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642
SUPREME COURT OF INDIA
DIVISION BENCH

DEVINDER SINGH & ORS. — Appellant

Vs.

STATE OF PUNJAB THROUGH CBI — Respondent

( Before : V. Gopala Gowda; Arun Mishra, JJ. )
Criminal Appeal No. 190 of 2003
Decided on : 25-04-2016

Criminal Procedure Code, 1973 (CrPC) - Section 197

Penal Code, 1860 (IPC) - Section 307
Prevention of Corruption Act, 1988 - Section 6
Punjab Disturbed Areas Act, 1983 - Section 6

Sanction — Whether in view of the provisions contained in section

6 of Punjab Disturbed Areas Act, 1983 (as amended in 1989) the
prosecution or other legal proceedings relating to Police officers can
be instituted without prior sanction of the Central Government — In
the matter of grant of sanction under section 197 Cr.P.C., the offence
alleged to have been committed by the accused must have something
to do with the accused, with the discharge of official duty. In other
words, there must be a reasonable connection between the act and
the discharge of official duty. That must have a relation to the duty
that the accused could lay a reasonable claim, but not a pretended
or fanciful claim, that he did it in the course of the performance of
his duty — The test to determine a reasonable connection between
the act complained of and the official duty is that even in case the
public servant has exceeded in his duty, if there exists a reasonable
connection it will not deprive him of the protection. The Court has
observed that there cannot be a universal rule to determine
whether there is a reasonable connection between the act done and
the official duty nor is it possible to lay down any such rule — There
was a reasonable nexus of the incident with discharge of official
duty, the court shall re-examine the question of sanction and take
decision in accordance with law — Appeal stand disposed of
Counsel for Appearing Parties
P. Parmeswaran, Bharat Sangal, Ms. Sushma Suri, Irshad Ahmad, Kuldip Singh, Ms.
Puja Sharma, B.V. Balaram Das, Arvind Kumar Sharma, Advocates, for the
Respondent
Cases Referred

Abdul Wahab Ansari Vs. State of Bihar, (2000) 8 SCC 500

Bhappa Singh Vs. Ram Pal Singh, 1981 Sup SCC 12
Birendra K. Singh Vs. State of Bihar, (2000) 8 SCC 498
D.T. Virupakshappa Vs. C. Subash, 2015 (12) SCC 231
Gauri Shankar Prasad Vs. State of Bihar, (2000) 5 SCC 15
General Officer Commanding, Rashtriya Rifles Vs. Central Bureau of
Investigation, (2012) 6 SCC 228
Harpal Singh Vs. State of Punjab, 2007 (13) SCC 387
Hori Ram Singh Vs. Emperor, AIR 1939 FC 43
K. Kalimuthu Vs. State by DSP, (2005) 4 SCC 512
Manorama Tiwari Vs. Surendra Nath Rai, (2016) 1 SCC 594
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622
Matajog Dobey Vs. H.C. Bhari, (1955) 2 SCR 925
Om Prakash Vs. State of Jharkhand, 2012 (12) SCC 72
P. Arulswami Vs. State of Madras, (1967) 1 SCR 201
P.K. Pradhan Vs. State of Sikkim represented by the Central Bureau of
Investigation, (2001) 6 SCC 704
P.P. Unnikrishnan Vs. Puttiyottil Alikutty, (2000) 8 SCC 131
 Paramjit Kaur (Mrs.) Vs. State of Punjab, (1996) 7 SCC 20
S.B. Saha Vs. M.S. Kochar, (1979) 4 SCC 177
S.K. Zutshi Vs. Bimal Debnath, (2004) 8 SCC 31
Sankaran Moitra Vs. Sadhna Das, (2006) 4 SCC 584
Sarjoo Prasad Vs. The King-Emperor, (1945) F.C.R. 227
Satyavir Singh Rathi, Assistant Commissioner of Police Vs. State through
Central Bureau of Investigation, (2011) 6 SCC 1
Shambhoo Nath Misra Vs. State of U.P., (1997) 5 SCC 326
Shreekantiah Ramayya Munipalli Vs. The State of Bombay, (1955) 1 SCR
1177
State of H.P. Vs. M.P. Gupta, (2004) 2 SCC 349
State of Karnataka through CBI Vs. C. Nagarajaswamy, (2005) 8 SCC 370
State of Maharashtra Vs. Dr. Budhikota Subbarao, (1993) 3 SCC 339
State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40
Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan, (1998) 1 SCC
205

Final Result : Disposed off

JUDGMENT

Arun Mishra, J. - Leave granted in all the special leave petitions.

2. In the appeals the question involved is whether in view of the provisions
contained in section 6 of Punjab Disturbed Areas Act, 1983 (as amended in
1989) (for short "the 1983 Act") the prosecution or other legal proceedings
relating to Police officers can be instituted without prior sanction of the Central
Government.
3. The case set up by the appellants in Criminal Appeal No.190 of 2003 is that
they are the officers of the Punjab Police. At the relevant time they were
entrusted with the duties and responsibilities of public order and peace in the
State of Punjab. It is averred by the appellants that, in the early 1980s, there
was a sudden spurt in the terrorist activities, massive killings at the hands of
terrorists, looting, extortions, kidnapping, resulting into total collapse of the
civil administration. More than 25,000 civilians, 1800 men in uniform and their
relatives had been killed at the hands of the terrorists resulting into migration
of civil population in the border districts of Amritsar, Ferozpur and Gurdaspur.
District Amritsar was bifurcated into three police districts for the purpose of
better administration, namely Amritsar, Taran Taran and Majitha. The present
cases arise from police district Taran Taran which is the closest police district
to Pakistan.
It is further averred that on 22.7.1993 four persons were killed in an encounter
with the police. The prosecution alleged that they were killed in a fake
encounter. On the basis of the complaint lodged by Chaman Lal, father of one
of the deceased, the CBI obtained sanction from the State Government to
prosecute the accused as at the relevant time, under section 6 of the 1983 Act,
sanction from Central Government was required. However, on the basis of
sanction obtained from the State Government, the CBI filed chargesheet
against the accused persons in the Court of Special Judge, Patiala. The
appellants filed application under section 227 of the Cr.P.C. for discharge on the
ground that they had acted in the incident in the course of their duty and
sanction granted by the State Government was without jurisdiction, illegal and
void.
4. The CBI contested the application on the ground that sections 4 and 5 of the
1983 Act were not applicable and there was no need for obtaining any sanction
because the deceased had been killed in a fake encounter. The Special Court
dismissed the application filed by the accused persons. Aggrieved thereby, they
approached the High Court by filing a criminal revision and the same has also
been dismissed. The High Court has held that as per prosecution case it is a
case of fake encounter, as such sanction is not required. The same could not be
said to be an act in discharge of official duties. Aggrieved thereby the
appellants are before this Court. The facts are more or less similar in all the
cases.
5. Writ Petition (Crl.) No. 139/2012 has been filed by Chaman Lal with a prayer
that Union of India may be directed to grant sanction under section 197 Cr.P.C.
for prosecution of police officer as set out in the affidavit of CBI filed in Appeal
No.190/2003.
6. This Court vide order dated 20.7.2001 stayed the further proceedings before
the trial court in SLP (Crl.) No.2336/2001 - Balbir Singh and Ors. v. State of
Punjab. Similar orders of interim stay were passed in other cases also. One
such order was passed on 21.1.2002 in SLP (Crl.) Nos.3072-75/2001 and these
matters had been tagged. On behalf of the accused appellants, order dated
16.2.2006 has been referred to in which it has been observed that the CBI had
stated during the course of the arguments that the mater be sent to the Central
Government with the entire record to consider the question of sanction in
terms of section 6 of the 1983 Act. This Court in view of the stand taken by the
CBI continued the interim stay on operation of the impugned orders and
observed that the Central Government will consider the matter in terms of
section 6 and in accordance with law without being prejudiced by any
observation made in any of the impugned orders. Cases were ordered to be
listed after three months. This Court was informed by the Additional Solicitor
General on 10.10.2006 that the Central Government has opined that the case of
Balbir Singh was not a fit case for giving sanction for prosecution in terms of
section 6 of the 1983 Act. So far as Harpal Singh is concerned, the Central
Government was not the competent authority and with respect to another
accused Bhupinderjit Singh, CBI has not submitted full report. Thereafter
interim order was passed on 13.2.2007 by this Court to consider grant of
sanction in the case of Gurmeet Singh. On 22.9.2010 this Court noted in the
interim order that Balbir Singh in Crl. Appeal No.190/2003 had died and this
Court dismissed the appeal as abated against him. Appeal with respect to other
appellants was adjourned. Interim stay was granted in other connected
matters on 30.7.2012 with respect to cases pending in the trial court at Patiala.
7. It was submitted by learned counsel appearing on behalf of accused
appellant that sanction to prosecute was necessary in view of the provisions
contained in section 6 of the 1983 Act as amended in 1989. Thus the
prosecution could not have been launched without obtaining sanction of the
Central Government. This Court by interim order had directed on submission
being raised by CBI that the matter will be referred to the Central Government
for sanction and in certain cases Central Government had granted sanction
and in others it had declined. Sanction to prosecute was necessary as the act
was done in discharge of official duties. As a matter of fact, false allegations of
fake encounter have been made in the cases. The deceased indulged in various
criminal activities. They were creating unrest and the officers have discharged
their duties at the time of the incident. Thus without prior sanction to
prosecute by the Central Government, they could not have been prosecuted.
The prosecution deserves to be quashed.
Per contra, it was submitted on behalf of the CBI and the learned counsel
appearing on behalf of the complainant that in such cases of criminal
activities, fake encounters, custodial death due to torture etc., sanction to
prosecute is not at all required as fake encounters, torture in custody and other
criminal acts complained of do not form part of their official duties. Thus, the
High Court has rightly upheld the order of the trial court, in such cases the
sanction to prosecute is not necessary in such cases.
8. The matters in question as per prosecution case pertain to death caused in
fake encounter, or by torture or death in police custody.
9. It was submitted by learned counsel on behalf of the appellants that in the
course of proceedings the CBI has taken a stand that it would refer the cases
for sanction to the Central Government. This Court is bound by such stand of
the CBI on the basis of which interim order was passed and the petition may be
disposed of in terms of the interim order that the Central Government may
decide the question of sanction. We are not at all impressed by the submission
made by learned counsel appearing on behalf of the appellants. In the interim
order this Court has never decided the legality or the correctness of the
impugned orders passed by the High Court. In the course of proceedings
interim order was passed on the basis of particular submission made by
counsel for the CBI but this Court has never decided the question whether
sanction at this stage is necessary or not. Hence the interim orders are of no
avail to the cause espoused by the appellants.
10. On merits, accused-appellants have relied upon the decision of the Federal
Court in Dr. Hori Ram Singh v. Emperor [AIR 1939 FC 43] in which Federal
Court has laid down that the question of good faith or bad faith is expected to
be decided by the court after trial. The question of good faith or bad faith
should not be introduced at the stage of section 270(1) with regard to the
meaning of the words "purporting to be done in official duty", the court
observed that it is difficult to say that it necessarily implies "purporting to be
done in good faith". In the case of embezzlement, an officer is not doing an act
in execution of his duty. It would amount to criminal breach of trust under
section 409 IPC but in case of provision under section 477-A IPC if an act is
done willfully, with intention to defraud, falsify any book or account, in such
cases for prosecution under section 409, consent of Governor is not necessary
but for prosecution under section 477A, consent is necessary.
11. Reliance has also been placed on the decision of this Court in Shreekantiah
Ramayya Munipalli v. The State of Bombay [1955 (1) SCR 1177] wherein this
Court had observed thus :

"Now it is obvious that if section 197 of the Code of Criminal Procedure is

construed too narrowly it can never be applied, for of course it is no part
of an official's duty to commit an offence and never can be. But it is not the
duty we have to examine so much as the act, because an official act can be
performed in the discharge of official duty as well as in dereliction of it.
The section has content and its language must be given meaning. What it
says is -
"when any public servant ..... is accused of any offence alleged to have
been committed by him while acting or purporting to act in the discharge
of his official duty......"
We have therefore first to concentrate on the word `offence'.
Now an offence seldom consists of a single act. It is usually composed of
several elements and, as a rule, a whole series of acts must be proved
before it can be established. In the present case, the elements alleged
against the second accused are, first, that there was an "entrustment"
 and/or "dominion"; second, that the entrustment and/or dominion was "in
his capacity as a public servant"; third, that there was a "disposal"; and
fourth, that the disposal was "dishonest". Now it is evident that the
entrustment and/or dominion here were in an official capacity, and it is
equally evident that there could in this case be no disposal, lawful or
otherwise, save by an act done or purporting to be done in an official
capacity. Therefore, the act complained of, namely the disposal, could not
have been done in any other way. If it was innocent, it was an official act;
if dishonest, it was the dishonest doing of an official act, but in either event
the act was official because the second accused could not dispose of the
goods save by the doing of an official act, namely officially permitting their
disposal; and that he did. He actually permitted their release and
purported to do it in an official capacity, and apart from the fact that he
did not pretend to act privately, there was no other way in which he could
have done it. Therefore, whatever the intention or motive behind the act
may have been, the physical part of it remained unaltered, so if it was
official in the one case it was equally official in the other, and the only
difference would lie in the intention with which it was done: in the one
event, it would be done in the discharge of an official duty and in the
other, in the purported discharge of it.
The act of abetment alleged against him stands on the same footing, for his
part in the abetment was to permit the disposal of the goods by the doing
of an official act and thus "willfully suffer" another person to use them
dishonestly: section 405 of the Indian Penal Code. In both cases, the
"offence" in his case would be incomplete without proving the official act.
We therefore hold that section 197 of the Code of Criminal Procedure
applies and that sanction was necessary, and as there was none the trial is
vitiated from the start. We therefore quash the proceedings against the
second accused as also his conviction and sentence."

12. This Court has observed in Shreekantiah Ramayya (supra) that cases have
to be decided on their own facts.
13. Reliance has also been placed on a decision of this Court in Matajog Dobey
v. H.C. Bhari [1955 (2) SCR 925] in which a complaint was filed under sections
323, 341, 342, and 109, Cr.P.C. Summons were issued to accused persons under
section 323. An objection was taken by accused Bhari as to want of sanction
under section 197 Cr.P.C. It was upheld and all the accused were discharged.
The High Court affirmed the order of the Presidency Magistrate. This Court
held that where in pursuance of a search warrant issued under section 6 of the
Taxation on Income (Investigation Commission) Act, 1947, they were required
to open the entrance door and on being challenged by the Darwan they tied
him with a rope, causing him injuries and alleged to have assaulted the
proprietor mercilessly with the help of two policemen. In the facts of the case it
was held by this Court that sanction was necessary as the assault and the use of
criminal force related to the performance of the official duties of the accused
within the meaning of section 197 Cr.P.C. In the matter of grant of sanction
under section 197 Cr.P.C., the offence alleged to have been committed by the
accused must have something to do with the accused, with the discharge of
official duty. In other words, there must be a reasonable connection between
the act and the discharge of official duty. That must have a relation to the duty
that the accused could lay a reasonable claim, but not a pretended or fanciful
claim, that he did it in the course of the performance of his duty. The question
of sanction may arise at any stage of prosecution, the Constitution Bench also
held that the facts subsequently coming to light on a police or judicial inquiry
or even in the course of the prosecution evidence at the trial, may establish the
necessity for sanction. Whether sanction is necessary or not, may have to be
determined from stage to stage. This Court has held thus :

"Is the need for sanction to be considered as soon as the complaint is

lodged and on the allegations therein contained? At first sight, it seems as
though there is some support for this view in Hori Ram's case and also in
Sarjoo Prasad v. The King-Emperor, (1945) F.C.R. 227. Sulaiman, J. says that
as the prohibition is against the institution itself, its applicability must be
judged in the first instance at the earliest stage of institution.
Varadachariar, J. also states that the question must be determined with
reference to the nature of the allegations made against the public servant
in the criminal proceeding. But a careful perusal of the later parts of their
judgments shows that they did not intent to lay down any such
proposition. Sulaiman, J. refers (at page 179) to the prosecution case as
disclosed by the complaint or the police report and he winds up the
discussion in these words: "Of course, if the case as put forward fails or the
defence establishes that the act purported to be done is in execution of
duty, the proceedings will have to be dropped and the complaint dismissed
on that ground". The other learned Judge also states at page 185, "At this
stage we have only to see whether the case alleged against the appellant or
sought to be proved against him relates to acts done or purporting to be
done by him in the execution of his duty". It must be so. The question may
arise at any stage of the proceedings. The complaint may not disclose that
the act constituting the offence was done or purported to be done in the
discharge of official duty; but facts subsequently coming to light on a
police or judicial inquiry or even in the course of the prosecution evidence
at the trial, may establish the necessity for sanction. Whether sanction is
 necessary or not may have to be determined from stage to stage. The
necessity may reveal itself in the course of the progress of the case."

14. In Bhappa Singh v. Ram Pal Singh and Ors., 1981 (Supp) SCC 12 there was
firing by the Customs party as they were resisted in carrying out a raid
peacefully and an injury was sustained by the Customs party. This Court
considered grant of protection under section 108 of the Gold (Control) Act, 1968
providing immunity to an officer for official act done in good faith under the
Act. This Court has discussed the matter thus :

"6. In view of the circumstances mentioned in the last paragraph, there is

little room for doubt that the Customs party was not out to commit dacoity
either in the jewellery shop or the chaubara, that they also committed no
trespass into either of those places, but that the purpose of the raid was to
find out if any illegal activity was being carried on therein. The presence
of two licensed Gold-smiths in the chaubara speaks volumes in that behalf.
It may further be taken for granted that the Customs party was
manhandled before they themselves resorted to violence, because there
was no reason for them to open fire unless they were resisted in the
carrying out of the raid peacefully.
7. Even though what we have just stated is a general prima facie
impression that we have formed at this stage on the materials available to
us at present, it may not be possible to come to a conclusive finding about
the falsity or otherwise of the complaint. But then we think that it would
amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of
this type are allowed to be pursued to their logical conclusion, i.e., to that
of conviction or acquittal. In this view of the matter we do not feel inclined
to upset the impugned order, even though perhaps the matter may have
required further evidence before quashing of the complaint could be held
to be fully justified. The appeal is accordingly dismissed."

15. In State of Maharashtra v. Dr. Budhikota Subbarao, 1993 (3) SCC 339, this
Court considered grant of sanction under section 197 on complaint of
espionage. It was held that it was during the discharge of official duty the act
was done, also considering the provisions contained in the Official Secrets Act,
1923 and the Atomic Energy Act, 1962, sanction for prosecution under section
197 Cr.P.C. was necessary. The meaning of the `official act' has been considered
by this Court and held thus :

"6. Such being the nature of the provision the question is how should the
expression, `any offence alleged to have been 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. Saha v. M.S. Kochar,
(1979) 4 SCC 177 it was held: (SCC pp. 184-85, para 17)
"The words `any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty' employed in
Section 197(1) of the Code, are capable of a narrow as well as a wide
interpretation. If these words are construed too narrowly, the section will
be rendered altogether sterile, for, `it is no part of an official duty to
commit an offence, and never can be'. In the wider sense, these words will
take under their umbrella every act constituting an offence, committed in
the course of the same transaction in which the official duty is performed
or purports to be performed. The right approach to the import of these
words lies between these two extremes. While on the one hand, it is not
every offence committed by a public servant while engaged in the
performance of his official duty, which is entitled to the protection of
Section 197(1), an act constituting an offence, directly and reasonably
connected with his official duty will require sanction for prosecution
under the said provision."
Use of the expression, `official duty' implies that the act or omission must
have been done by the public servant in course of his service and that it
should have been in discharge of his duty. The section does not extend its
protective cover to every act or omission done by a public servant in
service but restricts its scope of operation to only those acts or omissions
which are done by a public servant in discharge of official duty. In P.
Arulswami v. State of Madras, (1967) 1 SCR 201 this Court after reviewing
the authorities right from the days of Federal Court and Privy Council
held:
"... It is not therefore every offence committed by a public 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 Section 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
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 be limited to those
duties which are discharged in course of duty. But once any act or
omission has been found to have been committed by a public servant in
discharge of his duty then it must be given liberal and wide construction
so far its official nature is concerned. For instance a public servant is not
entitled to indulge in criminal activities. To that extent the section has to
be construed narrowly and in a restricted manner. But once it 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 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
Matajog Dubey v. H.C. Bhari, AIR 1956 SC 44 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 in the course of the performance of his duty."
(emphasis supplied)

If on facts, therefore, it is prima facie found that the act or omission for
which the accused was charged had reasonable connection with discharge
of his duty then it must be held to be official to which applicability of
Section 197 of the Code cannot be disputed."
16. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, 1997 (7) SCC 622, a
question came up for grant of sanction under section 6 of the Prevention of
Corruption Act, 1988 in which this Court had observed that the State
Government or any other authority has a right to consider the facts of each
case and to decide whether a public servant can be prosecuted or not. Thus
there is a discretion to grant or not to grant the sanction. This Court has held
thus :

"14. From a perusal of Section 6, it would appear that the Central or the
State Government or any other authority (depending upon the category of
the public servant) has the right to consider the facts of each case and to
decide whether that "public servant" is to be prosecuted or not. Since the
section clearly prohibits the courts from taking cognizance of the offences
specified therein, it envisages that the Central or the State Government or
the "other authority" has not only the right to consider the question of
grant of sanction, it has also the discretion to grant or not to grant
sanction."

17. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors.,
[1998 (1) SCC 205] this Court has laid down that the accused is not debarred
from producing the relevant documentary materials which can be legally
looked into without any formal proof to support the stand that the acts
complained of were committed in exercise of his jurisdiction or purported
jurisdiction as a public servant in discharge of his official duty thereby
requiring sanction of the appropriate authority. This Court held that at a
preliminary stage such questions are not required to be considered because
accused has not yet led evidence in support of their case on merits. This Court
has held thus:

"23. Mr. Sibal's contention is based upon the observations made by this
Court in Mathew case (1992) 1 SCC 217 wherein this Court had observed
that even after issuance of process under Section 204 of the Code if the
accused appears before the Magistrate and establishes that the allegations
in the complaint petition do not make out any offence for which process
has been issued then the Magistrate will be fully within his powers to drop
the proceeding or rescind the process and it is in that connection the Court
had observed "if the complaint on the very face of it does not disclose any
offence against the accused". The aforesaid observation made in the
context of a case made out by the accused either for recall of process
already issued or for quashing of the proceedings may not apply fully to a
case where the sanction under Section 197(1) of the CrPC is pleaded as a
bar for taking cognizance. 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 Government concerned in a
case where the acts complained of are alleged to have been committed by
a public servant in discharge of his official duty or purporting to be in the
discharge of his official 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.
24. In Matajog case AIR 1956 SC 44 the Constitution Bench held that the
complaint may not disclose all the facts to decide the question of
applicability of Section 197, but facts subsequently coming either on police
or judicial inquiry or even in the course of prosecution evidence may
establish the necessity for sanction. In B. Saha case (1979) 4 SCC 177 the
Court observed that instead of confining itself to the allegations in the
complaint the Magistrate can take into account all the materials on the
record at the time when the question is raised and falls for consideration.
In Pukhraj case (1973) 2 SCC 701 this Court observed that whether sanction
is necessary or not may depend from stage to stage. In Matajog case
(supra) the Constitution Bench had further observed that the necessity for
sanction may reveal itself in the course of the progress of the case and it
would be open to the accused to place the material on record during the
course of trial for showing what his duty was and also the acts complained
of were so interrelated with his official duty so as to attract the protection
afforded by Section 197 of the Code of Criminal Procedure. This being the
position it would be unreasonable to hold that the accused even though
might have really acted in discharge of his official duty for which the
complaints have been lodged yet he will have to wait till the stage under
sub-section (4) Section 246 of the Code is reached or at least till he will be
able to bring in relevant materials while cross-examining the prosecution
witnesses. On the other hand it would be logical to hold that the matter
being one dealing with the jurisdiction of the court to take cognizance, the
accused would be entitled to produce the relevant and material documents
which can be admitted into evidence without formal proof, for the limited
consideration of the court whether the necessary ingredients to attract
 Section 197 of the Code have been established or not. The question of
applicability of Section 197 of the Code and the consequential ouster of
jurisdiction of the court to take cognizance without a valid sanction is
genetically different from the plea of the accused that the averments in the
complaint do not make out an offence and as such the order of cognizance
and/or the criminal proceedings be quashed. In the aforesaid premises we
are of the considered opinion that an accused is not debarred from
producing the relevant documentary materials which can be legally
looked into without any formal proof, in support of the stand that the acts
complained of were committed in exercise of his jurisdiction or purported
jurisdiction as a public servant in discharge of his official duty thereby
requiring sanction of the appropriate authority.
25. Considering the facts and circumstances of the case, it prima facie
appears to us that the alleged acts on the part of the respondents were
purported to be in the exercise of official duties. Therefore, a case of
sanction under Section 197 Criminal Procedure Code has been prima facie
made out. Whether it was unjustified on the part of the respondents to
take recourse to the actions alleged in the complaint or the respondents
were guilty of excesses committed by them will be gone into in the trial
after the required sanction is obtained on the basis of evidences adduced
by the parties. At this stage, such questions are not required to be
considered because the accused have not yet led evidence in support of
their case on merits."

18. In Gauri Shankar Prasad v. State of Bihar and Anr., 2000 (5) SCC 15 this
Court has laid down the test to determine whether the alleged action which
constituted an offence has a reasonable and rational nexus with the official
duties required to be discharged by the public servant. The appellant in his
official capacity as Sub-Divisional Magistrate had gone to the place of the
complainant for the purpose of removal of encroachment. It was when
entering the chamber of the complainant, he used filthy language and dragged
him out of his chamber. It was held that the act has a reasonable nexus with
the official duty of the appellant. Hence no criminal proceedings could be
initiated without obtaining sanction. It was observed thus:

"8. What offences can be held to have been committed by a public servant
while acting or purporting to act in the discharge of his official duties is a
vexed question which has often troubled various courts including this
Court. Broadly speaking, it has been indicated in various decisions of this
Court that the alleged action constituting the offence said to have been
committed by the public servant must have a reasonable and rational
 nexus with the official duties required to be discharged by such public
servant.
xxxxx
14. Coming to the facts of the case in hand, it is manifest that the appellant
was present at the place of occurrence in his official capacity as Sub-
Divisional Magistrate for the purpose of removal of encroachment from
government land and in exercise of such duty, he is alleged to have
committed the acts which form the gravamen of the allegations contained
in the complaint lodged by the respondent. In such circumstances, it
cannot but be held that the acts complained of by the respondent against
the appellant have a reasonable nexus with the official duty of the
appellant. It follows, therefore, that the appellant is entitled to the
immunity from criminal proceedings without sanction provided under
Section 197 CrPC. Therefore, the High Court erred in holding that Section
197 CrPC is not applicable in the case."

19. It has been laid down in Gauri Shankar Prasad (supra) that in case offence
has been committed while discharging his duties by an accused and there is a
reasonable nexus with official duties, if answer is in the affirmative then
sanction is required. However it would depend upon the facts and
circumstances of each case whether there is a reasonable nexus with official
duties to be discharged.
20. In Abdul Wahab Ansari v. State of Bihar and Anr. 2000 (8) SCC 500 firing
was made by police inspector while removing encroachments due to which
one person was killed and two were injured. A private complaint was filed
under sections 302, 307 etc. on which Magistrate issued summons to the police
inspector. A challenge was made to the cognizance taken by the Magistrate by
filing a petition under section 482 before the High Court. The High Court held
that the question of sanction can be raised at the time of framing of the charge
and decision in Birendra K. Singh v. State of Bihar, 2000 (8) SCC 498 has been
held not to be a good law. This Court has observed that the question of sanction
under section 497 Cr.P.C. has to be considered at the earlier stage of the
proceedings. Ultimately on facts it was held that the police inspector was
entitled to protection and without sanction he could not have been prosecuted.
Thus the criminal proceedings instituted without sanction were quashed.
21. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau of
Investigation, 2001 (6) SCC 704 this Court considered the provisions contained
in section 197(1) of the Code of Criminal Procedure whether an offence
committed "while acting or purporting to act in the discharge of his official
duty" and laid down that the test to determine the aforesaid is that the act
complained of must be an offence and must be done in discharge of official
duty. In any view of the matter there must be a reasonable connection between
the act and the official duty. It does not matter that the act exceeds what is
strictly necessary for the discharge of the official duty, since that question
would arise only later when the trial proceeds. However no sanction is
required where there is no such connection and the official status furnishes
only the occasion or opportunity for the acts. The claim of the accused that the
act was done reasonably and not in pretended course of his official duty can be
examined during the trial by giving an opportunity to the defence to prove it.
In such cases the question of sanction should be left open to be decided after
conclusion of the trial. The decision in Abdul Wahab Ansari (supra) has also
been taken into consideration by this Court. In P.K. Pradhan (supra) this Court
has laid down thus :

"5. The legislative mandate engrafted in sub-section (1) of Section 197

debarring a court from taking cognizance of an offence except with the
previous sanction of the Government concerned in a case where the acts
complained of are alleged to have been committed by a public servant in
discharge of his official duty or purporting to be in the discharge of his
official duty and such public servant is not removable from 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. Different tests have been laid down in decided cases to
ascertain the scope and meaning of the relevant words occurring in
Section 197 of the Code: "any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official duty".
The offence alleged to have been committed must have something to do, or
must be related in some manner, with the discharge of official duty. No
question of sanction can arise under Section 197, unless the act
complained of is an offence; the only point for determination is whether it
was committed in the discharge of official duty. There must be a
reasonable connection between the act and the official duty. It does not
matter even if the act exceeds what is strictly necessary for the discharge
of the duty, as this question will arise only at a later stage when the trial
proceeds on the merits. What a court has to find out is whether the act and
the official duty are so interrelated that one can postulate reasonably that
it was done by the accused in the performance of official duty, though,
possibly in excess of the needs and requirements of the situation.
xxxxx
15. Thus, from a conspectus of the aforesaid decisions, it will be clear that
for claiming protection under Section 197 of the Code, it has to be shown
 by the accused that there is reasonable connection between the act
complained of and the discharge of official duty. An official act can be
performed in the discharge of official duty as well as in dereliction of it.
For invoking protection under Section 197 of the Code, the acts of the
accused complained of must be such that the same cannot be separated
from the discharge of official duty, but if there was no reasonable
connection between them and the performance of those duties, the official
status furnishes only the occasion or opportunity for the acts, then no
sanction would be required. If the case as put forward by the prosecution
fails or the defence establishes that the act purported to be done is in
discharge of duty, the proceedings will have to be dropped. It is well
settled that question of sanction under Section 197 of the Code can be
raised any time after the cognizance; may be immediately after cognizance
or framing of charge or even at the time of conclusion of trial and after
conviction as well. But there may be certain cases where it may not be
possible to decide the question effectively without giving opportunity to
the defence to establish that what he did was in discharge of official duty.
In order to come to the conclusion whether claim of the accused that the
act that he did was in course of the performance of his duty was a
reasonable one and neither pretended nor fanciful, can be examined
during the course of trial by giving opportunity to the defence to establish
it. In such an eventuality, the question of sanction should be left open to be
decided in the main judgment which may be delivered upon conclusion of
the trial.
16. In the present case, the accused is claiming that in awarding contract
in his capacity as Secretary, Department of Rural Development,
Government of Sikkim, he did not abuse his position as a public servant
and works were awarded in favour of the contractor at a rate permissible
under law and not low rates. These facts are required to be established
which can be done at the trial. Therefore, it is not possible to grant any
relief to the appellant at this stage. However, we may observe that during
the course of trial, the court below shall examine this question afresh and
deal with the same in the main judgment in the light of the law laid down
in this case without being prejudiced by any observation in the impugned
orders."

22. In State of H.P. v. M.P. Gupta, 2004 (2) SCC 349 this Court has considered the
provisions contained under section 197 and has observed that the same are
required to be construed strictly while determining its applicability to any act
or omission during the course of his service. Once any act or omission is found
to have been committed by a public servant in discharge of his duty, this Court
held that liberal and wide construction is to be given to the provisions so far as
its official nature is concerned. This Court has held thus :

"11. Such being the nature of the provision, the question is how should the
expression, "any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty", be
understood? What does it mean? "Official" according to the dictionary,
means pertaining to an office, and official act or official duty means an act
or duty done by an officer in his official capacity."

23. In State of Orissa and Ors. v. Ganesh Chandra Jew, 2004 (8) SCC 40 this Court
has held that protection under section 197 is available only when the act done
by the public servant is reasonably connected with the discharge of his official
duty and is not merely a cloak for doing the objectionable act. The test to
determine a reasonable connection between the act complained of and the
official duty is that even in case the public servant has exceeded in his duty, if
there exists a reasonable connection it will not deprive him of the protection.
This Court has also observed that there cannot be a universal rule to determine
whether there is a reasonable connection between the act done and the official
duty nor is it possible to lay down any such rule. It was held thus :

"7. The protection given under Section 197 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. If in doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act and the performance
of the official duty, the excess will not be a sufficient ground to deprive the
public servant of the protection. The question is not as to the nature of the
offence such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant, but
whether it was committed by a public servant acting or purporting to act
as such in the discharge of his official capacity. Before Section 197 can be
invoked, it must be shown that the official concerned was accused of an
offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duties. It is not the duty which
 requires examination so much as the act, because the official act can be
performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of the official
duties of the public servant concerned. 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. This aspect makes it clear that the concept of Section 197
does not get immediately attracted on institution of the complaint case."

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

"12. If on facts, therefore, it is prima facie found that the act or omission
for which the accused was charged had reasonable connection with
discharge of his duty then it must be held to be official to which
applicability of Section 197 of the Code cannot be disputed.
xxxxx
15. The question relating to the need of sanction under Section 197 of the
Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any
stage of the proceeding. The question whether sanction is necessary or not
may have to be determined from stage to stage. Further, in cases where
 offences under the Act are concerned, the effect of Section 197, dealing
with the question of prejudice has also to be noted."

25. In State of Karnataka through CBI v. C. Nagarajaswamy, 2005 (8) SCC 370
this Court has considered the question of grant of sanction and it was held that
grant of proper sanction by a competent authority is a sine qua non for taking
cognizance of the offence. Whether proper sanction is accorded or not,
ordinarily it should be dealt with at the stage of taking cognizance but if the
cognizance of the offence is taken erroneously and the same comes to the
notice of the court at a later stage, a finding to that effect is permissible and
such a plea can be taken for the first time before an appellate court. In case
sanction is held to be illegal then the trial would be held to have been rendered
illegal and without jurisdiction, and there can be initiation of fresh trial after
the accused was discharged due to invalid sanction for prosecution and a fresh
trial was expedited.
26. In Sankaran Moitra v. Sadhna Das and Anr., 2006 (4) SCC 584 it was
considered that sanction under section 197 Cr.P.C. is a condition precedent
though the question as to applicability of section 197 may arise not necessarily
at the inception but even at a subsequent stage. Request to postpone the
decision on the said question in the instant case, it was held, in the facts of the
case was not accepted. The complaint disclosed that the deceased was a
supporter of a political party beaten to death by the police at the instance of
appellant police officer near a polling booth on an election day. On the facts it
was held that the appellant committed the act in question during the course of
performance of his duty and sanction under section 197(1) was necessary for
his prosecution. This Court has observed thus :

"25. The High Court has stated that killing of a person by use of excessive
force could never be performance of duty. It may be correct so far as it
goes. But the question is whether that act was done in the performance of
duty or in purported performance of duty. If it was done in performance
of duty or purported performance of duty, Section 197(1) of the Code
cannot be bypassed by reasoning that killing a man could never be done in
an official capacity and consequently Section 197(1) of the Code could not
be attracted. Such a reasoning would be against the ratio of the decisions
of this Court referred to earlier. The other reason given by the High Court
that if the High Court were to interfere on the ground of want of sanction,
people will lose faith in the judicial process, cannot also be a ground to
dispense with a statutory requirement or protection. Public trust in the
institution can be maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently, in
accordance with law and the established procedure and without delay.
 Dispensing with of jurisdictional or statutory requirements which may
ultimately affect the adjudication itself, will itself result in people losing
faith in the system. So, the reason in that behalf given by the High Court
cannot be sufficient to enable it to get over the jurisdictional requirement
of a sanction under Section 197(1) of the Code of Criminal Procedure. We
are therefore satisfied that the High Court was in error in holding that
sanction under Section 197(1) was not needed in this case. We hold that
such sanction was necessary and for want of sanction the prosecution
must be quashed at this stage. It is not for us now to answer the
submission of learned counsel for the complainant that this is an
eminently fit case for grant of such sanction."

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

"82. 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 a reasonable connection,
interrelationship or is inseparably connected with discharge of his duty, he
becomes entitled for protection of sanction.
83. If the law requires sanction, and the court proceeds against a public
servant without sanction, the public servant has a right to raise the issue
of jurisdiction as the entire action may be rendered void ab initio for want
of sanction. Sanction can be obtained even during the course of trial
 depending upon the facts of an individual case and particularly at what
stage of proceedings, requirement of sanction has surfaced. The question
as to whether the act complained of, is done in performance of duty or in
purported performance of duty, is to be determined by the competent
authority and not by the court. The legislature has conferred "absolute
power" on the statutory authority to accord sanction or withhold the same
and the court has no role in this subject. In such a situation the court
would not proceed without sanction of the competent statutory authority."

29. This Court in D.T. Virupakshappa v. C. Subash, 2015 (12) SCC 231 has
observed that whether sanction is necessary or not, may arise at any stage of
the proceedings and in a given case it may arise at the stage of inception. This
Court has referred to the decision of this Court in Om Prakash v. State of
Jharkhand, 2012 (12) SCC 72 and observed thus :

"5. The question, whether sanction is necessary or not, may arise on any
stage of the proceedings, and in a given case, it may arise at the stage of
inception as held by this Court in Om Prakash v. State of Jharkhand, (2012)
12 SCC 72. To quote: (SCC p. 94, para 41)
"41. The upshot of this discussion is that whether sanction is necessary or
not has to be decided from stage to stage. This question may arise at any
stage of the proceeding. In a given case, it may arise at the inception. There
may be unassailable and unimpeachable circumstances on record which
may establish at the outset that the police officer or public servant was
acting in performance of his official duty and is entitled to protection
given under Section 197 of the Code. It is not possible for us to hold that in
such a case, the court cannot look into any documents produced by the
accused or the public servant concerned at the inception. The nature of the
complaint may have to be kept in mind. It must be remembered that
previous sanction is a precondition for taking cognizance of the offence
and, therefore, there is no requirement that the accused must wait till the
charges are framed to raise this plea.""

30. In Manorama Tiwari and Ors. v. Surendra Nath Rai, 2016 (1) SCC 594 in a
case of death by alleged negligence of Government doctors, it was held that the
sanction for prosecution was necessary. On facts it was held that the appellants
were discharging public duties as they were performing surgery in the
Government hospital. Hence criminal prosecution was not maintainable
without sanction from the State Government.
31. In Shambhoo Nath Misra v. State of U.P. and Ors., 1997 (5) SCC 326 this Court
considered the question when the public servant is alleged to have committed
the offence of fabrication of false record or misappropriation of public funds
etc. Can he be said to have acted in discharge of official duties ? Since it was
not the duty of the public servant to fabricate the false records, it was held that
the official capacity only enabled him to fabricate the records and mis-
apporopriate the public funds hence it was not connected with the course of
same transaction. This Court has also observed that performance of official
duty under the colour of public authority cannot be camouflaged to commit
crime. Public duty may provide him an opportunity to commit crime. The court
during trial or inquiry has to apply its mind and record a finding on the issue
that crime and official duty are integrally connected or not. This Court has held
thus :

"4. .... The protection of sanction is an assurance to an honest and sincere

officer to perform his public duty honestly and to the best of his ability.
The threat of prosecution demoralises the honest officer. The requirement
of the sanction by competent authority or appropriate Government is an
assurance and protection to the honest officer who does his official duty to
further public interest. However, performance of official duty under
colour of public authority cannot be camouflaged to commit crime. Public
duty may provide him an opportunity to commit crime. The Court to
proceed further in the trial or the enquiry, as the case may be, applies its
mind and records a finding that the crime and the official duty are not
integrally connected.
5. The question is when the public servant is alleged to have committed
the offence of fabrication of record or misappropriation of public fund etc.
can he be said to have acted in discharge of his official duties. It is not the
official duty of the public servant to fabricate the false records and
misappropriate the public funds etc. in furtherance of or in the discharge
of his official duties. The official capacity only enables him to fabricate the
record or misappropriate the public fund etc. It does not mean that it is
integrally connected or inseparably interlinked with the crime committed
in the course of the same transaction, as was believed by the learned
Judge. Under these circumstances, we are of the opinion that the view
expressed by the High Court as well as by the trial court on the question of
sanction is clearly illegal and cannot be sustained."

32. In S.K. Zutshi and Anr. v. Bimal Debnath and Anr., 2004 (8) SCC 31 this Court
has emphasized that official duty must have been official in nature. Official
duty implies that the act or omission must have been official in nature. If the
act is committed in the course of service but not in discharge of his duty and
without any justification then the bar under section 197 Cr.P.C. is not attracted.
This Court has laid down thus :
 "9. It has been widened further by extending protection to even those acts
or omissions which are done in purported exercise of official duty. That is,
under the colour of office. Official duty, therefore, implies that the act or
omission must have been done by the public servant in the 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 the course of service. Its operation has to be limited to those
duties which are discharged in the 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 as its official nature is concerned. For instance, a public servant is
not entitled to indulge in criminal activities. To that extent the section has
to be construed narrowly and in a restricted manner. But once it is
established that 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 the course of service but not in
discharge of his duty and without any justification therefor then the bar
under Section 197 of the Code is not attracted."

33. In P.P. Unnikrishnan and Anr. v. Puttiyottil Alikutty and Anr., 2000 (8) SCC
131, law to the same effect as in the above decision has been reiterated. The
police officers kept a person in lock-up for more than 24 hours without
authority and subjected him to third degree treatment. Thus it was held that
such offence was neither covered under section 64(3) of the Kerala Police Act
nor under section 197(1) Cr.P.C.
34. In Satyavir Singh Rathi, Assistant Commissioner of Police and Ors. v. State
through Central Bureau of Investigation 2011 (6) SCC 1, this Court has referred
to the decision in B. Saha's case and laid down that the question of sanction has
to be seen with respect to the stage and material brought on record up to that
stage. Whether allegation of misappropriation is true or false is not to be gone
into at this stage in considering the question whether sanction for prosecution
was or was not necessary. The criminal acts attributed to the accused were
taken as alleged. This Court has observed as under :

"87. Both these judgments were followed in Atma Ram case AIR 1966 SC
1786 where the question was as to whether the action of a police officer in
beating and confining a person suspected of having stolen goods in his
possession could be said to be under colour of duty. It was held as under:
(AIR pp. 1787-88, para 3)
"3. ... The provisions of Sections 161 and 163 of the Criminal Procedure
Code emphasise the fact that a police officer is prohibited from beating or
confining persons with a view to induce them to make statements. In view
of the statutory prohibition it cannot, possibly, be said that the acts
complained of, in this case, are acts done by the respondents under the
colour of their duty or authority. In our opinion, there is no connection, in
this case between the acts complained of and the office of the respondents
and the duties and obligations imposed on them by law. On the other
hand, the alleged acts fall completely outside the scope of the duties of the
respondents and they are not entitled, therefore, to the mantle of
protection conferred by Section 161(1) of the Bombay Police Act."
88. Similar views have been expressed in Bhanuprasad Hariprasad Dave
case AIR 1968 SC 1323 wherein the allegations against the police officer
were of taking advantage of his position and attempting to coerce a person
to give him bribe. The plea of colour of duty was negatived by this Court
and it was observed as under: (AIR p. 1328, para 9)
"9. ... All that can be said in the present case is that the first appellant, a
police officer, taking advantage of his position as a police officer and
availing himself of the opportunity afforded by the letter Madhukanta
handed over to him, coerced Ramanlal to pay illegal gratification to him.
This cannot be said to have been done under colour of duty. The charge
against the second appellant is that he aided the first appellant in his
illegal activity."
xxxxx
94. In B. Saha case (1979) 4 SCC 177 this Court was dealing primarily with
the question as to whether sanction under Section 197 CrPC was required
where a Customs Officer had misappropriated the goods that he had seized
and put them to his own use. While dealing with this submission, it was
also observed as under: (SCC p. 184, para 14)
"14. Thus, the material brought on the record up to the stage when the
question of want of sanction was raised by the appellants, contained a
clear allegation against the appellants about the commission of an offence
under Section 409 of the Penal Code. To elaborate, it was substantially
alleged that the appellants had seized the goods and were holding them in
trust in the discharge of their official duty, for being dealt with or disposed
 of in accordance with law, but in dishonest breach of that trust, they
criminally misappropriated or converted those goods. Whether this
allegation or charge is true or false, is not to be gone into at this stage. In
considering the question whether sanction for prosecution was or was not
necessary, these criminal acts attributed to the accused are to be taken as
alleged."
(emphasis supplied)"

35. This Court has held that in case there is an act of beating a person
suspected of a crime of confining him or sending him away in an injured
condition, it cannot be said that police at that time were engaged in
investigation and the acts were done or intended to be done under the
provisions of law. Act of beating and confining a person illegally is outside the
purview of the duties.
36. In Paramjit Kaur (Mrs.) v. State of Punjab and Ors., (1996) 7 SCC 20, this
Court directed the Director, CBI to appoint an investigation team headed by a
responsible officer to conduct investigation in the kidnapping and
whereabouts of the human rights activist and also to appoint a high-powered
team to investigate into the alleged human rights violations.
37. The principles emerging from the aforesaid decisions are summarized
hereunder :

I. Protection of sanction is an assurance to an honest and sincere officer to

perform his duty honestly and to the best of his ability to further public
duty. However, authority cannot be camouflaged to commit crime.
II. Once act or omission has been found to have been committed by public
servant in discharging his duty it must be given liberal and wide
construction so far its official nature is concerned. Public servant is not
entitled to indulge in criminal activities. To that extent Section 197 CrPC
has to be construed narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in his duty, if
there is reasonable connection it will not deprive him of protection under
section 197 Cr.P.C. There cannot be a universal rule to determine whether
there is reasonable nexus between the act done and official duty nor it is
possible to lay down such rule.
IV. In case the assault made is intrinsically connected with or related to
performance of official duties sanction would be necessary under Section
197 CrPC, but such relation to duty should not be pretended or fanciful
claim. The offence must be directly and reasonably connected with official
 duty to require sanction. It is no part of official duty to commit offence. In
case offence was incomplete without proving, the official act, ordinarily
the provisions of Section 197 CrPC would apply.
V. In case sanction is necessary it has to be decided by competent authority
and sanction has to be issued on the basis of sound objective assessment.
The court is not to be a sanctioning authority.
VI. Ordinarily, question of sanction should be dealt with at the stage of
taking cognizance, but if the cognizance is taken erroneously and the same
comes to the notice of Court at a later stage, finding to that effect is
permissible and such a plea can be taken first time before appellate Court.
It may arise at inception itself. There is no requirement that accused must
wait till charges are framed.
VII. Question of sanction can be raised at the time of framing of charge and
it can be decided prima facie on the basis of accusation. It is open to decide
it afresh in light of evidence adduced after conclusion of trial or at other
appropriate stage.
VIII. Question of sanction may arise at any stage of proceedings. On a
police or judicial inquiry or in course of evidence during trial. Whether
sanction is necessary or not may have to be determined from stage to
stage and material brought on record depending upon facts of each case.
Question of sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the progress of the
case and it would be open to accused to place material during the course
of trial for showing what his duty was. Accused has the right to lead
evidence in support of his case on merits.
IX. In some case it may not be possible to decide the question effectively
and finally without giving opportunity to the defence to adduce evidence.
Question of good faith or bad faith may be decided on conclusion of trial.

38. In the instant cases, the allegation as per the prosecution case it was a case
of fake encounter or death caused by torture whereas the defence of the
accused person is that it was a case in discharge of official duty and as the
deceased was involved in the terrorist activities and while maintaining law
and order the incident has taken place. The incident was in the course of
discharge of official duty. Considering the aforesaid principles in case the
version of the prosecution is found to be correct there is no requirement of any
sanction. However it would be open to the accused persons to adduce the
evidence in defence and to submit such other materials on record indicating
that the incident has taken place in discharge of their official duties and the
orders passed earlier would not come in the way of the trial court to decide the
question afresh in the light of the aforesaid principles from stage to stage or
even at the time of conclusion of the trial at the time of judgment. As at this
stage it cannot be said which version is correct. The trial court has prima facie
to proceed on the basis of prosecution version and can re-decide the question
afresh in case from the evidence adduced by the prosecution or by the accused
or in any other manner it comes to the notice of the court that there was a
reasonable nexus of the incident with discharge of official duty, the court shall
re-examine the question of sanction and take decision in accordance with law.
The trial to proceed on the aforesaid basis. Accordingly, we dispose of the
appeals/writ petition in the light of the aforesaid directions.