Supreme Court of India
GENERAL OFFICER COMMANDINGversusCBI AND ANR
- Citation
- 2012 INSC 196
- Decided
- 1 May 2012
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 bars the institution of legal proceedings against army personnel without prior Central Government sanction, where "institution" means taking cognizance, and such sanction is required unless the Army elects to try the accused by court‑martial under the Army Act.
Summary
The CBI investigated a 2000 fake encounter at Pathribal in Jammu & Kashmir, where five alleged terrorists were killed by members of the 7 Rashtriya Rifles, and filed a charge‑sheet against several army officers. The officers invoked Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990, claiming that prosecution could not proceed without prior sanction of the Central Government, and sought to have the charge‑sheet returned. The lower courts held that the trial court should decide whether the acts fell within the discharge of official duty, but the Supreme Court clarified that "institution" of legal proceedings under Section 7 means taking cognizance, not merely filing a charge‑sheet, and that prior Central Government sanction is mandatory before any cognizance can be taken, unless the Army elects to try the accused by court‑martial under Section 125 of the Army Act. The Court also explained the scope of "good faith" and "purported to be done" in assessing the protection. Consequently, the appeals were disposed with directions for the Army to decide within eight weeks whether the case will be tried by a court‑martial or a criminal court, and, if the latter, for the CBI to obtain Central Government sanction within prescribed time‑frames.
Issues considered
- Whether Section 7 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 requires prior Central Government sanction before a charge‑sheet can be filed or legal proceedings can be instituted against army personnel.
- What is the meaning of "institution of a case" under Section 7 – does filing a charge‑sheet constitute institution?
- Whether a court may take cognizance of the offence without such sanction.
- Whether the protection under Section 7 is dispensed with when the Army opts for trial by court‑martial under Section 125 of the Army Act, 1950.
- How the terms "good faith" and "purported to be done" should be interpreted in the context of the Act.
Legislation cited
- Armed Forces (Jammu & Kashmir) Special Powers Act, 1990s. 4, s. 6, s. 7
- Army Act, 1950s. 125, s. 126, s. 70
- Code of Criminal Procedure, 1973s. 190, s. 197, s. 197(2), s. 45
- General Clauses Act, 1897s. 3(22)
- Prevention of Corruption Act, 1988s. 19
Subjects
Armed Forces (J&K) Special Powers ActSection 7sanctioncourt‑martialcognizancegood faithlegal proceedingsmilitary immunityCriminal Procedure CodeArmy ActCBI investigationfake encounterjurisdiction
Judgment
[2012] 5 S.C.R. 599
GENERAL OFFICER COMMANDING A
v.
CBI AND ANR.
(Criminal Appeal No. 257 of 2011)
MAY 1, 2012
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
ARMED FORCES J & K (SPECIAL POWERS) ACT,
1990:
c
ss.4, 6 - Powers conferred on the officers of Armed forces
- Scope of.
s. 7 - Interpretation of - Held: The scheme of the Act
provides protection to- Army personnel in respect of anything
done or purported to be done in exercise of powers conferred D
by the Act - s. 7 prohibits institution of legal proceedings
against any Army personnel without prior sanction of the
Central Government - The term "institution" contained in s. 7
means taking cognizance of the offence and not mere
presentation of chargesheet by the investigating agency - E
Therefore, chargesheet against the army personnel cannot be
filed without prior sanction of the Central Government - This
protection is available only when the alleged act done by the
army personnel is reasonably connected with the discharge
of his official duty and is not merely a cloak for doing the F
objectionable act - The question to examine as to whether the
sanction is required or not under a statute has to be
considered at the time of taking cognizance of the offence and
not during enquiry or investigation - The Legislature has
conferred "absolute power" on the statutory authority to accord G
sanction or withhold the same and the court has no role in
this subject - In such a situation the court would not proceed
without sanction of the competent statutory authority - Code
599 H
600 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of Criminal Procedure, 1973 - s.197 - General Clauses Act,
1897 - s.3(22) -Army Act, 1950.
CODE OF CRIMINAL PROCEDURE, 1973: Institution of
a case - Meaning of - Neid: The term 'institution' has to be
ascertained taking into consideration the scheme of the Act/
8
Statute applicable - So far as the criminal proceedings are
concerned, "Institution" does not mean filing; presenting or
initiating the proceedings, rather it means taking cognizance
as per the provisions contained in the Cr.P. C.
C GENERAL CLAUSES ACT, 1897: s.3(22) - Good faith -
Held: A public servant i.s under a moral and legal obligation
to perform his duty with truth, honesty, honour, loyality and
faith etc. - He is to perform his duty according to the
expectation of the officEi and the nature of the post for the
D reason that he is to have a respectful obedience to the law
and authority in order to accomplish the duty assigned to him
- Good faith is defined in s. 3(22) to mean a thing which is, in
·fact, done honestly, whether it is done negligently or not -
Anything done with due care and attention, which is not
E malafide, is presumed to have been done in good faith -
Good faith and public good are though questions of fact, are
required to be proved by adducing evidence.
ARMY ACT, 1950: s.125 - Exercise of option under -
Held: The stage of making option to try an accused by a court-
F martial and not by the criminal court is after filing of the
chargesheet and before taking cognizance or framing of the
charges - If the Army chooses, it can prosecute the accused
through court-martial instead of going through the criminal
court - Once the option is made that accused is to be tried by
G a court-martial, further proceedings would be in accordance
with the provisions .of s. 70 of the Army Act and for that
purpose, sanction of the Central Government is not required.
WORDS AND PHRASES:
H
GENERAL OFFICER COMMANDING v. CBI AND 601
ANR.
'Cognizance', 'prosecution', 'suit', 'legal proceedings', and A
expression 'institution of case' - Meaning of
Except', 'purport', 'good faith' - Meaning of.
"Legal proceedings" and ''judicial proceedings" -
Distinction between. B
The prosecution case was that in fake encounters,
few civilians were killed by the army officers. The CBI was
asked to conduct the investigation. The CBI conducted
the investigation and filed charge-sheet against the army c
officers. The Magistrate granted opportunity to Army to
exercise the option as to whether the competent
authority would prefer to try the case by way of court
martial by taking over the case under the provisions of
Section 125 of the Army Act, 1950. The Army officers filed D
an application before the Magistrate that no prosecution
could be instituted except with the previous sanction of
the Central Government in view of the provisions of
Section 7 of the Armed Forces J & K (Special Powers)
Act, 1990 and, therefore, the proceedings be closed by E
returning the charge-sheet to the CBI. The Magistrate
dismissed the application holding that it was for the trial
court to find out whether the action complained of falls
within the ambit of the discharge of official duty or not.
The Sessions Court dismissed the revision. It, however,
directed the Magistrate to give one more opportunity to F
the Army officials for exercise of option under Section 125
of the Army Act. The High Court affirmed the decisions
of lower courts and held that the very objective of
sanction is to enable the Army officers to perform their
duties fearlessly by protecting them from vexatious, G
malafide and false prosecution for the act done in
performance of their duties.
In the instant appeals, it was contended that Section
H
602 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 7 of the Act 1990 provides that no prosecution, suit or
legal proceeding shall be instituted without prior sanction
of the Central Government against any person in respect
of anything done or purported to be done in exercise of
powers conferred under the Act; that the prosecution
B would be deemed to have instituted/initiated at the
moment the chargu-sheet is filed and received by the
court and such an acceptance/receipt is without
jurisdiction; and that the previous sanction of the
competent authorit~( is a pre-condition for the court in
c taking the charge-sheet on record if the offence alleged
to have been commiitted in discharge of official duty and
such issue touches the jurisdiction of the court.
Disposing of the appeals, the Court
D HELD: 1.1. The Armed Forces J & K (Special Powers)
Act, 1990 confers CE!rtain special powers upon members
of the Armed Forces in the disturbed area in the State of
J & K. The disturb1ed area is defined and there is no
dispute that the place where the incident occurred stood
E notified under the Act 1990. Section 4 of the Act 1990
confers special powers on the officer of armed forces to
take measures, where he considers it necessary to do so,
for the maintenance of public order. However, he must
give due warning according to the circumstances and
F even fire upon or use force that may also result in
causing death against any person acting in
contravention of law and order in the disturbed area and
prohibit the assembly of five or more persons or carrying
of weapons etc. Such an officer has further been
G empowered to destroy any arms dump, arrest any
person without warrant who has committed a cognizable
offence and enter and search without warrant any
premises to make any arrest. Section 6 of the Act 1990
requires that such arrested person and seized property
H
GENERAL OFFICER COMMANDING v. CBI AND 603
ANR.
be handed over to the local police by such an officer. A
[Para 9] [627-H; 628-A-D]
1.2. Section 7 of the Act 1990 provides for umbrella
protection to the Army personnel in respect of anything
done or purported to be done in exercise of powers
8
conferred by the Act. The scheme of the Act requires that
any prosecution, suit or legal proceeding instituted
against any Army official working under the Act 1990 has
to be subjected to stringent test before any such
proceeding can be instituted. Section 7 is required to be C
interpreted keeping the said objectives in mind. The
'prosecution' means a criminal action before the court of
law for the purpose of determining 'guilt' or 'innocence'
of a person charged with a crime. Civil suit refers to a civil
action instituted before a court of law for realisation of a
right vested in a party by law. The phrase 'legal D
proceeding' connotes a term which means the
proceedings in a court of justice to get a remedy which
the law permits to the person aggrieved. It includes any
formal steps or measures employed therein. It is not
synonymous with the 'judicial proceedings'. Every E
judicial proceeding is a legal proceeding but not vice-
versa, for the reason that there may be a 'legal
proceeding' which may not be judicial at all, e.g. statutory
remedies like assessment under Income Tax Act, Sales
Tax Act, arbitration proceedings etc. So, the ambit of F
expression 'legal proceedings' is much wider than
'judicial proceedings'. The expression 'legal proceeding'
is to be construed in its ordinary meaning but it is quite
distinguishable from the departmental and administrative
proceedings. The terms used in Section 7 i.e. suit, G
prosecution and legal proceedings are not inter-
changeable or convey the same meaning. The phrase
'legal proceedings' is to be understood in the context of
the statutory provision applicable in a particular case, and
considering the preceding words used therein. Legal H
604 SUPREME COURT REPORTS [2012] 5 S.C.R.
A proceedings' means proceedings regulated or prescribed
by law in which a judicial decision may be given; it
means proceedings in a court of justice by which a party
pursues a remedy which a law provides, but does not
include administrative and departmental proceedings.
B The provision of Section 7 of the Act 1990 prohibits
institution of legal proceedings against any Army
personnel without prior sanction of the Central
Government. Therefore, chargesheet cannot be instituted
without prior sanction of the Central Government. Th1
c use of the words 'anything done' or 'purported to be
done' in exercise of powers conferred by the Act 1990 is
very wide in its scope and ambit and it consists of twin
test. Firstly, the act or omission complained of must have
been done in the course of exercising powers conferred
under the Act, i.e., while carrying out the duty in the
0
course of his service and secondly, once it is found to
have been performed in discharge of his official duty,
then the protection !given under Section 7 must be
construed liberally. Therefore, the provision contained
under Section 7 of tho Act 1990 touches the very issue
E of jurisdiction of launching the prosecution. [Paras 10, 11,
12] [628-D-E; 629-B-H; 630-A; 631-A-E]
Assistant Collector of Central Excise, Guntur v. Ramdev
Tobacco Company, AIR 1991 SC 506; Maharashtra Tubes
F Ltd. v. State Industrial & Investment Corporation of
Maharashtra Ltd. & Anr. ·(1993) 2 SCC 144: 1993 (1) SCR
340; S. V. Kondaskar, Official Liquidator v. V.M. Deshpande,
/. T.O. & Anr. AIR 1972 SC 878: 1972 (2) SCR 965; Babula/
v. Mis. Hajari Lal Kishori Lal & Ors. AIR 1982 SC 818: 1982
G (3) SCR 94; Binod Mills Co. Ltd., Ujjain v. Shri. Suresh
Chandra Mahaveer Prasad Mantri, Bombay AIR 1987 SC
1739: 1987 (3) SCR 2~~7 - relied on.
2. INSTITUTION OF A CASE:
H The meaning of the term 'institution' has to be
GENERAL OFFICER COMMANDING v. CBI AND 605
ANR.
ascertained taking into consideration the scheme of the A
AcUStatute applicable. The expression may mean filing/
presentation or received or entertained by the court. Mere
presentation of a complaint cannot be held to mean that
the Magistrate has taken the cognizance. Thus, the
expression "Institution" has to be understood in the B
context of the scheme of the Act applicable in a particular
case. So far as the criminal proceedings are concerned,
"Institution" does not mean filing; presenting or initiating
the proceedings, rather it means taking cognizance as
per the provisions contained in the Cr.P.C. [Paras 13, 20, c
21) [631-F; 634-8-D]
Mis. Lakshmiratan Engineering Works Ltd. v. Asst.
Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur
& Anr. AIR 1968 SC 488; Lala Ram v. Hari Ram, AIR 1970
SC 1093 Hindustan Commercial Bank Ltd. v. Punnu Sahu D
{dead) through LRs. AIR 1970 SC 1384; Martin and Harris
Ltd. v. Vlth Additional District Judge & Ors. AIR 1998 SC 492;
Jamuna Singh & Ors. v. Bhadai Shah AIR 1964 SC 1541
Satyavir Singh Rathi ACP & Ors. v. State through CBI (2011)
6 SCC 1: 2011 (6) SCR 138; Kamalapati Trivedi v. The State E
of West Bengal AIR 1979 SC 777: 1979 (2) SCR 717;
Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana
Reddy & Ors. AIR 1976 SC 1672: 1976 (0) Suppl. SCR 524;
Narsingh Oas Tapadia v. Goverdhan Oas Partani & Anr. AIR
2000 SC 2946: 2000 (3) Suppl. SCR 171 - relied on. F
3. SANCTION FOR PROSECUTION:
3.1. The protection given under Section 197 Cr.P.C.
is to protect responsible public servants against the
institution of possibly vexatious criminal proceedings for G
offences alleged to have been committed by them while
they are acting or purporting to act as public servants.
The policy of the legislature is to afford adequate
protection to public servants to ensure that they are not
prosecuted for anything done by them in the discharge H
606 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of their official duties without reasonable cause, and if
sanction is granted, to confer on the Government, if they
choose to exercisu it, complete control of the
pros~cution. This protection has certain limits and is
available only when tlhe alleged act done by the public
B servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing the
objectionable act. Uso of the expression "official duty"
implies that the act or omission must have been done by
the public servant in the course of his service and that it
c should have been done in discharge of his duty. The
section does not extend its protective cover to every act
or omission done by a public servant in service but
restricts its scope of' operation to only those acts or
omissions which are done by a public servant in
discharge of official duty. If on facts, therefore, it is prima
0
facie found that the act or omission for which the
accused was charged had reasonable connection with
discharge of his duty, then it must be held to be official
to which applicability of Section 197 Cr.P.C. cannot be
E disputed. The question to examine as to whether the
sanction is required or not under a statute has to be
considered at the time of taking cognizance of the
offence and not during enquiry or investigation. There is
a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the
F cognizance of offence is taken. The cognizance is taken
of the offence and not of the offender. The sanction of
the appropriate authority is necessary to protect a public
servant from unnecessary harassment or prosecution.
Such a protection is inecessary as an assurance to an
G honest and sincere officer to perform his public duty
honestly and to the best of his ability. The threat of
prosecution demorali:ses the honest officer. However,
performance of public duty under colour of duty cannot
be camouflaged to commit a crime. The public duty may
H provide such a public servant an opportunity to commit
GENERAL OFFICER COMMANDING v. CBI AND 607
ANR.
crime and such issue is required to be examined by the A
sanctioning authority or by the court. It is quite possible
that the official capacity may enable the pubic servant to
fabricate the record or mis-appropriate public funds etc.
Such activities definitely cannot be integrally connected
or inseparably inter-linked with the crime committed in B
the course of the same transaction. Thus, all acts done
by a public servant in the purported discharge of his
official duties cannot as a matter of course be brought
under the protective umbrella of requirement of sanction.
In fact, the issue of sanction becomes a question of c
paramount importance when a public servant is alleged
to have acted beyond his authority or his acts
complained of are in dereliction of the duty. In such an
eventuality, if the offence is alleged to have been
committed by him while acting or purporting to act in D
discharge of his official duty, grant of prior sanction
becomes imperative. It is so, for the reason that the power
of the State is performed by an executive authority
authorised in this behalf in terms of the Rules of
Executive Business framed under Article 166 of the
Constitution of India insofar as such a power has to be E
exercised in terms of Article 162 thereof. In broad and
literal sense ·cognizance' means taking notice of an
offence as required under Section 190 Cr.P.C.
·cognizance' indicates the point when the court first
takes judicial notice of an offence. The court not only F
applies its mind to the contents of the complaint/police
report, but also proceeds in the manner as indicated in
the subsequent provisions of Chapter XIV of the Cr.P.C.
[Paras 22-24, 39] [634-E-H; 635-A-B; D-H, 636-A-E; 646-D-
F] G
R. Balakrishna Pillai v. State of Kera/a & Anr. AIR 1996
SC 901: 1995 ( 6 ) Suppl. SCR 236; S. K. Zutshi & Anr. v.
Bimal Debnath & Anr. AIR 2004 SC 4174; Center for Public
Interest Litigation & Anr. v. Union of India & Anr. AIR 2005
SC 4413: 2005 (4) Suppl. SCR 77; Rakesh Kumar Mishra H
608 SUPREME COURT REPORTS [2012] 5 S.C.R.
A v. State of Bihar & Ors. AIR 2006 SC 820: 2006 (1) SCR 124;
Anjani Kumar v. State of Bihar & Ors. AIR 2008 SC 1992:
2008 (6) SCR 912; State of Madhya Pradesh v. Sheet/a
Sahai & Ors. (2009) a SCC 617: 2009 (12) SCR 1048;
Bhanuprasad Hariprasad Dave & Anr. v. The State of Gujarat
B AIR 1968 SC 1323: 11969 SCR 22; Hareram Satpathy v.
Tikaram Agarwala & Ors. AIR 1978 SC 1568: 1979 (1) SCR
349; State of Maharashtra v. Dr. Budhikota Subbarao (1993)
3 SCC 339: 1993 (2) SCR 311; Anil Saran v. State of Bihar
& Anr. AIR 1996 SC 204: 1995 (3) Suppl. SCR 58;
c Shambhoo Nath Misra v State of U.P. & Ors. AIR 1997 SC
2102: 1997 (2) SCR 1'139; Choudhury Parveen Sultana v.
State of West Bengal ~~ Anr. AIR 2009 SC 1404: 2009 (1)
SCR 99; State of Punjab & Anr. v. Mohammed Iqbal Bhatti
(2009) 17 SCC 92: 2009 (11) SCR 790; The State of Andhra
D Pradesh v. N. Venugopal & Ors. AIR 1964 SC 33: 1964 SCR
742; State of Maharashtra v. Narhar Rao AIR 1966 SC 1783:
1966 SCR 880; State of Maharashtra v. Atma Ram & Ors.
AIR 1966 SC 1786; Prof Sumer Chand v. Union of India &
Ors. (1994) 1 SCC 64: 1993 (2) Suppl. SCR 123; State of
Orissa & Ors. v. Ganesh Chandra Jew AIR 2004 SC 2179:
E 2004 (3 ) SCR 504; P. Arulswami v. State of Madras AIR
1967 SC 776: 1967 SCR 201; Suresh Kumar Bhikamchand
Jain v. Pandey Ajay Blwshan & Ors. AIR 1998 SC 1524:
1997 ( 5 ) Suppl. SCR 5i24; Matajog Dobey v. H. C. Bhari AIR
1956 SC 44: 1955 SCR 925; Sankaran Moitra v. Sadhna Das
F & Anr. AIR 2006 SC ~1599: 2006 (3 ) SCR 305; Rizwan
Ahmed .Javed Shaikh & Ors. v. Jammal Patel & Ors. AIR 2001
SC 2198: 2001 ( 3 ) SCR 766; S.B. Saha & Ors. v. M.S.
Kochar AIR 1979 SC 1841: 1980 ( 1 ) SCR 111; Parkash
Singh Badal & Anr. v. State of Punjab & Ors. AIR 2007 SC
G 1274: 2006 (10) Suppl. SCR 197; P.K. Choudhury v.
Commander, 48 BRTF (GREF) (2008) 13 SCC 229: 2008
(4) SCR 976; Nagraj v. State of Mysore AIR 1964 SC 269:
1964 SCR 671; Naga People's Movement of Human Rights
v. Union of India AIR 1998 SC 431: 1997 (5) Suppl. SCR
H 469; Jamiruddin Ansari v. Central Bureau of Investigation &
GENERAL OFFICER COMMANDING v. CBI AND 609
ANR.
Anr. (2009) 6 SCC 316: 2009 (7) SCR 759; Harpa/ Singh v. A
State of Punjab (2007) 13 SCC 387: 2007 (12) SCR 830;
Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat AIR
1997 SC 3475: 1997 (3) Suppl. SCR 356; State of H.P. v.
M.P. Gupta (2004) 2 SCC 349: 2003 (6) Suppl. SCR 541;
R.R. Chari v. The State of Uttar Pradesh AIR 1951 SC 207: B
1991 (1) SCC 57; State of W B. & Anr. v. Mohd. Khalid & Ors.
(1995) 1 sec 684: 1994 (6) Suppl. SCR 16; Dr.
Subramanian Swamy v. Dr. Manmohan Singh & Anr. AIR
2012 SC 1185: 2012 (3) SCC 64; Bhushan Kumar v. State
(NCT of Delhi) (2012) 4 SCALE 191; State of Uttar Pradesh C
v. Paras Nath Singh (2009) 6 SCC 372: 2009 (8) SCR 85 -
relied on.
3.2. Section 7 of the Act 1990, puts an embargo on
the complainant/investigating agency/person aggrieved
to file a suit, prosecution etc. in respect of anything done D
or purported to be done by a Army personnel, in good
faith, in exercise of power conferred by the Act, except
with the previous sanction of the Central Government.
Three expressions i.e. 'except', 'good faith' and
'purported' contained in the said provision require E
clarification/elaboration. (i) Except : To leave or take out:
exclude; omit; save Not including; unless. The word has
also been construed to mean until. Exception - Act of
excepting or excluding from a number designated or
from a description; that which is excepted or separated F
from others in a general rule of description; a person,
thing, or case specified as distinct or not included; an act
of excepting, omitting from mention or leaving out of
consideration. (ii) Purport : Purport means to present,
especially deliberately, the appearance of being; profess G
or claim, often falsely. It means to convey, imply, signify
or profess outwardly, often falsely. In other words it
means to claim (to be a certain thing, etc.) by manner or
appearance; intent to show; to mean; to intend. Purport
also means 'alleged'. 'Purporting' - When power is given H
610 SUPREME COURT REPORTS [2012] 5 S.C.R.
A to do something 'purporting' to have a certain effect, it
will seem to prevent objections being urged against the
validity of the act which might otherwise be raised. Thus
when validity is given to anything 'purporting' to be done
in pursuance of a power, a thing done under it may have
B validity though done a1t a time when the power would not
be really exercisable. 'Purporting to be done' - There
must be something in the nature of the act that attaches
it to his oftrcial charac:ter. Even if the act is not justified
or authorised by law, he will still be purporting to act in
c the execution of his duty if he acts on a mistaken view
of it." So it means that something is deficient or amiss:
everything is not as it is intended to be. [Paras 42, 43]
(647-F-H; 648-A-H; 64!9-A-B]
Azimunnissa and Ors. v. The Deputy Custodian,
D Evacuee Properties, District Deoria and Ors. AIR 1961 SC
365: 1961 SCR 91; Haji Siddik Haji Umar & Ors. v. Union
of India AIR 1983 SC 259: 1983 (2) SCR 249 - relied on.
Dicker v. Angerstein, 3 Ch D 600 - referred to.
E 4. GOOD FAITH:
4.1. A public se1rvant is under a moral and legal
obligation to perform his duty with truth, honesty,
honour, loyality and faith etc. He is to perform his duty
F according to the expe~ctation of the office and the nature
of the post for the reason that he is to have a respectful
obedience to the law and authority in order to accomplish
the duty assigned to him. Good faith has been defined
in Section 3(22) of the General Clauses Act, 1897, to mean
a thing which is, in fai::t, done honestly, whether it is done
G negligently or not. Anything done with due care and
attention, which is nolt malafide, is presumed to have been
done in good faith. There should not be personal ill-will
or malice, no intention to malign and scandalize. Good
faith and public good are though the question of fact, it
H required -to be proved by adducing evidence. The facts
GENERAL OFFICER COMMANDING v. CBI AND 611
ANR.
of each case are, therefore, necessary to constitute the A
ingredients of an official act. The act has to be official and
not private as it has to be distinguished from the manner
in which it has been administered or performed. Then
comes the issue of such a duty being performed in good
faith. The act which proceeds on reliable authority and B
accepted as truthful is said to be in good faith. It is the
opposite of the intention to deceive. A duty performed in
good faith is to fulfil a trust reposed in an official and
which bears an allegiance to the superior authority. Such
a duty should be honest in intention, and sincere in c
professional execution. It is on the basis of such an
assessment that an act can be presumed to be in good
faith for which while judging a case the entire material on
record has to be assessed. The allegations which are
generally made are, that the act was not traceable to any D
lawful discharge of duty. That by itself would not be
sufficient to conclude that the duty was performed in bad
faith. It is for this reason that the immunity clause is
contained in statutory provisions conferring powers on
law enforcing authorities. This is to protect them on the
E
presumption that acts performed in good faith are free
from malice or ill will. The immunity is a kind of freedom
conferred on the authority in the form of an exemption
while performing or discharging official duties and
responsibilities. The act or the duty so performed are
such for which an official stands excused by reason of F
his office or post. It is for this reason that the assessment
of a complaint or the facts necessary to grant sanction
against immunity that the chain of events has to be
looked into to find out as to whether the act is dutiful and
in good faith and not maliciously motivated. It is the G
intention to act which is important. A sudden decision to
do something under authority or the purported exercise
of such authority may not necessarily be predetermined
except for the purpose for which the official proceeds to
accomplish. For example, while conducting a raid an H
612 SUPREME COURT REPORTS [2012] 5 S.C.R.
A official may not have the apprehension of being attacked
but while performing his official duty he has to face such
a situation at thE! hands of criminals and unscrupulous
persons. The official may in his defence perform a duty
which can be on account of some miscalculation or
B wrong informatioin but such a duty cannot be labelled as
an act in bad faith unless it is demonstrated by positive
material in particular that the act was tainted by personal
motives and was not connected with the discharge of any
official duty. Thus;, an act which may appear to be wrong
c or a decision which may appear to be incorrect is not
necessarily a maliicious act or decision. The presumption
of good faith therefore can be dislodged only by cogent
and clinching material and so long as such a conclusion
is not drawn, a duty in good faith should be presumed
0 to have been done or purported to have been done in
exercise of the powers conferred under the statute. There
has to be material to attribute or impute an unreasonable
motive behind an act to take away the immunity clause.
It is for this reasc>n that when the authority empowered
E to grant sanction is proceeding to exercise its discretion,
it has to take in1to account the material facts of the
incident complai1ned of before passing an order of
granting sanction or else official duty would always be
in peril even if performed bonafidely and genuinely.
[Paras 44-51] [649-E-H; 650-A; 651-B-H; 652-A-H]
F
Madhavrao Narayanrao Patwardhan v. Ram Krishna
Govind Bhanu & Ors. AIR 1958 SC 767: 1959 SCR 564;
Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr.
AIR 1971 SC 530: 1971 (3) SCR 9; Sewakram Sobhani v.
G R.K Karanjiya, Chief Editor, Weekly Blitz & Ors. AIR 1981 SC
1514; Vijay Kumar Hampal & Ors. v. Diwan Devi & Ors. AIR
1985 SC 1669; Deona (Dead) through Lrs. v. Bharat Singh
(Dead) through LRs. & Ors., (2002) 6 SCC 336: 2002 (1)
Suppl. SCR 289; Goondla Venkateshwar/u v. State of Andhra
H Pradesh & Anr. (2008) 9 SCC 613: 2008 (12) SCR 608;
GENERAL OFFICER COMMANDING v. CBI AND 613
ANR.
Brijendra Singh v. State of UP. & Ors. AIR 1981 SC 636 - A
relied on.
4.2. The protection and immunity granted to an official
particularly in provisions of the Act 1990 or like Acts has
to be widely construed in order to assess the act
complained of. This would also include the assessment 8
of cases like mistaken identities or an act performed on
the basis of a genuine suspicion. Therefore, such
immunity clauses have to be interpreted with wide
discretionary powers to the sanctioning authority in order
to uphold the official discharge of duties in good faith C
and a sanction therefore has to be issued only on the
basis of a sound objective assessment and not
otherwise. Use of words like 'No' and 'shall' in Section 7
of the Act 1990 denotes the mandatory requirement of
obtaining prior sanction of the Central Government D
before institution of the prosecution, suit or legal
proceedings. The conjoint reading of Section 197(2)
Cr.P.C. and Section 7 of the Act 1990 would show that
prior sanction is a condition precedent before institution
of any of the said legal proceedings. Under the provisions E
of Cr.P.C. and Prevention of Corruption Act, it is the court
which is restrained to take cognizance without previous
sanction of the competent authority. Under the Act 1990,
the investigating agency/complainant/person aggrieved
is restrained to institute the criminal proceedings; suit or F
other legal proceedings. Thus, there is a marked
distinction in the statutory provisions under the Act 1990,
which are of much wider magnitude and are required to
be enforced strictly. Thus, the question of sanction is of
paramount importance for protecting a public servant G
who has acted in good faith while performing his duty.
In order that the public servant may not be unnecessarily
harassed on a complaint of an unscrupulous person, it
is obligatory on the part of the executive authority to
protect him. However, there must be a discernible H
614 SUPREME COURT REPORTS [2012] 5 S.C.R.
A connection between the act complained of and the
powers and duties of the public servant. The act
complained of may fall within the description of the action
purported to have been done in performing the official
duty. Therefore, if the allegi:id act or omission of the
B public servant can be shown to have reasonable
connection inter-·relationship or inseparably connected
with discharge 1:>f his duty, he becomes entitled for
protection of sanction. If the law requires sanction, and
the court proceEids against a public servant without
C sanction, the public servant has a right to raise the issue
of jurisdiction as the entire action may be rendered void
ab-initio for want of sanction. Sanction can be obtained
even during the course of trial depending upon the facts
of an individual case and particularly at what stage of
proceedings, reqU1irement of sanction has surfaced. The
D question as to whether the act complained of, is done in
performance of duty or in purported performance of duty,
is to be determinE!d by the competent authority and not
by the court. The Legislature has conferred "absolute
power" on the statutory authority to accord sanction or
E withhold the same and the court has no role in this
subject. In such a situation the court would not proceed
without sanction 1of the competent statutory authority.
Thus, sanction of the Central Government is required in
the facts and circumstances of the case and the court
F concerned lacks jurisdiction to take cognizance unless
sanction is granted by the Central Government. [Paras
52-56) [653-A-D; 6!i4-C-H; 655-A-E]
5. The CJM Court gave option to the higher
G authorities of the Army to choose whether the trial be held
by the court-martial or by the criminal court as required
under Section 125 1of the Army Act. File notings of Army
Authorities revealed their decision that in case it is
decided by this Court that sanction is required and the
H Central Government accords sanction, option would be
GENERAL OFFICER COMMANDING v. CBI AND 615
ANR.
availed at that stage. Thus, Military Authority may ask the A
criminal court dealing with the case that the accused
would be tried by the court-martial in view of the
provisions of Section 125 of the Army Act. However, the
option given by the Authority is not final in view of the
provisions of Section 126 of the Army Act. Criminal court B
having jurisdiction to try the offender may require the
competent military officer to deliver the offender to the
Magistrate concerned to be proceeded according to law
or to postpone the proceedings pending reference to the
Central Government, if that criminal court is of the c
opinion that proceedings be instituted before itself in
respect of that offence. Thus, in case the criminal court
makes such a request, the Military Officer either .has to
comply with it or to make a reference to the Central
Government whose orders would be final with respect to D
the venue of the trial. Therefore, the discretion exercised
by the Military Officer is subject to the control of the
Central Government. Such matter is being governed by
the provisions of Section 475 Cr.P.C. read with the
provisions of the J & K Criminal Courts and Court-Martial
(Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the E
said Rules, 1983, provides that in case the accused has
been handed over to the Army authorities to be tried by
a court-martial, the proceedings of the criminal court shall
remain stayed. Rule 7 thereof, further provides that when
an accused has been delivered by the criminal court to F
the Army authorities, the authority concerned shall inform
the criminal court whether the accused has been tried by
a court-martial or other effectual proceedings have been
taken or ordered to be taken against him. If the Magistrate
is informed that the accused has not been tried or other G
effectual proceedings have not been taken, the
Magistrate shall report the circumstances to the State
Government which may, in consultation with the Central
Government, take appropriate steps to ensure that the
accused person is dealt with in accordance with law. H
616 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Under Section 125 of the Army Act, the stage of making
option to try an c;1ccused by a court-martial and not by the
criminal court is after filing of the chargesheet and before
taking cognizance or framing of the charges. Section 7
of the Act 1990 does not contain non-obstante clause.
B Therefore, once the option is made that accused is to be
tried by a court-martial, further proceedings would be in
accordance with the provisions of Section 70 of the Army
Act and for that purpose, sanction of the Central
Government is not required. [Paras 57-58, 62, 64] [655-E-
C H; 656-A-F; 657-F-G; 658-C-D]
Delhi Special Police Establishment, New Delhi v. Lt. Col.
S.K. Loraiya AIR 1972 SC 2548; Balbir Singh & Anr. v. State
of Punjab 1994 (5) Suppl. SCR 422; Ram Sarup v. Union of
India & Anr. AIR 1965 SC 247; Union of India & Ors. v. Major
D A. Hussain AIR 1998 SC 577 - relied on.
6. Sum up:
(i) The conjoint reading of the relevant statutory
provisions and rules make it clear that the term
E
"institution" contained in Section 7 of the Act 1990
means taking cognizance of the offence and not
mere presentation of the chargesheet by the
investigating agency.
F (ii) The competent Army Authority has to exercise his
discretion to opt as to whether the trial would be by
a court-martial or criminal court after filing of the
chargesheet imd not after the cognizance of the
offence is taken by the court.
G
(iii) Facts of this case require sanction of the Central
Government to proceed with the criminal
prosecution/trial.
(iv) In case op1tion is made to try the accused by a
H
GENERAL OFFICER COMMANDING v. CBI AND 617
ANR.
court-martial, sanction of the Central Government is A
not required. [Para 66) [658-F-H; 659-A-C]
7. In view of that, the following directions are passed:
I The competent authority in the Army shall take a
decision within a period of eight weeks from today B
as to whether the trial would be by the criminal court
or by a court-martial and communicate the same to
the Chief Judicial Magistrate concerned immediately
thereafter.
II In case the option is made to try the case by a C
court-martial, the said proceedings would commence .
immediately and would be concluded strictly in
accordance with law expeditiously.
Ill In case the option is made that the accused would D
be tried by the criminal court, the CBI shall make an
application to the Central Government for grant of
sanction within four weeks from the receipt of such
option and in case such an application is filed, the
Central Government shall take a final decision on the E
said application within a period of three months from
the date of receipt of such an application.
IV In case sanction is granted by the Central
Government, the criminal court shall proceed with the
trial and conclude the same expeditiously. [Para 67) F
[659-D-H; 670-A-B]
Case Law Reference:
AIR 1991 SC 506 relied on Para 12
G
1993 (1) SCR 340 relied on Para 12
1972 (2) SCR 965 relied on Para 12
AIR 1982 SC 818 relied on Para 12
AIR 1987 SC 1739 relied on Para 12 H
618 SUPREME COURT REPORTS [2012] 5 S.C.R.
A AIR 1968 SC 488 relied on Para 14
AIR 1970 SC 1093 relied on Para 15
AIR 1970 SC 1384 relied on Para 16
AIR 1998 SC 492 relied on Para 17
B
AIR 1964 SC 1541 relied on Para 18
2011 (6) SCR 138 relied on Para 18,25
1979 (2) SCR 717 relied on Para 19
c
1976 (0) Suppl. SCR 524 relied on Para 19
2000 (3) Suppl. SCR 171 relied on Para 20
1995 (6) Suppl. SCR 236 relied on Para 22
D AIR 2004 SC 4174 relied on Para 22
2005 (4) Sup~1I. SCR 77 relied on Para 22
2006 (1) SCR 124 relied on Para 22
E 2008 (6) SCR 912 relied on Para 22
2009 (12) SCR 1048 relied on Para 22
1969 SCR 22 relied on Para 23
1979 (1) SCR 349 relied on Para 23
F
1993 (2) SCR 311 relied on Para 23
1995 (3) Suppl. SCR 58 relied on Para 23
1997 (2) SCR 1139 relied on Para 23
G
2009 (1) SCR 99 relied on Para 23
2009 (11) SCR 790 relied on Para 25
1964 SCR 74'! relied on Para 24
H 1966 SCR 88CI relied on Para 25
GENERAL OFFICER COMMANDING v. CBI AND 619
ANR.
AIR 1966 SC 1786 relied on Para 25 A
1993 (2) Suppl. SCR 123 relied on Para 25
2004 (3) SCR 504 relied on Para 26
1967 SCR 201 relied on Para 26
B
1997 (5) Suppl. SCR 524 relied on Para 27
1955 SCR 925 relied on Para 28,56
2006 (3) SCR 305 relied on Para 29, 56
c
2001 (3) SCR 766 relied on Para 29
1980 (1) SCR 111 relied on Para 30
2006 (10) Suppl. SCR 197 relied on Para 31
2008 (4) SCR 976 relied on Para 32 D
1964 SCR 671 relied on Para 33
1997 (5) Suppl. SCR 469 relied on Para 34
2009 (7) SCR 759 relied on Para 35 E
2007 (12) SCR 830 relied on Para 36
1997 (3) Suppl. SCR 356 relied on Para 37
2003 (6) Suppl. SCR 541 relied on Para 38
F
1991 (1) sec 57 relied on Para 39
1994 (6) Suppl. SCR 16 relied on Para 39
2012 (3 ) sec 64 relied on Para 40
G
(2012) 4 SCALE 191 relied on Para 40
2009 (8) SCR 85 relied on Para 41
1961 SCR 91 relied on Para 43
1983 (2) SCR 249 relied on Para 43 H
620 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 1959 SCR !i64 relied on Para 44
1971 (3) SCR 9 relied on Para 44
AIR 1981 SC 1514 relied on Para 44
AIR 1985 SC 1669 relied on Para 44
B
2002 (1) Su1ppl. SCR 289 relied on Para 44
2008 (12) SCR 608 relied on Para 44
AIR 1981 SG 636 relied on Para 44
c
AIR 1969 SC 414 relied on Para 59
AIR 1972 SC 2548 relied on Para 60
1994 (5) Suppl. SCR 422 relied on Para 61
D AIR 1965 SC: 247 relied on Para 61
AIR 1998 SC: 577 relied on Para 65
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 257 of 2011 E!tC.
E
From the Jud!lment & Order dated 10.07.2007 of the High
Court of Jammu & Kashmir in 561A 78 & 80 of 2006.
WITH
F Crl. Appeal No. SS of 2006.
P.P. Malhotra, Mohan Parasaran, H.P. Raval, ASG, M.S.
Ganesh, Ashok Bhan, D.L. Chidananda, B.K. Prasad, Anil
Katiyar, D.S. Mahra, R. Ayyam Perumal, Sukun K.S. Chandele,
P.K. Dey, Dr. Chaiudhary Shamsuddin Khan, Arvind Kumar
G Sharma for the appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. Criminal Appeal No. 257 of
H 2011 has been preferred against the impugned judgment and
GENERAL OFFICER COMMANDING v. CBI AND 621
ANR. [DR. B.S. CHAUHAN, J.]
order dated 10.7.2007 passed by the High Court of Jammu and A
Kashmir in Petition Nos. 78 and 80 of 2006 under Section 561-
A of the Code of Criminal Procedure, (J&K) (hereinafter called
as 'Code') by which the High Court upheld the order dated
30.11.2006 passed by the Additional Sessions Judge,
Srinagar in File No. 16/Revision of 2006, and by the Chief B
Judicial Magistrate, Srinagar dated 24.8.2006, rejecting the
appellant's application for not entertaining the chargesheet filed
by the Central Bureau of Investigation (hereinafter called 'CBI').
2. Brief facts relevant to the disposal of this appeal are as C
under:
A. In Village Chittising Pora, District Anantnag, J&K, 36
Sikhs were killed by terrorists on 20.3.2000. Immediately
thereafter, search for the terrorists started in the entire area and
5 persons, purported to be terrorists, were killed at village D
Pathribal Punchalthan, District Anantnag, J & K by 7 Rashtriya
Rifles (hereinafter called as 'RR') Personnel on 25.3.2000 in
an encounter.
B. In respect of killing of 5 persons by 7 RR on 25.3.2000 E
at Pathribal claiming them to be responsible for Sikhs
massacre at Chittising Pora, a complaint bearing No. 241/
GS(Ops.) dated 25.3.2000 was sent to Police Station
Achchabal, District Anantnag, J&K by Major Amit Saxena, the
then Adjutant, 7 RR, for lodging FIR stating that during a special F
cordon and search operation in the forests of Panchalthan from
0515 hr. to 1500 hrs. on 25.3.2000, an encounter took place
between terrorists and troops of that unit and in that operation,
5 unidentified terrorists were killed in the said operation. On the
receipt of the complaint, FIR No. 15/2000 under Section 307
of Ranbir Penal Code (hereinafter called 'RPC') and Sections G
7125 Arms Act, 1959 was registered against unknown persons.
A seizure memo was prepared by Major Amit Saxena (Adjutant)
on 25.3.2000 showing seizure of arms and ammunition from
all the 5 unidentified terrorists killed in the aforesaid operation
which included AK-47 rifles (5), AK-47 Magazine rifles (12), H
622 SUPREME COURT REPORTS [2012] 5 S.C.R.
A radio sets (2), AK-48 ammunition (44 rounds), hand grenades
(2) detonators (4) and detonator time devices (2). The said
seizure memo was signed by the witnesses Farooq Ahmad
Gujjar and Mohd. Ayub Gujjar, residents of Wuzukhan,
Panchalthan, J & K.
B
C. The 7 RR deposited the said recovered weapons and
ammunition with 2 Field Ordnance Depot. However, the local
police insisted that the Army failed to hand over the arms and
ammunition allegedly recovered from the terrorists killed in the
C encounter, which tantamounts to causing of disappearance of
the evidence, constituting an offence under Section 201 RPC.
In this regard, there had been correspondence and a Special
Situation Report dated 25.3.2000 was sent by Major Amit
Saxena, the then Adjutant, to Head Quarter-I, Sector RR stating
that, based on police inputs, a joint operation with STF was
D launched in the forest of Pathribal valley on 25.3.2000, as a
consequence, the said incident occurred. However, it was
added that ammunition allegedly recovered from the killed
militants had been taken away by the STF.
E D. There had been long processions in the valley in protest
of killing of these 5 persons on 25.3.2000 by 7 RR alleging that
they were civilians and had been killed by the Army personnel
in a fake encount•er. The local population treated it to be a
barbaric act of violence and there had been a demand of
F independent inquiry into the whole incident. Thus, in view thereof,
on the request of Government of J & K, a Notification dated
19.12.2000 under Section 6 of Delhi Police Special
Establishment Act, 1946 (hereinafter called as 'Act 1946') was
issued. In pursuanoe thereof, Ministry of Personnel, Government
G of India, also issued Notification dated 22.1.2003 under
Section 5 of the Act 1946 asking the CBI to investigate four
cases including the alleged encounter at Pathribal resulting in
the death of 5 persons on 25.3.2000.
E. The CBI conducted the investigation in Pathribal
H incident and filed a chargesheet in the court of Chief Judicial
GENERAL OFFICER COMMANDING v. CBI AND 623
ANR. [DR. B.S. CHAUHAN, J.]
Magistrate-cum-Special Magistrate, CBI, (hereinafter called the A
'CJM') Srinagar, on 9.5.2006, alleging that it was a fake
encounter, an outcome of criminal conspiracy hatched by Col.
Ajay Saxena (A-1 ), Major Brajendra Pratap Singh (A-2), Major
Sourabh Sharma (A-3), Subedar ldrees Khan (A-4) and some
members of the troops of 7 RR were responsible for killing of B
innocent persons. Major Amit Saxena (A-5) (Adjutant) prepared
a false seizure memo showing recovery of arms and
ammunition in the said incident, and also gave a false
complaint to the police station for registration of the case
against the said five civilians showing some of them as foreign c
militants and false information to the senior officers to create
an impression that the encounter was genuine and, therefore,
caused disappearance of the evidence of commission of the
aforesaid offence under Section 120-B read with Sections 342,
304, 302, 201 RPC and substantive offences thereof. Major D
Amit Saxena (A-5) (Adjutant) was further alleged to have
committed offence punishable under Section 120-B read with
Section 201 RPC and substantive offence under Section 201
RPC with regard to the aforesaid offences.
F. The learned CJM on consideration of the matter, found E
that veracity of the allegations made in the chargesheet and the
analysis of the evidence cannot be gone into as it would
tantamount to assuming jurisdiction not vested in him. It was
so in view of the provisions of Armed Forces J & K (Special
Powers) Act, 1990 (hereinafter called 'Act 1990'), which offer F
protection to persons acting under the said Act.
G. The CJM, Srinagar, granted opportunity to Army to
exercise the option as to whether the competent military
authority would prefer to try the case by way of court-martial by G
taking over the case under the provisions of Section 125 of the
Army Act, 1950 (hereinafter called the 'Army Act'). On
24.5.2006, the Army officers filed an application before the
court pointing out that no prosecution could be instituted except
with the previous sanction of the Central Government in view H
624 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of the provisions of Section 7 of the Act 1990 and, therefore,
the proceedings be closed by returning the chargesheet to the
CBI.
H. The CJM vide order dated 24.8.2006 dismissed the
application holding that the said court had no jurisdiction to go
8
into the documents filed by the investigating agency and it was
for the trial court to find out whether the action complained of
falls within the ambit of the discharge of official duty or not.
The CJM himself could not analyse the evidence and other
C material produced with the chargesheet for considering the fact,
as to whether the officials had committed the act in good faith
in discharge of their official duty; otherwise the act of such
officials was illegal or unlawful in view of the nature of the
offence.
D I. Aggrieved by the order of CJM dated 24.8.2006, the
appellant filed revision petition before the Sessions Court,
Srinagar and the same stood dismissed vide order dated
30.11.2006. However, the revisional court directed the CJM to
give one more opportunity to the Army officials for exercise of
E option under Section 125 of the Army Act.
J. The appellant approached the High Court under Section
561-A of the CodH. The Court vide impugned order dated
10. 7 .2007 affirmed the orders of the courts below and held that
F the very objective of sanctions is to enable the Army officers
to perform their duties fearlessly by protecting them from
vexatious, malafide and false prosecution for the act done in
performance of the.ir duties. However, it has to be examined
as to whether their action falls under the Act 1990. The CJM
does not have the power to examine such an issue at the time
G of committal of proc1~edings. At this stage, the Committal Court
has to examine only as to whether any case is made out and,
if so, the offence is triable by whom.
Hence, this appeal.
H
GENERAL OFFICER COMMANDING v. CBI AND 625
ANR. [DR. B.S. CHAUHAN, J.]
3. Criminal Appeal No. 55 of 2006 has been preferred A
against the impugned judgment and order dated 28.3.2005
passed by the High Court of Guwahati in Criminal Revision
No.117 of 2004 by which it has upheld the order of the Special
Judicial Magistrate, Kamrup dated 10.11.2003 rejecting the
application of the appellant seeking protection of the provisions B
of Section 6 of the Armed Forces (Special Powers) Act, 1958
(hereinafter called the 'Act 1958') in respect of the armed forces
personnel.
4. Facts and circumstances giving rise to this appeal are C
as under:
A. In order to curb the insurgency in the North-East, the
Parliament enacted the Act 1958 authorising the Central
Government as well as the Governor of the State to declare,
by way of Notification in the official Gazette, the whole or part D
of the State as disturbed area. Section 4 of the Act 1958
conferred certain powers on the Army personnel acting under
the Act which include power to arrest without warrant on
reasonable suspicion, destroy any arms, ammunitions dumped
and hide out, and also to open fire or otherwise use powers E
even to the extent of causing death against any person acting
in contravention of law and order and further to carry out search
and seizure. The entire State of Assam was declared disturbed
area under the Act 1958 vide Notification dated 27 .11.1990 and
Army was requisitioned and deployed in various parts of the F
State to fight insurgency and to restore law and order.
B. On 22.2.1994, the 18th Battalion of Punjab Regiment
was deployed in Tinsukhia District of Assam to carry out the
counter insurgency operation in the area of Saikhowa Reserve
Forest. The said Army personnel faced the insurgents who G
opened fire from an ambush. The armed battalion returned fire
and in the process, some militants died. The Battalion continued
search at the place of encounter and consequently, 5 bodies
of the militants alongwith certain arms and ammunitions were
recovered. In respect of the said incident, an FIR was lodged H
626 SUPREME COURT REPORTS [2012] 5 S.C.R.
A at P.S. Doom Oooma. Local Police also visited the place on
23.2.1994 and 1.3.1994 and investigated the case. The incident
was investigated by the Army under the Army Court of enquiry
as provided under the Army Act. Two Magisterial enquiries
were held as per the directions issued by the State Government
B and as per the appellant, the version of the Army personnel was
found to be true and a finding was recorded that 'the counter
insurgency operation was done in exercise of the official duty'.
C. Two writ petitions were filed before the High Court by
the non-parties alleging that the Army officials apprehended 9
C individuals and killed 5 of them in a fake encounter. The High
Court directed the CBI to investigate the matter.
D. The CBI completed the investigation and filed
chargesheet against 7 Army personnel in the Court of Special
o Judicial Magistrate, Kamrup under Section 302/201 read with
Section 109 of th1:! Indian Penal Code, 1860 (hereinafter called
'IPC'). The Special Judicial Magistrate issued notice dated
30.5.2002 to the appellant i.e. Army Headquarter to collect the
said chargesheet. The appellant requested the said Court not
E to proceed with the matter as the action had been carried out
by the Army personnel in performance of their official duty and
thus, they were protected under the Act 1958 and in order to
proceed further in the matter, sanction of the Central
Government was necessary. The learned Special Judicial
F Magistrate rejected the case of the appellant vide order dated
10.11.2003. Being aggrieved, the appellant preferred the
revision petition which has been rejected vide impugned order
dated 28.3.2005 by the High Court.
Hence, this appeal.
G
5. As the facts and legal issues involved in both the
appeals are similar, we decide both the appeals by a common
judgment taking the Criminal Appeal No. 257 of 2011 as a
leading case.
H
GENERAL OFFICER COMMANDING v. CBI AND 627
ANR. [DR. B.S. CHAUHAN, J.]
6. Shri Mohan Parasaran and Shri P.P. Malhotra, learned A
Addi. Solicitor Generals appearing on behalf of the Union of
India and Army personnel, have contended that mandate of
Section 7 of the Act 1990 is clear and it clearly provides that
no prosecution shall be instituted and, therefore, cannot be
instituted without prior sanction of the Central Government. It is B
contended that the prosecution would be deemed to have
instituted/initiated at the moment the chargesheet is filed and
received by the court. Such an acceptance/receipt is without
jurisdiction. The previous sanction of the competent authority
is a pre-condition for the court in taking the chargesheet on c
record if the offence alleged to have been committed in
discharge of official duty and such issue touches the jurisdiction
of the court.
7. On the other hand, Shri H.P. Raval, learned ASG, Shri
Ashok Bhan, learned senior counsel appearing on behalf of the D
CBI, and Mr. M.S. Ganesh appearing for the interveners (though
application for intervention not allowed) have vehemently
opposed the appeals contending that the institution of a criminal
case means taking cognizance of the case, mere presentation/
filing of the chargesheet in the court does not amount to E
institution. The court of CJM has not taken cognizance of the
offence, therefore, the appeals are premature. Even otherwise,
killing innocent persons in a fake encounter in execution of a
conspiracy cannot be a part of official duty and thus, in view of
the facts of the case no sanction is required. The appeals are F
liable to be dismissed.
8. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
9. The matter is required to be examined taking into G
consideration the statutory provisions of the Act 1990 and also
considering the object of the said Act. It is to be examined as
to whether the court, after the chargesheet is filed, can entertain
the same and proceed to frame charges without previous
sanction of the Central Government. The Act 1990 confers H
628 SUPREME COURT REPORTS [2012) 5 S.C.R.
A certain special powers upon members of the Armed Forces in
the disturbed area in the State of J & K. The disturbed area is
defined and there is no dispute that the place where the
incident occurred stood notified under the Act 1990. Section 4
of the Act 1990 confers special powers on the officer of armed
B forces to take measures, where he considers it necessary to
do so, for the maintenance of public order. However, he must
give due warning according to the circumstances and even fire
upon or use force that may also result in causing death against
any person acting in contravention of law and order in the
c disturbed area and prohibit the assembly of five or more
persons or carrying of weapons etc. Such an officer has further
been empowered to destroy any arms dump, arrest any person
without warrant who has committed a cognizable offence and
enter and search without warrant any premises to make any
arrest. Section 6 of the Act 1990 requires that such arrested
0
person and seized property be handed over to the local police
by such an officer.
10. Section 7 of the Act 1990 provides for umbrella
protection to the Army personnel in respect of anything done
E or purported to be done in exercise of powers conferred by the
Act. The whole issuei is regarding the interpretation of Section
7 of the Act 1990, as to whether the term 'institution' used
therein means filing/presenting/submitting the chargesheet in
the court or taking cognizance and whether the court can ·
F proceed with the trial without previous sanction of the Central
Government.
11. The analogous provision to Section 7 of the Act 1990
exists in Sections 4!5(1) and 197(2) of the Code of Criminal
G Procedure, 1973 (hereinafter called 'Cr.P.C.'). The provisions
of Section 7 of the Act 1990 are mandatory and if not complied
with in letter and spirit before institution of any suit, prosecution
or legal proceedings against any persons in respect of anything
done or purported to be done in exercise of the powers
conferred by the Act ·1990, the same could be rendered invalid
H
GENERAL OFFICER COMMANDING v. CBI AND 629
ANR. [DR. B.S. CHAUHAN, J.]
and illegal as the provisions require the previous sanction of A
the Central Government before institution of the prosecution.
According to the appellants, institution of prosecution is a
stage prior to taking cognizance and, therefore, the word
'institution' is different from the words taking 'cognizance'.
B
The scheme of the Act requires that any legal proceeding
instituted against any Army official working under the Act 1990
has to be subjected to stringent test before any such proceeding
can be instituted. Special powers have been conferred upon
Army officials to meet the dangerous conditions i.e. use of the C
armed forces in aid of civil force to prevent activities involving
terrorist acts directed towards overawing the government or
striking terror in people or alienating any section of the people
or adversely affecting the harmony amongst different sections
of the people. Therefore, Section 7 is required to be interpreted D
keeping the aforesaid objectives in mind.
12. The 'prosecution' means a criminal action before the
court of law for the purpose of determining 'guilt' or 'innocence'
of a person charged with a crime. Civil suit refers to a civil E
action instituted before a court of law for realisation of a right
vested in a party by law. The phrase 'legal proceeding' connotes
a term which means the proceedings in a court of justice to get
a remedy which the law permits to the person aggrieved. It
includes any formal steps or measures employed therein. It is
not synonymous with the 'judicial proceedings'. Every judicial F
proceeding is a legal proceeding but not vice-versa, for the
reason that there may be a 'legal proceeding' which may not
be judicial at all, e.g. statutory remedies like assessment under
Income Tax Act, Sales Tax Act, arbitration proceedings etc. So,
the ambit of expression 'legal proceedings' is much wider than G
'judicial proceedings'. The expression 'legal proceeding' is to
be construed in its ordinary meaning but it is quite
distinguishable from the departmental and administrative
proceedings, e.g. proceedings for registration of trade marks
etc. The terms used in Section 7 i.e. suit, prosecution and legal H
630 SUPREME COURT REPORTS [2012) 5 S.C.R.
A proceedings are not inter-changeable or convey the same
meaning. The phrase 'legal proceedings' is to be understood
in the context of the statutory provision applicable in a particular
case, and considering the preceding words used therein. In
Assistant Collector of Central Excise, Guntur v. Ramdev ,
B Tobacco Company, AIR 1991 SC 506, this Court explained
the meaning of the phrase "other legal proceedings" contained
in Section 40(2) of the Central Excises and Salt Act, 1944,
wherein these words have been used after suit and prosecution.
The Court held that these words must be read as ejusdem
c generis with the preceding words i.e. suit and prosecution, as
they constitute a genus. Therefore, issuance of a notice calling
upon the dealer to show cause why duty should not be
demanded under the Rules and why penalty should not be
imposed for infraction of the statutory rules and enjoin of
consequential adjudication proceedings by the appellate
0
authority would not fall within the expression "other legal
proceedings" as in the context of the said statute. 'Legal
proceedings' do not include the administrative proceedings.
In Maharashtra Tubes Ltd. v. State Industrial &
E Investment Corporation of Maharashtra Ltd. & Anr., (1993) 2
SCC 144, this Court dealt with the expressions 'proceedings'
and 'legal proceedin9s' and placed reliance upon the dictionary
meaning of expression 'legal proceedings' as found in Black
Law Dictionary (Fou1th Edition) which read as under:
F
"Any proceedin~1s in court of justice ... by which property
of debtor is seized and diverted from his general creditors
.... This term i11cludes all proceedings authorised or
sanctioned by law, and brought or instituted in a court of
justice or legal tribunal, for the acquiring of a right or the
G
enforcement of a remedy."
The Court came to the conclusion that proceedings before
statutory authorities under the provisions of the Act do not
amount to legal proeieedings.
H
GENERAL OFFICER COMMANDING v. CBI AND 631
ANR. [OR. B.S. CHAUHAN, J.]
'Legal proceedings' means proceedings regulated or A
prescribed by law in which a judicial decision may be given; it
means proceedings in a court of justice by which a party
pursues a remedy which a law provides, but does not include
administrative and departmental proceedings. (See also: S. V.
Kondaskar, Official Liquidator v. V.M. Deshpande, I. T. 0. & B
Anr., AIR 1972 SC 878; Babula/ v. Mis. Hajari Lal Kishori Lal
& Ors., AIR 1982 SC 818; and Binod Mills Co. Ltd., Ujjain v.
Shri. Suresh Chandra Mahaveer Prasad Mantri, Bombay, AIR
1987 SC 1739).
The provision of Section 7 of the Act 1990 prohibits
c
institution of legal proceedings against any Army personnel
without prior sanction of the Central Government. Therefore,
chargesheet cannot be instituted without prior sanction of the
Central Government. The use of the words 'anything done' or
'purported to be done' in exercise of powers conferred by the D
Act 1990 is very wide in its scope and ambit and it consists of
twin test. Firstly, the act or omission complained of must have
been done in the course of exercising powers conferred under
the Act, i.e., while carrying out the duty in the course of his
service and secondly, once it is found to have been performed E
in discharge of his official duty, then the protection given under
Section 7 must be construed liberally. Therefore, the provision
contained under Section 7 of the Act 1990
(i) INSTITUTION OF A CASE: F
13. The meaning of the aforesaid term has to be
ascertained taking into consideration the scheme of the Actl
Statute applicable. The expression may mean filing/
presentation or received or entertained by the court. The
question does arise as to whether it simply means mere G
presentation/filing or something further where the application of
the mind of the court is to be applied for passing an order.
14. In Mis. Lakshmiratan Engineering Works Ltd. v. Asst.
Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur H
632 SUPREME COURT REPORTS [2012] 5 S.C.R.
A & Anr., AIR 1968 SC 488, this Court dealt with the provisions
of U.P. Sales Tax Act, 1948 and rules made under it and while
interpreting the proviso to Section 9 thereof, which provided the
mode of filing the appeal and further provided that appeal could
be "entertained" on depositing a part of the assessed/admitted
B amount of tax. The question arose as what was the meaning
of the word 'entertain' in the said context, as to whether it meant
that no appeal would be received or filed or it meant that no
appeal would be admitted or heard and disposed of unless
satisfactory proof of deposit was available. This Court held that
c dictionary meaning of the word 'entertain' was either 'to deal
with' or 'admit to consideration'. However, the court had to
consider whether filing or receiving the memorandum of appeal
was not permitted without depositing the required amount of
tax or it could not be heard and decided on merits without
depositing the same. The court took into consideration the
0
words 'filed or received' in Section 6 of the Court Fees Act and
held that in the context of the said Act it would mean 'admit for
consideration'. Mere filing or presentation or receiving the
memorandum of appeal was inconsequential. The provisions
provided that the appeal filed would not be admitted for
E consideration unless the required tax was deposited.
15. In Lala Ram v. Hari Ram, AIR 1970 SC 1093, this
Court considered the word 'entertain' contained in the
provisions of Section 417(4) of the Code of Criminal Procedure,
F 1898 (analogous to Section 378 Cr.P .C.) providing for the
period of limitation of 60 days for filing the application for leave
to appeal against the order of acquittal. Thus, the question
arose as to whether 60 days are required for filing/presenting
the application for leave to appeal or the application should be
G heard by the court within that period. This Court held that in that
context, the word 'entertain' meant 'filed or received by the court'
and it had no reference to the actual hearing of the application
for leave to appeal. So, in that context 'entertain' was explained
to receive or file th1~ application for leave to appeal.
H
GENERAL OFFICER COMMANDING v. CBI AND 633
ANR. [DR. B.S. CHAUHAN, J.]
16. In Hindustan Commercial Bank Ltd. v. Punnu Sahu A
(dead) through LRs., Al R 1970 SC 1384, this Court dealt with
the expression 'entertain' contained in the proviso to Order XXI
Rule 90 Code of Civil Procedure, 1908 as amended by the
High Court of Allahabad and rejected the contention that it
meant initiation of the proceeding and not to the stage when B
the court takes up the application for consideration, observing
that 'entertain' means to "adjudicate upon" or "proceed to
consider on merits".
17. In Martin and Harris Ltd. v. Vlth Additional District
Judge & Ors., AIR 1998 SC 492, while dealing with the C
provisions of Section 21(1) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972, the word
"entertain" was interpreted as considering the grounds for the
purpose of adjudication on merits i.e. thereby taking cognizance
of an application by the statutory authority. The Court rejected D
the contention that the term 'entertain' contained in the said
statutory provision was synonymous with the word 'institute'.
18. In Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964
SC 1541, this Court dealt with the expression 'institution of a E
case' and held that a case can be said to be instituted in a court
only when the court takes cognizance of the offence alleged
therein. Section 190(1) Cr.P.C. contains the provision for taking
cognizance of offence (s) by Magistrate. Section 193 Cr.P.C.
provides for cognizance of offence (s) being taken by courts of F
Sessions on commitment to it by a Magistrate duly empowered
in that behalf.
This view has been reiterated, approved and followed by
this Court in Satyavir Singh Rathi, ACP & Ors. v. State through
CBI, (2011) 6 sec 1. G
19. A similar view has been reiterated by this Court in
Kamalapati Trivedi v. The State of West Bengal, AIR 1979 SC
777, observing that when a Magistrate applies his mind under
Chapter XVI, he must be held to have taken cognizance of the H
634 SUPREME COURT REPORTS [2012] 5 S.C.R.
A offences mentioned! in the complaint. Such a situation would not
arise while passing order under Section 156(3) Cr.P.C. or while
issuing a search warrant for the purpose of investigation. In
Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana
Reddy & Ors., AIR 1976 SC 1672, this Court held that
B 'institution' means taking cognizance of the offence alleged in
the chargesheet.
20. Mere presentation of a complaint cannot be held to
mean that the Magistrate has taken the cognizance. (Vide:
Narsingh Das Tapadia v. Goverdhan Das Partani & Anr., AIR
C 2000 SC 2946).
21 ~ Thus, in view of the above, it is evident that the
expression "Institution" has to be understood in the context of
the scheme of the Act applicable in a particular case. So far
D as the criminal proceedings are concerned, "Institution" does
not mean filing; presenting or initiating the proceedings, rather
it means taking cognizance as per the provisions contained in
the Cr.P.C.
E (ii) SANCTION FOR PROSECUTION:
22. The protection given under Section 197 Cr.P.C. is to
protect responsible public servants against the institution of
possibly vexatious criminal proceedings for offences alleged
to have been committed by them while they are acting or
F purporting to act as public servants. The policy of the legislature
is to afford adequate protection to public servants to ensure
that they are not prosecuted for anything done by them in the
discharge of their official duties without reasonable cause, and
if sanction is granted, to confer on the Government, if they
G choose to exercise it, complete control of the prosecution. This
protection has certain limits and is available only when the
alleged act done by the public servant is reasonably connected
with the discharge of his official duty and is not merely a cloak
for doing the objectionable act. Use of the expression ''official
H duty" implies that the act or omission must have been done
GENERAL OFFICER COMMANDING v. CBI AND 635
ANR. [DR. B.S. CHAUHAN, J.]
by the public servant in the course of his service and that it A
should have been done in discharge of his duty. The section
does not extend its protective cover to every act or omission
done by a public servant in service but restricts its scope of
operation to only those acts or omissions which are done by a
public servant in discharge of official duty. If on facts, therefore, B
it is prima facie found that the act or omission for which the
accused was charged had reasonable connection with
discharge of his duty, then it must be held to be official to which
applicability of Section 197 Cr.P.C. cannot be disputed. (See:
R. Balakrishna Pillai v. State of Kera/a & Anr., AIR 1996 SC c
901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004
SC 417 4; Center for Public Interest Litigation & Anr. v. Union
of India & Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra v.
State of Bihar & Ors., AIR 2006 SC 820; Anjani Kumar v.
State of Bihar & Ors., AIR 2008 SC 1992; and State of Madhya D
Pradesh v. Sheet/a Sahai & Ors., (2009) 8 SCC 617).
23. The question to examine as to whether the sanction is
required or not under a statute has to be considered at the time
of taking cognizance of the offence and not during enquiry or
investigation. There is a marked distinction in the sta~ of E
investigation and prosecution. The prosecution starts when the
cognizance of offence is taken. It is also to be kept in mind that
the cognizance is taken of the offence and not of the offender.
The sanction of the appropriate authority is necessary to protect
a public servant from unnecessary harassment or prosecution. F
Such a protection is necessary as an assurance to an honest
and sincere officer to perform his public duty honestly and to
the best of his ability. The threat of prosecution demoralises the
honest officer. However, performance of public duty under
colour of duty cannot be camouflaged to commit a crime. The G
public duty may provide such a public servant an opportunity
to commit crime and such issue is required to be examined by
the sanctioning authority or by the court. It is quite possible that
the official capacity may enable the pubic servant to fabricate
the record or mis-appropriate public funds etc. Such activities H
636 SUPREME COURT REPORTS [2012] 5 S.C.R.
A definitely cannot be integrally connected or inseparably inter-
linked with the crime committed in the course of the same
transaction. Thus, all acts done by a public servant in the
purported discharg13 of his official duties cannot as a matter of
course be brought under the protective umbrella of requirement
B of sanction. (Vide: Bhanuprasad Hariprasad Dave & Anr. v.
The State of Gujamt, AIR 1968 SC 1323; Hareram Satpathy
v. Tikaram Agarwala & Ors., AIR 1978 SC 1568; State of
Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339;
Anil Saran v. State of Bihar & Anr., Al R 1996 SC 204;
c Shambhoo Nath Misra v State of UP. & Ors., AIR 1997 SC
2102; and Choudhury Parveen Sultana v. State of West
Bengal & Anr., AIR 2009 SC 1404).
24. In fact, the issue of sanction becomes a question of
paramount importance when a public servant is alleged to have
D acted beyond his authority or his acts complained of are in
dereliction of the duty. In such an eventuality, if the offence is
alleged to have been committed by him while acting or
purporting to act in discharge of his official duty, grant of prior
sanction becomes imperative. It is so, for the reason that the
E power of the State is performed by an executive authority
authorised in this behalf in terms of the Rules of Executive
Business framed undeir Article 166 of the Constitution of India
insofar as such a power has to be exercised in terms of Article
162 thereof. (See : Stei1te of Punjab & Anr. v. Mohammed Iqbal
F Bhatti, (2009) 17 sec 92).
25. In Satyavir Singh Rathi, (Supra), this Court considered
the provisions of Section 140 of the Delhi Police Act 1978
which bars the suit and prosecution in any alleged offence by
G a police officer in respect of the act done under colour of duty
or authority in exercise of any such duty or authority without the
sanction and the same shall not be entertained if it is instituted
more than 3 months after the date of the act complained of. A
complaint may be entertained in this regard by the court if
instituted with the previous sanction of the administrator within
H
GENERAL OFFICER COMMANDING v. CBI AND 637
ANR. [DR. S.S. CHAUHAN, J.]
one year from the date of the offence. This Court after A
considering its earlier judgments including Jamuna Singh
(supra); The State of Andhra Pradesh v. N. Venugopal & Ors.,
AIR 1964 SC 33; State of Maharashtra v. Narhar Rao, AIR
1966 SC 1783; State of Maharashtra v. Atma Ram & Ors.,
AIR 1966 SC 1786; and Prof Sumer Chand v. Union of India B
& Ors., (1994) 1 sec 64, came to the conclusion that the
prosecution has been initiated on the basis of the FIR and it
was the duty of the police officer to investigate the matter and
to file a chargesheet, if necessary. If there is a discernible
connection between the act complained of by the accused and c
his powers and duties as police officer, the act complained of
may fall within the description of colour of duty. However, in a
case where the act complained of does not fall within the
description of colour of duty, the provisions of Section 140 of
the Delhi Police Act 1978 would not be attracted.
D
26. This Court in State of Orissa & Ors. v. Ganesh
Chandra Jew, AIR 2004 SC 2179, while dealing with the issue
held as under:
" ..... It is the quality of the act which is important and the E
protection of this section is available if the act falls within
the scope and range of his official duty. There cannot be
any universal rule to determine whether there is a
reasonable connection between the act done and the
official duty, nor is it possible to lay down any such rule. F
One safe and sure test in this regard would be to consider
if the omission or neglect on the part of the public servant
to commit the act complained of could have made him
answerable for a charge of dereliction of his official duty.
If the answer to this question is in the affirmative, it may G
be said that such act was committed by the public servant
while acting in the discharge of his official duty and there
was every connection with the act complained of and the
official duty of the public servant." (Emphasis
added)
H
638 SUPREME COURT REPORTS [2012] 5 S.C.R.
A (See also: P. Arulswami v. State of Madras, AIR 1967 SC
776).
27. This Court in Suresh Kumar Bhikamchand Jain v.
Pandey Ajay B.hushan & Ors., AIR 1998 SC 1524, held as
8 under:
" ...... The le!gislative mandate engrafted in sub-section (1)
of Section 197 debarring a Court from taking cognizance
of an offence except with a previous sanction of the
concerned Government in a case where the acts
C complained of are alleged to have been committed by
public servant in discharge of his official duty or purporting
to be in thEi discharge of his official duty and such public
servant is not removable from his office save by or with
the sanction of the Government touches the jurisdiction of
D the Court itself. It is a prohibition imposed by the statute
from taking cognizance, the accused after appearing
before th•:i Court on process being issued, by an
application indicating that Section 197(1) is attracted
merely as.sists the Court to rectify its error where
E jurisdiction has been exercised which it 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
F 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
proceedin!JS." (Emphasis added)
28. In Matajog Dobey v. H. C. Bhari, AIR 1956 SC 44, the
G Constitution Bench of this Court held that requirement of
sanction may arise at any stage of the proceedings as the
complaint may not disclose all the facts to decide the question
of immunity, but facts subsequently coming either to notice of
the police or in judicial inquiry or even in the course of
H
GENERAL OFFICER COMMANDING v. CBI AND 639
ANR. [DR. S.S. CHAUHAN, J.]
prosecution evidence may establish the necessity for sanction. A
The necessity for sanction may surface during the course of trial
and it would be open to the accused to place the material on
record for showing what his duty was and also the acts
complained of were so inter-related or inseparably connected
with his official duty so as to attract the protection accorded by B
law. The court further observed that difference between "acting
or purporting to act" in the discharge of his official duty is merely
of a language and not of substance.
On the issue as to whether the court or the competent
authority under the statute has to decide the requirement of C
sanction, the court held:
"Whether sanction is to be accorded or not is a matter for
the government to consider. The absolute power to accord
or withhold sanction conferred on the government is D
irrelevant and foreign to the duty cast on the Court, which
is the ascertainment of the true nature of the act. ..... There
must be a reasonable connection between the act and the
official duty. It does not matter even if the act exceeds what
is strictly necessary for the discharge of the duty, as this E
question will arise only at a later stage when the trial
proceeds on the merits. What we must find out is whether
the act and the official duty are so inter-related that one
can postulate reasonably that it was done by the accused
in the performance of the official duty, though possibly in F
excess of the needs and requirements of the situation."
(Emphasis added)
29. In Sankaran Moitra v. Sadhna Das & Anr., AIR 2006
SC 1599, this Court held as under :
6
"The High Court has stated that killing of a person by use
of excessive force could never be performance of duty. It
may be correct so far as it goes. But the question is
whether that act was done in the performance of duty or
H
640 SUPREME COURT REPORTS [2012] 5 S.C.R.
A in purported performance of duty. If it was done in
performance of duty or purported performance of duty,
Section 197(1) of the Code cannot be bypassed by
reasoning that killing a man could never be done in an
official capacity and consequently Section 197(1) of the
B Code could not be! attracted."
(See also: Rizwan Ahmed Javed Shaikh & Ors. v. Jammal
Patel & Ors., AIR 200'1 SC 2198).
30. In S.B. Saha & Ors. v. MS. Kochar, AIR 1979 SC
c 1841, this Court dealt with the issue elaborately and explained
the meaning of "official" as contained in the provisions of
Section 197 Cr.P.C., observing:
"In considering the question whether sanction for
D prosecution was or was not necessary, these criminal acts
attributed to the accused are to be taken as alleged ....... .
The words 'any offence alleged to have been committed
by him while acting or purporting to act in the discharge
of his official duty' employed in Section 197(1) of the Code,
are capable of a narrow as well as a wide interpretation.
E
If these words am construed too narrowly, the section will
be rendered altogether sterile, for, 'it is no part of an official
duty to commit an offence, and never can be'. In the wider
sense, these words will take under their umbrella every act
constituting an offence, committed in the course of the
F same transaction in which the official duty is performed or
purports to be performed. The right approach to the import
of these words lies between two extremes. While on the
one hand, it is not every offence committed by a public
servant while engaged in the performance of his official
G duty, which is entitled to the protection of Section 197 (1 ),
an act constituting an offence, directly and reasonably
connected with his official duty will require sanction for
prosecution und1er the said provision."
H 31. In Parkash Singh Badal & Anr. v. State of Punjab &
GENERAL OFFICER COMMANDING v. CBI AND 641
ANR. [DR. B.S. CHAUHAN, J.]
Ors., AIR 2007 SC 1274, this Court reiterated the same view A
while interpreting the phrase "official duty", as under:
" ... Official duty therefore implies that the act or omission
must have been done by the public servant in course of
his service and such act or omission must have been B
performed as part of duty which further must have been
official in nature. The Section has, thus, to be construed
strictly, while determining its applicability to any act or
omission in course of service. Its operation has to be
limited to those duties which are discharged in course of C
duty. But once any act or omission has been found to have
been committed by a public servant in discharge of his
duty then it must be given liberal and wide construction so
far its official nature is concerned ...... "
32. In P.K. Choudhury v. Commander, 48 BRTF (GREF), D
(2008) 13 SCC 229, this Court dealt with the issue wherein an
Army officer had allegedly indulged in the offence punishable
under Section 166 IPC - public servant disobeying law, with
intent to cause injury to any person and Section 167 IPC - public
servant framing incorrect document with intention to cause E
injury, and as to whether in such an eventuality sanction under
Section 197 Cr.P.C. was required. The Court held as under:
"As the offences under Sections 166 and 167 of the Penal
Code have a direct nexus with commission of a criminal
misconduct on the part of a public servant, indisputably an F
order of sanction was prerequisite before the learned
Judicial Magistrate could issue summons upon the
appellant."
The Court further rejected the contention that sanction was G
not required in view of the provisions of Sections 125 and 126
of the Army Act, which provided for a choice of the competent
authorities to try an accused either by a criminal court or
proceedings for court-martial. Section 126 provides for the
power of the criminal court to require delivery of offender. The H
642 SUPREME COURT REPORTS [2012] 5 S.C.R.
A Court held that in case the competent authority takes a decision
that the accused was to be tried by ordinary criminal court, the
provisions of the Cr.P.C. would be applicable including the law
of limitation and the criminal court cannot take cognizance of
offence if it is barred by limitation. In case, the delay is not
B condoned, the court will have no jurisdiction to take the
cognizance. Similarly, unless it is held that a sanction was not
requirnd to be obtained, the court's jurisdiction will be barred.
33. This Court in f\/agraj v. State of Mysor(p, AIR 1964 SC
269, held that:
c
"The last question to consider is that if the Court comes
at any stage to the conclusion that the prosecution could
not have been instituted without the sanction of the
Government, what should be the procedure to be followed
D by it, i e., whether the Court should discharge the accused
or acquit him of the charge if framed against him or just
drop the proceedings and pass no formal order of
discharge or acquittal as contemplated in the case of a
prosecution under lhe Code. The High Court has said that
E when the Sessions Judge be satisfied that the facts proved.
bring the case within the mischief of S. 132 of the Code
then he is at liberty to reject the complaint holding that it is
barred by that section. We consider this to be the right
order to be passeid in those circumstances. It is not
essential that the Court must pass a formal order
F
discharging or acquitting the accused. In fact no such
orcter can be passed. If S. 132 applies, the complaint
could not have been instituted without the sanction of the
Government and the proceedings on a complaint so
instituted would be void, the Court having no jurisdiction
G
to take those proceedings. When the proceedings be
void, the Court is not competent to pass any order except
an order that the proceedings be dropped and the
complaint is rejectE~d." (Emphasis added)
H 34. In Naga People's Movement of Human Rights v.
GENERAL OFFICER COMMANDING v. CBI AND 643
ANR. [DR. B.S. CHAUHAN, J.]
Union of India, Al R 1998 SC 431, the Constitution Bench of A
this Court while dealing with the issue involved herein under
the provisions of Section 6 of the Armed Forces (Special
Powers) Act, 1958, held as under:
"Under Section 6 protection has been given to the B
persons acting under the Central Act and it has been
prescribed that no prosecution, suit or other legal
proceeding shall be instituted against any person in
respect of anything done or purported to be done in
exercise of the powers conferred by the said Act except
with the previous sanction of the Central Government. The C
conferment of such a protection has been assailed on
the ground that it virtually provides immunity to persons
exercising the powers conferred under Section 4
inasmuch as it extends the protection also to "anything
purported to be done in exercise of the powers conferred D
by this Act". It has been submitted that adequate
protection for members of armed forces from arrest and
prosecution is contained in Sections 45 and 197 CrPC
and that a separate provision giving further protection is
not called for. It has also been submitted that even if E
sanction for prosecution is granted, the person in question
would be able to plead a statutory defence in criminal
proceedings under Sections 76 and 79 of the Indian Penal
Code. The protection given under Section 6 cannot, in our
opinion, be regarded as conferment of an immunity on the F
persons exercising the powers under the Central Act.
Section 6 only gives protection in the form of previous
sanction of the Central Government before a criminal
prosecution or a suit or other civil proceeding is instituted
against such person. Insofar as such protection against G
prosecution is concerned, the provision is similar to that
contained in Section 197 CrPC which covers an offence
alleged to have been committed by a public servant "while
acting or purporting to act in the discharge of his official
duty". Section.fl only extends this protection in the matter H
644 SUPREME COURT REPORTS [2012] 5 S.C.R.
A of institution of a suit or other legal proceeding.
xx xx xx
In order that the people may feel assured that there
is an effective check against misuse or abuse of powers
B by the members of the armed forces it is necessary that a
complaint containing an allegation about misuse or abuse
of the powers confermd under the Central Act should be
thoroughly inquired ir.to and, if it is found that there is
substance in the allegation, the victim should be suitably
c compensated by the State and the requisite sanction under
Section 6 of the Central Act should be granted for
institution of prosecution and/or a civil suit or other
proceedings against the person/persons responsible for
such violation." (Emphasis added)
D
35. In Jamiruddin Ansari v. Central Bureau of
Investigation & Anr., (2009) 6 SCC 316, this Court while
dealing with the provision of Maharashtra Control of Organised
Crime Act, 1999 (hereinafter called as 'MCOCA') held that:
E "As indicated hereinabove, the provisions of Section 23
are the safeguards provided against the invocation of the
provisions of the Act which are extremely stringent and far
removed from the provisions of the general criminal law.
If, as submitted on bE!half of some of the respondents, it
F is accepted that a private complaint under Section 9(1) is
not subject to the rigours of Section 23, then the very
purpose of introducing such safeguards lose their very
raison d'etre. At the same time, since the filing of a private
complaint is also contemplated under Section 9(1) of
MCOCA, for it to be emtertained it has also to be subject
to the rigours of Section 23. Accordingly, in view of the bar
imposed under sub-section (2) of Section 23 of the Act,
the li:iarned Special Judge is precluded from taking
cognizance on a private complaint upon a separate inquiry
H under Section 156(3) CrPC. The bar of Section 23(2)
GENERAL OFFICER COMMANDING v. CBI AND 645
ANR. [DR. B.S. CHAUHAN, J.]
continues to remain in respect of complaints, either of a A
private nature or on a police report.
In order to give a harmonious construction to the
provisions of Section 9(1) and Section 23 of MCOCA,
upon receipt of such private complaint the learned Special B
Judge has to forward the same to the officer indicated in
clause (a) of sub-section (1) of Section 23 to have an
inquiry conducted into the complaint by a police officer
indicated in clause (b) of sub-section (1) and only
thereafter take cognizance of the offence complained of, C
if sanction is accorded to the Special Court to take
cognizance of such offence under sub-section (2) of
Section 23." (Emphasis added)
36. This Court in Harpa/ Singh v. State of Punjab, (2007)
13 SCC 387, while dealing with the provision of Section 20A(2) D
of the Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter called 'TADA') held as under:
"The important feature which is to be noted is that the
prosecution did not obtain sanction of the Inspector E
General of Police or of the Commissioner of Police for
prosecution of the appellant under TADA at any stage as
is required by Section 20-A(2) of TADA. The trial of the
appellant before the Designated Court proceeded without
the sanction of the Inspector General of Police or the
F
Commissioner of Police. In absence of previous sanction
the Designated Court had no jurisdiction to take
cognizance of the offence or to proceed with the trial of
the appellant under TADA".(Emphasis added)
37. In Rambhai Nathabhai Gadhvi & Ors. v. State of G
Gujarat, AIR 1997 SC 3475, this Court while dealing with the
same provisions of TADA, held that:
" ... Thus a valid s3nction is sine qua non for enabling
the prosecuting agency to approach the Court in order to H
646 SUPREME COURT REPORTS (2012] 5 S.C.R.
A enable the Court to take cognizance of the offence under
TADA as disclosed in the report. The corollary is that, if
them was no valid sanction the Designated Court gets no
jurisdiction to try a case against any person mentioned in
the report as the Court is forbidden from taking cognizance
B of the offence without such sanction. If the Designated
Court has taken cognizance of the offence without a valid
sanction, such action is without jurisdiction and any
proceedings adoptE~d thereunder will also be without
jurisdiction."
c 38 In State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, this
Court while dealing with the issue held as under:
"Use of the words "no" and "shall" makes it abundantly
clear that the bar on the exercise of power of the court to
D takEi cognizance of any offence is absolute and complete.
The very cognizance is barred. That is, the complaint
cannot be taken notice of. "(Emphasis added)
39. In broad and lite~ral sense 'cognizance' means taking
E notice of an offence as required under Section 190 Cr.P.C.
'Cognizance' indicates the point when the court first takes
judicial notice of an offence. The court not only applies its mind
to the contents of the complaint/police report, but also proceeds
in the manner as indicated in the subsequent provisions of
Chapter XIV of the Cr.P.C. (Vide: R.R. Chari v. The State of
F Uttar Pradesh, AIR 1951 SC 207; and State of WB. & Anr. v.
Mohd. Khalid & Ors., (1995) 1 SCC 684).
40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh
& Anr., AIR 2012 SC 1185, this Court dealt with the issue
G elaborately and explained the meaning of the word 'cognizance'
as under:
"In legal parlance cognizance is 'taking judicial notice by
the court of law', possessing jurisdiction, on a cause or
matter presented b1~fore it so as to decide whether there
H
GENERAL OFFICER COMMANDING v. CBI AND 647
ANR. [DR. S.S. CHAUHAN, J.]
is any basis for initiating proceedings and determination A
of the cause or matter judicially." (Emphasis added)
(See also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4
SCALE 191)
41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) B
6 SCC 372, this Court explained the meaning of the term 'the
very cognizance is barred' as that the complaint cannot be taken
notice of or jurisdiction or exercise of jurisdiction or power to
try and determine causes. In common parlance, it means taking
notice of. The court, therefore, is precluded from entertaining C
a complaint or exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have been
committed during discharge of his official duty.
42. The relevant provisions in the Cr.P.C. read as under: D
"45(1)- Notwithstanding anything contained in Sections 41
to 44 (both inclusive), no member of the Armed Forces of
the Union shall be arrested for anything done or purported
to be done by him in the discharge of his official duties
except after obtaining the consent of the Central E
Government.
197(2)- No Court shall take cognizance of any offence
alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to F
act in the discharge of his official duty, except with the
previous sanction of the Central Government."
Section 7 of the Act 1990, puts an embargo on the
complainant/investigating agency/person aggrieved to file a G
suit, prosecution etc. in respect of anything done or purported
to be done by a Army personnel, in good faith, in exercise of
power conferred by the Act, except with the previous sanction
of the Central Government.
43. Three expressions i.e. 'except', 'good faith' and H
648 SUPREME COURT REPORTS [2012] 5 S.C.R.
A 'purported' contained in the aforesaid provision require
clarification/elaboration.
(i) Except:
To leave or take out: exclude; omit; save
B
Not including; unless. The word has also been construed
to mean until.
Exception - Act of excepting or excluding from a number
designated or from a description; that which is excepted
c or s13parated from others in a general rule of description;
a pEHson, thing, or case specified as distinct or not
included; an act of 1excepting, omitting from mention or
leaving out of consideration.
D (ii) Purport :
Purport means to present, especially deliberately, the
appearance of being; profess or claim, often falsely. It
means to convey, imply, signify or profess outwardly, often
E falsely. In other words it means to claim (to be a certain
thing, etc.) by manner or appearance; intent to show; to
mean; to intend.
Purport also means 'alleged'.
F 'Purporting' - When power is given to do something
'purporting' to have a certain effect, it will seem to prevent
objections being urg13d against the validity of the act which
might otherwise be raised. Thus when validity is given to
anything 'purporting' to be done in pursuance of a power,
G a thing done under iit may have validity though done at a
time when the power would not be really exercisable.
(Dicker v. Angerstein, 3 Ch D 600)
'Purporting to be done' - There must be something in
the nature of the act that attaches it to his official character.
H
GENERAL OFFICER COMMANDING v. CBI AND 649
ANR. [DR. B.S. CHAUHAN, J.]
Even if the act is not justified or authorised by law, he will A
still be purporting to act in the execution of his duty if he
acts on a mistaken view of it."
So it means that something is deficient or amiss:
everything is not as it is intended to be.
B
In Azimunnissa and Ors. v. The Deputy Custodian,
Evacuee Properties, District Deoria and Ors. AIR 1961 SC
365, Constitution Bench of this court held:
"The word 'purport' has many shades of meaning. It means c
fictitious, what appears on the face of the instrument; the
apparent and not the legal import and therefore any act
which purports to be done in exercise of a power is to be
deemed to be done within that power notwithstanding that
the power is not exercisable ..... Purporting is therefore D
indicative of what appears on the face of it or is apparent
even though in law it may not be so." (Emphasis added)
(See also: Haji Siddik Haji Umar & Ors. v. Union of India, AIR
1983 SC 259).
E
(iii) GOOD FAITH:
44. A public servant is under a moral and legal obligation
to perform his duty with truth, honesty, honour, loyality and faith
etc. He is to perform his duty according to the expectation of F
the office and the nature of the post for the reason that he is to
have a respectful obedience to the law and authority in order
to accomplish the duty assigned to him. Good faith has been
defined in Section 3(22) of the General Clauses Act, 1897, to
mean a thing which is, in fact, done honestly, whether it is done G
negligently or not. Anything done with due care and attention,
which is not malafide, is presumed to have been done in good
faith. There should not be personal ill-will or malice, no intention
to malign and scandalize. Good faith and public good are
though the question of fact, it required to be proved by adducing
H
650 SUPREME COURT REPORTS' [2012] 5 S.C.R.
A evidence. (Vide: Madhavrao Narayanrao Patwardhan v. Ram
Krishna Govind Bhanu & Ors., AIR 1958 SC 767; Madhav
Rao Scindia Bahadur Etc. v. Union of India & Anr., AIR 1971
SC 530; Sewakram Sobhani v. R.K. Karanjiya, Chief Editor,
Weekly Blitz & Ors., AIR 1H81 SC 1514; Vijay Kumar Rampa/
B & Ors. v. Diwan Devi & Ors., AIR 1985 SC 1669; Deena
(Dead) through Lrs. v. Bharat Singh (Dead) through LRs. &
Ors., (2002) 6 SCC 336; and Goondla Venkateshwar/u v.
State of Andhra Pradesh ~~ Anr., (2008) 9 SCC 613).
C In Brijendra Singh v. State of U.P. & Ors., AIR 1981 SC
636, this Court while dealing with the issue held:
" ..... The expression has several shades of meanings. In
the popular sense, the phrase 'in good faith' simply means
"honestly, without fraud, collusion, or deceit; really, actually,
D without pretence and without intent to assist or act in
furtherance of a fraudulent or otherwise unlawful scheme".
(See \'\lords and Phrases, Permanent Edition, Vol. 18A,
page 91). Although the meaning of "good faith" may vary
in the context of different statutes, subjects and situations,
E honest intent free from taint of fraud or fraudulent design,
is a constant element of its connotation. Even so, the
quality and quantity of the honesty requisite for constituting
'good faith' is condition1ed by the context and object of the
statute in which this term is employed. It is a cardinal
canon of construction that an expression which has no
F
uniform, precisely fixed meaning, takes its colour, light and
content from the context."
45. For the aforesaid q1Jalities attached to a duty one can
attempt to decipher it from a private act which can be secret
G or mysterious. An authorised act or duty is official and is in
connection with authority. Thus, it cannot afford to be something
hidden or non-transparent unless such a duty is protected under
some law like the Official S1ecrets Act.
H 46. Pe1formance of duty acting in good faith either done
GENERAL OFFICER COMMANDING v. CBI AND 651
ANR. [DR. B.S. CHAUHAN, J.]
or purported to be done in the exercise of the powers conferred A
under the relevant provisions can be protected under the
immunity clause or not, is the issue raised. The first point that
has to be kept in mind is that such a issue raised would be
dependent on the facts of each case and cannot be a subject
matter of any hypothesis, the reason being, such cases relate B
to initiation of criminal prosecution against a public official who
has done or has purported to do something in exercise of the
powers conferred under a statutory provision. The facts of each
case are, therefore, necessary to constitute the ingredients of
an official act. The act has to be official and not private as it c
has to be distinguished from the manner in which it has been
administered or performed.
47. Then comes the issue of such a duty being performed
in good faith. 'Good faith' means that which is founded on
genuine belief and commands a loyal performance. The act D
which proceeds on reliable authority and accepted as truthful
is said to be in good faith. It is the opposite of the intention to
deceive. A duty performed in good faith is to fulfil a trust
reposed in an official and which bears an allegiance to the
superior authority. Such a duty should be honest in intention, E
and sincere in professional execution. It is on the basis of such
an assessment that an act can be presumed to be in good faith
for which while judging a case the entire material on record has
to be assessed.
F
48. The allegations which are generally made are, that the
act was not traceable to any lawful discharge of duty. That by
itself would not be sufficient to conclude that the duty was
performed in bad faith. It is for this reason that the immunity
clause is contained in statutory provisions conferring powers G
on law enforcing authorities. This is to protect them on the
presumption that acts performed in good faith are free from
malice or illwill. The immunity is a kind of freedom conferred
on the authority in the form of an exemption while performing
or discharging official duties and responsibilities. The act or the H
652 SUPREME COURT REPORTS [2012] 5 S.C.R.
A duty so performed are such for which an official stands excused
by reason of his office or post.
49. It is for this reason that the assessment of a complaint
or the facts necessary to grant sanction against immunity that
the chain of events has to be looked into to find out as to
8
whether the act is dutiful and in good faith and not maliciously
motivated. It is the intention to act which is important.
50. A sudden decision to do something under authority or
the purported exercise of such authority may not necessarily be
C predetermined except for the purpose for which the official
proceeds to accomplish. For example, while conducting a raid
an official may not have the apprehension of being attacked
but while performing his official duty he has to face such a
situation at the hands of criminals and unscrupulous persons.
D The official may in his defence perform a duty which can be on
account of some miscalculation or wrong information but such
a duty cannot be labelled as an act in bad faith unless it is
demonstrated by positive material in particular that the act was
tainted by personal motives and was not connected with the
E discharge of any official duty. Thus, an act which may appear
to be wrong or a decision which may appear to be incorrect is
not necessarily a malicious act or decision. The presumption
of good faith therefore can be dislodged only by cogent and
clinching material and so long as such a conclusion is not drawn,
F a duty in good faith should be presumed to have been done or
purported to have been done in exercise of the powers
conferred under the statute.
51. There has to bi~ material to attribute or impute an
unreasonable motive behind an act to take away the immunity
G clause. 11: is for this reason that when the authority empowered
to grant sanction is proceeding to exercise its discretion, it has
to take into account tile material facts of the incident
complained of before passing an order of granting sanction or
else official duty would always be in peril even if performed
H bonafidely and genuinely.
GENERAL OFFICER COMMANDING v. CBI AND 653
ANR. [DR. B.S. CHAUHAN, J.]
52. It is in the aforesaid background that we wish to record A
that the protection and immunity granted to an official particularly
in provisions of the Act 1990 or like Acts has to be widely
construed in order to assess the act complained of. This would
also include the assessment of cases like mistaken identities
or an act performed on the basis of a genuine suspicion. We B
are therefore of the view that such immunity clauses have to
be interpreted with wide discretionary powers to the sanctioning
authority in order to uphold the official discharge of duties in
good faith and a sanction therefore has to be issued only on
the basis of a sound objective assessment and not otherwise. c
53. Use of words like 'No' and 'shall' in Section 7 of the
Act 1990 denotes the mandatory requirement of obtaining prior
sanction of the Central Government before institution of the
prosecution, suit or legal proceedings. From the conjoint
reading of Section 197(2) Cr.P.C. and Section 7 of the Act D
1990, it is clear that prior sanction is a condition precedent
before institution of any of the aforesaid legal proceedings.
54. To understand the complicacy of the issue involved
herein, it will be useful to compare the relevant provisions of E
different statutes requiring previous sanction.
CRIMINAL PREVENTION OF ARMED
PROCEDURE CORRUPTION ACT, FORCES
CODE, 1973 1988 (SPECIAL
POWERS) ACT, F
1990
197. Prosecution of 19. Previous sanction 7. Protection to
Judges and Public necessary for persons acting
servants.- (1) When prosecution.- (1) No under Act.- No
any person who is or court shall take prosecution, suit
was a Judge or cognizance of an offence or other legal G
Magistrate or a public punishable under proceeding shall
servant not removable Sections 7, 10, 11, 13 and be instituted,
from his office save by 15 alleged to have been except with the
or with the sanction of committed by a public previous sanction
the Government is servant, except with the of the Central
previous sanction. G 0 v er n m en t, H
-- -----~--------~----~
654 SUPREME COURT REPORTS [2012) 5 S.C.R.
A accused of any offence (a) in the case of a against any
alleged to have been person who is person in
committed by him while employed in respect of
acting or purporting to connection with the anything done or
act in the discharge of affairs of the Union purported to be
B his official duty, no Court and is not removable done in exercise
shall tak1= cognizance of from his office save by of the powers
such offence except or with the sanction of conferred by this
with the previous the Central Act.
sanction. Government, of that .................... .
Government.
c
Thus, it is evident from the aforesaid comparative chart that
under the provisions of Cr.P.C. and Prevention of Corruption
Act, it is the court which is restrained to take cognizance without
0
previous sanction of the' competent authority. Under the Act
1990, the investigating aigency/complainanUperson aggrieved
is restrained to institute the criminal proceedings; suit or other
legal proceedings. Thus, there is a marked distinction in the
statutory provisions under the Act 1990, which are of much
E wider magnitude and are required to be enforced strictly.
55. Thus, in view of the above, the law on the issue of
sanction can be summarised to the effect that the question of
sanction is of paramount importance for protecting a public
F servant who has acted in good faith while performing his duty.
In order that the public servant may not be unnecessarily
harassed on a complaint of an unscrupulous person, it is
obligatory on the part of the executive authority to protect him.
However, there must be a discernible connection between the
G act complained of and the powers and duties of the public
servant. The act complained of may fall within the description
of the action purported to have been done in performing the
official duty. Therefore, if the alleged act or omission of the
public servant can be shown to have reasonable connection
H inter-relationship or inseparably connected with discharge of his
GENERAL OFFICER COMMANDING v. CBI AND 655
ANR. [DR. B.S. CHAUHAN, J.]
duty, he becomes entitled for protection of sanction. If the law A
requires sanction, and the court proceeds against a public
servant without sanction, the public servant has a right to raise
the issue of jurisdiction as the entire action may be rendered
void ab-initio for want of sanction. Sanction can be obtained
even during the course of trial depending upon the facts of an B
individual case and particularly at what stage of proceedings,
requirement of sanction has surfaced. The question as to
whether the act complained of, is done in performance of duty
or in purported performance of duty, is to be determined by the
competent authority and not by the court. The Legjslature has c
conferred "absolute power" on the statutory authority to accord
sanction or withhold the same and the court has no role in this
subject. In such a situation the court would not proceed without
sanction of the competent statutory authority
56. The present case stands squarely covered by the ratio D
of the judgments of this Court in Matajog Dobey (Supra) and
Sankaran Moitra (Supra). Thus, we have no hesitation to hold
that sanction of the Central Government is required in the facts
and circumstances of the case and the court concerned lacks
jurisdiction to take cognizance unless sanction is granted by the "E
Central Government.
57. The CJM Court gave option to the higher authorities
of the Army to choose whether the trial be held by the court-
martial or by the criminal court as required under Section 125 F
of the Army Act. Mr. P.P. Malhotra, learned ASG, has submitted
the original file of the Army Authorities before the court, File
notings reveal their decision that in case it is decided by this
Court that sanction is required and the Central Government
accords sanction, option would be availed at that stage.
G
58. Military Authority may ask the criminal court dealing
with the case that the accused would be tried by the court-
martial in view of the provisions of Section 125 of the Army Act.
However, the option given by the Authority is not final in view
of the provisions of Section 126 of the Army Act. Criminal court H
656 SUPREME COURT REPORTS [2012] 5 S.C.R.
A having jurisdiction to try the! offender may require the competent
military officer to deliver the offender to the Magistrate
concerned to be proceeded according to law or to postpone
the proceedings pending n:lference to the Central Government,
if that criminal court is of the opinion that proceedings be
B instituted before itself in respect of that offence. Thus, in case
the criminal court makes such a request, the Military Officer
either has to comply with it or to make a reference to the Central
Govt. whose orders would be final with respect to the venue of
the trial. Therefore, the discretion exercised by the Military
c Officer is subject to the control of the Central Govt. Such matter
is being governed by the provisions of Section 475 Cr.P.C.
read with the provisions of the J & K Criminal Courts and court-
martial (Adjustment of Juri1sdiction) Rules, 1983.
Rule 6 of the said Rules, 1983, provides that in case the
D accused has been handed over to the Army authorities to be
tried by a court-martial, the proceedings of the criminal court
shall remain stayed. Rule i 7 thereof, further provides that when
an accused has been delivered by the criminal court to the
Army authorities, the authority concerned shall inform the
E criminal court whether the accused has been tried by a court-
martial or other effectual proceedings have been taken or
ordered to be taken against him. If the Magistrate is informed
that the accused has not been tried or other effectual
proceedings have not been taken, the Magistrate shall report
F the circumstances to the State Government which may, in
consultation with the Central Government, take appropriate
steps to ensure that the accused person is dealt with in
accordance with law.
G 59. Constitution Bench of this Court in Som Datt Datta v.
Union of India & Ors., AIR 1969 SC 414, held that option as
to whether the accused be tried by a criminal court or court-
martial could be exercised after the police has completed the
investigation and submitted the chargesheet. Therefore, for
making such an option, the Army Authorities do not have to wait
H
GENERAL OFFICER COMMANDING v. CBI AND 657
ANR. [DR. B.S. CHAUHAN, J.]
till the criminal court takes cognizance of the offence or frames A
the charges, which commences the trial.
60. In Delhi Special Police Establishment, New Delhi v.
Lt. Col. S.K. Loraiya, AIR 1972 SC 2548, a similar view has
been reiterated by this Court observing that relevant Rules
8
require that an option be given as to whether the accused be
tried by a court-martial or by ordinary criminal cqurt. The
Magistrate has to give notice to the Commanding Officer and
is not to make any order of conviction or acquittal or frame
charges or commit the accused until the expiry of 7 days from C
the service of notice.
61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1
SCC 90, this Court dealt with the provisions of the Air Force
Act, 1950; provisions of Cr.P.C. and criminal court and court-
martial {Adjustment of Jurisdiction) Rules, 1952 and reiterated D
the same view relying upon its earlier judgment in Ram Sarup
v. Union of India & Anr., AIR 1965 SC 247, wherein it has
been held that there could be variety of circumstances which
may influence the justification as to whether the offender be tried
by a court-martial or by criminal court, and therefore, it becomes E
inevitable that the discretion to make such a choice be left to
the Military Officers. Military Officer is to be guided by
considerations of the exigencies of the service, maintenance
of discipline in the Army, speedier trial, the nature of the offence
and the persons against whom the offence is committed. F
62. Thus, the law on the issue is clear that under Section
125 of the Army Act, the stage of making option to try an
accused by a court-martial and not by the criminal court is after
filing of the chargesheet and before taking cognizance or
framing of the charges. G
63. A question has further been raised by learned counsel
for the appellant that the Act 1990 is a special Act and Section
7 thereof, provides fu!I protection to the persons who are subject
to the Army Act from any kind of suit, prosecution and legal H
658 SUPREME COURT REPORTS (2012] 5 S.C.R.
A proceedings unless the sanction of the Central Government is
obtained . Thus, in such a fact-situation, even if the
Commanding Officer exercises his discretion and opts that the
accused would be tried by the court-martial, the proceedings
of court-martial cannot be! taken unless the Central Government
B accords sanction.
64. Learned counsel for the CBI and interveners have
opposed the submission contending that in case the accused
are tried in the court-ma1tial, sanction is not required at all. The
provisions of the Act 19BO would apply in consonance with the
C provisions of the Army Act. Section 7 of the Act 1990 does not
contain non-obstante clause. Therefore, once the option is
made that accused is to be tried by a court-martial, further
proceedings would be in accordance with the provisions of
Section 70 of the Army Act and for that purpose, sanction of
D the Central Government is not required. The court-martial has
been defined under Seiction 3(Vll) of the Army Act which is
definitely different from the suit and prosecution as explained
hereinabove, and has not been referred to in the Act 1990.
E 65. Undoubtedly, the court-martial proceedings are akin to
criminal prosecution and this fact has been dealt with
elaborately by this Court in Union of India & Ors. v. Major A.
Hussain, AIR 1998 SC 577. However, once the matter stands
transferred to the Army for conducting a court-martial, the court-
F martial has to be as pier the provisions of the Army Act. The
Army Act does not provide for sanction of the Central
Government. Thus, we do not find any force in the contention
raised by the appellant and the same is rejected.
66. Sum up:
G
(i) The conjoint reading of the relevant statutory
provisions and rules make it clear that the term
"institution" contained in Section 7 of the Act 1990
means taking cognizance of the offence and not
H
GENERAL OFFICER COMMANDING v. CBI AND 659
ANR. [DR. B.S. CHAUHAN, J.]
mere presentation of the chargesheet by the A
investigating agency.
(ii) The competent Army Authority has to exercise his
discretion to opt as to whether the trial would be by
a court-martial or criminal court after filing of the
B
chargesheet and not after the cognizance of the
offence is taken by the court.
(iii) Facts of this case require sanction of the Central
Government to proceed with the criminal
prosecution/trial. c
(iv) In case option is made to try the accused by a
court-martial, sanction of the Central Government is
not required.
67. In view of the above, the appeals stand disposed of D
with the following directions:
I. The competent authority in the Army shall take a
decision within a period of eight weeks from today
as to whether the trial would be by the criminal court E
or by a court-martial and communicate the same to
the Chief Judicial Magistrate concerned
immediately thereafter.
II. In case the option is made to try the case by a F
court-martial, the said proceedings would
commence immediately and would be concluded
strictly in accordance with law expeditiously.
Ill. In case the option is made that the accused would
be tried by the criminal court, the CBI shall make G
an application to the Central Government for grant
of sanction within four weeks from the receipt of
such option and in case such an application is filed,
H
660 SUPREME COURT REPORTS [2012] 5 S.C.R.
A the Central Government shall take a final decision
on the said application within a period of three
months from the date of receipt of such an
application.
IV. In case sanction is granted by the Central
B
Government, the~ criminal court shall proceed with
the trial and coni:::lude the same expeditiously.
D.G. Appeals disposed of.
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