Supreme Court of India

SURESH KUMAR BHIKAMCHAND JAINversusPANDEY AJAY BHUSHAN AND ORS.

Citation: 1997 INSC 765
Decided: 27 November 1997
Disposal: Dismissed
Bench: G N RAY

Holding

The Supreme Court held that the requirement of sanction under Section 197 CrPC can be considered at any stage of the proceedings and the accused is not barred from producing relevant documentary material to establish that the acts were committed in discharge of official duty; prima facie, a case for sanction existed.

Summary

The President of Jalgaon Municipality filed a criminal complaint against four senior government officials who, while preventing the demolition of an illegal encroachment, assaulted him and others. The trial court issued process against three respondents but discharged the fourth for lack of sanction under Section 197 of the Criminal Procedure Code (CrPC). The respondents challenged the issuance of process in the High Court, which allowed their writ petitions and dismissed the appellant's revision. The Supreme Court examined whether the requirement of sanction under Section 197 can be raised at any stage and whether the accused may produce documentary evidence to show the acts were done in discharge of official duty. It held that the question of sanction is distinct from the trial scheme, can be considered at any stage, and the accused is not barred from producing relevant documents. On the facts, the acts were prima facie in official duty, so a case for sanction under Section 197 was made out. Consequently, the appeals were dismissed.

Issues considered

The applicability and timing of the sanction requirement under Section 197 CrPC in a criminal complaint against public servants.
Whether an accused public servant can produce documentary material to establish that the alleged acts were done in discharge of official duty at the stage of considering sanction.
Whether the High Court erred in allowing the respondents to recall the issuance of process and quash the complaint.

Legislation cited

Code of Criminal Procedure, 1973s. 144, s. 197, s. 200, s. 202, s. 204, s. 246(4)
Indian Penal Code, 1860s. 307, s. 323, s. 332, s. 34, s. 353, s. 504, s. 506

Subjects

Section 197sanctionpublic servantcriminal complaintcognizancejurisdictionevidencemunicipal demolitionassaulthigh court revisionsupreme court

Judgment

A SURESH KUMAR BHIKAMCHAND JAIN
v.
PANDEY AJAY BHUSHAN AND ORS.

NOVEMBER 27, 1997

B [G.N. RAY AND G.B. PATTANAIK, JJ.]

Code of Criminal Procedure, 1973-Section 197-Criminal complaint
against Government servants-Sanction for prosecution from government-
C Want of-Plea of bar against cognizance-Raising of-Held, question of
sanction can be considered at any stage of the proceedings-The question
of sanction should not be confused with the scheme of trial-The usual
procedure of leading evidence against the merits of the prosecution case by
way of defence evidence is not required to be followed for bringing materials
in support of plea of bar for want of sanction.
D Practice and Procedure-Jurisdictional error-Plea against-Held, ca11
be raised at any stage-No bar for producing the relevant documents and
materials for such consideration.
Jalgaon Municipality took a decision to demolish certain unauthorised
encroachment (tapri) pursuant to which the unit of Anti-Encroachment
E Department of Municipality went to demolish the same on July 3, 1993. One
of the Councillors of the Municipality tried to stop the attempt of the
Municipality to demolish the said tapri. Respondents I to 4, the Collector and
District Magistrate, Additional Superintendent of Police, Sub Divisional
Magistrate and Superintendent of Police of Jalgoan respectively were also
F personally present at the site and prevented the staff of the Municipality from
demolishing the tapri. The appellant, who was the President of Jalgaon
Municipality at material point of time, on coming to know about this, went
to the spot and protested against the said action of the respondents in
preventing the Municipality staff from discharging their statutory obligation
to demolish unauthorised construction. It was stated that the Respondents
G did not accede to the protest and persuasion of the appellant and physically
assaulted the appellant, his driver and some other persons including the
~ouncillors who were present at the spot. Subsequently the respondents
issued certain orders viz. prohibiting the demolition work for some time,
suspending the action of the Municipality in removing the encroachment and
H ordering, the Municipality not to use any force. The Jalgaon Municipality
524
SU RESH KUMAR BHIKAMCHAND v. PANDEY A.JAY BHUSHAN 525
' .
challenged the prohibitory orders before the Atirangabad Bench Of B.ombay A ·
High Court which was subsequently withdrawn. The appellant filed three
writ petitions on July 18, 1993 seeking various reliefs against certain
actions of the State Government.

Meanwhile, the appellant lodged a criminal complaint on 19-7-1993 in
the Court of Chief Judicial Magistrate, Jalgaon against the said respondents B·
under various provisions of the Indian Penal Code. On the basis ofdepositions
of witnesses of the appell:mt, the trial court issued processes against
respondents l to 3. The trial court, however, dischargedresponderit No. 4
on the ground of lack of sanction.

The respondents l,2 and 3 moved a writ petition before the Aurangabad C
Belich of Bombay High Court challenging the order of the triltl court issuing
process against them. In t_he meanwhile, the respondents.also m-Oved an .
application before the trial court for recalling or the ord~r of issuaricCo.of •., ·..
process which was dismissed: The appelia.nt also pn?ferredCrifuinal lle;i~ion
before the High Court challenging the o'tder ofthe tdal co~rt by ~hich tile . D
complaint against RespolldentNo~ 4 was dismissed on t.he ground oflackof
sanction. The writj1etition flied by.respondents l to 3 was ailowed:an.d the
a
Criminal Revision Application fll.ed by the apjJellarit was is missed by the .
High·Court. . . . · ·

Aggrieved, the appellant
. preferred the. .pres~nt
.
appealliefote
.
the.Court.' E
•.. ' . ' ' ' ' '

On behalf of the appella~t, it was ~ontetide~ th~t the ques~ion ofissiie
of process is to be d_eierlllined by"Consideri~g the.'~ont~ritsofthe complaint
.. arid decidin"g as to whether ; prima facie; such:conlpl~int mlikes out a case
within Hie four col'riers oqhe offences alleged by the complai~ant: If the ·.· ·.·
complaint prima facie disci 0ses eognizable offence;.the)riat court ought to · F
take cognizanc~ and issu~ process. bl)!~~~ the c~mplaint ori the face ofi.t
discl~ses official action; no sanctio.n for prosecutiori can be insisted at the
·initial stage for initiating a cir~inaLcase against the Senior Government
servants against whom the co.fupiaint had beeij lodged;
G
On behalf of the Respo.ndents, it was submitted that the question of
sanction as a bar of a criminal trial and defence. againstthe merit .of the ·
prosecution case stand on different footing. The question ofsanction goes
at the root because without the sanction, even if a complaint discloses a case
for criminal trial, such trial cannot be commenced or proceeded with, where
s~ch sanction is necessary. The requirement of sanction unde'r Section 197 H
526 SUPREME COURT REPORTS [1997J SUPP. 5 S.C.R.

A Criminal Procedure Code was there in the present case in view of the fact.
that the respondents had been acting or Pl!rporting to act in discharge of
their offiCial duties. Tension had developed at the place of occurrence .because
th.e Municipal Staff wanted to remove the tapari. This was likely to create .
a law and order situation. The Respondents with the view to curb the
.B precipitation of the trouble and further did not allow the Municipal staff to
demolish the tapri which was removed later on when the tension subsided.

Dismissing the appeal, the Court

HELD : 1.1. Considering the facts and circumstances of the case, it .
prima facie appears that the alleged acts on the part of the respondents were
C purported to be in the exercise of official duties. Therefore, a case of sanction
. under.Sectionl97 Criminal Procedure Code has been .prima facie made out.
' '

[541-D].

i.2. An accused is not. debarred from producing the relevant
documentary materiais which can be legally looked into without any formal
D proof, in support ofthe stand that tile acts complained of were committed in
exereise'0f his jurisdiction or purported jurisdiction as a public servant in
discharge of his official duty thereby requiring sanction of the appropriate
authori~y. [541-C]

1.3. It would be unreasonable to hold that accused even though might
E have really acted in discharge of his official duty for which the complaints
have been lodged yet he will have to wait till the stage under sub-section (4)
Section 246 of the Code reaches or at least till he will be able to bring in
relevant materials while cross examining the prosecution witnesses. On the
other hand it would be logical to hold that the matter being one dealing with
F the jurisdiction of the court to take cognisance, the accused would be entitled
to produce the relevant and material documents which can be admitted into
evidence without formal proof, for the limited consideration of the court
whether the necessary ingredients to attract Section 197 of the Code have
been established or not. [540-G-H; 541-A1

G 1.4. The question of requirement of sanction under Section 197
Criminal Procedure Code should not be confused with scheme of trial under
the Code of Criminal Procedure and the stage at which an accused against
whom the cognisance of offence has been taken by the Magistrate can lead
evidence in support of his defence. [538-Hl

H 1.5. The legislative mandate engrafted in sub-section (1) of Section
SURESHKUMAR BH!KAMCHANOv. PANDEY AJAY BHUSHAN 527
197 debarring a court from taking cognisance of an offence except with the A
previous sanction of the concerne.d Government in a case where the acts
compl.ained of are alleged to have been committed by the public servant in
discharge of his official duty or purporting to be in the discharge of his
official duty and such public servant.is not removable from his office save
by or with the sanction of the Government touches thejurisdiction of the
court itself. Itis a prohibition imposed by the statute froni taking cognisance; B
the accused after appearing before the court on process beihg issued, by an
application indicating that Secti.on ·197 (I). is attracted, merely assists the
court to rectify its error where jurisdiction has been exercised which it does
not possess. In such a case there should not be any bar. for the accused
producing the relevant documents and materials which will.be ipso facto C
admissible, for adjudication of the question as to whether in fa~t section 197
has any application in the case in hand. The question of sanction can be
considered at any stage of the proceedings. [540-A-D]

Matajog Dubey v. H.C. Bhari, [1955] 2 SCR 925;Pukhrajv. State of
Rajasthan, [1973] 2 SCC 701 and R Saha v. MS. Kochar, 11979] 4 SCC 177,. D
referred to.

K.M Mathew v. State ofKera/a, [1992] I SCC 217, distinguished; Smt.
Nagawwa v. Veeranna S. Konjalgi & Ors .. [1976] 3 SCC 736; Nagaraj v.
State of Mysore. f1964] 3 SCR 671, ChandraDeo Singh v. Prakash Chandra E
Bose. 11964] 1 ~CR 639; Y.D. Yesudasarl & Ors. v. Guruswamy. AIR (1957)
Madras 555; Pancham Lal v .. Dadan Singh, (1979) Criminal Law Journal
1018 (Patna);Dr. Ravindra v. V.K. Panwar, (1989) Criminal Law Journal
191.(Madhya Pradesh) and Premji Mahananda v. Mohanpani Karva, (1996)
l Criminal Law Journal 836 (Orissa), cited.
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 1114-
l 5ofI997c

From the Judgment and Order dated 10.9.96 of the Bombay High Court
in Crl. W.P. No. 414193 Crl. Application No.16of1994. G

Kapil Sibal, A.M. Khanwilkar, A.P. Mayee and Ms. V.D. Khanna for the
Appellant.

Ashok Desai, Attorney General, S.G. Page, D.V. Mirzakar, N.M.
Sakharande and D.M. Nargolkar for !he Respondents. .H
528 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted. Heard learned counsel for the parties.
-
The order of the Bombay High Court (Aurangabad Bench) dated
September JO, 1996 passed in Criminal Writ Petition No. 414 of 1993 and
B Criminal Revision Application No. 16of1994, is impugned in these appeals.
It will be appropriate at this stage to indicate in brief the background facts:-

(a) the appellant, at material point of time, was the President of the
Jalgaon Municipality. The said Jalgaon Municipality took a decision to demolish
the unauthori.sed encroachment (tapri). On the basis of such decision of the
C Municipality, the unit of Anti Encroachment Department ~f Municipality had
gone to demolish the unauthorised encroached construction on July 3, 1993.
One Shri Sita Ram @ Saban Baheti was also one the Councillors of Jalgaon
Municipality, The said councillor however, remained present at the site and
tried to stop the attempt of the Municipality to demolish the unauthorised
D tapri. The respondent No. I., Shri Pandey Ajay Bhushan, was Collector and
District Magistrate of Jalgaon and respondent No2 Shri Dilip G. Shriro, was
Additional Superintendent of Police, Jalgaon respondent No3., Shri Prakash
. Mahajan, was Sub-Divisional Magistrate, Jalgaon and respondent No.4, Shri
D.S. Jog was Superintendent of Police, .lalgaon, at the relevant time. The said
respondent Nos. 1 to 4 were personally present at the site and prevented the
E staffof the Municipality to demolish the tapri.
(b) The appellant was away from Jalgaon and having returned to Jalgaon
in the evening, came to know that the respondents were not allowing ihe
demolition of the unauthorised tapri. The appellant went to the spot and
protested against the said action of the respondents in preventing the
F Municipality staff from discharging their statutory obligation to demolish
unauthorised construction. The respondents, however, did not accede to the ·
protest and persuasion of the appellant. On the contrary, the respondents
physically assaulted the appellant, his driver and some other including the
councillors present at the spot. It has been alleged by the appellant that the
G respondent No.4 put a stick on the chest of the appellant and gave a vio1~nt
push. The respondent No.2 caught hold of ti1e neck of the appellant and
threatened him with his revolver. The respondent No.3 had given a stick blow
on the persons of the appellant. The respondent No. I also kicked and abused
him. The appellant and his supporters including the driver and some of the
councillors sustained injuries on account of the said high handed action of
H the respondents.
SURESHKUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY,J.] 529
(c) On the next day i.e., on July 4, 1993, the respondent No.3 issued A
prohibitory orders-under Section 144 of Criminal Procedure Code by declaring
that no dem·olition work could be done till July 20, 1993. On July 6, 1993
respondents issued an order suspending the action of the Municipality in
removing the encroachment. On the same day, another order was issued by
the respondents to the effect that no force would be used by the Municipality. B

(d) The Jalgaon Municipality challenged the prohibitory orders issued
under Section 144 of Cr.P,C, by filing a Writ Petition before Aurangabad
Bench of Bombay High Court being Writ Petition No. 261 of 1993 on July
7, 1993, Such Writ Petition was, however, withdrawn on July 8, 1993. On July
18,1993, the appellant filed three writ petitions being Writ petition Nos. 2149, C
2150 and 2151 of 1993 seeking various reliefs against certain actions of the
State Government. Writ Petition No. 2149of1993 was filed by the appellant
chl!llenging the order restraining the Municipality from using any force in
removing the unauthorised construction. Writ Petition No. 2151of1993 was
filed for prohibiting the State Government from issuing any order of
supersession of the Jalgaon Municipality. Such Writ Petition was filed because D
the appellant and. other councillors had apprehended that on account of
political vendatta, the persons in power would invoke action of superseding
the JalgaDll" Municipality.

(e) The appellant lodged a criminal complaint on July 19, 1993 being
Regular C.C. No. 194 of 1993 in the Court of Chief Judicial Magistrate, Jalgaon . E
against the said respondents under Sections 353, 332, 323, 307, 504 and 506
read with Section 34 Indian Penal Code. The appellant examined himself as
complainant on July 31, 1993. The Trial Court directed the appellant to produce
his witnesses on August 4, 1993. On August 4, 1993 the State Government
issued a letter in view of which the Writ Petition Nos. 2149, 2150 and 2151 F ·
of 1993 became infructuous and the High Court disposed of the said Writ
Petitions by order dated August 3, 1993.

(f) The appellant examined 7 witnesses in support of his complaint. The
deposition of the witnesses examined expressly disclosed cognizable offence
committed by the said·respondents. The Trial Court, however, discharged the G
respondent No. 4 on the ground of lack of sanction but issued processes
against respondent Nos. Ito 3. The Trial Court also dropped the charge under
Section 307 !PC.

The respondent Nos. 1, 2 and 3 moved a Criminal Writ Petition No. 414
of 1993 before the Aurangabad Bench of Bombay High Court challenging the H
530 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A order issuirig process against theltl, but without disposing of such writ petition,
by the order dated February 10, 1994, the High Court gave liberty to the said·
respondents to move applications before the trial court for recalling the order
issuing pro_cess against the1i1;

· (g) The respondentNos. 1 to 3 thereafter moved an application before
B the trial court for recalling of the order of issuance of process. Such application
was, however, dismissed by the learned Chief Judicial Magistrate by order
. dated April 12, 1994. The appellantalso preferred cfiminal Revision Application
No. 16 of 1?94 before the High Court challenging the order of the trial court
dated September 8, 1993 by which the complaint against respondent No. 4
C was dismis'sed on the ground of lack of sanction. The said Criminal Revisional
Application No. 16of1994 was tagged with the Criminal Writ Petition No. 414.
of 1993. By the impugned order dated September 10, 1996, the Writ Petition
filed by the respondent Nos. 1 to 3 was allowed and the Criminal Revisional
Application filed by the appellant was dismissed.

D Mr. Kapil Sibal, the learned Senior Counsel appearing for the appellant,
has contended that the impugned order of the High Court dated September
10, 1996 has not only resulted in manifest injustice meted out to the appellant
but the same is patently illegal, improper and unjustified. Mr. Sibal has ·
contended that the law is well settled about the scope of supervisory
E jurisdiction of the High Court under Article 227 of the Constitution of India
and inherent jurisdiction under Section 482 of Criminal Procedure Code and
this Court has clearly indicated that such jurisdiction is extremely circumscribed.

Mr. Sibal has also submitted that the High Court failed to appreciate ·
that in exercise of its supervisory jurisdiction under Article 227 and inherent
F jurisdiction under Section 482 Cr. P.C., the High Court was not to embark upon . ·
full fledged and full dressed appreciation of the evidences like a regular
appellate court and on such appreciation to quash the complaint on the score
of absence of requisite sanction. Mr. Sibal has also contended that the law
is now well settled that if the complaint prima facie discloses cognizable
G offence, the ·trial court ought to take cognizance and issue process. The trial
court can discharge the accused only when the complaint ex facie does not ..
disclose any offence. The aforesaid principle applies with greater vigour in
case of High Court exercising its jurisdiction under Section 482 Cr.P.C. The
order or issuance of process is basically a matter of discretion vested in the .·
concerned Magistrate and the only exception is that such discretion should
H not be exercised arbitrarily and without application of mind to the facts
SU RESH KUMAR BHIKAMCHAN[k PANDEYAJAYBHUSHAN [G N RAY, J.l ·53 J

alleged in the complaint. A

Mr. .Sibal has contended. that the learned Chief Judicial Magistrate,
Jalgaon had taken more than abundant caution in exercising the discretion
. which is clearly reflected in the initial order of Chief Judicial Magistrate when
he postponed the issuance of process and also in the subsequent order B
issuing process to respondents No. 1 to 3 and discharging respondent No.
1 after taking into consideration the deposition of the complainant and the
number of eye witnesses examined and also the medical certificates issued to
the complainant and the injured witnesses.

Mr. Sibal has submitted that it was improper on the part of the High C
Court in not disposing of the writ petition but granting liberty to the said
respondents to approach the trial court for recalling the order of issuance of
·summons by way of an interim direction even though such summons were
issued on consideration of the complaint and evidence adduced in support
of the complaint. In the application tnade by the said respondents before the
learned Chief Judicial Magistrate, Jalgaon for recalling the process certain . D
documents were annexed in an attempt to destroy evidence of the complainant
even though at that stage the accused were not entitled to bring in documents
in their defence. The learned Chief Judicial Magistrate, Jalgaon after hearing
the parties rejected the said applicaticm by confinning the order of issuance
of the processes. E
Mr. Sibal has submitted that question of issue· of process is to be
detennined by considering the contents of the complaint and deciding as to
whether, prima facie, such complaint makes out a case within the four comers
of the offences alleged by the complainant and in case, the complainant
makes out a case, which would indicate a cognizable offence, then the process F
is to be issued and the question of probable defence is not to be considered
at that stage. Mr. Sibal has submitted that the complaint lodged by the
appellant clearly makes out various offences committed by the respondents
and in support of such complaint; the complainant got himself examined and
had also examined a number of witnesses including the injured witnesses. On G
consideration of such materials on record, the learned Chief Judicial Magistrate
had issued the process against respondent Nos, I and 3. The applications·
made by the said respondents later on, pursuant to the liberty granted by the
High Court, to recall the processes were also dismissed by indicating cogent
reasons. Such orders of the learned Chief Judicial Magistrate should not have
been interfered with by the High Court by improper I)'. exercising the revisional H
532 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A jurisdiction under Article 226 and 227 of the Constitution and also under
Section 482 of Criminal Procedure Code.

Referring to Sections 202 and 204 of the Code of Criminal Procedure, Mr.
Sibal has contended that till the process is issued by the Magistrate on
consideration of the complaint and evidences adduced in support of the
B complaint by the complainant and his witnesses, the accused does not come
in the picture. The accused is also not authorised to lead any evidence to
destroy the complaint case at that stage. In support of such contention, Mr.
Sibal has referred to the decision of this Court in Smt. Nagawwa v. Veeranna
S. Konjalgi & Ors., [ 1976) 3 SCC 736). It has been held in the said decision
C that the scope of enquiry under Section 202 of the Code of Criminal Procedure
1898 (pari materia same as Section 202 of Cr. P.C. 1973) is extremely limited-
limited only to the ascertainment of the truth of falsehood of the allegations
made in the complaint ( 1) on the materials placed by the complainant before
the court (2) for the limiteq purpose of finding out whether a prim a facie case
for issue of process has been made out and (3) for deciding the question
D · purely from the point of view of the com.plainant without at all adverting to
any defence that the accused may have. It is not the province of the Magistrate
to enter into detailed discussion of the merits or demerits of the case nor can
the High Court go into this matter in its revisional jurisdiction which is very
limited one. In proceedings under Section 202, the accused has got absolutely
E no locus standi and is not entitled to be heard on the question whether the
process should be issued against him or not. In the decision in Nagawwa's
case, this Court has also held that the Magistrate, for the purpose of considering
as to whether a process should .be issued or not, can take into consideration
the inherent improbabilities appearing on the face of the complaint or in the
evidence led by the complainant iri support of the allegations. The Magistrate
F has been given an undo\lbted .discretion in the matter of deciding whether a
process should be issued or .not but such discretion has to be judicially
exercised. Once the discretion has been exercised by the Magistrate, it is not
· open for the High Court or even this court to substitute its own discretion
with a view to find out whether or not the allegations in the complaint if
G proved, would ultimately end in conviction against the accused.

Mr. Sibal has submitted that on two occasions the learned Magistrate
had taken irito consideration the complaint case and the evidence adduced
by the compiainant in support of allegations in complaint and h2ving exercised
his discretion judicially upon objective consideration of the complaint and
H complainanes evidence directed for issuing the process. In such circumstances,
SURESll KUMAR llfllKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY. J.] 533
there was no occasion for the High Court to quash the process issued by the A
I.earned Magistrate.

- Mr. Sibal has also submitted that scope and ambit of the writ petitions
moved before the High Court were entirely different The statements made in
such writ petitions cannot be taken into consideration either by the High
Court or by the learned Magistrate for deciding whether the complainant has B
prima facie made out a case for issuance of summons and consequential trial
on the basis of complaint.

Coming to the question of requirement of sanction for initiating a
criminal case against the senior government servants against whom the C
complaint had been lodged, Mr. Sibal has contented that unless the complaint
on the face of it discloses official action, no sanction can be insisted at the
initial stage. In the absence of ex facie official action alleged in the complaint,
the accused would be proceeded against in the criminal trial like other accused
without any requirement for sanction. In support of such contention, Mr.
Sibal has referred to the decision of this Court in Nagaraj v. State of Mysore, D
[1964] 3 SCR 671. Mr. Sibal has also referred to the decision of this Court in
Chandra Deo Singh v. Prakash Chandra Bose, [1964] I SCR 639. In Chandra
Deo's case, it has been held that if court on consideration of the complainant's
case issues process to the accused, the accused has no locus standi to take
part in the criminal proceedings and the Magistrate has also no jurisdiction E
to allow the accused to take pa1i in such proceedings. Mr. Sibal has also
referred to the decisions of this Court in Matajog Dubey v. H.C. Bhari, [1955]
2 SCR 925. Mr. Sibal has submitted that in Matajog Dubey's case, this Court
has indicated that the need for sanction under Section 197 Cr.P.C. is not
necessarily to be considered as soon as the complaint is lodged and on the
allegations contained therein. The complaint may not disclose that the act F
constituting the offence was done or purported to be done in the discharge
of official duty but facts subsequently coming to light on a police or judicial
enquiry or even in the course of prosecution evidence at the trial may
establish necessity of sanction. Whether sanction is necessary or not may
have to be determined from stage to stage. The necessity may reveal itself .G
in the course of progress of the case.

Mr. Sibal has submitted that the correct principle consistent with the
scheme of criminal trial at various stages under the Code of Criminal Procedure
has been indicated in the case of Matajog Dubey. This court has indicated
in the said decision that it was not necessary for the Court to find out whether H
534 SUP.l{EME COURT REPORTS [1997] SUPP. 5 S.C.R.

A a sanction was necessary cir not at the time of taking cognizance of the
complaint. The aucused, where sanction is necessary, is not without remedy
even if cognizance is taken and process is issued because the question of
sanction may still be taken into consideration at different stages of trial on
the basis of .further materials revealed at such stages.
-
B According to Mr. Sibal simply because an accuse.cl is a government .
servant and is clothed with duties to enforce law and order, he cannot claim
sanction under Section 197 Cr. P.C. as a matter of course. The acts alleged
against him must prima facie appear to be in the purported exercise of official
duties and functions. In support of such contention, reference has been made
C to the decision of this Court in Pukhraj v. State of Rajasthan, (1973) 2 SCC
701. In the said decision, the purpose and import of Section 173 Cr. P.C. have
been taken into consideration. It has been held that intention behind Section
197 Cr. P.C. is to prevent public serv.ants from being unnecessarily harassed.
The Section is not restricted to cases of anything purported to be done in
good faith for a person who ostensibly acts in execution of his duty still
D purports so to act, although he may have a dishonest intention. Nor is it
confined to ca.ses where the act, which constitutes the offence, is the official
duty of the concerned office. The test appears to be that the offence is
. capable being committed only by a public servant and not by any body else
but that it is committed by a public servant in an act done or purporting to
E be done in the execution of his duty. Section 197 is not confined to only such
acts as are done by a public servant directly in pursuance of his public office,
though in excess of the duty or under a mistaken belief as to the existence
of such duty. What is necessary is that .the offence must be in respect of an
act done or purported to be done in the discharge of official duty. It does not
apply to acts done purely in private capacity by a public servant. In Pukhraj's
F case, the Post Master General had kicked a clerk when such clerk requested
to cancel his transfer order. Such act had no semblance of discharging any
public duty by the Post Master General. Hence, it was held that no sanction
under Section 197 Cr.P.C. was necessary.

G Mr. Sibal has contended that in the instant case, the Municipal Officials
had been discharging their duties in removing unauthorised obstruction on
public road. For executing such act, the local executive and police authorities
were required to give necessary assistance by preventing persons. opposing
execution by the municipal staff. But unfortunately, the respondents despite
holding reasonable positions in the Government Service, obstructed municipal
H staff from carrying on their duties and functions. When the complainant being
SU RESH KUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G:N. RAY, J.] 535
the Chairman of the Municipality protested against such improper act on the A
part of the accused, he and other persons were assaulted,. abused and
manhandled. Such acts prima facie cannot be held to have been done on
purporting to be done in discharge of official duties. Hence, on the face of
the allegations, no sanction was warranted. If, however at a later stage when
the accused within the scheme of trial under the Criminal Procedure Code, will
have occasions to lead evidence in defence they may do so. If on defence B
evidence, or on materials produced in support of dE:fence -clifo, it transpires
that a case of sanction under Section 197 Cr. P.C. has been made out, the court
will be justified to stop further proceedings for want of sanction. But it will
be illegal if the defence evidence is .allowed to be introduced de hors the
scheme of trial at a stage when defence evidence could not have been C
introduced. Mr. Sibal has submitted that the High Court failed to appreciate
the legal import of Section 200 Cr. P.C. and not only allowed ·the accused to
introduce evidence and materials in defence but relying on such materials
passed the impugned judgment holding .inter alia that a case of sanction
tinder Section 197 Cr. P.C. has been made out. Since such order is wholly
unjustified, the same should be set aside t~ allowing this appeal. · D

Mr Ashok Desai, learned. Attorney General appearing for the respondents
has submitted that question of sanction as a bar of a criminal trial and defence
against the merit of the prosecution case stand on different footing. The
question of sanction goes at the root because without the sanction even if E
a cmnplaint discloses a case for criminal trial s.uch trial cannot be commenced
or proceeded with where such sanction is necessary. The learned Attorney
· General has submitted that writ petitio,ns were filed before the High Court by
the complainant and other persons for various reiiefs. The facts disclosed in
such writ petitions were relevant for the consideration as to the requirement
of sanction under Section 197 Criminal Procedure Code in view of the fact that F
the accused had been acting or purporting to act in discharge of their official
duties and as such they were entitled to claim protection by way of requisite
sanction under Section 197 of the Code of Criminal Procedure. Therefore, it
was not improper on the part of the High Court to consider the averments
in the writ petitions for the purpose of deciding whether a case for sanction G
exists or not.

Mr. Attorney has also submitted that even on the basis of the evidences
adduced by the witnesses of the c'implainant, a case of sanction has been
clearly made out. The learned. Attorney has drawn the attention of the Court
to the statement of PW I Vasant Baburao Suryavanshi who deposed to the H
536 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A effect that :

"When we started removing the tapari, Sri Baban Baheti came there
and stopped me to remove the stall...That time Sri Prakash Mahajan,
S.D.M. came there and told me "the situation is under his hand and
leave the spot along with your staff." At that time lot of people had
B gathered there. There was a crowd of spectators there. I tried to
remove the stall but could not succeed. At 4'0 Clock accused Nos.
I to 3 came there with I00 to 150 policemen ... the complainant told the
accused No. I (DM) that they are authorised to remove the tapari and
further told not to obstruct. As accused No. I did not listen, I along
with the complainant, councillor and our staff started removing the
c stall ... Complainant got flared up. Thereafter, lathi charge took place ...
. police brought us to the police station.

The learned Attorney has also drawn attention to the statement of PW
2 Pandurang_ Rathunath Kale. The said witness deposed to the following
D effect:

;\Thenhe (SDM) told me that he had taken charge of the placeand .
he WiJI not allow the stall to be removed. I again told SDM not to
cause: obstruction and allow us to do our work. Then he told me not
t() wait here. At that time SP Sri jog and Rao also came. They also told
E met() go away."

Our attention has also been drawn to the statement of PW 6 Babu
Gangaram Suryavanshi. The said witness has stated: ' ·

. ~'I .am working as Municipal Engineer in Jalgaon Municipal Council:
F On3.7.1993 at 7.30 A.M. as usual our Encroach~eni Squad went to
remove the encroachment. Shri.V.V. Suryavashi, Assistant Engineer
and Shri S.L. Patil, Junior Engineer also went to .the spot. At around
I 0.30 A,M., I got the massage that Baban Baheti have opposed the
squad in removing the encroachment and SDM and police had come
to the spot and they are obstructing the removal of the encroachment.
G SDM has said that he had.taken charge of the place and will not allow
the encroachment to be removed. He told him to go away from the
spot alongwith his staff. Complainant also asked the Collector why he
was not allowing the encroachment to be removed. The Collector told
him that he would not allow the encroachment to be removed.
H Complainant asked all of us to remove the encroachment. We all staff
SU RESH KUMAR BHIKAMCHAND v. PANDEY AJAY BHUSHAN [G.N: RAY, J.] 537
and Municipal Councillors started removing the encroachment. Then A
the complainant exhorted to remove the stall but the Collector did not
allow the stall to be removed. A very large crowd had gathered there.
The Collector said "do not bother about anyone put every one in the
van."
The learned Attorney has submitted that it is quite apparent from the B
said statements of witnesses of the complainant that a tension had developed
at the place of occurrence because the Municipal Staff wanted to remove the
tapari and Baban Baheti and a number of persons accompanying him opposed
such removal. A large number of persons also gathered at the place of
occurrence. It was at that stage, the accused respondent with police force
come. The Collector ,Superintendent of Police and the sub-Divisional C
Magistrate warned the Councillors, Municipal staff and the complainant that
they had taken charge of the said place and they would not allow anybody
to remove the tapari. When such warning was not heeded to and the
complainant and the other councillors and the Municipal staff took steps to ·
remove the tapari, the police had to use force against the accused and others D
who did not listen to such.warning and they were arrested and brought to
the police station. The learned Attorney has submitted that even if there had
been eDcroachment on the municipal road without any authority for which
such encroachment was required to be removed, if over the proposed 1)-Ction
of removal, a tension develops in the locality which is likely to create'il;!aw
and order situation, the District Magistrate, the Superintendent of Police and E
other Government Officers against whom the complaint had been mad~ were
justified to take a decision not to allow anyone to preCipitate the trouble any
further at that time. As a matter of fact the tapari was removed later on when
the tension subsided. It was clearly made known to the complainant and other · .
councillors and municipal staff that the police had taken ch.arge of the place . F
and no one would be permitted to remove the tapari at that point of time. If
inspite of that the complainant, councillors and other municipal.staff wanted
to remove the tapari by force, the respondents had enough justification to·
prevent them from doing so by exercising force. Mr. Attorney has submitted
that the action on the part of the respondents was ckarly In the exercise of
the official duties and it is immaterial whether in discharging the duties they G
had exceeded the jurisdiction. Once the acts alleged by the complainant had
been done in exercise or even in purported exercise of official duties,
requirement of sanction under Section 197 Criminal Procedure Code is fulfilled.

The learned Attorney had submitted that in Matajog Duby's case (supra)
even though it was alleged by the complainant that police officials and H
538 SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.

A Income Tax Officers used force and assaulted, since such action was made
in the purported exercise of the official duties, the Court held that a case of
-
Sanction had been made out. In Pukhraj's case (supra), it has been clearly
indicated th.at-even if in discharge of official duties some excesses had been
niade. b'fthe concerned officer, the case of sanction must be held to be made
out. Asthe Post Master General cannot be permitted to contend that kicking
B the clerk was resorted to even in the purported exercise of his official duties,
it was he!~ that in facts of the case, sanction was not necessary.
The. foamed Attorney has also referred to the decisions of various High
Courts where the question of sanction in the context of excesses committed
by the police in discharging 'official duties have been taken into consideration.
c In this connection, the learned Attorney has referred to the decisions reported
in AIR 1957 Madras 555' 1979, Criminal Law Journal 1018(Patna), 1989 Criminal
Law Journal 191 (Madhya Pradesh), 1996 (I )Criminal Law Journal 836 (Orissa).
The learned Attorney has submitted that since the question of sanction goes
at the root of the jurisdiction of the learned Magistrate to take cognizance or
D proceed further with the trial of the criminal case in the absence of required
to
sanction, the accused must be permitted to raise the question of sanction at
the threshold and it is not necessary for the ·accused to wait upto the stage
when . .
an. accused, within the scheme . of trail. under the
' ~ .
Code of Criminal .
Procedure; can lead evidence by way Of defence as contended by Mr. Sibal.
Mr. Attorney has submitted that if really a case of sanction was there, it will
'E be wholly 'Unjustified for the Magistrate to take abortive and futile exercise
either in taking cognizance of the complaint and proceeding further with
criminal trail. Therefore, plea of bar against cognizance and consequential for
want of sanction must be permitted to be taken at the threshold and the usual
procedure of leading evidence against the merits of the prosecution case by
F way of defence evidencejs not required to b\) followed for bringing materials
in support of plea of bar for want of sanction. The learned Attorney has
submitted that the impugned order passed by the High Court is legal and fully
justified and no interference is called for against the impugned d<!cision.
'
After giving our careful consideration to the facts and circumstance of
the case and the respective submissions of the learned counsel for the parties
G
it appears to us that the question of requirement of sanction under Section
197 Criminal Procedure Code should not be confused with the scheme of trial
under the Code of Criminal Procedure and the stage at which an accused
against whom the cognisance of offence has been taken by the learned
Magistrate can lead evidence in support of his defence. The question for
a
H consideration is when Magistrate on the basis ofa complaint issued process
SURESH KUMAR BHIKAMCHAND v. PANDEY AJAY BHUSHAN [G.N. RAY, J ] 539
for appearance of the accused on being satisfied that there is sufficient A
ground for proceeding and the accused appears before the Magistrate and
'takes the plea that the offence alleged to have been committed by him was
in the discharge of his official duty and further he was not removable from
his office save by or with the sanction of the Government and consequently
the court has no power to take cognisance except with the previous sanction B
of the Government as required under sub-section (I) of Section 197 of the
Code of Criminal Procedure then the Magistrate would be required to decide
the plea on the materials on record then existed or the accused can produce
relevant material to establish the necessary ingredients for invoking Section
197(1) of the Code? According to Mr. Sibal, the Magistrate can examine the
plea only with reference to the materials available on record and at that stage C
accused cannot have any righUo produce any evidence to support his plea.
According to the learned Attorney General, if the accused is debarred from
producing the relevant materials to indicate that the acts complained of were
in fact committed by the accu~ed in discharge of his official duty and he can
only produce the materials when the criminal proceeding reaches the under
sub-section (4) of Section 246 in any warrant case instituted otherwise than D
on police report, then the very object and purpose of the provisions of
Section 197 will get frustrated and the public servants will have to face
irresponsible or vexatious proceedings even in respect of acts done by him
in discharge of official duty. According to the learned Attorney General,
therefore, though at that stage it may not be permissible for an accused to E
lead any oral evidence but there cannot be any bar for him to produce
necessary documents including official records for the limited purpose of
consideration as to whether Section 197 can be said to be attracted and
whether there exists a valid sanction.

Mr. Sibal's contention is based upon the observations made by this F
Court in Mathew's case [1992] 1 SCC 217, wherein this Court had observed
that even after issuance of process under Section 204 of the Code if the
accused appears before the Magistrate and establishes that the allegations
in the Complaint Petition do not make out any offence for which process has
been issued then the Magistrate will be fully within his powers to drop the G
proceeding or rescind the process and it is in that connection the Court had
observed "if _the complaint on the very face of it does not disclose any
offence against the accused". The aforesaid observation made in the context
' of a case made out by the accused either for recall of process already issued
' or for quashing of the proceedings may not apply fully to a case where the
sanction under Section 197 (I) of the Cr.P.C. is pleaded as a bar for taking H
540 SUPREME COURT REPORTS [1997) SUPP. 5 S.C.R.

. A cognisance. The legislative mandate en grafted in sub-section ( 1) of Section ,..,.
197 debarring a court from taking cognizance of an offence except with a
previous sanction of the concerned Government in a case where the acts
complained of are alleged to have been committed by public servant in
discharge of his official duty or purporting to be in the discharge of his
B official duty and such public servant is not removable from his office save
by or with the sanction of the Government touches the jurisdiction of the
court itself. It is a prohibition imposed by the statute from taking congnizance,
the accused after appearing before the court on process being issued, by an
application indicating that Section 197( I) is attracted merely assists the court
to rectify its error where jurisdiction has been exercised which it does not
C possess. In such a case there should not be any bar for the accused producing
the relevant documents and materials which will be ipso facto admissible, for
adjudication of the question as to whether in fact Section 197 has any
application in the case in hand. It is no longer in dispute and has been
indicated by thi~ Court in several cases that the question of sanction can be
considered at any stage of the proceedings.
D
In Matajog's case 1955 (2) SCR 925 the Constitution Bench held that
the complaint may not disclose all the facts to decide the question of
applicability of Section 197, but facts subsequently coming either on police
or judicial inquiry or even in the course of prosecution evidence may establish
E the necessity for sanction. In S.B. Saha's case [1979) 4 SCC 177, the court
observed that instead of confining itself to the allegations in the complaint
the Magistrate can take into account all the materials on the record at the time
when .the question is raised and falls for consideration. In Pukhraj's case,
(supra) this Court observed that whether sanction is necessary or not may
depend from stage to stage. In Matajog's case the Constitution Bench had
F further observed that the necessity for sanction may reveal itself in the course
of the progress of the case and it would be open to the accused to place the
material on record during the course of trial for showing what his duty was
and also the acts complained of were so inter related with his official duty
so as to attract the protection afforded by Section 197 of the Code of Crim in al
G Procedure. This being the position it would be unreasonable to hold that
accused even though might have really acted in discharge of his official duty
for which the complaints have been lodged yet he will have to wait till the
stage under sub section (4) Section 246 of the Code reaches or at least till
he will be able to bring in relevant materials while cross examining the
prosecution witnesses. On the other hand it would be logical to hold that the
H matter being one dealing with the jurisdiction of the court to take cognisance,
SURESH KUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY, J] 54 J
the accused would be entitled to produce the relevant and material dccuments A
which can be admitted into evidence without formal proof, for the limited
consideration of the court whether the necessary ingredients to attract Section
197 of the Code have been established or not. The question of applicability
of Section 197 of the Code and the consequential ouster of jurisdiction of the
court to take cognisance without a valid sanction is genetically different from B
the plea of the accused that the averments in the complaint do not make out
an offence and as such the order of cognisance and/or the criminal proceedings
be quashed. In the aforesaid premises we are of the c,onsidered opinion that
an accused is not debarred from producing the relevant documentary materials
which can be legally looked into without any formal proof, in support of the
stand that the acts complained of were committed in exercise of his jurisdiction C
or purported jurisdiction as a public servant in discharge of his official duty
thereby requiring sanction of the appropriate authority.

Considering the facts and circumstances of the case, it prima facie
appears to us that the alleged acts on the part of the respondent were
purported to be in the exercise of official duties. Therefore, a case of sanction D
under Section 197 Criminal Procedure Code has been prima facie made out.
Whether it was unjustified on the part of the respondents to take recourse
to the actions alleged in the complaint or the respondents were guilty of
excesses committed by them will be gone into the trial after the required
sanction is obtained on the basis of evidences adduced by the parties. At E
this stage, such question are not required to be considered because the
accused have not yet led evidence in support of their case on merits.

We, therefore, do not think that any interference against the impugned
order·is called for. The appeals therefore, fail and are dismissed. By abundant
caution, we make it clear that on the merits of the case we have not expressed F
any opinion.

M.P. Appeals dismissed.

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