Sardool Singh v. Shiv Dayal & Anr.

11. Section 197 of Cr.P.C. reads as under: “197. Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)— (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB,

┌─────────────────────────────────────┬──────────────────────────────────────────┐
│ section 376C,                       │ section 376D,           section 376DA,   │
├─────────────────────────────────────┼──────────────────────────────────────────┤
│ section 376DB or sectio (2) No      │ n 509 of the Penal Code, 1860.           │
│ Court shall take have been          │ cognizance of any offence alleged to any │
│ committed by of the Union while     │ member of the Armed Forces ng or         │
│ acti discharge of his offici        │ purporting to act in the al duty, except │
│ sanction of the Central (3) The     │ with the previous Government. t may, by  │
│ State Governmen the provisions of   │ notification, direct that ection (2)     │
│ sub-s category of the members       │ shall apply to such class or of the      │
│ maintenance of public o wherever    │ Forces charged with the rder as may be   │
│ they may be se of that sub-section  │ specified therein, rving, and thereupon  │
│ wil                                 │ the provisions l apply as if for the     │
│                                     │ expression                               │
└─────────────────────────────────────┴──────────────────────────────────────────┘

12. Explaining the intent and provisions of A. Sreenivasa Reddy v. Rakesh Sharma 2023 SCC OnLine SC 952, the Hon‟ble Apex Court has observed as under:

41. Section 197 of the Cr PC 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 Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.

42. Sub-section (1) of Section 197 of the CrPC shows that sanction for prosecution is required where any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Article 311 of the Constitution lays down that no person, who is a member of a civil service of the Union or State or holds a civil post under the Union or State, shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of Section 197 of CrPC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.”

13. The scope of term “while acting or purporting to act in the discharge of his official duty” was elucidated by the Five-Judge Bench of Hon‟ble Apex Court in Matajog Dobey v. H.C. Bhari (1955) 2 SCR 925. The relevant observations read as under: “17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation... ***

18. There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. The State of Bombay, Bose, J. observes as follows: "Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. State of Pepsu. A fairly lengthy discussion of the authorities is followed up with this summary: “If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."

19. The result of the foregoing discussion is this: 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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty...”

14. The Three-Judge Bench of Hon‟ble Apex Court in Shreekantiah Ramayya Munipalli v. State of Bombay (1955) 1 SCR 1177 had held as under in relation to “offence” committed in discharge of official duties:

118. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The action has content and its language must be given meaning. What it says is - "when any public servant... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty...” We have therefore first to concentrate on the word "offence".

119. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and or dominion here were in an official capacity. And it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their lease and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it...”

15. The object behind Section 197 Cr.P.C. and the test for determining “official duty” was laid down in case of State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 by the Hon‟ble Apex Court, and relevant observations in this regard are extracted as under:

16. The principles in relation to applicability of Section 197 Cr.P.C. were laid down by the Hon‟ble Apex Court in Devinder Singh v. State of Punjab (2016) 12 SCC 87, which read as under:

18. In Indra Devi v. State of Rajasthan 2021 SCC OnLine SC 487, the Hon‟ble Apex Court, while quashing an FIR against a clerk accused of conspiring with his superiors in a case of alleged cheating and forgery of documents and municipality records, had observed as under: “9. We have given our thought to the submissions of learned counsel for the parties. Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy Vs. Manmohan Singh]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty”, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]. The real question, therefore, is whether the act committed is directly concerned with the official duty.

10. We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent No.2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction, i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent No.2 pertained to the subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No.2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two other officers.

11. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well.” ii. Whether Sanction under Section 197 Cr.P.C. was necessary in the present case

19. In the present case, the learned Magistrate vide order dated 19.03.2008 had summoned the following accused persons: (i) Investigating Officer namely Satbir, (ii) Incharge of Police Post/Chowki Incharge, Burari, namely Dinesh Kumar and (iii) SHO of PS Timarpur namely Shiv Dayal i.e. respondent no. 1 herein. These accused persons, as per complainant/petitioner herein, had allegedly forged the statement of complainant and used the same in chargesheet and framed an incorrect record intending to save the accused persons in the FIR No. 73/2000 registered on the complaint of petitioner.

20. At the outset, this Court notes that the summoning order was challenged before the learned ASJ only by respondent no. 1 i.e. SHO Timarpur and not by the other accused persons.

21. This Court has gone through the records of the case and the initial complaint dated 02.03.2000 lodged by the petitioner for non-supply of the copy of FIR and negligence on part of police official for delaying registration of FIR. A perusal of the same reveals that the only allegations contained therein are that: i. Chowki Incharge, Sant Nagar, Burari, and IO Satbir deliberately did not register any case against offenders even after receipt of MLC ii. All the concerned police officials i.e. SHO (respondent no. 1), Additional SHO, IO, and Chowki incharge, collectively did not take any action on the complaint of petitioner iii. After the FIR had finally got registered, IO Satbir had refused to supply the copy of FIR to the petitioner

22. Thus, there were no specific allegations against the respondent no. 1 and the single general allegation against him, contained in para 5 of the complaint dated 02.03.2000 was that he and all other police official had collectively failed to take any action on the complaint of petitioner. No other allegations were leveled in this complaint against the respondent no. 1. Thus, as far as this complaint dated 02.03.2000 is concerned, no offence is made out against the respondent no. 1 for which he was summoned.

23. Thereafter, the petitioner had filed an application under Section 340 of Cr.P.C. read with Sections 193/196/197/217/218 of IPC on 30.05.2001, in which following allegations were leveled against the against the accused persons: i. That the accused persons had registered FIR on the basis of fabricated documents ii. IO Satbir had made false submissions before the learned Magistrate regarding recording the statement of petitioner in the presence of Incharge-Police Post, Burari iii. The IO Satbir and Incharge, Police Post, Burari had given false and fabricated evidence in judicial proceedings including forged and fabricated statement of the petitioner/complainant iv. IO Satbir committed this offence within intent to save accused persons from punishment v. Incharge, Police Post, Burari and SHO, P.S. Timarpur (respondent no. 1 herein) associated and participated in the commission of same offence

24. Thus, a bare perusal of the said application and the aforesaid allegations would reveal that the allegations of preparing false and fabricated statement of petitioner etc. were against other accused persons i.e. the IO of the case and In-charge of Police Post, and not against respondent no. 1 i.e. SHO, P.S. Timarpur. Only a general allegations was made against respondent no. 1 that he had participated with other two accused in commission of the offence. Further, since the petitioner Sh. Sardool Singh had passed away during the pendency of proceedings before the learned Magistrate, his son namely Sewa Singh had tendered pre-summoning evidence before the learned Magistrate in which he had mentioned details of the event dated 05.01.2000.

25. In the present case, this Court also notes that a departmental enquiry had also been initiated against the accused persons under the supervision of one ACP Hawa Singh, who in his report stated that it was the SHO i.e. respondent no. 1 who had forwarded the proceedings under Section 107/150 Cr.P.C., and thus, his plea of ignorance of the proceedings in the present case was false. It was also opined that the SHO could have also invoked more serious sections such as Section 308 of IPC in the present case.

26. A perusal of summoning order would reveal that the learned Magistrate has heavily relied upon this enquiry report conducted by the police department to arrive at a finding that prima facie offences under Sections 466/471/217/218 of IPC had been committed by the accused persons.

27. However, having examined the records of the case and the evidence against the respondent no. 1, and even considering the enquiry report submitted by ACP Hawa Singh, the allegations against respondent no. 1 herein would be that he had knowledge of the acts committed by the other accused persons i.e. preparing forged statement of petitioner, and invoking less stringent provision in the FIR.

28. In the preceding discussion, this Court had referred to the precedents of Hon‟ble Apex Court in relation to scope of an „offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty‟. When the principles in relation to applicability of Section 197 Cr.P.C. are applied to the present case, this Court notes that even a bare reading of the allegations against respondent no. 1 would reflect that the acts alleged to have been committed by him, have a direct and reasonable nexus with the discharge of his official duties. The subject-matter of the allegations leveled by the petitioner is the registration of FIR and preparation of challan, and commission of alleged offences of forgery while discharging such duties. Registering an FIR, carrying out investigation and preparing and filing a final report under Section 173 Cr.P.C. are, undoubtedly, the official duties of an incharge of Police Station i.e. SHO, investigating officer and other concerned police official. Thus, for the purpose of Section 197 of Cr.P.C., such duties would termed as official duties of an SHO.

29. While deciding the issue of sanction under Section 197 Cr.P.C., the primary question is not as to the nature of the offence, but whether the same was committed by a public servant acting or purporting to act in the discharge of his official duties [Ref: Ganesh Chandra Jew (supra)]. The mere fact that alleged offence pertains to forgery cannot lead to a conclusion that sanction under Section 197 of Cr.P.C. would not be required [Ref: Indra Devi (supra), A. Srinivasulu v. State 2023 SCC OnLine SC 900]. The ultimate test to ascertain as to whether a sanction would be required or not would be as to whether the act committed had a reasonable connection with the discharge of his duties. Further, as held by Hon‟ble Apex Court, even when a policeman has acted in excess of duty while doing an official duty, but there is a reasonable nexus between the act and the performance of official duty, the sanction under Section 197 shall be required.

30. When the facts of the case and the limited allegations against respondent no. 1 herein are examined, the same clearly reflect that the alleged offence and the acts had been committed in relation to registration of FIR and preparation of challan, which are official duties. It is also crucial to note that Section 197 does not only cover the offences committed while „acting in discharge of official duties‟, but also includes within its ambit the offences committed while „purporting to act in such discharge‟. Acts such as recording statement of a complainant for the purpose of registration of FIR or invoking relevant sections of IPC are all official acts which are performed by police officials in discharge of their official duties. Therefore, in this Court‟s opinion, the alleged act of respondent no. 1 invoking less serious offences in the FIR and allowing the other accused i.e. IO and Incharge of Police Post in fabricating the statement of complainant etc. while registering FIR and preparing challan, would fall under the category of offence alleged to have been committed while purporting to act in discharge of official duties. It is also important to note that since such acts were interlinked and closely related to official duties of th accused persons, even department enquiry had been initiated.

31. Thus, this Court is the of the considered opinion that the sanction under Section 197 of Cr.P.C. was required before summoning the respondent no. 1 for the alleged offences, sans which, the cognizance/summoning was barred under law.

32. At this stage, when the first issue with respect to Sanction under Section 197 of Cr.P.C. goes against the case of petitioner and in favour of respondent no. 1 and in view of which the summoning of respondent no. 1 cannot sustain, this Court shall not consider the second issue framed in this case vide order dated 09.1.2017 since either of the outcome of the said issue shall not have any affect on the impugned orders since there is no sanction under Section 197 of Cr.P.C. in the present case.

33. Therefore, in view of the aforesaid discussion, the present petition is dismissed.

34. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J SEPTEMBER 13, 2023