Holding

Absence of sanction under Section 197 of the CrPC vitiates the prosecution of a retired public servant for acts committed in discharge of official duty.

Summary

The appellant State of Maharashtra sought to uphold the conviction of Dr. Budhikota Subharao, an ex‑Naval Captain who had voluntarily retired in 1987, for alleged violations of the Official Secrets Act, 1923 and the Atomic Energy Act, 1962. The accused was arrested in May 1988 and material seized from his possession was said to have been obtained while he was in service at BARC. The central issue was whether prosecution for acts committed during his service required prior sanction under Section 197 of the Criminal Procedure Code, 1973, and whether the acts fell within the scope of "official duty". The Supreme Court held that Section 197 provides a mandatory bar to cognizance of offences by public servants unless sanction is obtained, and that the documents were acquired in the discharge of his official duties, thereby invoking the protection of Section 197. Consequently, the prosecution was vitiated for lack of sanction and the appeal was dismissed, with the respondent awarded costs.

Issues considered

The prosecution of a retired public servant for acts alleged to have been committed while in service requires sanction under Section 197 of the CrPC.
Whether the acts alleged against the accused were done in discharge of his official duty within the meaning of Section 197.
Whether the authorisation under the Official Secrets Act and the Atomic Energy Act was valid.

Legislation cited

Atomic Energy Act, 1962s. 18(2), s. 19(b), s. 24(1)(d), s. 24(2)(d)
Code of Criminal Procedure, 1973s. 197
Official Secrets Acts. 3(1)(c), s. 5, s. 6(2)(a), s. 6(2)(b)

Subjects

Section 197Criminal Procedure CodeOfficial Secrets ActAtomic Energy Actpublic servant protectionsanction requirementofficial dutyretired public servantcognizanceespionage

Judgment

_, STATE OF MAHARASHTRA A
+ v.
DR. BUDHIKOTA SUBHARAO

MARCH 16, 1993
~
_,\ B
[S. RATNAVEL PANDIAN AND R.M. SAHA!, JJ.]
-+
Code of Criminal Procedure 1973 : Section 197--Cog11iza11ce of offence
by public servants-Nature of power exercised by Courts-Extent of protection
afforded to public servallts-Sanction to prosecution-Requirement of
c
Words a11d Phrases-Meaning of 'Official'-'Official Duty'.

The respondent in the appeal was an ex-Naval Captain who achieved
-..,+-· notable suaess in the field or compnter science and software during the
period be WdS attached with the Bhabha Atomic Research Centre and had D
voluntarily opted out of service iu 1987. He was arrested on 30th May,
1988 just, when he was about to board a plane for New York. His residence
was searched on the next day. From the documents recovered from search
or the band bag on 30th and residence on 31st and his interrogation, it
appeared that be was guilty or violating provisions of the Official Secrets
Act, 1923 and Atomic Energy Act, 1962 and, therefore, a complaint was E
--y fded, against him after obtaining permission, under Section 3(1)(c),
3(1)(c) read with Sections 9, 6(2)(a) and 6(2)(b) or the O.S. Act and
24(l)(d) read with 18(2) and 24(2)(d) read with Section 19(b) of the A.E.
Act before the Metropolitan Magistrate who being prima facie satisfied or
the offences and their gravity committed the accused to stand trial before F
the Court of Sessions.

The accused assailed the framing or charge contending that, on
facts, no offence under either or the Statutes was made out, and if any
offence for which he could be charge-sheeted could he under Section S of
the O.S. Act. The Trial Judge turned down the plea by order dated 24/27tli G
February, 1989 and fixed date for framing the charge.

~ A revision agai\Jst this order was dismissed by the High Court on
6th June, 1989, and was challenged by way of Special Leave Petition in this
Court, but it was permitted to be withdrawn. H
311
312 SUPREME COURT REPORTS [1993] 2 S.C.R.

A The accused thereafter invoked the inherent jurisdiction of the High '
Court seeking review of the order dated 6th June, 1989 and although the
application was rejected on 18th September, 1989 but all observation was
made that there was no impediment in the way of the Trial Judge in
altering or modifying or reviewing any of the charges or even framing new
or additional charge. This provided an occasion to the accused for start·
B
ing proceedings, afresh, for his discharge and claim in the alternative to
framecharge under Section S of O.S. Act instead of under Section 3, for
which purposed he moved an application which was allowed by the Trial
Judge on 15th January, 1990, and the charges under A.E. Act were
dropped. The charge under the O.S. Act was altered. to one under Section
C S of the Act. This order was set aside on 3rd/4th April; 1990 by a Single
Judge and the Trial Judge was directed to frame charges both under
Sections 3 and S of the O.S. Act.

The accused approached the Division Bench against the aforesaid
D order by way of an application speaking to the Minutes for clarification of
the order passed by the High Court on 3rd/4th April, 1990 as the Single
Judge who passed the order on 3rd/4th April, 1990 did not appreciate the
observations made by the Division Bench, but it was rejected on 24th July,
1990 as there was no system of speaking to the Minutes by doing which the
order could be reviewed in criminal proceedings. The Division Bench
E dismissed this application and observed that remedy of the accused was
to approach the court in proper forum.

When the matter Was thereafter taken up for framing the charge the
accused, once again, claimed that he was entitled to be heard at stage of
F Section 227 of the Code of Criminal Procedure and he was entitled to be
discharged. The Trial Judge by order dated 6th August, 1990 rejected the
application, restored the earlier charges and framed a charge under
Section 5 as well .
........
. The validity of the aforesaid framing of charges was challenged by
G way of a Writ Petition (Criminal) under Articles 226 and 227 of the
Constitution, and it was claimed that the entire proceedings being viola·
tive of Article 21 of the Constitution were liable to be quashed. The High
Court did not find any substance but by Its order dated 24th March, 1991 ~-
directed the ASJ to decide if sanction under Section 197 of the Code was
H required, and also to determine whether the authorisation under Section ·

,
STATE v. DR. BUDHIKOTA 313

5 of the O.S..Act and 7 of the Atomic Energy Act was in accordance with law. A

Pursuant to the aforesaid direction the ASJ examined the material
on record and observed that authorisation was not proper, but refrained
from expressing any opinion in view of the direction of the High Court to
decide the requirement of sanction under Section 197 of the Code of
Criminal Procedure, first, and the effect, in law, of its absence. It was held B
that the documents seized from the possession of the accused indicated
that they were inseparably interwined with performance of his official
duties and therefore, the prosecution could not have been initiated without
sanction.

The High Court in revision decided both the questions in favour of
c
the accused, holding that the authorisation for institution of prosecution,
for offences allegedly committed under either Statute, was invalid as even
though authorisation was issued, in favour of the Prosecuting Inspector
who was also the Investigating Officer, but it having been issued by an
authority other than the Central Government it was not in accordance D
with law. On the question of sanction under Section 197 of the Code, the
High Court agreed with the A.S.J. that the charges itself indicated that the
offences were committed during the period the accused was a serving
officer, therefore, in absence of the sanction no cognizance of any of the
offences. could have been taken. E
-y
In the appeal to this Court on the question whether the judgment of
the High Court, affirming the order of the Trial Judge discharging the

- accused, is if the absence of sanction, by the appropriate authority, nnder
Section 197 Cr. P.C. for prosecuting a retired public servant, vitiates the
proceedings. F

Dismissing the appeal, this Court,

HELD : 1. Section 197 Cr. P.C. falls in the Chapter dealing with
conditions requisite for initiating of proceedings. If the conditions men- G
tioned a~ not made out or are absent then no prosecution can be set in
motion. [321C]

2. So far as pnblic servants are concerned cognizance of any offence,
by any Court, is barred by Section 197 unless sanction is obtained from
the appropria~ authority, if the offen~, alleged to have been committed, H
314 SUPREME COURT REPORTS [1993) 2 S.C.R.

A was in discharge of the official duty. The Section not only specified the
persons to whom the protection is afforded but it also specifies the
conditions and circumstances in which it shall be available and the effect
in law if the conditions are satisfied. [321E]

3. The mandatory character of the protection afforded to a public
B servant is brought out by the expression, 'no court shall take cognizance
of such offence except with the previous sanction'. Use of the words, 'no'
and 'sh/ill' make it abundantly clear that the bar on the exercise of power
of tbe Court to take cognizance of any offence is absolute and complete.
Very cognizance is barred. That is the complaint cannot be taken notice
C of. [321F-G]

3(i). In common parlance 'cognizance' means taking notice of. A
Conrt, therefore, is precluded from entertaining a complaint or_ taking
notice of it or exercising jurisdiction if it is in respect of a public servant
who is accused of an offence alleged to have been committed during
D discharge of bis official duty. [3218]

(ii) 'Official' means pertaining to an office. An official act or official
dnty means an act or duty done by an officer in his official capacity.
'Official duty' implies that an act or omission must have been done by the
public servant in course of his service and that it should·-have been in
E
discharge of his duty. The section does not extend its protective cover to y-
every act or omission done by a public se_rvant in service but restricts its '
scope of operation to only those acts or 11missions which are done by a
public servant in discharge of official du!)• [322G]

F S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841 and P. Arn/swami v.
State of Madra;; [1967] 1 SCR201=MR1967 SC 776, referred to. [322B-G]

4. Section 197 has to ·be construed, strictly while determining its
applicability to any act or omission in course of service. Its operation bas
G to be limited to those duties which are discharged in course of duty. But
once any act or omission has been found to have been committed by a
public servant in discharge of his duty then it must be given liberal and
wide construction so far its official nature is concerne,I. For instance a
public servant is not entitled to indulge in criminal activities. To that
extent the section bas to be construed narrowly and in restricted manner.
H But once it is established that an act or omission was done by the public
STATE v. DR. BUDHIKOTA 315

~(- servant while discharging his duty then the scope of its being official A
should be construed so as to advance the objective of the section in favour
of the public servant. Otherwise the entire purpose of affording protection
to a public servant without .sanction shall stand frustrated. [323F-G)

S. A police officer in discharge of duty may have to use force which
may be an offence for the prosecution of which the sanction may be B
necessary. But if the same officer commits an act in course of service but
not in discharge of his duty then the bar under Section 197 of the Code is
not attracted. [323H)

Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220, referred to. C
[324A]
-t- 6. If on facts, 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. [3240) D
In the instant case, five charges were framed against the respondent-
accused. First two related to Section 3(1) and 3(l)(c) of the O.S. Act.
Third and fifth related to Sections 6(2) (a) and S of the O.S. Act and fourth
related to violation of Section 18(2) and 19 of A.E. Act. In the very first E
charge after narrating the period when the accused was employed and
when he opted for voluntary retirement it is stated that it was during the
course of this period that he was in communication with foreign agents,

- within or "ithout India and for purpose prejudicial to the safety or
interest of the State he obtained and collected top secret and secret official
documents. The High Court and the Trial Judge, both, found that it was F
clear that the documents which were seized from possession of the accused
_ _,.._ ·- and were subject matters of indictment were obtained by him when he was
in service prior to his retirement in 1987. [324F-G)

7. In respect of charge 2, the High Court rightly found that the use
of words, 'during the said time and place' related back to what was stated G
in charge no. 1, namely, to the period when the accused was in service. It
_,,,.._. _ was rightly found that ambiguity. If any, in charges 1 to 4 stood completely
removed by charge no. S which left no doubt that the intention and
purpose of framing the charge against the accused was to indict him for
·whatever be ·ba4 done during the period when he was employed in the Navy H
~

316 SUPREME COURT REPORTS [1993] 2 S.C.R.

A as the alternative charge clearly stated that dnring his deputation between ~-
1976 and 1987 with B.A.R.C. he had access to secret documents which he
communicated to the persons other than those who were authorised to
receive such information, Charge' no. 3 related. to retention of Identity
Card during service and charge no. 4 was in respect of taking out infor-
matian in form of books pertaining to atomic energy the information of
B which had been obtained illegally, obviously when the accused was in -'y-
service. Therefore, the act or omission which furnished foundation for
indicating the accused either under O.S. Aq or A.E. Act were related to
the period when he was in service. The narrow or the stricter test to
determine if the sanction. for prosecuting the accused was necessary was
c thus satisfied. [32SB-E)

8. As is clear from the charge itself the accused was, selected in
course of his employment in the Navy to study the feasibility of nuclear
-1-
power, propelled submarine vessel along with a team of officers and was
attached with B.A.R.C. as second officer in command. He joined the ~
D
project in 1976 and was associated with the Centre for nearly 10 years. The '
accused while working with B.A.R.C .. not only obtained Ph. D. but was even
awarded gold medal for his achievements in computer technology and
control engineering and a special Herbert Lott Memorial Award for his

E
inventions in improving the existing, fighting devices of the Navy. The
thesis written by the accused on which he was awarded Ph. D. were seized
......,_
by the prosecution. The papers were written and the books published when
the accused was attached with BAR.C. as a Second Officer-in-Command
and, therefore, the material or documents which were found by him cannot
be said to have been collected or procured by him by going out of way and
F beyond the discharge of his duties as an officer in the Naval Department.
May he some of them were secret, confidential or unclassified items. But
the accused came across them and obtained their ~opies in course of his
duty as an officer attached to B.A.R.C. Charge No. 2 is in respect of t
classified information obtained by him when he was in Naval Service.
Taking out of information obtained in course of employment was thus
G ~
squarely covered by Section 197. Whether it was for communication or not
is not material. Retention of Identity Card issued during service may be
dereliction of duty but it was committed when the accused was in service . -.<..:-
and it was issued to him while discharging his duties as a Naval Officer.

H [326F-H, 327 A-Fl
'

STATE v. DR. BUDHIKOTA (SAHA!, J.] 317

9. The High Court and the Trial Court appear to have, rightly, A
inferred that whatever material came in possession of the accused \Vas as
a result of discharge of his duty as a Naval Officer. If this be so then even
the second and the most important requirement of acting in discharge of
official duty was satisfied. Therefore, \\ithout expressing any opinion on
merits we are of the opinion that it was necessary for the prosecution to
B
have obtained sanction for prosecuting the accused. [327H, 328A]

10. The courts below did not commit any error of law in coming to
conclusion that the entire proceedings were vitiated a~ no cognizance of
the offences could have been taken against the accused mthout complying
mth provisions of Section 197 of the Code. [328D] c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
276 of 1993.

From the Judgment and Order dated 12.10.1991 of the Bombay High
Court in Crl. Revision Application No. 123 of 1991. D
Altaf Ahmed, Addi. Solicitor General, B.R. Banda, Mrs. Manjula
Rao, S.M. Jadhav, AS. Bhasme and AM. Khanwilkar for the Appellant.

Dr. B. Subba Rao Respondent-in-person.
E
V.M. Tarkunde, AM. Khamvilkar and AK. Panka for the Inter-
venor.

The Judgment of the Court was delivered by

R.M. SAHAJ, J. The principal question of law, and, an important F
one, that arises for consideration in Appeal No. 276 of 1993 [arising out of
~-- S.L.P.(Crl.) No. 986 of 1992] which shall reflect on Appeal No. 277 of 1993
[arising out of S.L.P. (Crl.) No. 987 of 1992], as well, filed by the State of
··Maharashtra against the judgment and order of the Bombay High Court,
affirming the order of the Trial Judge discharging the accused, is if the G
absence of sanction, by ~he appropriate authority, under Section 197
Criminal Procedure Code (in short 'the Code') for prosecuting a retired
public servant,. vitiates -the proceedings.

Although facts are brief and simple too, but the High Court, unfor-
(
tunately, instead of confining itself to the legality of dischatge, either for H
318 SUPREME COURT REPORTS [1993) 2 S.C.R.

A lack of the sanction under Section 197 of the Code or for the improper
authorisation under the Official Secrets Act 1923 (in brief 'the O.S. Act')
and Atomic Energy Act 1962 (referred to as 'A.E.Act') the two statutes
for violation of which the accused was charged, was led away to record
findings as if the accused was deliberately subjected to undue harassment
by the State aided by the alleged unreasonable attitude of the Public
B
Prosecutor. So much so that the learned Judge allowed an application of
the accused, in the revision filed by the State against his discharge, and set
aside the order of Additional Sessions Judge (in brief 'ASJ') framiug
charges against hi'!' as it was vitiated by fraud, merely because the State
did not file any counter-affidavit and insisted that the argument being same
c as were advanced in the revision it was not necessary to file any reply, even
though the learned Judge was aware that the accused had earlier ap-
proached the High Court against the order rejecting his application that
no charge wa~ liable to be framed against him without any success. Not
only that the learned Judge did not spare, even, this Court, for cancelling
D bail of the .accused at earlier stage. Needless to say that the first was -
unnecessary; the second illegal and is subject matter of appeal No. 277 of
1993 [arising out of S.L.P. (Cr!.) No. 987 of 1992) and the third improper.

Since the accused was discharged by the Trial Judge, mainly, due to
technical·defects and the decision was rendered as a preliminary issue on
E directioq of the High Court, suffice it to say that the accused, an ex-Naval
Captain who achieved not able success in the field of computer science and
software during the period he was attached with Bhabha Atomic Research
Centre, (in short B.A.R.C.) had voluntarily opted out of service in 1987, was
arrested on 30th May, 1988,just, when he was about to board a plane for New
F York. His residepce was searched on the next day. From· the documents
recovered, from search of the hand bag on 30th and residence on 31st and his
interrogation, it appeared that he was ·guilty of violating provisions of O.S.
Act and A.E. Act, therefore, a complaint was filed, against him after obtain-
ing permission, under Section 3(1)(c), 3(1)(c) read with Sections 9, 6(2)(a)
and 6(2)(b) of the O,S. Act and 24(1)(d) read with Sections 18(2) and
G 24(2)( d) read with Section 19(b) of the A.E. Act before the Metropolitan
Magistrate who being prim a facie satisfied of the offences and their gravity
committed the accused to stand trial before the Court of Sessions. Effort was
made by the accused to assail the framing of charge, as according to him, on
facts, no offence -under either of the Statutes was made out. And offence if
H any for which he could be charge-sheeted could be under Section 5 only. The
•
STATE v. DR. BUDHIKOTA [SAHA!, J.] 319

Trial Judge turned down the plea by order dated 24/27th February, 1989 and A
-r ruced date for framing the charge. A revision, against this order, was dis-
missed by the High Court, on 6th· June, 1989. It was challenged by way of
Special Leave Petition in this Court. But it was permitted to he withdrawn.
The accused however invoked inherent jurisdiction of the High Court seek-
ing review of the order dated 6th June, 1989. Although the application was
rejected, on 18th September 1989 hut an observation was made that there was
B
----( •
no impediment in way of the Trial Judge in altering or modifying or reviewing
any of the charges or even framing new or additional charge. This provided
an occasion to the accused for starting proceedings, afresh, for his discharge
and claim in the alternative to frame charge under Section 5 of 0.S. Act
instead ofunder Section 3. The application was allowed by the Trial Judge on c
15th January 1990, and the charges under A.E. Act were dropped. The
charge under the 0.S. Act was altered to one under Section 5 of the Act. The
-Jr
- order was set aside on 3rd/4th April, 1990 by a learned Single Judge and the
Trial Judge was directed to frame charges both under Sections 3 and 5 of the
0.S. Act. Against this order the accused approached the Division Bench, by
D
what is described as, speaking to the Minutes for clarification of the order
passed by the High Court on 3rd/4th April, 1990 as· the learned Single Judge
who passed the order on 3rd/4th April, 1990 did not appreciate the observa-
tions made by the Division Bench, but it was rejected on 24th July 1990 as
there was no system of speaking to the Minutes by doing which the order
could be reviewed in criminal proceedings. The Bench however observed E
-~
that remedy of the accused was to approach the court in proper forum.
Therefore when th.e matter was taken up for framing the charge the accused,
once again, claimed that he was entitled to be heard at stage of Section 227 of

- the Code and he ,was entitled to be discharged. The Trial Judge by order
dated 6th.August 1990 rejected the application, restored the earlier charges
F
and framed a charge under Section 5 as well. Validity of the charges, thus,

- - ::--- framed was challenged by way of Writ Petition (Criminal) under Articles 226
and 227 of the Constitution and it was claimed that entire proceedings being
violative of Article 21 of the Constitution were liable to be quashed. The High
Court did not find any substance in it but it directed the ASJ by its order 24th
March, 1991 to decide if sanction under Section 197 of the Code was required G
and also to determine if authorisation under Section of O.S. Act and A.E. Act
.__,,.._. was in accordance with law .

In pursuance of this direction the ASJ examined the material on
record and observed that authorisation, was not proper but refrained from H
320 SUPREME COURT REPORTS (1993] 2 S.C.R.

A expressing any opinion in view of the direction of the High Court to decide
the requirement of sanction under Section 197 of the Code, first, and the
effect, in law, of its absence. The ASJ held that the documents seized from
possession of the accused indicated that they were inseparably interwined
with performance of his official duties whilst in Navy, therefore, the
prosecution could not have been initiated without sanction. In revision filed
B
by the ,State the High Court, decided both the questions in favour of the
accused. It was held that the authorisation for institution of prosecution,
for offences allegedly committed under either Statute, was invalid as even
though authorisation was issued, in favour of the Prosecuting Inspector
who was the Investigating Officer, but it having been issued by an authority
c other than the Central Government it was not in accordance· with law. On
tlfe question of sanction under Section 197 of the Code the High Court
agreed with the ASJ that the charges itself indicated that the offences were
committed during the period the accused was a serving officer, therefore, -f-
in absence of the sanction no cognizance of any of the offences could have
D been taken.

Prior to examining if the courts below committed any error of law in
discharging the accused it may not be out of place to examine the nature
of power exercised by the Court under Section 197 of the Code and the
extent of protection it affords to public servant, who apart, from various
E hazards in discharge of their duties, in absence of a provision like the one
may be exposed to vexatious prosecutions. Section 197(1) and (2) of the
Code reads as under :

"197"(1) When any person who is or was a Judge or
Magistrate or a public servant not removable from his
F 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 cqgnizance of such
offence except with the previous sanction-
G
(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;

H (b) in the case of a person who is employed or, as the
STATE v. DR. BUDHIKOTA (SAHA!, J.]· 321

case may be, was at the time of commission of the alleged A
offence employed, in connection with the affairs of a State,
of the State Government.

(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
B
the discharge of his official duty, except with the previous
sanction of the Central Government."

The section falls in the Chapter dealing with conditions reqms1te for
initiation of proceedings. That is if the conditions mentioned are not mad.e c
out or are absent then no prosecution can be set in motion. For instance
no prosecufion can be 'initiated in a court of Sessions under Section 193,
as it cannot take cognizanee, as a court of original jurisdiction, of any
offence unless the case has been. committed to it by a Magistrate or the
code expressly provides for it. And the jurisdiction of a Magistrate to take D
cognizance of any offence is provided by Section 190 of the Code, either
on receipt of a complaint, or upon a police report or upon information
received from any person other than police officer, or upon his knowledge
that such offence has been committed.- So far public servants are concerned
the cognizance of any offence, by any court, is barred by Section 197 of the
Code unless sanction is obtained from the appropriate authority, if the E
offence, alleged to have been committed, was in· discharge of the official
duty. The Section not only specifies the persons to whom the protection is
afforded but it also specifies the conditions and circumstances in which it

- shall be available and the effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a public servant is F
brought out by the expression, 'no court shall take cognizance of such
offence except with the previous sanction'. Use of the words, 'no' and 'shall'
make it abundantly clear that the bar on the exercise of power of the Court
to take cognizance of any offence is absolute and complete. Very cog-
nizance is barred. That is the complaint cannot be taken notice of. Accord-
ing to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or G
'the e'iercise of jurisdiction' or 'power to try and determine causes'. In
common parlance it means taking notice of. A court, therefore, is
precludcid from entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused of an
offence alleged to have committed during discharge of his official duty. H
322 SUPREME COURT REPORTS [1993) 2 S.C.R.

A Such being the nature of the provision the question is how should
the expression, 'any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty', be under·
stood? What does it mean? 'Official' accoraing to dictionary means per·
taining to an office. And official act or official duty means an act or duty
'
done by an officer in his official capacity. Jn S.B. Saha v. M.S. Kochar, AIR
B 1979 SC 1841, it was held.
\

"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
c Code, are capable of a narrow as well as a wide inter-
pretation. 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, com-
D mitted 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
E 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 con-
stituting an offence, directly and reasonably connected
with his official duty will require sanction for prosecution

F
under the said provision. 11

-
Use of the expression, 'official duty' implies that 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. The section does not extend its protec- --(__ -
tive cover to every act or omission done by a public servant in service but
G restricts its scope of operation to only those acts or omissions which are
done by a public servant in discharge of official duty. In P. Arulswami v'.
State of Madras, [1967] 1 SCR 201 = AIR 1967 SC 776 this Court after
reviewing the authorities right from the days of Federal Court and Privy
Council held, ~

H "It is not therefore every offence committed by a public
STATE v. DR. BUDHIKOTA [SAHA!, J.] 323

servant that requires sanction for prosecution under Sec- A
tion 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 com-
plained of is directly concerned with his official duties so
that, if questioned, it could be claimed to have been done
by yirtue of the office, then sanction would be necessary.
B
It is the quality of the act that is important and if it falls
within the scope and range of his official duties the protec-
tion contemplated by s.197 of the Criminal Procedure
Code will be attracted. An offence may be entirely uncon-
nected with the official duty as such or it may be com- c
mitted within the scope of the official duty. Where it is
unconnected with the official duty there can be. no protec-
tion. It is only when it is either within the scope of the
official duty or in excess of it that the protection is
claimable."
D
It has been widened further by extending protection to even those acts or
omissions which are done in purported exercise of official duty. That is
under the colour of office. Official duty therefore implies that the act or
omission must have been done by the public servant in course of his semce
and such act or omission must have been performed as part of duty which E
further must have been official in nature. The section has, thus, to be
construed, strictly while ~etermining its applicability to any act or omission
in course of seryice. Its operation has to be limited to those duties which
are discharged in course of duty. But orice any act or omission has been
found to have been committed by a public servant in discharge of his duty F
then it must be given liberal and wide construction so far its official nature
is concerned. For instance a public servant is not entitled to indulge in
criminal actiyities. To that extent the section has to be construed narrowly
and in restricted manner. But once it is established that act or omission
was done by the public servant while discharging his duty then the scope
of its being official should be construed so as to advance the objective of G
the section in favour of the public servant. Otherwise the entire purpose
of affording protection to a public servant without sanction shall stand
frustrated. For instance a police officer in discharge of duty may have to
use force which may be an offence for the prosecution of which the
sanction may be necessary. But if the same officer commits an act in course H
324 SUPREME COURT REPORTS [1993]'2 S.C.R.

A of service but not in discharge of his duty then the bar under section 197
of the Code is not attracted. To what extent an act or omission ·performed
by a public servant in discharge of bis duty can be deemed to be official
was explained :by this court in Baijnath v. State of Madhya Pradesh, AIR
1966 SC 220 thus,

B "the offence alleged to have been committed by the ac-
cused must have something to do, or must be related in
some manner with the discharge of official duty ....... there
must be a reasonable connection between the act and the
discharge of official duty the act must bear such relation
c to the duty that the accused could lay a reasonable claim,
but not a pretended or fanciful claim, that he did it in che
course of the peiformance of his duty."

If on facts, therefore, it is prima facie found that the act or omission
for which the accused was charged had reasonable connection with dis-
·D
charge of his duty then it must be held to be official to which applicability
of Section 197 of the Code cann,pt be disputed.

On the law, thus, settled two questions arise for consideration one if
the offence for which the accused was charged and of which cognizance
E was taken was committed by him during the period he was in Naval service
and if it be so then whether the violations were in discharge of official duty
or they were beyond it. For this purpose it may be mentioned that five
charges were framed against the accused. First two related to Section 3(1)
and 3(1)(c) of the O.S. Act. Third and fifth related to Sections 6(2)(a) and
F 5 of the O.S. Act and fourth related to violation of Sections 18(2) and 19
of A.E. Act. In the very first charge after narrating the period when the
accused was employed and when he opted for voluntary retirement it is
stated that it was during the course of this period that he was in com-
munication with foreign agents, within or without India a~d f~r purpose
prejudicial to the safety or interest of the State he obtained ana collected
G top secret and secret official documents. The High Court and the Trial
Judge, both, found that it 'was clear that the documents which were seized
from possession of the accused and were subject matters of indictment
were obtained by him when he was in service prior to· his retirement in
1987. Even the reference to the documents in the charge because of which
H the Government was of opinion that the accused had violated provisions
STATE v. DR. BUDHIKOTA [SAHA!, J.] 325

of 0.S. Act are mentioned to have been procured by the accused during A
course of his cmployme')t. In view of these averments, in the charge itself,
it is very difficult to say that the offence for which the accused had been
charge-sheeted were not committed when he was in service. In respect of
charge 2, the High Court found and in our opinion rightly that the use of
words, 'during the said time and place' related back to what was stated in
charge no. 1, namely, to the period when the accused was in service. The
B
High Court further found and again in our opinion rightly, that ambiguity,
if any, in charges 1 to 4 stood completely removed by charge no. 5 which
left no doubt that the intention and purpose of framing the charge against
the accused was to indict him for whatever he had done during the period
when he was employed in the Navy as the alternative charge clearly states C
that during his deputation between 1976 and 1987 wi~h B.A.R.C. he had
access to secret documents which he communicated to the persons other
than those who were authorised to receive such information. Charge no. 3
related to retention of Identity Card during service and charge no. 4 is in
respect of taking out information in form of books pertaining to atomic D
energy the information of which had been obtained illegally, obviously,
when the accused was in service. Therefore, the act or omission which
furnished foundation for indicting the accused either under 0.S. Act or
A.E. Act were related to the period when he was in service. The narrow
or the stricter test to determine if the sanction for prosecuting the accused
was necessary was thus satisfied. - E

What remains to be examined is if the documents which were found

-
in possession of the accused and were collected or obtained by hun when
he was in service were procured by him in discharge of duty. But before
undertaking this exercise it may be stated that Section 197 of the Code as F
it stands after 1973, extends the protection even to a retired public servant
as is clear from use of the words, 'is or was' provided the accusation is in
respect of an act or omission done or purported to have been done when
such public servant was in office. By legislative fiction the officer is deemed
to be a public servant under Section 197 of the Code irrespective of his
retirement if the accusations against him are for act or omission done by G
him when he was in service. The purpose is to avoid exposing a public
servant to vexatious or frivolous prosecutions merely because he has
demited his office. The submission of the learned Additional Solicitor
General that if a public servant ceases to hold the office by the time the
Court is called upon to take cognizance cannot claim any protection, being H
··-.j

326 SUPREME COURT REPORTS [1993) 2 S.C.R.

A in teeth of the section, does not need any further elucidation.
Reverting to the main issue the two courts below lmve found it as a
+
fact that the acts or omissions for which the accused has been charged were
committed by him in discharge of his official duty. To steer clear of the
effect of such finding the learned Additional Solicitor General urged that
B in view of the charges framed under O.S. Act the accused could not claim
any protection under Section 197 of the Code as espionage can by no y-·
stretch be taken to be official duty. The learned counsel submitted that the '
documents which were recovered from possession of the accused were such r
c
as could not have been in his possession when he had already retired and
the proper custodian of those documents being the Central Government,
no sanction was required for prosecuting the accused for possessing such
-
documents. As a matter of law no exception can be taken to the submission
that no public servant can indulge in espionage. But mere allegation of
spying cannot deprive a public servant of the legal protection provided for +-
in Section 197 of the Code. Section 3 of the O.S. Act, no doubt, provides
D penalty if any person acts in any manner prejudicial to the safety or interest
of the State. This appeal is not concerned if the accused acted in such
manner which can give rise to an inference in law that he was guilty of
spying or acted in any manner to affect sovereignty and integrity of the
country. The limited question is if the documents which were seized from
the accused either at the '11irport or from his residence are such that they .
E
could have been obtained or procured by him while acting as Naval Officer -'r'-
in discharge of his duty. As is clear from the charge itself the accused was,
selected in course of his employment in the Navy to study the feasibility of

F
nuclear power, propelled submarine vessel along with a team of officers
and was attached with B.A.R.C. as second officer in command. He joined
the project in 1976 and was associated with the Centre for nearly 10 years.
The accused while working with B.A.R.C. not only obtained Ph. D. but was
even awarded gold medal for his achievements in computer technology and
-
~ '
control engineering and a special Herbert Lott Memorial Award for his
inventions in improving the existing, fighting devices of the Navy. It is not
the case of prosecution that the documents which were seized either from
G
the airport or the residence of the accused could not have been dealt by
him when he was in service. Amongst various documents which were seized
were the Identity Card of the Indian Armed Forces bearing his photograph
.......,...
and name, the eight files containing different types of maps of India,
diagrams and computer information, a book by name 'Nuclear Power Plan'
H
STATE v. DR. BUDHIKOTA [SAHA!, J.] 327

_,,,_,. Modelling and Design, one brown envelope containing lamination papers A
with diagrams, one book MWT Nuclear Submarine Propulsion Plant
Design and one book Multi Point Satellite Links in Navnet System were
also recovered from him. The documents which were found at his residence
on. 31st May were computer communication on HF Links in Navnet and
Advanced Technology Adaptation Centre, C-3 I System Development for
Armed Forces Advanced Technology Adaptation for Defence, Multi Point
B
~~
Satellite Links in Navnet System, Government of India publications project
report of Nuclear propulsion for Marine Application, one book about Sea
on Control Radar and Display System for Land Design. Certain plan
design of B.A.R.C. were also recovered from his possession. Most of the
documents which can be said to be sensitive which were recovered from c
the accused were admittedly either the book written by him or the paper
read by him as is. clear from the Punchanama and the Statement of
-)r Witnesses who were produced on behalf of the prosecution to prove the
same. Even the thesis written by the accused on which he was awarded Ph.
D, by the Bhabha Institute of Technology was seized by the prosecution.
The purpose of stating all this is to demonstrate that these papers were
D
written and the books published when the accused was attached with
B.A.R.C. as a Second Officer-in-Command and, therefore, the material or
documents which were found by him cannot be said to have been collected
or procured by him by going out of way and beyond the discharge of his
_, duties as an officer in the Naval Department. May be some of them were E
~-
secret, confidential or unclassifi.ed items. But the accused came across
them and obtained their copies in course of his duty as an officer attached
to B.A.R.C. Charge No. 2 is in respect of classified information obtained
:- by him when he was in Naval service. Taking out of information obtained
in course of employment was thus squarely covered by Section 197.
Whether it was for communication or not is not material. Retention of F
Identity Card issued during service may be dereliction, of duty but it was
--;>
:>- committed when the accused was in service and it was issued to him while
discharging his duties as a Naval officer. The Trial Court found thai even
though the Punchnama shows that two Identity Cards were recovered from
the possession of the accused, but from their perusal it appeared .that the G
• Identity Card was issued to the accused as a retired officer and conse-
quently the claim of the prosecution that the accused acted in violation of
-->- the provisions ot the Act was not justified. But assuming there was violation
since it was done when· the accused \Vas in service he was entitled to
.protection undeP Section 197 of the Code. The High Court and the Trial H

!111111
328 SUPREME COURT REPORTS [1993) 2 S.C.R.

A Court .appear to have, rightly, inferred that whatever material came in
possession of the accused was as a result of discharge of his duty as a Naval
Officer. If this be so then even the second and the most important require·
ment of acting in discharge of official duty was satisfied. Therefore, without
expressing any opinion on merits we are of the opinion that it was necessary
for the prosecution to have obtained sanction for prosecuting the accused.
B Similarly so far charge no. 4 is concerned we do not propose to examine
if it was properly framed against the accused and if there was any material
in support of it. But the alleged information which the accused was taking
with him to United States having been obtained by him in course of
employment and in discharge of his duty the High Court did not commit
c any error of law in recording the finding that no prosecution could be
initiated unless sanction under Section 197 was obtained. Same applies to
charge no. 5. Therefore, we are of opinion that the courts below did not
commit any error of law in coming to conclusion that the entire proceed-
ings were vitiated as no cognizance of the offences could have been taken
against the accused without complying with provisions of Section 197 of the
D ·Code.
Sillce the appeal fails for non-compliance of Section 197 and the
order discharging the accused has to be upheld we do not propose to
examine the finding if authorisation under O.S. Act and A.E. Act to
prosecute the accused was valid or not.
E
In the result this appeal fails and is dismissed. Since the respondent
was discharged for failure of mandatory requirement yet the State went on

F
filing revision before the High Court and appeal before this Court and
keeping in mind the mental sufferings and financial loss caused to the
respondent we are of opinion that the respondent is entitled to costs which
we assess in peculiar facts and circumstances of this case at Rs. 25,000.
-
N.V.K. Appeal dismissed.