Supreme Court of India
OM PRAKASH YADAVversusNIRANJAN KUMAR UPADHYAY & ORS.
- Citation
- [2024] 12 S.C.R. 777
- Decided
- 13 December 2024
- Disposal
- Appeal(s) allowed
- Bench
- B PARDIWALA
Holding
The CJM was entitled to take cognizance of the charge sheets; sanction under Section 197 was not required for respondent no.1 and may be required for respondents 3, 4 and 5 depending on the evidence, rendering the High Court's quashing order erroneous.
Summary
The appellant lodged an FIR alleging that his brother was murdered in Firozabad and that a separate FIR was falsely registered in Gwalior to provide an alibi for the main accused. The High Court quashed the criminal proceedings against several police officials, holding that sanction under Section 197 of the CrPC was required. The Supreme Court examined whether the CJM could take cognizance of the charge sheets without such sanction and whether the acts alleged were done while acting or purporting to act in discharge of official duty. It held that a police officer cannot claim protection under Section 197 for filing a bogus case, and that respondent no.1 was not even posted at the relevant police station, so no sanction was needed for him. For respondents 3, 4 and 5, the Court said the question of sanction remains open and must be decided by the trial court if evidence shows the acts were done in official capacity. Consequently, the High Court's order was set aside and the trial was directed to proceed.
Issues considered
- Whether the Chief Judicial Magistrate, Firozabad could take cognizance of the charge sheets against the respondents in the absence of a sanction under Section 197 CrPC.
- Whether the offences alleged against respondents 1, 3, 4 and 5 were committed while acting or purporting to act in the discharge of official duty.
Legislation cited
- Code of Criminal Procedure, 1898
- Code of Criminal Procedure, 1973s. 197
- Evidence Act, 1872
- Indian Penal Code, 1860s. 120-B, s. 147, s. 148, s. 149, s. 201, s. 302, s. 307
- Madhya Pradesh Excise Act, 1915s. 34
Headnote
Issue for Consideration Issue arose as regards whether in the absence of the grant of sanction for prosecution u/s.197 CrPC, the CJM, Firozabad could have taken cognizance of the charge sheets against the respondents; and whether the offence or the act alleged to have been committed by said to have been done while acting or purporting to act in the discharge of official duty. Headnotes† Code of Criminal Procedure, 1973 – s.197 – Prosecution of Judges and public servants – Incident of indiscriminate firing by eight persons including main accused at
Subjects
Absence of grant of sanction for prosecution u/s.197 CrPCWhile acting or purporting to act in the discharge of official dutySupplementary charge sheetsHatching conspiracy of murderQuashing the proceedingsSanction to prosecuteReasonable or rational nexusNecessity of sanctionExpression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of official duty” in s.197Sanction for prosecutionBogus FIRMalafide prosecutionAct integrally connected with official dutiesActs done under color of officeWhere sanction not requiredDereliction of official dutyMisuse of authoritySanction not sine qua non for criminal proceedings
Judgment
[2024] 12 S.C.R. 777 : 2024 INSC 979
Om Prakash Yadav
v.
Niranjan Kumar Upadhyay & Ors.
(Criminal Appeal No(s). 5267-5268 of 2024)
13 December 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Issue arose as regards whether in the absence of the grant
of sanction for prosecution u/s.197 CrPC, the CJM, Firozabad
could have taken cognizance of the charge sheets against the
respondents; and whether the offence or the act alleged to have
been committed by the respondents could be said to have been
done while acting or purporting to act in the discharge of official
duty.
Headnotes†
Code of Criminal Procedure, 1973 – s.197 – Prosecution of
Judges and public servants – Incident of indiscriminate firing
by eight persons including main accused at Firozabad resulting
in death of the brother of the appellant and grievous injuries
to brother's son – FIR by appellant – On the same day, another
FIR registered against the main accused by respondent no.
5-head constable for carrying bottles of illegal foreign liquor
at Gwalior – Respondent no.5, alongwith respondent no.
3-Head Constable and respondent no. 4-A.S.I. arrested the
accused and released him on bail the same day – Chargesheet
submitted by IO – Chargesheet also submitted in the first FIR
stating that investigation was still pending against respondent
no. 1, Town Inspector, respondent nos. 3, 4, 5 for shielding
the accused – Thereafter, application by IO for staying the
proceedings against the accused as regards illegal liquor case
alleging that respondent no. 1 was a relative of the accused
and respondent nos. 3, 4, 5 had conspired to create a bogus
case with the object of providing the main accused with an alibi
for alleged crime committed at Firozabad which was rejected –
Application by IO seeking sanction u/s.197 for prosecuting the
respondents – Sanction could not be granted till the disposal
* Author
778 [2024] 12 S.C.R.
Supreme Court Reports
of the trial in case arising out of FIR in Gwalior – Appellant
sought quashing of criminal proceedings in the case regarding
seizure of illegal liquor – High Court stayed the proceedings –
Supplementary charge sheets filed against respondents
for being involved in hatching conspiracy of murder of the
appellant's brother and CJM took cognizance – Respondents
then filed application seeking quashing the proceedings arising
out of the supplementary charge sheets – High Court quashed
the proceedings on the ground that sanction to prosecute
respondents u/s.197 was necessary – Correctness:
Held: When a police official is said to have lodged a false case, he
cannot claim that sanction for prosecution u/s. 197 was required
since it can be no part of the official duty of a public official to
lodge a bogus case and fabricate evidence or documents in
connection with the same – There exists no reasonable or rational
nexus between such an act and the duties assigned to the public
servant for the claim that it was done or purported to be done in
the discharge of his official duty – Mere fact that an opportunity
to register a false case was furnished by the official duty would
certainly not be sufficient to apply s. 197 – Allowing so, would enable
the accused to use their status as public servants as a facade for
doing an objectionable, illegal and unlawful act and take undue
advantage of their position – If case registered in Gwalior was a
false case then refusal to grant sanction would not operate as a
bar for their prosecution – Moreover, the respondent no. 1 was
not even posted as the S.H.O or T.I at the Police Station when
the said false case was registered – Respondent no. 1 himself
admitted that he was in fact posted at District, 120 kms away
from Gwalior during the relevant time – Thus, any act or offence
committed by the respondent no. 1 can safely be said to have been
outside the scope of his official duty which obviates the question
of sanction for his prosecution – Requirement of sanction is one
that may arise at any stage of the proceeding – No requirement of
sanction for respondent no. 1 as he was not posted at the Police
station in Gwalior at the relevant time where the alleged false was
registered – For respondent nos 3, 4, 5 if the prosecution case
is correct that they also played dubious role in registering a false
case, then the requirement of sanction would not be a sin qua non
for proceeding further with the criminal proceedings – However,
the defence must be given an opportunity to rebut the same by
leading appropriate evidence – Criminal proceedings pending
before the CJM, Firozabad should not have been quashed at such
[2024] 12 S.C.R. 779
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
a preliminary stage – CJM, Firozabad rightly took cognizance of
the charge sheets – High Court erred in considering this aspect
while quashing the proceedings – Trial court directed to proceed
with the trial and at any stage of trial if evidence suggests that the
acts complained of were indeed done or purported to be done in
the discharge of official duty by respondent nos. 3, 4 and 5 or that
the FIR registered by them was not bogus, the trial may be stayed
for want of sanction – Thus, the question of sanction only qua
respondent nos. 3, 4 and 5 left open to be appropriately decided
by the trial court at a suitable stage – Impugned order passed by
the High Court set aside. [Paras 67, 75-86]
Code of Criminal Procedure, 1973 – s.197 – Object behind
enactment of s.197 – Construction of expression “any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty”
in s.197 – Tests for applicability of s. 197 – Explained.
[Paras 40-66, 68-74]
Case Law Cited
Dr. Hori Ram Singh v. The Crown, AIR 1939 FC 43; Gill and Another
v. The King, AIR 1948 PC 128; Albert West Meads v. The King,
AIR 1948 PC 156; Shreekantiah Ramayya Munipalli v. State of
Bombay [1955] 1 SCR 1177 : (1954) 2 SCC 992; Amrik Singh v.
State of Pepsu [1955] 1 SCR 1302 : AIR 1955 SC 309; Matajog
Dobey v. H.C. Bhari [1955] 2 SCR 925 : AIR 1956 SC 44; Dhannjay
Ram Sharma v. M.S. Uppadaya and Others, AIR 1960 SC 745; P.
Arulswami v. State [1967] 1 SCR 201; Harihar Prasad Etc. v. State
of Bihar (1972) 3 SCC 89; B. Saha and Others v. M.S. Kochar
[1980] 1 SCR 111 : (1979) 4 SCC 177; State of Maharashtra v.
Dr. Budhikota Subbarao [1993] 2 SCR 300 : (1993) 3 SCC 339;
R. Balakrishna Pillai v. State of Kerala and Another [1995] Supp.
6 SCR 236 : (1996) 1 SCC 478; Shambhoo Nath Misra v. State
of U.P. and Others [1997] 2 SCR 1139 : (1997) 5 SCC 326; State
of Orissa and Others v. Ganesh Chandra Jew [2004] 3 SCR 504 :
(2004) 8 SCC 40; S.K. Zutshi and Another v. Bimal Debnath and
Another [2004] Supp. 3 SCR 400 : (2004) 8 SCC 31; K. Kalimuthu
v. State [2005] 3 SCR 1 : (2005) 4 SCC 512; Sankaran Moitra
v. Sadhna Das and Another [2006] 3 SCR 305 : (2006) 4 SCC
584; Choudhury Parveen Sultana v. State of West Bengal and
Another [2009] 1 SCR 99 : (2009) 3 SCC 398; Urmila Devi v.
780 [2024] 12 S.C.R.
Supreme Court Reports
Yudhvir Singh [2013] 16 SCR 542 : (2013) 15 SCC 624; Rajib
Ranjan v. R. Vijaykumar [2014] 10 SCR 982 : (2015) 1 SCC 513;
Inspector of Police and Another v. Battenapatla Venkata Ratnam
and Another [2015] 4 SCR 609 : (2015) 13 SCC 87; Surinderjit
Singh Mand and Another v. State of Punjab and Another [2016] 5
SCR 653 : (2016) 8 SCC 722; Pukhraj v. State of Rajasthan and
Another [1974] 1 SCR 559 : (1973) 2 SCC 701; State of Bihar v.
Kamla Prasad Singh and Others [1998] 3 SCR 201 : (1998) 5 SCC
690; Bakhshish Singh Brar v. Gurmej Kaur and Another [1988]
1 SCR 450 : (1987) 4 SCC 663; P.K. Pradhan v. State of Sikkim
[2001] 3 SCR 1119 : (2001) 6 SCC 704; Devinder Singh v. State
of Punjab [2016] 6 SCR 295 : (2016) 12 SCC 87; Parvat Singh
and Others v. State of Madhya Pradesh [2020] 2 SCR 964 : (2020)
4 SCC 33; Birbal Nath v. State of Rajasthan [2023] 14 SCR 85 :
2023 SCC OnLine SC 1396 – referred to.
List of Acts
Madhya Pradesh Excise Act, 1915; Government of India Act,
1935; Evidence Act, 1872; Penal Code, 1860; Code of Criminal
Procedure, 1898; Code of Criminal Procedure, 1973.
List of Keywords
Absence of grant of sanction for prosecution u/s.197 CrPC;
While acting or purporting to act in the discharge of official duty;
Supplementary charge sheets; Hatching conspiracy of murder;
Quashing the proceedings; Sanction to prosecute; Reasonable
or rational nexus; Necessity of sanction; Expression “any offence
alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty” in s.197; Sanction
for prosecution; Bogus FIR; Malafide prosecution; Act integrally
connected with official duties; Acts done under color of office;
Where sanction not required; Dereliction of official duty; Misuse
of authority; Sanction not sine qua non for criminal proceedings.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
5267-5268 of 2024
From the Judgment and Order dated 19.04.2018 of the High Court
of Judicature at Allahabad in APP Nos. 4080 and 32494 of 2009
[2024] 12 S.C.R. 781
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
Appearances for Parties
Ravindra Singh, Sr. Adv., Raman Yadav, Syed Mehdi Imam,
Ms. Akriti Chaturvedi, Priyam Kaushik, Vishesh Kumar Singh,
Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Sr. A.A.G., R. Basant, Devashish
Bharukha, Sr. Advs., Mayank Sapre, Yash Sharma, Aditya Pratap
Singh, Ujjwal Singh,. Vishnu Shankar Jain, Ms. Ananya Sahu,
Akshay Kumar, Mrs. Nanita Sharma, Vivek Sharma, Shailendra
Singh, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1. Leave granted.
2. These appeals arise out of the common Judgment and Order
passed by a learned Single Judge of the High Court of Judicature at
Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos.
4080 of 2009 and 32494 of 2009 respectively filed by the respondent
nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of
Criminal Procedure, 1973 (for short, the “CrPC”) whereby the High
Court allowed the applications and quashed the proceedings of
Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well
as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and
others) pending before the CJM, Firozabad, both arising out of Case
Crime No. 617 of 2007 registered for the offence punishable under
Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of
the Indian Penal Code, 1860 (for short, the “IPC”) with the Dakshin
Police Station, District Firozabad, Uttar Pradesh.
A. FACTUAL MATRIX
3. On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the
“appellant”) lodged a First Information Report (hereinafter, “FIR”)
as Case Crime No. 617 of 2007 for the offence punishable under
Sections 147, 148, 149, 302 and 307 of IPC respectively with the
Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender
Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay
782 [2024] 12 S.C.R.
Supreme Court Reports
Dixit and three others. The FIR alleged that the appellant’s brother,
Suman Prakash Yadav who was a teacher at the Tilak Inter College,
Firozabad, was killed and his brother’s son Harsh aged about
4½ years was grievously injured by the aforesaid accused persons
by indiscriminately firing with their handguns near the Suhagnagar
Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that
the incident was witnessed by him and several others.
4. On the same day, another FIR was registered as Case Crime No.
967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh,
for the offence punishable under Section 34 of the Madhya Pradesh
Excise Act, 1915 (hereinafter, the “Excise Act”) against Ashok
Dixit who is the main accused of Case Crime No. 617 of 2007.
The FIR which was lodged by Head Constable Ram Baran Singh
Yadav (hereinafter, “respondent no.5”) stated that based on the
information received from an informant while patrolling the area, the
accused Ashok Dixit was arrested for carrying 12 bottles of illegal
foreign liquor near the Thatipur Crossing. It was stated therein
that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar
(hereinafter, “respondent no. 4”) and Head Constable Vijay Bahadur
Singh (hereinafter, “respondent no. 3”) of the Thatipur Chauki,
Murar Police Station, had seized the illegal liquor and arrested the
accused at around 09:30 am on 12.10.2007. It was further added
that the accused, Ashok Dixit, was later released on bail by the
Station House Officer (hereinafter, “SHO”), D.S. Khushawa of the
Murar Police Station, on the same day, upon furnishing the necessary
surety since the offence under Section 34 of the Excise Act was
a bailable one. On 26.10.2007, the concerned IO is said to have
submitted a Charge Sheet in connection with Case Crime No. 967
of 2007 against Ashok Dixit before the Chief Judicial Magistrate
(hereinafter, “CJM”), Gwalior.
5. The Investigating Officer (hereinafter, “IO”) at Dakshin, Firozabad
undertook further investigation and recorded the statements of
several witnesses under Section 161 CrPC in connection with Case
Crime No. 617 of 2007. On 05.01.2008, the Charge Sheet No. 3 of
2008 was submitted before the CJM, Firozabad, against 12 persons
namely Ashok Dixit, Pappu Dixit, Sanjay Dixit, Surender Singh Gurjar,
Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu, Suresh,
Pancham, Rajesh and Devender. However, the charge sheet stated
that the investigation against Niranjan Kumar Upadhyay (hereinafter,
[2024] 12 S.C.R. 783
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
“respondent no. 1”), respondent no.3, respondent no. 4, respondent
no. 5 and two other individuals in regard to the FIR registered for
the offence under Section 34 of the Excise Act in Murar, Gwalior
allegedly for the purpose of shielding the accused, Ashok Dixit, was
still pending.
6. Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded
the statements of SHO D.S. Khushawa, respondent no. 3, respondent
no. 4 and respondent no. 5 respectively of the Murar Police Station,
Gwalior under Section 161 of CrPC.
7. Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad
moved an application before the CJM, Gwalior, Madhya Pradesh,
requesting that the proceedings in Case No. 15003 of 2007 relating
to the Case Crime No. 967 of 2007 under Section 34 of the Excise
Act filed against the accused Ashok Dixit, pending before him, be
stayed. The application alleged that the respondent no. 1 who was
posted in Gwalior as Town Inspector (for short, “TI”) was a relative of
the accused Ashok Dixit. It was further alleged that the respondent
nos. 1, 3, 4 and 5 respectively had conspired to shield the accused
from the offence of murder by creating a bogus case under Section
34 of the Excise Act with the sole object of providing the accused with
an alibi for the crime alleged to have been committed in Firozabad.
The incident in Firozabad occurred at 08:30 am while the incident in
Gwalior occurred at 09:30 am on the same day. The distance between
Gwalior and Firozabad being 160 kilometers, the same could not
have been covered in a duration of one hour by road. The application
stated that, since the accused, Ashok Dixit, might confess his guilt in
connection with the offence under Section 34 of the Excise Act with
a view to save himself from the offence of murder, the proceedings
in Case Crime No. 617 of 2007 pending before the CJM, Firozabad
might get adversely affected if the proceedings in Case No. 15003
of 2007 were allowed to be continued.
8. Upon due consideration of the aforesaid application, the CJM, Gwalior
vide its order dated 05.02.2008, directed the SHO of the Murar Police
Station, Gwalior, to furnish a report before the Court. On 12.02.2008,
the statements of respondent nos. 3, 4 and 5 respectively, were
recorded by the SHO of the Murar Police Station, Gwalior and an
enquiry report was furnished on 17.02.2008 before the CJM, Gwalior.
Upon perusal of the enquiry report, the CJM, Gwalior vide its order
784 [2024] 12 S.C.R.
Supreme Court Reports
dated 23.02.2008 rejected the application dated 20.01.2008 filed by
the IO at Dakshin, Firozabad, as being baseless.
9. On 14.04.2008, the IO at Dakshin, Firozabad filed an application
before the CJM, Firozabad for the issuance of non-bailable warrant
against the respondent nos. 1, 3, 4 and 5 respectively along with two
other persons. In pursuance of the said application, on 21.04.2008,
the CJM, Firozabad issued a non-bailable warrant against the
aforesaid 6 accused which included the respondent nos. 1, 3, 4 and
5 respectively, herein. However, it is the case of the IO at Firozabad
that the respondent nos. 1, 3, 4 and 5 were absconding and therefore,
proceedings under Sections 82 and 83 CrPC respectively were also
initiated and completed against them.
10. On 02.05.2008, the IO at Dakshin, Firozabad filed an application
before the D.I.G., Gwalior, Madhya Pradesh through the D.I.G.,
Agra, Uttar Pradesh, requesting sanction for prosecution of the
respondent nos. 1, 3, 4 and 5 respectively. Further, on 07.05.2008,
the Superintendent of Police, Firozabad, also sent a letter to the
D.I.G., Gwalior, requesting for the sanction for prosecution under
Section 197 CrPC so that the respondents could be charge-sheeted.
11. In the meantime, the respondent no.1 preferred Criminal Misc. Writ
Petition No. 10181 of 2008 before the High Court of Allahabad and
vide order dated 23.07.2008, the arrest of respondent no. 1 was
stayed.
12. On 30.07.2008, the Superintendent of Police, Firozabad, addressed
one another letter to the D.I.G., Gwalior in the form of a reminder
to accord sanction under Section 197 CrPC for prosecuting the
respondents herein. However, on 02.08.2008, the D.I.G., Gwalior
replied to the Superintendent of Police, Firozabad, informing him
that sanction for prosecution cannot be granted till the disposal of
the trial in connection with Case Crime No. 967 of 2007 registered
at the Murar Police Station, Gwalior for the offence under Section 34
of the Excise Act.
13. On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971
of 2008 under Section 482 CrPC before the High Court of Madhya
Pradesh at Gwalior for quashing the criminal proceedings concerning
Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007
registered for the offence under Section 34 of the Excise Act pending
before the Court of CJM, Gwalior. In the alternative, it was prayed
[2024] 12 S.C.R. 785
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
that the proceeding be stayed till a decision is arrived at in the case
pending against Ashok Dixit before the CJM, Firozabad, concerning
Case Crime No. 617 of 2007. The High Court vide its order dated
25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by
observing as follows:
“12. In the light of the above legal position, the Appellant
who is a complainant in the criminal case in connection
with Crime No.617 of 2007 registered against respondent
No.2 at Firozabad has locus standi to file this petition under
section 482 of Cr.P.C. Now legal aspect and circumstances
of the case is to be considered. Suppose for the sake of
argument, if respondent No.2 admits his guilt in the case
of Excise Act pending in the Court of CJM Gwalior what
will be its effect? He will have a good ground of alibi that
at the time of alleged murder of Appellant’s brother he
was not present at Firozabad but was present at Gwalior
which is 160 Kms. away from Firozabad. So it will cause
a great prejudice in that case and on the other hand, in
the interest of justice, if proceedings pending in the court
of CJM Gwalior are stayed, it will not cause any prejudice
to respondent No.2. Moreover, it will avoid conflicting
judgments of two Courts. Therefore, it is good case for
invoking inherent powers of the court.
13. Considering the facts and circumstances of the case,
petition is allowed and further proceedings pending in
the court of CJM Gwalior in connection with Excise. Act
pending in the CJM Gwalior concerning Case No.15003 of
2007 are hereby stayed till disposal of the Criminal Case
pending at Firozabad concerning Crime No.617 of 2007.”
(emphasis supplied)
14. After a period of almost one year, on 25.10.2008, the IO at Dakshin,
Firozabad recorded the statements of two persons i.e., Ramesh
Yadav and Barelal under Section 161 CrPC. Both stated that they
had witnessed the respondent no.1 being directly involved in the
creation of a false case under Section 34 of the Excise Act in order
to provide the accused Ashok Dixit the benefit of an alibi. Soon
thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of
2008 in case Crime No. 617 of 2007 was filed against the respondent
786 [2024] 12 S.C.R.
Supreme Court Reports
no. 1 for the offence punishable under Sections 147, 148, 149, 307,
302, 201 and 120-B IPC respectively for being involved in hatching
a conspiracy of murder that occurred in Firozabad. It was the case
of the IO at Firozabad that the Charge Sheet was filed since he had
found out that the respondent no. 1 was not posted at the Murar
Police Station, Gwalior at the time of the arrest of Ashok Dixit for
the offence under Section 34 of the Excise Act and therefore, the
provision of sanction under Section 197 CrPC would not be attracted
against the respondent no. 1. It is pertinent to observe here that it
is the case of the respondent no. 1 herein that the Charge Sheet
No. 3A of 2008 was backdated to 03.11.2008 when in fact it was
actually filed on 24.11.2008 before the Magistrate.
15. The mother of respondent no.1, while alleging that the appellant was
trying to falsely implicate the respondent no. 1 in the case of murder,
moved an application before the D.I.G., Firozabad, requesting that
the investigation be transferred from the Dakshin Police Station to
some other police station. The D.I.G., Firozabad vide order dated
11.11.2008 directed the Senior Superintendent of Police, Firozabad
(for short, “S.S.P.”) to look into the matter. Thereafter, the S.S.P.
called for a status report on the case from the Circle Officer vide
letter dated 14.11.2008. The status report submitted by the Circle
Officer revealed that while the respondent no.1 had obtained a stay
on his arrest from the High Court, the arrest of the other accused
remained pending and the investigation was still going on. Upon
consideration of the same, the S.S.P., Firozabad, vide order dated
20.11.2008 transferred the investigation from the Dakshin Police
Station to the Uttar Police Station at Firozabad, with immediate effect.
16. The CJM, Firozabad took cognizance of the Charge Sheet No. 3A
of 2008 vide order dated 24.11.2008. Immediately, on 28.01.2009,
the respondent no. 1 preferred Criminal Misc. Application No. 4080
of 2009 under Section 482 CrPC before the High Court of Allahabad
seeking to quash the proceedings in Case No. 67 of 2008 (State vs.
Niranjan Kumar Upadhyay) arising out of the above charge sheet in
Case Crime No. 617 of 2007, pending before the CJM, Firozabad.
17. Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was
filed in the case of the respondent nos. 3, 4 and 5 respectively for the
offence under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC
respectively for being involved in the conspiracy to commit murder
of the appellant’s brother at Firozabad. The CJM, Firozabad took
[2024] 12 S.C.R. 787
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
cognizance of the same vide order dated 10.08.2009. On 29.11.2009,
the respondent nos. 3, 4 and 5 respectively also preferred an
application being the Criminal Misc. Application No. 32494 of 2009
under Section 482 CrPC before the High Court of Allahabad seeking
to quash the proceedings of Case No. 67A of 2009 (State vs. Ram
Prakash Gunkar and Ors.) arising out of the said charge sheet in
Case Crime No. 617 of 2007 pending before the CJM, Firozabad.
18. During the pendency of the aforesaid two applications filed under
Section 482 CrPC before the High Court, the Court of Additional
District and Sessions Judge, Firozabad, completed the Sessions
Trial No. 753 and 753A of 2008 respectively and vide the judgment
& order dated 10.07.2015, held all the 12 accused, including Ashok
Dixit, guilty of the offences under Sections 147, 148, 149, 307,
302 and 120-B IPC with which they were charged. The relevant
observations made by the Trial Court are reproduced hereinbelow:
“…The “plea of alibi” taken by accused Ashok Dixit that
on the day of incident he was lodged in jail u/s 34, Excise
Act at P.S. Murar, district Gwalior was with the inconsistent
report of the Murar police officials and after investigation
I.O. has submitted its report to SSP, Gwalior and JM,
Gwalior and stated that the case was false. The above
mentioned police officials have been suspended after
conducting a departmental investigation also they have
been named for conspiring the death along with accused
Ashok Dixit in the charge sheet that has been presented
before CJM, Firozabad in which they have been charged
u/s 302, 120B I.P.C…
It is correct that the distance of 160 kilometres cannot be
covered in one hour and if accused Ashok Dixit was at
Murar, Gwalior at 9.30 a.m., then he cannot be involved in
the commission of incident at Firozabad at 8.30 a.m. It was
contended in this regard on behalf of the prosecution that
accused Ashok Dixit is a cunning criminal. He showed his
presence there colluding with Murar Police station, Gwalior
in order to escape himself from the offence of murder. The
investigator SHO Shri Baldhari Singh made enquiries after
going there, then the whole matter was found forged and
the investigator gave an application to SSP Gwalior in this
regard and also submitted an application before JM Gwalior
788 [2024] 12 S.C.R.
Supreme Court Reports
Madhya Pradesh and keeping the investigation in progress,
it was found that in order to save accused Ashok Dixit from
the heinous crime like murder, the forged arrest and his
release on bail has been shown by the police of Murar
police station. SSP Gwalior, on investigation, finding the
whole case forged, has suspended all the officials involved
in the said matter and initiated departmental inquiry against
them and after collecting the evidence in the said case, a
charge sheet has been filed in the court of CJM Firozabad
against the said police officials Niranjan Upadhyay, T.I.
Police Station Murar, Gwalior and Shailendra Singh and
Triloki Gaur and ASI P.P. Gunkar, Head constable Vijay
Bahadur and Head Constable. Rambaran Yadav under
Section 147, 148, 149, 307, 302, 201, 120B IPC with
regard to give cooperation in the conspiracy of murder
under Section 120B IPC. A case No. 67 A/2008 State
Versus Niranjan and others is pending in that regard in
the court of CJM Firozabad and the warrant of the arrest
of the accused persons have been issued. The said file
pending in the court of CJM was summoned on behalf of
the prosecution in this regard, which is available on the
file of the instant session trial which makes it clear that
accused Ashok Dixit has shown his presence at 9.30 a.m.
on the day of incident showing his arrest under Section 34
of Excise Act in order to escape from the case of murder
of Suman Prakash colluding with the police officials of
police station Murar, District Gwalior, Madhya Pradesh
which was found forged in the investigation and charge
sheet has been filed against the said police officials
involving them in the conspiracy of murder and in order
to save accused Ashok Dixit from punishment, the case
of the same is pending in the court of CJM, Firozabad
and warrant of arrest against all the police officials have
been issued and SSP Gwalior has suspended them and
departmental inquiry has been initiated against them. All
these police officials are absconding. Arrest warrants have
been issued against them by CJM Court, Firozabad. The,
copy of charge sheet of Case No.67 A/2008 State Versus
Niranjan and others pending in the court of CJM has
also been filed on record behalf of the prosecution. The
[2024] 12 S.C.R. 789
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
proceedings of case No.15003/2007 State Versus Ashok
Dixit under Section 34 of Excise Act, police Station Murar
pending before the CJM Court has been stayed by order
dated 25.08.2009 by the Hon’ble High Court, bench at
Gwalior passed in Misc. Case No.5971. The copy of the
order passed by the Hon’ble High court bench at Gwalior
is filed on record from 613B/25 to 613B/30. SLP has been
filed against the said order before the Hon’ble Supreme
court which was not admitted for hearing, the copy of the
same is filed on record at 613B/31, Therefore, no profit of
case under Section 34 of Excise Act cannot be given to
accused Ashok Dixit and his presence at Murar, District
Gwalior at the time of incident under the case of 34 Excise
Act has been found forged and the accused has made
a forged plea of alibi colluding with the police officials.”
(emphasis supplied)
19. The High Court at Allahabad heard the Criminal Misc. Writ Application
Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed
them vide the common Judgment and Order dated 19.04.2018. The
High Court quashed the proceedings in Case Nos. 67 of 2008 and
67A of 2009 respectively essentially on the ground that sanction
to prosecute the respondent nos. 1, 3, 4, and 5 respectively under
Section 197 CrPC was necessary & since it had not been obtained,
the trial cannot proceed. The relevant observations are reproduced
hereinbelow:
“Admittedly, the applicants are public servant and case
was registered under Section 34 Excise Act against main
accused of the murder in the discharge of public duty
but the sanction to prosecute for the offence committed
at Firozabad was not granted by the State of M.P. to
prosecute the applicants for the offence committed within
the jurisdiction of the Police Station, Dakhin at Firozabad
(U.P.) as is evident from the Annexure SA-I and SA-II to
the supplementary affidavit. In the above circumstances,
it ought not to be proper to allow the proceedings to
be continued against the applicants and in case, the
proceeding is allowed to continue against the applicants,
it would be nothing but misuse of process of law.
790 [2024] 12 S.C.R.
Supreme Court Reports
In view of what has been submitted and discussed above,
the applications have substance and are liable to be
allowed.
Accordingly, the applications are allowed and the
proceedings pending before CJM, Firozabad as Case No.
67 of 2008 (State Vs. Niranjan Kumar Upadhyay) as well
as Case No. 67A of 2009 (State Vs. Ram Prakash Gunkar
and others) in connected application arising out of Case
Crime No. 617 of 2007 under Sections 147, 148, 149, 307,
302, 201, 120B IPC, P.S. Dakshin, District Firozabad are
hereby quashed.”
(emphasis supplied)
20. In such circumstances referred to above, the appellant (complainant)
is here before this Court with the present appeal.
B. SUBMISSIONS ON BEHALF OF THE APPELLANT
21. Mr. Ravindra Singh, the learned senior counsel appearing for the
appellant submitted that the plea of Alibi which was taken by the
accused Ashok Dixit on the ground that his arrest in connection
with the offence under Section 34 of the Excise Act was effected on
12.10.2007, at 09:30 am, by the officials of the Murar Police Station,
Gwalior, Madhya Pradesh, has been appropriately considered by
the Trial Court at Firozabad in Sessions Trial No. 753 and 753A of
2008. However, the said plea of alibi was outrightly rejected by the
Trial Court by way of its well-reasoned judgment. The Trial Court
categorically observed that the accused Ashok Dixit in connivance
with the police officials of the Murar Police Station, Gwalior had
managed to get a false case registered under Case Crime No. 967
of 2007 related to Section 34 of the Excise Act. The Trial Court
had further observed that during the investigation, the presence
and arrest of Ashok Dixit in Murar, Gwalior was found to be false &
bogus and therefore, charge sheet came to be filed against those
police officials for acting in collusion with Ashok Dixit. Furthermore,
those police officials have also been suspended and a departmental
enquiry has been initiated against them. Therefore, it was submitted
that the respondent no. 1 cannot assert that he has been erroneously
implicated in Case Crime No. 617 of 2007 registered for the offence
[2024] 12 S.C.R. 791
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with
the Dakshin Police Station, Firozabad, Uttar Pradesh.
22. The counsel submitted that the High Court fell in serious error while
passing the impugned order. The High Court could be said to have
travelled beyond its jurisdiction by quashing the criminal proceedings
against the respondents on the ground that the Trial Court has already
decided the case against Ashok Dixit and the other accused. The
Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively
arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty
of the offence of murder of the appellant’s brother.
23. The counsel submitted that the High Court erroneously quashed the
criminal proceedings against the respondents saying that the accused
respondents being public servants, the sanction to prosecute for the
alleged offence is a must. It was submitted that the act of hatching a
conspiracy to commit murder and creating a plea of alibi by instituting
a false case, cannot be said to be done in the exercise of discharge
of official duty. It was further submitted that no sanction is required
under Section 197 CrPC to prosecute an erring Government official/
respondent no.1 herein for the reason that the respondent no. 1
was not posted at the Murar Police Station, Gwalior where the Case
Crime No. 967 of 2007 was registered.
24. It was also submitted that the respondent no. 1 had managed with
the police officials of the Murar Police Station, Gwalior, to get a false
FIR being Case Crime No. 967 of 2007 registered under Section 34
of the Excise Act and thereby falsely showed the presence of Ashok
Dixit at Murar, Gwalior on 12.10.2007 at 09:30 am i.e., on the same
day on which the Case Crime No. 617 of 2007 was registered at
the Dakshin Police Station, Firozabad in respect of the murder of
the appellant’s brother. Furthermore, the respondent no. 1 had also
influenced the other respondents to release a person under the
Excise Act from the Thatipur Chowki of the Murar Police Station
without producing the said person before the concerned court, in
order to save Ashok Dixit.
25. The learned counsel relied upon the Police statements of Ramesh
Yadav and Barelal dated 25.10.2008. They as independent witnesses
have categorically stated that while they were at Thatipur, Gwalior,
“Niranjan Upadhyay came out from car along with other person and
said that Ashok Dixit you do not worry, I will protect you from murder
792 [2024] 12 S.C.R.
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case but you follow me and starts roaming in Thatipur, Gwalior
along with 10-12 cartons of whisky….”. The same makes it clear
that the respondent no. 1 was also actively involved in the lodging
of a false FIR.
26. In such circumstances referred to above, the learned counsel
submitted that there being merit in his appeal, the same may be
allowed and the impugned order passed by the High Court be set
aside.
C. SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1
27. Mr. R. Basant, the learned senior counsel appearing for the respondent
no. 1 submitted that there is nothing to indicate that the respondent
no. 1 was directly or indirectly responsible for the registration of Case
Crime No. 967 of 2007 in any manner, since he was neither posted at
the Murar Police Station nor he had instructed any of the concerned
officials to register such an FIR. In fact, the respondent no. 1 was
posted at District Shivpuri which is 120 kms away from Gwalior at
the time of filing the Case Crime No. 967 of 2007 on 12.10.2007.
28. The counsel submitted that the respondent no. 1 had neither filed
the FIR in Case Crime No. 967 of 2007 at the Murar Police Station,
Gwalior nor was he associated with the said police station in any
manner. However, assuming without conceding that the said FIR was
registered at the behest of respondent no. 1, sanction for prosecution
with respect to Case Crime No. 617 of 2007 is required. It is an
admitted fact that sanction was refused by the D.I.G., Gwalior vide
its letter dated 02.08.2008.
29. The counsel further submitted that there are bleak chances of
conviction of the respondent no. 1 for the following reasons – (a) the
respondent no. 1 was not posted at the Murar Police Station, Gwalior
where the Case Crime No. 967 of 2007 was registered, (b) the
respondent no. 1 is 72 years old and no purpose would be served
if the respondent no. 1 was made to face trial at this stage when
the Case Crime No. 617 of 2007 was admittedly filed in the 2007,
(c) the Trial Court has already convicted all the accused including
Ashok Dixit by way of its judgment in 10.07.2015, (d) respondent
no. 1 has retired from Police service in 2015 and 9 years have
passed since then, (e) No departmental inquiry was initiated against
respondent no. 1 for the alleged act of registration of Case Crime
[2024] 12 S.C.R. 793
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
No. 967 of 2007 at the Murar Police Station, Gwalior, and (f) there
is nothing to indicate that the respondent no. 1 is related to the
accused Ashok Dixit.
30. The counsel submitted that the charge sheet should be read as a
whole and there exists no circumstance or evidence to warrant any
assumption of involvement of respondent no. 1 in connection with
Case Crime No. 617 of 2007 for the alleged offence of conspiracy
to commit murder. This is so because there are only two statements
of witnesses recorded under Section 161 CrPC and such statements
were recorded after a period of one year i.e., on 25.10.2008 from
the date of registration of case Crime No. 617 of 2007 i.e., on
12.10.2007. These two statements are the sole basis for instituting
a prosecution against the respondent ro. 1. Furthermore, the said
witnesses were not examined in the trial whereby the 12 accused
including Ashok Dixit stood convicted vide order dated 10.07.2015.
31. It was also submitted that there is a material contradiction in the
case of the prosecution. The statements of the two witnesses i.e.,
Ramesh and Barelal suggest that the respondent no. 1 was seen
with Ashok Dixit in Gwalior since they had verbatim deposed that
they had heard respondent no. 1 telling Ashok Dixit that they would
create a false plea of alibi. However, the eyewitnesses have all
deposed that Ashok Dixit was present at the place of the incident
in Firozabad where the firing had occurred. These two contradictory
statements confirm the presence of Ashok Dixit in Firozabad and
also in Gwalior and are therefore, ex-facie derogatory to each other.
32. The counsel submitted that Section 201 CrPC would not apply to
the instant facts and circumstances. There is no allegation that the
respondent no. 1 had conspired with the other co-accused persons
for the offence of murder and the only allegation that surfaces
from the charge sheet is that a false alibi was provided in order
to shield Ashok Dixit by registering an FIR under the Excise Act
in Gwalior. The said alleged act was made after the commission
of the offence of murder and there is nothing on record to even
remotely suggest that the respondent no. 1 had knowledge about
the incident of murder.
33. In light of the above, the counsel submitted that the impugned
Judgment and Order of the High Court quashing the criminal
proceedings against the respondent no. 1 may not be interfered with.
794 [2024] 12 S.C.R.
Supreme Court Reports
D. SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS.
3, 4 AND 5.
34. Ms. Nanita Sharma, the learned counsel appearing for the respondent
nos. 3, 4, and 5 respectively submitted that the Uttar Pradesh police
was bent upon falsely implicating her clients for the offence under
Sections 302 and 120-B IPC. This is evident from the following –
(a) he statements of Ramesh Yadav and Barelal were recorded under
Section 161 CrPC after a gap of one year from the date of the offence
committed at Firozabad i.e., 12.10.2007, (b) the address of Barelal
as recorded by the IO while recording his statement under Section
161 CrPC was found to be incorrect and as per the information of
the Sarpanch, no person with the name of Barelal had ever lived at
the said address. The permanent address of the witness Barelal was
not in existence even as per the certificate given by the Parshad of
the area on 28.12.2008, (c) Ramesh Yadav had also never lived at
the address which was given by him to the IO during his statement
recorded under Section 161 CrPC and the same was clear from
the certificate issued by the Sarpanch of Bada Gaon, Murar Police
Station, Gwalior.
35. The counsel also submitted that the respondent nos. 3, 4 and 5
respectively had never been named in the FIR registered in Case
Crime No. 617 of 2007 nor their names were ever disclosed by
any of the witnesses whose statements had been recorded by the
IO under Section 161 CrPC after the commission of the offence at
Firozabad. It was never pointed out that there was any conspiracy
between the respondents and the main accused, Ashok Dixit. It was
submitted that the respondent nos. 3, 4 and 5 respectively or their
family members are neither relatives nor known to the accused,
Ashok Dixit, in any manner.
36. The counsel submitted that the IO at Firozabad has falsely implicated
the respondent nos. 3, 4 and 5 respectively in the murder case
which occurred at Firozabad even though they had no role to play
in the case. They have been implicated only because of the rivalry
between the two police establishments and the refusal of the D.I.G.,
Gwalior to grant sanction to prosecute them. It was submitted that
the respondents had only performed their duty without suspecting
any kind of manipulation in both the arrest and release of Ashok Dixit
because they were merely following the instructions of their superior
officer i.e., the T.I. (SHO), D.S. Khushawa of the Murar Police Station.
[2024] 12 S.C.R. 795
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
37. The counsel in the last submitted that the High Court was justified
in quashing the criminal proceedings against the respondent nos.
3, 4 and 5 for want of sanction.
E. ISSUE(S) FOR DETERMINATION
38. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only issue that
falls for our consideration is:
a. Whether the CJM, Firozabad could have taken cognizance
of the Charge Sheet No. 3A of 2008 and Charge Sheet No.
30 of 2009 respectively against the respondent nos. 1, 3, 4
and 5 respectively, in the absence of the grant of sanction for
prosecution under Section 197 CrPC? In other words, whether
the offence or the act alleged to have been committed by the
respondent nos. 1, 3, 4 and 5 respectively could be said to have
been done “while acting or purporting to act in the discharge
of official duty”?
F. ANALYSIS
39. Section 197 CrPC reads as under:
“197. Prosecution of Judges and public servants. —
(1) When any person who is or was a Judge or Magistrate
or a public servant not removable from his office save by
or with the sanction of the Government is accused of any
offence alleged to have been committed by him while acting
or purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with
the previous sanction save as otherwise provided in the
Lokpal and Lokayuktas Act, 2013 (1 of 2014)—
(a) in the case of a person who is employed or, as
the case may be, was at the time of commission of
the alleged offence employed, in connection with
the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as
the case may be, was at the time of commission of
the alleged offence employed, in connection with the
affairs of a State, of the State Government:
796 [2024] 12 S.C.R.
Supreme Court Reports
Provided that where the alleged offence was committed by
a person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of article 356 of the
Constitution was in force in a State, clause (b) will apply as
if for the expression “State Government” occurring therein,
the expression “Central Government” were substituted.
Explanation. — For the removal of doubts it is hereby
declared that no sanction shall be required in case of a
public servant accused of any offence alleged to have been
committed under section 166A, section 166B, section 354,
section 354A, section 354B, section 354C, section
354D, section 370, section 375, 3 [section 376A, section
376AB, section 376C, section 376D, section 376DA,
section 376DB] or section 509 of the Indian Penal Code
(45 of 1860).
(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 act in
the discharge of his official duty, except with the previous
sanction of the Central Government.
(3) The State Government may, by notification, direct
that the provisions of sub-section (2) shall apply to such
class or category of the members of the Forces charged
with the maintenance of public order as may be specified
therein, wherever they may be serving, and thereupon
the provisions of that sub-section will apply as if for the
expression “Central Government” occurring therein, the
expression “State Government” were substituted.
(3A) Notwithstanding anything contained in sub-section (3),
no court shall take cognizance of any offence, alleged
to have been committed by any member of the Forces
charged with the maintenance of public order in a State
while acting or purporting to act in the discharge of his
official duty during the period while a Proclamation issued
under clause (1) of article 356 of the Constitution was in
force therein, except with the previous sanction of the
Central Government.
[2024] 12 S.C.R. 797
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
(3B) Notwithstanding anything to the contrary contained
in this Code or any other law, it is hereby declared that
any sanction accorded by the State Government or any
cognizance taken by a court upon such sanction, during
the period commencing on the 20th day of August, 1991
and ending with the date immediately preceding the date
on which the Code of Criminal Procedure (Amendment)
Act, 1991 (43 of 1991), receives the assent of the President,
with respect to an offence alleged to have been committed
during the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was in force
in the State, shall be invalid and it shall be competent for
the Central Government in such matter to accord sanction
and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as
the case may be, may determine the person by whom, the
manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is
to be conducted, and may specify the Court before which
the trial is to be held.”
40. The 41st Report of the Law Commission of India contextualizes the
object behind the enactment of Section 197 CrPC by pointing out
that it enables the more important categories of public servants,
performing onerous and responsible functions, to act fearlessly by
protecting them from false, vexatious or mala fide prosecutions.
Under the erstwhile Code of Criminal Procedure, 1898, the ambit of
the Section was considered a bit too wide since it read – “is accused
as such Judge or public servant of any offence”. However, to offer
more precision, the Amending Act of 1923 inserted the phrase – “is
accused of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty”. The
same has been retained in the statute books till today despite the
provision undergoing several amendments over the period of time.
41. As rightly acknowledged by the Law Commission, the meaning
of the word “acting or purporting to act” in Section 197 CrPC has
been well settled by a legion of decisions of the Federal Court, the
Privy Council and the Supreme Court and any difficulty that may be
felt lies only in the actual application of the principles laid down in
798 [2024] 12 S.C.R.
Supreme Court Reports
these decisions to the facts and circumstances of a particular case.
In other words, the question whether a particular act is done by a
public servant in the discharge of his official duty is substantially
one of fact, which is to be determined in the unique circumstances
of each case.
42. The applicability of Section 197 CrPC has been the subject of judicial
interpretation in several cases. One of the first and foremost case
laws which examined the pith of the expression “any act done or
purporting to be done” was the Federal Court decision in Dr. Hori Ram
Singh v. The Crown reported in AIR 1939 FC 43. Their Lordships
were called upon to consider the applicability of Section 270 of the
Government of India Act, 1935 which albeit not identical, but was
similar to Section 197 CrPC. The Court held that while the offence
under Section 409 IPC as regards the criminal breach of trust by
a public servant would not require consent from the Governor for it
cannot be done or purported to be done in the execution of his duty,
yet the offence under Section 477A IPC as regards the falsification of
accounts would require the Governor’s consent. The words “purported
to be done” was interpreted as follows:
“Extent of the Protection. Obviously, the section does not
mean that the very act which is the gravamen of the charge
and constitutes the offence should be the official duty of
the servant of the Crown. Such an interpretation would
involve a contradiction in terms, because an offence can
never be an official duty. The words as used in the section
are not “in respect of any official duty” but “in respect of
any act done or purporting to be done in the execution of
his duty.” The two expressions are obviously not identical.
The offence should have been committed when an act is
done in the execution of duty or when an act purports to
be done in the execution of the duty. The reference as
obviously to an offence committed in the course of an
action, which is taken or purports to be taken in compliance
with an official duty, and is in fact connected with it. The
test appears to be not that the offence is capable of being
committed only by a public servant and not by anyone
else, but that it is committed by a public servant in an act
done or purporting to be done in the execution of his duty.
The section cannot be confined to only such acts as are
[2024] 12 S.C.R. 799
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
done by a public servant directly in pursuance of his public
office, though in excess of the duty or under a mistaken
belief as to the existence of such duty. Nor is it necessary
to go to the length of saying that the act constituting the
offence should be so inseparably connected with the official
duty as to form part and parcel of the same transaction.
If the act complained of is an offence, it must necessarily
be not an execution of duty, but a dereliction of it. What
is necessary is that the offence must be in respect of an
act done or purported to be done in execution of duty,
that is in the discharge of an official duty. It must purport
to be done in the official capacity with which he pretends
to be clothed at the time, that is to say under the cloak of
an ostensibly official act, though, of course, the offence
would really amount to a breach of duty. An act cannot
purport to be done in execution of duty unless the offender
professes to be acting in pursuance of his official duty and
means to convey to the mind of another the impression
that he is so acting.
The section is not intended to apply to acts done purely in
a private capacity by a public servant. It must have been
ostensibly done by him in his official capacity in execution
of his duty, which would not necessarily be the case
merely because it was done at a time when he held such
office, nor even necessarily because he was engaged in
his official business at the time. For instance, if a public
servant accepts as a reward a bribe in his office while
actually engaged in some official work, he is not accepting
it even in his official capacity, much less in the execution
of any official duty, although it is quite certain that he could
never have been able to take the bribe unless he were
the official in charge of some official work. He does not
even pretend to the person who offers the bribe that he
is acting in the discharge of his official duty, but merely
uses his official position to obtain the illegal gratification.”
(emphasis supplied)
43. His Lordship, Sulaiman, J, clarified that it is not imperative for the
very act which is at the center of the charge to be the official duty of
800 [2024] 12 S.C.R.
Supreme Court Reports
the public servant. This would lead to the inference that an offence
can never be part of one’s official duty and defeat the very intent
behind the enactment of the provision. Instead, the essence of the
provision was that the offence must be in respect of an act done or
purported to be done in the execution of duty i.e., in the discharge
of an official duty. Although the offence would really amount to a
breach of duty, it must purport to be done in the official capacity with
which the official pretended to be clothed at the time. However, it
was made clear that the provision must not be applied to acts done
purely in a private capacity by a public servant but only to those
acts ostensibly done by him in his official capacity and in execution
of his duty. Therefore, merely because the act was committed at a
time when he held such office or when he was engaged in his official
business would not make the section automatically applicable.
44. His Lordship, Varadachariar, J, in his concurring opinion, expressed
that the question of whether or not the act complained of is one
“purporting to be done in execution of his duty” as a public servant
is substantially one of fact which is to be determined with reference
to the act complained of along with the attendant circumstances. It
would not be wise nor desirable to lay down any hard and fast tests
in this regard.
45. The Judicial Committee of the Privy Council in Gill and Another
v. The King reported in AIR 1948 PC 128 was faced with deciding
whether sanction was required under Section 197 CrPC for the
prosecution of a public servant charged with the offence of bribery
and/or conspiracy to take bribes. The Court was of the opinion that
it was impossible to distinguish or differentiate between S. 270 of the
Government of India Act, 1935 and S. 197 CrPC, at least in relation
to offences of this character. Therefore, the decision in Dr. Hori Ram
Singh (supra) would be of great assistance in cases pertaining to S.
197 as well. It was observed that a public servant can only be said
to act or purport to act in the discharge of his official duty, if his act
is as such as to lie within the scope of his official duty. Therefore,
the test may well be whether the public servant, if challenged, can
reasonably claim that, what he does, he does in virtue of his office.
The relevant observations are reproduced hereinbelow:
“A public servant can only be said to act or to purport to
act in the discharge of his official duty, if his act is such
[2024] 12 S.C.R. 801
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
as to lie within the scope of his official duty. Thus, a judge
neither acts nor purports to act as a judge in receiving
a bribe, though the judgment which he delivers may be
such an act: nor does a Government medical officer act or
purport to act as a public servant in picking the pocket of
a patient whom he is examining, though the examination
itself may be such an act. The test may well be whether
the public servant, if challenged, can reasonably claim
that, what he does, he does in virtue of his office” Applying
such a test to the present case, it seems clear that Gill
could not justify the acts in respect of which he was
charged as acts done by him by virtue of the office that
he held. Without further examination of the authorities their
Lordships, finding themselves in general agreement with
the opinion of the Federal Court in the case cited, think
it sufficient to say that in their opinion no sanction under
s. 197 of the Code of Criminal Procedure was needed.”
(emphasis supplied)
46. In Albert West Meads v. The King reported in AIR 1948 PC 156,
the Privy Council echoed the view taken in Gill (supra) and held that
the appellant in that case could not justify that the act of fraudulently
misapplying money entrusted to his care as a public servant was an
act done by him by virtue of his office.
47. In Shreekantiah Ramayya Munipalli v. State of Bombay reported
in (1954) 2 SCC 992, this Court stressed that each case must be
decided in its own facts. Herein, the Bench opined that Section 197
CrPC can never be applied if it is construed too narrowly since it is
no part of an official’s duty to commit an offence and the language
of the provision must be given its true meaning. However, it is not
the duty but the act which has to be examined because an official
act can be performed in the discharge of official duty as well as in
the dereliction of it. The relevant observations are as follows:
“14. Now it is obvious that if Section 197 of the Criminal
Procedure Code is construed too narrowly it can never
be applied, for of course it is no part of an official’s duty
to commit an offence and never can be. But it is not the
duty we have to examine so much as the act, because
802 [2024] 12 S.C.R.
Supreme Court Reports
an official act can be performed in the discharge of official
duty as well as in dereliction of it. The section has content
and its language must be given meaning. …”
(emphasis supplied)
48. In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309,
the appellant was charged under Section 465 IPC for forging the
thumb-impression of an individual and under Section 409 IPC for
the criminal misappropriation of a certain sum. The Court opined
that if the act complained of is directly concerned with the official
duty of the public servant so that, if questioned, it could be claimed
to have been done by virtue of the office, then sanction would be
necessary. This would be irrespective of whether it was, in fact,
a proper discharge of his duties because that would really be a
matter of defence on the merits which would have to be investigated
at trial and not be examined at the stage of granting sanction for
prosecution. Therefore, the test as to whether sanction is necessary
to prosecute a public servant will depend on whether the acts
complained of are so integrally connected with his duties as a public
servant. If they do, then sanction is a requisite and there cannot
be any uniform rule that an offence of criminal misappropriation
or criminal breach of trust would always be outside the scope
of Section 197 CrPC. The relevant observations are reproduced
hereinbelow:
“7. The result of the authorities may thus be summed up :
It is not every offence committed by a public servant that
requires sanction for prosecution under Section 197(1) of
the Code of Criminal Procedure; nor even every act done
by him while he is actually engaged in the performance of
his official duties; but if the act complained of is directly
concerned with his official duties so that, if questioned,
it could be claimed to have been done by virtue of the
office, then sanction would be necessary; and that would
be so, irrespective of whether it was, in fact, a proper
discharge of his duties, because that would really be a
matter of defence on the merits, which would have to be
investigated at the trial, and could not arise at the stage
of the grant of sanction, which must precede the institution
of the prosecution.
[2024] 12 S.C.R. 803
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
8. …In our judgment, even when the charge is one of
misappropriation by a public servant, whether sanction is
required under Section 197(1) will depend upon the facts
of each case. If the acts complained of are so integrally
connected with the duties attaching to the office as to
be inseparable from them, then sanction under Section
197(1) would be necessary; but if there was no necessary
connection between them and the performance of those
duties, the official status furnishing only the occasion or
opportunity for the acts, then no sanction would be required.
xxx xxx xxx
11. …The result then is that whether sanction is necessary
to prosecute a public servant on a charge of criminal
misappropriation, will depend on whether the acts
complained of hinge on his duties as a public servant. If they
do, then sanction is requisite. But if they are unconnected
with such duties, then no sanction is necessary.
(emphasis supplied)
49. A five-Judge Bench of this Court in Matajog Dobey v. H.C. Bhari
reported in AIR 1956 SC 44 acknowledged that slightly differing tests
had been laid down under Section 197 CrPC but the difference in
those tests were only in language and not in substance. The Court
laid down a more refined test that there must be a reasonable
connection between the act done and the discharge of the official
duty and the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that
he did it in the course of the performance of his duty. Therefore,
what one must ascertain is whether the act and the official duty
are so interrelated such that it can be reasonably postulated that it
was done in the performance of the official duty, though possibly in
excess of the needs and requirements of the situation. The relevant
observations are as follows:
“17. Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning of
the relevant words occurring in Section 197 of the Code;
“any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
804 [2024] 12 S.C.R.
Supreme Court Reports
duty”. But the difference is only in language and not in
substance. The offence alleged to have been committed
must have something to do, or must be related in some
manner with the discharge of official duty. No question
of sanction can arise under Section 197, unless the act
complained of is an offence; the only point to determine is
whether it was committed in the discharge of official duty.
There must be a reasonable connection between the act and
the official duty. It does not matter even if the act exceeds
what is strictly necessary for the discharge of the duty, as
this question will arise only at a later stage when the trial
proceeds on the merits. What 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
excess of the needs and requirements of the situation. …
xxx xxx xxx
19. The result of the foregoing discussion is this : There
must be a reasonable connection between the act and the
discharge of official duty; the act must bear such relation to
the duty that the accused could lay a reasonable, but not
a pretended or fanciful claim, that he did it in the course
of the performance of his duty.”
(emphasis supplied)
50. Furthermore, in Dhannjay Ram Sharma v. M.S. Uppadaya and
Others reported in AIR 1960 SC 745, it was clarified that the
mere fact that an opportunity to commit an offence is furnished by
the official duty is not such a connection of the offence with the
performance of such duty, so as to justify even remotely the view
that the acts complained of are within the scope of the application
of Section 197 CrPC.
51. This Court in P. Arulswami v. State reported in (1967) 1 SCR 201
was also concerned with an offence under Section 409 IPC and it
was opined that the act must be directly concerned and connected
with the official duties of the public servant such that it could be
claimed to have been done by virtue of his office. Furthermore, it is
the “quality” of the act that must be emphasized on. The act must
[2024] 12 S.C.R. 805
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
not be totally unconnected with the official duty. Only if it falls either
within the scope and range of the official duties, or is in excess of
it, then Section 197 CrPC would stand attracted. The Court had
stated as thus:
“…It is not therefore every offence committed by a public
servant that requires sanction for prosecution under s.
197(1) of the Criminal Procedure Code; nor even every
act done by him while he is actually engaged in the
performance of his official duties; but if the act complained
of is directly concerned with his official duties so that, if
questioned, it could be claimed to have been done by
virtue of the office, then sanction would be necessary. It is
the quality of the act that is important and if it falls within
the scope and range of his official duties the protection
contemplated by s. 197 of the Criminal Procedure Code
will be attracted. An offence may be entirely unconnected
with the official duty as such or it may be committed within
the scope of official duty. Where it is unconnected with the
official duty there can be no protection. It is only when it
is either within the scope of the official duty or in excess
of it that the protection is claimable…”
(emphasis supplied)
52. In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3
SCC 89 the appellants were alleged to have entered into a criminal
conspiracy for committing the offences of criminal breach of trust
and cheating in respect of a large amount of government money
earmarked for a development project. The Court opined that sanction
under Section 197 CrPC would not be necessary since it is no part
of the duty of a public servant while discharging his official duties, to
enter into a criminal conspiracy or to indulge in criminal misconduct
and observed as thus:
“66. The next point was with regard to consent or sanction.
There is no doubt that in respect of B.P. Sinha consent
was properly given by the Deputy Commissioner. So
consent was also given in respect of N.K. Banerjee and
Harihar Prasad by the Chief Secretary. This is not a case
of sanction or consent under Section 196-A of the Code
806 [2024] 12 S.C.R.
Supreme Court Reports
of Criminal Procedure. On the question of the applicability
of Section 197 of the Code of Criminal Procedure, the
principle laid down in two cases, namely, Shreekantiah
Ramayya Munipalli v. State of Bombay [AIR 1955 SC
287] and Amrik Singh v. State of Pepsu [AIR 1955 SC
309] was as follows:
“It is not every offence committed by a public
servant that requires sanction for prosecution
under Section 197(1) of the Criminal Procedure
Code; nor even every act done by him while
he is actually engaged in the performance of
his official duties; but if the act complained of
is directly concerned with his official duties so
that, if questioned, it could be claimed to have
been done by virtue of the office, then sanction
would be necessary.”
The real question therefore is whether the acts complained
of in the present case were directly concerned with the
official duties of the three public servants. As far as the
offence of criminal conspiracy punishable under Section
120-B, read with Section 409 of the Penal Code, 1860
is concerned and also Section 5(2) of the Prevention of
Corruption Act, are concerned they cannot be said to be
of the nature mentioned in Section 197 of the Code of
Criminal Procedure. To put it shortly, it is no part of the
duty of a public servant, while discharging his official
duties, to enter into a criminal conspiracy or to indulge in
criminal misconduct. Want of sanction under Section 197
of the Code of Criminal Procedure is, therefore, no bar.”
(emphasis supplied)
53. In B. Saha and Others v. M.S. Kochar reported in (1979) 4 SCC
177, the appellants were charged for the offences under Sections
409 and 120-B IPC. The Court opined that while it is not an invariable
proposition of law that the act of criminal misappropriation or
conversion cannot be inseparably intertwined with the performance
of the official duty, yet in the facts of the present case, the alleged
act of criminal misappropriation could not reasonably be said to be
imbued with the color of office or having a direct connection with
[2024] 12 S.C.R. 807
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
the duties of the appellants as public servants. Therefore, sanction
was not considered necessary. While observing so, the Court stated
that the expression “any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official
duty” must neither be construed narrowly nor widely and the right
approach would be to arrive at a balance between the two extremes.
Therefore, the sine qua non for the applicability of this section is
that the offence charged, be it one of commission or omission, must
be committed by the public servant either in his official capacity or
under the color of the office held by him such that there is a direct
or reasonable connection between the act and the official duty. The
relevant observations are as thus:
“17. 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. If these words are 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 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 these
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 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 under
the said provision. As pointed out by Ramaswami, J.,
in Baijnath v. State of M.P. [AIR 1966 SC 220, 227 : (1966)
1 SCR 210 : 1966 Cri LJ 179] , “it is the quality of the act
that is important, and if it falls within the scope and range
of his official duties, the protection contemplated by Section
197 of the Criminal Procedure Code will be attracted.”
18. In sum, the sine qua non for the applicability of this
section is that the offence charged, be it one of commission
or omission, must be one which has been committed by
808 [2024] 12 S.C.R.
Supreme Court Reports
the public servant either in his official capacity or under
colour of the office held by him.”
(emphasis supplied)
54. This Court in State of Maharashtra v. Dr. Budhikota Subbarao
reported in (1993) 3 SCC 339 elaborated on how the balance
between a narrow and wide construction of Section 197 CrPC can
be maintained. The Court opined that the section must be construed
strictly while determining its applicability to any act or omission in the
course of service and its operation has to be limited only to those
acts which are discharged in the “course of duty”. However, once
any act or omission has been found to have been committed by a
public servant in the discharge of his duty then a liberal and wide
construction can be given to the particular act, so far as its official
nature is concerned. For instance, a public servant is not entitled to
indulge in criminal activities in the discharge of his duty and to that
extent, the section must be construed narrowly and in a restricted
manner. However, once it is established that the act or omission was
done by the public servant while discharging his duty, then the scope
of it being “official” should be interpreted such that the objective of
the section is advanced in favor of the public servant.
55. In R. Balakrishna Pillai v. State of Kerala and Another reported
in (1996) 1 SCC 478, the appellant who was the then Minister for
Electricity for the State of Kerala was alleged to have entered into
a criminal conspiracy to sell electricity to an industry in the State
of Karnataka without the consent of the Government of Kerala.
The Court stressed that the quality of the act must be looked into
and there can be no general proposition that whenever there is a
charge of criminal conspiracy levelled against a public servant, the
protection under Section 197 CrPC would have no application. The
question of whether the act complained of had a direct nexus with
the discharge of official duties would depend on the facts of each
case and it was stated as thus:
“6. …The question whether the acts complained of had a
direct nexus or relation with the discharge of official duties
by the public servant concerned would depend on the facts
of each case. There can be no general proposition that
whenever there is a charge of criminal conspiracy levelled
[2024] 12 S.C.R. 809
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
against a public servant in or out of office the bar of Section
197(1) of the Code would have no application. Such a
view would render Section 197(1) of the Code specious.
Therefore, the question would have to be examined in the
facts of each case. …”
(emphasis supplied)
56. In Shambhoo Nath Misra v. State of U.P. and Others reported
in (1997) 5 SCC 326, allegations of fabrication of record and
misappropriation of public funds were made against the accused
public servant. The Court while holding that sanction was not
necessary in the facts of the case re-affirmed that the public servant’s
act must be in furtherance of the performance of his official duties
and only if the act or omission is integral to the performance of the
public duty, he would be entitled to protection under Section 197
CrPC. While stating so, the Court elaborated on the objective behind
the enactment of the provision and clarified that the protection of
sanction is an assurance to an honest and sincere officer so that he
can perform his public duty honestly and to the best of his ability.
The threat of prosecution would demoralize them and therefore, the
requirement of sanction by the competent authority or the appropriate
Government can serve as a shield only for such honest officers who
carry out their duty with an aim to further public interest. The Court
also rightly cautioned that, however, such an immunity cannot be
utilized by public servants to camouflage the commission of a crime
under the supposed color of public office.
57. This Court’s reasoning in State of Orissa and Others v. Ganesh
Chandra Jew reported in (2004) 8 SCC 40 was further adopted in
a few other landmark decisions including S.K. Zutshi and Another
v. Bimal Debnath and Another reported in (2004) 8 SCC 31 and
K. Kalimuthu v. State reported in (2005) 4 SCC 512. The Court in
Ganesh Chandra Jew (supra) considered the scope of the expression
“official duty” and stated that the protective cover of the section must
not be extended to every act or omission done by a public servant
in service but be restricted to only those acts or omissions which
are done by a public servant in the discharge of his “official” duty.
The scope can be widened further by also extending protection to
those acts or omissions which are done in the “purported” exercise
of “official” duty i.e., under the color of office, but not more.
810 [2024] 12 S.C.R.
Supreme Court Reports
58. Dr. Arijit Pasayat, J, went on to state that the protection given under
Section 197 CrPC must not be viewed as limitless. This protection
has certain limits and is available only when the alleged act done
is reasonably connected with the discharge of his official duty and
not merely a cloak for doing the objectionable act. However, if the
public servant acted in excess of his official duty but there exists
a reasonable connection between the act and the performance of
his official duty, the excess cannot be a sufficient ground to deprive
him of the protection under Section 197 CrPC. Therefore, it was re-
iterated that it is the “quality” of the act which is important and such
an act must fall within the scope and range of the public servant’s
official duty. While there cannot be any universal rule to determine
whether there exists a reasonable connection between the act done
and the official duty, one “safe and sure test” in this regard would be
to consider if the omission or neglect on 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, the protection under Section 197 CrPC can be
granted since there was every connection with the act complained of
and the official duty of the public servant. The relevant observations
are as follows:
“7. 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. If in doing his official duty, he acted in excess of his
duty, but there is a reasonable connection between the act
and the performance of the official duty, the excess will
not be a sufficient ground to deprive the public servant of
the protection. The question is not as to the nature of the
offence such as whether the alleged offence contained
an element necessarily dependent upon the offender
being a public servant, but whether it was committed
by a public servant acting or purporting to act as such
in the discharge of his official capacity. Before Section
197 can be invoked, it must be shown that the official
concerned was accused of an offence alleged to have
been committed by him while acting or purporting to act
in the discharge of his official duties. It is not the duty
[2024] 12 S.C.R. 811
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
which requires examination so much as the act, because
the official act can be performed both in the discharge
of the official duty as well as in dereliction of it. The act
must fall within the scope and range of the official duties
of the public servant concerned. It is the quality of the
act which is important and the 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. 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 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 supplied)
59. In Sankaran Moitra v. Sadhna Das and Another reported in (2006)
4 SCC 584, the appellant police officer was accused of killing the
complainant’s husband while carrying out a lathi-charge near the
polling-booth on an election day. While the Bench in its majority
opinion had held that the appellant was acting in the discharge of
his official duty, C.K. Thakker, J, in his minority opinion had stated
that the act complained of had no nexus, reasonable connection or
relevance to the official act or duty of such public servant and was
otherwise, illegal, unlawful and high-handed. He went on to state that
it is not only the “power” but the “duty” of the court to apply its mind
to the factual situation before it. The Courts must ensure that on the
one hand, the public servant is protected if the case is covered by
Section 197 CrPC and on the other hand, that appropriate action
would be allowed to be taken if the provision is not attracted and the
accused is trying to take undue advantage of the section under the
guise of his position as a public servant. The relevant observations
are as thus:
812 [2024] 12 S.C.R.
Supreme Court Reports
“67. From the aforesaid decisions, in my opinion, the law
appears to be well settled. The primary object of the legislature
behind Section 197 of the Code is to protect public officers who
have acted in discharge of their duties or purported to act in
discharge of such duties. But, it is equally well settled that the
act said to have been committed by a public officer must have
reasonable connection with the duty sought to be discharged
by such public officer. If the act complained of has no nexus,
reasonable connection or relevance to the official act or duty
of such public servant and is otherwise illegal, unlawful or in
the nature of an offence, he cannot get shelter under Section
197 of the Code. In other words, protection afforded by the
said section is qualified and conditional.
68. Mr Tulsi, no doubt, submitted that the appellant was a
police officer. He was on duty. He had received a message
about rioting and law and order situation at Beliaghata. He,
therefore, had gone to the spot pursuant to the said message,
in police uniform, in police jeep to deal with the situation. All the
ingredients of Section 197 of the Code were thus satisfied and
the High Court was wrong in not applying the said provision.
69. I am unable to agree with Mr Tulsi. In my judgment, it
is precisely in such cases that the Court is called upon to
consider whether the public servant was acting or purporting
to act in discharge of his duty or it was merely a cloak for
doing illegal act under the excuse of his status as a public
servant and by taking undue advantage of his position,
he was committing an offence or an unlawful act. In such
situations, when the question comes up for consideration
before a court of law as to the applicability or otherwise
of Section 197 of the Code, it is not only the power but
the duty of the Court to apply its mind to the fact situation
before it. It should ensure that on the one hand, the public
servant is protected if the case is covered by Section 197 of
the Code and on the other hand, appropriate action would
be allowed to be taken if the provision is not attracted and
under the guise of his position as public servant, he is trying
to take undue advantage.”
(emphasis supplied)
[2024] 12 S.C.R. 813
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
60. In Choudhury Parveen Sultana v. State of West Bengal and
Another reported in (2009) 3 SCC 398 the appellant’s husband
had suffered grievous injury in a shoot-out for which a case was
registered and police investigation was undertaken. The appellant
had filed a complaint before the Magistrate that the respondent
no. 2 (Investigating Officer) and the co-accused visited her house
under the pretext of conducting an investigation, threatened her
and her husband to make a tutored statement and had also tried to
obtain the husband’s signature on a blank paper under threatening
circumstances. While the Magistrate had taken cognizance, the High
Court had quashed the proceedings for want of sanction. In such
circumstances, the following observations were made:
“18. The direction which had been given by this Court, as far
back as in 1971 in Bhagwan Prasad Srivastava case [(1970)
2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] holds
good even today. 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 Section
197 CrPC. On the other hand, there can be cases of misuse
and/or abuse of powers vested in a public servant which
can never be said to be a part of the official duties required
to be performed by him. As mentioned in Bhagwan Prasad
Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 :
(1971) 1 SCR 317] the underlying object of Section 197
CrPC is to enable the authorities to scrutinise the allegations
made against a public servant to shield him/her against
frivolous, vexatious or false prosecution initiated with the
main object of causing embarrassment and harassment
to the said official. However, as indicated hereinabove,
if the authority vested in a public servant is misused for
doing things which are not otherwise permitted under the
law, such acts cannot claim the protection of Section 197
CrPC and have to be considered dehors the duties which
a public servant is required to discharge or perform. Hence,
in respect of prosecution for such excesses or misuse of
authority, no protection can be demanded by the public
servant concerned.
19. In the instant case, certain deeds and acts have been
attributed to Respondent 2 and another accused, which
814 [2024] 12 S.C.R.
Supreme Court Reports
cannot be said to have been part of the official duties
to be performed by Respondent 2. Hence, in our view,
Respondent 2 was not entitled to the protection of Section
197 CrPC in respect of such acts.”
(emphasis supplied)
The Court, while stating that the respondent no. 2 was not entitled
to the protection under Section 197 CrPC, was of the view that if the
authority which has been vested in a public servant is misused or
abused for committing acts which are not otherwise permitted under
the law, one cannot claim recourse under Section 197 CrPC. In such
circumstances, the acts committed must be considered dehors the
duties which a public servant is required to discharge or perform.
61. In Urmila Devi v. Yudhvir Singh reported in (2013) 15 SCC 624,
a complaint was filed by M alleging that the appellant and R were
living in an illicit relationship. Therefore, the respondent Sub-Divisional
Magistrate directed the Tehsildar to enquire into the matter and also
directed the DSP concerned to conduct a special investigation. It
was alleged that the respondent had forcibly entered the house of
the appellant at 10:00 pm with his investigation team, equipped with
video cameras, to carry out a search of the appellant’s house. It was
further alleged that R was forced to remove his clothes in front of the
other officials and that both the appellant and R were taken to a Civil
Hospital where they were forced to undergo a medical examination
against their will. The medical examination of the appellant was also
alleged to have been conducted by a male doctor. Furthermore, it
was alleged that when the appellant and R filed a complaint against
M, the respondent threatened them to withdraw the same. The Court
stated that none of the acts alleged against the respondent, can
by any stretch of imagination, be held to have been carried out in
his capacity as an Executive Magistrate. Hence, the invocation of
Section 197 CrPC was wholly uncalled for. While emphasizing that
the test of direct and reasonable connection between the official
duty of the accused and the acts allegedly committed by him is
the true test, the Court stressed that public functionaries cannot,
under the cloak of the purported discharge of official duties, resort
to the harassment and humiliation of the citizens on the pretext of a
complaint having been received by them. The relevant observations
are reproduced hereinbelow:
[2024] 12 S.C.R. 815
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
“63. The test of direct and reasonable connection between
the official duty of the accused and the acts allegedly
committed by them is, therefore, the true test to be applied
while deciding whether the protection of Section 197 CrPC
is available to a public servant accused of the commission
of an offence. The High Court has not adverted to this test
nor has it held that there existed a direct and reasonable
connection between the official duty being discharged by
the accused public servant and the acts committed by
him. The High Court has on the contrary misdirected itself
when it said that the accused had only committed an act
of omission towards his official duties which entitled him
to the protection of Section 197 of the Code.
65. It is difficult to appreciate what the High Court meant
by saying that the acts of the accused were “at best acts
of omission towards official duty”. It was not the case of
the respondent before the High Court nor is it his case
before us that the complaint filed by Maya Devi disclosed
any offence which could be taken cognizance of by him
as an Executive Magistrate or investigated by the police.
Assuming that the complainant and R.C. Chopra were
living together even when they were not married to each
other, the complaint regarding any such relationship could
be filed only by the wife of R.C. Chopra, or the husband
of the complainant Urmila Devi. The complaint filed by
Maya Devi could not provide a valid basis for the SDM,
the Tahsildar or the Deputy Superintendent of Police
concerned to barge into the house of the complainant,
humiliate or harass her or drag her to the police station
without the registration of any case or subject her to an
uncalled for medical examination. The test of direct and
reasonable connection between the official duty of the
respondent Sub-Divisional Magistrate and the police
officers concerned and the acts complained of thus fails
in the present case especially because there is not even
a semblance of a lawful justification forthcoming from the
respondent for what he did. Entering the house of a woman,
after sunset with a posse of police force, carrying video
cameras conducting an unwarranted search of the house,
816 [2024] 12 S.C.R.
Supreme Court Reports
humiliating and invading the privacy of the complainant,
insulting and humiliating R.C. Chopra by asking him to
undress and dragging both of them to the police station
for medical examination against their wishes, especially
when male doctors were asked to examine the complainant
which added insult to injury, all remain unsupported by any
lawful justification and have no connection with the duties
that were cast upon the respondent as a public servant,
even if a complaint alleging an adulterous relationship
between the appellant and R.C. Chopra had been received
by the SDM. The alleged acts of the respondent cannot,
therefore, be said to be in discharge of his official duties
or in the purported discharge of such duties.
66. Public functionaries cannot under the cloak of purported
discharge of official duties resort to harassment and
humiliation of the citizens on the pretext of a complaint
having been received by them, especially when the same
does not disclose the commission of any offence triable
by the Executive Magistrate or cognizable by the police;
nor was there any other proceeding in connection with
which such conduct could be justified in law. The plea
of the respondent that the prosecution was barred under
Section 197 CrPC has, therefore, to be rejected.”
(emphasis supplied)
62. In Rajib Ranjan v. R. Vijaykumar reported in (2015) 1 SCC 513, a
complaint was filed against the appellant public officials for conspiracy
to create false documents. This Court had held that even while
discharging official duties, if a public servant enters into a criminal
conspiracy or indulges in criminal misconduct, such a misdemeanor
must not be treated as an act in the discharge of his official duties
in order to grant protection under Section 197 CrPC and elaborated
as follows:
“15. The sanction, however, is necessary if the offence
alleged against the public servant is committed by him
“while acting or purporting to act in the discharge of his
official duties”. In order to find out as to whether the alleged
offence is committed while acting or purporting to act in
[2024] 12 S.C.R. 817
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
the discharge of his official duty, the following yardstick
is provided by this Court in Budhikota Subbarao [State of
Maharashtra v. Budhikota Subbarao (1993) 3 SCC 339 :
1993 SCC (Cri) 901 : (1993) 2 SCR 311] in the following
words : (SCC p. 347, para 6)
“6. … If on facts, therefore, 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 of the Code cannot be disputed.”
16. This principle was explained in some more detail in
Raghunath Anant Govilkar v. State of Maharashtra [(2008)
11 SCC 289 : (2009) 1 SCC (Cri) 130] , which was decided
by this Court on 8-2-2008 in SLP (Crl.) No. 5453 of 2007,
in the following manner : (SCC pp. 298-99, para 11)
“11. ‘7. … “66. … On the question of the applicability
of Section 197 of the Code of Criminal Procedure, the
principle laid down in two cases, namely, Shreekantiah
Ramayya Munipalli v. State of Bombay [AIR 1955 SC
287 : 1955 Cri LJ 857] and Amrik Singh v. State of
Pepsu [AIR 1955 SC 309 : 1955 Cri LJ 865] was as
follows : (Amrik Singh case [AIR 1955 SC 309 : 1955
Cri LJ 865], AIR p. 312, para 8)
‘8. … It is not every offence committed by a public
servant that requires sanction for prosecution under
Section 197(1) of the Criminal Procedure Code;
nor even every act done by him while he is actually
engaged in the performance of his official duties;
but if the act complained of is directly concerned
with his official duties so that, if questioned, it
could be claimed to have been done by virtue of
the office, then sanction would be necessary….’
The real question therefore, is whether the acts
complained of in the present case were directly
concerned with the official duties of the three public
servants. As far as the offence of criminal conspiracy
punishable under Section 120-B read with Section 409
818 [2024] 12 S.C.R.
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of the Penal Code is concerned and also Section 5(2)
of the Prevention of Corruption Act, are concerned
they cannot be said to be of the nature mentioned in
Section 197 of the Code of Criminal Procedure. To put it
shortly, it is no part of the duty of a public servant, while
discharging his official duties, to enter into a criminal
conspiracy or to indulge in criminal misconduct. Want
of sanction under Section 197 of the Code of Criminal
Procedure is, therefore, no bar.” [Ed. : As observed in
Harihar Prasad v. State of Bihar (1972) 3 SCC 89, 115,
para 66 : 1972 SCC (Cri) 409.] ‹ [Ed. : Quoted from
State of Kerala v. V. Padmanabhan Nair (1999) 5 SCC
690, 692, para 7 : 1999 SCC (Cri) 1031.] ”
17. Likewise, in Shambhoo Nath Misra v. State of U.P.
[(1997) 5 SCC 326 : 1997 SCC (Cri) 676 : AIR 1997 SC
2102], the Court dealt with the subject in the following
manner : (SCC p. 328, para 5)
“5. The question is when the public servant is alleged
to have committed the offence of fabrication of record
or misappropriation of public fund, etc. can he be said
to have acted in discharge of his official duties? It is
not the official duty of the public servant to fabricate the
false record and misappropriate the public funds, etc. in
furtherance of or in the discharge of his official duties.
The official capacity only enables him to fabricate the
record or misappropriate the public fund, etc. It does
not mean that it is integrally connected or inseparably
interlinked with the crime committed in the course of
same transaction, as was believed by the learned Judge.
Under these circumstances, we are of the opinion that
the view expressed by the High Court as well as by the
trial court on the question of sanction is clearly illegal
and cannot be sustained.”
18. The ratio of the aforesaid cases, which is clearly
discernible, is that even while discharging his official
duties, if a public servant enters into a criminal conspiracy
or indulges in criminal misconduct, such misdemeanour
on his part is not to be treated as an act in discharge of
[2024] 12 S.C.R. 819
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
his official duties and, therefore, provisions of Section 197
of the Code will not be attracted. In fact, the High Court
has dismissed the petitions filed by the appellant precisely
with these observations, namely, the allegations pertain to
fabricating the false records which cannot be treated as
part of the appellants’ normal official duties. The High Court
has, thus, correctly spelt out the proposition of law. The
only question is as to whether on the facts of the present
case, the same has been correctly applied.”
(emphasis supplied)
63. The purpose behind the enactment of Section 197 CrPC must not be
to shield corrupt officials and this was the position taken in Inspector
of Police and Another v. Battenapatla Venkata Ratnam and
Another reported in (2015) 13 SCC 87. Here, the respondents while
working as Sub-Registrars in various offices of the State of Andhra
Pradesh had conspired with stamp vendors, document writers and
other staff to manipulate the registers and had gotten the documents
registered with the old value of the respective properties, resulting
in wrongful gain to themselves and loss to the Government. Such
acts were held to not be in the discharge of their official duty. The
observations made are reproduced hereinbelow:
“11. The alleged indulgence of the officers in cheating,
fabrication of records or misappropriation cannot be said
to be in discharge of their official duty. Their official duty
is not to fabricate records or permit evasion of payment
of duty and cause loss to the Revenue. Unfortunately,
the High Court missed these crucial aspects. The learned
Magistrate has correctly taken the view that if at all the
said view of sanction is to be considered, it could be done
at the stage of trial only.”
(emphasis supplied)
64. This Court in Surinderjit Singh Mand and Another v. State of
Punjab and Another reported in (2016) 8 SCC 722 was faced
with a factual scenario wherein an accused was allegedly arrested
in a theft case by the appellant police officers on 24.06.1999 but
was formally and officially shown to have been arrested only on
28.06.1999. Prosecution was initiated against the appellant officers
820 [2024] 12 S.C.R.
Supreme Court Reports
on the basis of an FIR registered at the instance of the mother of
the accused in relation to the alleged illegal detention of the accused
for the period from 24.06.1999 to 28.06.1999. While holding that no
sanction to prosecute was required in the circumstances of an illegal
detention, this Court observed as thus:
“23. Having given our thoughtful consideration to the
contention advanced at the hands of the learned counsel
for the respondents, we are of the view that the decision
rendered by this Court in P.P. Unnikrishnan case [P.P.
Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131 : 2000
SCC (Cri) 1460] is clear and emphatic. The same does
not leave any room for making any choice. It is apparent
that the official arrest of Neeraj Kumar in terms of the
provisions of the Code, referred to hereinabove, would
extend during the period from 28-6-1999 to 30-6-1999.
The above period of apprehension can legitimately be
considered as having been made “while acting or purporting
to act in the discharge of their official duties”. The factual
position expressed by the appellants is that Neeraj Kumar
was not detained for the period from 24-6-1999 to 28-6-
1999. His detention during the above period, if true, in
our considered view, would certainly not emerge from the
action of the accused while acting or purporting to act in
the discharge of their official duties. If it emerges from the
evidence adduced before the trial court that Neeraj Kumar
was actually detained during the period from 24-6-1999
to 28-6-1999, the said detention cannot be taken to have
been made by the accused while acting or purporting
to act in the discharge of their official duties. More so,
because it is not the case of the appellants that they had
kept Neeraj Kumar in jail during the period from 24-6-
1999 to 28-6-1999. If they had not detained him during
the above period, it is not open to anyone to assume the
position that the detention of Neeraj Kumar, during the
above period, was while acting or purporting to act in the
discharge of their official duties. Therefore, in the peculiar
facts and circumstances of this case, based on the legal
position declared by this Court in P.P. Unnikrishnan case
[P.P. Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131 :
2000 SCC (Cri) 1460] , we are of the considered view that
[2024] 12 S.C.R. 821
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
sanction for prosecution of the accused in relation to the
detention of Neeraj Kumar for the period from 24-6-1999
to 28-6-1999 would not be required before a court of
competent jurisdiction takes cognizance with reference to
the alleged arrest of Neeraj Kumar. We therefore hereby,
endorse the conclusions drawn by the High Court to the
above effect.”
(emphasis supplied)
65. Thus, the legal position that emerges from a conspectus of all the
decisions referred to above is that it is not possible to carve out
one universal rule that can be uniformly applied to the multivarious
facts and circumstances in the context of which the protection under
Section 197 CrPC is sought for. Any attempt to lay down such a
homogenous standard would create unnecessary rigidity as regards
the scope of application of this provision. In this context, the position
of law may be summarized as under: -
(i) The object behind the enactment of Section 197 CrPC is
to protect responsible public servants against institution of
possibly false or vexatious criminal proceedings for offences
alleged to have been committed by them while they are acting
or purporting to act in their official capacity. It is to ensure that
the public servants are not prosecuted for anything which is
done by them in the discharge of their official duties, without
any reasonable cause. The provision is in the form of an
assurance to the honest and sincere officers so that they can
perform their public duties honestly, to the best of their ability
and in furtherance of public interest, without being demoralized.
(ii) The expression “any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official
duty” in Section 197 CrPC must neither be construed narrowly
nor widely and the correct approach would be to strike a balance
between the two extremes. The section should be construed
strictly to the extent that its operation is limited only to those acts
which are discharged in the “course of duty”. However, once it
has been ascertained that the act or omission has indeed been
committed by the public servant in the discharge of his duty, then
a liberal and wide construction must be given to a particular act
or omission so far as its “official” nature is concerned.
822 [2024] 12 S.C.R.
Supreme Court Reports
(iii) It is essential that the Court while considering the question of
applicability of Section 197 CrPC truly applies its mind to the
factual situation before it. This must be done in such a manner
that both the aspects are taken care of viz., on one hand, the
public servant is protected under Section 197 CrPC if the act
complained of falls within his official duty and on the other,
appropriate action be allowed to be taken if the act complained
of is not done or purported to be done by the public servant in
the discharge of his official duty.
(iv) A public servant can only be said to act or purport to act in the
discharge of his official duty, if his act is such that it lies within
the scope and range of his official duties. The act complained
of must be integrally connected or directly linked to his duties
as a public servant for the purpose of affording protection under
Section 197 CrPC. Hence, it is not the duty which requires an
examination so much as the “act” itself.
(v) One of the foremost tests which was laid down in this regard
was - whether the public servant, if challenged, can reasonably
claim that, what he does, he does in virtue of his office.
(vi) Later, the test came to be re-modulated. It was laid down that
there must be a reasonable connection between the act done
and the discharge of the official duty and the act must bear such
relation to the duty such that the accused could lay a reasonable,
but not a pretended or fanciful claim, that his actions were in the
course of performance of his duty. Therefore, the sine qua non
for the applicability of this section is that the offence charged,
be it one of commission or omission, must be committed by the
public servant either in his official capacity or under the color of
the office held by him such that there is a direct or reasonable
connection between the act and the official duty.
(vii) If in performing his official duty, the public servant acts in excess
of his duty, the excess by itself will not be a sufficient ground
to deprive the public servant from protection under Section 197
CrPC if it is found that there existed a reasonable connection
between the act done and the performance of his official duty.
(viii) It is the “quality” of the act that must be examined and the
mere fact that an opportunity to commit an offence is furnished
[2024] 12 S.C.R. 823
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
by the official position would not be enough to attract Section
197 CrPC.
(ix) The legislature has thought fit to use two distinct expressions
“acting” or “purporting to act”. The latter expression means that
even if the alleged act was done under the color of office, the
protection under Section 197 CrPC can be given. However, this
protection must not be excessively stretched and construed as
being limitless. It must be made available only when the alleged
act is reasonably connected with the discharge of his official
duty and not merely a cloak for doing the objectionable act.
(x) 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 such a rule. However,
a “safe and sure test” would be to consider if the omission
or neglect on the part of the public servant to commit the act
complained of would have made him answerable for a charge
of dereliction of his official duty. If the answer to this question
is in the affirmative, the protection under Section 197 CrPC
can be granted since there was every connection with the act
complained of and the official duty of the public servant.
(xi) The provision must not be abused by public servants to
camouflage the commission of a crime under the supposed
color of public office. The benefit of the provision must not be
extended to public officials who try to take undue advantage
of their position and misuse the authority vested in them for
committing acts which are otherwise not permitted in law. In
such circumstances, the acts committed must be considered
dehors the duties which a public servant is required to discharge
or perform.
(xii) On an application of the tests as aforesaid, if on facts, it is prima
facie found that the act or omission for which the accused has
been charged has a reasonable connection with the discharge
of his official duty, the applicability of Section 197 CrPC cannot
be denied.
66. At the cost of repetition, we say that the position of law on the
application of Section 197 CrPC is clear – that it must be decided
based on the peculiar facts and circumstances of each case. This
Court has held in a legion of decisions that any misuse or abuse of
824 [2024] 12 S.C.R.
Supreme Court Reports
powers by a public servant to do something that is impermissible in
law like threatening to provide a tutored statement or trying to obtain
signatures on a blank sheet of paper; causing the illegal detention
of an accused; engaging in a criminal conspiracy to create false or
fabricated documents; conducting a search with the sole object of
harassing and threatening individuals, amongst others, cannot fall
under the protective umbrella of Section 197 CrPC.
67. In light of the same, it follows that when a police official is said to have
lodged a false case, he cannot claim that sanction for prosecution
under Section 197 CrPC was required since it can be no part of the
official duty of a public official to lodge a bogus case and fabricate
evidence or documents in connection with the same. On examining
the quality of the act, it is evident that there exists no reasonable
or rational nexus between such an act and the duties assigned to
the public servant for the claim that it was done or purported to
be done in the discharge of his official duty. The mere fact that an
opportunity to register a false case was furnished by the official
duty would certainly not be sufficient to apply Section 197 CrPC.
Allowing so, would enable the accused to use their status as public
servants as a facade for doing an objectionable, illegal and unlawful
act and take undue advantage of their position. If the Case Crime
No. 967 of 2007 registered at the Murar Police Station, Gwalior, by
respondent nos. 3, 4 and 5 respectively, was a false case, then there
is no doubt that the refusal to grant sanction would not operate as a
bar for their prosecution. Moreover, as far as the case of respondent
no. 1 is concerned, it is an undisputed fact that he was not even
posted as the S.H.O or T.I at the Murar Police Station when the said
false case was registered. The same is evident from the affidavit
submitted by the IO at Firozabad before the High Court. Additionally,
the respondent no. 1 has himself admitted in his submissions before
us that he was in fact posted at District Shivpuri which is 120 kms
away from Gwalior during the relevant time. Therefore, any act or
offence committed by the respondent no. 1 in the present case can
safely be said to have been outside the scope of his official duty
which obviates the question of sanction for his prosecution.
68. Having said the above, the question whether sanction is required
or not is a question that may arise at any stage of the proceeding.
There might arise situations where the complaint or the police report
may not disclose that the act constituting the offence was done or
[2024] 12 S.C.R. 825
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
purported to be done in the discharge of official duty. However, the
facts subsequently coming to light may establish the necessity for
sanction. That the necessity of sanction may also reveal itself in
the course of the progress of the case as was laid out in Matajog
(supra) as follows:
“20. Is the need for sanction to be considered as soon
as the complaint is lodged and on the allegations therein
contained? At first sight, it seems as though there is some
support for this view in Hori Ram case [(1939) FCR 159,
178] and also in Sarjoo Prasad v. King-Emperor [(1945) FCR
227]. Sulaiman, J. says that as the prohibition is against the
institution itself, its applicability must be judged in the first
instance at the earliest stage of institution. Varadachariar,
J. also states that the question must be determined with
reference to the nature of the allegations made against
the public servant in the criminal proceeding. But a careful
perusal of the later parts of their judgments shows that they
did not intend to lay down any such proposition. Sulaiman,
J. refers (at P-179) to the prosecution case as disclosed
by the complaint or the police report and he winds up
the discussion in these words: “Of course, if the case as
put forward fails or the defence establishes that the act
purported to be done is in execution of duty, the proceedings
will have to be dropped and the complaint dismissed on that
ground”. The other learned Judge also states at p. 185, “At
this stage we have only to see whether the case alleged
against the appellant or sought to be proved against him
relates to acts done or purporting to be done by him in the
execution of his duty”. It must be so. The question may
arise at any stage of the proceedings. The complaint may
not disclose that the act constituting the offence was done
or purported to be done in the discharge of official duty; but
facts subsequently coming to light on a police or judicial
inquiry or even in the course of the prosecution evidence at
the trial, may establish the necessity for sanction. Whether
sanction is necessary or not may have to be determined
from stage to stage. The necessity may reveal itself in the
course of the progress of the case.”
(emphasis supplied)
826 [2024] 12 S.C.R.
Supreme Court Reports
69. In Pukhraj v. State of Rajasthan and Another reported in (1973) 2
SCC 701, the 2nd respondent was alleged to have abused and kicked
his clerk who was his subordinate and was charged under Sections
323 and 504 IPC. The Court opined that such an act cannot be said
to be in the purported exercise of his duty and held that sanction
under Section 197 CrPC was not necessary. However, it was also
observed that the necessity of sanction may reveal itself in the course
of progress of the case and that it would be open to the accused to
place materials on record during the trial for showing what his duty
was and also that the acts complained of were so interrelated to
his duty that protection under Section 197 CrPC must be granted
to him. It was observed as follows:
“3. We must also make it clear that this is not the end
of the matter. As was pointed out in Sarjoo Prasad v.
King-Emperor [AIR 1946 FC 25 : 1954 FCR 227 : 47
Cri LJ 838] referring to the observations of Sulaiman, J.
in Hori Ram Singh case the mere fact that the accused
proposes to raise a defence of the act having purported
to be done in execution of duty would not in itself be
sufficient to justify the case being thrown out for want
of sanction. At this stage we have only to see whether
the acts alleged against the 2nd respondent can be
said to be in purported execution of his duty. But facts
subsequently coming to light during the course of the
judicial inquiry or during the course of prosecution
evidence at the trial may establish the necessity for
sanction. Whether sanction is necessary or not may
have to depend from stage to stage. The necessity may
reveal itself in the course of the progress of the case
[see observations in Matajog Dobey v. H.C. Bhari]. In
Bhagwan Prasad Srivastava v. N.P. Misra also it was
pointed out that it would be open to the appellant (the
2nd respondent in this case) to place the material on
record during the course of the trial for showing what
his duty was and also that the acts complained of were
so inter-related with his official duty so as to attract the
protection afforded by Section 197 CrPC.”
(emphasis supplied)
[2024] 12 S.C.R. 827
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
70. In B. Saha (supra), the Court went on to observe that they have
no quarrel with the proposition that the question of sanction under
Section 197 CrPC can be raised and considered at any stage of
the proceedings. Moreover, it was also stated that in considering the
question whether or not sanction for prosecution was required, it is
not necessary for the Court to confine itself to the allegations in the
complaint, and it can take into account all the material on record
at the time when the question is raised and falls for consideration.
Similar to the rationale adopted in B. Saha (supra), this Court in State
of Bihar v. Kamla Prasad Singh and Others reported in (1998) 5
SCC 690 also re-affirmed that while determining whether the public
servant was “acting in the discharge of his official duty”, the Court
must consider not only the allegations made in the complaint but
also other materials available on record.
71. In Bakhshish Singh Brar v. Gurmej Kaur and Another reported in
(1987) 4 SCC 663, the petitioner police officer along with 14 other
persons was charged under Sections 148, 149, 302, 323 and 325
IPC for allegedly causing hurt to the complainant and also causing
the death of her son. This Court had emphasized that a balance
has to be struck between protecting public servants from being
harassed in criminal prosecutions and protecting the rights of the
citizens against unlawful acts of public servants. This must be done by
examining as to what extent and how far is a public servant working
in the discharge or purported discharge of his duties and whether
the public servant had exceeded his limit. Having said so, it was
observed that criminal trials must also not be stayed in all cases at
the preliminary stage because that will cause great damage to the
evidence. The relevant observations are reproduced hereinbelow:
“6. In the instant case, it is alleged that grievous injuries
were inflicted upon the complainant and as a result
of injuries one of the alleged accused had died. The
question is while investigating and performing his duties
as a police officer was it necessary for the petitioner to
conduct himself in such a manner which would result in
such consequences. It is necessary to protect the public
servants in the discharge of their duties. They must be
made immune from being harassed in criminal proceedings
and prosecution, that is the rationale behind Section 196
and Section 197 of the CrPC. But it is equally important to
828 [2024] 12 S.C.R.
Supreme Court Reports
emphasise that rights of the citizens should be protected
and no excesses should be permitted. “Encounter death”
has become too common. In the facts and circumstance of
each case protection of public officers and public servants
functioning in discharge of official duties and protection
of private citizens have to be balanced by finding out as
to what extent and how far is a public servant working in
discharge of his duties or purported discharge of his duties,
and whether the public servant has exceeded his limit. It
is true that Section 196 states that no cognizance can be
taken and even after cognizance having been taken if facts
come to light that the acts complained of were done in the
discharge of the official duties then the trial may have to be
stayed unless sanction is obtained. But at the same time
it has to be emphasised that criminal trials should not be
stayed in all cases at the preliminary stage because that
will cause great damage to the evidence.”
(emphasis supplied)
72. This Court in P.K. Pradhan v. State of Sikkim reported in (2001) 6
SCC 704 re-emphasized that for invoking protection under Section
197 CrPC, the acts of the accused must be such that it cannot be
separated from the discharge of the official duty. However, if there
was no reasonable connection between the act and the performance
of those duties, and the official status only furnishes the occasion or
opportunity for the illegal act, then no sanction would be required. The
Court acknowledged that the question of sanction can be raised at
any time after cognizance i.e., maybe immediately after cognizance
or framing of charge or even at the time of conclusion of trial and
after conviction as well. However, there may be certain cases where
it may not be possible to decide the question of sanction effectively
without giving opportunity to the defence to establish that what he did,
he did in the discharge of official duty. In such cases, the question
of sanction must be left open to be decided in the main judgment
which may be delivered upon conclusion of the trial. The relevant
observations are as follows:
“15….It is well settled that question of sanction under
Section 197 of the Code can be raised any time after
the cognizance; maybe immediately after cognizance or
[2024] 12 S.C.R. 829
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
framing of charge or even at the time of conclusion of
trial and after conviction as well. But there may be certain
cases where it may not be possible to decide the question
effectively without giving opportunity to the defence to
establish that what he did was in discharge of official
duty. In order to come to the conclusion whether claim of
the accused that the act that he did was in course of the
performance of his duty was a reasonable one and neither
pretended nor fanciful, can be examined during the course
of trial by giving opportunity to the defence to establish it.
In such an eventuality, the question of sanction should be
left open to be decided in the main judgment which may
be delivered upon conclusion of the trial.
16. In the present case, the accused is claiming that in
awarding contract in his capacity as Secretary, Department
of Rural Development, Government of Sikkim, he did not
abuse his position as a public servant and works were
awarded in favour of the contractor at a rate permissible
under law and not low rates. These facts are required to
be established which can be done at the trial. Therefore,
it is not possible to grant any relief to the appellant at this
stage. However, we may observe that during the course
of trial, the court below shall examine this question afresh
and deal with the same in the main judgment in the light
of the law laid down in this case without being prejudiced
by any observation in the impugned orders.”
(emphasis supplied)
73. This Court in Devinder Singh v. State of Punjab reported in (2016)
12 SCC 87 had observed that sometimes certain questions about
the requirement of sanction cannot be decided without evidence
and questions like the good faith or bad faith of the public servant
can be decided on the conclusion of trial. The relevant observations
made are reproduced hereinbelow:
“39.8. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course
of evidence during trial. Whether sanction is necessary or
not may have to be determined from stage to stage and
material brought on record depending upon facts of each
830 [2024] 12 S.C.R.
Supreme Court Reports
case. Question of sanction can be considered at any stage
of the proceedings. Necessity for sanction may reveal itself
in the course of the progress of the case and it would be
open to the accused to place material during the course
of trial for showing what his duty was. The accused has
the right to lead evidence in support of his case on merits.
39.9. In some cases, it may not be possible to decide the
question effectively and finally without giving opportunity
to the defence to adduce evidence. Question of good faith
or bad faith may be decided on conclusion of trial.
40. In the instant cases, the allegation as per the prosecution
case is that it was a case of fake encounter or death caused
by torture whereas the defence of the accused person is
that it was a case in discharge of official duty and as the
deceased was involved in the terrorist activities and while
maintaining law and order the incident has taken place.
The incident was in the course of discharge of official
duty. Considering the aforesaid principles in case the
version of the prosecution is found to be correct, there
is no requirement of any sanction. However, it would be
open to the accused persons to adduce the evidence in
defence and to submit such other materials on record
indicating that the incident has taken place in discharge of
their official duties and the orders passed earlier would not
come in the way of the trial court to decide the question
afresh in the light of the aforesaid principles from stage
to stage or even at the time of conclusion of the trial at
the time of judgment. As at this stage it cannot be said
which version is correct. The trial court has prima facie to
proceed on the basis of the prosecution version and can
re-decide the question afresh in case from the evidence
adduced by the prosecution or by the accused or in any
other manner it comes to the notice of the court that there
was a reasonable nexus of the incident with discharge of
official duty, the court shall re-examine the question of
sanction and take decision in accordance with law. The
trial to proceed on the aforesaid basis.”
(emphasis supplied)
[2024] 12 S.C.R. 831
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
74. The legal position that emerges from the discussion of the aforesaid
case laws is that:
(i) There might arise situations where the complaint or the police
report may not disclose that the act constituting the offence was
done or purported to be done in the discharge of official duty.
However, the facts subsequently coming to light may establish
the necessity for sanction. Therefore, the question whether
sanction is required or not is one that may arise at any stage
of the proceeding and it may reveal itself in the course of the
progress of the case.
(ii) There may also be certain cases where it may not be possible
to effectively decide the question of sanction without giving an
opportunity to the defence to establish that what the public
servant did, he did in the discharge of official duty. Therefore, it
would be open to the accused to place the necessary materials
on record during the trial to indicate the nature of his duty and
to show that the acts complained of were so interrelated to
his duty in order to obtain protection under Section 197 CrPC.
(iii) While deciding the issue of sanction, it is not necessary for the
Court to confine itself to the allegations made in the complaint.
It can take into account all the material on record available
at the time when such a question is raised and falls for the
consideration of the Court.
(iv) Courts must avoid the premature staying or quashing of criminal
trials at the preliminary stage since such a measure may cause
great damage to the evidence that may have to be adduced
before the appropriate trial court.
75. In the present case, we are concerned with the allegation of registering
an FIR i.e., Case Crime No. 967 of 2007 for the offence under
Section 34 of the Excise Act at the Murar Police Station, Gwalior,
Madhya Pradesh at the instance of the accused respondents so as
to facilitate one Ashok Dixit in raising the plea of alibi in Case Crime
No. 617 of 2007 filed at the Dakshin Police Station, Firozabad, Uttar
Pradesh for the murder of the appellant’s brother. The appellant’s
brother was shot dead at 08:30 am on 12.10.2007 in Firozabad, Uttar
Pradesh and the arrest of the accused Ashok Dixit for the offence
under the Excise Act is said to have been made at 09:30 am on the
832 [2024] 12 S.C.R.
Supreme Court Reports
very same day in Gwalior, Madhya Pradesh. Evidently the accused in
both the cases i.e., Ashok Dixit could not have been simultaneously
present at both the places on the same day, especially when the
distance between the two locations is 160 Kms and such a distance
cannot be covered by road in one hour. This is precisely the reason
why the appellant asserts that the case registered at Gwalior is false
or in other words concocted.
76. It is relevant to note that the Trial Court vide its order dated 10.07.2015
held the accused, Ashok Dixit along with 11 others guilty of murder of
the appellant’s brother. In doing so, the Trial Court had made some
pertinent observations regarding the registration of the case under the
Excise Act by the accused respondents. The Trial Court had arrived
at a categorical finding that the second FIR was registered as a result
of collusion by the present accused respondents with Ashok Dixit. It
has been observed that the IO at Dakshin, Firozabad after thorough
investigation had found out that the entire case was concocted and
hence, the Charge Sheets giving rise to Case Nos. 67 of 2008 and
67A of 2009 had been filed against the accused respondents for
being involved in the conspiracy of murder. The Trial Court also
observed that the accused respondents had been suspended by the
SSP, Gwalior and a departmental inquiry had been initiated against
them. Adding to the above, the High Court of Madhya Pradesh vide
order dated 25.08.2009 had also stayed the proceedings in Case
No. 15003 of 2007 (State vs. Ashok Dixit) under Section 34 of the
Excise Act which is pending before the CJM, Gwalior for the reason
that a decision in that case might cause severe prejudice to the case
of murder of the appellant’s brother.
77. The statements of the respondent nos. 3, 4 and 5 respectively
recorded earlier by the IO at Dakshin, Firozabad during the course
of his investigation on 23.01.2008 and later by the SHO of the Murar
Police Station, D.S. Khushawa on 12.02.2008, under Section 161
CrPC, are the only pieces of evidence that have been adduced before
us for our consideration. Those statements reveal that – (a) amongst
the two panchas of arrest and seizure namely, Shailendra Singh and
Triloki Gaur in the alleged false second case i.e., Case Crime No.
967 of 2007, Triloki Gaur was the former driver of the respondent no.
1, (b) the respondent no. 1 had arrived at the Murar Police Station
shortly after the alleged arrest of Ashok Dixit and had conversed
with the SHO of the Murar Police Station, D. S. Khushawa, (c) the
[2024] 12 S.C.R. 833
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
respondent no. 1 also had a conversation with the person arrested
by the accused respondents, and (d) the respondent no. 1 had asked
the SHO of the Murar Police Station, D.S. Khushawa, to release the
arrested person on bail stating that he was his relative. However,
it is settled law that a statement recorded under Section 161 CrPC
does not constitute substantive evidence and can only be utilized
for the limited purpose of proving contradictions and/or omissions
as envisaged under Section 145 of the Evidence Act, 1872. This
has been laid down in a catena of decisions including in Parvat
Singh and Others v. State of Madhya Pradesh reported in (2020)
4 SCC 33 which observed as follows:
“13.1…However, as per the settled proposition of law a
statement recorded under Section 161 CrPC is inadmissible
in evidence and cannot be relied upon or used to convict
the accused. As per the settled proposition of law, the
statement recorded under Section 161 CrPC can be
used only to prove the contradictions and/or omissions.
Therefore, as such, the High Court has erred in relying
upon the statement of PW 8 recorded under Section 161
CrPC while observing that the appellants were having
the lathis.”
(emphasis supplied)
78. The aforesaid position of law was reiterated in Birbal Nath v.
State of Rajasthan reported in 2023 SCC OnLine SC 1396 which
observed as thus:
“19. Statement given to police during investigation under
Section 161 cannot be read as an “evidence”. It has a
limited applicability in a Court of Law as prescribed under
Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during
investigation under Section 161 are “previous statements”
under Section 145 of the Evidence Act and therefore can
be used to cross examine a witness. But this is only for
a limited purpose, to “contradict” such a witness. Even
if the defence is successful in contradicting a witness, it
would not always mean that the contradiction in her two
statements would result in totally discrediting this witness.
834 [2024] 12 S.C.R.
Supreme Court Reports
It is here that we feel that the learned judges of the High
Court have gone wrong.”
(emphasis supplied)
79. Moreover, the statements of the two independent witness i.e., Ramesh
Yadav and Barelal recorded on 25.10.2008 by the IO at Dakshin,
Firozabad, implicating the respondent no. 1, cannot be taken as a
gospel truth either, especially when they were not examined in the
Session Trial Nos. 753 and 753A of 2008 respectively which resulted
in the conviction of the accused Ashok Dixit. Therefore, we are a
bit hesitant to rely on the version of events as stated under these
statements recorded under Section 161 CrPC at this stage. It would
be best left for the Trial Court to decide the truthfulness and veracity
of these statements which allegedly prove the case of the prosecution.
80. Furthermore, the respondent no. 1 has contended that no departmental
inquiry was ever initiated against him in relation to the registration of
Case Crime No. 967 of 2007. However, the Trial Court in its order
dated 10.07.2015 has made an observation that the respondent nos
1, 3, 4 and 5 respectively were suspended and also subjected to an
inquiry. Whether the departmental inquiry was initiated against all the
accused respondents or just some of them and the exact findings
of the inquiry is also an aspect where there exists some ambiguity.
81. Having said so, on the other hand, the respondent nos. 3, 4 and 5
respectively have also not adduced any credible evidence before us
to prima facie establish that it was Ashok Dixit who was arrested at
09:30 am at Murar, Gwalior; that the illegal liquor carried by him was
seized, and that he was later released from the Murar Police Station
on the directions of SHO, D.S. Khushawa upon furnishing a surety. It
is true that the offence contemplated under Section 34 of the Excise
Act is bailable and that any accused under the said offence would
be entitled to be released on bail from the police station. However,
bearing in mind that there exist serious suspicion as to whether an
arrest was ever made to begin with and if made, whether it was Ashok
Dixit who was indeed arrested, we find ourselves unable to arrive
at an appropriate decision at this stage due to lack of reliable and
credible evidence to verify the same. The respondent nos. 3, 4 and
5 respectively have stated that the accused had identified himself
to be Ashok Dixit upon arrest and it is unclear whether the identity
of the said accused was further duly verified while the case was
[2024] 12 S.C.R. 835
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
registered under the Excise Act. Despite the appellant’s allegation that
the release of the said accused on bail from the police station was
done hurriedly, almost immediately after arrest, in order to conceal
the identity of the person who was released and that an unconnected
stranger might have been released from the police station, no other
material which substantiates the bona fides of respondent nos. 3, 4
and 5 have been made available before us at the present moment.
82. It is the case of the IO at Dakshin, Firozabad that sanction for
prosecution of the accused respondents was not granted by the
D.I.G., Gwalior citing the pendency of Case No. 15003 of 2007 in
Case Crime No. 967 of 2007 registered for the offence under the
Excise Act before the CJM, Gwalior. However, those proceedings
have been stayed by the High Court of Madya Pradesh vide order
dated 25.08.2009 and therefore, the question of sanction can be
re-visited, if found necessary.
83. As far as respondent no. 1 is concerned, it is made clear that there
would be no requirement for sanction since he was not acting in the
discharge of his official duty by virtue of not being posted at Murar
Police Station, Gwalior at the relevant time when the alleged false
case was registered. As a consequence, the extent of the involvement
of respondent no. 1 in the alleged conspiracy to murder can be
determined by the Trial Court upon a further examination of the
evidence adduced before itself. However, so far as the respondent
nos. 3, 4 and 5 respectively are concerned, if the case of the
prosecution that they had also played a dubious role in registering a
false case is correct then the requirement of sanction would not be
a sin qua non for proceeding further with the criminal proceedings.
However, the defence must be given an opportunity to rebut the
same by leading appropriate evidence.
84. At this juncture on a prima facie examination of the materials adduced
before us, we are of the opinion that the criminal proceedings pending
before the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009
should not have been quashed at such a preliminary stage. In cases
where there is a legitimate doubt as regards whether sanction for
prosecution under Section 197 CrPC is required or not, the progress
of the trial must not be hampered or unnecessarily delayed. Therefore,
the CJM, Firozabad had rightly taken cognizance of the two charge
sheets vide its orders dated 24.11.2008 and 10.08.2009 respectively.
The High Court committed an error in failing to consider this aspect
836 [2024] 12 S.C.R.
Supreme Court Reports
while quashing the proceedings in Case No. 67 of 2008 and 67A of
2009 respectively vide its impugned order.
85. In view of the aforesaid discussion, the Trial Court is directed to
proceed with the trial and at any stage of the trial if the evidence
suggests that the acts complained of were indeed done or purported
to be done in the discharge of official duty by respondent nos. 3, 4
and 5 respectively or that the FIR registered by them was not bogus,
the trial may be stayed for want of sanction. Therefore, the question
of sanction only qua respondent nos. 3, 4 and 5 respectively is left
open to be appropriately decided by the Trial Court at a suitable
stage, in accordance with the law, without being prejudiced by
any of the observations made in this order as well as in the order
passed by the High Court. As these proceedings arise from a case
registered more than 16 years ago, the Trial Court is directed to
proceed with the trial & conclude it expeditiously preferably within
one year from today.
G. CONCLUSION
86. In light of the aforesaid, the appeals filed by the appellant are allowed
and the impugned order passed by the High Court is set aside.
87. We dispose of the present appeals in light of the aforesaid directions.
88. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Nidhi Jain
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