was duly bound
to act in conformity with it. In particular, the contention is, since what
was contemplated was should there be substantial compliance, it implied
that additional seats could be continued.
                                                                                   H
690                SUPREME COURT REPORTS                        [2023] 6 S.C.R.


A            (27) It may be true that with the benefit of hindsight, following the
      unfortunate tragedy which took place nearly 17 years, thereafter, the
      loopholes fatal as it turned out to be, the action of the appellant and the
      members of the Committee had been laid bare. We say this, for the
      reason that, as pointed out by the learned senior counsel appearing on
      behalf of the CBI, this aspect has received articulation at the hands of
B
      this Court in the judgment reported in Sushil Ansal1. In other words,
      there may have been, as found by this Court also, lapses. We are, in this
      case, confined to grapple with the contention of the appellant based on
      the impact of there being no sanction within the meaning of Section 197
      of the Cr.P.C. When we consider the question of cognizance being taken
C     in the absence of sanction and thereby Section 197 of the Cr.P.C. being
      flouted it is not to be conflated and thereby confused with the question
      as to whether an offence has been committed. The salutary purpose
      behind Section 197 of the Cr.P.C. is protection being accorded to public
      servants.
D             (28) The State functions through its officers. Functions of the
      State may be sovereign or not sovereign. But each of the functions
      performed by every public servant is intended to achieve public good. It
      may come with discretion. The exercise of the power cannot be divorced
      from the context in which and the time at which the power is exercised
      or if it is a case of an omission, when the omission takes place.
E
             (29) The most important question which must be posed and
      answered by the Court when dealing with the argument that sanction is
      not forthcoming is whether the officer was acting in the exercise of his
      official duties. It goes further. Even an officer who acts in the purported
      exercise of his official power is given the protection under Section 197
F     of the Cr.P.C. This is for good reason that the officer when he exercises
      the power can go about exercising the same fearlessly no doubt with
      bona fides as public functionaries can act only bona fide. In fact, the
      requirement of the action being bona fide is not expressly stated in
      Section 197 of the Cr.P.C., though it is found in many other statutes
G     protecting public servants from action, civil and criminal against them.
            (30) Once we bear this cardinal principle in mind and judge the
      action or omission on the part of the appellant, we would think that it
      cannot be found that, having regard to the admitted facts, the appellant
      1
          Sushil Ansal v. State through CBI 2014(6) SCC 173
H
   AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                 691
           UPHAAR TRAGEDY AND ANR.

was not acting in the discharge of his official functions. All that happened,   A
under his oversight starting with his notice which he issued on 28.07.1979,
to the counter affidavit which he filed in the writ petitions, the subsequent
show cause notice which he issued, and thereafter, finally on 24.12.1979,
wherein he directed the removal of a total of 62 additional seats, all
these acts were done in the exercise of his official duties. As we have
                                                                                B
already noted, even if it were to be treated as done in the purported
exercise of his official duties, he would still stand protected from
prosecution without sanction. This must not be confused with the question
as to whether the appellant had committed any offence with which he
appears to have been indicted by the Magistrate issuing summons and
the High Court upholding it. The fact that the appellant had taken a            C
certain stand in the counter affidavit would not make his subsequent act
of acting upon the recommendations of a committee, an act which is not
in the discharge of his official functions. The findings of this Court which
we have referred to in the decision (supra) would not mean that, if they
are offences committed by the persons including the appellant, they would
                                                                                D
not require sanction within the meaning of Section 197 of the Cr.P.C.
The subtle and nuanced distinction between the question as to whether
the offence has been committed and if an offence has been committed,
whether a sanction is required for prosecuting a public servant who is
alleged to have committed the same, must not be lost sight of. The learned
Magistrate and the High Court would appear to have overlooked this              E
distinction. We notice that, in fact, apparently being conscious of the
legal requirement of sanction, the first respondent had sought sanction
from the appropriate Government and a writ petition was also filed viz.,
6238/2011 for directions to take appropriate steps in the matter. It is
further noticed by us that on account of the pendency of the petition
                                                                                F
under Section 482 that no action was taken on the same.
      (31) One ground which has found favour with the High Court
against the appellant is that the appellant, according to the High Court,
could raise the issue before the Magistrate.
       Here we may notice one aspect. When the question arises as to            G
whether an act or omission which constitutes an offence in law has
been done in the discharge of official functions by a public servant and
the matter is under a mist and it is not clear whether the act is traceable
to the discharge of his official functions, the Court may in a given case
tarry and allow the proceedings to go on. Materials will be placed before
                                                                                H
692            SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     the Court which will make the position clear and a delayed decision on
      the question may be justified. However, in a case where the act or the
      omission is indisputably traceable to the discharge of the official duty by
      the public servant, then for the Court to not accept the objection against
      cognizance being taken would clearly defeat the salutary purpose which
      underlies Section 197 of the Cr.P.C. It all depends on the facts and
B
      therefore, would have to be decided on a case to case basis.
             (32) We notice that Shri R. Basant, learned senior counsel, drew
      our attention to the judgment of this Court in MCD v. Uphaar Tragedy
      Victims Assn. (2011) 14 SCC 481 to contend that this Court has
      exonerated the licensing authority of liablity:
C
            “54. It is evident from the decisions of this Court as also the
            decisions of the English and Canadian Courts that it is not proper
            to award damages against public authorities merely because there
            has been some inaction in the performance of their statutory duties
            or because the action taken by them is ultimately found to be
D           without authority of law. In regard to performance of statutory
            functions and duties, the courts will not award damages unless
            there is malice or conscious abuse. The cases where damages
            have been awarded for direct negligence on the part of the statutory
            authority or cases involving doctrine of strict liability cannot be
E           relied upon in this case to fasten liability against MCD or the
            licensing authority. The position of the DVB is different, as direct
            negligence on its part was established and it was a proximate
            cause for the injuries to and death of victims. It can be said that
            insofar as the licensee and the DVB are concerned, there was
            contributory negligence.
F
            55. The position of licensing authority and MCD is different. They
            were not the owners of the cinema theatre. The cause of the fire
            was not attributable to them or anything done by them. Their
            actions/omissions were not the proximate cause of the deaths
            and injuries. The licensing authority and MCD were merely
G           discharging their statutory functions (that is granting licence in
            the case of the licensing authority and submitting an inspection
            report or issuing an NOC by MCD). In such circumstances, merely
            on the ground that the licensing authority and MCD could have
            performed their duties better or more efficiently, they cannot be
H           made liable to pay compensation to the victims of the tragedy.
  AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF                                    693
          UPHAAR TRAGEDY AND ANR.

      There is no close or direct proximity to the acts of the licensing          A
      authority and MCD on the one hand and the fire accident and the
      death/injuries of the victims. But there was close and direct
      proximity between the acts of the licensee and the DVB on the
      one hand and the fire accident resultant deaths/injuries of victims.
      In view of the well-settled principles in regard to public law liability,
                                                                                  B
      in regard to discharge of statutory duties by the public authorities
      which do not involve mala fides or abuse, the High Court committed
      a serious error in making the licensing authority and MCD liable
      to pay compensation to the victims jointly and severally with the
      licensee and the DVB.
      56. We make it clear that the exoneration is only in regard to              C
      monetary liability to the victims. We do not disagree with the
      observations of the High Court that the performance of duties by
      the licensing authority and by MCD (in its limited sphere) was
      mechanical, casual and lackadaisical. There is a tendency on the
      part of these authorities to deal with the files coming before them         D
      as requiring mere paperwork to dispose it. They fail to recognise
      the object of the law or rules, the reason why they are required to
      do certain acts and the consequences of non-application of mind
      or mechanical disposal of the application/requests which come to
      them. As rightly observed by Naresh Kumar’s Report, there is a
      lack of safety culture and lack of the will to improve performance.         E
      The compliance with the procedure and rules is mechanical. We
      affirm the observations of the High Court in regard to the
      shortcoming in the performance of their functions and duties by
      the licensing authority and to a limited extent by MCD. But that
      does not lead to monetary liability.”                                       F
      (33) He would contend on the strength of the same that this Court
has found that the appellant was not liable to compensate. This Court
was dealing with monetary liability.
      (34) Though the appellant’s final decision to take action as he did
by proceedings dated 24.12.1979, stood in contrast with the contents of           G
his counter affidavit, it by itself may not obviate the need for sanction,
even proceeding on the basis that the appellant could be accused of the
offences which view found favour with the Magistrate.
     The upshot of the above discussion is that we find that the
Magistrate erred in the facts of this case in taking cognizance against           H
694              SUPREME COURT REPORTS                        [2023] 6 S.C.R.


A     the appellant contrary to the mandate of Section 197 of the Cr.P.C. On
      that short ground alone, the appellant succeeds. The appeal is allowed.
      The impugned order will stand set aside. The proceedings challenged in
      Section 482 will stand quashed. We, however, make it clear that this will
      not stand in the way of the competent authority taking a decision in the
      matter and/ or granting sanction for prosecuting the appellant in
B
      accordance with law. In view of the fact that the appellant succeeds on
      the aspect of there being no sanction, we do not deem it necessary to
      pronounce on the two other contentions which have been pressed before
      us by the appellant.

C
      Divya Pandey                                                Appeal allowed.
      (Assisted by : Shevali Monga, LCRA)




D




E




F




G




H