PROF. N. K. GANGULYversusCBI NEW DELHI

                       [2015] 10 S.C.R. 192


A                     PROF. N. K. GANGULY
                                 V.

                         CBI NEW DELHI
             (Criminal Appeal No. 798 of2015 & Ors.)
B
                       NOVEMBER 19, 2015
         [V. GOPALA GOWDA AND AMITAVA ROY, JJ.]
         Code of Criminal Procedure, 1973 - s. 197 - Sanction
c for prosecution of public servants - Requirement of -
  Allegation of unauthorized and illegal transfer of plot against
  appellant and others-public servants - Registration of
  criminal case u/s.120-8 /PC rlw ss.13(1)(d), 13(2) of the 198e
  Act against the appellants and others and thereafter, filing of
D charge-sheet- Order of the Special Judge taking cognizance
  and issuance of summons-Application by appellant seeking
  quashing of the entire proceedings-Dismissal by High Court
  - On appeal, held: For the purpose of obtaining previous
  sanction from the appropriate ·government u/s. 197, it is
E imperative that the alleged offence is committed in discharge
  of official duty by the accused - On facts, FIR and charge-
  sheet both contain references to the allegations made against
  the appellants and others, that they entered into a criminal
  conspiracy by abusing their official positions as public
F servants and illegally transferred the plot and obtained an
  undue pecuniary advantage, which is an offence u/s. 13(1)(d)
  of the 1988Act ands. 1208 /PC- Thus, s. 197 applicable to
  the facts of the case - Previous sanction of the Central
  Government was required to prosecute them for the same -
G Proceedings taking cognizance and issuing summons to
  appellant by Special Judge in absence of previous sanction
  to prosecute them, quashed - Penal Code, 1860 - s. 120-8
  - Prevention of Corruption Act, 1988 - ss. 13(1)(d), 13(2).
H
                               192
         PROF. N. K. GANGULY v. CBI NEW DELHI                    193


      Allowing the appeals, the Court                            A

        HELD: 1.1 The FIR and the charge-sheet both
  contain references to the allegations made against the
  appellants and other unknown persons, that they
  entered into a criminal conspiracy by abusing their            s
  official positions as public servants during the year 2006-
  2007 and illegally transferred the plot from ICPO to ICPO-
  ICMR Housing Society at a much lower price than the
  then prevailing sector rate. On this basis, it is alleged
  that the appellants dishonestly obtained an undue              C
  pecuniary advantage for themselves and others to the
  extent of Rs.13,14,36,823/- by illegally transferring the
  plot in favour of the said society with an ulterior motive.
  The process of transfer of the plot was initiated by the
  then Director, ICPO on the basis of a representation           D
  prepared by the then Administrative Officer, ICPO,
  containing signatures of 51 employees of ICPO sent to
  Sr. Dy. Director General (Admn), ICMR. The said
  representation was for the purpose of establishment of
  the ICPO-ICMR Housing Society with an object to                E
  promote control, coordinate and take charge of the plot
• in question. The final approval for transfer of the plot and
  formation of the proposed ICPO-ICMR society was given
  by the appellant, the then Director General of ICMR and        F
  the same was approved and communicated by Executive
  Engineer to the then Director, ICPO. The appellant
  recorded a note in the file stating that "the proposal was
  approved provided it was under the provisions of laws
  and land use for which it was acquired". The said              G
  allegations contained in the chargesheet suggest that a
 conspiracy was hatched by the appellants to commit an
 offence u/s.13(1)(d) of the P.C.Act, 1988.Aperusal of the
 chargesheet reveals that there is sufficient material on
  record to indicate the existence of the alleged                H
194         SUPREME COURT REPORTS              [2015) 10 S.C.R.

A     conspiracy. In view of the same, Section 197 CrPC is
      squarely applicable to the facts of the instant case. [Para
      17] [204-E-H; 205-A-D]

        1.2 In the instant case, it is alleged in the charge-
s sheet that the appellants entered into an agreement to
  commit an illegal act, which is an offence punishable
  under Section 1208 of IPC. Therefore, the provision of
  s.197 CrPC is squarely applicable to the facts of the case.
  Prior sanction of the Central Government was required
C to be taken by the respondent before the Special Judge
  took cognizance of the offence once the final report was
  filed u/s.173(2) CrPC. [Para 19] [205-H; 206-A-B]

        1.3 For the purpose of obtaining previous sanction
o from the appropriate government under Section 197
  CrPC, it is imperative that the alleged offence is
  committed in discharge of official duty by the accused.
  It is also important for the Court to examine the
  allegations contained in the final report against the
E appellants, to decide whether previous sanction is
  required to be obtained by the respondent from the
  appropriate government before taking cognizance of the.
  alleged offence by the Special Judge against the
  accused. In the instant case, since the allegations made
F against the appellants in the final report filed by the
  respondent that the alleged offences were committed by
  them in discharge of their official duty, therefore, it was
  essential for the Special Judge to correctly decide as to
  whether the previous sanction from the Central
G Government u/s. 197 CrPC was required to be taken by
  the respondent, before taking cognizance and passing
  an order issuing summons to the appellants for their
  presence. [Para 25] [218-D-G]
H          1.4 The judgment and order of the High Court is set
       PROF. N. K. GANGULY v. CBI NEW DELHI           195


aside and the proceedings taking cognizance and A
issuing summons to the appellants by the Special Judge
in absence of previous sanction obtained from the .
Central Government to prosecute the appellants as
required u/s.197 CrPC is quashed. [Para 26] [219-8-C]
                                                       B
     R.R. Chari v. State of Uttar Pradesh AIR 1951 SC
     207: 1951 SCR 312; Superintendent
     Remembrance of Legal Affairs, West Bengal v.
     Abhani Kumar Bannerjee AIR 1950 Cal 437;
     Shreekantiah Ramayya Munipal/i v. State of        c
     Bombay AIR 1955 SC 287: 1955 SCR 1177; Dr.
     Hori Ram Singh v. Emperor AIR 1939 FC 43;
     Amrik Singh v. State of Pepsu AIR 1955 SC
     309: 1955 SCR 1302; H.H.B. Gillv. The King AIR
     1948 PC 128; Matajog Dobey v. H.C. Bhari AIR      D
     1956 SC 44: 1955 SCR 92; Satwant Singh v.
     State of Punjab AIR 1960 SC 266: 1960 SCR
     89; Baijnath Gupta v. State of Madhya Pradesh
     AIR 1966 SC 220: 1966 SCR 210; B. Saha v.
     M.S ~.ochar(1979) 4sec177; R.S Nayak V. A.R       E
     Antutay (1984) 2 sec 183: 1984 (2) SCR 495;
     R. Balakrishna Pillai v. State of Kera/a (1996) 1
     SCC 478; Abdul Wahab Ansari v. State of Bihar
     (2000) 8 sec 500:2000 (3) Suppl. SCR 747;
     Shankaran Moitra v. Sadhna Das (2006) 4 SCC       F
     584: 2006 (3) SCR 305; State of M.P v. Sheet/a
     Sahai (2009)8 sec 617: 2009 (12) SCR 1048;
     Prakash Singh Badal. v. Union of India (2007) 1
     SCC 1: 2006 (10)·Suppl. SCR 197 - referred
     to.                                               G

                Case Law Reference
1951 SCR 312            Referred to.      Para 19
1950 Cal 437            Referred to.      Para 19
1955 SCR 1177           Referred to.      Para 20     H
    196         SUPREME COURT REPORTS                 [2015] 10 S.C.R.


    A AIR 1939 FC 43          Referred to.                   Para 20
      1955 SCR 1302           Referred to.                   Para 21
      AIR 1948 PC 128         Referred to.                   Para 21
      1955 SCR 92             Referred to.                   Para 22
      1960 SCR 89             Referred to.                   Para 22
    B 1966 SCR 210            Referred to.                   Para 22
      (1979) 4 sec 111        Referred to.                   Para 22
      1984 (2) SCR 495        Referred to.                   Para 22
      (1996) 1 sec 478        Referred to.                   Para 23
      2000 (3) Suppl. SCR 747 Referred to.                   Para 23
    c 2006 (3) SCR 305        Referred to.                   Para 23
      2009 (12) SCR 1048      Referred to.                   Para 23
      2006 (10) Suppl. SCR 197Referred to.                   Para 23
          CRIMINAL APPELLATE JURISDICTION : Criminal
    D Appeal No. 798 of 2010

               From the Judgment and Order dated 27.05.2013 of the
          High Court of Judicature at Allahabad in Application U/S 482
          No. 480 of2013.

•   E                                 WITH
               Crl.A. Nos. 799, 800, 801, 930, 1537 of2015
           P. P. Khurana, R. Basant, Gopal Subramanium, Sachin
      Sood, Rajesh Singh Chavhan, Sumit Sinha, Arun K. Sinha,
    F
      Jetendra Singh, Kalpana Sabharwal, Priyanka Singh, Vijendra
      K. Kaushik, Ved Prakash Arya, Shiv Ram Pandey, Bhupesh
      Sharma, Manju Jetley, S.D. Singh, Bharti Tyagi, Jitender Singh,
      Surbhi Shukla, T. Srinivasa Murthy, Abdul Rahman Talha,
      Senthil Jagadeesan, Shruti Iyer, Govind Manoharan, Suchitra
    G
      Kumbhat, Kushagra Pandey for the Appellant.
               Kiran Suri, Raj iv Nanda, Arch it Upadhayay, B. V. Balaram
          Das for the Respondent.
               The Judgment of the Court was delivered by
    H
        PROF. N. K. GANGULY v. CBI NEW DELHI                    197


     V. GOPALA GOWDA, J. 1. Delay condoned. Leave               A
granted in Special Leave Petition (Crl) 9838 Crl.M.P. No.9612
of2015.

     2. These appeals arise out of the common judgment and
order dated 27.05.2013 passed in Application Nos. 480 of B
2013, 41206, 40718, 41006 and 41187 of 2012 and judgment
and order by the High.,Court of Judicature at Allahabad dated
07.10.2014 passed in Application No. 277KH of 2014 in
Special Case No. 18 of 2012 by the learned Special Judge,
whereby the High Court dismissed the applications filed by C
the appellants herein under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
CrPC") to quash the criminal proceedings of Special Case
No. 18 of 2012 as well as the summoning order dated
08.11.2012 passed by the learned Special Judge, Anti D
Corruption, CBI, Ghaziabad. All the appeals are being
disposed of by this common judgment.

     3. As the facts in all the appeals are common, for the
sake of convenience, we refer fo the facts of Criminal Appeal   E
No. 798 of 2015, in this judgment which are briefly stated
hereunder:

       4. The Indian Council of Medical Research (herein<;1fter
referred to as "ICMR"), a registered society under the Societies F
Registration Act, 1860 is a premier research institute dealing
with the formulation, coordination and promotion of bio:medical
research. Its functional object is to initiate, aid develop and
coordinate medical and scientific research in India and to
promote and assist institutions for the study of diseases, their G
prevention, causation and remedy. It is fully funded by the
Gover~ment of India through Department of Health Research,
Ministry of Health and Family Welfare. The Institute of Cytology
& Preventive Oncology (hereinafter referred to as "ICPO") is
                                                                 H
198        SUPREME COURT REPORTS                [2015] 10S.C.R.


A     one of the institutes of ICMR, the main aim of which is to
      promote research in the field of cancer.

        5. On 30.11.2010, a criminal case was registered under
  Section 120~8 of the Indian Penal Code (hereinafter referred
B to as the "IPC") read with Section 13(1 )(d) and 13(2) of the
  Prevention of Corruption Act, 1988 (hereinafter referred to as
  the "P. C. Act, 1988") on the basis of written complaint filed by
  M.R. Atrey, Sub-Inspector of Police, CB('EOU, VII, New Delhi
  against the appellants herein namely N.K. Ganguly, the then
C Director General, Mohinder Singh, the then Sr. Dy. Director
  General-Admin, P.O. Seth, the then Financial Advisor, A.K.
  Srivastava, Executive Engineer, all from ICMR, New Delhi and
  B.C. Das, the then Director ICPO, NOIDA and other unknown
  persons in the matter relating to the alleged unauthorized and
D illegal transfer of plot no.119, Sector 35, NOIDA, measuring
  9712.62 sq. meters from ICPO, NOIDA to ICPO-ICMR
  Cooperative Group Housing Society Ltd. NOIDA (hereinafter
  referred to as the "ICPO-ICMR Housing Society").

E        6. In the preliminary inquiry in the matter, it was found
  that the aforesaid officials and the other unknown persons had
  entered into a criminal conspiracy by abusing their official
  position as public servants and had unauthorisedly and illegally
  transferred the aforesaid plot from ICPO to ICPO-ICMR
F Housing Society at a consideration of Rs.4,33,90,337/-which
  was much lower than the then prevailing sector rate of
  Rs.18,000/- per sq.mtrs. of NOIDA, thereby, giving themselves
  and other members of the ICPO-ICMR Housing Society an
  undue pecuniary advantage. It was also revealed in the enquiry
G thatthe membership of the ICPO-ICMR Housing Society was
  granted to such persons who were otherwise not eligible for
  getting membership as per the bye-laws of the society and
  terms and conditions stipulated and approved by ICMR for
H membership in the said society. It was further revealed that
        PROF. N. K. GANGULY v. CBI NEW DELHI                    199
                [V. GOPALA GOWDA, J.]

the officers of New Okhla Industrial Development Authority A
(hereinafter referred to as "NOIDA") allowed the transfer of the
said plot unauthorisedly and illegally from ICPO to ICPO-ICMR
Housing Society, despite the fact that they were not competent
to pass such order of transfer.
                                                                 B
      7. During the course of investigation by CBI, apart from
the aforesaid named accused persons in the FIR, the fact of
the involvement of other officials namely, L.D. Pushp, the then
Administrative Officer, ICPO, Jatinder Singh, the then Senior
Accounts Officer, ICMR, Dr. S.K. Bhattacharya, the then C
Additional Director General, ICMR, Dr. Bela Shah, Head of
NCO Division, ICMR, Smt. Bhawani Thiagarajan, the then Joint
Secretary, Ministry of Health and Family Welfare, Government
of India, S.C. Pabreja, the then Manager (Residential Plots),
NOIDAand R.S. Yadav, OSD (Residential Plots), NOIDA, was D
revealed.

     8. After completion of the investigation, a charge-sheet
was filed against the appellants for the alleged offences
committed by them on account of unauthorised and illegal        E
transfer of the plot in question in favour of the ICPO-ICMR
Housing Society.

       9. The competent authority of ICMR granted sanction
 under Section 19 of the P.C. Act, 1988 for prosecuting A.K. F
 Srivastava and Dr. Bela Shah. The charge-sheet was filed
 before the learned Special Judge, Anti Corruption, CBI
 (hereinafter referred to as the "Special Judge") against all the
 appellants, except R.S. Yadav, OSD, NOIDA, under Section
·173(2) of CrPC for the offences punishable under Section 120- G
 B of IPC read with Section 13(1)(d) and 13(2) of the P.C. Act,
 1988. The requisite sanction for prosecution against R.S.
 Yadav was declined by the Competent Authority. After
 considering the charge-sheet and other materials available
 on record, the learned Special Judge came to the conclusion H
200         SUPREME COURT REPORTS                      [2015] 10 S.C.R.


A     that a prima facie case appeared to have been made out by
      the CBI against the appellants. Accordingly, the learned Special
      Judge vide his order dated 08.11.2012 has taken cognizance
      and summonswere issued against the appellants to face the
      trial for the said offences.
 B
             10. Aggrieved ofthe order of taking cognizance and
      issuance of summons, the appellants filed applications before
      the High Court of Allahabad under Section 482 of CrPC, urging
      various grounds and prayed that the entire proceedings on
 C    the file of the learned Special Judge in the case No. 18 of
      2012 be quashed. Finding no merit in the applications filed by
      the appellants, the High Court refused to interfere with the order
      of the learned Special Judge dated 08.11.2012 and dismissed
      the same. The learned Judge of the High Court held as under:
 D
            " ..... at this stage it cannot be said that no offence under
            Section 1208 IPC read with Section 13(2) and 13(1 )(d)
            of the Prevention of Corruption Act is made out against
            the petitioners. There are sufficient materials available
 E          on record which may prima facie establish the
            involvement of the petitioners accused in commission of
            the aforesaid offences by getting the plot in question
            transferred for the purposes of constructing flats to ICPO-
            ICMR Cooperative Group Housing Society (a private
 F          housing society) in which they were also the members
            and ultimately after construction of the flats they also
            obtained individual flats after getting pecuniary benefit
            for themselves and others and caused loss to the ICPO/
            ICMR (a ~ully govt. funded body). Due to the said transfer
G           of plots allotted to ICPO for staff quarters, the officials of
            the ICPO have been permanently deprived of getting
            official quarters in future .

            ...... In this case, the role of each petitioners in processing,
 H          approving and ultimately getting the plot in question
        PROF. N. K. GANGULY v. CBI NEW DELHI                      201
                [V. GOPALA GOWDA, J.]

     transferred to ICPO-ICMR Cooperative Group Housing A
     Society (a private housing society) has been categorically
     assigned by the prosecution and after conducting
     thorough and detailed investigation in the matter, the
     charge sheet has been submitted against them, on which
     the learned Special Judge, Anti Corruption, CBI, B
     Ghaziabad has taken cognizance. In my considered
     opinion, there appears to be no infirmity, illegality,
     irregularity or jurisdictional error in submitting the charge
     sheet by the CBI and taking cognizance thereon by the C
     learned Special Judge, Anti Corruption, CBI,
     Ghaziabad."

Hence the present appeals.

       11. We have heard Mr. P.P Khurana, Mr. Gopal               D
Subramanium and Mr. R Basant, the learned senior counsel
appearing on behalf of the appellants, and Mr. P.S Patwalia,
the learned Additional Solicitor General and Ms. Kiran Suri,
learned senior counsel appearing on behalf of the respondent.
On the basis of the factual evidence on record produced before    E
us, the circumstances of the case and also in the light of the
rival legal contentions urged by the learned senior counsel for
both the parties, we have broadly framed the following points
that would arise for our consideration:-
                                                                  F
     1) Whether an offence under Section 120B IPC is made
     out against the appellants, and if so, whether previous
     sanction of the Central Government is required to
     prosecute them for the same?
                                                                  G
     2) Whether the order dated 08.11.2012 passed by the
     learned Special Judge taking cognizance of the offence
     against the appellants is legal and valid?

     3) What order?
                                                                  H
202         SUPREME COURT REPORTS                 [2015] 1OS.C.R.


A     Answer to Point Nos. 1 and 2:

          12. As the point numbers 1and2 are inter-related, we
      answer them together by assigning the following reasons:

      The issue of prior sanction required to be obtainec! against
 8
      the appellants in order to prosecute them for the offence said
      to have been committed by them under Section 1208, IPC
      has to be examined in light of the allegations contained in the
      charge-sheet that was filed before the learned Special Judge
 c    by the respondent herein.

            13. The learned senior counsel appearing on behalf of
      the appellants contended that the entire transaction of
      transferring the plot in question in favour of the ICPO-ICMR
      Housing Society was handled in a transparent manner, and it
 0
      was done keeping in view the dire need of housing of the
      employees of ICPO-ICMR. The learned senior counsel
      submitted that the transfer of the said plot from ICPO to the
      ICPO-ICMR Housing Society was done after obtaining legal
 E    opinions and necessary sanction from the competent authority
      of NOIDA. The learned senior counsel further contended that
      the CBI withheld the report of the Comptroller and Auditor
      General of India (CAG) while submitting the charge-sheet
      before the learned Special Judge, which is not tenable in law.
 F
          14. It is further contended by Mr. P.P. Khurana, and Mr.
   Gopal Subramanium, the learned senior counsel appearing
   on behalf of some of the appellants that no prior sanction was
   obtained from the Central Government, which was mandatorily
 G required under Section 197, CrPC as the appellants were
   employed as public servants at the time of commission of the
   alleged offences. It is contended by them that the transfer of
   the plot in question occurred when the appellants were holding
   public office and the alleged offences were committed by them,
 H if at all, in discharge of their official duty. Thus, the learned
          PROF. N. K. GANGULY v. CBI NEW DELHI                       203
                  [V. GOPALA GOWDA, J.]

  Special Judge erred in taking cognizance of the offences A
  alleged against the appellants without prior sanction of the
  Central Government having been obtained by the respondent.
  The learned senior counsel further contended that the learned
  Special Judge should not have taken cognizance in the
· absence of prior sanction obtained from the Central B
  Government, especially in light of the fact that taking cognizance
  of the alleged offences and setting the wheel of the criminal
  justice system in motion is a matter which could affect the
  fundamental rights guaranteed to the appellants under Articles
  14, 19 and 21 of the Constitution of India.                        C

        15. The other learned counsel appearing on behalf of
 other appellants have adopted the arguments made by Mr.
 P.P Khurana and Mr. Gopal Subramanium and they have filed
 their written submissions in support of their contentions, which D
 are also considered by this Court.

        16. On the other hand, Mr. P.S. Patwalia, the learned
 Additional Solicitor General and Ms. Kiran Suri, learned senior
 counsel appearing on behalf of the respondent contended that E
 the legal submissions advanced by the learned senior counsel
 appearing on behalf of the appellants are wholly untenable in
 law for the reason that the very act of the appellants constitute
 an offence under IPC, as they entered into a conspiracy to
 illegally transfer the plot in question in favour of the said society F
 referred to Supra without obtaining the permission of the
 competent authority of NOIDA, with an ulterior motive to make
 unlawful gain for themselves. The appellants became members
 of the ICPO-ICMR Housing Society, even though they were
 not eligible to be enrolled as members of the society, and G
 thereafter proceeded to transfer the plot at a value which was
 much lesser than the prevailing market rate at the time, thus
 making an unlawful gain for themselves, which is al] offence
 under Section 13(1)(d) of the P.C. Act, 1988, punishable under H
204        SUPREME COURT REPORTS                  [2015] 10S.C.R.


A  Section 13(2) of the Act. It is further contended that the CBI
   filed the charge-sheet against the appellants after due
   investigation, and therefore, the High Court has rightly
   dismissed the applications filed by them under Section 482 of
   CrPC by passing a valid judgment and order which does not
 B call for interference by this Court in exercise of its appellate
   jurisdiction. The illegal acts done by the appellants in
   transferring the said plot at a lower price cannot be said to
   have been carried out in exercise of their official duty.
   Therefore, no previous sanction from the CompetentAuthority
 C was required under Section 197 of CrPC to prosecute the
   appellants for the alleged offence. The learned Additional
   Solicitor General and the learned senior counsel appearing
   on behalf of the respondent submitthat this is the reason that
 D the present cases are not ones which warrant for this Court to
   exercise its appellate jurisdiction and quash the proceedings
   as prayed bytheAppellants.

           17. The FIR and the charge-sheet both contain
   references to the allegations made against the appellants and
 E other unknown persons, that they entered into a criminal
   conspiracy by abusing their official positions as public servants
   during the year 2006-2007 and illegally transferred the plot in
   question from !CPO to ICPO-ICMR Housing Society at a much
 F lower price than the then prevailing sector rate. On this basis,
   it is alleged that the appellants dishonestly obtained an undue
   pecuniary advantage for themselves and others to the extent
   of Rs.13, 14,36,823/- by illegally transferring the plot in favour
   of the above said society with an ulterior motive. The process
 G of transfer of the plot was initiated by B.C. Das, the then
   Director, ICPO, vide letter dated 29.03.2006 on the basis of a
   representation prepared byl.D. Pushp, thethenAdministrative
   Officer, ICPO, containing signatures of 51 employees of ICPO
   sent to Mohinder Singh, Sr. Dy. Director General (Admn),
 H ICMR. The said representation was for the purpose of
        PROF. N. K. GANGULY v. CBI NE\'V DELHI                     205
                [V. GOPALA GOWDA, J.J

establishment of the ICPO-ICMR Housing Society with an A
object to promote control, coordinate and take charge of the
plot in question. The final approval for transfer of the plot and
formation of the proposed ICPO-ICMR society was given by
the appellant N.K. Ganguly, the then Director General of ICMR
on 06.06.2006 _and the same was approved and B
communicated by A.K. Srivastava, Executive Engineer vide
letter dated 09.06.2006 to B.C. Das. On 12.06.2006, N.K.
(3anguly recorded a note in the file stating that "the proposal
was approved provided it was under the provisions of laws
and land use for which it was acquired". The aforesaid C
allegations contained in the chargesheet suggest that a
conspiracy was hatched by the appellants to commit an offence
under Section 13(1)(d) of the P.C. Act, 1988. A perusal of the
chargesheet reveals that there is sufficient material on record
                                                                0
to indicate the existence of the alleged conspiracy. In view of
the same, Section 197 of CrPC is squarely applicable to the
facts of the present case.

      18. At this stage, it is important to examine the concept
of criminal conspiracy as defined in IPC. Section 120-A of the     E
IPC reads as under:

     "When two or more persons agree to do, or cause to be
     done,-
                                                                   F
     ( 1) an illegal act, or

     (2) an act which is not illegal by illegal means, such an
     agr~ement is designated a criminal conspiracy: Provided
     that no agreement except an agreement to commit an G
     offence shall amount to a criminal conspiracy unless
     some act besides the agreement is done by one or more
     parties to such agreement in pursuance thereof."

      19. In the instant case, it is alleged in the charge-sheet   H
that the appellants entered into an agreement to commit an
206            SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     illegal act, which i& an offence punishable under Section 1208
      of IPC. Therefore, the provision of Section 197 of CrPC is
      squarely applicable to the facts of the case. Prior sanction of
      the Central Government was required to be taken by the
      respondent before the learned Special Judge took cognizance
 B    of the offence once the final report was filed under Section
      173(2) of CrPC. In this regard, Mr. Gopal Subramanium,
      learned senior counsel appearing on behalf of the appellant
      has very aptly placed reliance on the decision of a three judge
      bench of this Court in the case of R.R. Chari v. State of Uttar
C     Pradesh 1, wherein, while examining the scope of Section 197
      of CrPC, this Court made an observation indicating that the
      term "cognizance" indicates the stage of initiation of
      proceedings against a public servant. The Court placed
      reliance upon the judgment of the Calcutta High Court delivered
 0
      in the case of Superintendent and Remembrance of Legal
      Affairs, West Bengal v. Abhani Kumar Bannerjee2, wherein
      it was held that before taking cognizance of any offence, a
      Magistrate must not only be said to have applied his mind to
 E    the contents of the petition-

               " but he must have done so for the purpose of proceeding
               in a particular way as indicated in the subsequent
               provisions of this Chapter,-proceeding under Section
               200, and thereafter sending it for enquiry and report under
 F
               Section 202. When the Magistrate applies his mind not
               for the purpose of proceeding under the subsequent
               sections of this Chapter, but for taking action of some
               other kind, e.g., ordering investigation under Section
G              156(3), or issuing a search warrant for the purpose of
               the investigation, he cannot be said to have taken
               cognizance of the offence."

       1
           AIR 1951 SC 207
 H    2
           AIR 1950 Cal 437
           PROF. N. K. GANGULY v. CBI NEW DELHI                      207
                   [V. GOPALA GOWDA, J.]

        20. Both the learned senior counsel placed reliance on A
another judgment of a three judge bench of this Court in
Shreekantiah Ramayya Munipal/i v. State of Bombay3. In
that case, the allegation against the appellant therein and two
other government servants was that they had conspired to
defraud the Government in respect of certain properties and B ·
arranged to sell the goods to the approver. The case against
them was registered under Section 120-8 read with Section
409 of IPC. While considering the contention advanced that
the said acts could not be said to have been committed in
discharge of official duty, Bose, J. placed reliance upon the C
observations made by the Federal Court in the case of Dr.
Hori Ram Singh v. Emperor', wherein Vardachariar, J
observed that in respect of a charge under Section 409 of
IPC, the official capacity is relevant only for entrustment, and
                                                                 0
not necessarily in respect of misappropriation or conversion
which may be the act complained of. It was held by this Court
that the correct position of law was laid down in the case of
Hori Ram Singh, which is as under:-

        " I would observe at the outset that the question is         E
       .substantially one of fact, to be determined with reference
        to the act complained of and the attendant
        circumstances; it seems neither useful nor desirable.to
        paraphrase the language of the section in attempting to      F
        lay down hard and fast tests."

Bose, J., further held in Shreekantiah case referred to supra
that there are cases and cases and each must be decided on
its own facts. It was held as under:
                                                                     G
        "Now it is obvious that if Section 197 of the Code of
        Criminal Procedure is construed too narrowly it can never

'AIR 1955 SC 287
4
    AIR 1939 FC 43                                                   H
208            SUPREME COURT REPORTS                      [2015) 10 S.C.R.


A             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
              an official act can be performed in the discharge of
              official dufyias well   as in dereliction of !t."
 B
                                             (emphasis laid by this Court)

            While considering the facts of the case, Bose J. observed
      that the offence in question, could not have been committed
c     any other way, and held as under:                .
               "... If it was innocent. it was an official act; if dishonest. it
               was the dishonest doing of an official act. but in either
               event the act was official because the second accused
             . could not dispose of the goods save by the doing of an
D              official act. namely officially permitting their disposal: and
               that he did. He actually permitted their release and
               purported to do it in an official capacity, and apart from
               the fact that he did not pretend to act privately; there was
               no other way in which he could have done it. Therefore,
 E
               whatever the intention or motive behind the act may have
               been, the physical part of it remained unaltered, so if it
               was official in the one case it was equally official in the
               order, and the only difference would lie in the intention
F              with which it was done: in the one event, it would be done
               in the discharge of an official duty and in the other, in the
               purported discharge of it."
                                            (emphasis laid by this Court)

G           21. Mr. Gopal Subramanium, the learned senior counsel
      on behalf of some of the appellants has further rightly placed
      reliance upon the judgement of a three judge bench of this
      Court in the case of Amrik Singh v. State of Pepsu5 to
      buttress the contention that the issue of requirement of prior
H     5
                                                '
          AIR 1955 SC 309
        PROF. N. K. GANGULY v. CBI NEW DELHI                        209
                [V. GOPALA GOWDA, J.)

sanction under Section 197 of Cr.PC can be raised at any A
stage of the proceedings, and not just at stage of framing of
charges. The decision in the case of Hori Ram Singh (supra)
was also quoted with approval, especially the categorisation
of situations in three scenarios, as under:
                                                              B
       "a) Decision which held that sanction was necessary
       when the act complained of attached to the official
       character of the person doing it;

     b) Judgments which held that sanction was necessary in         c
     all cases in which the official character of the person gave
     him an opportunity for the commission of the crime; and

     c) Those which held it was necessary when the offence
     was committed while the accused was actually engaged           D
     in the performance of official duties."

It was further held in the Amrik Singh case that:

     "The result of the authorities may thus be summed up: i!
     is not every offence committed by a public servant that E
     requires sanction for prosecution u/s 197 of the Cr.PC;
     nor even everv 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 F
     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 invested at the trial and could not G
     arise at the stage of grant of sanction, which must
     precede the institution of the prosecution."

                                 (emphasis laid by this Court)
                                                                    H
210            SUPREME COURT REPORTS                    [2015] 10S.C.R.


A          The position of law, as laid down in the case of Hori Ram
      Singh was also approved by the Pr.ivy Council in the case of
      H.H.B. Gill v. The King 6, wherein it was observed as under:

              "A public servant can only be said to act or purport to act
 s            in the discharge of his official duty, if his act is such as to
              lie within the scope of his official duty."

        22. Reliance was further rightly placed by the learned
  senior counsel on the decision of a constitution bench of this
c Court in the case of Matajog Dobey v. H. C. BharF, which
  pertained to an income tax investigation. It was alleged by the
  appellant therein that while conducting a search, the officials
  of the income tax department had forcibly broke open the
  entrance door of the house and interfered with the boxes and
o drawers of the tables. It was also alleged by the appellant
  therein that the officials tied him and beat him up. Upon an
  enquiry of the said complaint, the magistrate came to the
  conclusion that a prima facie case had been made out and
  issued process. During the course of trial, the issue pertaining
E to want of sanction was urged. This Court held as under:

              "Article 14 does not render Section 197, Criminal
              Procedure Code ultra vires as the discrimination is based
              upon a rational classification. Public servants
 F            have to be protected from harassment in the discharge
              of official duties while ordinary citizens not so engaged
              do not require this safeguard."
                                           (emphasis laid by this Court)
G           On the other hand, ordinary citizens not so engaged do
      not require this safeguard. It was further observed that:-

              " .... Whether sanction is to be accorded or not, is a matter
              for the Government to consider. The absolute power to
      6
H         AIR 1948 PC 128
      7
          AIR 1956 SC 44
          PROF. N. K. GANGULY v. CBI NEW DELHI                      211
                  [V. GOPALA GOWDA, J.]

       accord or withhold sanction on the Government is A ·
       irrelevant and foreign to the duty cast on that Court which
       is the ascertainment of the true nature of the act."

The Court finally summed up the result of the discussion as
follows:-                                                           B

       "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   c
       did it in the course of the performance of his duty..... "

                                  (emphasis laid by this Court)

In the case of Satwant Singh v. State of Punjab 8 , a
constitution bench of this Court while examining the scope of D
Section 197 of CrPC, observed as follows:
       "It appears to us to be clear that some offences cannot
       by their very nature be regarded as having been
       committed by public servants while acting or purporting E
       to act in the discharge of their official duty. For instance,
       acceptance of a bribe, an offence punishable under s.161
       of IPC, is one of them and the offence of cheating or
       abetment thereof is another... where a public servant
       commits the offence of cheating or abets another so to F
       cheat, the offence committed by him is not one while he
       is acting or purporting to act in the discharge of his official
       duty, as such offences have no necessary connection
       between them and the performance of the duties of a
       public servant, the official status furnishing only the G
       occasion or opportunity for the commission of the
       offences ..... .

8
    AIR 1960 SC 266
                                                                    H
212           SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A            ... the Act of cheating or abetment thereof has no
             reasonable connection with the discharge of official duty.
             The act must bear such relation to the duty that the public
             servant could lay a reasonable but not a pretended or
             fanciful claim, that he did it in the course of the
 B           performance of his duty."

      In the case of R.R. Chari referred to supra, while examining
      the scope of Section 197 of CrPC, this Court held as follows:

             "It is clear that the first part of Section 197(1) provides a
c            special protection, inter alia, to public servants who are
             not removable from their offices save by or with the
             sanction of the State Government or the Central
             Government where they are charged with having
 D           committed offences while acting or purporting to act in
             the discharge of their official duties; and the form which
             this protection has taken is that before a criminal Court
             can take cognizance of any offence alleged to have been
             committed by such public servants, a sanction should
 E           have been accorded to the said prosecution by the
             appropriate authorities. In other words, the appropriate
             authorities-must be satisfied that there is a prima facie
             case for starting the prosecution and this prima facie
             satisfaction has been interposed as a safeguard before
 F           the actual prosecution commences. The object of Section
             197(1) clearly is to save public servants form frivolous
             prosecution. ..... " .

                                         (emphasis laid by this Court)
 G
      The learned senior counsel further placed reliance on a three
      judge bench decision of this Court in the case of Baijnath
      Gupta v. State of Madhya Pradesh9, wherein the question
      that arose before this Court was whether the conviction of the
 H    9
          AIR 1966 SC 220
            PROF. N. K. GANGULY v. CBI NEW DELHI                         213
                   [V. GOPALA GOWDA, J.]

appellant underSections409 and 477Aofthe IPC was illegal · A
for want of sanction. This Court observed as follows:

         "It is not that every offence committed by a public servant
         that requires sanction for prosecution under Section
         197(1) of the Criminal Procedure Code; nor even every           s
         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            C
         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 Section 197 of the
         Criminal Procedure Code will be attracted. An offence
         may be entirely unconnected with the official duty as such      D
         or it may be committed within the scope of the 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."                                       E

                                    . (emphasis laid by this Court)

In the case of B. Saha v. M.S Kochar10, the constitution bench
of this Court observed that the question of sanction under               F
Section 197 of CrPC could be raised and considered at any
stage of the proceedings. On the issue of when the protection
of Section 197 of CrPC is attracted, this Court held as under:

        "In sum, the sine qua non for the applicability of this G
        Section is that the offence charged, be it one of
        commission or omission, must be one which has been
        committed by the public servant either in his official
        capacity or under colour of the office held by him."
10
     (1979) 4   sec 111                                                  H
214            SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A     The learned senior counsel further placed reliance on the
      decision of a constitution bench of this Court in the case of R.
      S. Nayak v. A. R Antulay11 , wherein certain observations
      were made with regard to Section 6 of P.CAct, 1988, as under:

 B            ''Therefore, it unquestionably follows that the sanction to
              prosecute can be given by an authority competent to
              remove the public servant from the office which he has
              misused or abused because that authority alone would
              be able to know whether there has been a misuse or
c             abuse of the office by the public servant and not some
              rank outsider. By a catena of decisions, it has been held
              that the authority entitled to grant sanction must apply its
              mind to the facts of the case, evidence collected and
              other incidental facts before according sanction. A grant
 D            of sanction is not an idle formality but a solemn and
              sacrosanct act which removes the umbrella of protection
              of Government servants against frivolous prosecutions
              and the aforesaid requirements must therefore, be strictly
              complied with before any prosecution could be launched
 E            against public servants .... The Legislative advisedly
              conferred power on the authority competent to remove
              the public servant from the office to grant sanction for the
              obvious reason that that authority alone would be able,
              when facts and evidence are placed before him to judge
 F
              whether a serious offence is committed or the
              prosecution is either frivolous or speculative. That
              authority alone would be competent to judge whether on
              the facts alleged, there has been an abuse or misuse of
 G            office held by the public servant. That authority would be .
              in a position to know what was the power conferred on
              the office which the public servant holds, how taht power
              could be abused for corrupt motive and whether prima
              facie it has been so done. That competent authority alone
 H     11
            (1984) 2 sec 183
        PROF. N. K. GANGULY v. CBI NEW DELHI                      215
                [V. GOPALA GOWDA, J.]

     would know the nature and functions discharged by the A
     public servant holding the office and whether the same
     has been abused or P.'lisused. It is the vertical hierarchy
     between the authority competent to remove the public
     servant from that office and the nature of the office held
     by the public servant against whom sanction is sought B
     which would indicate a hierarchy and which would
     therefore, permit interference of knowledge about the
     fuctions and duties of the office and its misuse or abuse
     by the public servant. That is why the legislature clearly
     provided that that authority done would be competent to C
     grant sanction which is entitled to remove the public
     servant against whom sanction is sought from the
     office ......

                                (emphasis laid by this Court)     D

      23. Mr. P.P. Khurana, the learned senior counsel
appearing on behalf of some of the appellants has further
placed reliance upon the judgments of this Court in the cases
of R. Balakrishna Pillai v. State of Kerala 12 , Abdul Wahab      E
                           3,
Ansari v. State of Bihar1 Shankaran Moitra v. Sadhna
Das 14, and State of M.P v. Sheet/a Sahai15, in support of his
submission that tlie acts constituting the offence were alleged
to have been committed by the appellant in discharge of his
official duty ard that being the fact, it was not open to the     F
Special Judge court to take cognizance of the offences without
obtaining the previous sanction of the Central Government by
the respondent. ·

     24. The learned Additional Solicitor General, on the other G
hand, appearing on behalf of CBI placed strong reliance on

"(1996) 1 sec 478
" (2000) 8 sec 500
" (2006) 4 sec 584                                                H
" (2009)8 sec 617
216            SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A     the decision of this Court in the case of Prakash Singh Badal
      v. Union of lndia 16 to buttress his contention that no sanction
      was required to be taken in the instant case as the Appellants
      have entered into a criminal conspiracy, therefore, it cannot
      be said to be a part of their official duty as the public servants.
B     The act of the appellants of transferring the plot in question in
      favour of the aforesaid society, allotted in favour of ICMR for
      the purpose of construction of the flats and allotting the same
      in favour of the employees of ICPO-ICMR society without
C     obtaining the order from either C~O or Chairman of the NOIDA
      with a motive. to make wrongful gain for themselves after
      entering into a conspiracy cannot be said to be an act that has
      been carried out in discharge of their official duty. The learned
      Additional Solicitor General placed reliance on the following
      paragraphs of the Prakash Singh Badal case (supra):-
0
               "49. Great emphasis has been led on certain decisions
               of this Court to show that even in relation to offences
               punishable under Section 467 and 468 sanction is
               necessary. The foundation of the position has reference
E              to some offences in Rakesh Kumar Mishra's case. That
               decision has no relevance because ultimately this Court ·
               has held that the absence of search warrant was intricately
               with the making of search and the allegations about
               alleged offences had their matrix on the absence of
F
               search warrant and other circumstances had a
               determinative role in the issue. A decision is an authority
               for what it actually decides. Reference to a particular
               sentence in the context of the factual scenario cannot be "
G              read out of context.

               50. The offence of cheating under Section 420 or for
               that matter offences relatable to Sections 467, 468, 471
               and 1208 can by no stretch of imagination by their very
      16
H          (2001) 1 sec 1
        PROF. N. K. GANGULY v. CBI NEW DELHI                               217
                [V. GOPALA GOWDA, J.]

     nature be regarded as having been committed by any                    A
     public servant while acting or purporting to act in
     discharge of official duty. In such cases, official status
     only provides an opportunity for commission of the
     offence."
                                                                           B
Mr. P.P Khurana and Mr. Gopal Subramaniam, the learned
senior counsel appearing on behalf of some of the appellants,
on the other hand, contend that the decision in the Prakash
Singh Badal case needs to be appreciated in light of the facts
of that case. Thus, while stating that the offences under C
Sections 420,467,468,471 and 120B of IPC can by no stretch
of imagination and by their very nature be regarded as having
been committed by any public servant while acting or.
purporting to act in discharge of his official c;luty, this Court did
not mean that merely because an official was charged with an D
offence under these sections, no sanction was required to be
taken. The learned counsel placed reliance on the following
paragraph of the judgment to emphasise the same:

     "51. In Baijnath v. StateofM.P (1966 (1) SCR210)the                   E
     position was succinctly stated as follows:
     " .. it is the quality of the Act that is important and if it falls
     within the scope and range of his official duty the
     protection contemplated by Section 197 of the Code of
     Criminal Procedure will be attracted.""                               F
     The learned senior counsel also placed reliance on the
     three judge bench decision of this Court rendered in the
     case of Shreekantiah Ramayya Munipal/i; referred to
     supra, wherein it was held as under:                                  G
     "18 ..... If Section 197 of the Code of Criminal Procedure
     is construed too narrowly it can never be applied, for of
     ofcourse 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              H
218        SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A          to examine so much as the act because an official act
           can be performed in the discharge of official duty as well
           as in dereliction of it. ...
           19. Now an offence seldom consists of a single act. It is
           usually composed of several elements and as a rule a
 B
           whole series of acts must be proved before it can be
           established .... Now it is evident that the entrustment and/
           or domino here were in an official capacity and it is
           equally evident that there could in this case be no
c          disposal, lawful or otherwise, save by an act done or
           purporting to be done in an official capacity.... "

        25. From a perusal of the case law referred to supra, it
  becomes clear that for the purpose of obtaining previous
  sanction from the appropriate government under Section 197
D of C rPC, it is imperative that the alleged offence is committed
  in discharge of official duty by the accused. It is also important
  for the Court to examine the allegations contained in the final
  report against the Appellants, to decide whether previous
E sanction is required to be obtained by the respondent from
  the appropriate government before taking cognizance of the
  alleged offence by the learned Special Judge against the
  accused. In the instant case, since the allegations made against
  the Appellants in the final report filed by the respondent that
F the alleged offences were committed by them in discharge of
  their official duty, therefore, it was essential for the learned
  Special Judge to correctly decide as to whether the previous
  sanction from the Central Government under Section 197 of
  CrPC was required to be taken by the respondent, before
G taking cognizance and passing an order issuing summons to
  the appellants for their presence.

      Answer to Point No.3

         26. We have adverted to the contentions advanced by
 H the learned counsel appearing on behalf of both the parties.
             PROF. N. K. GANGULY v. CBI NEW DELHI                219
                     [V. GOPALA GOWDA, J.]

We find much merit in the contention advanced by the learned     A
senior counsel & other counsel appearing on behalf of the
appellants and accept the same. We accordingly pass the
following order:

       For the aforesaid reasons, we set aside the impugned B
judgment and order of the High Court dated 27.05.2013
passed in Application Nos. 480 of 2013, 41206, 40718,
41006 and 41187 of2012 and order dated 7.10.2014 passed
in Application No. 277KH of 2014 in Special Case No. 18 of
2012 and quash the proceedings taking cognizance and C
issuing summons to the appellants in Special Case No. 18 of
2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad,
U .P. in absence of previous sanction obtained from the Central
Government to prosecute the appellants as required under
Section 197 of CrPC. The appeals are allowed. All the D
applications are disposed of.

Nidhi Jain                                    Appeals allowed.