General Officer
Commanding Vs. CBI & ANR.
Criminal Appeal No.
257 of 2011
Additional Director
General Vs. Central Bureau Investigation
With Criminal Appeal
No.55 of 2006
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1.
Criminal
Appeal No. 257 of 2011 has been preferred against the impugned judgment and
order dated 10.7.2007 passed by the High Court of Jammu and Kashmir in Petition
Nos. 78 and 80 of 2006 under Section 561- A of the Code of Criminal Procedure, (J&K)
(hereinafter called as `Code’) by which the High Court upheld the order dated 30.11.2006
passed by the Additional Sessions Judge, Srinagar in File No. 16/Revision of
2006, and by the Chief Judicial Magistrate, Srinagar dated 24.8.2006, rejecting
the appellant’s application for not entertaining the charge sheet filed by the Central
Bureau of Investigation (hereinafter called ‘CBI’).
2.
Brief
facts relevant to the disposal of this appeal are as under:
A. In Village Chittising
Pora, District Anantnag, J&K, 36 Sikhs were killed by terrorists on
20.3.2000. Immediately thereafter, search for the terrorists started in the
entire area and 5 persons, purported to be terrorists, were killed at village Pathribal
Punchalthan, District Anantnag, J & K by 7 Rashtriya Rifles (hereinafter called
as `RR’) Personnel on 25.3.2000 in an encounter.
B. In respect of killing
of 5 persons by 7 RR on 25.3.2000 at Pathribal claiming them to be responsible for
Sikhs massacre at Chittising Pora, a complaint bearing No. 241/GS(Ops.) dated 25.3.2000
was sent to Police Station Achchabal, District Anantnag, J&K by Major Amit
Saxena, the then Adjutant, 7 RR, for lodging FIR stating that during a special cordon
and search operation in the forests of Panchalthan from 0515 hr. to 1500 hrs.
on 25.3.2000, an encounter took place between terrorists and troops of that
unit and in that operation, 5 unidentified terrorists were killed in the said operation.
On the receipt of the complaint, FIR No. 15/2000 under Section 307 of Ranbir Penal
Code (hereinafter called ‘RPC’) and Sections 7/25 Arms Act, 1959 was registered
against unknown persons. A seizure memo was prepared by Major Amit Saxena
(Adjutant) on 25.3.2000 showing seizure of arms and ammunition from all the 5 unidentified
terrorists killed in the aforesaid operation which included AK-47 rifles (5), AK-47
Magazine rifles (12), radio sets (2), AK-48 ammunition (44 rounds), hand grenades
(2) detonators (4) and detonator time devices (2). The said seizure memo was
signed by the witnesses Farooq Ahmad Gujjar and Mohd. Ayub Gujjar, residents of
Wuzukhan, Panchalthan, J & K.
C. The 7 RR deposited
the said recovered weapons and ammunition with 2 Field Ordnance Depot. However,
the local police insisted that the Army failed to hand over the arms and ammunition
allegedly recovered from the terrorists killed in the encounter, which tant amounts
to causing of disappearance of the evidence, constituting an offence under
Section 201 RPC. In this regard, there had been correspondence and a Special
Situation Report dated 25.3.2000 was sent by Major Amit Saxena, the then
Adjutant, to Head Quarter–I, Sector RR stating that, based on police inputs, a
joint operation with STF was launched in the forest of Pathribal valley on 25.3.2000,
as a consequence, the said incident occurred. However, it was added that ammunition
allegedly recovered from the killed militants had been taken away by the STF.
D. There had been long
processions in the valley in protest of killing of these 5 persons on 25.3.2000
by 7 RR alleging that they were civilians and had been killed by the Army personnel
in a fake encounter. The local population treated it to be a barbaric act of violence
and there had been a demand of independent inquiry into the whole incident. Thus,
in view thereof, on the request of Government of J & K, a Notification
dated 19.12.2000 under Section 6 of Delhi Police Special Establishment Act,
1946 (hereinafter called as `Act 1946’) was issued. In pursuance thereof, Ministry
of Personnel, Government of India, also issued Notification dated 22.1.2003
under Section 5 of the Act 1946 asking the CBI to investigate four cases including
the alleged encounter at Pathribal resulting in the death of 5 persons on 25.3.2000.
E. The CBI conducted the
investigation in Pathribal incident and filed a charge sheet in the court of Chief
Judicial Magistrate-cum- Special Magistrate, CBI, (hereinafter called the
‘CJM’) Srinagar, on 9.5.2006, alleging that it was a fake encounter, an outcome
of criminal conspiracy hatched by Col. Ajay Saxena (A-1), Major Brajendra Pratap
Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and some
members of the troops of 7 RR were responsible for killing of innocent persons.
Major Amit Saxena (A-5) (Adjutant) prepared a false seizure memo showing
recovery of arms and ammunition in the said incident, and also gave a false
complaint to the police station for registration of the case against the said
five civilians showing some of them as foreign militants and false information to
the senior officers to create an impression that the encounter was genuine and,
therefore, caused disappearance of the evidence of commission of the aforesaid
offence under Section 120-B read with Sections 342, 304, 302, 201 RPC and
substantive offences thereof. Major Amit Saxena (A-5) (Adjutant) was further
alleged to have committed offence punishable under Section 120-B read with
Section 201 RPC and substantive offence under Section 201 RPC with regard to
the aforesaid offences.
F. The learned CJM on
consideration of the matter, found that veracity of the allegations made in the
charge sheet and the analysis of the evidence cannot be gone into as it would
tantamount to assuming jurisdiction not vested in him. It was so in view of the
provisions of Armed Forces J & K (Special Powers) Act, 1990 (hereinafter
called ‘Act 1990’), which offer protection to persons acting under the said
Act.
G. The CJM, Srinagar,
granted opportunity to Army to exercise the option as to whether the competent
military authority would prefer to try the case by way of court-martial by
taking over the case under the provisions of Section 125 of the Army Act, 1950
(hereinafter called the `Army Act’). On 24.5.2006, the Army officers filed an application
before the court pointing out that no prosecution could be instituted except
with the previous sanction of the Central Government in view of the provisions
of Section 7 of the Act 1990 and, therefore, the proceedings be closed by
returning the charge sheet to the CBI.
H. The CJM vide order
dated 24.8.2006 dismissed the application holding that the said court had no jurisdiction
to go into the documents filed by the investigating agency and it was for the trial
court to find out whether the action complained of falls within the ambit of
the discharge of official duty or not. The CJM himself could not analyse the evidence
and other material produced with the charge sheet for considering the fact, as
to whether the officials had committed the act in good faith in discharge of their
official duty; otherwise the act of such officials was illegal or unlawful in
view of the nature of the offence.
I. Aggrieved by the order
of CJM dated 24.8.2006, the appellant filed revision petition before the
Sessions Court, Srinagar and the same stood dismissed vide order dated
30.11.2006. However, the revisional court directed the CJM to give one more
opportunity to the Army officials for exercise of option under Section 125 of the
Army Act.
J. The appellant
approached the High Court under Section 561-A of the Code. The Court vide
impugned order dated 10.7.2007 affirmed the orders of the courts below and held
that the very objective of sanctions is to enable the Army officers to perform their
duties fearlessly by protecting them from vexatious, malafide and false prosecution
for the act done in performance of their duties. However, it has to be examined
as to whether their action falls under the Act 1990. The CJM does not have the
power to examine such an issue at the time of committal of proceedings. At this
stage, the Committal Court has to examine only as to whether any case is made
out and, if so, the offence is triable by whom. Hence, this appeal.
3.
Criminal
Appeal No. 55 of 2006 has been preferred against the impugned judgment and
order dated 28.3.2005 passed by the High Court of Guwahati in Criminal Revision
No.117 of 2004 by which it has upheld the order of the Special Judicial Magistrate,
Kamrup dated 10.11.2003 rejecting the application of the appellant seeking protection
of the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958 (hereinafter
called the `Act 1958’) in respect of the armed forces personnel.
4.
Facts
and circumstances giving rise to this appeal are as under:
A. In order to curb the insurgency
in the North-East, the Parliament enacted the Act 1958 authorising the Central Government
as well as the Governor of the State to declare, by way of Notification in the
official Gazette, the whole or part of the State as disturbed area. Section 4
of the Act 1958 conferred certain powers on the Army personnel acting under the
Act which include power to arrest without warrant on reasonable suspicion,
destroy any arms, ammunitions dumped and hide out, and also to open fire or
otherwise use powers even to the extent of causing death against any person
acting in contravention of law and order and further to carry out search and
seizure. The entire State of Assam was declared disturbed area under the Act 1958
vide Notification dated 27.11.1990 and Army was requisitioned and deployed in
various parts of the State to fight insurgency and to restore law and order.
B. On 22.2.1994, the 18th
Battalion of Punjab Regiment was deployed in Tinsukhia District of Assam to carry
out the counter insurgency operation in the area of Saikhowa Reserve Forest. The
said Army personnel faced the insurgents who opened fire from an ambush. The
armed battalion returned fire and in the process, some militants died. The
Battalion continued search at the place of encounter and consequently, 5 bodies
of the militants along with certain arms and ammunitions were recovered. In
respect of the said incident, an FIR was lodged at P.S. Doom Dooma. Local
Police also visited the place on 23.2.1994 and 1.3.1994 and investigated the case.
The incident was investigated by the Army under the Army Court of enquiry as provided
under the Army Act. Two Magisterial enquiries were held as per the directions
issued by the State Government and as per the appellant, the version of the
Army personnel was found to be true and a finding was recorded that ‘the
counter insurgency operation was done in exercise of the official duty’.
C. Two writ petitions
were filed before the High Court by the non- parties alleging that the Army
officials apprehended 9 individuals and killed 5 of them in a fake encounter. The
High Court directed the CBI to investigate the matter.
D. The CBI completed the
investigation and filed charge sheet against 7 Army personnel in the Court of
Special Judicial Magistrate, Kamrup under Section 302/201 read with Section 109
of the Indian Penal Code, 1860 (hereinafter called `IPC’). The Special Judicial
Magistrate issued notice dated 30.5.2002 to the appellant i.e. Army Headquarter
to collect the said charge sheet. The appellant requested the said Court not to
proceed with the matter as the action had been carried out by the Army
personnel in performance of their official duty and thus, they were protected
under the Act 1958 and in order to proceed further in the matter, sanction of
the Central Government was necessary. The learned Special Judicial Magistrate
rejected the case of the appellant vide order dated 10.11.2003. Being
aggrieved, the appellant preferred the revision petition which has been
rejected vide impugned order dated 28.3.2005 by the High Court. Hence, this
appeal.
5.
As
the facts and legal issues involved in both the appeals are similar, we decide
both the appeals by a common judgment taking the Criminal Appeal No. 257 of
2011 as a leading case.
6.
Shri
Mohan Parasaran and Shri P.P. Malhotra, learned Addl. Solicitor Generals
appearing on behalf of the Union of India and Army personnel, have contended
that mandate of Section 7 of the Act 1990 is clear and it clearly provides that
no prosecution shall be instituted and, therefore, cannot be instituted without
prior sanction of the Central Government. It is contended that the prosecution would
be deemed to have instituted/initiated at the moment the charge sheet is filed
and received by the court. Such an acceptance/receipt is without jurisdiction.
The previous sanction of the competent authority is a pre- condition for the
court in taking the charge sheet on record if the offence alleged to have been
committed in discharge of official duty and such issue touches the jurisdiction
of the court.
7.
On
the other hand, Shri H.P. Raval, learned ASG, Shri Ashok Bhan, learned senior
counsel appearing on behalf of the CBI, and Mr. M.S. Ganesh appearing for the interveners
(though application for intervention not allowed) have vehemently opposed the appeals
contending that the institution of a criminal case means taking cognizance of
the case, mere presentation/filing of the charge sheet in the court does not
amount to institution. The court of CJM has not taken cognizance of the
offence, therefore, the appeals are premature. Even otherwise, killing innocent
persons in a fake encounter in execution of a conspiracy cannot be a part of
official duty and thus, in view of the facts of the case no sanction is
required. The appeals are liable to be dismissed.
8.
We
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
9.
The
matter is required to be examined taking into consideration the statutory
provisions of the Act 1990 and also considering the object of the said Act. It
is to be examined as to whether the court, after the charge sheet is filed, can
entertain the same and proceed to frame charges without previous sanction of
the Central Government. The Act 1990 confers certain special powers upon members
of the Armed Forces in the disturbed area in the State of J & K. The
disturbed area is defined and there is no dispute that the place where the incident
occurred stood notified under the Act 1990.
Section 4 of the Act 1990
confers special powers on the officer of armed forces to take measures, where
he considers it necessary to do so, for the maintenance of public order.
However, he must give due warning according to the circumstances and even fire
upon or use force that may also result in causing death against any person acting
in contravention of law and order in the disturbed area and prohibit the
assembly of five or more persons or carrying of weapons etc.
Such an officer has
further been empowered to destroy any arms dump, arrest any person without warrant
who has committed a cognizable offence and enter and search without warrant any
premises to make any arrest. Section 6 of the Act 1990 requires that such
arrested person and seized property be handed over to the local police by such
an officer.
10.
Section
7 of the Act 1990 provides for umbrella protection to the Army personnel in
respect of anything done or purported to be done in exercise of powers conferred
by the Act. The whole issue is regarding the interpretation of Section 7 of the
Act 1990, as to whether the term ‘institution’ used therein means filing/presenting/submitting
the charge sheet in the court or taking cognizance and whether the court can
proceed with the trial without previous sanction of the Central Government.
11.
The
analogous provision to Section 7 of the Act 1990 exists in Sections 45(1) and
197(2) of the Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’).
The provisions of Section 7 of the Act 1990 are mandatory and if not complied
with in letter and spirit before institution of any suit, prosecution or legal
proceedings against any persons in respect of anything done or purported to be
done in exercise of the powers conferred by the Act 1990, the same could be rendered
invalid and illegal as the provisions require the previous sanction of the
Central Government before institution of the prosecution.
According to the
appellants, institution of prosecution is a stage prior to taking cognizance
and, therefore, the word ‘institution’ is different from the words taking ‘cognizance’.
The scheme of the Act requires that any legal proceeding instituted against any
Army official working under the Act 1990 has to be subjected to stringent test before
any such proceeding can be instituted. Special powers have been conferred upon
Army officials to meet the dangerous conditions i.e. use of the armed forces in
aid of civil force to prevent activities involving terrorist acts directed towards
overawing the government or striking terror in people or alienating any section
of the people or adversely affecting the harmony amongst different sections of
the people. Therefore, Section 7 is required to be interpreted keeping the
aforesaid objectives in mind.
12.
The
‘prosecution’ means a criminal action before the court of law for the purpose
of determining ‘guilt’ or ‘innocence’ of a person charged with a crime. Civil
suit refers to a civil action instituted before a court of law for realisation
of a right vested in a party by law. The phrase ‘legal proceeding’ connotes a term
which means the proceedings in a court of justice to get a remedy which the law
permits to the person aggrieved. It includes any formal steps or measures employed
therein.
It is not synonymous
with the ‘judicial proceedings’. Every judicial proceeding is a legal
proceeding but not vice-versa, for the reason that there may be a ‘legal proceeding’
which may not be judicial at all, e.g. statutory remedies like assessment under
Income Tax Act, Sales Tax Act, arbitration proceedings etc. So, the ambit of expression
‘legal proceedings’ is much wider than ‘judicial proceedings’. The expression
‘legal proceeding’ is to be construed in its ordinary meaning but it is quite distinguishable
from the departmental and administrative proceedings, e.g. proceedings for registration
of trade marks etc. The terms used in Section 7 i.e. suit, prosecution and
legal proceedings are not inter-changeable or convey the same meaning.
The phrase `legal proceedings’
is to be understood in the context of the statutory provision applicable in a particular
case, and considering the preceding words used therein. In Assistant Collector of
Central Excise, Guntur v. Ramdev Tobacco Company, AIR 1991 SC 506, this Court explained
the meaning of the phrase “other legal proceedings” contained in Section 40(2) of
the Central Excises and Salt Act, 1944, wherein these words have been used after
suit and prosecution. The Court held that these words must be read as ejusdem generis
with the preceding words i.e. suit and prosecution, as they constitute a genus.
Therefore, issuance of
a notice calling upon the dealer to show cause why duty should not be demanded
under the Rules and why penalty should not be imposed for infraction of the statutory
rules and enjoin of consequential adjudication proceedings by the appellate authority
would not fall within the expression “other legal proceedings” as in the context
of the said statute. ‘Legal proceedings’ do not include the administrative proceedings.
In Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of
Maharashtra Ltd. & Anr., (1993) 2 SCC 144, this Court dealt with the
expressions ‘proceedings’ and ‘legal proceedings’ and placed reliance upon the dictionary
meaning of expression ‘legal proceedings’ as found in Black Law Dictionary
(Fourth Edition) which read as under:
“Any proceedings in
court of justice ... by which property of debtor is seized and diverted from his
general creditors .... This term includes all proceedings authorised or sanctioned
by law, and brought or instituted in a court of justice or legal tribunal, for
the acquiring of a right or the enforcement of a remedy.” The Court came to the
conclusion that proceedings before statutory authorities under the provisions
of the Act do not amount to legal proceedings. ‘Legal proceedings’ means
proceedings regulated or prescribed by law in which a judicial decision may be
given; it means proceedings in a court of justice by which a party pursues a remedy
which a law provides, but does not include administrative and departmental proceedings.
(See also: S. V. Kondaskar, Official Liquidator v. V.M. Deshpande, I.T.O. &
Anr., AIR 1972 SC 878; Babulal v. M/s. Hajari Lal Kishori Lal & Ors., AIR
1982 SC 818; and Binod Mills Co. Ltd., Ujjain v. Shri. Suresh Chandra Mahaveer
Prasad Mantri, Bombay, AIR 1987 SC 1739).
The provision of Section
7 of the Act 1990 prohibits institution of legal proceedings against any Army personnel
without prior sanction of the Central Government. Therefore, charge sheet
cannot be instituted without prior sanction of the Central Government. The use
of the words ‘anything done’ or ‘purported to be done’ in exercise of powers
conferred by the Act 1990 is very wide in its scope and ambit and it consists
of twin test. Firstly, the act or omission complained of must have been done in
the course of exercising powers conferred under the Act, i.e., while carrying
out the duty in the course of his service and secondly, once it is found to have
been performed in discharge of his official duty, then the protection given
under Section 7 must be construed liberally. Therefore, the provision contained
under Section 7 of the Act 1990 touches the very issue of jurisdiction of launching
the prosecution. (i) INSTITUTION OF A CASE:
13.
The
meaning of the aforesaid term has to be ascertained taking into consideration
the scheme of the Act/Statute applicable. The expression may mean
filing/presentation or received or entertained by the court. The question does
arise as to whether it simply means mere presentation/filing or something
further where the application of the mind of the court is to be applied for
passing an order.
14.
In
M/s. Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial) I,
Sales Tax, Kanpur Range, Kanpur & Anr., AIR 1968 SC 488, this Court dealt
with the provisions of U.P. Sales Tax Act, 1948 and rules made under it and
while interpreting the proviso to Section 9 thereof, which provided the mode of
filing the appeal and further provided that appeal could be “entertained” on depositing
a part of the assessed/admitted amount of tax. The question arose as what was
the meaning of the word ‘entertain’ in the said context, as to whether it meant
that no appeal would be received or filed or it meant that no appeal would be admitted
or heard and disposed of unless satisfactory proof of deposit was available.
This Court held that dictionary
meaning of the word ‘entertain’ was either ‘to deal with’ or ‘admit to
consideration’. However, the court had to consider whether filing or receiving
the memorandum of appeal was not permitted without depositing the required
amount of tax or it could not be heard and decided on merits without depositing
the same. The court took into consideration the words ‘filed or received’ in
Section 6 of the Court Fees Act and held that in the context of the said Act it
would mean ‘admit for consideration’. Mere filing or presentation or receiving
the memorandum of appeal was inconsequential. The provisions provided that the
appeal filed would not be admitted for consideration unless the required tax
was deposited.
15.
In
Lala Ram v. Hari Ram, AIR 1970 SC 1093, this Court considered the word
‘entertain’ contained in the provisions of Section 417(4) of the Code of
Criminal Procedure, 1898 (analogous to Section 378 Cr.P.C.) providing for the
period of limitation of 60 days for filing the application for leave to appeal against
the order of acquittal. Thus, the question arose as to whether 60 days are required
for filing/presenting the application for leave to appeal or the application
should be heard by the court within that period. This Court held that in that context,
the word ‘entertain’ meant ‘filed or received by the court’ and it had no
reference to the actual hearing of the application for leave to appeal. So, in that
context ‘entertain’ was explained to receive or file the application for leave
to appeal.
16.
In
Hindustan Commercial Bank Ltd. v. Punnu Sahu (dead) through LRs., AIR 1970 SC
1384, this Court dealt with the expression ‘entertain’ contained in the proviso
to Order XXI Rule 90 Code of Civil Procedure, 1908 as amended by the High Court
of Allahabad and rejected the contention that it meant initiation of the
proceeding and not to the stage when the court takes up the application for consideration,
observing that ‘entertain’ means to “adjudicate upon” or “proceed to consider
on merits”.
17.
In
Martin and Harris Ltd. v. VIth Additional District Judge & Ors., AIR 1998
SC 492, while dealing with the provisions of Section 21(1) of the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the word “entertain”
was interpreted as considering the grounds for the purpose of adjudication on
merits i.e. thereby taking cognizance of an application by the statutory
authority. The Court rejected the contention that the term ‘entertain’ contained
in the said statutory provision was synonymous with the word ‘institute’.
18.
In
Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964 SC 1541, this Court dealt with
the expression ‘institution of a case’ and held that a case can be said to be
instituted in a court only when the court takes cognizance of the offence alleged
therein. Section 190(1) Cr.P.C. contains the provision for taking cognizance of
offence (s) by Magistrate. Section 193 Cr.P.C. provides for cognizance of
offence (s) being taken by courts of Sessions on commitment to it by a Magistrate
duly empowered in that behalf. This view has been reiterated, approved and followed
by this Court in Satyavir Singh Rathi, ACP & Ors. v. State through CBI, (2011)
6 SCC 1.
19.
A
similar view has been reiterated by this Court in Kamalapati Trivedi v. The
State of West Bengal, AIR 1979 SC 777, observing that when a Magistrate applies
his mind under Chapter XVI, he must be held to have taken cognizance of the
offences mentioned in the complaint. Such a situation would not arise while passing
order under Section 156(3) Cr.P.C. or while issuing a search warrant for the purpose
of investigation. In Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana
Reddy & Ors., AIR 1976 SC 1672, this Court held that ‘institution’ means
taking cognizance of the offence alleged in the charge sheet.
20.
Mere
presentation of a complaint cannot be held to mean that the Magistrate has
taken the cognizance. (Vide: Narsingh Das Tapadia v. Goverdhan Das Partani
& Anr., AIR 2000 SC 2946).
21.
Thus,
in view of the above, it is evident that the expression “Institution” has to be
understood in the context of the scheme of the Act applicable in a particular case.
So far as the criminal proceedings are concerned, “Institution” does not mean
filing; presenting or initiating the proceedings, rather it means taking cognizance
as per the provisions contained in the Cr.P.C. (ii) SANCTION FOR PROSECUTION:
22.
The
protection given under Section 197 Cr.P.C. is to protect responsible public servants
against the institution of possibly vexatious criminal proceedings for offences
alleged to have been committed by them while they are acting or purporting to
act as public servants. The policy of the legislature is to afford adequate protection
to public servants to ensure that they are not prosecuted for anything done by
them in the discharge of their official duties without reasonable cause, and if
sanction is granted, to confer on the Government, if they choose to exercise it,
complete control of the prosecution. This protection has certain limits and is available
only when the alleged 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
objectionable act. Use of the expression “official duty” implies that the act
or omission must have been done by the public servant in the course of his
service and that it should have been done 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. 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 Cr.P.C.
cannot be disputed. (See: R. Balakrishna Pillai v. State of Kerala & Anr.,
AIR 1996 SC 901; S.K. Zutshi & Anr. v. Bimal Debnath & Anr., AIR 2004
SC 4174; Center for Public Interest Litigation & Anr. v. Union of India
& Anr., AIR 2005 SC 4413; Rakesh Kumar Mishra v. State of Bihar & Ors.,
AIR 2006 SC 820; Anjani Kumar v. State of Bihar & Ors., AIR 2008 SC 1992;
and State of Madhya Pradesh v. Sheetla Sahai & Ors., (2009) 8 SCC 617).
23.
The
question to examine as to whether the sanction is required or not under a
statute has to be considered at the time of taking cognizance of the offence
and not during enquiry or investigation. There is a marked distinction in the stage
of investigation and prosecution. The prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that the cognizance is taken of
the offence and not of the offender. The sanction of the appropriate authority
is necessary to protect a public servant from unnecessary harassment or prosecution.
Such a protection is necessary as 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. However, performance of public duty under
colour of duty cannot be camouflaged to commit a crime. The public duty may
provide such a public servant an opportunity to commit crime and such issue is required
to be examined by the sanctioning authority or by the court. It is quite possible
that the official capacity may enable the pubic servant to fabricate the record
or mis- appropriate public funds etc. Such activities definitely cannot be integrally
connected or inseparably inter-linked with the crime committed in the course of
the same transaction.
Thus, all acts done
by a public servant in the purported discharge of his official duties cannot as
a matter of course be brought under the protective umbrella of requirement of
sanction. (Vide: Bhanuprasad Hariprasad Dave & Anr. v. The State of
Gujarat, AIR 1968 SC 1323; Hareram Satpathy v. Tikaram Agarwala & Ors., AIR
1978 SC 1568; State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339;
Anil Saran v. State of Bihar & Anr., AIR 1996 SC 204; Shambhoo Nath Misra v
State of U.P. & Ors., AIR 1997 SC 2102; and Choudhury Parveen Sultana v.
State of West Bengal & Anr., AIR 2009 SC 1404).
24.
In
fact, the issue of sanction becomes a question of paramount importance when a
public servant is alleged to have acted beyond his authority or his acts
complained of are in dereliction of the duty. In such an eventuality, if the
offence is alleged to have been committed by him while acting or purporting to
act in discharge of his official duty, grant of prior sanction becomes
imperative. It is so, for the reason that the power of the State is performed by
an executive authority authorised in this behalf in terms of the Rules of
Executive Business framed under Article 166 of the Constitution of India insofar
as such a power has to be exercised in terms of Article 162 thereof. (See :
State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92).
25.
In
Satyavir Singh Rathi, (Supra), this Court considered the provisions of Section
140 of the Delhi Police Act 1978 which bars the suit and prosecution in any
alleged offence by a police officer in respect of the act done under colour of
duty or authority in exercise of any such duty or authority without the
sanction and the same shall not be entertained if it is instituted more than 3 months
after the date of the act complained of. A complaint may be entertained in this
regard by the court if instituted with the previous sanction of the administrator
within one year from the date of the offence. This Court after considering its
earlier judgments including Jamuna Singh (supra); The State of Andhra Pradesh
v. N. Venugopal & Ors., AIR 1964 SC 33; State of Maharashtra v. Narhar Rao,
AIR 1966 SC 1783; State of Maharashtra v. Atma Ram & Ors., AIR 1966 SC 1786;
and Prof. Sumer Chand v. Union of India & Ors., (1994) 1 SCC 64, came to the
conclusion that the prosecution has been initiated on the basis of the FIR and
it was the duty of the police officer to investigate the matter and to file a charge
sheet, if necessary. If there is a discernible connection between the act
complained of by the accused and his powers and duties as police officer, the
act complained of may fall within the description of colour of duty. However, in
a case where the act complained of does not fall within the description of
colour of duty, the provisions of Section 140 of the Delhi Police Act 1978
would not be attracted.
26.
This
Court in State of Orissa & Ors. v. Ganesh Chandra Jew, AIR 2004 SC 2179,
while dealing with the issue held as under: “….. It is the quality of the act
which is important and the protection of this section is available if the act
falls within the scope and range of his official duty. There cannot be any universal
rule to determine whether there is a reasonable connection between the act done
and the official duty, nor is it possible to lay down any such rule. One safe
and sure test in this regard would be to consider if the omission or neglect on
the part of the public servant to commit the act complained of could have made
him answerable for a charge of dereliction of his official duty. If the answer
to this question is in the affirmative, it may be said that such act was
committed by the public servant while acting in the discharge of his official duty
and there was every connection with the act complained of and the official duty
of the public servant.” (Emphasis added) (See also: P. Arulswami v. State of
Madras, AIR 1967 SC 776).
27.
This
Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., AIR
1998 SC 1524, held as under: “……The legislative mandate engrafted in sub-section
(1) of Section 197 debarring a Court from taking cognizance of an offence
except with a previous sanction of the concerned Government in a case where the
acts complained of are alleged to have been committed by public servant in discharge
of his official duty or purporting to be in the discharge of his official duty
and such public servant is not removable from his office save by or with the
sanction of the Government touches the jurisdiction of the Court itself. It is a
prohibition imposed by the statute from taking cognizance, the accused after
appearing before the Court on process being issued, by an application
indicating that Section 197(1) is attracted merely assists the Court to rectify
its error where jurisdiction has been exercised which it does not possess. In
such a case there should not be any bar for the accused producing the relevant documents
and materials which will be ipso facto admissible, for adjudication of the
question as to whether in fact Section 197 has any application in the case in
hand. It is no longer in dispute and has been indicated by this Court in several
cases that the question of sanction can be considered at any stage of the
proceedings.” (Emphasis added)
28.
In
Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, the Constitution Bench of this
Court held that requirement of sanction may arise at any stage of the
proceedings as the complaint may not disclose all the facts to decide the question
of immunity, but facts subsequently coming either to notice of the police or in
judicial inquiry or even in the course of prosecution evidence may establish
the necessity for sanction.
The necessity for
sanction may surface during the course of trial and it would be open to the
accused to place the material on record for showing what his duty was and also the
acts complained of were so inter-related or inseparably connected with his official
duty so as to attract the protection accorded by law. The court further
observed that difference between “acting or purporting to act” in the discharge
of his official duty is merely of a language and not of substance.
On the issue as to
whether the court or the competent authority under the statute has to decide
the requirement of sanction, the court held: “Whether sanction is to be
accorded or not is a matter for the government to consider. The absolute power
to accord or withhold sanction conferred on the government is irrelevant and foreign
to the duty cast on the Court, which is the ascertainment of the true nature of
the act……There must be a reasonable connection between the act and the official
duty. It does not matter even if the act exceeds what is strictly necessary for
the discharge of the duty, as this question will arise only at a later stage
when the trial proceeds on the merits. What we must find out is whether the act
and the official duty are so inter- related that one can postulate reasonably
that it was done by the accused in the performance of the official duty, though
possibly in excess of the needs and requirements of the situation.” (Emphasis added)
29.
In
Sankaran Moitra v. Sadhna Das & Anr., AIR 2006 SC 1599, this Court held as
under : “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.” (See also: Rizwan Ahmed
Javed Shaikh & Ors. v. Jammal Patel & Ors., AIR 2001 SC 2198).
30.
In
S.B. Saha & Ors. v. M.S. Kochar, AIR 1979 SC 1841, this Court dealt with
the issue elaborately and explained the meaning of “official” as contained in the
provisions of Section 197 Cr.P.C., observing: "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…….. 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 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.”
31.
In
Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274,
this Court reiterated the same view while interpreting the phrase “official
duty”, as under: “…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……”
32.
In
P.K. Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, this Court
dealt with the issue wherein an Army officer had allegedly indulged in the
offence punishable under Section 166 IPC - public servant disobeying law, with intent
to cause injury to any person and Section 167 IPC - public servant framing
incorrect document with intention to cause injury, and as to whether in such an
eventuality sanction under Section 197 Cr.P.C. was required. The Court held as
under: “As the offences under Sections 166 and 167 of the Penal Code have a
direct nexus with commission of a criminal misconduct on the part of a public
servant, indisputably an order of sanction was prerequisite before the learned
Judicial Magistrate could issue summons upon the appellant.”
The Court further
rejected the contention that sanction was not required in view of the
provisions of Sections 125 and 126 of the Army Act, which provided for a choice
of the competent authorities to try an accused either by a criminal court or proceedings
for court-martial. Section 126 provides for the power of the criminal court to require
delivery of offender. The Court held that in case the competent authority takes
a decision that the accused was to be tried by ordinary criminal court, the
provisions of the Cr.P.C. would be applicable including the law of limitation
and the criminal court cannot take cognizance of offence if it is barred by limitation.
In case, the delay is not condoned, the court will have no jurisdiction to take
the cognizance. Similarly, unless it is held that a sanction was not required
to be obtained, the court’s jurisdiction will be barred.
33.
This
Court in Nagraj v. State of Mysore, AIR 1964 SC 269, held that: “ The last
question to consider is that if the Court comes at any stage to the conclusion
that the prosecution could not have been instituted without the sanction of the
Government, what should be the procedure to be followed by it, i e., whether
the Court should discharge the accused or acquit him of the charge if framed
against him or just drop the proceedings and pass no formal order of discharge
or acquittal as contemplated in the case of a prosecution under the Code.
The High Court has said
that when the Sessions Judge be satisfied that the facts proved bring the case
within the mischief of S. 132 of the Code then he is at liberty to reject the
complaint holding that it is barred by that section. We consider this to be the
right order to be passed in those circumstances. It is not essential that the
Court must pass a formal order discharging or acquitting the accused. In fact
no such order can be passed. If S. 132 applies, the complaint could not have
been instituted without the sanction of the Government and the proceedings on a
complaint so instituted would be void, the Court having no jurisdiction to take
those proceedings. When the proceedings be void, the Court is not competent to
pass any order except an order that the proceedings be dropped and the complaint
is rejected.” (Emphasis added)
34.
In
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431, the
Constitution Bench of this Court while dealing with the issue involved herein
under the provisions of Section 6 of the Armed Forces (Special Powers) Act,
1958, held as under: “Under Section 6 protection has been given to the persons acting
under the Central Act and it has been prescribed that no prosecution, suit or
other legal proceeding shall be instituted against any person in respect of
anything done or purported to be done in exercise of the powers conferred by the
said Act except with the previous sanction of the Central Government.
The conferment of
such a protection has been assailed on the ground that it virtually provides immunity
to persons exercising the powers conferred under Section 4 inasmuch as it extends
the protection also to “anything purported to be done in exercise of the powers
conferred by this Act”. It has been submitted that adequate protection for
members of armed forces from arrest and prosecution is contained in Sections 45
and 197 CrPC and that a separate provision giving further protection is not
called for. It has also been submitted that even if sanction for prosecution is
granted, the person in question would be able to plead a statutory defence in criminal
proceedings under Sections 76 and 79 of the Indian Penal Code.
The protection given
under Section 6 cannot, in our opinion, be regarded as conferment of an
immunity on the persons exercising the powers under the Central Act. Section 6 only
gives protection in the form of previous sanction of the Central Government
before a criminal prosecution or a suit or other civil proceeding is instituted
against such person. Insofar as such protection against prosecution is
concerned, the provision is similar to that contained in Section 197 CrPC which
covers an offence alleged to have been committed by a public servant “while
acting or purporting to act in the discharge of his official duty”. Section 6
only extends this protection in the matter of institution of a suit or other
legal proceeding. xx xx xx
In order that the
people may feel assured that there is an effective check against misuse or abuse
of powers by the members of the armed forces it is necessary that a complaint containing
an allegation about misuse or abuse of the powers conferred under the Central
Act should be thoroughly inquired into and, if it is found that there is substance
in the allegation, the victim should be suitably compensated by the State and
the requisite sanction under Section 6 of the Central Act should be granted for
institution of prosecution and/or a civil suit or other proceedings against the
person/persons responsible for such violation.” (Emphasis added)
35.
In
Jamiruddin Ansari v. Central Bureau of Investigation & Anr., (2009) 6 SCC
316, this Court while dealing with the provision of Maharashtra Control of
Organised Crime Act, 1999 (hereinafter called as ‘MCOCA’) held that: “As
indicated hereinabove, the provisions of Section 23 are the safeguards provided
against the invocation of the provisions of the Act which are extremely stringent
and far removed from the provisions of the general criminal law. If, as submitted
on behalf of some of the respondents, it is accepted that a private complaint
under Section 9(1) is not subject to the rigours of Section 23, then the very
purpose of introducing such safeguards lose their very raison d'ętre. At the same
time, since the filing of a private complaint is also contemplated under Section
9(1) of MCOCA, for it to be entertained it has also to be subject to the
rigours of Section 23.
Accordingly, in view
of the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special
Judge is precluded from taking cognizance on a private complaint upon a separate
inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain
in respect of complaints, either of a private nature or on a police report. In order
to give a harmonious construction to the provisions of Section 9(1) and Section
23 of MCOCA, upon receipt of such private complaint the learned Special Judge
has to forward the same to the officer indicated in clause (a) of sub-section
(1) of Section 23 to have an inquiry conducted into the complaint by a police
officer indicated in clause (b) of sub-section (1) and only thereafter take cognizance
of the offence complained of, if sanction is accorded to the Special Court to
take cognizance of such offence under sub-section (2) of Section 23.” (Emphasis
added)
36.
This
Court in Harpal Singh v. State of Punjab, (2007) 13 SCC 387, while dealing with
the provision of Section 20A(2) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter called ‘TADA’) held as under: “The
important feature which is to be noted is that the prosecution did not obtain
sanction of the Inspector General of Police or of the Commissioner of Police
for prosecution of the appellant under TADA at any stage as is required by
Section 20- A(2) of TADA. The trial of the appellant before the Designated Court
proceeded without the sanction of the Inspector General of Police or the
Commissioner of Police. In absence of previous sanction the Designated Court had
no jurisdiction to take cognizance of the offence or to proceed with the trial of
the appellant under TADA”. (Emphasis added)
37.
In
Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat, AIR 1997 SC 3475, this
Court while dealing with the same provisions of TADA, held that: “…Thus a valid
sanction is sine qua non for enabling the prosecuting agency to approach the
Court in order to enable the Court to take cognizance of the offence under TADA
as disclosed in the report. The corollary is that, if there was no valid sanction
the Designated Court gets no jurisdiction to try a case against any person
mentioned in the report as the Court is forbidden from taking cognizance of the
offence without such sanction. If the Designated Court has taken cognizance of the
offence without a valid sanction, such action is without jurisdiction and any
proceedings adopted thereunder will also be without jurisdiction.”
38.
In
State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, this Court while dealing with
the issue held as under: “Use of the words “no” and “shall” makes it abundantly
clear that the bar on the exercise of power of the court to take cognizance of
any offence is absolute and complete. The very cognizance is barred. That is,
the complaint cannot be taken notice of.” (Emphasis added)
39.
In
broad and literal sense `cognizance’ means taking notice of an offence as required
under Section 190 Cr.P.C. `Cognizance’ indicates the point when the court first
takes judicial notice of an offence. The court not only applies its mind to the
contents of the complaint/police report, but also proceeds in the manner as indicated
in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide: R.R. Chari v.
The State of Uttar Pradesh, AIR 1951 SC 207; and State of W.B. & Anr. v.
Mohd. Khalid & Ors., (1995) 1 SCC 684).
40.
In
Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185, this
Court dealt with the issue elaborately and explained the meaning of the word
‘cognizance’ as under: “In legal parlance cognizance is ‘taking judicial notice
by the court of law’, possessing jurisdiction, on a cause or matter presented
before it so as to decide whether there is any basis for initiating proceedings
and determination of the cause or matter judicially.” (Emphasis added) (See
also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4 SCALE 191)
41.
In
State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, this Court
explained the meaning of the term ‘the very cognizance is barred’ as that the complaint
cannot be taken notice of or jurisdiction or exercise of jurisdiction or power
to try and determine causes. In common parlance, it means taking notice of. The
court, therefore, is precluded from entertaining a complaint 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.
42.
The
relevant provisions in the Cr.P.C. read as under: “45(1)- Notwithstanding
anything contained in Sections 41 to 44 (both inclusive), no member of the
Armed Forces of the Union shall be arrested for anything done or purported to
be done by him in the discharge of his official duties except after obtaining the
consent of the Central Government. 197(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.” Section 7 of the Act
1990, puts an embargo on the complainant/investigating agency/person aggrieved to
file a suit, prosecution etc. in respect of anything done or purported to be
done by a Army personnel, in good faith, in exercise of power conferred by the
Act, except with the previous sanction of the Central Government.
43.
Three
expressions i.e. ‘except’, ‘good faith’ and ‘purported’ contained in the
aforesaid provision require clarification/elaboration. (i) Except : To leave or
take out: exclude; omit; save Not including; unless. The word has also been
construed to mean until. Exception – Act of excepting or excluding from a number
designated or from a description; that which is excepted or separated from
others in a general rule of description; a person, thing, or case specified as
distinct or not included; an act of excepting, omitting from mention or leaving
out of consideration. (ii) Purport : Purport means to present, especially deliberately,
the appearance of being; profess or claim, often falsely.
It means to convey,
imply, signify or profess outwardly, often falsely. In other words it means to
claim (to be a certain thing, etc.) by manner or appearance; intent to show; to
mean; to intend. Purport also means ‘alleged’. ‘Purporting’ – When power is
given to do something ‘purporting’ to have a certain effect, it will seem to prevent
objections being urged against the validity of the act which might otherwise be
raised. Thus when validity is given to anything ‘purporting’ to be done in
pursuance of a power, a thing done under it may have validity though done at a
time when the power would not be really exercisable. (Dicker v. Angerstein, 3 Ch
D 600) ‘Purporting to be done’ –
There must be
something in the nature of the act that attaches it to his official character. Even
if the act is not justified or authorised by law, he will still be purporting
to act in the execution of his duty if he acts on a mistaken view of it.” So it
means that something is deficient or amiss: everything is not as it is intended
to be. In Azimunnissa and Ors. v. The Deputy Custodian, Evacuee Properties,
District Deoria and Ors. AIR 1961 SC 365, Constitution Bench of this court
held: “The word ‘purport’ has many shades of meaning.
It means fictitious,
what appears on the face of the instrument; the apparent and not the legal
import and therefore any act which purports to be done in exercise of a power
is to be deemed to be done within that power notwithstanding that the power is not
exercisable…..Purporting is therefore indicative of what appears on the face of
it or is apparent even though in law it may not be so.” (Emphasis added) (See
also: Haji Siddik Haji Umar & Ors. v. Union of India, AIR 1983 SC 259). (iii)
GOOD FAITH:
44.
A
public servant is under a moral and legal obligation to perform his duty with
truth, honesty, honour, loyality and faith etc. He is to perform his duty
according to the expectation of the office and the nature of the post for the reason
that he is to have a respectful obedience to the law and authority in order to accomplish
the duty assigned to him. Good faith has been defined in Section 3(22) of the
General Clauses Act, 1897, to mean a thing which is, in fact, done honestly,
whether it is done negligently or not. Anything done with due care and
attention, which is not malafide, is presumed to have been done in good faith.
There should not be personal
ill-will or malice, no intention to malign and scandalize. Good faith and public
good are though the question of fact, it required to be proved by adducing
evidence. (Vide: Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu
& Ors., AIR 1958 SC 767; Madhav Rao Scindia Bahadur Etc. v. Union of India &
Anr., AIR 1971 SC 530; Sewakram Sobhani v. R.K. Karanjiya, Chief Editor, Weekly
Blitz & Ors., AIR 1981 SC 1514; Vijay Kumar Rampal & Ors. v. Diwan Devi
& Ors., AIR 1985 SC 1669; Deena (Dead) through Lrs. v. Bharat Singh (Dead)
through LRs. & Ors., (2002) 6 SCC 336; and Goondla Venkateshwarlu v. State of
Andhra Pradesh & Anr., (2008) 9 SCC 613).
In Brijendra Singh v.
State of U.P. & Ors., AIR 1981 SC 636, this Court while dealing with the
issue held: “…..The expression has several shades of meanings. In the popular sense,
the phrase 'in good faith' simply means "honestly, without fraud, collusion,
or deceit; really, actually, without pretence and without intent to assist or act
in furtherance of a fraudulent or otherwise unlawful scheme". (See Words
and Phrases, Permanent Edition, Vol. 18A, page 91). Although the meaning of
"good faith" may vary in the context of different statutes, subjects
and situations, honest intent free from taint of fraud or fraudulent design, is
a constant element of its connotation. Even so, the quality and quantity of the
honesty requisite for constituting 'good faith' is conditioned by the context
and object of the statute in which this term is employed. It is a cardinal canon
of construction that an expression which has no uniform, precisely fixed
meaning, takes its colour, light and content from the context.”
45.
For
the aforesaid qualities attached to a duty one can attempt to decipher it from
a private act which can be secret or mysterious. An authorised act or duty is
official and is in connection with authority. Thus, it cannot afford to be
something hidden or non-transparent unless such a duty is protected under some
law like the Official Secrets Act.
46.
Performance
of duty acting in good faith either done or purported to be done in the
exercise of the powers conferred under the relevant provisions can be protected
under the immunity clause or not, is the issue raised. The first point that has
to be kept in mind is that such a issue raised would be dependent on the facts
of each case and cannot be a subject matter of any hypothesis, the reason being,
such cases relate to initiation of criminal prosecution against a public
official who has done or has purported to do something in exercise of the powers
conferred under a statutory provision. The facts of each case are, therefore,
necessary to constitute the ingredients of an official act. The act has to be
official and not private as it has to be distinguished from the manner in which
it has been administered or performed.
47.
Then
comes the issue of such a duty being performed in good faith. ‘Good faith’
means that which is founded on genuine belief and commands a loyal performance.
The act which proceeds on reliable authority and accepted as truthful is said
to be in good faith. It is the opposite of the intention to deceive. A duty performed
in good faith is to fulfil a trust reposed in an official and which bears an allegiance
to the superior authority. Such a duty should be honest in intention, and sincere
in professional execution. It is on the basis of such an assessment that an act
can be presumed to be in good faith for which while judging a case the entire
material on record has to be assessed.
48.
The
allegations which are generally made are, that the act was not traceable to any
lawful discharge of duty. That by itself would not be sufficient to conclude
that the duty was performed in bad faith. It is for this reason that the
immunity clause is contained in statutory provisions conferring powers on law
enforcing authorities. This is to protect them on the presumption that acts
performed in good faith are free from malice or illwill. ?The immunity is a kind
of freedom conferred on the authority in the form of an exemption while
performing or discharging official duties and responsibilities. The act or the duty
so performed are such for which an official stands excused by reason of his
office or post.
49.
It
is for this reason that the assessment of a complaint or the facts necessary to
grant sanction against immunity that the chain of events has to be looked into
to find out as to whether the act is dutiful and in good faith and not maliciously
motivated. It is the intention to act which is important.
50.
A
sudden decision to do something under authority or the purported exercise of such
authority may not necessarily be predetermined except for the purpose for which
the official proceeds to accomplish. For example, while conducting a raid an official
may not have the apprehension of being attacked but while performing his official
duty he has to face such a situation at the hands of criminals and unscrupulous
persons. The official may in his defence perform a duty which can be on account
of some miscalculation or wrong information but such a duty cannot be labelled
as an act in bad faith unless it is demonstrated by positive material in
particular that the act was tainted by personal motives and was not connected with
the discharge of any official duty. Thus, an act which may appear to be wrong
or a decision which may appear to be incorrect is not necessarily a malicious
act or decision. The presumption of good faith therefore can be dislodged only
by cogent and clinching material and so long as such a conclusion is not drawn,
a duty in good faith should be presumed to have been done or purported to have
been done in exercise of the powers conferred under the statute. ?
51.
There
has to be material to attribute or impute an unreasonable motive behind an act
to take away the immunity clause. It is for this reason that when the authority
empowered to grant sanction is proceeding to exercise its discretion, it has to
take into account the material facts of the incident complained of before passing
an order of granting sanction or else official duty would always be in peril
even if performed bonafidely and genuinely.
52.
It
is in the aforesaid background that we wish to record that the protection and
immunity granted to an official particularly in provisions of the Act 1990 or
like Acts has to be widely construed in order to assess the act complained of. This
would also include the assessment of cases like mistaken identities or an act
performed on the basis of a genuine suspicion. We are therefore of the view that
such immunity clauses have to be interpreted with wide discretionary powers to
the sanctioning authority in order to uphold the official discharge of duties
in good faith and a sanction therefore has to be issued only on the basis of a
sound objective assessment and not otherwise.
53.
Use
of words like ‘No’ and ‘shall’ in Section 7 of the Act 1990 denotes the
mandatory requirement of obtaining prior sanction of the Central Government
before institution of the prosecution, suit or legal proceedings. From the
conjoint reading of Section 197(2) Cr.P.C. and Section 7 of the Act 1990, it is
clear that prior sanction is a condition precedent before institution of any of
the aforesaid legal proceedings.
54.
To
understand the complicacy of the issue involved herein, it will be useful to
compare the relevant provisions of different statutes requiring previous
sanction.
CRIMINAL
PROCEDURE CODE, 1973
|
PREVENTION
OF CORRUPTION ACT, 1988
|
ARMED
FORCES (SPECIAL POWERS) ACT, 1990
|
197.
Prosecution of Judges and Public servants.- (1) When any person who is or was
a Judge or Magistrate or a public servant not removable from his office save
by or with the sanction of the Government is accused of any offence alleged
to have been committed by him while acting or purporting to act in the
discharge of his official duty, no Court shall take cognizance of such offence
except with the previous sanction.
|
19.
Previous sanction necessary for prosecution.- (1) No court shall take
cognizance of an offence punishable under Sections 7,10,11,13 and 15 alleged
to have been committed by a public servant, except with the previous
sanction. (a) in the case of a person who is employed in connection with the
affairs of the Union and is not removable from his office save by or with the
sanction of the Central Government, of that Government.
|
7.
Protection to persons acting under Act.— No prosecution, suit or other legal
proceeding shall be instituted, except with the previous sanction of the Central
Government, against any person in respect of anything done or purported to be
done in exercise of the powers conferred by this Act.
|
Thus, it is evident
from the aforesaid comparative chart that under the provisions of Cr.P.C. and
Prevention of Corruption Act, it is the court which is restrained to take cognizance
without previous sanction of the competent authority. Under the Act 1990, the investigating
agency/complainant/person aggrieved is restrained to institute the criminal
proceedings; suit or other legal proceedings. Thus, there is a marked
distinction in the statutory provisions under the Act 1990, which are of much
wider magnitude and are required to be enforced strictly.
55.
Thus,
in view of the above, the law on the issue of sanction can be summarised to the
effect that the question of sanction is of paramount importance for protecting
a public servant who has acted in good faith while performing his duty. In
order that the public servant may not be unnecessarily harassed on a complaint of
an unscrupulous person, it is obligatory on the part of the executive authority
to protect him. However, there must be a discernible connection between the act
complained of and the powers and duties of the public servant.
The act complained of
may fall within the description of the action purported to have been done in performing
the official duty. Therefore, if the alleged act or omission of the public
servant can be shown to have reasonable connection inter-relationship or inseparably
connected with discharge of his duty, he becomes entitled for protection of
sanction. 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.
56.
The
present case stands squarely covered by the ratio of the judgments of this
Court in Matajog Dobey (Supra) and Sankaran Moitra (Supra). Thus, we have no
hesitation to hold that sanction of the Central Government is required in the
facts and circumstances of the case and the court concerned lacks jurisdiction to
take cognizance unless sanction is granted by the Central Government.
57.
The
CJM Court gave option to the higher authorities of the Army to choose whether
the trial be held by the court-martial or by the criminal court as required
under Section 125 of the Army Act. Mr. P.P. Malhotra, learned ASG, has
submitted the original file of the Army Authorities before the court, File
notings reveal their decision that in case it is decided by this Court that
sanction is required and the Central Government accords sanction, option would be
availed at that stage.
58.
Military
Authority may ask the criminal court dealing with the case that the accused
would be tried by the court-martial in view of the provisions of Section 125 of
the Army Act. However, the option given by the Authority is not final in view of
the provisions of Section 126 of the Army Act.
Criminal court having
jurisdiction to try the offender may require the competent military officer to
deliver the offender to the Magistrate concerned to be proceeded according to law
or to postpone the proceedings pending reference to the Central Government, if
that criminal court is of the opinion that proceedings be instituted before
itself in respect of that offence. Thus, in case the criminal court makes such
a request, the Military Officer either has to comply with it or to make a
reference to the Central Govt. whose orders would be final with respect to the venue
of the trial.
Therefore, the
discretion exercised by the Military Officer is subject to the control of the
Central Govt. Such matter is being governed by the provisions of Section 475
Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial
(Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the said Rules, 1983, provides
that in case the accused has been handed over to the Army authorities to be
tried by a court-martial, the proceedings of the criminal court shall remain stayed.
Rule 7 thereof, further provides that when an accused has been delivered by the
criminal court to the Army authorities, the authority concerned shall inform
the criminal court whether the accused has been tried by a court-martial or
other effectual proceedings have been taken or ordered to be taken against him.
If the Magistrate is informed that the accused has not been tried or other
effectual proceedings have not been taken, the Magistrate shall report the
circumstances to the State Government which may, in consultation with the
Central Government, take appropriate steps to ensure that the accused person is
dealt with in accordance with law.
59.
Constitution
Bench of this Court in Som Datt Datta v. Union of India & Ors., AIR 1969 SC
414, held that option as to whether the accused be tried by a criminal court or
court-martial could be exercised after the police has completed the investigation
and submitted the charge sheet. Therefore, for making such an option, the Army
Authorities do not have to wait till the criminal court takes cognizance of the
offence or frames the charges, which commences the trial.
60.
In
Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR
1972 SC 2548, a similar view has been reiterated by this Court observing that
relevant Rules require that an option be given as to whether the accused be tried
by a court-martial or by ordinary criminal court. The Magistrate has to give notice
to the Commanding Officer and is not to make any order of conviction or acquittal
or frame charges or commit the accused until the expiry of 7 days from the
service of notice.
61.
In
Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90, this Court dealt
with the provisions of the Air Force Act, 1950; provisions of Cr.P.C. and
criminal court and court-martial (Adjustment of Jurisdiction) Rules, 1952 and
reiterated the same view relying upon its earlier judgment in Ram Sarup v.
Union of India & Anr., AIR 1965 SC 247, wherein it has been held that there
could be variety of circumstances which may influence the justification as to whether
the offender be tried by a court-martial or by criminal court, and therefore,
it becomes inevitable that the discretion to make such a choice be left to the
Military Officers. Military Officer is to be guided by considerations of the
exigencies of the service, maintenance of discipline in the Army, speedier
trial, the nature of the offence and the persons against whom the offence is
committed.
62.
Thus,
the law on the issue is clear that under Section 125 of the Army Act, the stage
of making option to try an accused by a court- martial and not by the criminal court
is after filing of the charge sheet and before taking cognizance or framing of
the charges.
63.
A
question has further been raised by learned counsel for the appellant that the
Act 1990 is a special Act and Section 7 thereof, provides full protection to
the persons who are subject to the Army Act from any kind of suit, prosecution
and legal proceedings unless the sanction of the Central Government is obtained
. Thus, in such a fact- situation, even if the Commanding Officer exercises his
discretion and opts that the accused would be tried by the court-martial, the proceedings
of court-martial cannot be taken unless the Central Government accords
sanction.
64.
Learned
counsel for the CBI and interveners have opposed the submission contending that
in case the accused are tried in the court- martial, sanction is not required
at all. The provisions of the Act 1990 would apply in consonance with the
provisions of the Army Act. Section 7 of the Act 1990 does not contain non-obstante
clause. Therefore, once the option is made that accused is to be tried by a court-martial,
further proceedings would be in accordance with the provisions of Section 70 of
the Army Act and for that purpose, sanction of the Central Government is not
required. The court-martial has been defined under Section 3(VII) of the Army Act
which is definitely different from the suit and prosecution as explained hereinabove,
and has not been referred to in the Act 1990.
65.
Undoubtedly,
the court-martial proceedings are akin to criminal prosecution and this fact
has been dealt with elaborately by this Court in Union of India & Ors. v. Major
A. Hussain, AIR 1998 SC 577. However, once the matter stands transferred to the
Army for conducting a court-martial, the court-martial has to be as per the provisions
of the Army Act. The Army Act does not provide for sanction of the Central Government.
Thus, we do not find any force in the contention raised by the appellant and
the same is rejected.
66.
Sum
up:
i.
The
conjoint reading of the relevant statutory provisions and rules make it clear
that the term “institution” contained in Section 7 of the Act 1990 means taking
cognizance of the offence and not mere presentation of the charge sheet by the investigating
agency.
ii.
The
competent Army Authority has to exercise his discretion to opt as to whether
the trial would be by a court-martial or criminal court after filing of the charge
sheet and not after the cognizance of the offence is taken by the court.
iii.
Facts
of this case require sanction of the Central Government to proceed with the
criminal prosecution/trial.
iv.
In
case option is made to try the accused by a court-martial, sanction of the
Central Government is not required.
67.
In
view of the above, the appeals stand disposed of with the following directions:
i.
The
competent authority in the Army shall take a decision within a period of eight
weeks from today as to whether the trial would be by the criminal court or by a
court-martial and communicate the same to the Chief Judicial Magistrate concerned
immediately thereafter.
ii.
In
case the option is made to try the case by a court-martial, the said
proceedings would commence immediately and would be concluded strictly in
accordance with law expeditiously.
iii.
In
case the option is made that the accused would be tried by the criminal court,
the CBI shall make an application to the Central Government for grant of
sanction within four weeks from the receipt of such option and in case such an application
is filed, the Central Government shall take a final decision on the said
application within a period of three months from the date of receipt of such an
application.
iv.
In
case sanction is granted by the Central Government, the criminal court shall
proceed with the trial and conclude the same expeditiously.
.......................J.
(Dr. B.S. CHAUHAN)
.......................J.
(SWATANTER KUMAR)
New
Delhi,
May
1, 2012
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