SHADAKSHARIversusSTATE OF KARNATAKA & ANR.

                  [2024] 1 S.C.R. 429 : 2024 INSC 42

                                Shadakshari
                                        v.
                        State of Karnataka & Anr.
                      (Criminal Appeal No.256 of 2024)
                               17 January 2024
               [Abhay S. Oka and Ujjal Bhuyan*, JJ.]

                            Issue for Consideration
       Whether sanction u/s. 197 Cr.P.C. is required to prosecute
       respondent No. 2 who faces accusation amongst others of
       creating fake documents by misusing his official position as a
       Village Accountant, thus a public servant. The competent authority
       has declined to grant sanction to prosecute. High Court has held
       that in the absence of such sanction, respondent No. 2 cannot
       be prosecuted and consequently has quashed the complaint as
       well as the chargesheet, giving liberty to the appellant to assail
       denial of sanction to prosecute respondent No. 2 in an appropriate
       proceeding, if so advised.

                                   Headnotes
       Code of Criminal Procedure, 1973 – s.197 – Sanction under –
       Appellant-complainant lodged an FIR alleging that respondent
       no.2 and another were irregularly creating documents of
       property in the name of dead person despite knowing the fact
       those were fake documents – The High Court observed that
       respondent no.2 was a public servant – The offence complained
       against him, as per prosecution, was committed while
       discharging his duties as a public servant – Sanction sought
       by the investigating officer was denied – Consequently, the
       High Court held that since sanction was refused, prosecution
       for criminal offence against public servant cannot continue
       – Propriety:
       Held: It is settled that s.197 Cr.P.C. does not extend its protective
       cover to every act or omission of a public servant while in
       service – It is restricted to only those acts or omissions which are
       done by public servants in the discharge of official duties – The

* Author
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       question whether respondent No.2 was involved in fabricating
       official documents by misusing his official position as a public
       servant is a matter of trial – Certainly, a view can be taken
       that manufacturing of such documents or fabrication of records
       cannot be a part of the official duty of a public servant – If that
       be the position, the High Court was not justified in quashing the
       complaint as well as the chargesheet in its entirety, more so
       when there are two other accused persons besides respondent
       No.2 – There is another aspect of the matter – Respondent
       No.2 had unsuccessfully challenged the complaint in an earlier
       proceeding u/s. 482 Cr.P.C. – Though liberty was granted by the
       High Court to respondent No.2 to challenge any adverse report
       if filed subsequent to the lodging of the complaint, instead of
       confining the challenge to the chargesheet, respondent No.2
       also assailed the complaint as well which he could not have
       done – The High Court erred in quashing the complaint as well
       as the chargesheet in its entirety. [Paras 23, 25]
       Code of Criminal Procedure, 1973 – s. 197 – Ambit, scope
       and effect of:
       Held: The object of such sanction for prosecution is to protect a
       public servant discharging official duties and functions from undue
       harassment by initiation of frivolous criminal proceedings. [Para 19]

                                Case Law Cited
            State of Orissa Vs. Ganesh Chandra Jew, [2004] 3
            SCR 504:(2004) 8 SCC 40; D. Devaraja Vs. Obais
            Sanders Hussain, [2020] 6 SCR 453:(2020) 7 SCC
            695 – relied on.
            A.Srinivasulu v. State Rep. by the Inspector of Police,
            [2023] 10 SCR 11: 2023 SCC OnLine SC 900 –
            distinguished.
            Lalita Kumari Vs. Govt. of Uttar Pradesh, [2013] 14
            SCR 713:(2014) 2 SCC 1; Shambhoo Nath Misra Vs
            State of U.P., [1997] 2 SCR 1139:(1997) 5 SCC 326
            – referred to.

                                  List of Acts
       Code of Criminal Procedure, 1973 – s. 197.
[2024] 1 S.C.R.                                                          431

                Shadakshari v. State of Karnataka & Anr.


                             List of Keywords
     Public servant; Fabrication of record; Discharge of official
     duties; Sanction; Protective cover to act or omission by
     public servant.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 256
     of 2024.
     From the Judgment and Order dated 25.11.2020 of the High Court of
     Karnataka at Bengaluru in CRP No.4998 of 2020.
                         Appearances for Parties
     C. B. Gururaj, Prakash Ranjan Nayak, Animesh Dubey, T. G. Ravi,
     Advs. for the Appellant.
     D. L. Chidananda, Rahul Kaushik, Anil C Nishani, V Murnal, Krishna
     M Singh, Rajivkumar, Advs. for the Respondents.
                Judgment / Order of the Supreme Court
                                   Judgment
     Ujjal Bhuyan, J.
     Heard learned counsel for the parties.
2.   Challenge made in this appeal is to the order dated 25.11.2020
     passed by the High Court of Karnataka at Bengaluru in Criminal
     Petition No.4998 of 2020 (Sri. Mallikarjuna Vs. State of Karnataka)
     quashing the complaint dated 19.12.2016 lodged by the appellant;
     the chargesheet in C.C. No.116 of 2018 including the order dated
     28.03.2018 passed therein by the learned Judicial Magistrate First
     Class, Belur.
3.   Facts lie within a very narrow compass. The appellant as the
     complainant lodged a first information report dated 19.12.2016
     (referred to as ‘the complaint’ in the impugned order) alleging that
     respondent No.2 and another were irregularly creating documents of
     property in the name of dead person despite knowing the fact that
     those were fake documents, such as, death certificate, family tree
     of the original successor of land of the appellant etc. for illegal gain.
     The said first information was received and registered by Haleebedu
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       Police Station, Belur as Crime No. 323/2016 under Sections 409,
       419, 420, 423, 465, 466, 467, 468, 471 and 473 of the Indian Penal
       Code, 1860 (IPC) read with Section 149 and Section 34 thereof.
4.     It may be mentioned that respondent No.2 is working as Village
       Accountant, Kirigdalu Circle in the district of Hassan, Karnataka State.
5.     Respondent No.2 filed a petition under Section 482 of the Code of
       Criminal Procedure, 1973 (Cr.PC) for quashing of the said FIR before
       the High Court of Karnataka at Bengaluru (‘High Court’ for short).
       The same was registered as Criminal Petition No.9580 of 2017.
       5.1 The High Court in its order dated 05.01.2018 noted that the
           specific case of the appellant was that land admeasuring 1 acre
           13 guntas in survey No.7/6 situated at Chattanahalli Village,
           Halebeedu Hobli, Belur Taluk, Hassan District belonged to
           the appellant and his family members. The same was given
           to accused No.1 for the purpose of cultivation. Accused No.1
           in collusion with revenue officials including accused No.2
           (respondent No.2 herein) created lot of fake documents in favour
           of respondent No.1. High Court vide the order dated 05.01.2018
           observed that there were specific and serious allegations against
           respondent No.2 even as to creation of death certificate of a
           living person. It was observed that a reading of the FIR made
           out a case for investigation and that it was too premature to
           interfere with such FIR. Adverting to the case of Lalita Kumari
           Vs. Govt. of Uttar Pradesh, (2014) 2 SCC 1, the High Court did
           not interfere though granted liberty to respondent No.2 to seek
           his legal remedy in the event any adverse report was made.
6.     Sub Inspector of Police, Haleebedu Police Station, who was the
       investigating officer submitted final report under Section 173 of the
       Cr.PC in the Court of the Additional Civil Judge (Junior Division)
       and Judicial Magistrate First Class, Belur on 20.03.2018 which was
       registered as chargesheet No.12/2018. The following persons have
       been named as accused in the chargesheet:
            i.     Accused No.1 - Ramegowda
            ii.    Accused No.2 - Mallikarjuna (respondent No.2)
            iii.   Accused No.3 - Manjunath Aras
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                Shadakshari v. State of Karnataka & Anr.


     They have been charged under Sections 471, 468, 467, 465, 420,
     409, 466 and 423 read with Section 34 of IPC. The chargesheet
     also mentions the names of thirty-one witnesses.
7.   As per the chargesheet, the deceased husband of witness No.2
     Somashekharappa had permitted his deceased younger brother
     Thumbegowda to use the subject land for cultivation about 40-50
     years ago. After the death of Thumbegowda, his son i.e. accused
     No.1 was cultivating the subject land. During the year 1993,
     Somashekharappa died but accused No.1 in collusion with accused
     No. 2 (respondent No.2) created a fake certificate of death to the
     effect that Somashekharappa had died during the year 2010.In this
     fake document, father of the deceased Thumbegowda was mentioned
     as Somashekharappa instead of Sannasiddegowda. By creating such
     fake document, the accused sought to make illegal gain.
8.   Respondent No.2 again approached the High Court by filing a petition
     under Section 482Cr.PC for quashing the complaint dated 19.12.2016
     as well as the chargesheet and the order dated 28.03.2018 (what is
     the order dated 28.03.2018 has not been mentioned by respondent
     No.2). It may be mentioned that upon the chargesheet being filed
     in the court of the Additional Civil Judge (Junior Division) and
     Judicial Magistrate First Class, Belur, the same was registered as
     C.C. No.116 of 2018. The quash petition of respondent No.2 was
     registered as Criminal Petition No.4998 of 2020. The High Court
     observed that respondent No.2 was a public servant. The offence
     complained against him, as per the prosecution, was committed while
     discharging his duties as a public servant. Investigating officer had
     sought for sanction to prosecute respondent No.2 but sanction was
     denied. In such circumstances, High Court held that since sanction
     was refused, prosecution for criminal offence against a public servant
     cannot continue. Consequently, the complaint, the chargesheet as
     well as the order dated 28.03.2018 were set aside by the High Court
     vide the order dated 25.11.2020.
9.   Aggrieved thereby, the complainant as the appellant has instituted
     the present proceeding.
10. This court by order dated 15.05.2023 granted permission to the
    appellant to file special leave petition. After condoning the delay,
    notice was issued.Thereafter, respondent No.2 filed counter affidavit.
    On perusal of the counter affidavit of the second respondent this
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       court in the proceedings held on 21.11.2023 noted that Annexure R-1
       annexed to the said affidavit was a file noting recording the opinion
       of some officers that it was not a fit case to accord sanction under
       Section 197 Cr.PC to prosecute the second respondent. However, this
       Court noticed that there was no decision of the competent authority
       granting sanction. In such an eventuality, this Court directed the
       State to file an affidavit dealing with the aspect of sanction and to
       produce the relevant document.
11. Pursuant thereto respondent No. 1 i.e State of Karnataka has filed an
    affidavit. The affidavit says that the investigating officer had written to
    the Deputy Commissioner, Hassan, on 22.01.2018 seeking sanction
    to prosecute the village accountant Mallikarjun (Responsible No. 2).
    It is further seen that the Additional Deputy Commissioner, Hassan
    had informed the investigating officer vide letter dated 17.03.2018
    that upon examination of the concerned file and considering the
    opinion of the legal advisor, sanction for prosecution of respondent
    No. 2 was not granted.
12. Learned counsel for the appellant submits that the High Court was
    not justified in quashing the complaint as well as the chargesheet
    and the related cognizance order. He submits that no sanction to
    prosecute was required qua respondent No. 2 as making of a fake
    document cannot be said to be carried out by respondent No. 2 in
    the discharge of his official duty. In support of his contention, he
    has placed reliance on the decision of this Court in Shambhoo Nath
    Misra Vs State of U.P., (1997) 5 SCC 326.
13. Learned State counsel supports the contentions of the learned
    counsel for the appellant.
14. On the other hand, learned counsel for respondent No. 2 supports the
    order of the High Court and submits that the High Court had rightly
    quashed the complaint and the chargesheet. Without sanction to
    prosecute a public servant the latter cannot be prosecuted. This is a
    well-settled proposition and in this connection has placed reliance on
    a decision of this Court in D. Devaraja Vs. Obais Sanders Hussain,
    (2020) 7 SCC 695.
15. Submissions made by learned counsel for the parties have received
    the due consideration of this court.
[2024] 1 S.C.R.                                                          435

                 Shadakshari v. State of Karnataka & Anr.


16. The question for consideration in this appeal is whether sanction
    is required to prosecute respondent No. 2 who faces accusation
    amongst others of creating fake documents by misusing his official
    position as a Village Accountant, thus a public servant? The competent
    authority has declined to grant sanction to prosecute. High Court
    has held that in the absence of such sanction, respondent No. 2
    cannot be prosecuted and consequently has quashed the complaint
    as well as the chargesheet, giving liberty to the appellant to assail
    denial of sanction to prosecute respondent No. 2 in an appropriate
    proceeding, if so advised.
17. Section 197 Cr.PC deals with prosecution of judges and public
    servants. Section 197 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) –
           (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:
           [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.]
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       [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, section 376, 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.]
       [(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, receives the assent of the President, with respect
[2024] 1 S.C.R.                                                            437

                Shadakshari v. State of Karnataka & Anr.


           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.”
18. As per sub section (1) of Section 197 where 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
    of the Central Government or the State Government, as the case
    may be.
19. The ambit, scope and effect of Section 197 Cr.PC has received
    considerable attention of this court. It is not necessary to advert to
    and dilate on all such decisions. Suffice it to say that the object of
    such sanction for prosecution is to protect a public servant discharging
    official duties and functions from undue harassment by initiation of
    frivolous criminal proceedings.
20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this
    court explained the underlying concept of protection under Section
    197 and held as follows:
           “7. The protection given under Section 197 is to protect
           responsible public servants against the institution of
           possibly vexatious criminal proceedings for offences
           alleged to have been committed by them while they are
           acting or purporting to act as public servants. The policy
           of the legislature is to afford adequate protection to public
           servants to ensure that they are not prosecuted for anything
           done by them in the discharge of their official duties without
           reasonable cause, and if sanction is granted, to confer on
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       the Government, if they choose to exercise it, complete
       control of the prosecution. This protection has certain limits
       and is available only when the alleged act done by the
       public servant is reasonably connected with the discharge
       of his official duty and is not merely a cloak for doing the
       objectionable act. 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
       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.
       This aspect makes it clear that the concept of Section
       197 does not get immediately attracted on institution of
       the complaint case.”
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                Shadakshari v. State of Karnataka & Anr.


21. This aspect was also examined by this court in Shambhu Nath
    Misra (supra). Posing the question as to whether a public servant
    who allegedly commits the offence of fabrication of records or
    misappropriation of public funds can be said to have acted in the
    discharge of his official duties. Observing that it is not the official
    duty to fabricate records or to misappropriate public funds, this court
    held as under:
           “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 records 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 the 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.”
22. Even in D. Devaraja (supra) relied upon by learned counsel for
    respondent No. 2, this court referred to Ganesh Chandra Jew (supra)
    and held as follows:
           “35. In State of Orissa v. Ganesh Chandra Jew [State of
           Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004
           SCC (Cri) 2104] this Court interpreted the use of the
           expression “official duty” to imply that the act or omission
           must have been done by the public servant in course of
           his service and that it should have been in discharge of his
           duty. Section 197 of the Code of Criminal Procedure does
           not extend its protective cover to every act or omission
           done by a public servant while in service. The scope of
           operation of the section is restricted to only those acts or
           omissions which are done by a public servant in discharge
           of official duty.”
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23. Thus, this court has been consistent in holding that Section 197
    Cr.PC does not extend its protective cover to every act or omission
    of a public servant while in service. It is restricted to only those acts
    or omissions which are done by public servants in the discharge of
    official duties.
24. After the hearing was over, learned counsel for respondent No.2
    circulated a judgment of this Court in A. Srinivasulu Vs. State Rep.
    by the Inspector of Police, 2023 SCC OnLine SC 900 in support of
    the contention that a public servant cannot be prosecuted without
    obtaining sanction under Section 197 of Cr.PC. We have carefully
    gone through the aforesaid decision rendered by a twoJudge Bench
    of this Court in A. Srinivasulu(supra). That was a case where seven
    persons were chargesheeted by the Central Bureau of Investigation
    (CBI) for allegedly committing offences under Section 120B read with
    Sections 420, 468, 471 along with Sections 468 and 193 IPC read
    with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption
    Act, 1988 (for short ‘P.C. Act, 1988’). Four of the accused persons
    being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals
    Limited, a public sector undertaking and thus were public servants
    both under the IPC as well as under the P.C. Act, 1988. Accused
    No.1 had retired from service before filing of the chargesheet. Insofar
    accused Nos. 3 and 4, the competent authority had refused to grant
    sanction but granted the same in respect of accused No.1. It was in
    that context that this court considered the requirement of sanction
    under Section 197 Cr.P.C qua accused No.1 and observed that
    accused No.1 could not be prosecuted for committing the offence
    of criminal conspiracy when sanction for prosecuting accused Nos.3
    and 4 with whom criminal conspiracy was alleged, was declined.
    This court held as follows:
          “52. It must be remembered that in this particular case,
          the FIR actually implicated only four persons, namely
          PW-16, A-3, A-4 and A-5. A-1 was not implicated in the
          FIR. It was only after a confession statement was made
          by PW-16 in the year 1998 that A-1 was roped in. The
          allegations against A-1 were that he got into a criminal
          conspiracy with the others to commit these offences. But
          the Management of BHEL refused to grant sanction for
          prosecuting A-3 and A-4, twice, on the ground that the
          decisions taken were in the realm of commercial wisdom
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                Shadakshari v. State of Karnataka & Anr.


           of the Company. If according to the Management of the
           Company, the very same act of the co-conspirators fell
           in the realm of commercial wisdom, it is inconceivable
           that the act of A-1, as part of the criminal conspiracy,
           fell outside the discharge of his public duty, so as to
           disentitle him for protection under Section 197(1) of
           the Code.”
     24.1 Admittedly, facts of the present case are clearly distinguishable
          from the facts of A. Srinivasulu (supra) and, therefore, the said
          decision cannot be applied to the facts of the present case.
25. The question whether respondent No.2 was involved in fabricating
    official documents by misusing his official position as a public servant
    is a matter of trial. Certainly, a view can be taken that manufacturing
    of such documents or fabrication of records cannot be a part of the
    official duty of a public servant. If that be the position, the High Court
    was not justified in quashing the complaint as well as the chargesheet
    in its entirety, more so when there are two other accused persons
    besides respondent No.2. There is another aspect of the matter.
    Respondent No.2 had unsuccessfully challenged the complaint in
    an earlier proceeding under Section 482 Cr.PC. Though liberty was
    granted by the High Court to respondent No.2 to challenge any
    adverse report if filed subsequent to the lodging of the complaint,
    instead of confining the challenge to the chargesheet, respondent No.2
    also assailed the complaint as well which he could not have done.
26. That being the position, we are of the unhesitant view that the High
    Court had erred in quashing the complaint as well as the chargesheet
    in its entirety. Consequently, we set aside the order of the High Court
    dated 25.11.2020 passed in Criminal Petition No. 4998/2020. We
    make it clear that observations made in this judgment are only for
    the purpose of deciding the present challenge and should not be
    construed as our opinion on merit. That apart, all contentions are
    kept open.
27. Appeal is accordingly allowed. No costs.


     Headnotes prepared by: Ankit Gyan      Result of the case: Appeal allowed.