Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
DR. BUDHIKOTA SUBHARAO
DATE OF JUDGMENT16/03/1993
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
PANDIAN, S.R. (J)
CITATION:
1993 SCR (2) 329 1993 SCC (2) 567
JT 1993 (3) 389 1993 SCALE (2)44
ACT:
Code of Criminal Procedure 1973 : Section 197--Cognizance of
offence by public servants--Nature of power exercised by
Courts--Extent of protection afforded to public
servants--Sanction to prosecution--Requirement of.
Words and Phrases--Meaning of ’Official’--Official Duty’.
HEADNOTE:
The respondent in the appeal was an ex-Naval Captain who
achieved notable success in the field of computer science
and software during the period be was attached with the
Bhabha Atomic Research Centre and had voluntarily opted out
of service in 1987. He was arrested on 30th May, 1988 just,
when he was about to board a plane for New York. His
residence was searched on the next day. From the documents
recovered from search of the hand bag on 30th and residence
on 31st and his interrogation, it appeared that he was
guilty of violating provisions of the Official Secrets Act,
1923 and Atomic Energy Act, 1962 and, therefore, a complaint
was riled, against him after obtaining permission, under
Section 3(1)(c), 3(1)(c) read with Sections 9, 6(2)(a) and
6(2)(b) of the O.S. Act and 24(1)(d) read with 18(2) and
24(2)(d) read with Section 19(b) of the A.E. Act before the
Metropolitan Magistrate who being prima facie satisfied of
the offences and their gravity committed the accused to
stand trial before the Court of Sessions.
The accused assailed the framing of charge contending that,
on facts, no offence under either of the Statutes was made
out, and if any offence for which he could be charge-sheeted
could be under Section 5 of the O.S. Act. The Trial Judge
turned down the plea by order dated 24/27th February, 1989
and fixed date for framing the charge.
A revision against this order was dismissed by the High
Court on 6th June, 1989, and was challenged by way of
Special Leave Petition in this Court, but it was permitted
to be withdrawn.
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The accused thereafter invoked the inherent jurisdiction of
the High Court seeking review of the order dated 6th June,
1989 and although the application was rejected on 18th
September, 1989 but an observation was made that there was
no impediment in the way of the Trial Judge in altering or
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modifying or reviewing any of the charges or even framing
new or additional charge. This provided an occasion to the
accused for starting proceedings, afresh, for his discharge
and claim in the alternative to framecharge under Section 5
of O.S. Act instead of under Section 3, for which purposed
he moved an application which was allowed by the Trial Judge
on 15th January, 1990, and the charges under A.E. Act were
dropped. The charge under the O.S. Act was altered to one
under Section 5 of the Act. This order was set aside on
3rd/4th April’, 1990 by a Single Judge and the Trial Judge
was directed to frame charges both under Sections 3 and 5 of
the O.S. Act.
The accused approached the Division Bench against the
aforesaid order by way of an application speaking to the
Minutes for clarification of the order passed by the High
Court on 3rd/4th April, 1990 as the Single Judge who passed
the order on 3rd/4th April, 1990 did not appreciate the
observations made by the Division Bench, but it was rejected
on 24th July, 1990 as there was no system of speaking to the
Minutes by doing which the order could be reviewed in
criminal proceedings. The Division Bench dismissed this
application and observed that remedy of the accused was to
approach the court in proper forum.
When the matter ’was thereafter taken up for framing the
charge the accused, once again, claimed that he was entitled
to be heard at stage of Section 227 of the Code of Criminal
Procedure and he was entitled to be discharged. The Trial
Judge by order dated 6th August, 1990 rejected the
application, restored the earlier charges and framed a
charge under Section 5 as well.
The validity of the aforesaid framing of charges was
challenged by way of a Writ Petition (Criminal) under
Articles 226 and 227 of the Constitution, and it was claimed
that the entire proceedings being violative of Article 21 of
the Constitution were liable to be quashed. The High Court
did not find any substance but by its order dated 24th
March, 1991 directed the ASJ to decide if sanction under
Section 197 of the Code was required, and also to determine
whether the authorisation under Section
313
5 of the O.S. Act and 7 of the Atomic Energy Act was in
accordance with law.
Pursuant to the aforesaid direction the ASJ examined the
material on record and observed that authorisation was not
proper, but refrained from expressing any opinion in view of
the direction of the High Court to ,decide the requirement
of sanction under Section 197 of the Code of Criminal
Procedure, first, and the effect, in law, of its absence.
It was held that the documents seized from the possession of
the accused indicated that they were inseparably interwined
with performance of his official duties and therefore, the
prosecution could not have been initiated without sanction.
The High Court in revision decided both the questions in
favour of the accused, holding that the authorisation for
institution of prosecution, for offences allegedly committed
under either Statute, was invalid as even though
authorisation was issued, in favour of the Prosecuting
Inspector who was also the Investigating Officer, but it
having been issued by an authority other than the Central
Government it was not in accordance with law. On the
question of sanction under Section 197 of the Code, the High
Court agreed with the A.SJ. that the charges itself
indicated that the offences were committed during the period
the accused was a serving officer, therefore, in absence of
the sanction no cognizance of any of the offences could have
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been taken.
In the appeal to this Court on the question whether the
judgment of the High Court, affirming the order of the Trial
Judge discharging the accused, is if the absence of
sanction, by the appropriate authority, under Section 197
Cr. P.C. for prosecuting a retired public servant, vitiates
the proceedings.
Dismissing the appeal, this Court,
HELD : 1. Section 197 Cr. P.C. falls in the Chapter dealing
with conditions requisite for initiating of proceedings. If
the conditions mentioned are not made out or are absent then
no prosecution can be set in motion. [321C]
2. So far as public servants are concerned cognizance of any
offence, by any Court, is barred by Section 197 unless
sanction is obtained from appropriate authority, if the
offence, alleged to have been committed,
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was in discharge of the official duty. The Section not only
specified the persons to whom the protection is afforded but
it also specifies the conditions and circumstances in which
it shall be available and the effect in law if the
conditions are satisfied. [321E]
3. The mandatory character of the protection afforded to a
public servant is brought out by the expression, ’no court
shall take cognizance of such offence except with the
previous sanction’. Use of the words, ’no’ and ’shall make
it abundantly clear that the bar on the exercise of power of
the Court to take cognizance of any offence is absolute and
complete. Very cognizance is barred. That is the complaint
cannot be taken notice of. [321F-G]
3(i). In common parlance ’cognizance’ means taking notice
of. A Court, therefore, is precluded from entertaining a
complaint or taking notice of it or exercising jurisdiction
if it is in respect of a public servant who is accused of an
offence alleged to have been committed during discharge of
his official duty. [321H]
(ii)’Official’ means pertaining to an office. An official
act or official duty means an act or duty done by an officer
in his official capacity. ’Official duty’ implies that an
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’. [322G]
S.B. Saha v. M.S. Kochar, AIR 1979 SC 1841 and P. Arulswami
v. State of Madras, [1967] 1 SCR 201 =AIR 1967 SC 776,
referred to. [322B-G]
4. Section 197 has to be construed, strictly while
determining its applicability to any act or omission in
course of service. Its operation has to be limited to those
duties which are discharged in 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 restricted
manner. But once it is established that an act or omission
was done by the public
315
servant while discharging his duty then the scope of its
being official should be construed so as to advance the
objective of the section in favour of the public servant.
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Otherwise the entire purpose of affording protection to a
public servant without sanction shall stand frustrated.
[323F-G]
5. A police officer in discharge of duty may have to use
force which may be an offence for the prosecution of which
the sanction may be necessary. But if the same officer
commits an act in course of service but not in discharge of
his duty then the bar under Section 197 of the Code is not
attracted. [323H]
Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220,
referred to.
[324A]
6. If on facts, 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. [324D]
In the instant case, five charges were framed against the
respondent accused. First two related to Section 3(1) and
3(1)(c) of the O.S. Act. Third and fifth related to
Sections 6 (2) (a) and 5 of the O.S. Act and fourth related
to violation of Section 18(2) and 19 of A.E. Act. In the
very first charge after narrating the period when the
accused was employed and when he opted for voluntary
retirement it is stated that it was during the course of
this period that he was in communication with foreign
agents, within or without India and for purpose prejudicial
to the safety or interest of the State he obtained and
collected top secret and secret official documents. The
High Court and the Trial Judge, both, found that it was
clear that the documents which were seized from possession
of the accused and were subject matters of indictment were
obtained by him when he was in service prior to his
retirement in 1987. [324F-G]
7. In respect of charge 2, the High Court rightly found that
the use of words, ’during the said time and place’ related
back to what was stated in charge no. 1, namely, to the
period when the accused was in service. It was rightly
found that ambiguity. If any, in charges I to 4 stood
completely removed by charge no. 5 which left no doubt that
the intention and purpose of framing the charge against the
accused was to indict him for whatever he had done during
the period when he was employed in the Navy
316
as the alternative charge clearly stated that during his
deputation between 1976 and 1987 with BA.R.C. he had access
to secret documents which he communicated to the persons
other than those who were authorised to receive such
information, Charge no. 3 related, to retention of Identity
Card during service and charge no. 4 was in respect of
taking out information in form of books pertaining to atomic
energy the information of which had been obtained illegally,
obviously when the accused was in service. Therefore, the
act or omission which furnished foundation for indicating
the accused either under O.S. Act or A.E. Act were related
to the period when he Was in service. The narrow or the
stricter test to determine if the sanction for prosecuting
the accused was necessary was thus satisfied. [325B-E]
8. As is clear from the charge itself the accused was,
selected in course of his employment in the Navy to study
the feasibility of nuclear power, propelled submarine vessel
along with a team of officers and was attached with B.A.R.C.
as second officer in command. He joined the project in 1976
and was associated with the Centre for nearly 10 years. The
accused while working with B.A.R.C. not only obtained Ph.
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D. but was even awarded gold medal for his achievements in
computer technology and control engineering and a special
Herbert Lott Memorial Award for his inventions in improving
the existing, fighting devices of the Navy. The thesis
written by the accused on which he was awarded Ph. D. were
seized by the prosecution. The papers were written and the
books published when the accused was attached with B.A.R.C.
as a Second Officer-in-Command and, therefore, the material
or documents which were found by him cannot be said to have
been collected or procured by him by going out of way and
beyond the discharge of his duties as an officer in the
Naval Department. May be some of them were secret,
confidential or unclassified items. But the accused came
across them and obtained their copies in course of his duty
as an officer attached to B.A.R.C. Charge No. 2 is in
respect of classified information obtained by him when he
was in Naval Service. Taking out of information obtained in
course of employment was thus squarely covered by Section
197. Whether it was for communication or not is not
material. Retention of Identity Card issued during service
may be dereliction of duty but it was committed when the
accused was in service and it was issued to him while
discharging his duties as a Naval Officer.
[326F-H, 327A-F]
317
9. The High Court and the Trial Court appear to have,
rightly, inferred that whatever material came in possession
of the accused was as a result of discharge of his duty as a
Naval Officer. If this be so then even the second and the
most important requirement of acting in discharge of
official duty was satisfied. Therefore, without expressing
any opinion on merits we are of the opinion that it was
necessary for the prosecution to have obtained sanction for
prosecuting the accused. [327H, 328A]
10. The courts below did not commit any error of law in
coming to conclusion that the entire proceedings were
vitiated as no cognizance of the offences could have been
taken against the accused without complying with provisions
of Section 197 of the Code. [328D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 276 of
1993.
From the Judgment and Order dated 12.10.1991 of the Bombay
High Court in Crl. Revision Application No. 123 of 1991.
Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs.
Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar
for the Appellant.
Dr. B. Subba Rao Respondent-in-person.
V.M. Tarkunde, A.M. Khanwilkar and A.K. Panka for the Inter-
venor.
The Judgment of the Court was delivered by
R.M. SAHAI, J. The principal question of law, and, an
important one, that arises for consideration in Appeal No.
276 of 1993 [arising out of S.L.P.(Crl.) No. 986 of 1992]
which shall reflect on Appeal No. 277 of 1993 [arising out
of S.L.P. (Crl.) No. 987 of 1992], as well, filed by the
State of Maharashtra against the judgment and order of the
Bombay High Court, affirming the order of the Trial Judge
discharging the accused, is if the absence of sanction, by
the appropriate authority, under Section 197 Criminal
Procedure Code (in short ’the Code’) for prosecuting a
retired public servant, vitiates the proceedings.
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Although facts are brief and simple too, but the High Court,
unfortunately, instead of confining itself to the legality
of discharge, either for
318
lack of the sanction under Section 197 of the Code or for
the improper authorisation under the Official Secrets Act
1923 (in brief ’the O.S. Act’) and Atomic Energy Act 1962
(referred to as ’A.E.Act’) the two statutes for violation of
which the accused was charged, was led away to record
findings as if the accused was deliberately subjected to
undue harassment by the State aided by the alleged
unreasonable attitude of the Public Prosecutor. So much so
that the learned Judge allowed an application of the
accused, in the revision filed by the State against his
discharge, and set aside the order of Additional Sessions
Judge (in brief ’ASJ’) framing charges against him as it was
vitiated by fraud, merely because the State did not file any
counter-affidavit and insisted that the argument being same
as were advanced in the revision it was not necessary to
file any reply, even though the learned Judge was aware that
the accused had earlier approached the High Court against
the order rejecting his application that no charge was
liable to be framed against him without any success. Not
only that the learned Judge did not spare, even, this Co-
art, for cancelling bail of the accused at earlier stage.
Needless to say that the first was unnecessary’ the second
illegal and is subject matter of appeal No. 277 of 1993
[arising out of S.L.P. (Crl.) No. 987 of 1992] and the third
improper.
Since the accused was discharged by the Trial Judge, mainly,
due to technical defects and the decision was rendered as a
preliminary issue on direction of the High Court, suffice it
to say that the accused, an ex-Naval Captain who achieved
not able success in the field of computer science and
software during the period he was attached with Bhabha
Atomic Research Centre, (in short B.A.R.C.) had voluntarily
opted out of service in 1987, was arrested on 30th May,
1988, just, when he was about to board a plane for New York.
His residence was searched on the next day. From the
documents recovered, from search of the hand bag on 30th and
residence on 31st and his interrogation, it appeared that he
was guilty of violating provisions of O.S. Act and A.E. Act,
therefore, a complaint was filed, against him after obtain-
ing permission, under Section 3(i)(c), 3(1)(c) read with
Sections 9, 6(2)(a) and 6(2)(b) of the O. S. Act and
24(1)(d) read with Sections 18(2) and 24(2)(d) read with
Section 19(b) of the A.E. Act before the Metropolitan
Magistrate who being prima facie satisfied of the offences
and their gravity committed the accused to stand trial
before the Court of Sessions. Effort was made by the
accused to assail the framing of charge, as according to
him, on facts, no offence under either of the Statutes was
made out. And offence if any for which he could be charge-
sheeted could be under Section 5 only. The
319
Trial Judge turned down the plea by order dated 24/27th
February, 1989 and fixed date for framing the charge. A
revision, against this order, was dismissed by the High
Court, on 6th June, 1989. It was challenged by way of
Special Leave Petition in this Court. But it was permitted
to be withdrawn. The accused however invoked inherent
jurisdiction of the High Court seeking review of the order
dated 6th June, 1989. Although the application was
rejected, on 18th September 1989 but an observation was made
that there was no impediment in way of the Trial Judge in
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altering or modifying or reviewing any of the charges or
even framing new or additional charge. This provided an
occasion to the accused for starting proceedings, afresh,
for his discharge and claim in the alternative to frame
charge under Section 5 of O.S. Act instead of under Section
3. The application was allowed by the Trial Judge on 15th
January 1990, and the charges under A.E. Act were dropped.
The charge under the O.S. Act was altered to one under
Section 5 of the Act. The order was set aside on 3rd/4th
April, 1990 by a learned Single Judge and the Trial Judge
was directed to frame charges both under Sections 3 and 5 of
the O.S. Act. Against this order the accused approached the
Division Bench, by what is described as, speaking to the
Minutes for clarification of the order passed by the High
Court on 3rd/4th April, 1990 as the learned Single Judge who
passed the order on 3rd/4th April, 1990 did not appreciate
the observations made by the Division Bench, but it was
rejected on 24th July 1990 as there was no system of
speaking to the Minutes by doing which the order could be
reviewed in criminal proceedings. The Bench however
observed that remedy of the accused was to approach the
court in proper forum. Therefore when the matter was taken
up for framing the charge the accused, once again, claimed
that he was entitled to be heard at stage of Section 227 of
the Code and he was entitled to be discharged. The Trial
Judge by order dated 6th. August 1990 rejected the
application, restored the earlier charges and framed a
charge under Section 5 as well. Validity of the charges,
thus, framed was challenged by way of Writ Petition
(Criminal) under Articles 226 and 227 of the Constitution
and it was claimed that entire proceedings being violative
of Article 21 of the Constitution were liable to be quashed.
The High Court did not find any substance in it but it
directed the ASJ by its order 24th March, 1991 to decide if
sanction under Section 197 of the Code was required and also
to determine if authorisation under Section of O.S. Act and
A.E. Act was in accordance with law.
In pursuance of this direction the ASJ examined the material
on record and observed that authorisation, was not proper
but refrained from
320
expressing any opinion in view of the direction of the High
Court to decide the requirement of sanction under Section
197 of the Code, first, and the effect, in law, of its
absence. The ASJ held that the documents seized from
possession of the accused indicated that they were
inseparably interwined with performance of his official
duties whilst in Navy, therefore, the prosecution could not
have been initiated without sanction. In revision filed by
the State the High Court, decided both the questions in
favour of the accused. It was held that the authorisation
for institution of prosecution, for offences allegedly
committed under either Statute, was invalid as even though
authorisation was issued, in favour of the Prosecuting
Inspector who was the Investigating Officer, but. it having
been issued by an authority other than the Central
Government it was not in accordance with law. On the
question of sanction under Section 197 of the Code the High
Court agreed with the ASJ that the charges itself indicated
that the offences were committed during the period the
accused was a serving officer, therefore, in absence of the
sanction no cognizance of any of the offences could have
been taken.
discharging the accused it may not be out of place to
examine the nature of power exercised by the Court under
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Section 197 of the Code and the extent of protection it
affords to public servant, who apart, from various hazards
in discharge of their duties, in absence of a provision like
the one may be exposed to vexatious prosecutions. Section
197(1) and (2) of the Code reads as under :
"197 (1) When any person who is or was a Judge
or 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-
(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
321
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.
(2) No Court shall take cognizance of any
offence alleged to have been committed by any
member of the Armed Forces of the Union while
acting or purporting to act in the discharge
of his official duty, except with the previous
sanction of the Central Government."
The section falls in the Chapter dealing with conditions
requisite for initiation of proceedings. That is if the
conditions mentioned are not made out or are absent then no
prosecution can be set in motion. For instance no
prosecution can be initiated in a court of Sessions under
Section 193, as it cannot take cognizance, as a court of
original jurisdiction, of any offence unless the case has
been committed to it by a Magistrate or the code expressly
provides for it. And the jurisdiction of a Magistrate to
take cognizance of any offence is provided by Section 190 of
the Code, either on receipt of a complaint, or upon a police
report or upon information received from any person other
than police officer, or upon his knowledge that such offence
has been committed. So far public servants are concerned
the cognizance of any offence, by any court, is barred by
Section 197 of the Code unless sanction is obtained from the
appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The
Section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions
and circumstances in which it shall be available and the
effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a public
servant is brought out by the expression, ’no court shall
take cognizance of such offence except with the previous
sanction’. Use of the words, ’no’ and ’shall’ make it
abundantly clear that the bar on the exercise of power of
the Court to take cognizance of any offence is absolute and
complete. Very cognizance is barred. That is the complaint
cannot be taken notice of. According to Black’s Law
Dictionary the word ’cognizance’ means ’jurisdiction’ or
’the exercise of jurisdiction’ or ’power to try and
determine causes’. In common parlance it means taking
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notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or
exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have
committed during discharge of his official duty.
322
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 dictionary means pertaining to an
office. And official act or official duty means an act or
duty done by an officer in his official capacity. In S.B.
Salta v. M.S. Kochar, AIR 1979 SC 1841, it was held.
"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 inter-
pretation. 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."
Use of the expression, ’official duty’ implies that 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 = AIR 1967 SC 776 this Court after reviewing the
authorities right from the days of Federal Court and Privy
Council held,
"It is not therefore every offence committed by a public
323
servant that requires sanction for prosecution under Section
197(1) of the Criminal Procedure Code; nor even every act
done by him while he is actually engaged in the performance
of his official duties; but if the act complained of is
directly concerned with his official duties so that, if
questioned, it could be claimed to have been done by virtue
of the office, then sanction would be necessary. It is the
quality of the act that is important and if it falls within
the scope and range of his official duties the protection
contemplated by s.197 of the Criminal Procedure Code will be
attracted. An offence may be entirelY unconnected with the
official duty as such or it may be committed within the
scope of the official duty. Where it is unconnected with
the official duty there can be no protection. It is only
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when it is either within the scope of the official duty or
in excess of it that the protection is claimable."
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 he 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
restricted manner. But once it is established that act or
omission was done by the public servant while discharging
his duty then the scope of its being official should be
construed so as to advance the objective of the section in
favour of the public servant. Otherwise the entire purpose
of affording protection to a public servant without sanction
shall stand frustrated. For instance a police officer in
discharge of duty may have to use force which may be an
offence for the prosecution of which the sanction may be
necessary. But if the same officer commits an act in course
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of service but not in discharge of his duty then the bar
under section 197 of the Code is not attracted. To what
extent an act or omission performed by a public servant in
discharge of his duty can be deemed to be official was
explained by this court in Baijnath v. State of Madhya
Pradesh, AIR 1966 SC 220 thus,
"the offence alleged to have been committed by
the accused must have something to do, or must
be related in some manner with the discharge
of official duty....... there 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 i
n
the course of the performance of his duty."
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.
On the law, thus, settled two questions arise for
consideration one if the offence for which the accused was
charged and of which cognizance was taken was committed by
him during the period he was in Naval service and if it be
so then whether the violations were in discharge of official
duty or they were beyond it. For this purpose it may be
mentioned that five charges were framed against the accused.
First two related to Section 3(i) and 3(1)(c) of the O.S.
Act. Third and fifth related to Sections 6(2)(a) and 5 of
the O.S. Act and fourth related to violation of Sections
18(2) and 19 of A.E. Act. In the very first charge after
narrating the period when the accused was employed and when
he opted for voluntary retirement it is stated that it was
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during the course of this period that he was in com-
munication with foreign agents, within or without India and
for purpose prejudicial to the safety or interest of the
State he obtained and collected top secret and secret
official documents. The High Court and the Trial Judge,
both, found that it was clear that the documents which were
seized from possession of the accused and were subject
matters of indictment were obtained by him when he was in
service prior to-his retirement in 1987. Even the reference
to the documents in the charge because of which the
Government was of opinion that the accused had violated
provisions
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of O.S. Act are mentioned to have been procured by the
accused during course of his employment. In view of these
averments, in the charge itself, it is very difficult to say
that the offence for which the accused had been charge-
sheeted were not committed when he was in service. In
respect of charge 2, the High Court found and in our opinion
rightly that the use of words, ’during the said time and
place’ related back to what was stated in charge no. 1,
namely, to the period when the accused was in service. The
High Court further found and again in our opinion rightly,
that ambiguity, if any, in charges 1 to 4 stood completely
removed by charge no. 5 which left no doubt that the
intention and purpose of framing the charge against the
accused was to indict him for whatever he had done during
the period when he was employed in the Navy as the
alternative charge clearly states that during his deputation
between 1976 and 1987 with B.A.R.C. he had access to secret
documents which he communicated to the persons other than
those who were authorised to receive such information.
Charge no. 3 related to retention of Identity Card during
service and charge no. 4 is in respect of taking out
information in form of books pertaining to atomic energy the
information of which had been obtained illegally, obviously,
when the accused was in service. Therefore, the act or
omission which furnished foundation for indicting the
accused either under O.S. Act or A.E. Act were related to
the period when he was in service. The narrow or the
stricter test to determine if the sanction for prosecuting
the accused was necessary was thus satisfied.
What remains to be examined is if the documents which were
found in possession of the accused and were collected or
obtained by him when he was in service were procured by him
in discharge of duty. But before undertaking this exercise
it may be stated that Section 197 of the Code as it stands
after 1973, extends the protection even to a retired public
servant as is clear from use of the words, ’is or was’
provided the accusation is in respect of an act or omission
done or purported to have been done when such public servant
was in office. By legislative fiction the officer is deemed
to be a public servant under Section 197 of the Code
irrespective of his retirement if the accusations against
him are for act or omission done by him when he was in
service. The purpose is to avoid exposing a public servant
to vexatious or frivolous prosecutions merely because he has
demited his office. The submission of the learned
Additional Solicitor General that if a public servant ceases
to hold the office by the time the Court is called upon to
take cognizance cannot claim any protection, being
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in teeth of the section, does not need any further
elucidation.
Reverting to the main issue the two courts below have found
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it as a fact that the acts or omissions for which the
accused has been charged were committed by him in discharge
of his official duty. To steer clear of the effect of such
finding the learned Additional Solicitor General urged that
in view of the charges framed under O.S. Act the accused
could not claim any protection under Section 197 of the Code
as espionage can by no stretch be taken to be official duty.
The learned counsel submitted that the documents which were
recovered from possession of the accused were such as could
not have been in his possession when he had already retired
and the proper custodian of those documents being the
Central Government, no sanction was required for prosecuting
the accused for possessing such documents. As a matter of
law no exception can be taken to the submission that no
public servant can indulge in espionage. But mere
allegation of spying cannot deprive a public servant of the
legal protection provided for in Section 197 of the Code.
Section 3 of the O.S. Act, no doubt, provides penalty if any
person acts in any manner prejudicial to the safety or
interest of the State. This appeal is not concerned if the
accused acted in such manner which can give rise to an
inference in law that he was guilty of spying or acted in
any manner to affect sovereignty and integrity of the
country. The limited question is if the documents which
were seized from the accused either at the airport or from
his residence are such that they could have been obtained or
procured by him while acting as Naval Officer in discharge
of his duty. As is clear from the charge itself the accused
was, selected in course of his employment in the Navy to
study the feasibility of nuclear power, propelled submarine
vessel along with a team of officers and was attached with
B.A.R.C. as second officer in command. He joined the
project in 1976 and was associated with the Centre for
nearly 10 years. The accused while working with B.A.R.C.
not only obtained Ph. D. but was even awarded gold medal
for his achievements in computer technology and control
engineering and a special Herbert Lott Memorial Award for
his inventions in improving the existing, fighting devices
of the Navy. It is not the case of prosecution that the
documents which were seized either from the airport or the
residence of the accused could not have been dealt by him
when he was in service. Amongst various documents which
were seized were the Identity Card of the Indian Armed
Forces bearing his photograph and name, the eight files
containing different types of maps of India, diagrams and
computer information, a book by name ’Nuclear Power Plan’
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Modelling and Design, one brown envelope containing.
lamination papers with diagrams, one book MWT Nuclear
Submarine Propulsion Plant Design and one book Multi Point
Satellite Links in Navnet System were also recovered from
him. The documents which were found at his residence on.
31st May were computer communication on HF Links in Navnet
and Advanced Technology Adaptation Centre, C-3 I System
Development for Armed Forces Advanced Technology Adaptation
for Defence, Multi Point Satellite Links in Navnet System,
Government of India publications project report of Nuclear
propulsion for Marine Application, one book about Sea on
Control Radar and Display System for Land Design. Certain
plan design of B.A.R.C. were also recovered from his
possession. Most of the documents which can be said to be
sensitive which were recovered from the accused were
admittedly either the book written by him or the paper read
by him as is clear from the Punchanama and the Statement of
Witnesses who were produced on behalf of the prosecution to
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prove the same. Even the thesis written by the accused on
which he was awarded Ph. D. by the Bhabha Institute of
Technology was seized by the prosecution. The purpose of
stating all this is to demonstrate that these papers were
written and the books published when the accused was
attached with B.A.R.C. as a Second Officer-in-Command and,
therefore, the material or documents which were found by him
cannot be said to have been collected or procured by him by
going out of way and beyond the discharge of his duties as
an officer in the Naval Department. May be some of them
were secret, confidential or unclassified items. But the
accused came across them and obtained their copies in course
of his duty as an officer attached to B.A.R.C. Charge No. 2
is in respect of classified information obtained by him when
he was in Naval service. Taking out of information obtained
in course of employment was thus squarely covered by Section
197. Whether it was for communication or not is not
material. Retention of Identity Card issued during service
may be dereliction, of duty but it was committed when the
accused was in service and it was issued to him while
discharging his duties as a Naval officer. The Trial Court
found that even though the Punchnama shows that two Identity
Cards were recovered from the possession of the accused, but
from their perusal it appeared that the Identity Card was
issued to the accused as a retired officer and consequently
the claim of the prosecution that the accused acted in
violation of the provisions of the Act was not justified.
But assuming there was violation since it was done when the
accused was in service he was entitled to protection under
Section 197 of the Code. The High Court and the Trial
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Court appear to have, rightly, inferred that whatever
material came in possession of the accused was as a result
of discharge of his duty as a Naval Officer. If this be so
then even the second and the most important requirement of
acting in discharge of official duty was satisfied.
Therefore, without expressing any opinion on merits we are
of the opinion that it was necessary for the prosecution to
have obtained sanction for prosecuting the accused.
Similarly so far charge no. 4 is concerned we do not propose
to examine if it was properly framed against the accused and
if there was any material in support of it. But the alleged
information which the accused was taking with him to United
States having been obtained by him in course of employment
and in discharge of his duty the High Court did not commit
any error of law in recording the finding that no
prosecution could be initiated unless sanction under Section
197 was obtained. Same applies to charge no. 5. Therefore,
we are of opinion that the courts below did not commit any
error of law in coming to conclusion that the entire
proceedings were vitiated as no cognizance of the offences
could have been taken against the accused without complying
with provisions of Section 197 of the Code.
Since the appeal fails for non-compliance of Section 197 and
the order discharging the accused has to be upheld we do not
propose to examine the finding if authorisation under O.S.
Act and A.E. Act to prosecute the accused was valid or not.
In the result this appeal fails and is dismissed. Since the
respondent was discharged for failure of mandatory
requirement yet the State went on filing revision before the
High Court and appeal before this Court and keeping in mind
the mental sufferings and financial loss caused to the
respondent we are of opinion that the respondent is entitled
to costs which we assess in peculiar facts and circumstances
of this case at Rs. 25,000.
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N.V.K.
Appeal dismissed.
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