Holding

The trial may proceed without a prior sanction under Section 197, and the question of sanction can be raised later after evidence is taken on record.

Summary

The petitioner, a police officer, was charged with several offences including murder and grievous hurt arising from a raid. He argued that under Section 196 of the Criminal Procedure Code the court could not take cognizance or proceed with trial without a sanction under Section 197, which protects public servants acting in the discharge of official duties. The Sessions Court held that the facts needed to be examined before deciding whether the police exceeded their authority, and allowed the trial to continue. The High Court dismissed the petition to stay the proceedings under Section 482, and the Supreme Court affirmed that decision, holding that the trial may proceed without prior sanction and that the question of sanction can be raised later if evidence warrants. Consequently, the Special Leave Petition was dismissed and the trial was directed to continue expeditiously.

Issues considered

Whether criminal proceedings against a public servant can be continued without a prior sanction under Section 197 of the CrPC when the alleged acts are alleged to have been committed in the discharge of official duties.

Legislation cited

Arms Act
Code of Criminal Procedure, 1973s. 196, s. 197, s. 482
Indian Penal Code, 1860s. 120-B, s. 148, s. 149, s. 302, s. 323, s. 325
Punjab Excise Acts. 61(1)(a)

Subjects

Section 196 CrPCSection 197 CrPCpublic servant protectioncriminal trialsanction requirementpreliminary stayspecial leave petitionbalance of rights

Judgment

A BAKHSHISH :>INGH BRAR
v.
SMT. GURMEJ KAUR AND ANR.

OCTOBER 12, 1987

B [SABYASACHI MUKHARJI AND M.M. DUTT, JJ.]

Criminal Procedure Code, 1973: ss, 196 & 197-Rationale of-
Protection of public servants in discharge of official duties-lmmunity
from being harassed in criminal proceedings and prosecution-Citizens'
rights-Protection of-Equally important.
c The petitioner, a police officer, was charged by the Judicial
Magistrate under ss. 148/302/149/325/149 and under ss. 323/149 or the
Indian Penal Code for allegedly causing grievous injuries to the comp·
lainant and death or one or the alleged offenders during a raid and
search for illicit liquor and unlicenced arms, and committed to the
D Court of Sessions for trial. His contention was that nnder 11. 196 or the
Code of Criminal Procedure the cognizance of the offence could not be
taken nor the trial proceeded with without the sanction of' the appro-
priate authorities under s. 197 or that Code. The Sessions Court took
the view that unless cognizance was taken and the facts and the
circumstances and the nature of the allegations involved in the case
E were gone into, it would not be possible to determine whether or not the
raiding party exceeded its limits or power while acting in the discharge
of official duties.

The High Court dismissed the application under s. 482 of the
Code of Criminal Procedure for staying further proceedings in the
-
F Sessions Court.

In the special leave petition to this Court on the question:
Whether without the sanction under s. 197 of the Code of Criminal
Procedure the proceedings could go on.

G Dismissing the special leave petition,

HELD: 1. The order passed by the Sessions Court was
proper and the High Court was right In not interfering with the
same. !4SSG I

H 2. Criminal trials should not be stayed in all cases at the prelimi-
450
B.S. BRAR v. SMT. GURMEJ KAUR [MUKHARJI, J.] 451

nary stage because that will cause great damage to the evidence. It is A
necessary to protect the public servants in the discharge of their duties.
They must be mode immune from being harassed in criminal proceed-
ings and prosecution, that is the rationale behind ss. 196 and 197 of the
Criminal Procedure Code. But it is equally important that rights of the
citizens should he protected and no excesses should be committed. lo
the facts and circumstances of each case protection of public officers B
and public servants functioning in discharge of official duties and pro-
tection of private citizens have, therefore, to be balanced by finding out
as to what extent and how far is a public servant working in discharge of
his duties or purported discharge of his duties, and whether the public
servant has exceeded his limit. [455F, C-E)
Pukhraj v. State of Rajasthan and Anr., [1974) 1 S.C.R. 559, C
referred to.
Io the instant case, it is alleged that grievous injuries were in-
flicted upon the complainant and as a result of injories one of the
alleged accused had died. The question is while investigating and
performing his duties as a police officer was it necessary for the D
petitioner to conduct himself in such a manner which would result m
such consequences. Therefore, the trial should proceed. Hoecessary the
question of sanction under s. 197 of the Criminal Procedore Code may
be agitated after some evidence have been noted by the Sessions
Court. [455C, HI
E
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 419of 1987.

From the Judgment and Order dated 11.12.1986 of the Punjab
and Haryana High Court in Criminal Miscellaneous No. 7421-M of
1986. F

R.K. Garg, Ms. Suman Kapoor and R.P. Singh for the Peti-
tioner.

P.N. Puri, R.S. Sodhi and R.S. Suri for the Respondents.
G
The Judgment of the Court was delivered by

4 SABYASACID MUKHAR.fl, J. This is a petition for leave to
appeal under Article 136 of the Constitution against the judgment aBd
order of the High Court of Punjab and Haryana dated 11th of De-
cember, 1986. By the order the High Court has dismissed the applica- H
452 SUPREME COURT REPORTS [1988] 1 S.C.R.

lion under section 482 of the Code of Criminal Procedure praying that ,..i_
A
further that proceedings be stayed in Sessions Case No. 1 of 25th of
March, 1985 under sections 148/302/325/323/149/120-B of the l.P.C.
The High Court dismissed this petition because it found no merit in the
same.

B The petitioner, herein alongwith 14 more persons were charged
by an order dated 30th of May, 1986 under sectiOP' 148/302/149/325/
149 and under sections 323/149 of the I.P.C. for allegedly causing
.,,.,.
death of one Ajit Singh and for causing hurt to Smt. Gurrnej Kaur, the
complainant. The case was committed to the Court of Sessions by the
Judicial Magistrate 1st Class, Kapurthala vide order dated 20.2.1985.
"
As per the case set up by the complainant Smt. Gujmej Kaur, her son
c Ajit Singh since deceased was involved in a murder case pertaining to
the murder of head constable Bagga Singh of Police Station Dhalwan. ~'
That case was registered in police station Bhogpur, District Jalandhar
and Ajit Singh was tried alongwith other persons and was sentenced by
the Additional Sessions Judge but he was acquitted by the High Court.
D The complainant further states that A jit Singh was also involved by the
police in a case of dacoity of police station Kotwali Kapurthala and
police station Dhilwan during investigation of the murder case in ques-
tion. Ajit Singh was also convicted in those cases but acquitted by the
High Court. It is the case of the complainant that Ajit Singh was
allegedly involved in some other murder and dacoity case by the police
which was tried in Himachal Pradesh and Ajit Singh was acquitted by
,l
E /

the Himachal Pradesh High Court. Mohinder Singh and Des Raj also
co-accused in this case allegedly investigated cases of Kapurthala and
Ajit Singh was tortured by Des Raj and the leg of Ajit Singh was
broken. Ajit Singh then filed complaint against Des Raj (also accused
in this case) and he was summoned by the Judicial Magistrate 1st
-
F Class, Kapurthala and thus the relation between Ajit Singh and
Kapurthala Police Station had become very strained. Ajit Singh had
then settled in U.P., according to the allegations in the complaint, out
}-.
of fear of the police. It is stated that on or about 7th of April, 1983 at
about 3 p.m. all the accused including present petitioner went to
village Bhandal Bet. They went to the house of the complainant where
G she was present alongwith her sons Ajit Singh and Man.iit Singh and
other members of the family. Manjit Singh and Ajit Singh, it was
alleged, were surrounded by the police officials and Manjit Singh and
Ajit Singh protested against this. Then Bakshish Singh accused, peti- ~
tioner, directed his companions to arrest Ajit Singh and Manjit Singh
and tie them with ropes and put them in the truck for the purpose of
H throwing them in the river Beas. It was further alleged that Manjit
B.S. BRAR v. SMT. GURMEJ KAUR (MUKHARJ!, J.] 453

Singh and A jit Singh ran to save themselves but they were attacked by
~
the police officials. The complainant also received injuries in the A
course of this occurrence when she was given dang blows. Ajit Singh
and Manjit Singh were given blows by the police officals on the asking
of the appellant herein Bakhshish Singh Brar, who is the Deputy
Superintendent of Police. A hue and cry was raised. Other persons
came, Ajit Singh and Manjit Singh became unconscious and then they B
. were taken away in the truck for the purpose of throwing them in the
'T' river, according to the complaint. The case of the complainant further
was t4at Ajit Singh and Manjit Singh were then got admitted by the
police in Civil Hospital, Kapurthala as indoor patients and A jit Singh
died as a resnlt of in juries on 8th of March, 1983. It was further alleged
that the accused who are the police officials fabricated false evidence
' in order to make out a defence and registered two false cases one c
f-.. under section 61(1)(a) of the Punjab Excise Act, F.I.R. No. 70 dated
7th of April, 1983 and the other under section 307, I.P.C. F.I.R. No.
71dated7th April, 1983.

On the other hand, the case of the respondents was that the D
police party headed by the petitioner including 13 of his subordinates
went to the Haveli of Jit Singh alias Jita, situated in village Bhandel
Bet in connection with raid on secret information to the effect that he
is indulging in illicit liquor and unlicenced arms. There were two First
Information Reports one under section 61(1)( 14) of the Punjab Excise
~ Act and the other under section 25(54)(59) of the Arms act were E
recorded in Police Station Dhilwan. That on the same date the police
party raided the Haveli of Jit Singh alias Jita, where Manjit Singh,
Jasbir Singh, Balwant Singh, Chhinda and Majwi, residence of village
Bullowal and Gurdev Singh resident of village Ucha were present
there. It is further alleged that seeing the police party, Jasbir Singh
fired at Ajit Singh, who saved himself by hiding himself behind a wall. F
The other persons armed with dangs and dhope attacked the police
~ party.

There are rival versions involved in this case. The questfon was
whether without the sanction under section 197 of the Code of Crimi-
nal Procedure the proceedings could go on: It is quite apparent that as G
a result of the alleged search and raid, which was conducted by the
petitioner in discharge of his official duties certain injuries, which are
4 described as grievous, injuries had been inflicted on the complainant
and one of the alleged offenders had died. In this case, admittedly, the
petitioner is a Government servant. Admittedly, there was no sanction
under section 197 of the Cr. P.C. had been taken. The trialin this case H
SUPREME COURT REPORTS [1988) 1 S.C.R.

is one of the offences mentioned under section 196 of the Cr. P. C. The
A contention of the petitioner was that under section 196 of the Cr. P.C.
the cognizance of the offence could not be taken nor the trial pro-
ceeded without the sanction of the appropriate authorities. The
learned Additional Sessions Judge, Kapurthala after consideration of
the facts and circumstances of the case in view of the observations of
B th.is Court in Pukhraj v. State of Rajasthan and another, I 1974] l
S.C.R. 559 that unless cognizance is taken and the facts and in the
circumstances and the nature of the allegations involved in this case
are gone into the question whether the raiding party exceeded its limits
or power while acting in the official duties cannot be determined. The
learned Judge observed after gathering the materials and some evi-
dence, it would be possible to determine whether the petitioner while
C acting in the discharge of his duties as a police officer had exceeded the
limit of his official capacity in inflicting grievous injuries on the
accused and causing death to the other accused.
This Court in the aforesaid decision had occasion to consider this
aspect. The case is instructive and illustrative how a balance has to be
D struck between the need for speedier trial of criminal offenders and at
the same time protecting public servants or police officials in the dis-
charge of their duties without obstructions. There the appellant had
filed a complaint against his superior officer, in the Postal Department
under sections 323 and 502 of I.P.C. alleging that when the appellant
went with a certain complaint to the second respondent, the said
E respondent kicked him in his abdomen and absued him by saying
"Sale, gunde, badmash .... "The said respondent filed an application
under section 197 of the Cr. P.C. praying that the Court should not
take cognizance of the offence without the sanction of the Govern-
ment, as required by section 197 of the Cr. P.C. It was further con-
tended that the alleged acts, if at all done by the accused were done
F while discharging his duties as a public servant. The trial Magistrate
dismissed the application. The High Court allowed the revision appli-
cation of the said respondent. This Court on appeal held that at that
stage,· the Court was concerned only with one point, viz., whether on
facts alleged in the complaint, it could be said that the acts were done
in purported exercise of his duties. Applying the test laid down in the
G decisions of the Federal Court and this Court to acts complained of,
viz., kicking the complainant and abusing, could not be said to have
been done in the course of the performance of the duty by the said
respondent. The facts subsequently coming to light during the course
of the judicial enquiry or during the course of the prosecution evidence
at the trial mitilt establish the necessity for sanction, it was observed.
H This Court noted that it might be possible for the said respondent to
B.S. BRAR v. SMT. GURMEJ KAUR [MUKHARJI, J.) 455

place mterials on record during the course of the trial for showing what
his duties were and also that the acts complained of were so inter- A
related with his official duty, so as to attract the protection afforded by
section 197 of the Cr. P.C. This Court reiterated that the question
whether sanction was necessary or not might have to depend upon
from stage to stage having regard to the facts and circumstances of the
case. This Court allowed the appeal and allowed the trial to proceed B
without the sanction.
In the instant case, it is alleged that grievous injuries were
inflicted upon the complainant and as a result of injuries one of the
alleged accused had died. 'Ihe question is while investigating and
performing his duties as a poli~e officer was it necessary for the
petitioner to conduct himself in such a manner which would resuli in c
. '
-... such consequences.It is necessary to protect the public servant in the
discharge of their duties. They must be made immune from being
harassed in criminal proceedings and prosecution, that is the rationale
behind section 196 and section 197 of the Cr. P.C. But it is equally
important to emphasise that rights of the citizens should be protected
and no excesses should be permitted. "Encounter death" has become D
too common. In the facts and circumstance of each case protection· of
public officers and public servants functioning in discharge of official
duties and protection of private citizens have to be balanced by finding
out as to what extent and how far is a public servant working in dis-
charge of his duties or purported discharge of his duties, and whether
the public servant has exceeded his limit. It is true that section 196 E
states that no cognizance can be taken and even after cognizance
having been taken if facts come to light that the acts complained of
were done in the discharge of the official duties then the trial may have
to be stayed unless sanction is obtained. But at the same time it has to
be emphasised that criminal trials should not be stayed in all cases at
the preliminary stage because that will cause great damage to the. Ii'
evidence.
In that view of the matter we are of the opinion that the order
passed by the learned Additional Sessions Judge, Kapurthala, in the
facts of this case, was proper and the High Court was right in not
interfering with the same. We, therefore, dismiss this petition. G
We, however, direct that the trial should proceed as expediti-
ously as possible. We further record that if necessary the question of
sanction under section 197 of the Cr. P.C. may be agitated after some.
evidence have been noted by the learned Additional Sessions Judge.

P.S.S. Petition dismissed'.