Supreme Court of India
STATE OF ORISSA THROUGH KUMAR RAGHVENDRA SINGH AND ORS.versusGANESH CHANDRA JEW
- Citation
- 2004 INSC 206
- Decided
- 24 March 2004
- Disposal
- Appeal(s) allowed
- Bench
- DORAISWAMY RAJU
Holding
The Supreme Court held that Section 197 of the CrPC bars cognizance of the offences alleged against the forest officials without prior sanction, and the complaint is mala fide, warranting quashment under Section 482.
Summary
The State of Orissa, represented by forest officials, appealed against a complaint filed by G.C. Jew alleging assault, illegal seizure of ivory and other offences under the IPC, the Orissa Forest Act and the Wildlife Protection Act. The respondents claimed the officials acted without legal authority, while the officials argued that any prosecution required prior sanction under Section 197 of the Code of Criminal Procedure (CrPC) because the acts were done in discharge of official duty. The High Court had held that Section 197 did not apply and refused to quash the complaint under Section 482 CrPC. The Supreme Court examined the scope of Section 197, emphasizing that cognizance of offences by public servants acting in official capacity is barred without sanction, and that the test is whether the act is reasonably connected to official duties. It also considered the credibility of the complaint, noting the lack of immediate grievance and the delayed medical examination, concluding the complaint was mala fide. Consequently, the Court allowed the appeal, quashing the criminal proceedings as an abuse of process.
Issues considered
- The applicability of Section 197 of the CrPC to the alleged acts of forest officials.
- Whether the complaint against the officials can be quashed under Section 482 of the CrPC.
- Whether the officials' actions were performed in discharge of official duty and thus require prior sanction.
- The credibility of the complainant's allegations given the delay in filing the complaint.
Legislation cited
- Code of Criminal Procedure, 1973s. 190, s. 193, s. 197, s. 482
- Indian Penal Code, 1860s. 323, s. 325, s. 34, s. 341, s. 386, s. 506
- Wildlife (Protection) Act, 1972
Subjects
Section 197 CrPCSection 482 CrPCpublic servant protectionsanction for prosecutionmala fide prosecutionquashing of criminal proceedingscognizanceabuse of process of lawOrissa Forest ActWildlife Protection Act
Judgment
A STATE OF ORISSA THROUGH KUMAR
RAGHVENDRA SINGH AND ORS.
V.
GANESH CHANDRA JEW
MARCH 24, 2004
B
[DORAISWAMY RAJU AND ARIJlT PASA YAT. JJ.]
--., <
Code of Criminal Procedure, 197 3-Section 197-Sanclion-
C Requirement of-Acting or purporting to act in discharge of official duty--
Meaning of-Cognizance without sanction-Legality of-Officers of forest
department arresting R for illegally possessing ivory-Complaint flied by R
alleging assault and maltreatment during arrest and thereafter-Held, act
done in discharge of official duty-Cognizance without sanction is prohibited
D Code of Criminal Procedure, 1973--Section 482-Quashing o}--Officers
of forest department arresting R for il/egal~v possessing ivory-Complaint
flied by R alleging assault a~d maltreatment during arrest and thereafter-On
appearance before Magistrate no grievance made-Medical examination of R
by a private doctor after 3 days-Complaint flied after 13 days-Held,
complaint liable to he quashed as malafide prosecution.
E
A complaint was filed by the respondent against the appellants, who
were officers of the Forest Department, alleging commission of offences
punishable under Sections 341, 323, 325, 506 and 386 read with Section
34 of IPC. The respondent alleged that he had been falsely implicated by
F the officers for possession of elephant tusks. He was arrested, made to walk
on the roads with handcuffs and sit under a tree in full public view. He
was not allowed to take insulin though request was made. At the time of
his production before the SDJM, elephant tusks were put on his shoulders.
He was also assaulted severely causing serious injuries.
G Before the SDJM, the respondent did not make any grievance about
ill-treatment by the appellants. Three days after being released on bail,
the respondent got himself examined by a private doctor. The complaint
against the officers was lodged 13 days after the alleged occurrence.
The appellants sought for quashing of the proceedings on the ground
H 504
STATE OF OR ISSA v. G.C. JEW 505
that no sanction under Section 197 of the Code of Criminal Procedure had A
been granted and therefore, cognizance could not be taken. The High
Court granted liberty to the appellants to make submission before the
SDJM. The SDJM took the view that no sanction under Section 197 was
necessary.
The appellants filed petition under Section 482 of the Code of B
Criminal Procedure, which was dismissed taking the view that Section 197
had no application to the facts the case. Hence the appeal.
• .,-
I
Allowing the appeal, the Court
HELD: 1.1. So far public servants are concerned the cognizance of c
any offence, by any Court, is barred by Section 197 of the Code of
Criminal Procedure unless sanction is obtained from the appropriate
authority, if the offence, alleged to have been committed, was in discharge
of the official duty. Section 197 of the Code of Criminal Procedure does
not only specify the persons to whom the protection is afforded but it also
D
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 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
-t abundantly clear that the bar on exercise of power by the Court to take E
-<
cognizance of any offence is absolute and complete. Very cognizance is
barred. That is, the complaint cannot be taken notice of. A Court,
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 discharge
F
-..\ of his official duty. [512-E-H; 513-AJ
1.2. The protection given by Section 197 o( the Code of Criminal
Procedure is to protect responsible public servants and 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 G
servants. The policy of the legislature is to afford adequate protection to
public servants to ensure that they are not prosecuted for anything done
. f. by them in the discharge of their official duties without reasonable cause.
This protection has certain limits and is available only when the alleged
act done by the public servant is reasonably connected with tlie discharge
of his official duty and is not merely a cloak for doing the objectionable H
506 SUPREME COllRl REPORTS [20041 3 S.C.R.
A act. If in doing his official duty, he acted in excess of his duty, the excess
will not be a sufficient ground to deprive the public servant from the
protection. (510-C-EI
1.3. 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
B 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 official duty. .,, •
(510-F-GI
c 1.4. 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 is to consider if the omission or neglect on the part of the public
servant to commit the act complained of could have been answerable for
D 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. 1510-G-H; 511-A-BJ
E 1.5. Section 197 of the Code of Criminal Procedure has to be
construed strictly, while determining its applicability to any act or omission
in course of service. Its operation has to be limited to those duties which
are discharged in co~rse of duty. But once any act or omission has been
found to have been committed by public servant in discharge of his duty
F then it must be given liberal and wide construction so far its official nature
is concerned. (514-A-BI
Black's Law Dictionary; B. Saha and Ors. v. MS. Kochar, 1197914 SCC.
177; Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr., AIR (1988) SC
257; P. Arulswami v. State of Madras, AIR (1967) SC 776 and Matajog Dobey
G v. H.C. Bhari, AIR (1956) SC 44, referred to.
S. A. Venkataraman v. The State, AIR (1958) SC 107; C.R. Bansi v.
The State of Maharashtra, 11970( 3 SCC 537; State of Maharashtra v. Dr.
Budhikota Subbarao, 119931 3 SCC 339; Kalicharan Mahapatra v. State of
Orissa, (19981 6 SCC 411; R. Balakrishna Pillai v. State of Kerald, AIR
. '.
H (1996) SC 901 and State of M.P. v. M. P. Gupta, 120041 2 SCC 349, also
..•(
STATE OF ORI SSA v. G.C. JEW [PASA YAT . .1.J 507
referred to. A
2. When the background facts of the case are considered, the question
regarding applicability of Section 197 of the Code of Criminal Procedure
. takes a temporary back seat. The factual scenario as indicated above goes
to show that when respondent was produced before the Magistrate, he was
specifically asked as to whether there was any ill-treatment. No complaint B
of any ill-treatment was made by the respondent. This itself strikes at the
credibility of the complaint. Additionally, the doctor who has examined
him has stated that for the first time he treated the complainant after 3
days. The threshold interference by exercise of jurisdiction under Section
482 of the Code of Criminal Procedure has to be in very rare cases, and C
this case appears to be of that nature. 1516-D-GI
State of Haryana v. Bhajan Lal, 119921 Supp 1 SCC 335, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 35
of 1998.
D
From the Judgment and Order dated 15.12.95 of the Orissa High Court
in Crl. M.C. No. 2163 of 1992.
Jana Kalyan Das for the Appellants.
Dr. Suman! Bhardwaj and Ms. Mridula Ray Bhardwaj for the E
Respondent.
The Judgment of the Court was delivered by
ARIJIT PASA YAT, J. Appellants have questioned legality of judgment F
rendered by a learned Single Judge of the Orissa High Court rejecting the
petition under Section 482 of the Code of Criminal Procedure, 1973 (in short
the 'Code'). Background facts essentially are as follows:
Grievances were made against six officers of the Orissa State Forest
Department, the present appellants by the respondent (described hereinafter G
as the 'complainant') alleging that they had falsely implicated him for offences
under the Orissa Forest Act, 1972 (in shott 'the Act'), the Wildlife Protection
' • Act, 1972 (in short 'the Wildlife Act') and being not content with the illegal
acts, and that they seriously assaulted him thereby committing offences
punishable under Sections 341, 323, 325, 506 and 386 read with Section 34
of the Indian Penal Code, 1860 (in short 'the !PC'). They also publicly H
508 SUPREME COURT REPORTS [2004] 3 S.C.R.
A humiliated him. The appellants questioned legality of the proceedings instituted
by the complainant in ICC case No. 45/91 in the Court of Sub-Divisional
Judicial Magistrate, Baripada (in short 'the S.D.J.M. '). Their primary stand
was that the complaint was lodged as a counterblast and retaliatory measure
because large quantity of ivory was seized from the complainant and he
B could not produce any material to justify the possession thereof.
According to the complainant he is a reputed Pharmacist, and also a
man of means and the owner of a cinema hall and producer of films. While
on 27.2.1991 he was engaged in the professional work, the present appellants .. '
along with some police personnel entered into his clinic and arrested him
c alleging that some elephant tusks were recovered from his possession. He is
a man having good reputation and standing in the society. There was absolutely
no reason for appellants to apprehend that he would flee away from custody.
Nevertheless he was made to walk on the bazar roads with hand-cuff. He was
taken to the range office and was made to sit under a tree with the intention
to give an impression to the general public that he was an illicit trader in
D elephant tusks. An advocate requested the officials to allow the complainant
to take insulin since he was a diabetic patient, but the request was not heeded
to. Complainant was treated as a criminal. On the next day he was produced ~
'>--
before the SDJM. Before doing that, some elephant tusks were put on his
shoulders and photographs were taken. Appellants 5 and 6 assaulted him
severely causing serious injuries. When he was produced before the SDJM
E
before evening, he was not in a proper state of mind. Subsequently, after
being released on bail he got himself medically examined and complaint was
lodged after consulting lawyers. Appellants questioned legality of the
proceedings. According to them, they were officials to whom protection under
Section 197 of the Code was applicable. In any event, the complaint was
F lodged with oblique motive and intention to get out of the illegalities committed
and as a retaliatory measure. There was absolutely no material to take
cognizance of the case. The acts of search, seizure and arrest were done in
pursuance of their official duty and they cannot be proceeded against without
necessary sanction as contemplated under Section 197 of the_ Code. The
Orissa High Court at the first instance permitted the appellants to make
G submission before the SDJM. But the SDJM took the view that there was no
necessity for sanction under Section 197 of the Code.
Matter was again brought before the High Court which by the impugned ••
judgment was of the view that Section 197 of the Code has no application
H to the facts of the case.
STATE OF ORISSA v. G.C. JEW iPASAYAT. J.] 509
ln support of the appeal, learned counsel for the appellants submitted A
that the complaint instituted by the respondent is nothing but an abuse of the
process of the court. The High Court has not taken note of the factual positions
which were highlighted to substantiate the prayer for quashing of the
proceedings in terms of Section 482 of the Code, particularly in the background
of Section 197 thereof. The alleged occurrence took place on 27.2.1991. On B
the next day i.e. 28.2.1991 the accused was produced before the Magistrate
and prayer for remand to custody was made. Simultaneously, the respondent
moved for bail. While hearing the bail application, the SDJM specifically
asked the respondent as to whether there was any i II-treatment. As the order
of the learned SDJM clearly shows, the accused did not make any grievance
of any ill-treatment and on the contrary admitted that there was no ill-treatment. C
Interestingly, the respondent got himself examined after three days by a
private doctor and the complaint was lodged after 13 days. These clearly
establish the ma/a fides. In the complaint petition also there was no specific
allegation against many of the appellants and vague statements were made
about alleged assaults. To divert attention, respondent has filed several cases
and the complaint in question is one of them. Acts done were in accordance D
with law and as part of official duty and the High Court was not justified in
holding that Section 197 of the Code is not applicable.
In response, learned counsel for the respondent-complainant submitted
that the assaults made by the appellants cannot be construed to be in pursuance E
of official duty. Seriousness of the injuries can be gauged from the materials
brought on record. It is not correct to say that any ma/a fides are involved.
A citizen's liberties were seriously trampled by these officials who committed
series of illegal acts. Merely because respondent who was in a dazed stage
on account of the ignominies brought upon by the acts of the appellants and
both mentally and physically battered, could not take steps instantly, that is F
of no consequence; more particularly when the bail application indicated the
illegalities committed. Section 197 of the Code has, therefore, rightly been
held to be inapplicable.
The pivotal issue i.e. applicability of Section 197 of the Code needs
careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and G
Anr., AIR (1988) SC 257, this Court while emphasizing on the balance between
protection to the officers and the protection to the citizens observed as follows:-
J • "I! is necessary to protect the public servants in the discharge of
their duties. In the facts and circumstances of each case protection of H
510 SUPREME COURT REPORTS [2004] 3 S.C.R.
A public officers and public servants functioning in discharge of official
duties and protection of private citizens have to be balanced by finding
out as to what extent and how far is a public servant working in
discharge of his duties or purported discharge of his duties, and whether
the public servant has exceeded his limit. It is true that Section 196
states that no cognizance can be taken and even after cognizance
B having been taken if facts come to light that the acts r,omplained of
were done in the discharge of the official duties then the trial may
have to be stayed unless sanction is obtained. But at the same time
it has to be emphasised that criminal trials should not be stayed in all .,.-,
cases at the preliminary stage because that will cause great damage
C to the evidence."
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
D adequate protection to public servants to ensure that they are not prosecuted
for anything done by them in the discharge of their official duties without
reasonable cause, and if sanction is granted, to confer on the Government, if
they choose to exercise it, complete control of the prosecution. This protection
has certain limits a11d is available only when the alleged act done by the
E 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 from the protection. The
question is not as to the nature of the offence such as whether the alleged
F 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
G 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
H and range of his official duty. There cannot be any universal rule to determine
STA TE OF OR ISSA v. G.C. JEW I PASA Y AT. l] 511
whether there is a reasonable connection between the act done and the official A
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
his question is in the affirmative, it may be said that such act was committed B
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.
At this juncture, we may refer to P. Arulswami v. State of Madras, AIR C
(1967) SC 776, wherein this Court held as under: "
...... It is not therefore every offence committed by a public servant
that requires sanction for prosecution under Section 197(1) of the
Criminal Procedure Code; nor even every act done by him while he
is actually engaged in the performance of his official duties; but if the D
act complained of is directly concerned with his official duties so
that, if questioned, it could be claimed to have been done by virtue
of the office, then sanction would be necessary. It is 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 E
unconnected with the official duty as such 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." F
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 hazards in
discharge of their duties, in absence of a provision like the one may be G
exposed to vexatious prosecutions. Section I97( I) and (2) of the Code reads
as under :
"197. (!)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 H
512 SUPREME COURT REPORTS 121104] 3 S.C.R.
A 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 -
-
(a) in the case of person who is employed or, as the case may be, was
at the time of commission of the alleged offence employed, in
B 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. ..., 1
c * * *
(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."
D The section falls in the chapter dealing with conditions requisite for initiation
of proceedings. That is if the conditions mentioned are not made out or are
absent then no prosecution can be set in motion. For instance no prosecution
can be initiated in a Court of Sessions under Section 193, as it cannot take
cognizance, as a court of original jurisdiction, of any offence unless the case
E has been committed to it by a Magistrate or the Code expressly provides for
it. And the jurisdiction of a Magistrate to take 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,
F by any court, is barred by Section 197 of the Code unless sanction is obtained
from the appropriate authority, ifthe 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
G conditions are satisfied. The mandatory character of the protection afforded
.
to a public 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 'shall' make it abundantly clear that the bar on the exercise
of power by the court to take cognizance of any offence is absolute and \.
complete. Very cognizance is barred. That is the complaint, cannot be taken
H notice of. According to Black's Law Dictionary the word 'cognizance' means
-
STATE OF ORI SSA v. G.C. JEW [PASAYA l . .I.] 513
'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine A
causes'. In common parlance it means taking notice of. A court, 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 committed during discharge of his official duty.
Such being the nature of the provision the question is how should the B
expression, 'any offence alleged to have been comm,;teci by him while acting
or purporting to act in the discharge of his official duty', be understood?
! \
What does it mean? 'Official' according to dictionary, means pertaining to an
office, and official act or official duty means an act or duty done by an
officer in his official capacity. In B. Saha and Ors. v. M.S. Kochar, [1979] C
4 sec 177, it was held: sec pp. 184-85, para 17.
"The words 'any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duty'
employed in Section 197(1) of the Code, are capable of a narrow as
well as a wide interpretation. If these words are construed too narrowly, D
the section will be rendered altogether sterile, for, 'it is no part of an
official duty to commit an offence, and never can be'. In the wider
sense, these words will take under their umbrella every act constituting
an offence, committed in the course of the same transaction in which
the official duty is performed or purports to be performed. The right E
approach to the import of these words lies between two extremes.
While on the one hand, it is not every offence committed by a public
servant while engaged in the performance of his official duty, which
is entitled to the protection of Section 197 (I), an Act constituting an.
offence, directly and reasonably connected with his official duty will
require sanction for prosecution and the said provision." F
Use of the expression, 'official duty' implies that the act or omission must
have been done by the public in the course of his .service and that it should
have been in discharge of his duty. The Section does not extend its protective
cover to every act or omission done by a public servant in service but restricts
its scope of operation to only those acts or omissions which are done by a G
public servant in discharge of official duty.
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 tfierefore implies that the act or H
-
514 SUPREME COl!RT REPORTS [2004.J 3 S.C.R.
A omission must have been done by the public servant in course of his service
and such act or omission must have been performed as part of duty which
further must have been official in nature. The Section has, thus, to be construed
strictly, while determining its applicability to any act or omission in course
of service. Its operation has to be limited to those duties which are discharged
B 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 concerned. For instance
a public servant is not entitled to indulge in criminal activities. To that extent
the Section has to be construed narrowly and in a restricted manner. But once 'f •
it is established that act or omission was done by the public servant while
C discharging his duty then the scope of its being official 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. For instance a police officer in discharge of
duty may have to use force which may be an offence for the prosecution of
D which the sanction may be necessary. But ifthe same officer commits an act
in course of service but not in discharge of his duty and without any
justification therefor 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 his duty can be deemed to be official was explained by this Court in
Matajog Dobey v. H.C. Bhari, AIR (1956) SC 44 thus :
E
"The offence alleged to have been committed (by the accused) 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 to the duty that the accused could lay a reasonable
F (claim) but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty."
If Oil facts, therefore, it is found that the act or omission for which the
accused was charged had reasonable connection with discharge of his duty
G then it must be held to official to which applicability of Section 197 of the
Code cannot be disputed.
H
In SA. Venkataraman v. The State, AIR (1958) SC 107 and in C.R.
Bansi v. The State of Maharashtra, (1970] 3 SCC 537 this Court has held
that : . '-·
"There is nothing in the words used in Section 6(1) to even remotely
-
STATE OF ORI SSA v. G.C. JEW [PASA Y AT, Jj 515
suggest that previous sanction was necessary before a court could A
take cognizance of the offences mentioned therein in the case of a
person who had ceased to be a public servant at the time the court
was asked to take cognizance, although he had been such a person at
the time the offence was committed."
The above position was illuminatingly highlighted in State of B
Maharashtra V. Dr. Budhikota Subbarao, [1993] 3 sc,~ 339.
, ., When the newly-worded section appeared in the Code (Section 197)
with the words "when any person who is or was a public servant" (as against
the truncated expression in the corresponding provision of the old Code of C
Criminal Procedure, 1898) a contention was raised before this Court in
Kalicharan Mahapatra v. State of Orissa, [1998] 6 SCC 411 that the legal
position must be treated as changed even in regard to offences under the Old
Act and New Act also. The said contention was, however, repelled by this
Court wherein a two-Judge Bench has held thus :
D
"A public servant who committed an offence mentioned in the Act,
while he was a public servant, can be prosecuted with the sanction
contemplated in Section 197 of the Act if he continues to be a public
servant when the court takes cognizance of the offence. But if he
ceases to be a public servant by that time, the court can take cognizance
of the offence without any such sanction." E
The correct legal position, therefore, is that an accused facing prosecution
for offences under the Old Act or New Act cannot claim any immunity on
the ground of want of sanction, if he ceased to be a public servant on the date
when the court took cognizance of the said offences. But the position is
different in cases where Section 197 of the Code has application.
F
Section 197( 1) provides that when any person who is or was 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 on purporting to act in the discharge of his official duty, no G
Court shall take cognizance of such offence except with the previous sanction
(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 and (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 H
516 SUPREME COURT REPORTS [2004] 3 S.C.R.
A the State Government.
We may mention that the Law Commission in its 4lst Report in
paragraph 15.123 while dealing with Section 197, as it then stood, observed
"it appears to us that protection under the section is needed as much after
retirement of the public servant as before retirement. The protection afforded
B by the section would be rendered illusory if it were open to a private person
harbouring a grievance to wait until the public servant ceased to hold his
official position, and then to lodge a complaint. The ultimate justification for
the protection conferred by Section 197 is the public interest in seeing that
'I •
C
official acts do not lead to needless or vexatious prosecution. It should be left
to the Government to determine from that point of view the question of the
expediency of prosecuting any public servant". It was in pursuance of this
..
observation that the expression 'was' come to be employed after the expression
'is' to make the sanction applicable even in cases where a retired public
servant is sought to be prosecuted.
D Above position was highlighted in R. Balakrishna Pillai v. State of
Kera/a, AIR (1996) SC 901 and in State of MP. v. MP. Gupta, [2004) 2
sec 349.
When the background facts of the case are considered the question
regarding applicability of Section 197 of the Code takes a temporary back
E seat. The factual scenario as indicated above goes to show that on 28.2.1991
respondent was produced before the Magistrate. He was specifically asked as
to whether there was any ill-treatment. Learned SDJM specifically records
that no complaint of any ill-treatment was made. This itself strikes at the
credibility of the complaint. Additionally, the doctor who has examined him
F stated that for the first time on 2.3.1991 he treated the complainant. Though
there are several other aspects highlighted in the version indicated in the
complaint and the materials on record are there, we do not think it necessary
to go into them because of the inherent improbabilities ohhe complainant's
case and the patent ma/a fides involved. It is no doubt true that the threshold
G interference by exercise of jurisdiction under Section 482 of the Code has to
be in very rare cases, and this case appears to be of that nature. It fits in with
the category no. 7 of broad categories indicated in State of Haryana v. Bhajan
Lal, [1992) Supp. I SCC 335. It is to be noted that though plea regarding
non-complaint before the Magistrate was specifically taken to justify
.interference, the High Court has not dealt with thi~ aspect at all thereby
H adding to the vulnerability thereof.
STATE OF ORI SSA v. G.C. JEW [PASAY AT . .I.] 517
The continuance of the proceeding by way of prosecution in this case A
would amount to abuse of the process of law.
The High Court's judgment and the proceedings in ICC No. 45/91 are
quashed. We make it clear that we have not expressed any opinion about the
merits of the cases instituted against respondent-complainant which shall be
dealt with in accordance with law. B
The appeal is allowed.
B.K.M. Appeal allowed.
J·.\
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