Holding

Section 197 CrPC applies only to acts or omissions done in discharge of official duty and does not bar prosecution for every offence by a public servant; errors in charge framing do not vitiate a conviction unless a failure of justice is demonstrated.

Summary

Paras Nath Singh, a public servant, was convicted by a trial court under IPC sections 409 and 468. The Sessions Judge acquitted him, holding that the sanction for prosecution was not given by an authorized authority, that the charges were improperly framed, and that the examination under Section 313 CrPC was defective. The High Court refused leave to appeal, focusing only on the sanction issue. The Supreme Court held that Section 197 of the CrPC requires sanction only for acts done in discharge of official duty and must be given a liberal construction; not every offence by a public servant attracts this protection. It further ruled that errors in charge framing or failure to ask Section 313 questions do not invalidate a conviction unless a failure of justice is shown. Consequently, the Court set aside the High Court order, granted leave to appeal, and remanded the matter for merits hearing.

Issues considered

The scope of Section 197 CrPC and when sanction is required for prosecution of a public servant
Whether the offences under IPC sections 409 and 468 committed by the respondent fall within the ambit of Section 197
The effect of errors in framing charges and omission of Section 313 examination on the validity of a conviction
Whether the High Court correctly refused leave to appeal on the ground of unauthorized sanction

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 218, s. 219, s. 220, s. 313, s. 464
Indian Penal Code, 1860s. 120B, s. 406, s. 409, s. 420, s. 461, s. 468

Subjects

Section 197 CrPCsanction for prosecutionpublic servantofficial dutycharge framing errorSection 313 CrPCcognizanceIPC sections 409, 468criminal appeal

Judgment

.. [2009] 8 S.C.R. 85

STATE OF U.P. A
v.
PARAS NATH SINGH
(Criminal Appeal No. 499 of 2004)
MAY 5, 2009
B
\ [DR. ARIJIT PASAYAT, D. K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]

Code of Criminal Procedure; 1973 - s.197 - Sanction
for prosecution - Scope of - Held: The provision is applicable c
to act or omission in discharge of official duty and not to every
act or omission of public servant in service - Once act or
omission found to be in discharge of official duty, the provision
to be given liberal and wide construction - Every offence
committed by public servant does not require sanction for D
prosecution.

Penal Code, 1860 - ss. 409 and 468 - Conviction by trial
cowt - Acquittal by appellate court - High Court refusing to
grant leave to appeal - On appeal, held: Acquittal on the basis
of error in framing of charges does not vitiate the conviction E
order as no failure of justice was occasioned thereby -
Inappropriate examination of accused also loses significance
in view of the finding that there was no need for sanction -
Code of Criminal Procedure, 1973 - s.197.
F
Words and Phrases - 'Cognizance' - Meaning of.

Respondent-accused was prosecuted u/ss.409 and
468 IPC. Trial court convicted him. Appellate court
1 acquitted him on the grounds viz. the officer according
~
G
sanction for prosecution was not authorized to do so;
charges were wrongly framed; and during examination
u/s. 313 CrPC appropriate question was not put to the
accused. High Court refused to grant leave to appeal on
85 H
86 SUPREME COURT REPORTS [2009) 8 S.C.R.

A the ground that the sanction for prosecution was not by
.
the authorized officer. Hence, the present appeal.

Allowing the appeal, the Court

HELD: 1.1. Section 197 CrPC falls in the chapter
8 dealing with conditions requisite for initiation of
proceedin~1s. That is if the conditions mentioned are not
made out or are absent then no prosecution can be set f
into motion. The cognizance of any offence, by any court,
as regards public servants is barred by Section 197
c unless sanction is obtained from the appropriate
authority, if the 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
D 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
~he expression, 'no court shall take cognizance of such
offence except with the previous sanction'. Use of the
E 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 cognizance is barred. That is the complaint cannot
be taken notice of. A court, therefore, is precluded from
entertaining a complaint or taki,ng notice of it or
F
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. [Para 4] [91-D-E-G-
H; 92-A-D]

G Black's Law Dictionary, referred to. r
•
1.2. 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
H
-,

STATE OF U.P. v. PARAS NATH SINGH 87

<Iii
protective cover to every act or omission done by a public A
servant in service but restricts its scope of operation to
only those acts or omissions which are done by a public
servant in discharge of official duty. [Para 6] [93-C-D]

B. Saha and Ors. v. M. S. Kochar 1979 (4) SCC 177,
B
referred to.

1.3. The scope has been widened further by
~
extending protection to even those acts or omissions
which are done in purported exercise of official duty. That
c
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 service and such act or
omission must have been performed as part Qf duty which
further must have been official in nature. The Section has,
thus, to be construed strictly, while determining its D
applicability to any act or omission in course of service.
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. Otherwise the entire E
purpose of affording protection to a public servant
without sanction shall stand frustrated. [Para 7] (93-D-G;
94-A]
,I
-· 1.4. If on facts, it is prima facie found that the act or
F
omission for which the accused was charged had
reasonable connection with discharge of his duty then the
act must be held as official to which applicability of
Section 197 CrPC cannot be disputed. [Para 8] (94-E-F]

Matajog Dobey v. H. C. Bhari AIR 1956 SC 44, relied on G

..,. -! S.A. Venkataraman v. The State AIR 1958 SC 107; C.
R. Bansi v, The State of Maharashtra 1970 (3) SCC 537,
referred to.
H
88 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 1.5. It is not correct to say that for offences u/ss. 406 ...
and 409 r/w Section 120-B IPC, sanction u/s. 197 CrPC is
a condition precedent for launching the prosecution. It is
not every offence committed by a public servant, which
requires sanction for prosecution u/s. 197 CrPC, nor even
8 every act done by him while he is actually engaged in the
performance of his official duties. [Para 10] [95-A-C]

Harihar Prasad, etc. v. State of Bihar 1972 (3) SCC 89;
S.R. Munnipalli v. Bombay 1955 (1) SCR 1177; Amrik Singh
v. State Pepsu 1955 RD-SC 9; State of Kera/a v.
"
c Padmanabhan Nair 1999 (5) SCC 690 and State of H.P. v.
M.P. Gupta 2004 (2) sec 349, relied on.

2.1. The question relating to Section 313 CrPC loses ,,,,
significance when considered in the background as to
D whether there was any need for sanction. The first
Appellate Court and the High Court have not kept this
aspect in view. [Paras ..13 and 14] [96-A-B]

2.2 . The error in framing of charge also does not
vitiate the order. Section 464 IPC, itself mandates that no
E
finding sanction or order by a court of competent
jurisdiction becomes invalid unless it is so that a failure
of justice has in fact been occasioned because of any
error omission or irregularity in the charge including in
misjoinder of charge. The burden is on the accused to
F show that in fact failure of justice has been occasioned.
[Paras 13, 16 and 17] [96-A; 97-A-B]
Case Law Reference:
1979 (4) sec 111 Referred to Para 5
G
AIR 1956 SC 44 Relied on Para 7 . ...__
AIR 1958 SC 107 Referred to Para 9
1910 (3) sec 537 Referred to Para 9
H
STATE OF U.P. v. PARAS NATH SINGH 89

1955 (1) SCR 1177 Relied on Para 10 A
"" 1955 RD-SC 9) Relied on Para 10

1912 (3) sec 89 Relied on Para 10

1999 (5) sec 690 Relied on Para 11
B
2004 (2) sec 349 Relied on Para 12

CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
i,-
No. 499 of 2004.

From the Judgment & Order dated 03.04.2003 of the High
c
Court of Judicature at Allahabad, Lucknow Bench Lucknow in
Criminal Misc. Case No. 1074/2000.

Shail Kumar Dwivedi, AAG, ~anoj Kr. Diwedi, AAG,
Pramod Swarup, G.V. Rao and Javed Mahmud Rao for the D
t Appellant.

J.S. Attri and Rajender Pd. Saxena for the Respondents.

The Judgment of the Court was delivered by
E
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the order passed by a learned Single Judge of the
Allahabad High Court dismissing the appeal filed by the
' appellant-State. The Criminal Misc. Case was filed seeking
-1.4·
grant of leave to prefer an appeal against the judgment and F

,•·
order dated 19.4.2007 passed by V Additional Sessions Judge,
Sitapur, whereby the accused-respondent was directed to be
acquitted of the charges relatable to Sections 409 and 468 of
the Indian, Penal Code, 1860 (in short 'IPC'). The only factor
which weighed with the High Court in refusing grant of leave to G
appeal was that the person who granted sanction for initiation
-1 of the criminal proceedings was not the authority to do so. It is
~
to be noted that the trial in this case was held by learned Chief
Judicial Magistrate, Sitapur. The accused faced trial for alleged
commission of offence punishable under Sections 409, 420,
H
90 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 461 and 468 IPC. The trial court held that the accused was
guilty of offence punishable under Sections 409 and 468 IPC.
••
In appeal., learned V Additional Sessions Judge, Sitapur,
allowed the appeal primarily on three grounds. Firstly, it was
held that the person who accorded sanction was not authorised
B to do so. Secondly, it was observed that in view of the
provisions contained under Sections 218, 219 and 220 of the
Code of Criminal Procedure, 1973 (in short 'Code') charges
could not have been framed in respect of the transaction for f
more than one year and, therefore, because of the framing of
c wrong charges the accused was entitled to acquittal. Finally, it
was observed that appropriate questions were not put while the
accused was examined under Section 313 of the Code. In this
context the Appellate Court referred to the question of sanction
by the inappropriate authority. As noted above, the High Court
referred to only the question of authority of the person granting
D
sanction.

2. Learned counsel for the appellant submitted that no part
of the alleged offence is protected under Section 197 of the
Code, and the effect of Section 464 of the Code has to be seen.
E
3. Prior to examining whether the Courts below committed
any error of law in discharging the accused it may not be out of
place to el<amine the nature of power exercised by the Court
under Section 197 of the Code and the extent of protection it .,
F affords to public servant, who apart, from various 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
r
G Magistrate or a public servant not removable from his office
save by or with the sanction of the Government is accused t
t.'·
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
H
STATE OF U.P. v. PARAS NATH SINGH 91
[DR. ARIJIT PASAYAT, J.]
except with the previous sanction - A

(a) in the case of person who is employed or, as
the case may be, was at ti1e time of commission
of the alleged offence employed, in connection with
the affairs of the Union, of the Central Government;
B
(b) in the case of a person who is employed or, as
t
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.
.,'
i c
xxx xxx xxx
(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, D
except with the previous sanction of the Central
Government."

4. The Section falls in the chapter dealing with conditions
requisite for initiation of proceedings. That is if the conditions E
mentioned are not made out or are absent then no prosecution
can be set into motion. For instance no prosecution can be
+ initiated in a Court Sessions under Section 193, as it cannot
take cognizance, as a court of original jurisdiction, of any
offence unless the case has been committed to it by a F
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 G
knowledge that such offence has been committed. So far as
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
offence, alleged to have been committed, was in discharge of H
1
!
l
92 SUPREME COURT REPORTS (2009] 8 S.C.R.

A 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
8 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 clea~ that the bar on
the exercise of power of the court to take cognizance of any
offence is absolute and complete. Very cognizance is barred.
C That is the complaint cannot be taken notice of. According to
Black's law Dictionary the word 'cognizance' means
'Jurisdiction' or 'the exercise of jurisdiction' or 'power to try and
determine 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
0
of a public servant who is accused of an offence alleged to have
committed during discharge of his official duty.

5. Such being the nature of the provision the question is
how should the expression, 'any offence alleged to have been
E committed 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 8. Saha and Ors. v. M.
F S. Kochar (1979 (4) SCC 177) it was held :(SCC 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,
G
are capable of a narrow as well as a wide interpretation.
If these words are construed too narrowly, the section will
be rendered altogether sterile, for, 'it is no part of an official
duty to commit an offence, and never can be'. In the wider
sense, these words will take under their umbrella every act
H
STATE OF U.P. v. PARAS NATH SINGH 93
[DR. ARIJIT PASAYAT, J.]
.
""'
.)

constituting an offence, committed in the course of the .A
.< 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 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 B
duty, which is entitled to the protection of Section 197(1),
an Act constituting an offence, directly and reasonably
1 connected with his official duty will require sanction for
prosecution and the said provision."
• 6. Use of the expressio11, 'official duty' implies that the act
c
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 m)ssion done by a public servant in service but restricts
its scope of operation to only those acts or omissions which D
are d"One by a public servant in discharge of official duty.

7. It has been widened further by extending protection to
even those acts or omissions Wh.ich are done in purported
exercise of official duty. That is under the colour of office. Official E
duty therefore implies that the act or omission must have been
done by the public servant in course of his service and such
-act or omission. must ha_ve 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 F
act or omission in course of service. Its operation has 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 give·n liberal and wide construction so far its official G
·t 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
it is establishe~ that act or omission was done by the public
.. servant while discharging his duty then the scope of its being
H
94 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 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
B offence for the prosecution of which the sanction may be
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. To what extent an act t

or omission performed by a public servant in discharge of his
c duty can be deemed to be official was explained by this Court
in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) thus"

''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
D 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 (claim)
but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty."
E
8. If on facts, therefore, it is prima facie found that the act
or omission for which the accused was charged had
reasonable connection with discharge of his duty then the act
+
must be held as official to which applicability of Section 197 of
F. the Code cannot be disputed.
9. In S.A 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 :

G "There is nothing in the words used in Section 6(1) to even
remotely suggest that previous sanction was necessary
...
before a court could 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
H asked to take cognizance, although he had been such a ...
STATE OF U.P. v. PARAS NATH SINGH 95
[DR. ARIJIT PASAYAT, J.]
person at the time the offence was committed." A

10. That apart, the contention of the respondent that for
offences under Sections 406 and 409 read with Section 120-
B of IPC sanction under Section 197 of the Code is a condition
precedent for launching the prosecution is equally fallacious.
B
This Court has stated the legal position in S.R. Munnipalli v.
Bombay (1955 (1) SCR 1177) and in Amrik Singh v. State
Pepsu (1955 RD-SC 9) that it is not every offence committed
by a public servant, which requires sa.gction for prosecution
under Section 197 of the Code, nor even every act done by him
while he is actually engaged in the performance of his official
c
duties. Following the above legal position it was held in Harihar
Prasad, etc. v. State of Bihar (1972 (3) SCC 89) as follows:

"As far as the offence of criminal conspiracy
punishable under Section 120-8, read with Section 409, D
Indian Penal Code is concerned and also Section 5(2) of
the Prevention of Corruption Act is concerned, they cannot
be said to be of the nature mentioned in Section 197 of
the Code of Criminal Procedure. To put it shortly, it is no
part of the duty of a public servant, while discharging his E
official duties, to enter into a criminal conspiracy or to
indulge in criminal misconduct. Want of sanction under
Section 197 of the Code of Criminal Procedure is,
therefore, no bar."
F
11. Above views are reiterated in State of Kera/a v.
Padmanabhan Nair (1999 (5) SCC 690). Both Amrik Singh
(supra) and S.R. Munnipalli (supra) were noted in that case.
Sections 467, 468 and 471 IPC relate to forgery of valuable
security, Will etc; forgery for purpose of cheating and using as
genuine a forged document respectively. It is no part of the duty G
1 of a public servant while discharging his official duties to
commit forgery of the type covered by the aforesaid offences.
Want of sanction under Section 197 of the Code is, therefore,
no bar.
H
96 SUPREME COURT REPORTS [2009) 8 S.C.R.

A 12. This position was highlighted in State of H.P. v. M.P.
Gupta (2004 (2) sec 349).

13. The error in charge also does not vitiate the order.
Finally, it is submitted that the question relating to Section 313
of the Code loses significance when considered in the
8
background as to whether there was any need for sanction.

14. Apparently the first Appellate Court and the High Court
t·
have not kept this aspect in view.

c 15. Further so far as the alleged error in framing the charge
is concerned the effect, of Secti9n 464 of the Code has not
been considered. The same reads as follows:

(1) No·finding sentence or order by a Court of
competent jurisdiction shall be deemed invalid merely on
D the ground that no charge was framed or on the ground of
any error, omission or irregularity in the charge including
any misjoinder of charge, unless, in the opinion of the Court
of appeal, confirmation or revision, a failure of justice has
i~ fact been occasioned thereby.
E .
(2) If the Court of appeal, confirmation or revision is
of opinion that a failure of justice has in fact been
occasioned, it may -

(a) in the case of an omission to frame a charge
F
order that a charge be framed and that the trial be
recommended from the point immediately after the framing
of the charge.

(b) in the case of an error, omission of irregularity in
G the charge, direct a new trial to be had upon a charg~
framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts
of the case are such that no valid charge could be
H preferred against the accused in respect of the facts ·
- ,A
STATE OF U.P. v. PARAS NATH SINGH
[DR. ARIJIT PASAYAT, J.]
97

proved, it shall quash the conviction. A

16. As the provision itself. mandates that no finding
sanction or order by a court of competent jurisdiction becomes
invalid unless it is so that a failure of justice has in fact been
occasioned because of any error omission or irregularlity in the s.
charge including in misjoinder of charge.

17. Obviously, the burden is on the accused to show that
in fact failure of justice has been occasioned. We set aside the
impugned order of the High Court and direct that leave to
appeal shall be granted and the appeal shall be heard on c
merits. We make it clear that we have not expressed any
opinion on the merits of the case which shall be decided in the
appeal before the High Court.

-..- 18. The appeal is allowed. D
K.K.T. Appeal allowed.