DEVINDER SINGH vs. STATE OF PUNJAB THROUGH CBI

1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE/ORIGINAL JURISDICTION

[With Criminal Appeal No.352/2016 @ SLP (Crl.) Nos.3324/2016 @ Crl.MP No.10040/2004, WP (Crl.) No.139/2012, Criminal Appeal No.353/2016 @ SLP (Crl.) No.3352/2006, Criminal Appeal No.354/2016 @ SLP (Crl.) No.4729/2012, Criminal Appeal No.355/2016 @ SLP (Crl.) No.4739/2012, Criminal Appeal No.356/2016 @ SLP (Crl.) No.4743/2012, Criminal Appeal No.357/2016 @ SLP (Crl.) No.4759/2012, Criminal Appeal No.358/2016 @ SLP (Crl.) No.5369/2012, Criminal Appeal No.360/2016 @ SLP (Crl.) No.5419/2012, Criminal Appeal No.361/2016 @ SLP (Crl.) No.5435/2012, Criminal Appeal No.362/2016 @ SLP (Crl.) No.5522/2012, Criminal Appeal No.363/2016 @ SLP (Crl.) No.5547/2012, Criminal Appeal No.364/2016 @ SLP (Crl.) No.5578/2012, Criminal Appeal No.365/2016 @ SLP (Crl.) No.5590/2012, Criminal Appeal No.366/2016 @ SLP (Crl.) No.5592/2012, Criminal Appeal No.367/2016 @ SLP (Crl.) No.5614/2012, Criminal Appeal No.368/2016 @ SLP (Crl.) No.5617/2012, Criminal Appeal No.369/2016 @ SLP (Crl.) No.5619/2012, Criminal Appeal No.371/2016 @ SLP (Crl.) No.5622/2012, Criminal Appeal No.373/2016 @ SLP (Crl.) No.5668/2012, Criminal Appeal No.374/2016 @ SLP (Crl.) No.5669/2012, Criminal Appeal No.375/2016 @ SLP (Crl.) No.5697/2012, Criminal Appeal No.377/2016 @ SLP (Crl.) No.5706/2012, Criminal Appeal No.378/2016 @ SLP (Crl.) No.5712/2012, Criminal Appeal No.379/2016 @ SLP (Crl.) No.5714/2012, Criminal Appeal No.380/2016 @ SLP (Crl.) No.5716/2012, Criminal Appeal No.381/2016 @ SLP (Crl.) No.5812/2012, Criminal Appeal No.382/2016 @ SLP (Crl.) No.6005/2012, Criminal Appeal No.383/2016 @ SLP (Crl.) No.6006/2012, Criminal Appeal No.384/2016 @ SLP (Crl.) No.6014/2012, Criminal Appeal No.385/2016 @ SLP (Crl.) No.6057/2012, Criminal Appeal No.386/2016 @ SLP (Crl.) No.6066/2012, Criminal Appeal JUDGMENT 1 Page 1 2 No.387/2016 @ SLP (Crl.) No.6068/2012, Criminal Appeal No.388/2016 @ SLP (Crl.) No.6081/2012, Criminal Appeal No.389/2016 @ SLP (Crl.) No.6083/2012, Criminal Appeal No.390/2016 @ SLP (Crl.) No.9925/2012 and Criminal Appeal No.391/2016 @ SLP (Crl.) No. 4702/2012] J U D G M E N T ARUN MISHRA, J. 1. Leave granted in all the special leave petitions. 2. In the appeals the question involved is whether in view of the provisions contained in section 6 of Punjab Disturbed Areas Act, 1983 (as amended in 1989) (for short “the 1983 Act”) the prosecution or other legal proceedings relating to Police officers can be instituted without prior sanction of the Central Government. 3. The case set up by the appellants in Criminal Appeal No.190 of 2003 is that they are the officers of the Punjab Police. At the relevant time they were entrusted with the duties and responsibilities of public order and peace JUDGMENT in the State of Punjab. It is averred by the appellants that, in the early 1980s, there was a sudden spurt in the terrorist activities, massive killings at the hands of terrorists, looting, extortions, kidnapping, resulting into total collapse of the civil administration. More than 25,000 civilians, 1800 men in uniform and their relatives had been killed at the hands of the terrorists resulting into migration of civil population in the border districts of 2 Page 2 3 Amritsar, Ferozpur and Gurdaspur. District Amritsar was bifurcated into three police districts for the purpose of better administration, namely

It is further averred that on 22.7.1993 four persons were killed in an encounter with the police. The prosecution alleged that they were killed in a fake encounter. On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused as at the relevant time, under section 6 of the 1983 Act, sanction from Central Government was required. However, on the basis of sanction obtained from the State Government, the CBI filed chargesheet against the accused persons in the Court of Special Judge, Patiala. The appellants filed application under section 227 of the JUDGMENT Cr.P.C. for discharge on the ground that they had acted in the incident in the course of their duty and sanction granted by the State Government was without jurisdiction, illegal and void. 4. The CBI contested the application on the ground that sections 4 and 5 of the 1983 Act were not applicable and there was no need for obtaining any sanction because the deceased had been killed in a fake encounter. The 3 Page 3 4 Special Court dismissed the application filed by the accused persons. Aggrieved thereby, they approached the High Court by filing a criminal

is not required. The same could not be said to be an act in discharge of official duties. Aggrieved thereby the appellants are before this Court. The facts are more or less similar in all the cases. 5. Writ Petition (Crl.) No.139/2012 has been filed by Chaman Lal with a prayer that Union of India may be directed to grant sanction under section 197 Cr.P.C. for prosecution of police officer as set out in the affidavit of CBI filed in Appeal No.190/2003. 6. This Court vide order dated 20.7.2001 stayed the further proceedings before the trial court in SLP (Crl.) No.2336/2001 - Balbir Singh & Ors. v. JUDGMENT State of Punjab . Similar orders of interim stay were passed in other cases also. One such order was passed on 21.1.2002 in SLP (Crl.) Nos.3072- 75/2001 and these matters had been tagged. On behalf of the accused appellants, order dated 16.2.2006 has been referred to in which it has been observed that the CBI had stated during the course of the arguments that the mater be sent to the Central Government with the entire record to consider 4 Page 4 5 the question of sanction in terms of section 6 of the 1983 Act. This Court in view of the stand taken by the CBI continued the interim stay on operation

without being prejudiced by any observation made in any of the impugned orders. Cases were ordered to be listed after three months. This Court was informed by the Additional Solicitor General on 10.10.2006 that the Central Government has opined that the case of Balbir Singh was not a fit case for giving sanction for prosecution in terms of section 6 of the 1983 Act. So far as Harpal Singh is concerned, the Central Government was not the competent authority and with respect to another accused Bhupinderjit Singh, CBI has not submitted full report. Thereafter interim order was passed on 13.2.2007 by this Court to consider grant of sanction in the case JUDGMENT of Gurmeet Singh. On 22.9.2010 this Court noted in the interim order that Balbir Singh in Crl. Appeal No.190/2003 had died and this Court dismissed the appeal as abated against him. Appeal with respect to other appellants was adjourned. Interim stay was granted in other connected matters on 30.7.2012 with respect to cases pending in the trial court at Patiala. 7. It was submitted by learned counsel appearing on behalf of accused 5 Page 5 6 appellant that sanction to prosecute was necessary in view of the provisions contained in section 6 of the 1983 Act as amended in 1989. Thus the

submission being raised by CBI that the matter will be referred to the Central Government for sanction and in certain cases Central Government had granted sanction and in others it had declined. Sanction to prosecute was necessary as the act was done in discharge of official duties. As a matter of fact, false allegations of fake encounter have been made in the cases. The deceased indulged in various criminal activities. They were creating unrest and the officers have discharged their duties at the time of the incident. Thus without prior sanction to prosecute by the Central Government, they could not have been prosecuted. The prosecution JUDGMENT deserves to be quashed. Per contra, it was submitted on behalf of the CBI and the learned counsel appearing on behalf of the complainant that in such cases of criminal activities, fake encounters, custodial death due to torture etc., sanction to prosecute is not at all required as fake encounters, torture in custody and other criminal acts complained of do not form part of their 6 Page 6 7 official duties. Thus, the High Court has rightly upheld the order of the trial court, in such cases the sanction to prosecute is not necessary in such cases.

9. It was submitted by learned counsel on behalf of the appellants that in the course of proceedings the CBI has taken a stand that it would refer the cases for sanction to the Central Government. This Court is bound by such stand of the CBI on the basis of which interim order was passed and the petition may be disposed of in terms of the interim order that the Central Government may decide the question of sanction. We are not at all impressed by the submission made by learned counsel appearing on behalf of the appellants. In the interim order this Court has never decided the legality or the correctness of the impugned orders passed by the High Court. In the course of JUDGMENT proceedings interim order was passed on the basis of particular submission made by counsel for the CBI but this Court has never decided the question whether sanction at this stage is necessary or not. Hence the interim orders are of no avail to the cause espoused by the appellants. 10. On merits, accused-appellants have relied upon the decision of the Federal Court in Dr. Hori Ram Singh v. Emperor [AIR 1939 FC 43] in 7 Page 7 8 which Federal Court has laid down that the question of good faith or bad faith is expected to be decided by the court after trial. The question of good

duty”, the court observed that it is difficult to say that it necessarily implies “purporting to be done in good faith”. In the case of embezzlement, an officer is not doing an act in execution of his duty. It would amount to criminal breach of trust under section 409 IPC but in case of provision under section 477-A IPC if an act is done willfully, with intention to defraud, falsify any book or account, in such cases for prosecution under section 409, consent of Governor is not necessary but for prosecution under section 477A, consent is necessary. 11. Reliance has also been placed on the decision of this Court in JUDGMENT Shreekantiah Ramayya Munipalli v. The State of Bombay [1955 (1) SCR 1177] wherein this Court had observed thus : “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. What it says is – 8 Page 8 9 “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’.

JUDGMENT The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus “willfully suffer” another person to use them dishonestly: section 405 of the Indian Penal Code. In both cases, the “offence” in his case would be incomplete without proving the 9 Page 9 10 official act.

12. This Court has observed in Shreekantiah Ramayya (supra) that cases have to be decided on their own facts. 13. Reliance has also been placed on a decision of this Court in Matajog Dobey v. H.C. Bhari [1955 (2) SCR 925] in which a complaint was filed under sections 323, 341, 342, and 109, Cr.P.C. Summons were issued to accused persons under section 323. An objection was taken by accused Bhari as to want of sanction under section 197 Cr.P.C. It was upheld and all the accused were discharged. The High Court affirmed the order of the Presidency Magistrate. This Court held that where in pursuance of a search JUDGMENT warrant issued under section 6 of the Taxation on Income (Investigation Commission) Act, 1947, they were required to open the entrance door and on being challenged by the Darwan they tied him with a rope, causing him injuries and alleged to have assaulted the proprietor mercilessly with the help of two policemen. In the facts of the case it was held by this Court that sanction was necessary as the assault and the use of criminal force related 10 Page 10 11 to the performance of the official duties of the accused within the meaning of section 197 Cr.P.C. In the matter of grant of sanction under section 197

In other words, there must be a reasonable connection between the act and the discharge of official duty. That must have a 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. The question of sanction may arise at any stage of prosecution, the Constitution Bench also held that the facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not, may have to be determined from stage to stage. This Court has held thus : JUDGMENT “Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram’s case and also in Sarjoo Prasad v. The King-Emperor (1945) F.C.R. 227. Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intent to lay down any such 11 Page 11 12

was firing by the Customs party as they were resisted in carrying out a raid peacefully and an injury was sustained by the Customs party. This Court JUDGMENT considered grant of protection under section 108 of the Gold (Control) Act, 1968 providing immunity to an officer for official act done in good faith under the Act. This Court has discussed the matter thus : “6. In view of the circumstances mentioned in the last paragraph, there is little room for doubt that the Customs party was not out to commit dacoity either in the jewellery shop or the chaubara , that they also committed no trespass into either of those places, but that the purpose of the raid was to find out 12 Page 12 13

7. Even though what we have just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present, it may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of this type are allowed to be pursued to their logical conclusion, i.e., to that of conviction or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed.” 15. In State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC 339, this Court considered grant of sanction under section 197 on complaint JUDGMENT of espionage. It was held that it was during the discharge of official duty the act was done, also considering the provisions contained in the Official Secrets Act, 1923 and the Atomic Energy Act, 1962, sanction for prosecution under section 197 Cr.P.C. was necessary. The meaning of the ‘official act’ has been considered by this Court and held thus : “6. Such being the nature of the provision the question is how should the expression, ‘any offence alleged to have been 13 Page 13 14

“The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision .” JUDGMENT Use of the expression, ‘official duty’ implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. In P. Arulswami v. State of Madras (1967) 1 SCR 201 this Court after reviewing the authorities right from the days of Federal 14 Page 14 15 Court and Privy Council held:

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty . That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned . For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner . But once it JUDGMENT 15 Page 15 16

“[T]he offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty … there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty .” (emphasis supplied) JUDGMENT 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 it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.” 16. In Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997 (7) SCC 622, a question came up for grant of sanction under section 6 of the Prevention of Corruption Act, 1988 in which this Court had observed that 16 Page 16 17 the State Government or any other authority has a right to consider the facts of each case and to decide whether a public servant can be prosecuted or

Court has held thus : “14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that “public servant” is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the “other authority” has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.” 17. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors . [1998 (1) SCC 205] this Court has laid down that the accused is not JUDGMENT debarred from producing the relevant documentary materials which can be legally looked into without any formal proof to support the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority. This Court held that at a preliminary stage such questions are not required to be considered because accused has not yet led evidence in support of their case on merits. 17 Page 17 18 This Court has held thus :

JUDGMENT 18 Page 18 19

JUDGMENT 19 Page 19 20

25. Considering the facts and circumstances of the case, it prima facie appears to us that the alleged acts on the part of the respondents were purported to be in the exercise of official duties. Therefore, a case of sanction 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 in the trial after the required sanction is obtained on the basis of evidences adduced by the parties. At this stage, such questions are not required to be considered because the accused have not yet led evidence in support of their case on merits.” JUDGMENT 18. In Gauri Shankar Prasad v. State of Bihar & Anr . 2000 (5) SCC 15 this Court has laid down the test to determine whether the alleged action which constituted an offence has a reasonable and rational nexus with the official duties required to be discharged by the public servant. The appellant in his official capacity as Sub-Divisional Magistrate had gone to the place of the complainant for the purpose of removal of encroachment. It was when entering the chamber of the complainant, he used filthy language and 20 Page 20 21 dragged him out of his chamber. It was held that the act has a reasonable nexus with the official duty of the appellant. Hence no criminal proceedings

x x x x x 14. Coming to the facts of the case in hand, it is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 CrPC. Therefore, the High Court erred in holding that Section 197 CrPC is not applicable in the case.” JUDGMENT 19. It has been laid down in Gauri Shankar Prasad (supra) that in case offence has been committed while discharging his duties by an accused and there is a reasonable nexus with official duties, if answer is in the 21 Page 21 22 affirmative then sanction is required. However it would depend upon the facts and circumstances of each case whether there is a reasonable nexus

firing was made by police inspector while removing encroachments due to which one person was killed and two were injured. A private complaint was filed under sections 302, 307 etc. on which Magistrate issued summons to the police inspector. A challenge was made to the cognizance taken by the Magistrate by filing a petition under section 482 before the High Court. The High Court held that the question of sanction can be raised at the time of framing of the charge and decision in Birendra K. Singh v. State of Bihar 2000 (8) SCC 498 has been held not to be a good law. This Court has observed that the question of sanction under section 497 Cr.P.C. has to be JUDGMENT considered at the earlier stage of the proceedings. Ultimately on facts it was held that the police inspector was entitled to protection and without sanction he could not have been prosecuted. Thus the criminal proceedings instituted without sanction were quashed. 21. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation 2001 (6) SCC 704 this Court considered the provisions 22 Page 22 23 contained in section 197(1) of the Code of Criminal Procedure whether an offence committed “while acting or purporting to act in the discharge of his

official duty. In any view of the matter there must be a reasonable connection between the act and the official duty. It does not matter that the act exceeds what is strictly necessary for the discharge of the official duty, since that question would arise only later when the trial proceeds. However no sanction is required where there is no such connection and the official status furnishes only the occasion or opportunity for the acts. The claim of the accused that the act was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases the question of sanction should be JUDGMENT left open to be decided after conclusion of the trial. The decision in Abdul Wahab Ansari (supra) has also been taken into consideration by this Court. In P.K. Pradhan (supra) this Court has laid down thus : “5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official 23 Page 23 24

x x x x x JUDGMENT 15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only 24 Page 24 25

16. In the present case, the accused is claiming that in awarding contract in his capacity as Secretary, Department of Rural Development, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. Therefore, it is not possible to grant any relief to the appellant at this stage. However, we may observe that during the course of trial, the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down in this case without being prejudiced by any observation in the impugned orders.” JUDGMENT 22. In State of H.P. v. M.P. Gupta 2004 (2) SCC 349 this Court has considered the provisions contained under section 197 and has observed that the same are required to be construed strictly while determining its 25 Page 25 26 applicability to any act or omission during the course of his service. Once any act or omission is found to have been committed by a public servant in

Court has held thus : “11. Such being the nature of the provision, the question is how should the expression, “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, be understood? What does it mean? “Official” according to the 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.” 23. In State of Orissa & Ors. v. Ganesh Chandra Jew 2004 (8) SCC 40 this Court has held that protection under section 197 is available only when the act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the JUDGMENT objectionable act. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection it will not deprive him of the protection. This Court has also observed that there cannot be a universal rule to determine whether there is a reasonable connection between the act done and the official duty nor is it possible to 26 Page 26 27 lay down any such rule. It was held thus :

JUDGMENT 27 Page 27 28

However, it has also been observed that public servant is not entitled to indulge in criminal activities. To that extent the section has been construed narrowly and in a restricted manner. 24. In K. Kalimuthu v. State by DSP 2005 (4) SCC 512 this Court has observed that official duty implies that an act or omission must have been done by the public servant within the scope and range of his official duty for protection. It does not extend to criminal activities but where there is a JUDGMENT reasonable connection in the act or omission during official duty, it must be held to be official. This Court has also observed that the question whether the sanction is necessary or not, may have to be determined from stage to stage. This Court has laid down thus : “12. 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 it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. 28 Page 28 29 x x x x x

25. In State of Karnataka through CBI v. C. Nagarajaswamy 2005 (8) SCC 370 this Court has considered the question of grant of sanction and it was held that grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. Whether proper sanction is accorded or not, ordinarily it should be dealt with at the stage of taking cognizance but if the cognizance of the offence is taken erroneously and the JUDGMENT same comes to the notice of the court at a later stage, a finding to that effect is permissible and such a plea can be taken for the first time before an appellate court. In case sanction is held to be illegal then the trial would be held to have been rendered illegal and without jurisdiction, and there can be initiation of fresh trial after the accused was discharged due to invalid sanction for prosecution and a fresh trial was expedited. 26. In Sankaran Moitra v. Sadhna Das & Anr . 2006 (4) SCC 584 it was 29 Page 29 30 considered that sanction under section 197 Cr.P.C. is a condition precedent though the question as to applicability of section 197 may arise not

the facts of the case was not accepted. The complaint disclosed that the deceased was a supporter of a political party beaten to death by the police at the instance of appellant police officer near a polling booth on an election day. On the facts it was held that the appellant committed the act in question during the course of performance of his duty and sanction under section 197(1) was necessary for his prosecution. This Court has observed thus : “25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its JUDGMENT 30 Page 30 31

27. In Harpal Singh v. State of Punjab 2007 (13) SCC 387 this Court has laid down that cognizance could not have been taken without sanction by the TADA Court. The conviction recorded on the basis of prosecution without sanction was set aside. 28. Learned counsel for appellants has also relied upon the decision of JUDGMENT this Court in General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation & Anr . 2012 (6) SCC 228 in which this Court has observed that it is for the competent authority to decide the question of sanction whether it is necessary or not and not by the court as sanction has to be issued only on the basis of sound objective assessment and not otherwise. Prior sanction is a condition precedent. This Court has laid down 31 Page 31 32 thus :

83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.” JUDGMENT 29. This Court in D.T. Virupakshappa v. C. Subash 2015 (12) SCC 231 has observed that whether sanction is necessary or not, may arise at any 32 Page 32 33 stage of the proceedings and in a given case it may arise at the stage of inception. This Court has referred to the decision of this Court in Om

“ 41 . The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea.”” JUDGMENT 30. In Manorama Tiwari & Ors. v. Surendra Nath Rai 2016 (1) SCC 594 in a case of death by alleged negligence of Government doctors, it was held that the sanction for prosecution was necessary. On facts it was held that the appellants were discharging public duties as they were performing surgery 33 Page 33 34 in the Government hospital. Hence criminal prosecution was not maintainable without sanction from the State Government.

have committed the offence of fabrication of false record or misappropriation of public funds etc. Can he be said to have acted in discharge of official duties ? Since it was not the duty of the public servant to fabricate the false records, it was held that the official capacity only enabled him to fabricate the records and misapporopriate the public funds hence it was not connected with the course of same transaction. This Court has also observed that performance of official duty under the colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The court during trial or JUDGMENT inquiry has to apply its mind and record a finding on the issue that crime and official duty are integrally connected or not. This Court has held thus : “4. …. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be 34 Page 34 35

32. In S.K. Zutshi & Anr. v. Bimal Debnath & Anr . 2004 (8) SCC 31 this Court has emphasized that official duty must have been official in nature. JUDGMENT Official duty implies that the act or omission must have been official in nature. If the act is committed in the course of service but not in discharge of his duty and without any justification then the bar under section 197 Cr.P.C. is not attracted. This Court has laid down thus : “9. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty, therefore, implies that the act or omission must 35 Page 35 36

JUDGMENT 33. In P.P. Unnikrishnan & Anr. v. Puttiyottil Alikutty & Anr. 2000 (8) SCC 131, law to the same effect as in the above decision has been reiterated. The police officers kept a person in lock-up for more than 24 hours without authority and subjected him to third degree treatment. Thus it was held that such offence was neither covered under section 64(3) of the Kerala Police Act nor under section 197(1) Cr.P.C. 36 Page 36 37 34. In Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State through Central Bureau of Investigation 2011 (6) SCC 1, this Court

record up to that stage. Whether allegation of misappropriation is true or false is not to be gone into at this stage in considering the question whether sanction for prosecution was or was not necessary. The criminal acts attributed to the accused were taken as alleged. This Court has observed as under : “87. Both these judgments were followed in Atma Ram case AIR 1966 SC 1786 where the question was as to whether the action of a police officer in beating and confining a person suspected of having stolen goods in his possession could be said to be under colour of duty. It was held as under: (AIR pp. 1787- 88, para 3) JUDGMENT “ 3 . … The provisions of Sections 161 and 163 of the Criminal Procedure Code emphasise the fact that a police officer is prohibited from beating or confining persons with a view to induce them to make statements. In view of the statutory prohibition it cannot, possibly, be said that the acts complained of, in this case, are acts done by the respondents under the colour of their duty or authority. In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by 37 Page 37 38 Section 161(1) of the Bombay Police Act.”

“ 9 . … All that can be said in the present case is that the first appellant, a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter Madhukanta handed over to him, coerced Ramanlal to pay illegal gratification to him. This cannot be said to have been done under colour of duty. The charge against the second appellant is that he aided the first appellant in his illegal activity.” x x x x x 94. In B. Saha case (1979) 4 SCC 177 this Court was dealing primarily with the question as to whether sanction under Section 197 CrPC was required where a Customs Officer had misappropriated the goods that he had seized and put them to his own use. While dealing with this submission, it was also observed as under: (SCC p. 184, para 14) JUDGMENT “ 14 . Thus, the material brought on the record up to the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under Section 409 of the Penal Code. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not 38 Page 38 39 to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged .” (emphasis supplied)”

suspected of a crime of confining him or sending him away in an injured condition, it cannot be said that police at that time were engaged in investigation and the acts were done or intended to be done under the provisions of law. Act of beating and confining a person illegally is outside the purview of the duties. 36. In Paramjit Kaur (Mrs) v. State of Punjab & Ors . (1996) 7 SCC 20, this Court directed the Director, CBI to appoint an investigation team headed by a responsible officer to conduct investigation in the kidnapping and whereabouts of the human rights activist and also to appoint a high- JUDGMENT powered team to investigate into the alleged human rights violations. 37. The principles emerging from the aforesaid decisions are summarized hereunder : I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further 39 Page 39 40 public duty. However, authority cannot be camouflaged to commit crime.

wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. JUDGMENT IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete 40 Page 40 41 without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

objective assessment. The court is not to be a sanctioning authority. VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is JUDGMENT open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon 41 Page 41 42 facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in

was. Accused has the right to lead evidence in support of his case on merits. IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 38. In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence JUDGMENT of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused 42 Page 42 43 persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge

way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law. The trial to JUDGMENT proceed on the aforesaid basis. Accordingly, we dispose of the appeals/writ petition in the light of the aforesaid directions. ………………………J. (V. Gopala Gowda) New Delhi; ………………………J. April 25, 2016. (Arun Mishra) 43 Page 43 44 ITEM NO.1A-For Judgment COURT NO.9 SECTION IIB/X S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 190/2003 DEVINDER SINGH & ORS. Appellant(s) VERSUS STATE OF PUNJAB THROUGH CBI Respondent(s) WITH Crl.A.No.352/2016 @ SLP(Crl.) No.3324/2016 @ SLP(Crl.)...CRLMP No. 10040/2004 Crl.A.No.353/2016 @ SLP(Crl) No. 3352/2006 W.P.(Crl.) No. 139/2012 Crl.A.No.354/2016 @ SLP(Crl) No. 4729/2012 Crl.A.No.355/2016 @ SLP(Crl) No. 4739/2012 Crl.A.No.356/2016 @ SLP(Crl) No. 4743/2012 Crl.A.No.357/2016 @SLP(Crl) No. 4759/2012 Crl.A.No.358/2016 @ SLP(Crl) No. 5369/2012 JUDGMENT Crl.A.No.360/2016 @ SLP(Crl) No. 5419/2012 Crl.A.No.361/2016 @ SLP(Crl) No. 5435/2012 Crl.A.No.362/2016 @ SLP(Crl) No. 5522/2012 Crl.A.No.363/2016 @ SLP(Crl) No. 5547/2012 Crl.A.No.364/2016 @ SLP(Crl) No. 5578/2012 Crl.A.No.365/2016 @ SLP(Crl) No. 5590/2012 Crl.A.No.366/2016 @ SLP(Crl) No. 5592/2012 44 Page 44 45 Crl.A.No.367/2016 @ SLP(Crl) No. 5614/2012 Crl.A.No.368/2016 @ SLP(Crl) No. 5617/2012

Crl.A.No.373/2016 @ SLP(Crl) No. 5668/2012 Crl.A.No.374/2016 @ SLP(Crl) No. 5669/2012 Crl.A.No.375/2016 @ SLP(Crl) No. 5697/2012 Crl.A.No.377/2016 @ SLP(Crl) No. 5706/2012 Crl.A.No.378/2016 @ SLP(Crl) No. 5712/2012 Crl.A.No.379/2016 @ SLP(Crl) No. 5714/2012 Crl.A.No.380/2016 @ SLP(Crl) No. 5716/2012 Crl.A.No.381/2016 @ SLP(Crl) No. 5812/2012 Crl.A.No.382/2016 @ SLP(Crl) No. 6005/2012 Crl.A.No.383/2016 @ SLP(Crl) No. 6006/2012 Crl.A.No.384/2016 @ SLP(Crl) No. 6014/2012 JUDGMENT Crl.A.No.385/2016 @ SLP(Crl) No. 6057/2012 Crl.A.No.386/2016 @ SLP(Crl) No. 6066/2012 Crl.A.No.387/2016 @ SLP(Crl) No. 6068/2012 Crl.A.No.388/2016 @ SLP(Crl) No. 6081/2012 Crl.A.No.389/2016 @ SLP(Crl) No. 6083/2012 Crl.A.No.390/2016 @ SLP(Crl) No. 9925/2012 Crl.A.No.391/2016 @ SLP(Crl) No. 4702/2012 45 Page 45 46 Date : 25/04/2016 These appeals and the writ petition were called on for pronouncement of JUDGMENT today.

Ms. Jyoti Mendiratta,Adv. Ms. Kamini Jaiswal,Adv. For Respondent(s) Mr. P. Parmeswaran,Adv. Mr. Bharat Sangal,Adv. Ms. Sushma Suri,Adv. Mr. Irshad Ahmad,Adv. Mr. Kuldip Singh,Adv. Ms. Puja Sharma,Adv. Mr. B. V. Balaram Das,Adv. Mr. Arvind Kumar Sharma,Adv. Hon'ble Mr. Justice Arun Mishra pronounced the judgment of the Bench comprising Hon'ble Mr. Justice V.Gopala Gowda and His Lordship. JUDGMENT Delay, if any, is condoned. Leave granted in the all the special leave petitions. The appeals and the writ petition are disposed of in terms of the signed Reportable Judgment. (VINOD KUMAR JHA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Reportable Judgment is placed on the file) 46 Page 46