{"id":15017,"date":"2025-03-23T16:04:45","date_gmt":"2025-03-23T10:34:45","guid":{"rendered":"https:\/\/service-public.in\/?p=15017"},"modified":"2025-03-23T16:18:46","modified_gmt":"2025-03-23T10:48:46","slug":"%e0%ae%a4%e0%ae%a9%e0%ae%bf-%e0%ae%a8%e0%ae%aa%e0%ae%b0%e0%af%8d-%e0%ae%ae%e0%af%80%e0%ae%a4%e0%af%81-%e0%ae%aa%e0%af%8a%e0%ae%af%e0%af%8d-%e0%ae%b5%e0%ae%b4%e0%ae%95%e0%af%8d%e0%ae%95%e0%af%81","status":"publish","type":"post","link":"https:\/\/service-public.in\/?p=15017","title":{"rendered":"\u0ba4\u0ba9\u0bbf \u0ba8\u0baa\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0baa\u0bca\u0baf\u0bcd \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0baa\u0bcb\u0b9f\u0bc1\u0bae\u0bcd \u0baa\u0bcb\u0bb2\u0bc0\u0b9a\u0bbe\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0ba4\u0bca\u0b9f\u0bb0 \u0b85\u0bb0\u0b9a\u0bbf\u0ba9\u0bcd \u0b85\u0ba9\u0bc1\u0bae\u0ba4\u0bbf \u0ba4\u0bc7\u0bb5\u0bc8 \u0b87\u0bb2\u0bcd\u0bb2\u0bc8, \u0b89\u0b9a\u0bcd\u0b9a \u0ba8\u0bc0\u0ba4\u0bbf\u0bae\u0ba9\u0bcd\u0bb1\u0bae\u0bcd."},"content":{"rendered":"

\u0ba4\u0ba9\u0bbf \u0ba8\u0baa\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0baa\u0bca\u0baf\u0bcd \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0baa\u0bcb\u0b9f\u0bc1\u0bae\u0bcd \u0baa\u0bcb\u0bb2\u0bc0\u0b9a\u0bbe\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0ba4\u0bca\u0b9f\u0bb0 \u0b85\u0bb0\u0b9a\u0bbf\u0ba9\u0bcd \u0b85\u0ba9\u0bc1\u0bae\u0ba4\u0bbf \u0ba4\u0bc7\u0bb5\u0bc8 \u0b87\u0bb2\u0bcd\u0bb2\u0bc8, \u0b89\u0b9a\u0bcd\u0b9a \u0ba8\u0bc0\u0ba4\u0bbf\u0bae\u0ba9\u0bcd\u0bb1\u0bae\u0bcd.<\/span><\/p>\n

IN THE SUPREME COURT OF INDIA
\nCRIMINAL APPELLATE JURISDICTION
\nCRIMINAL APPEAL NOS. 5267-5268 OF 2024
\n(Arising out of S.L.P. (Crl.) Nos. 8239-8240 of 2018)<\/p>\n

OM PRAKASH YADAV …APPELLANT(S)<\/p>\n

VERSUS<\/p>\n

NIRANJAN KUMAR UPADHYAY & ORS …RESPONDENT(S)<\/p>\n

J U D G M E N T<\/p>\n

Page 2 of 77<\/p>\n

J.B. PARDIWALA, J. :-<\/p>\n

1. Leave granted.<\/p>\n

2. These appeals arise out of the common Judgment and Order passed by a
\nlearned Single Judge of the High Court of Judicature at Allahabad dated
\n19.04.2018 in Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494
\nof 2009 respectively filed by the respondent nos. 1, 3, 4 and 5 respectively
\nunder Section 482 of the Code of Criminal Procedure, 1973 (for short, the
\n\u201cCrPC\u201d) whereby the High Court allowed the applications and quashed the
\nproceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as
\nwell as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others)
\npending before the CJM, Firozabad, both arising out of Case Crime No. 617
\nof 2007 registered for the offence punishable under Sections 147, 148, 149,
\n307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for
\nshort, the \u201cIPC\u201d) with the Dakshin Police Station, District Firozabad, Uttar
\nPradesh.<\/p>\n

A. FACTUAL MATRIX<\/p>\n

3. On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the \u201cappellant\u201d)
\nlodged a First Information Report (hereinafter, \u201cFIR\u201d) as Case Crime No. 617
\nof 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307<\/p>\n

Page 3 of 77
\nof IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh,
\nagainst Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit,
\nSanjay Dixit and three others. The FIR alleged that the appellant\u2019s brother,
\nSuman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad,
\nwas killed and his brother\u2019s son Harsh aged about 4 1\u20442 years was grievously
\ninjured by the aforesaid accused persons by indiscriminately firing with their
\nhandguns near the Suhagnagar Crossing, at 08:30 am, on 12.10.2007. The
\nappellant claimed that the incident was witnessed by him and several others.<\/p>\n

4. On the same day, another FIR was registered as Case Crime No. 967 of 2007
\nat the Murar Police Station, Gwalior, Madhya Pradesh, for the offence
\npunishable under Section 34 of the Madhya Pradesh Excise Act, 1915
\n(hereinafter, the \u201cExcise Act\u201d) against Ashok Dixit who is the main accused
\nof Case Crime No. 617 of 2007. The FIR which was lodged by Head Constable
\nRam Baran Singh Yadav (hereinafter, \u201crespondent no.5\u201d) stated that based
\non the information received from an informant while patrolling the area, the
\naccused Ashok Dixit was arrested for carrying 12 bottles of illegal foreign
\nliquor near the Thatipur Crossing. It was stated therein that the respondent no.
\n5 along with A.S.I. Ram Prakash Gunkar (hereinafter, \u201crespondent no. 4\u201d)
\nand Head Constable Vijay Bahadur Singh (hereinafter, \u201crespondent no. 3\u201d)
\nof the Thatipur Chauki, Murar Police Station, had seized the illegal liquor and
\narrested the accused at around 09:30 am on 12.10.2007. It was further added<\/p>\n

Page 4 of 77
\nthat the accused, Ashok Dixit, was later released on bail by the Station House
\nOfficer (hereinafter, \u201cSHO\u201d), D.S. Khushawa of the Murar Police Station, on
\nthe same day, upon furnishing the necessary surety since the offence under
\nSection 34 of the Excise Act was a bailable one. On 26.10.2007, the concerned
\nIO is said to have submitted a Charge Sheet in connection with Case Crime
\nNo. 967 of 2007 against Ashok Dixit before the Chief Judicial Magistrate
\n(hereinafter, \u201cCJM\u201d), Gwalior.<\/p>\n

5. The Investigating Officer (hereinafter, \u201cIO\u201d) at Dakshin, Firozabad undertook
\nfurther investigation and recorded the statements of several witnesses under
\nSection 161 CrPC in connection with Case Crime No. 617 of 2007. On
\n05.01.2008, the Charge Sheet No. 3 of 2008 was submitted before the CJM,
\nFirozabad, against 12 persons namely Ashok Dixit, Pappu Dixit, Sanjay Dixit,
\nSurender Singh Gurjar, Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu,
\nSuresh, Pancham, Rajesh and Devender. However, the charge sheet stated that
\nthe investigation against Niranjan Kumar Upadhyay (hereinafter, \u201crespondent
\nno. 1\u201d), respondent no.3, respondent no. 4, respondent no. 5 and two other
\nindividuals in regard to the FIR registered for the offence under Section 34 of
\nthe Excise Act in Murar, Gwalior allegedly for the purpose of shielding the
\naccused, Ashok Dixit, was still pending.<\/p>\n

6. Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded the
\nstatements of SHO D.S. Khushawa, respondent no. 3, respondent no. 4 and<\/p>\n

Page 5 of 77
\nrespondent no. 5 respectively of the Murar Police Station, Gwalior under
\nSection 161 of CrPC.<\/p>\n

7. Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad moved an
\napplication before the CJM, Gwalior, Madhya Pradesh, requesting that the
\nproceedings in Case No. 15003 of 2007 relating to the Case Crime No. 967 of
\n2007 under Section 34 of the Excise Act filed against the accused Ashok Dixit,
\npending before him, be stayed. The application alleged that the respondent no.
\n1 who was posted in Gwalior as Town Inspector (for short, \u201cTI\u201d) was a relative
\nof the accused Ashok Dixit. It was further alleged that the respondent nos. 1,
\n3, 4 and 5 respectively had conspired to shield the accused from the offence of
\nmurder by creating a bogus case under Section 34 of the Excise Act with the
\nsole object of providing the accused with an alibi for the crime alleged to have
\nbeen committed in Firozabad. The incident in Firozabad occurred at 08:30 am
\nwhile the incident in Gwalior occurred at 09:30 am on the same day. The
\ndistance between Gwalior and Firozabad being 160 kilometers, the same could
\nnot have been covered in a duration of one hour by road. The application stated
\nthat, since the accused, Ashok Dixit, might confess his guilt in connection with
\nthe offence under Section 34 of the Excise Act with a view to save himself
\nfrom the offence of murder, the proceedings in Case Crime No. 617 of 2007
\npending before the CJM, Firozabad might get adversely affected if the
\nproceedings in Case No. 15003 of 2007 were allowed to be continued.<\/p>\n

Page 6 of 77
\n8. Upon due consideration of the aforesaid application, the CJM, Gwalior vide
\nits order dated 05.02.2008, directed the SHO of the Murar Police Station,
\nGwalior, to furnish a report before the Court. On 12.02.2008, the statements
\nof respondent nos. 3, 4 and 5 respectively, were recorded by the SHO of the
\nMurar Police Station, Gwalior and an enquiry report was furnished on
\n17.02.2008 before the CJM, Gwalior. Upon perusal of the enquiry report, the
\nCJM, Gwalior vide its order dated 23.02.2008 rejected the application dated
\n20.01.2008 filed by the IO at Dakshin, Firozabad, as being baseless.<\/p>\n

9. On 14.04.2008, the IO at Dakshin, Firozabad filed an application before the
\nCJM, Firozabad for the issuance of non-bailable warrant against the
\nrespondent nos. 1, 3, 4 and 5 respectively along with two other persons. In
\npursuance of the said application, on 21.04.2008, the CJM, Firozabad issued a
\nnon-bailable warrant against the aforesaid 6 accused which included the
\nrespondent nos. 1, 3, 4 and 5 respectively, herein. However, it is the case of
\nthe IO at Firozabad that the respondent nos. 1, 3, 4 and 5 were absconding and
\ntherefore, proceedings under Sections 82 and 83 CrPC respectively were also
\ninitiated and completed against them.<\/p>\n

10.On 02.05.2008, the IO at Dakshin, Firozabad filed an application before the
\nD.I.G., Gwalior, Madhya Pradesh through the D.I.G., Agra, Uttar Pradesh,
\nrequesting sanction for prosecution of the respondent nos. 1, 3, 4 and 5<\/p>\n

Page 7 of 77
\nrespectively. Further, on 07.05.2008, the Superintendent of Police, Firozabad,
\nalso sent a letter to the D.I.G., Gwalior, requesting for the sanction for<\/p>\n

prosecution under Section 197 CrPC so that the respondents could be charge-
\nsheeted.<\/p>\n

11.In the meantime, the respondent no.1 preferred Criminal Misc. Writ Petition
\nNo. 10181 of 2008 before the High Court of Allahabad and vide order dated
\n23.07.2008, the arrest of respondent no. 1 was stayed.<\/p>\n

12.On 30.07.2008, the Superintendent of Police, Firozabad, addressed one
\nanother letter to the D.I.G., Gwalior in the form of a reminder to accord
\nsanction under Section 197 CrPC for prosecuting the respondents herein.
\nHowever, on 02.08.2008, the D.I.G., Gwalior replied to the Superintendent of
\nPolice, Firozabad, informing him that sanction for prosecution cannot be
\ngranted till the disposal of the trial in connection with Case Crime No. 967 of
\n2007 registered at the Murar Police Station, Gwalior for the offence under
\nSection 34 of the Excise Act.<\/p>\n

13.On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 of 2008
\nunder Section 482 CrPC before the High Court of Madhya Pradesh at Gwalior
\nfor quashing the criminal proceedings concerning Case No. 15003 of 2007
\narising out of Case Crime No.967 of 2007 registered for the offence under
\nSection 34 of the Excise Act pending before the Court of CJM, Gwalior. In the<\/p>\n

Page 8 of 77
\nalternative, it was prayed that the proceeding be stayed till a decision is arrived
\nat in the case pending against Ashok Dixit before the CJM, Firozabad,
\nconcerning Case Crime No. 617 of 2007. The High Court vide its order dated
\n25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by observing as
\nfollows:
\n\u201c12. In the light of the above legal position, the Appellant
\nwho is a complainant in the criminal case in connection with
\nCrime No.617 of 2007 registered against respondent No.2 at
\nFirozabad has locus standi to file this petition under section
\n482 of Cr.P.C. Now legal aspect and circumstances of the
\ncase is to be considered. Suppose for the sake of argument,
\nif respondent No.2 admits his guilt in the case of Excise Act
\npending in the Court of CJM Gwalior what will be its effect?
\nHe will have a good ground of alibi that at the time of alleged
\nmurder of Appellant’s brother he was not present at
\nFirozabad but was present at Gwalior which is 160 Kms.
\naway from Firozabad. So it will cause a great prejudice in
\nthat case and on the other hand, in the interest of justice, if
\nproceedings pending in the court of CJM Gwalior are stayed,
\nit will not cause any prejudice to respondent No.2. Moreover,
\nit will avoid conflicting judgments of two Courts. Therefore,
\nit is good case for invoking inherent powers of the court.
\n13. Considering the facts and circumstances of the case,
\npetition is allowed and further proceedings pending in the
\ncourt of CJM Gwalior in connection with Excise. Act
\npending in the CJM Gwalior concerning Case No.15003 of
\n2007 are hereby stayed till disposal of the Criminal Case
\npending at Firozabad concerning Crime No.617 of 2007.\u201d
\n(emphasis supplied)<\/p>\n

14.After a period of almost one year, on 25.10.2008, the IO at Dakshin, Firozabad
\nrecorded the statements of two persons i.e., Ramesh Yadav and Barelal under
\nSection 161 CrPC. Both stated that they had witnessed the respondent no.1<\/p>\n

Page 9 of 77
\nbeing directly involved in the creation of a false case under Section 34 of the
\nExcise Act in order to provide the accused Ashok Dixit the benefit of an alibi.
\nSoon thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of 2008
\nin case Crime No. 617 of 2007 was filed against the respondent no. 1 for the
\noffence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B
\nIPC respectively for being involved in hatching a conspiracy of murder that
\noccurred in Firozabad. It was the case of the IO at Firozabad that the Charge
\nSheet was filed since he had found out that the respondent no. 1 was not posted
\nat the Murar Police Station, Gwalior at the time of the arrest of Ashok Dixit
\nfor the offence under Section 34 of the Excise Act and therefore, the provision
\nof sanction under Section 197 CrPC would not be attracted against the
\nrespondent no. 1. It is pertinent to observe here that it is the case of the
\nrespondent no. 1 herein that the Charge Sheet No. 3A of 2008 was backdated
\nto 03.11.2008 when in fact it was actually filed on 24.11.2008 before the
\nMagistrate.<\/p>\n

15. The mother of respondent no.1, while alleging that the appellant was trying to
\nfalsely implicate the respondent no. 1 in the case of murder, moved an
\napplication before the D.I.G., Firozabad, requesting that the investigation be
\ntransferred from the Dakshin Police Station to some other police station. The
\nD.I.G., Firozabad vide order dated 11.11.2008 directed the Senior
\nSuperintendent of Police, Firozabad (for short, \u201cS.S.P.\u201d) to look into the<\/p>\n

Page 10 of 77
\nmatter. Thereafter, the S.S.P. called for a status report on the case from the
\nCircle Officer vide letter dated 14.11.2008. The status report submitted by the
\nCircle Officer revealed that while the respondent no.1 had obtained a stay on
\nhis arrest from the High Court, the arrest of the other accused remained
\npending and the investigation was still going on. Upon consideration of the
\nsame, the S.S.P., Firozabad, vide order dated 20.11.2008 transferred the
\ninvestigation from the Dakshin Police Station to the Uttar Police Station at
\nFirozabad, with immediate effect.<\/p>\n

16.The CJM, Firozabad took cognizance of the Charge Sheet No. 3A of 2008 vide
\norder dated 24.11.2008. Immediately, on 28.01.2009, the respondent no. 1
\npreferred Criminal Misc. Application No. 4080 of 2009 under Section 482
\nCrPC before the High Court of Allahabad seeking to quash the proceedings in
\nCase No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) arising out of the
\nabove charge sheet in Case Crime No. 617 of 2007, pending before the CJM,
\nFirozabad.<\/p>\n

17.Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was filed in
\nthe case of the respondent nos. 3, 4 and 5 respectively for the offence under
\nSections 147, 148, 149, 307, 302, 201 and 120-B IPC respectively for being
\ninvolved in the conspiracy to commit murder of the appellant\u2019s brother at
\nFirozabad. The CJM, Firozabad took cognizance of the same vide order dated
\n10.08.2009. On 29.11.2009, the respondent nos. 3, 4 and 5 respectively also<\/p>\n

Page 11 of 77
\npreferred an application being the Criminal Misc. Application No. 32494 of
\n2009 under Section 482 CrPC before the High Court of Allahabad seeking to
\nquash the proceedings of Case No. 67A of 2009 (State vs. Ram Prakash
\nGunkar and Ors.) arising out of the said charge sheet in Case Crime No. 617
\nof 2007 pending before the CJM, Firozabad.<\/p>\n

18.During the pendency of the aforesaid two applications filed under Section 482
\nCrPC before the High Court, the Court of Additional District and Sessions
\nJudge, Firozabad, completed the Sessions Trial No. 753 and 753A of 2008
\nrespectively and vide the judgment & order dated 10.07.2015, held all the 12
\naccused, including Ashok Dixit, guilty of the offences under Sections 147,
\n148, 149, 307, 302 and 120-B IPC with which they were charged. The relevant
\nobservations made by the Trial Court are reproduced hereinbelow:
\n\u201c…The \u201cplea of alibi\u201d taken by accused Ashok Dixit that on
\nthe day of incident he was lodged in jail u\/s 34, Excise Act at
\nP.S. Murar, district Gwalior was with the inconsistent report
\nof the Murar police officials and after investigation I.O. has
\nsubmitted its report to SSP, Gwalior and JM, Gwalior and
\nstated that the case was false. The above mentioned police
\nofficials have been suspended after conducting a
\ndepartmental investigation also they have been named for
\nconspiring the death along with accused Ashok Dixit in the
\ncharge sheet that has been presented before CJM, Firozabad
\nin which they have been charged u\/s 302, 120B I.P.C…<\/p>\n

It is correct that the distance of 160 kilometres cannot be
\ncovered in one hour and if accused Ashok Dixit was at
\nMurar, Gwalior at 9.30 a.m., then he cannot be involved in
\nthe commission of incident at Firozabad at 8.30 a.m. It was
\ncontended in this regard on behalf of the prosecution that<\/p>\n

Page 12 of 77<\/p>\n

accused Ashok Dixit is a cunning criminal. He showed his
\npresence there colluding with Murar Police station, Gwalior
\nin order to escape himself from the offence of murder. The
\ninvestigator SHO Shri Baldhari Singh made enquiries after
\ngoing there, then the whole matter was found forged and the
\ninvestigator gave an application to SSP Gwalior in this
\nregard and also submitted an application before JM Gwalior
\nMadhya Pradesh and keeping the investigation in progress,
\nit was found that in order to save accused Ashok Dixit from
\nthe heinous crime like murder, the forged arrest and his
\nrelease on bail has been shown by the police of Murar police
\nstation. SSP Gwalior, on investigation, finding the whole
\ncase forged, has suspended all the officials involved in the
\nsaid matter and initiated departmental inquiry against them
\nand after collecting the evidence in the said case, a charge
\nsheet has been filed in the court of CJM Firozabad against
\nthe said police officials Niranjan Upadhyay, T.I. Police
\nStation Murar, Gwalior and Shailendra Singh and Triloki
\nGaur and ASI P.P. Gunkar, Head constable Vijay Bahadur
\nand Head Constable. Rambaran Yadav under Section 147,
\n148, 149, 307, 302, 201, 120B IPC with regard to give
\ncooperation in the conspiracy of murder under Section 120B
\nIPC. A case No. 67 A\/2008 State Versus Niranjan and others
\nis pending in that regard in the court of CJM Firozabad and
\nthe warrant of the arrest of the accused persons have been
\nissued. The said file pending in the court of CJM was
\nsummoned on behalf of the prosecution in this regard, which
\nis available on the file of the instant session trial which
\nmakes it clear that accused Ashok Dixit has shown his
\npresence at 9.30 a.m. on the day of incident showing his
\narrest under Section 34 of Excise Act in order to escape from
\nthe case of murder of Suman Prakash colluding with the
\npolice officials of police station Murar, District Gwalior,
\nMadhya Pradesh which was found forged in the investigation
\nand charge sheet has been filed against the said police
\nofficials involving them in the conspiracy of murder and in
\norder to save accused Ashok Dixit from punishment, the case
\nof the same is pending in the court of CJM, Firozabad and
\nwarrant of arrest against all the police officials have been
\nissued and SSP Gwalior has suspended them and
\ndepartmental inquiry has been initiated against them. All
\nthese police officials are absconding. Arrest warrants have
\nbeen issued against them by CJM Court, Firozabad. The,<\/p>\n

Page 13 of 77<\/p>\n

copy of charge sheet of Case No.67 A\/2008 State Versus
\nNiranjan and others pending in the court of CJM has also
\nbeen filed on record behalf of the prosecution. The
\nproceedings of case No.15003\/2007 State Versus Ashok
\nDixit under Section 34 of Excise Act, police Station Murar
\npending before the CJM Court has been stayed by order
\ndated 25.08.2009 by the Hon’ble High Court, bench at
\nGwalior passed in Misc. Case No.5971. The copy of the
\norder passed by the Hon’ble High court bench at Gwalior is
\nfiled on record from 613B\/25 to 613B\/30. SLP has been filed
\nagainst the said order before the Hon’ble Supreme court
\nwhich was not admitted for hearing, the copy of the same is
\nfiled on record at 613B\/31, Therefore, no profit of case under
\nSection 34 of Excise Act cannot be given to accused Ashok
\nDixit and his presence at Murar, District Gwalior at the time
\nof incident under the case of 34 Excise Act has been found
\nforged and the accused has made a forged plea of alibi
\ncolluding with the police officials.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

19.The High Court at Allahabad heard the Criminal Misc. Writ Application Nos.
\n4080 of 2009 and 32494 of 2009 analogously and disposed them vide the
\ncommon Judgment and Order dated 19.04.2018. The High Court quashed the
\nproceedings in Case Nos. 67 of 2008 and 67A of 2009 respectively essentially
\non the ground that sanction to prosecute the respondent nos. 1, 3, 4, and 5
\nrespectively under Section 197 CrPC was necessary & since it had not been
\nobtained, the trial cannot proceed. The relevant observations are reproduced
\nhereinbelow:<\/p>\n

\u201cAdmittedly, the applicants are public servant and case was
\nregistered under Section 34 Excise Act against main accused
\nof the murder in the discharge of public duty but the sanction
\nto prosecute for the offence committed at Firozabad was not
\ngranted by the State of M.P. to prosecute the applicants for<\/p>\n

Page 14 of 77<\/p>\n

the offence committed within the jurisdiction of the Police
\nStation, Dakhin at Firozabad (U.P.) as is evident from the
\nAnnexure SA-I and SA-II to the supplementary affidavit. In
\nthe above circumstances, it ought not to be proper to allow
\nthe proceedings to be continued against the applicants and
\nin case, the proceeding is allowed to continue against the
\napplicants, it would be nothing but misuse of process of law.
\nIn view of what has been submitted and discussed above, the
\napplications have substance and are liable to be allowed.
\nAccordingly, the applications are allowed and the
\nproceedings pending before CJM, Firozabad as Case No. 67
\nof 2008 (State Vs. Niranjan Kumar Upadhyay) as well as
\nCase No. 67A of 2009 (State Vs. Ram Prakash Gunkar and
\nothers) in connected application arising out of Case Crime
\nNo. 617 of 2007 under Sections 147, 148, 149, 307, 302, 201,
\n120B IPC, P.S. Dakshin, District Firozabad are hereby
\nquashed.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

20.In such circumstances referred to above, the appellant (complainant) is here
\nbefore this Court with the present appeal.<\/p>\n

B. SUBMISSIONS ON BEHALF OF THE APPELLANT<\/p>\n

21.Mr. Ravindra Singh, the learned senior counsel appearing for the appellant
\nsubmitted that the plea of Alibi which was taken by the accused Ashok Dixit
\non the ground that his arrest in connection with the offence under Section
\n34 of the Excise Act was effected on 12.10.2007, at 09:30 am, by the
\nofficials of the Murar Police Station, Gwalior, Madhya Pradesh, has been
\nappropriately considered by the Trial Court at Firozabad in Sessions Trial<\/p>\n

Page 15 of 77
\nNo. 753 and 753A of 2008. However, the said plea of alibi was outrightly
\nrejected by the Trial Court by way of its well-reasoned judgment. The Trial
\nCourt categorically observed that the accused Ashok Dixit in connivance
\nwith the police officials of the Murar Police Station, Gwalior had managed
\nto get a false case registered under Case Crime No. 967 of 2007 related to
\nSection 34 of the Excise Act. The Trial Court had further observed that
\nduring the investigation, the presence and arrest of Ashok Dixit in Murar,
\nGwalior was found to be false & bogus and therefore, charge sheet came to
\nbe filed against those police officials for acting in collusion with Ashok
\nDixit. Furthermore, those police officials have also been suspended and a
\ndepartmental enquiry has been initiated against them. Therefore, it was
\nsubmitted that the respondent no. 1 cannot assert that he has been
\nerroneously implicated in Case Crime No. 617 of 2007 registered for the
\noffence under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with
\nthe Dakshin Police Station, Firozabad, Uttar Pradesh.<\/p>\n

22.The counsel submitted that the High Court fell in serious error while passing
\nthe impugned order. The High Court could be said to have travelled beyond
\nits jurisdiction by quashing the criminal proceedings against the
\nrespondents on the ground that the Trial Court has already decided the case
\nagainst Ashok Dixit and the other accused. The Trial Court in Sessions Trial
\nNos. 753 and 753A of 2008 respectively arising out of Case Crime No. 617<\/p>\n

Page 16 of 77
\nof 2007 held Ashok Dixit guilty of the offence of murder of the appellant\u2019s
\nbrother.<\/p>\n

23. The counsel submitted that the High Court erroneously quashed the
\ncriminal proceedings against the respondents saying that the accused
\nrespondents being public servants, the sanction to prosecute for the alleged
\noffence is a must. It was submitted that the act of hatching a conspiracy to
\ncommit murder and creating a plea of alibi by instituting a false case, cannot
\nbe said to be done in the exercise of discharge of official duty. It was further
\nsubmitted that no sanction is required under Section 197 CrPC to prosecute
\nan erring Government official\/respondent no.1 herein for the reason that the
\nrespondent no. 1 was not posted at the Murar Police Station, Gwalior where
\nthe Case Crime No. 967 of 2007 was registered.<\/p>\n

24.It was also submitted that the respondent no. 1 had managed with the police
\nofficials of the Murar Police Station, Gwalior, to get a false FIR being Case
\nCrime No. 967 of 2007 registered under Section 34 of the Excise Act and
\nthereby falsely showed the presence of Ashok Dixit at Murar, Gwalior on
\n12.10.2007 at 09:30 am i.e., on the same day on which the Case Crime No.
\n617 of 2007 was registered at the Dakshin Police Station, Firozabad in
\nrespect of the murder of the appellant\u2019s brother. Furthermore, the
\nrespondent no. 1 had also influenced the other respondents to release a
\nperson under the Excise Act from the Thatipur Chowki of the Murar Police<\/p>\n

Page 17 of 77
\nStation without producing the said person before the concerned court, in
\norder to save Ashok Dixit.<\/p>\n

25.The learned counsel relied upon the Police statements of Ramesh Yadav
\nand Barelal dated 25.10.2008. They as independent witnesses have
\ncategorically stated that while they were at Thatipur, Gwalior, \u201cNiranjan
\nUpadhyay came out from car along with other person and said that Ashok
\nDixit you do not worry, I will protect you from murder case but you follow
\nme and starts roaming in Thatipur, Gwalior along with 10-12 cartons of
\nwhisky….\u201d. The same makes it clear that the respondent no. 1 was also
\nactively involved in the lodging of a false FIR.<\/p>\n

26.In such circumstances referred to above, the learned counsel submitted that
\nthere being merit in his appeal, the same may be allowed and the impugned
\norder passed by the High Court be set aside.<\/p>\n

C. SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1<\/p>\n

27.Mr. R. Basant, the learned senior counsel appearing for the respondent no.
\n1 submitted that there is nothing to indicate that the respondent no. 1 was
\ndirectly or indirectly responsible for the registration of Case Crime No. 967
\nof 2007 in any manner, since he was neither posted at the Murar Police
\nStation nor he had instructed any of the concerned officials to register such<\/p>\n

Page 18 of 77
\nan FIR. In fact, the respondent no. 1 was posted at District Shivpuri which
\nis 120 kms away from Gwalior at the time of filing the Case Crime No. 967
\nof 2007 on 12.10.2007.<\/p>\n

28.The counsel submitted that the respondent no. 1 had neither filed the FIR in
\nCase Crime No. 967 of 2007 at the Murar Police Station, Gwalior nor was
\nhe associated with the said police station in any manner. However,
\nassuming without conceding that the said FIR was registered at the behest
\nof respondent no. 1, sanction for prosecution with respect to Case Crime
\nNo. 617 of 2007 is required. It is an admitted fact that sanction was refused
\nby the D.I.G., Gwalior vide its letter dated 02.08.2008.<\/p>\n

29.The counsel further submitted that there are bleak chances of conviction of
\nthe respondent no. 1 for the following reasons \u2013 (a) the respondent no. 1
\nwas not posted at the Murar Police Station, Gwalior where the Case Crime
\nNo. 967 of 2007 was registered, (b) the respondent no. 1 is 72 years old and
\nno purpose would be served if the respondent no. 1 was made to face trial
\nat this stage when the Case Crime No. 617 of 2007 was admittedly filed in
\nthe 2007, (c) the Trial Court has already convicted all the accused including
\nAshok Dixit by way of its judgment in 10.07.2015, (d) respondent no. 1 has
\nretired from Police service in 2015 and 9 years have passed since then, (e)
\nNo departmental inquiry was initiated against respondent no. 1 for the<\/p>\n

Page 19 of 77
\nalleged act of registration of Case Crime No. 967 of 2007 at the Murar
\nPolice Station, Gwalior, and (f) there is nothing to indicate that the
\nrespondent no. 1 is related to the accused Ashok Dixit.<\/p>\n

30.The counsel submitted that the charge sheet should be read as a whole and
\nthere exists no circumstance or evidence to warrant any assumption of
\ninvolvement of respondent no. 1 in connection with Case Crime No. 617 of
\n2007 for the alleged offence of conspiracy to commit murder. This is so
\nbecause there are only two statements of witnesses recorded under Section
\n161 CrPC and such statements were recorded after a period of one year i.e.,
\non 25.10.2008 from the date of registration of case Crime No. 617 of 2007
\ni.e., on 12.10.2007. These two statements are the sole basis for instituting a
\nprosecution against the respondent ro. 1. Furthermore, the said witnesses
\nwere not examined in the trial whereby the 12 accused including Ashok
\nDixit stood convicted vide order dated 10.07.2015.<\/p>\n

31.It was also submitted that there is a material contradiction in the case of the
\nprosecution. The statements of the two witnesses i.e., Ramesh and Barelal
\nsuggest that the respondent no. 1 was seen with Ashok Dixit in Gwalior
\nsince they had verbatim deposed that they had heard respondent no. 1 telling
\nAshok Dixit that they would create a false plea of alibi. However, the
\neyewitnesses have all deposed that Ashok Dixit was present at the place of<\/p>\n

Page 20 of 77
\nthe incident in Firozabad where the firing had occurred. These two
\ncontradictory statements confirm the presence of Ashok Dixit in Firozabad
\nand also in Gwalior and are therefore, ex-facie derogatory to each other.<\/p>\n

32.The counsel submitted that Section 201 CrPC would not apply to the instant
\nfacts and circumstances. There is no allegation that the respondent no. 1 had
\nconspired with the other co-accused persons for the offence of murder and
\nthe only allegation that surfaces from the charge sheet is that a false alibi
\nwas provided in order to shield Ashok Dixit by registering an FIR under the
\nExcise Act in Gwalior. The said alleged act was made after the commission
\nof the offence of murder and there is nothing on record to even remotely
\nsuggest that the respondent no. 1 had knowledge about the incident of
\nmurder.<\/p>\n

33.In light of the above, the counsel submitted that the impugned Judgment
\nand Order of the High Court quashing the criminal proceedings against the
\nrespondent no. 1 may not be interfered with.<\/p>\n

D. SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS. 3, 4
\nAND 5.<\/p>\n

34. Ms. Nanita Sharma, the learned counsel appearing for the respondent nos.
\n3, 4, and 5 respectively submitted that the Uttar Pradesh police was bent<\/p>\n

Page 21 of 77
\nupon falsely implicating her clients for the offence under Sections 302 and
\n120-B IPC. This is evident from the following \u2013 (a) the statements of
\nRamesh Yadav and Barelal were recorded under Section 161 CrPC after a
\ngap of one year from the date of the offence committed at Firozabad i.e.,
\n12.10.2007, (b) the address of Barelal as recorded by the IO while recording
\nhis statement under Section 161 CrPC was found to be incorrect and as per
\nthe information of the Sarpanch, no person with the name of Barelal had
\never lived at the said address. The permanent address of the witness Barelal
\nwas not in existence even as per the certificate given by the Parshad of the
\narea on 28.12.2008, (c) Ramesh Yadav had also never lived at the address
\nwhich was given by him to the IO during his statement recorded under
\nSection 161 CrPC and the same was clear from the certificate issued by the
\nSarpanch of Bada Gaon, Murar Police Station, Gwalior.<\/p>\n

35.The counsel also submitted that the respondent nos. 3, 4 and 5 respectively
\nhad never been named in the FIR registered in Case Crime No. 617 of 2007
\nnor their names were ever disclosed by any of the witnesses whose
\nstatements had been recorded by the IO under Section 161 CrPC after the
\ncommission of the offence at Firozabad. It was never pointed out that there
\nwas any conspiracy between the respondents and the main accused, Ashok
\nDixit. It was submitted that the respondent nos. 3, 4 and 5 respectively or<\/p>\n

Page 22 of 77
\ntheir family members are neither relatives nor known to the accused, Ashok
\nDixit, in any manner.<\/p>\n

36.The counsel submitted that the IO at Firozabad has falsely implicated the
\nrespondent nos. 3, 4 and 5 respectively in the murder case which occurred
\nat Firozabad even though they had no role to play in the case. They have
\nbeen implicated only because of the rivalry between the two police
\nestablishments and the refusal of the D.I.G., Gwalior to grant sanction to
\nprosecute them. It was submitted that the respondents had only performed
\ntheir duty without suspecting any kind of manipulation in both the arrest
\nand release of Ashok Dixit because they were merely following the
\ninstructions of their superior officer i.e., the T.I. (SHO), D.S. Khushawa of
\nthe Murar Police Station.<\/p>\n

37.The counsel in the last submitted that the High Court was justified in
\nquashing the criminal proceedings against the respondent nos. 3, 4 and 5
\nfor want of sanction.<\/p>\n

E. ISSUE(S) FOR DETERMINATION
\n38.Having heard the learned counsel appearing for the parties and having gone
\nthrough the materials on record, the only issue that falls for our
\nconsideration is:<\/p>\n

Page 23 of 77
\na. Whether the CJM, Firozabad could have taken cognizance of the Charge
\nSheet No. 3A of 2008 and Charge Sheet No. 30 of 2009 respectively
\nagainst the respondent nos. 1, 3, 4 and 5 respectively, in the absence of
\nthe grant of sanction for prosecution under Section 197 CrPC? In other
\nwords, whether the offence or the act alleged to have been committed by
\nthe respondent nos. 1, 3, 4 and 5 respectively could be said to have been
\ndone \u201cwhile acting or purporting to act in the discharge of official duty\u201d?<\/p>\n

F. ANALYSIS<\/p>\n

39. Section 197 CrPC reads as under:
\n\u201c197. Prosecution of Judges and public servants. \u2014
\n(1) When any person who is or was a Judge or Magistrate or
\na public servant not removable from his office save by or with
\nthe sanction of the Government is accused of any offence
\nalleged to have been committed by him while acting or
\npurporting to act in the discharge of his official duty, no
\nCourt shall take cognizance of such offence except with the
\nprevious sanction save as otherwise provided in the Lokpal
\nand Lokayuktas Act, 2013 (1 of 2014)\u2014
\n(a) in the case of a person who is employed or, as the case
\nmay be, was at the time of commission of the alleged
\noffence employed, in connection with the affairs of the
\nUnion, of the Central Government;
\n(b) in the case of a person who is employed or, as the case
\nmay be, was at the time of commission of the alleged
\noffence employed, in connection with the affairs of a State,
\nof the State Government:<\/p>\n

Page 24 of 77<\/p>\n

Provided that where the alleged offence was committed by a
\nperson referred to in clause (b) during the period while a
\nProclamation issued under clause (1) of article 356 of the
\nConstitution was in force in a State, clause (b) will apply as
\nif for the expression \u201cState Government\u201d occurring therein,
\nthe expression \u201cCentral Government\u201d were substituted.
\nExplanation. \u2014 For the removal of doubts it is hereby
\ndeclared that no sanction shall be required in case of a
\npublic servant accused of any offence alleged to have been
\ncommitted under section 166A, section 166B, section 354,
\nsection 354A, section 354B, section 354C, section 354D,
\nsection 370, section 375, 3 [section 376A, section 376AB,
\nsection 376C, section 376D, section 376DA, section 376DB]
\nor section 509 of the Indian Penal Code (45 of 1860).
\n(2) No Court shall take cognizance of any offence alleged to
\nhave been committed by any member of the Armed Forces of
\nthe Union while acting or purporting to act in the discharge
\nof his official duty, except with the previous sanction of the
\nCentral Government.
\n(3) The State Government may, by notification, direct that
\nthe provisions of sub-section (2) shall apply to such class or
\ncategory of the members of the Forces charged with the
\nmaintenance of public order as may be specified therein,
\nwherever they may be serving, and thereupon the provisions
\nof that sub-section will apply as if for the expression
\n\u201cCentral Government\u201d occurring therein, the expression
\n\u201cState Government\u201d were substituted.
\n(3A) Notwithstanding anything contained in sub-section (3),
\nno court shall take cognizance of any offence, alleged to have
\nbeen committed by any member of the Forces charged with
\nthe maintenance of public order in a State while acting or
\npurporting to act in the discharge of his official duty during
\nthe period while a Proclamation issued under clause (1) of
\narticle 356 of the Constitution was in force therein, except
\nwith the previous sanction of the Central Government.
\n(3B) Notwithstanding anything to the contrary contained in
\nthis Code or any other law, it is hereby declared that any
\nsanction accorded by the State Government or any<\/p>\n

Page 25 of 77<\/p>\n

cognizance taken by a court upon such sanction, during the
\nperiod commencing on the 20th day of August, 1991 and
\nending with the date immediately preceding the date on
\nwhich the Code of Criminal Procedure (Amendment) Act,
\n1991 (43 of 1991), receives the assent of the President, with
\nrespect to an offence alleged to have been committed during
\nthe period while a Proclamation issued under clause (1) of
\narticle 356 of the Constitution was in force in the State, shall
\nbe invalid and it shall be competent for the Central
\nGovernment in such matter to accord sanction and for the
\ncourt to take cognizance thereon.
\n(4) The Central Government or the State Government, as the
\ncase may be, may determine the person by whom, the manner
\nin which, and the offence or offences for which, the
\nprosecution of such Judge, Magistrate or public servant is to
\nbe conducted, and may specify the Court before which the
\ntrial is to be held.\u201d
\n40. The 41st Report of the Law Commission of India contextualizes the object
\nbehind the enactment of Section 197 CrPC by pointing out that it enables
\nthe more important categories of public servants, performing onerous and
\nresponsible functions, to act fearlessly by protecting them from false,
\nvexatious or mala fide prosecutions. Under the erstwhile Code of Criminal
\nProcedure, 1898, the ambit of the Section was considered a bit too wide
\nsince it read \u2013 \u201cis accused as such Judge or public servant of any offence\u201d.
\nHowever, to offer more precision, the Amending Act of 1923 inserted the
\nphrase \u2013 \u201cis accused of any offence alleged to have been committed by him
\nwhile acting or purporting to act in the discharge of his official duty\u201d. The
\nsame has been retained in the statute books till today despite the provision
\nundergoing several amendments over the period of time.<\/p>\n

Page 26 of 77
\n41.As rightly acknowledged by the Law Commission, the meaning of the word
\n\u201cacting or purporting to act\u201d in Section 197 CrPC has been well settled by
\na legion of decisions of the Federal Court, the Privy Council and the
\nSupreme Court and any difficulty that may be felt lies only in the actual
\napplication of the principles laid down in these decisions to the facts and
\ncircumstances of a particular case. In other words, the question whether a
\nparticular act is done by a public servant in the discharge of his official duty
\nis substantially one of fact, which is to be determined in the unique
\ncircumstances of each case.
\n42.The applicability of Section 197 CrPC has been the subject of judicial
\ninterpretation in several cases. One of the first and foremost case laws
\nwhich examined the pith of the expression \u201cany act done or purporting to
\nbe done\u201d was the Federal Court decision in Dr. Hori Ram Singh v. The
\nCrown reported in AIR 1939 FC 43. Their Lordships were called upon to
\nconsider the applicability of Section 270 of the Government of India Act,
\n1935 which albeit not identical, but was similar to Section 197 CrPC. The
\nCourt held that while the offence under Section 409 IPC as regards the
\ncriminal breach of trust by a public servant would not require consent from
\nthe Governor for it cannot be done or purported to be done in the execution
\nof his duty, yet the offence under Section 477A IPC as regards the<\/p>\n

Page 27 of 77
\nfalsification of accounts would require the Governor\u2019s consent. The words
\n\u201cpurported to be done\u201d was interpreted as follows:
\n\u201cExtent of the Protection. Obviously, the section does not
\nmean that the very act which is the gravamen of the charge
\nand constitutes the offence should be the official duty of the
\nservant of the Crown. Such an interpretation would involve
\na contradiction in terms, because an offence can never be an
\nofficial duty. The words as used in the section are not \u201cin
\nrespect of any official duty\u201d but \u201cin respect of any act done
\nor purporting to be done in the execution of his duty.\u201d The
\ntwo expressions are obviously not identical. The offence
\nshould have been committed when an act is done in the
\nexecution of duty or when an act purports to be done in the
\nexecution of the duty. The reference as obviously to an
\noffence committed in the course of an action, which is taken
\nor purports to be taken in compliance with an official duty,
\nand is in fact connected with it. The test appears to be not
\nthat the offence is capable of being committed only by a
\npublic servant and not by anyone else, but that it is
\ncommitted by a public servant in an act done or purporting
\nto be done in the execution of his duty. The section cannot be
\nconfined to only such acts as are done by a public servant
\ndirectly in pursuance of his public office, though in excess of
\nthe duty or under a mistaken belief as to the existence of such
\nduty. Nor is it necessary to go to the length of saying that the
\nact constituting the offence should be so inseparably
\nconnected with the official duty as to form part and parcel of
\nthe same transaction. If the act complained of is an offence,
\nit must necessarily be not an execution of duty, but a
\ndereliction of it. What is necessary is that the offence must
\nbe in respect of an act done or purported to be done in
\nexecution of duty, that is in the discharge of an official duty.
\nIt must purport to be done in the official capacity with which
\nhe pretends to be clothed at the time, that is to say under the
\ncloak of an ostensibly official act, though, of course, the
\noffence would really amount to a breach of duty. An act
\ncannot purport to be done in execution of duty unless the
\noffender professes to be acting in pursuance of his official
\nduty and means to convey to the mind of another the
\nimpression that he is so acting.<\/p>\n

Page 28 of 77<\/p>\n

The section is not intended to apply to acts done purely in a
\nprivate capacity by a public servant. It must have been
\nostensibly done by him in his official capacity in execution of
\nhis duty, which would not necessarily be the case merely
\nbecause it was done at a time when he held such office, nor
\neven necessarily because he was engaged in his official
\nbusiness at the time. For instance, if a public servant accepts
\nas a reward a bribe in his office while actually engaged in
\nsome official work, he is not accepting it even in his official
\ncapacity, much less in the execution of any official duty,
\nalthough it is quite certain that he could never have been able
\nto take the bribe unless he were the official in charge of some
\nofficial work. He does not even pretend to the person who
\noffers the bribe that he is acting in the discharge of his
\nofficial duty, but merely uses his official position to obtain
\nthe illegal gratification.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

43. His Lordship, Sulaiman, J, clarified that it is not imperative for the very act
\nwhich is at the center of the charge to be the official duty of the public
\nservant. This would lead to the inference that an offence can never be part
\nof one\u2019s official duty and defeat the very intent behind the enactment of the
\nprovision. Instead, the essence of the provision was that the offence must
\nbe in respect of an act done or purported to be done in the execution of duty
\ni.e., in the discharge of an official duty. Although the offence would really
\namount to a breach of duty, it must purport to be done in the official capacity
\nwith which the official pretended to be clothed at the time. However, it was
\nmade clear that the provision must not be applied to acts done purely in a
\nprivate capacity by a public servant but only to those acts ostensibly done
\nby him in his official capacity and in execution of his duty. Therefore,
\nmerely because the act was committed at a time when he held such office<\/p>\n

Page 29 of 77
\nor when he was engaged in his official business would not make the section
\nautomatically applicable.<\/p>\n

44. His Lordship, Varadachariar, J, in his concurring opinion, expressed that
\nthe question of whether or not the act complained of is one \u201cpurporting to
\nbe done in execution of his duty\u201d as a public servant is substantially one of
\nfact which is to be determined with reference to the act complained of along
\nwith the attendant circumstances. It would not be wise nor desirable to lay
\ndown any hard and fast tests in this regard.<\/p>\n

45. The Judicial Committee of the Privy Council in Gill and Another v. The
\nKing reported in AIR 1948 PC 128 was faced with deciding whether
\nsanction was required under Section 197 CrPC for the prosecution of a
\npublic servant charged with the offence of bribery and\/or conspiracy to take
\nbribes. The Court was of the opinion that it was impossible to distinguish
\nor differentiate between S. 270 of the Government of India Act, 1935 and
\nS. 197 CrPC, at least in relation to offences of this character. Therefore, the
\ndecision in Dr. Hori Ram Singh (supra) would be of great assistance in
\ncases pertaining to S. 197 as well. It was observed that a public servant can
\nonly be said to act or purport to act in the discharge of his official duty, if
\nhis act is as such as to lie within the scope of his official duty. Therefore,
\nthe test may well be whether the public servant, if challenged, can<\/p>\n

Page 30 of 77
\nreasonably claim that, what he does, he does in virtue of his office. The
\nrelevant observations are reproduced hereinbelow:
\n\u201cA public servant can only be said to act or to purport to act
\nin the discharge of his official duty, if his act is such as to lie
\nwithin the scope of his official duty. Thus, a judge neither
\nacts nor purports to act as a judge in receiving a bribe,
\nthough the judgment which he delivers may be such an act:
\nnor does a Government medical officer act or purport to act
\nas a public servant in picking the pocket of a patient whom
\nhe is examining, though the examination itself may be such
\nan act. The test may well be whether the public servant, if
\nchallenged, can reasonably claim that, what he does, he does
\nin virtue of his office\u201d Applying such a test to the present
\ncase, it seems clear that Gill could not justify the acts in
\nrespect of which he was charged as acts done by him by
\nvirtue of the office that he held. Without further examination
\nof the authorities their Lordships, finding themselves in
\ngeneral agreement with the opinion of the Federal Court in
\nthe case cited, think it sufficient to say that in their opinion
\nno sanction under s. 197 of the Code of Criminal Procedure
\nwas needed.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

46.In Albert West Meads v. The King reported in AIR 1948 PC 156, the Privy
\nCouncil echoed the view taken in Gill (supra) and held that the appellant in
\nthat case could not justify that the act of fraudulently misapplying money
\nentrusted to his care as a public servant was an act done by him by virtue of
\nhis office.<\/p>\n

47.In Shreekantiah Ramayya Munipalli v. State of Bombay reported in
\n(1954) 2 SCC 992, this Court stressed that each case must be decided in its
\nown facts. Herein, the Bench opined that Section 197 CrPC can never be<\/p>\n

Page 31 of 77
\napplied if it is construed too narrowly since it is no part of an official\u2019s duty
\nto commit an offence and the language of the provision must be given its
\ntrue meaning. However, it is not the duty but the act which has to be
\nexamined because an official act can be performed in the discharge of
\nofficial duty as well as in the dereliction of it. The relevant observations are
\nas follows:
\n\u201c14. Now it is obvious that if Section 197 of the Criminal
\nProcedure Code is construed too narrowly it can never be
\napplied, for of course it is no part of an official’s duty to
\ncommit an offence and never can be. But it is not the duty we
\nhave to examine so much as the act, because an official act
\ncan be performed in the discharge of official duty as well as
\nin dereliction of it. The section has content and its language
\nmust be given meaning. …\u201d<\/p>\n

(emphasis supplied)<\/p>\n

48. In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309, the<\/p>\n

appellant was charged under Section 465 IPC for forging the thumb-
\nimpression of an individual and under Section 409 IPC for the criminal<\/p>\n

misappropriation of a certain sum. The Court opined that if the act
\ncomplained of is directly concerned with the official duty of the public
\nservant so that, if questioned, it could be claimed to have been done by
\nvirtue of the office, then sanction would be necessary. This would be
\nirrespective of whether it was, in fact, a proper discharge of his duties
\nbecause that would really be a matter of defence on the merits which would
\nhave to be investigated at trial and not be examined at the stage of granting<\/p>\n

Page 32 of 77
\nsanction for prosecution. Therefore, the test as to whether sanction is
\nnecessary to prosecute a public servant will depend on whether the acts
\ncomplained of are so integrally connected with his duties as a public
\nservant. If they do, then sanction is a requisite and there cannot be any
\nuniform rule that an offence of criminal misappropriation or criminal
\nbreach of trust would always be outside the scope of Section 197 CrPC.
\nThe relevant observations are reproduced hereinbelow:
\n\u201c7. The result of the authorities may thus be summed up : It
\nis not every offence committed by a public servant that
\nrequires sanction for prosecution under Section 197(1) of the
\nCode of Criminal Procedure; nor even every act done by him
\nwhile he is actually engaged in the performance of his
\nofficial duties; but if the act complained of is directly
\nconcerned with his official duties so that, if questioned, it
\ncould be claimed to have been done by virtue of the office,
\nthen sanction would be necessary; and that would be so,
\nirrespective of whether it was, in fact, a proper discharge of
\nhis duties, because that would really be a matter of defence
\non the merits, which would have to be investigated at the
\ntrial, and could not arise at the stage of the grant of sanction,
\nwhich must precede the institution of the prosecution.
\n8. …In our judgment, even when the charge is one of
\nmisappropriation by a public servant, whether sanction is
\nrequired under Section 197(1) will depend upon the facts of
\neach case. If the acts complained of are so integrally
\nconnected with the duties attaching to the office as to be
\ninseparable from them, then sanction under Section 197(1)
\nwould be necessary; but if there was no necessary
\nconnection between them and the performance of those
\nduties, the official status furnishing only the occasion or
\nopportunity for the acts, then no sanction would be required.<\/p>\n

xxx xxx xxx<\/p>\n

11. …The result then is that whether sanction is necessary to
\nprosecute a public servant on a charge of criminal<\/p>\n

Page 33 of 77<\/p>\n

misappropriation, will depend on whether the acts
\ncomplained of hinge on his duties as a public servant. If they
\ndo, then sanction is requisite. But if they are unconnected
\nwith such duties, then no sanction is necessary.<\/p>\n

(emphasis supplied)<\/p>\n

49.A five-Judge Bench of this Court in Matajog Dobey v. H.C. Bhari reported
\nin AIR 1956 SC 44 acknowledged that slightly differing tests had been laid
\ndown under Section 197 CrPC but the difference in those tests were only in
\nlanguage and not in substance. The Court laid down a more refined test that
\nthere must be a reasonable connection between the act done and the
\ndischarge of the official duty and the act must bear such relation to the duty
\nthat the accused could lay a reasonable, but not a pretended or fanciful
\nclaim, that he did it in the course of the performance of his duty. Therefore,
\nwhat one must ascertain is whether the act and the official duty are so
\ninterrelated such that it can be reasonably postulated that it was done in the
\nperformance of the official duty, though possibly in excess of the needs and
\nrequirements of the situation. The relevant observations are as follows:
\n\u201c17. Slightly differing tests have been laid down in the
\ndecided cases to ascertain the scope and the meaning of the
\nrelevant words occurring in Section 197 of the Code; \u201cany
\noffence alleged to have been committed by him while acting
\nor purporting to act in the discharge of his official duty\u201d. But
\nthe difference is only in language and not in substance. The
\noffence alleged to have been committed must have something
\nto do, or must be related in some manner with the discharge
\nof official duty. No question of sanction can arise under
\nSection 197, unless the act complained of is an offence; the
\nonly point to determine is whether it was committed in the<\/p>\n

Page 34 of 77<\/p>\n

discharge of official duty. There must be a reasonable
\nconnection between the act and the official duty. It does not
\nmatter even if the act exceeds what is strictly necessary for
\nthe discharge of the duty, as this question will arise only at a
\nlater stage when the trial proceeds on the merits. What we
\nmust find out is whether the act and the official duty are so
\ninter-related that one can postulate reasonably that it was
\ndone by the accused in the performance of the official duty,
\nthough possibly in excess of the needs and requirements of
\nthe situation. …<\/p>\n

xxx xxx xxx<\/p>\n

19. The result of the foregoing discussion is this : There must
\nbe a reasonable connection between the act and the
\ndischarge of official duty; the act must bear such relation to
\nthe duty that the accused could lay a reasonable, but not a
\npretended or fanciful claim, that he did it in the course of the
\nperformance of his duty.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

50.Furthermore, in Dhannjay Ram Sharma v. M.S. Uppadaya and Others
\nreported in AIR 1960 SC 745, it was clarified that the mere fact that an
\nopportunity to commit an offence is furnished by the official duty is not
\nsuch a connection of the offence with the performance of such duty, so as
\nto justify even remotely the view that the acts complained of are within the
\nscope of the application of Section 197 CrPC.<\/p>\n

51.This Court in P. Arulswami v. State reported in (1967) 1 SCR 201 was also
\nconcerned with an offence under Section 409 IPC and it was opined that the
\nact must be directly concerned and connected with the official duties of the
\npublic servant such that it could be claimed to have been done by virtue of
\nhis office. Furthermore, it is the \u201cquality\u201d of the act that must be emphasized
\non. The act must not be totally unconnected with the official duty. Only if<\/p>\n

Page 35 of 77
\nit falls either within the scope and range of the official duties, or is in excess
\nof it, then Section 197 CrPC would stand attracted. The Court had stated as
\nthus:
\n\u201c…It is not therefore every offence committed by a public
\nservant that requires sanction for prosecution under s.
\n197(1) of the Criminal Procedure Code; nor even every act
\ndone by him while he is actually engaged in the performance
\nof his official duties; but if the act complained of is directly
\nconcerned with his official duties so that, if questioned, it
\ncould be claimed to have been done by virtue of the office,
\nthen sanction would be necessary. It is the quality of the act
\nthat is important and if it falls within the scope and range of
\nhis official duties the protection contemplated by s. 197 of
\nthe Criminal Procedure Code will be attracted. An offence
\nmay be entirely unconnected with the official duty as such or
\nit may be committed within the scope of official duty. Where
\nit is unconnected with the official duty there can be no
\nprotection. It is only when it is either within the scope of the
\nofficial duty or in excess of it that the protection is
\nclaimable…\u201d<\/p>\n

(emphasis supplied)<\/p>\n

52. In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3 SCC 89 the
\nappellants were alleged to have entered into a criminal conspiracy for
\ncommitting the offences of criminal breach of trust and cheating in respect
\nof a large amount of government money earmarked for a development
\nproject. The Court opined that sanction under Section 197 CrPC would not
\nbe necessary since it is no part of the duty of a public servant while
\ndischarging his official duties, to enter into a criminal conspiracy or to
\nindulge in criminal misconduct and observed as thus:<\/p>\n

Page 36 of 77<\/p>\n

\u201c66. The next point was with regard to consent or sanction.
\nThere is no doubt that in respect of B.P. Sinha consent was
\nproperly given by the Deputy Commissioner. So consent was
\nalso given in respect of N.K. Banerjee and Harihar Prasad
\nby the Chief Secretary. This is not a case of sanction or
\nconsent under Section 196-A of the Code of Criminal
\nProcedure. On the question of the applicability of Section
\n197 of the Code of Criminal Procedure, the principle laid
\ndown in two cases, namely, Shreekantiah Ramayya
\nMunipalli v. State of Bombay [AIR 1955 SC 287] and Amrik
\nSingh v. State of Pepsu [AIR 1955 SC 309] was as follows:
\n\u201cIt is not every offence committed by a public servant that
\nrequires sanction for prosecution under Section 197(1) of
\nthe Criminal Procedure Code; nor even every act done by
\nhim while he is actually engaged in the performance of his
\nofficial duties; but if the act complained of is directly
\nconcerned with his official duties so that, if questioned, it
\ncould be claimed to have been done by virtue of the office,
\nthen sanction would be necessary.\u201d
\nThe real question therefore is whether the acts complained
\nof in the present case were directly concerned with the
\nofficial duties of the three public servants. As far as the
\noffence of criminal conspiracy punishable under Section
\n120-B, read with Section 409 of the Penal Code, 1860 is
\nconcerned and also Section 5(2) of the Prevention of
\nCorruption Act, are concerned they cannot be said to be of
\nthe nature mentioned in Section 197 of the Code of Criminal
\nProcedure. To put it shortly, it is no part of the duty of a
\npublic servant, while discharging his official duties, to enter
\ninto a criminal conspiracy or to indulge in criminal
\nmisconduct. Want of sanction under Section 197 of the Code
\nof Criminal Procedure is, therefore, no bar.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

53. In B. Saha and Others v. M.S. Kochar reported in (1979) 4 SCC 177, the
\nappellants were charged for the offences under Sections 409 and 120-B IPC.
\nThe Court opined that while it is not an invariable proposition of law that<\/p>\n

Page 37 of 77
\nthe act of criminal misappropriation or conversion cannot be inseparably
\nintertwined with the performance of the official duty, yet in the facts of the
\npresent case, the alleged act of criminal misappropriation could not
\nreasonably be said to be imbued with the color of office or having a direct
\nconnection with the duties of the appellants as public servants. Therefore,
\nsanction was not considered necessary. While observing so, the Court stated
\nthat the expression \u201cany offence alleged to have been committed by him
\nwhile acting or purporting to act in the discharge of his official duty\u201d must
\nneither be construed narrowly nor widely and the right approach would be
\nto arrive at a balance between the two extremes. Therefore, the sine qua non
\nfor the applicability of this section is that the offence charged, be it one of
\ncommission or omission, must be committed by the public servant either in
\nhis official capacity or under the color of the office held by him such that
\nthere is a direct or reasonable connection between the act and the official
\nduty. The relevant observations are as thus:<\/p>\n

\u201c17. The words \u201cany offence alleged to have been committed
\nby him while acting or purporting to act in the discharge of
\nhis official duty\u201d employed in Section 197(1) of the Code,
\nare capable of a narrow as well as a wide interpretation. If
\nthese words are construed too narrowly, the section will be
\nrendered altogether sterile, for, \u201cit is no part of an official
\nduty to commit an offence, and never can be\u201d. In the wider
\nsense, these words will take under their umbrella every act
\nconstituting an offence, committed in the course of the same
\ntransaction in which the official duty is performed or
\npurports to be performed. The right approach to the import
\nof these words lies between these two extremes. While on the<\/p>\n

Page 38 of 77<\/p>\n

one hand, it is not every offence committed by a public
\nservant while engaged in the performance of his official duty,
\nwhich is entitled to the protection of Section 197(1), an act
\nconstituting an offence, directly and reasonably connected
\nwith his official duty will require sanction for prosecution
\nunder the said provision. As pointed out by Ramaswami, J.,
\nin Baijnath v. State of M.P. [AIR 1966 SC 220, 227 : (1966)
\n1 SCR 210 : 1966 Cri LJ 179] , \u201cit is the quality of the act
\nthat is important, and if it falls within the scope and range of
\nhis official duties, the protection contemplated by Section
\n197 of the Criminal Procedure Code will be attracted.\u201d
\n18. In sum, the sine qua non for the applicability of this
\nsection is that the offence charged, be it one of commission
\nor omission, must be one which has been committed by the
\npublic servant either in his official capacity or under colour
\nof the office held by him.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

54.This Court in State of Maharashtra v. Dr. Budhikota Subbarao reported
\nin (1993) 3 SCC 339 elaborated on how the balance between a narrow and
\nwide construction of Section 197 CrPC can be maintained. The Court
\nopined that the section must be construed strictly while determining its
\napplicability to any act or omission in the course of service and its operation
\nhas to be limited only to those acts which are discharged in the \u201ccourse of
\nduty\u201d. However, once any act or omission has been found to have been
\ncommitted by a public servant in the discharge of his duty then a liberal and
\nwide construction can be given to the particular act, so far as its official
\nnature is concerned. For instance, a public servant is not entitled to indulge
\nin criminal activities in the discharge of his duty and to that extent, the
\nsection must be construed narrowly and in a restricted manner. However,<\/p>\n

Page 39 of 77
\nonce it is established that the act or omission was done by the public servant
\nwhile discharging his duty, then the scope of it being \u201cofficial\u201d should be
\ninterpreted such that the objective of the section is advanced in favor of the
\npublic servant.<\/p>\n

55.In R. Balakrishna Pillai v. State of Kerala and Another reported in (1996)
\n1 SCC 478, the appellant who was the then Minister for Electricity for the
\nState of Kerala was alleged to have entered into a criminal conspiracy to
\nsell electricity to an industry in the State of Karnataka without the consent
\nof the Government of Kerala. The Court stressed that the quality of the act
\nmust be looked into and there can be no general proposition that whenever
\nthere is a charge of criminal conspiracy levelled against a public servant,
\nthe protection under Section 197 CrPC would have no application. The
\nquestion of whether the act complained of had a direct nexus with the
\ndischarge of official duties would depend on the facts of each case and it
\nwas stated as thus:<\/p>\n

\u201c6. …The question whether the acts complained of had a
\ndirect nexus or relation with the discharge of official duties
\nby the public servant concerned would depend on the facts
\nof each case. There can be no general proposition that
\nwhenever there is a charge of criminal conspiracy levelled
\nagainst a public servant in or out of office the bar of Section
\n197(1) of the Code would have no application. Such a view
\nwould render Section 197(1) of the Code specious.
\nTherefore, the question would have to be examined in the
\nfacts of each case. …\u201d<\/p>\n

Page 40 of 77<\/p>\n

(emphasis supplied)<\/p>\n

56. In Shambhoo Nath Misra v. State of U.P. and Others reported in (1997)
\n5 SCC 326, allegations of fabrication of record and misappropriation of
\npublic funds were made against the accused public servant. The Court while
\nholding that sanction was not necessary in the facts of the case re-affirmed
\nthat the public servant\u2019s act must be in furtherance of the performance of
\nhis official duties and only if the act or omission is integral to the
\nperformance of the public duty, he would be entitled to protection under
\nSection 197 CrPC. While stating so, the Court elaborated on the objective
\nbehind the enactment of the provision and clarified that the protection of
\nsanction is an assurance to an honest and sincere officer so that he can
\nperform his public duty honestly and to the best of his ability. The threat of
\nprosecution would demoralize them and therefore, the requirement of
\nsanction by the competent authority or the appropriate Government can
\nserve as a shield only for such honest officers who carry out their duty with
\nan aim to further public interest. The Court also rightly cautioned that,
\nhowever, such an immunity cannot be utilized by public servants to
\ncamouflage the commission of a crime under the supposed color of public
\noffice.<\/p>\n

Page 41 of 77
\n57.This Court\u2019s reasoning in State of Orissa and Others v. Ganesh Chandra
\nJew reported in (2004) 8 SCC 40 was further adopted in a few other
\nlandmark decisions including S.K. Zutshi and Another v. Bimal Debnath
\nand Another reported in (2004) 8 SCC 31 and K. Kalimuthu v. State
\nreported in (2005) 4 SCC 512. The Court in Ganesh Chandra Jew (supra)
\nconsidered the scope of the expression \u201cofficial duty\u201d and stated that the
\nprotective cover of the section must not be extended to every act or
\nomission done by a public servant in service but be restricted to only those
\nacts or omissions which are done by a public servant in the discharge of his
\n\u201cofficial\u201d duty. The scope can be widened further by also extending
\nprotection to those acts or omissions which are done in the \u201cpurported\u201d
\nexercise of \u201cofficial\u201d duty i.e., under the color of office, but not more.<\/p>\n

58. Dr. Arijit Pasayat, J, went on to state that the protection given under
\nSection 197 CrPC must not be viewed as limitless. This protection has
\ncertain limits and is available only when the alleged act done is reasonably
\nconnected with the discharge of his official duty and not merely a cloak for
\ndoing the objectionable act. However, if the public servant acted in excess
\nof his official duty but there exists a reasonable connection between the act
\nand the performance of his official duty, the excess cannot be a sufficient
\nground to deprive him of the protection under Section 197 CrPC. Therefore,
\nit was re-iterated that it is the \u201cquality\u201d of the act which is important and<\/p>\n

Page 42 of 77
\nsuch an act must fall within the scope and range of the public servant\u2019s
\nofficial duty. While there cannot be any universal rule to determine whether
\nthere exists a reasonable connection between the act done and the official
\nduty, one \u201csafe and sure test\u201d in this regard would be to consider if the
\nomission or neglect on part of the public servant to commit the act
\ncomplained of could have made him answerable for a charge of dereliction
\nof his official duty. If the answer to this question is in the affirmative, the
\nprotection under Section 197 CrPC can be granted since there was every
\nconnection with the act complained of and the official duty of the public
\nservant. The relevant observations are as follows:
\n\u201c7. This protection has certain limits and is available only
\nwhen the alleged act done by the public servant is reasonably
\nconnected with the discharge of his official duty and is not
\nmerely a cloak for doing the objectionable act. If in doing his
\nofficial duty, he acted in excess of his duty, but there is a
\nreasonable connection between the act and the performance
\nof the official duty, the excess will not be a sufficient ground
\nto deprive the public servant of the protection. The question
\nis not as to the nature of the offence such as whether the
\nalleged offence contained an element necessarily dependent
\nupon the offender being a public servant, but whether it was
\ncommitted by a public servant acting or purporting to act as
\nsuch in the discharge of his official capacity. Before Section
\n197 can be invoked, it must be shown that the official
\nconcerned was accused of an offence alleged to have been
\ncommitted by him while acting or purporting to act in the
\ndischarge of his official duties. It is not the duty which
\nrequires examination so much as the act, because the official
\nact can be performed both in the discharge of the official duty
\nas well as in dereliction of it. The act must fall within the
\nscope and range of the official duties of the public servant
\nconcerned. It is the quality of the act which is important and
\nthe protection of this section is available if the act falls within<\/p>\n

Page 43 of 77<\/p>\n

the scope and range of his official duty. There cannot be any
\nuniversal rule to determine whether there is a reasonable
\nconnection between the act done and the official duty, nor is
\nit possible to lay down any such rule. One safe and sure test
\nin this regard would be to consider if the omission or neglect
\non the part of the public servant to commit the act
\ncomplained of could have made him answerable for a charge
\nof dereliction of his official duty. If the answer to this
\nquestion is in the affirmative, it may be said that such act was
\ncommitted by the public servant while acting in the discharge
\nof his official duty and there was every connection with the
\nact complained of and the official duty of the public
\nservant…\u201d<\/p>\n

(emphasis supplied)<\/p>\n

59. In Sankaran Moitra v. Sadhna Das and Another reported in (2006) 4
\nSCC 584, the appellant police officer was accused of killing the<\/p>\n

complainant\u2019s husband while carrying out a lathi-charge near the polling-
\nbooth on an election day. While the Bench in its majority opinion had held<\/p>\n

that the appellant was acting in the discharge of his official duty, C.K.
\nThakker, J, in his minority opinion had stated that the act complained of
\nhad no nexus, reasonable connection or relevance to the official act or duty<\/p>\n

of such public servant and was otherwise, illegal, unlawful and high-
\nhanded. He went on to state that it is not only the \u201cpower\u201d but the \u201cduty\u201d of<\/p>\n

the court to apply its mind to the factual situation before it. The Courts must
\nensure that on the one hand, the public servant is protected if the case is
\ncovered by Section 197 CrPC and on the other hand, that appropriate action
\nwould be allowed to be taken if the provision is not attracted and the<\/p>\n

Page 44 of 77
\naccused is trying to take undue advantage of the section under the guise of
\nhis position as a public servant. The relevant observations are as thus:
\n\u201c67. From the aforesaid decisions, in my opinion, the law
\nappears to be well settled. The primary object of the
\nlegislature behind Section 197 of the Code is to protect
\npublic officers who have acted in discharge of their duties or
\npurported to act in discharge of such duties. But, it is equally
\nwell settled that the act said to have been committed by a
\npublic officer must have reasonable connection with the duty
\nsought to be discharged by such public officer. If the act
\ncomplained of has no nexus, reasonable connection or
\nrelevance to the official act or duty of such public servant
\nand is otherwise illegal, unlawful or in the nature of an
\noffence, he cannot get shelter under Section 197 of the Code.
\nIn other words, protection afforded by the said section is
\nqualified and conditional.
\n68. Mr Tulsi, no doubt, submitted that the appellant was a
\npolice officer. He was on duty. He had received a message
\nabout rioting and law and order situation at Beliaghata. He,
\ntherefore, had gone to the spot pursuant to the said message,
\nin police uniform, in police jeep to deal with the situation.
\nAll the ingredients of Section 197 of the Code were thus
\nsatisfied and the High Court was wrong in not applying the
\nsaid provision.
\n69. I am unable to agree with Mr Tulsi. In my judgment, it is
\nprecisely in such cases that the Court is called upon to
\nconsider whether the public servant was acting or purporting
\nto act in discharge of his duty or it was merely a cloak for
\ndoing illegal act under the excuse of his status as a public
\nservant and by taking undue advantage of his position, he
\nwas committing an offence or an unlawful act. In such
\nsituations, when the question comes up for consideration
\nbefore a court of law as to the applicability or otherwise of
\nSection 197 of the Code, it is not only the power but
\nthe duty of the Court to apply its mind to the fact situation
\nbefore it. It should ensure that on the one hand, the public
\nservant is protected if the case is covered by Section 197 of
\nthe Code and on the other hand, appropriate action would
\nbe allowed to be taken if the provision is not attracted and<\/p>\n

Page 45 of 77<\/p>\n

under the guise of his position as public servant, he is trying
\nto take undue advantage.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

60.In Choudhury Parveen Sultana v. State of West Bengal and Another
\nreported in (2009) 3 SCC 398 the appellant\u2019s husband had suffered
\ngrievous injury in a shoot-out for which a case was registered and police
\ninvestigation was undertaken. The appellant had filed a complaint before<\/p>\n

the Magistrate that the respondent no. 2 (Investigating Officer) and the co-
\naccused visited her house under the pretext of conducting an investigation,<\/p>\n

threatened her and her husband to make a tutored statement and had also
\ntried to obtain the husband\u2019s signature on a blank paper under threatening
\ncircumstances. While the Magistrate had taken cognizance, the High Court
\nhad quashed the proceedings for want of sanction. In such circumstances,
\nthe following observations were made:
\n\u201c18. The direction which had been given by this Court, as
\nfar back as in 1971 in Bhagwan Prasad Srivastava
\ncase [(1970) 2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR
\n317] holds good even today. All acts done by a public servant
\nin the purported discharge of his official duties cannot as a
\nmatter of course be brought under the protective umbrella of
\nSection 197 CrPC. On the other hand, there can be cases of
\nmisuse and\/or abuse of powers vested in a public servant
\nwhich can never be said to be a part of the official duties
\nrequired to be performed by him. As mentioned in Bhagwan
\nPrasad Srivastava case [(1970) 2 SCC 56 : 1970 SCC (Cri)
\n292 : (1971) 1 SCR 317] the underlying object of Section 197
\nCrPC is to enable the authorities to scrutinise the allegations
\nmade against a public servant to shield him\/her against
\nfrivolous, vexatious or false prosecution initiated with the
\nmain object of causing embarrassment and harassment to the<\/p>\n

Page 46 of 77<\/p>\n

said official. However, as indicated hereinabove, if the
\nauthority vested in a public servant is misused for doing
\nthings which are not otherwise permitted under the law, such
\nacts cannot claim the protection of Section 197 CrPC and
\nhave to be considered dehors the duties which a public
\nservant is required to discharge or perform. Hence, in
\nrespect of prosecution for such excesses or misuse of
\nauthority, no protection can be demanded by the public
\nservant concerned.
\n19. In the instant case, certain deeds and acts have been
\nattributed to Respondent 2 and another accused, which
\ncannot be said to have been part of the official duties to be
\nperformed by Respondent 2. Hence, in our view, Respondent
\n2 was not entitled to the protection of Section 197 CrPC in
\nrespect of such acts.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

The Court, while stating that the respondent no. 2 was not entitled to the
\nprotection under Section 197 CrPC, was of the view that if the authority
\nwhich has been vested in a public servant is misused or abused for
\ncommitting acts which are not otherwise permitted under the law, one cannot
\nclaim recourse under Section 197 CrPC. In such circumstances, the acts
\ncommitted must be considered dehors the duties which a public servant is
\nrequired to discharge or perform.<\/p>\n

61.In Urmila Devi v. Yudhvir Singh reported in (2013) 15 SCC 624, a
\ncomplaint was filed by M alleging that the appellant and R were living in
\nan illicit relationship. Therefore, the respondent Sub-Divisional Magistrate
\ndirected the Tehsildar to enquire into the matter and also directed the DSP
\nconcerned to conduct a special investigation. It was alleged that the<\/p>\n

Page 47 of 77
\nrespondent had forcibly entered the house of the appellant at 10:00 pm with
\nhis investigation team, equipped with video cameras, to carry out a search
\nof the appellant\u2019s house. It was further alleged that R was forced to remove
\nhis clothes in front of the other officials and that both the appellant and R
\nwere taken to a Civil Hospital where they were forced to undergo a medical
\nexamination against their will. The medical examination of the appellant
\nwas also alleged to have been conducted by a male doctor. Furthermore, it
\nwas alleged that when the appellant and R filed a complaint against M, the
\nrespondent threatened them to withdraw the same. The Court stated that
\nnone of the acts alleged against the respondent, can by any stretch of
\nimagination, be held to have been carried out in his capacity as an Executive
\nMagistrate. Hence, the invocation of Section 197 CrPC was wholly
\nuncalled for. While emphasizing that the test of direct and reasonable
\nconnection between the official duty of the accused and the acts allegedly
\ncommitted by him is the true test, the Court stressed that public
\nfunctionaries cannot, under the cloak of the purported discharge of official
\nduties, resort to the harassment and humiliation of the citizens on the pretext
\nof a complaint having been received by them. The relevant observations
\nare reproduced hereinbelow:<\/p>\n

\u201c63. The test of direct and reasonable connection between
\nthe official duty of the accused and the acts allegedly
\ncommitted by them is, therefore, the true test to be applied
\nwhile deciding whether the protection of Section 197 CrPC<\/p>\n

Page 48 of 77<\/p>\n

is available to a public servant accused of the commission of
\nan offence. The High Court has not adverted to this test nor
\nhas it held that there existed a direct and reasonable
\nconnection between the official duty being discharged by the
\naccused public servant and the acts committed by him. The
\nHigh Court has on the contrary misdirected itself when it
\nsaid that the accused had only committed an act of omission
\ntowards his official duties which entitled him to the
\nprotection of Section 197 of the Code.
\n65. It is difficult to appreciate what the High Court meant by
\nsaying that the acts of the accused were \u201cat best acts of
\nomission towards official duty\u201d. It was not the case of the
\nrespondent before the High Court nor is it his case before us
\nthat the complaint filed by Maya Devi disclosed any offence
\nwhich could be taken cognizance of by him as an Executive
\nMagistrate or investigated by the police. Assuming that the
\ncomplainant and R.C. Chopra were living together even
\nwhen they were not married to each other, the complaint
\nregarding any such relationship could be filed only by the
\nwife of R.C. Chopra, or the husband of the complainant
\nUrmila Devi. The complaint filed by Maya Devi could not
\nprovide a valid basis for the SDM, the Tahsildar or the
\nDeputy Superintendent of Police concerned to barge into the
\nhouse of the complainant, humiliate or harass her or drag
\nher to the police station without the registration of any case
\nor subject her to an uncalled for medical examination. The
\ntest of direct and reasonable connection between the official
\nduty of the respondent Sub-Divisional Magistrate and the
\npolice officers concerned and the acts complained of thus
\nfails in the present case especially because there is not even
\na semblance of a lawful justification forthcoming from the
\nrespondent for what he did. Entering the house of a woman,
\nafter sunset with a posse of police force, carrying video
\ncameras conducting an unwarranted search of the house,
\nhumiliating and invading the privacy of the complainant,
\ninsulting and humiliating R.C. Chopra by asking him to
\nundress and dragging both of them to the police station for
\nmedical examination against their wishes, especially when
\nmale doctors were asked to examine the complainant which
\nadded insult to injury, all remain unsupported by any lawful
\njustification and have no connection with the duties that were
\ncast upon the respondent as a public servant, even if a<\/p>\n

Page 49 of 77<\/p>\n

complaint alleging an adulterous relationship between the
\nappellant and R.C. Chopra had been received by the SDM.
\nThe alleged acts of the respondent cannot, therefore, be said
\nto be in discharge of his official duties or in the purported
\ndischarge of such duties.
\n66. Public functionaries cannot under the cloak of purported
\ndischarge of official duties resort to harassment and
\nhumiliation of the citizens on the pretext of a complaint
\nhaving been received by them, especially when the same does
\nnot disclose the commission of any offence triable by the
\nExecutive Magistrate or cognizable by the police; nor was
\nthere any other proceeding in connection with which such
\nconduct could be justified in law. The plea of the respondent
\nthat the prosecution was barred under Section 197 CrPC
\nhas, therefore, to be rejected.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

62. In Rajib Ranjan v. R. Vijaykumar reported in (2015) 1 SCC 513, a
\ncomplaint was filed against the appellant public officials for conspiracy to
\ncreate false documents. This Court had held that even while discharging
\nofficial duties, if a public servant enters into a criminal conspiracy or
\nindulges in criminal misconduct, such a misdemeanor must not be treated
\nas an act in the discharge of his official duties in order to grant protection
\nunder Section 197 CrPC and elaborated as follows:
\n\u201c15. The sanction, however, is necessary if the offence
\nalleged against the public servant is committed by him
\n\u201cwhile acting or purporting to act in the discharge of his
\nofficial duties\u201d. In order to find out as to whether the alleged
\noffence is committed while acting or purporting to act in the
\ndischarge of his official duty, the following yardstick is
\nprovided by this Court in Budhikota Subbarao [State of
\nMaharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 :<\/p>\n

Page 50 of 77<\/p>\n

1993 SCC (Cri) 901 : (1993) 2 SCR 311] in the following
\nwords : (SCC p. 347, para 6)
\n\u201c6. … If on facts, therefore, it is prima facie found that the
\nact or omission for which the accused was charged had
\nreasonable connection with discharge of his duty then it
\nmust be held to be official to which applicability of Section
\n197 of the Code cannot be disputed.\u201d
\n16. This principle was explained in some more detail
\nin Raghunath Anant Govilkar v. State of
\nMaharashtra [(2008) 11 SCC 289 : (2009) 1 SCC (Cri) 130]
\n, which was decided by this Court on 8-2-2008 in SLP (Crl.)
\nNo. 5453 of 2007, in the following manner : (SCC pp. 298-
\n99, para 11)
\n\u201c11. \u20187. … \u201c66. … On the question of the applicability of
\nSection 197 of the Code of Criminal Procedure, the
\nprinciple laid down in two cases, namely, Shreekantiah
\nRamayya Munipalli v. State of Bombay [AIR 1955 SC 287
\n: 1955 Cri LJ 857] and Amrik Singh v. State of
\nPepsu [AIR 1955 SC 309 : 1955 Cri LJ 865] was as
\nfollows : (Amrik Singh case [AIR 1955 SC 309 : 1955 Cri
\nLJ 865] , AIR p. 312, para 8)
\n\u20188. … It is not every offence committed by a public
\nservant that requires sanction for prosecution
\nunder Section 197(1) of the Criminal Procedure
\nCode; nor even every act done by him while he is
\nactually engaged in the performance of his official
\nduties; but if the act complained of is directly
\nconcerned with his official duties so that, if
\nquestioned, it could be claimed to have been done
\nby virtue of the office, then sanction would be
\nnecessary….\u2019
\nThe real question therefore, is whether the acts
\ncomplained of in the present case were directly concerned
\nwith the official duties of the three public servants. As far
\nas the offence of criminal conspiracy punishable under
\nSection 120-B read with Section 409 of the Penal Code is
\nconcerned and also Section 5(2) of the Prevention of
\nCorruption Act, are concerned they cannot be said to be
\nof the nature mentioned in Section 197 of the Code of
\nCriminal Procedure. To put it shortly, it is no part of the<\/p>\n

Page 51 of 77<\/p>\n

duty of a public servant, while discharging his official
\nduties, to enter into a criminal conspiracy or to indulge in
\ncriminal misconduct. Want of sanction under Section 197
\nof the Code of Criminal Procedure is, therefore, no bar.\u201d
\n[Ed. : As observed in Harihar Prasad v. State of Bihar,
\n(1972) 3 SCC 89, 115, para 66 : 1972 SCC (Cri) 409.] ‘
\n[Ed. : Quoted from State of Kerala v. V. Padmanabhan
\nNair, (1999) 5 SCC 690, 692, para 7 : 1999 SCC (Cri)
\n1031.] \u201d
\n17. Likewise, in Shambhoo Nath Misra v. State of
\nU.P. [(1997) 5 SCC 326 : 1997 SCC (Cri) 676 : AIR 1997
\nSC 2102] , the Court dealt with the subject in the following
\nmanner : (SCC p. 328, para 5)
\n\u201c5. The question is when the public servant is alleged to
\nhave committed the offence of fabrication of record or
\nmisappropriation of public fund, etc. can he be said to
\nhave acted in discharge of his official duties? It is not the
\nofficial duty of the public servant to fabricate the false
\nrecord and misappropriate the public funds, etc. in
\nfurtherance of or in the discharge of his official duties.
\nThe official capacity only enables him to fabricate the
\nrecord or misappropriate the public fund, etc. It does not
\nmean that it is integrally connected or inseparably
\ninterlinked with the crime committed in the course of same
\ntransaction, as was believed by the learned Judge. Under
\nthese circumstances, we are of the opinion that the view
\nexpressed by the High Court as well as by the trial court
\non the question of sanction is clearly illegal and cannot be
\nsustained.\u201d
\n18. The ratio of the aforesaid cases, which is clearly
\ndiscernible, is that even while discharging his official duties,
\nif a public servant enters into a criminal conspiracy or
\nindulges in criminal misconduct, such misdemeanour on his
\npart is not to be treated as an act in discharge of his official
\nduties and, therefore, provisions of Section 197 of the Code
\nwill not be attracted. In fact, the High Court has dismissed
\nthe petitions filed by the appellant precisely with these
\nobservations, namely, the allegations pertain to fabricating
\nthe false records which cannot be treated as part of the
\nappellants’ normal official duties. The High Court has, thus,
\ncorrectly spelt out the proposition of law. The only question<\/p>\n

Page 52 of 77<\/p>\n

is as to whether on the facts of the present case, the same has
\nbeen correctly applied.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

63.The purpose behind the enactment of Section 197 CrPC must not be to
\nshield corrupt officials and this was the position taken in Inspector of Police
\nand Another v. Battenapatla Venkata Ratnam and Another reported in
\n(2015) 13 SCC 87. Here, the respondents while working as Sub-Registrars
\nin various offices of the State of Andhra Pradesh had conspired with stamp
\nvendors, document writers and other staff to manipulate the registers and
\nhad gotten the documents registered with the old value of the respective
\nproperties, resulting in wrongful gain to themselves and loss to the
\nGovernment. Such acts were held to not be in the discharge of their official
\nduty. The observations made are reproduced hereinbelow:
\n\u201c11. The alleged indulgence of the officers in cheating,
\nfabrication of records or misappropriation cannot be said to
\nbe in discharge of their official duty. Their official duty is not
\nto fabricate records or permit evasion of payment of duty and
\ncause loss to the Revenue. Unfortunately, the High Court
\nmissed these crucial aspects. The learned Magistrate has
\ncorrectly taken the view that if at all the said view of sanction
\nis to be considered, it could be done at the stage of trial
\nonly.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

64. This Court in Surinderjit Singh Mand and Another v. State of Punjab
\nand Another reported in (2016) 8 SCC 722 was faced with a factual
\nscenario wherein an accused was allegedly arrested in a theft case by the<\/p>\n

Page 53 of 77
\nappellant police officers on 24.06.1999 but was formally and officially
\nshown to have been arrested only on 28.06.1999. Prosecution was initiated
\nagainst the appellant officers on the basis of an FIR registered at the
\ninstance of the mother of the accused in relation to the alleged illegal
\ndetention of the accused for the period from 24.06.1999 to 28.06.1999.
\nWhile holding that no sanction to prosecute was required in the
\ncircumstances of an illegal detention, this Court observed as thus:
\n\u201c23. Having given our thoughtful consideration to the
\ncontention advanced at the hands of the learned counsel for
\nthe respondents, we are of the view that the decision
\nrendered by this Court in P.P. Unnikrishnan case [P.P.
\nUnnikrishnan v. Puttiyottil Alikutty, (2000) 8 SCC 131 :
\n2000 SCC (Cri) 1460] is clear and emphatic. The same does
\nnot leave any room for making any choice. It is apparent that
\nthe official arrest of Neeraj Kumar in terms of the provisions
\nof the Code, referred to hereinabove, would extend during
\nthe period from 28-6-1999 to 30-6-1999. The above period
\nof apprehension can legitimately be considered as having
\nbeen made \u201cwhile acting or purporting to act in the
\ndischarge of their official duties\u201d. The factual position
\nexpressed by the appellants is that Neeraj Kumar was not
\ndetained for the period from 24-6-1999 to 28-6-1999. His
\ndetention during the above period, if true, in our considered
\nview, would certainly not emerge from the action of the
\naccused while acting or purporting to act in the discharge of
\ntheir official duties. If it emerges from the evidence adduced
\nbefore the trial court that Neeraj Kumar was actually
\ndetained during the period from 24-6-1999 to 28-6-1999, the
\nsaid detention cannot be taken to have been made by the
\naccused while acting or purporting to act in the discharge of
\ntheir official duties. More so, because it is not the case of the
\nappellants that they had kept Neeraj Kumar in jail during the
\nperiod from 24-6-1999 to 28-6-1999. If they had not detained
\nhim during the above period, it is not open to anyone to
\nassume the position that the detention of Neeraj Kumar,
\nduring the above period, was while acting or purporting to<\/p>\n

Page 54 of 77<\/p>\n

act in the discharge of their official duties. Therefore, in the
\npeculiar facts and circumstances of this case, based on the
\nlegal position declared by this Court in P.P. Unnikrishnan
\ncase [P.P. Unnikrishnan v. Puttiyottil Alikutty, (2000) 8
\nSCC 131 : 2000 SCC (Cri) 1460] , we are of the considered
\nview that sanction for prosecution of the accused in relation
\nto the detention of Neeraj Kumar for the period from 24-6-
\n1999 to 28-6-1999 would not be required before a court of
\ncompetent jurisdiction takes cognizance with reference to the
\nalleged arrest of Neeraj Kumar. We therefore hereby,
\nendorse the conclusions drawn by the High Court to the
\nabove effect.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

65.Thus, the legal position that emerges from a conspectus of all the decisions
\nreferred to above is that it is not possible to carve out one universal rule that
\ncan be uniformly applied to the multivarious facts and circumstances in the
\ncontext of which the protection under Section 197 CrPC is sought for. Any
\nattempt to lay down such a homogenous standard would create unnecessary
\nrigidity as regards the scope of application of this provision. In this context,
\nthe position of law may be summarized as under: –<\/p>\n

(i) The object behind the enactment of Section 197 CrPC is to protect
\nresponsible public servants against institution of possibly false or
\nvexatious criminal proceedings for offences alleged to have been
\ncommitted by them while they are acting or purporting to act in their
\nofficial capacity. It is to ensure that the public servants are not
\nprosecuted for anything which is done by them in the discharge of their<\/p>\n

Page 55 of 77
\nofficial duties, without any reasonable cause. The provision is in the
\nform of an assurance to the honest and sincere officers so that they can
\nperform their public duties honestly, to the best of their ability and in
\nfurtherance of public interest, without being demoralized.<\/p>\n

(ii) The expression \u201cany offence alleged to have been committed by him
\nwhile acting or purporting to act in the discharge of his official duty\u201d
\nin Section 197 CrPC must neither be construed narrowly nor widely
\nand the correct approach would be to strike a balance between the two
\nextremes. The section should be construed strictly to the extent that its
\noperation is limited only to those acts which are discharged in the
\n\u201ccourse of duty\u201d. However, once it has been ascertained that the act or
\nomission has indeed been committed by the public servant in the
\ndischarge of his duty, then a liberal and wide construction must be
\ngiven to a particular act or omission so far as its \u201cofficial\u201d nature is
\nconcerned.
\n(iii) It is essential that the Court while considering the question of
\napplicability of Section 197 CrPC truly applies its mind to the factual
\nsituation before it. This must be done in such a manner that both the
\naspects are taken care of viz., on one hand, the public servant is
\nprotected under Section 197 CrPC if the act complained of falls within
\nhis official duty and on the other, appropriate action be allowed to be<\/p>\n

Page 56 of 77
\ntaken if the act complained of is not done or purported to be done by
\nthe public servant in the discharge of his official duty.<\/p>\n

(iv) A public servant can only be said to act or purport to act in the
\ndischarge of his official duty, if his act is such that it lies within the
\nscope and range of his official duties. The act complained of must be
\nintegrally connected or directly linked to his duties as a public servant
\nfor the purpose of affording protection under Section 197 CrPC.
\nHence, it is not the duty which requires an examination so much as the
\n\u201cact\u201d itself.<\/p>\n

(v) One of the foremost tests which was laid down in this regard was –
\nwhether the public servant, if challenged, can reasonably claim that,
\nwhat he does, he does in virtue of his office.<\/p>\n

(vi) Later, the test came to be re-modulated. It was laid down that there
\nmust be a reasonable connection between the act done and the
\ndischarge of the official duty and the act must bear such relation to the
\nduty such that the accused could lay a reasonable, but not a pretended
\nor fanciful claim, that his actions were in the course of performance of
\nhis duty. Therefore, the sine qua non for the applicability of this
\nsection is that the offence charged, be it one of commission or<\/p>\n

Page 57 of 77
\nomission, must be committed by the public servant either in his official
\ncapacity or under the color of the office held by him such that there is
\na direct or reasonable connection between the act and the official duty.<\/p>\n

(vii) If in performing his official duty, the public servant acts in excess of
\nhis duty, the excess by itself will not be a sufficient ground to deprive
\nthe public servant from protection under Section 197 CrPC if it is
\nfound that there existed a reasonable connection between the act done
\nand the performance of his official duty.<\/p>\n

(viii) It is the \u201cquality\u201d of the act that must be examined and the mere fact
\nthat an opportunity to commit an offence is furnished by the official
\nposition would not be enough to attract Section 197 CrPC.<\/p>\n

(ix) The legislature has thought fit to use two distinct expressions \u201cacting\u201d
\nor \u201cpurporting to act\u201d. The latter expression means that even if the
\nalleged act was done under the color of office, the protection under
\nSection 197 CrPC can be given. However, this protection must not be
\nexcessively stretched and construed as being limitless. It must be made
\navailable only when the alleged act is reasonably connected with the<\/p>\n

Page 58 of 77
\ndischarge of his official duty and not merely a cloak for doing the
\nobjectionable act.<\/p>\n

(x) There cannot be any universal rule to determine whether there is a
\nreasonable connection between the act done and the official duty, nor
\nis it possible to lay down such a rule. However, a \u201csafe and sure test\u201d
\nwould be to consider if the omission or neglect on the part of the public
\nservant to commit the act complained of would have made him
\nanswerable for a charge of dereliction of his official duty. If the answer
\nto this question is in the affirmative, the protection under Section 197
\nCrPC can be granted since there was every connection with the act
\ncomplained of and the official duty of the public servant.<\/p>\n

(xi) The provision must not be abused by public servants to camouflage
\nthe commission of a crime under the supposed color of public office.
\nThe benefit of the provision must not be extended to public officials
\nwho try to take undue advantage of their position and misuse the
\nauthority vested in them for committing acts which are otherwise not
\npermitted in law. In such circumstances, the acts committed must be
\nconsidered dehors the duties which a public servant is required to
\ndischarge or perform.<\/p>\n

Page 59 of 77
\n(xii) On an application of the tests as aforesaid, if on facts, it is prima facie
\nfound that the act or omission for which the accused has been charged
\nhas a reasonable connection with the discharge of his official duty, the
\napplicability of Section 197 CrPC cannot be denied.<\/p>\n

66.At the cost of repetition, we say that the position of law on the application
\nof Section 197 CrPC is clear \u2013 that it must be decided based on the peculiar
\nfacts and circumstances of each case. This Court has held in a legion of
\ndecisions that any misuse or abuse of powers by a public servant to do
\nsomething that is impermissible in law like threatening to provide a tutored
\nstatement or trying to obtain signatures on a blank sheet of paper; causing
\nthe illegal detention of an accused; engaging in a criminal conspiracy to
\ncreate false or fabricated documents; conducting a search with the sole
\nobject of harassing and threatening individuals, amongst others, cannot fall
\nunder the protective umbrella of Section 197 CrPC.
\n67.In light of the same, it follows that when a police official is said to have
\nlodged a false case, he cannot claim that sanction for prosecution under
\nSection 197 CrPC was required since it can be no part of the official duty
\nof a public official to lodge a bogus case and fabricate evidence or
\ndocuments in connection with the same. On examining the quality of the
\nact, it is evident that there exists no reasonable or rational nexus between<\/p>\n

Page 60 of 77
\nsuch an act and the duties assigned to the public servant for the claim that
\nit was done or purported to be done in the discharge of his official duty. The
\nmere fact that an opportunity to register a false case was furnished by the
\nofficial duty would certainly not be sufficient to apply Section 197 CrPC.
\nAllowing so, would enable the accused to use their status as public servants
\nas a facade for doing an objectionable, illegal and unlawful act and take
\nundue advantage of their position. If the Case Crime No. 967 of 2007
\nregistered at the Murar Police Station, Gwalior, by respondent nos. 3, 4 and
\n5 respectively, was a false case, then there is no doubt that the refusal to
\ngrant sanction would not operate as a bar for their prosecution. Moreover,
\nas far as the case of respondent no. 1 is concerned, it is an undisputed fact
\nthat he was not even posted as the S.H.O or T.I at the Murar Police Station
\nwhen the said false case was registered. The same is evident from the
\naffidavit submitted by the IO at Firozabad before the High Court.
\nAdditionally, the respondent no. 1 has himself admitted in his submissions
\nbefore us that he was in fact posted at District Shivpuri which is 120 kms
\naway from Gwalior during the relevant time. Therefore, any act or offence
\ncommitted by the respondent no. 1 in the present case can safely be said to
\nhave been outside the scope of his official duty which obviates the question
\nof sanction for his prosecution.<\/p>\n

Page 61 of 77
\n68. Having said the above, the question whether sanction is required or not is
\na question that may arise at any stage of the proceeding. There might arise
\nsituations where the complaint or the police report may not disclose that the
\nact constituting the offence was done or purported to be done in the
\ndischarge of official duty. However, the facts subsequently coming to light
\nmay establish the necessity for sanction. That the necessity of sanction may
\nalso reveal itself in the course of the progress of the case as was laid out in
\nMatajog (supra) as follows:
\n\u201c20. Is the need for sanction to be considered as soon as the
\ncomplaint is lodged and on the allegations therein
\ncontained? At first sight, it seems as though there is some
\nsupport for this view in Hori Ram case [(1939) FCR 159,
\n178] and also in Sarjoo Prasad v. King-Emperor [(1945)
\nFCR 227]. Sulaiman, J. says that as the prohibition is
\nagainst the institution itself, its applicability must be judged
\nin the first instance at the earliest stage of institution.
\nVaradachariar, J. also states that the question must be
\ndetermined with reference to the nature of the allegations
\nmade against the public servant in the criminal proceeding.
\nBut a careful perusal of the later parts of their judgments
\nshows that they did not intend to lay down any such
\nproposition. Sulaiman, J. refers (at P-179) to the prosecution
\ncase as disclosed by the complaint or the police report and
\nhe winds up the discussion in these words: \u201cOf course, if the
\ncase as put forward fails or the defence establishes that the
\nact purported to be done is in execution of duty, the
\nproceedings will have to be dropped and the complaint
\ndismissed on that ground\u201d. The other learned Judge also
\nstates at p. 185, \u201cAt this stage we have only to see whether
\nthe case alleged against the appellant or sought to be
\nproved against him relates to acts done or purporting to be
\ndone by him in the execution of his duty\u201d. It must be so. The
\nquestion may arise at any stage of the proceedings. The
\ncomplaint may not disclose that the act constituting the
\noffence was done or purported to be done in the discharge of<\/p>\n

Page 62 of 77<\/p>\n

official duty; but facts subsequently coming to light on a
\npolice or judicial inquiry or even in the course of the
\nprosecution evidence at the trial, may establish the necessity
\nfor sanction. Whether sanction is necessary or not may have
\nto be determined from stage to stage. The necessity may
\nreveal itself in the course of the progress of the case.\u201d
\n(emphasis supplied)<\/p>\n

69. In Pukhraj v. State of Rajasthan and Another reported in (1973) 2 SCC
\n701, the 2nd respondent was alleged to have abused and kicked his clerk
\nwho was his subordinate and was charged under Sections 323 and 504 IPC.
\nThe Court opined that such an act cannot be said to be in the purported
\nexercise of his duty and held that sanction under Section 197 CrPC was not
\nnecessary. However, it was also observed that the necessity of sanction may
\nreveal itself in the course of progress of the case and that it would be open
\nto the accused to place materials on record during the trial for showing what
\nhis duty was and also that the acts complained of were so interrelated to his
\nduty that protection under Section 197 CrPC must be granted to him. It was
\nobserved as follows:
\n\u201c3. We must also make it clear that this is not the end of the<\/p>\n

matter. As was pointed out in Sarjoo Prasad v. King-
\nEmperor [AIR 1946 FC 25 : 1954 FCR 227 : 47 Cri LJ 838]<\/p>\n

referring to the observations of Sulaiman, J. in Hori Ram
\nSingh case the mere fact that the accused proposes to raise
\na defence of the act having purported to be done in execution
\nof duty would not in itself be sufficient to justify the case
\nbeing thrown out for want of sanction. At this stage we have
\nonly to see whether the acts alleged against the 2nd
\nrespondent can be said to be in purported execution of his
\nduty. But facts subsequently coming to light during the
\ncourse of the judicial inquiry or during the course of<\/p>\n

Page 63 of 77<\/p>\n

prosecution evidence at the trial may establish the necessity
\nfor sanction. Whether sanction is necessary or not may have
\nto depend from stage to stage. The necessity may reveal itself
\nin the course of the progress of the case [see observations
\nin Matajog Dobey v. H.C. Bhari]. In Bhagwan Prasad
\nSrivastava v. N.P. Misra also it was pointed out that it would
\nbe open to the appellant (the 2nd respondent in this case) to
\nplace the material on record during the course of the trial
\nfor showing what his duty was and also that the acts
\ncomplained of were so inter-related with his official duty so
\nas to attract the protection afforded by Section 197 CrPC.\u201d
\n(emphasis supplied)<\/p>\n

70. In B. Saha (supra), the Court went on to observe that they have no quarrel
\nwith the proposition that the question of sanction under Section 197 CrPC
\ncan be raised and considered at any stage of the proceedings. Moreover, it
\nwas also stated that in considering the question whether or not sanction for
\nprosecution was required, it is not necessary for the Court to confine itself
\nto the allegations in the complaint, and it can take into account all the
\nmaterial on record at the time when the question is raised and falls for
\nconsideration. Similar to the rationale adopted in B. Saha (supra), this
\nCourt in State of Bihar v. Kamla Prasad Singh and Others reported in
\n(1998) 5 SCC 690 also re-affirmed that while determining whether the
\npublic servant was \u201cacting in the discharge of his official duty\u201d, the Court
\nmust consider not only the allegations made in the complaint but also other
\nmaterials available on record.<\/p>\n

Page 64 of 77
\n71. In Bakhshish Singh Brar v. Gurmej Kaur and Another reported in (1987)
\n4 SCC 663, the petitioner police officer along with 14 other persons was
\ncharged under Sections 148, 149, 302, 323 and 325 IPC for allegedly
\ncausing hurt to the complainant and also causing the death of her son. This
\nCourt had emphasized that a balance has to be struck between protecting
\npublic servants from being harassed in criminal prosecutions and protecting
\nthe rights of the citizens against unlawful acts of public servants. This must
\nbe done by examining as to what extent and how far is a public servant
\nworking in the discharge or purported discharge of his duties and whether
\nthe public servant had exceeded his limit. Having said so, it was observed
\nthat criminal trials must also not be stayed in all cases at the preliminary
\nstage because that will cause great damage to the evidence. The relevant
\nobservations are reproduced hereinbelow:
\n\u201c6. In the instant case, it is alleged that grievous injuries
\nwere inflicted upon the complainant and as a result of
\ninjuries one of the alleged accused had died. The question is
\nwhile investigating and performing his duties as a police
\nofficer was it necessary for the petitioner to conduct himself
\nin such a manner which would result in such consequences.
\nIt is necessary to protect the public servants in the discharge
\nof their duties. They must be made immune from being
\nharassed in criminal proceedings and prosecution, that is the
\nrationale behind Section 196 and Section 197 of the CrPC.
\nBut it is equally important to emphasise that rights of the
\ncitizens should be protected and no excesses should be
\npermitted. \u201cEncounter death\u201d has become too common. In
\nthe facts and circumstance of each case protection of public
\nofficers and public servants functioning in discharge of
\nofficial duties and protection of private citizens have to be
\nbalanced by finding out as to what extent and how far is a<\/p>\n

Page 65 of 77<\/p>\n

public servant working in discharge of his duties or
\npurported discharge of his duties, and whether the public
\nservant has exceeded his limit. It is true that Section 196
\nstates that no cognizance can be taken and even after
\ncognizance having been taken if facts come to light that the
\nacts complained of were done in the discharge of the official
\nduties then the trial may have to be stayed unless sanction is
\nobtained. But at the same time it has to be emphasised that
\ncriminal trials should not be stayed in all cases at the
\npreliminary stage because that will cause great damage to
\nthe evidence.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

72. This Court in P.K. Pradhan v. State of Sikkim reported in (2001) 6 SCC
\n704 re-emphasized that for invoking protection under Section 197 CrPC,
\nthe acts of the accused must be such that it cannot be separated from the
\ndischarge of the official duty. However, if there was no reasonable
\nconnection between the act and the performance of those duties, and the
\nofficial status only furnishes the occasion or opportunity for the illegal act,
\nthen no sanction would be required. The Court acknowledged that the
\nquestion of sanction can be raised at any time after cognizance i.e., maybe
\nimmediately after cognizance or framing of charge or even at the time of
\nconclusion of trial and after conviction as well. However, there may be
\ncertain cases where it may not be possible to decide the question of sanction
\neffectively without giving opportunity to the defence to establish that what
\nhe did, he did in the discharge of official duty. In such cases, the question
\nof sanction must be left open to be decided in the main judgment which may<\/p>\n

Page 66 of 77
\nbe delivered upon conclusion of the trial. The relevant observations are as
\nfollows:<\/p>\n

\u201c15….It is well settled that question of sanction under
\nSection 197 of the Code can be raised any time after the
\ncognizance; maybe immediately after cognizance or framing
\nof charge or even at the time of conclusion of trial and after
\nconviction as well. But there may be certain cases where it
\nmay not be possible to decide the question effectively without
\ngiving opportunity to the defence to establish that what he
\ndid was in discharge of official duty. In order to come to the
\nconclusion whether claim of the accused that the act that he
\ndid was in course of the performance of his duty was a
\nreasonable one and neither pretended nor fanciful, can be
\nexamined during the course of trial by giving opportunity to
\nthe defence to establish it. In such an eventuality, the
\nquestion of sanction should be left open to be decided in the
\nmain judgment which may be delivered upon conclusion of
\nthe trial.
\n16. In the present case, the accused is claiming that in
\nawarding contract in his capacity as Secretary, Department
\nof Rural Development, Government of Sikkim, he did not
\nabuse his position as a public servant and works were
\nawarded in favour of the contractor at a rate permissible
\nunder law and not low rates. These facts are required to be
\nestablished which can be done at the trial. Therefore, it is not
\npossible to grant any relief to the appellant at this stage.
\nHowever, we may observe that during the course of trial, the
\ncourt below shall examine this question afresh and deal with
\nthe same in the main judgment in the light of the law laid
\ndown in this case without being prejudiced by any
\nobservation in the impugned orders.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

73.This Court in Devinder Singh v. State of Punjab reported in (2016) 12 SCC
\n87 had observed that sometimes certain questions about the requirement of
\nsanction cannot be decided without evidence and questions like the good<\/p>\n

Page 67 of 77
\nfaith or bad faith of the public servant can be decided on the conclusion of
\ntrial. The relevant observations made are reproduced hereinbelow:
\n\u201c39.8. Question of sanction may arise at any stage of
\nproceedings. On a police or judicial inquiry or in course of
\nevidence during trial. Whether sanction is necessary or not
\nmay have to be determined from stage to stage and material
\nbrought on record depending upon facts of each case.
\nQuestion of sanction can be considered at any stage of the
\nproceedings. Necessity for sanction may reveal itself in the
\ncourse of the progress of the case and it would be open to the
\naccused to place material during the course of trial for
\nshowing what his duty was. The accused has the right to lead
\nevidence in support of his case on merits.
\n39.9. In some cases, it may not be possible to decide the
\nquestion effectively and finally without giving opportunity to
\nthe defence to adduce evidence. Question of good faith or
\nbad faith may be decided on conclusion of trial.
\n40. In the instant cases, the allegation as per the prosecution
\ncase is that it was a case of fake encounter or death caused
\nby torture whereas the defence of the accused person is that
\nit was a case in discharge of official duty and as the deceased
\nwas involved in the terrorist activities and while maintaining
\nlaw and order the incident has taken place. The incident was
\nin the course of discharge of official duty. Considering the
\naforesaid principles in case the version of the prosecution is
\nfound to be correct, there is no requirement of any sanction.
\nHowever, it would be open to the accused persons to adduce
\nthe evidence in defence and to submit such other materials
\non record indicating that the incident has taken place in
\ndischarge of their official duties and the orders passed
\nearlier would not come in the way of the trial court to decide
\nthe question afresh in the light of the aforesaid principles
\nfrom stage to stage or even at the time of conclusion of the
\ntrial at the time of judgment. As at this stage it cannot be said
\nwhich version is correct. The trial court has prima facie to<\/p>\n

proceed on the basis of the prosecution version and can re-
\ndecide the question afresh in case from the evidence adduced<\/p>\n

by the prosecution or by the accused or in any other manner
\nit comes to the notice of the court that there was a reasonable<\/p>\n

Page 68 of 77<\/p>\n

nexus of the incident with discharge of official duty, the court
\nshall re-examine the question of sanction and take decision
\nin accordance with law. The trial to proceed on the aforesaid
\nbasis.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

74.The legal position that emerges from the discussion of the aforesaid case
\nlaws is that:
\n(i) There might arise situations where the complaint or the police report
\nmay not disclose that the act constituting the offence was done or
\npurported to be done in the discharge of official duty. However, the
\nfacts subsequently coming to light may establish the necessity for
\nsanction. Therefore, the question whether sanction is required or not
\nis one that may arise at any stage of the proceeding and it may reveal
\nitself in the course of the progress of the case.<\/p>\n

(ii) There may also be certain cases where it may not be possible to
\neffectively decide the question of sanction without giving an
\nopportunity to the defence to establish that what the public servant
\ndid, he did in the discharge of official duty. Therefore, it would be
\nopen to the accused to place the necessary materials on record during
\nthe trial to indicate the nature of his duty and to show that the acts
\ncomplained of were so interrelated to his duty in order to obtain
\nprotection under Section 197 CrPC.<\/p>\n

Page 69 of 77
\n(iii) While deciding the issue of sanction, it is not necessary for the Court
\nto confine itself to the allegations made in the complaint. It can take
\ninto account all the material on record available at the time when
\nsuch a question is raised and falls for the consideration of the Court.<\/p>\n

(iv) Courts must avoid the premature staying or quashing of criminal
\ntrials at the preliminary stage since such a measure may cause great
\ndamage to the evidence that may have to be adduced before the
\nappropriate trial court.<\/p>\n

75.In the present case, we are concerned with the allegation of registering an
\nFIR i.e., Case Crime No. 967 of 2007 for the offence under Section 34 of
\nthe Excise Act at the Murar Police Station, Gwalior, Madhya Pradesh at the
\ninstance of the accused respondents so as to facilitate one Ashok Dixit in
\nraising the plea of alibi in Case Crime No. 617 of 2007 filed at the Dakshin
\nPolice Station, Firozabad, Uttar Pradesh for the murder of the appellant\u2019s
\nbrother. The appellant\u2019s brother was shot dead at 08:30 am on 12.10.2007
\nin Firozabad, Uttar Pradesh and the arrest of the accused Ashok Dixit for
\nthe offence under the Excise Act is said to have been made at 09:30 am on
\nthe very same day in Gwalior, Madhya Pradesh. Evidently the accused in
\nboth the cases i.e., Ashok Dixit could not have been simultaneously present<\/p>\n

Page 70 of 77
\nat both the places on the same day, especially when the distance between
\nthe two locations is 160 Kms and such a distance cannot be covered by road
\nin one hour. This is precisely the reason why the appellant asserts that the
\ncase registered at Gwalior is false or in other words concocted.<\/p>\n

76.It is relevant to note that the Trial Court vide its order dated 10.07.2015 held
\nthe accused, Ashok Dixit along with 11 others guilty of murder of the
\nappellant\u2019s brother. In doing so, the Trial Court had made some pertinent
\nobservations regarding the registration of the case under the Excise Act by
\nthe accused respondents. The Trial Court had arrived at a categorical
\nfinding that the second FIR was registered as a result of collusion by the
\npresent accused respondents with Ashok Dixit. It has been observed that the
\nIO at Dakshin, Firozabad after thorough investigation had found out that
\nthe entire case was concocted and hence, the Charge Sheets giving rise to
\nCase Nos. 67 of 2008 and 67A of 2009 had been filed against the accused
\nrespondents for being involved in the conspiracy of murder. The Trial Court
\nalso observed that the accused respondents had been suspended by the SSP,
\nGwalior and a departmental inquiry had been initiated against them. Adding
\nto the above, the High Court of Madhya Pradesh vide order dated
\n25.08.2009 had also stayed the proceedings in Case No. 15003 of 2007
\n(State vs. Ashok Dixit) under Section 34 of the Excise Act which is pending<\/p>\n

Page 71 of 77
\nbefore the CJM, Gwalior for the reason that a decision in that case might
\ncause severe prejudice to the case of murder of the appellant\u2019s brother.<\/p>\n

77.The statements of the respondent nos. 3, 4 and 5 respectively recorded
\nearlier by the IO at Dakshin, Firozabad during the course of his
\ninvestigation on 23.01.2008 and later by the SHO of the Murar Police
\nStation, D.S. Khushawa on 12.02.2008, under Section 161 CrPC, are the
\nonly pieces of evidence that have been adduced before us for our
\nconsideration. Those statements reveal that \u2013 (a) amongst the two panchas
\nof arrest and seizure namely, Shailendra Singh and Triloki Gaur in the
\nalleged false second case i.e., Case Crime No. 967 of 2007, Triloki Gaur
\nwas the former driver of the respondent no. 1, (b) the respondent no. 1 had
\narrived at the Murar Police Station shortly after the alleged arrest of Ashok
\nDixit and had conversed with the SHO of the Murar Police Station, D. S.
\nKhushawa, (c) the respondent no. 1 also had a conversation with the person
\narrested by the accused respondents, and (d) the respondent no. 1 had asked
\nthe SHO of the Murar Police Station, D.S. Khushawa, to release the arrested
\nperson on bail stating that he was his relative. However, it is settled law that
\na statement recorded under Section 161 CrPC does not constitute
\nsubstantive evidence and can only be utilized for the limited purpose of
\nproving contradictions and\/or omissions as envisaged under Section 145 of
\nthe Evidence Act, 1872. This has been laid down in a catena of decisions<\/p>\n

Page 72 of 77
\nincluding in Parvat Singh and Others v. State of Madhya Pradesh reported
\nin (2020) 4 SCC 33 which observed as follows:
\n\u201c13.1…However, as per the settled proposition of law a
\nstatement recorded under Section 161 CrPC is inadmissible
\nin evidence and cannot be relied upon or used to convict the
\naccused. As per the settled proposition of law, the statement
\nrecorded under Section 161 CrPC can be used only to prove
\nthe contradictions and\/or omissions. Therefore, as such, the
\nHigh Court has erred in relying upon the statement of PW 8
\nrecorded under Section 161 CrPC while observing that the
\nappellants were having the lathis.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

78.The aforesaid position of law was reiterated in Birbal Nath v. State of
\nRajasthan reported in 2023 SCC OnLine SC 1396 which observed as thus:
\n\u201c19. Statement given to police during investigation under
\nSection 161 cannot be read as an \u201cevidence\u201d. It has a limited
\napplicability in a Court of Law as prescribed under Section
\n162 of the Code of Criminal Procedure (Cr.P.C.).
\n20. No doubt statement given before police during
\ninvestigation under Section 161 are \u201cprevious statements\u201d
\nunder Section 145 of the Evidence Act and therefore can be
\nused to cross examine a witness. But this is only for a limited
\npurpose, to \u201ccontradict\u201d such a witness. Even if the defence
\nis successful in contradicting a witness, it would not always
\nmean that the contradiction in her two statements would
\nresult in totally discrediting this witness. It is here that we
\nfeel that the learned judges of the High Court have gone
\nwrong.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

79. Moreover, the statements of the two independent witness i.e., Ramesh
\nYadav and Barelal recorded on 25.10.2008 by the IO at Dakshin, Firozabad,
\nimplicating the respondent no. 1, cannot be taken as a gospel truth either,<\/p>\n

Page 73 of 77
\nespecially when they were not examined in the Session Trial Nos. 753 and
\n753A of 2008 respectively which resulted in the conviction of the accused
\nAshok Dixit. Therefore, we are a bit hesitant to rely on the version of events
\nas stated under these statements recorded under Section 161 CrPC at this
\nstage. It would be best left for the Trial Court to decide the truthfulness and
\nveracity of these statements which allegedly prove the case of the
\nprosecution.<\/p>\n

80.Furthermore, the respondent no. 1 has contended that no departmental
\ninquiry was ever initiated against him in relation to the registration of Case
\nCrime No. 967 of 2007. However, the Trial Court in its order dated
\n10.07.2015 has made an observation that the respondent nos 1, 3, 4 and 5
\nrespectively were suspended and also subjected to an inquiry. Whether the
\ndepartmental inquiry was initiated against all the accused respondents or
\njust some of them and the exact findings of the inquiry is also an aspect
\nwhere there exists some ambiguity.<\/p>\n

81.Having said so, on the other hand, the respondent nos. 3, 4 and 5
\nrespectively have also not adduced any credible evidence before us to prima
\nfacie establish that it was Ashok Dixit who was arrested at 09:30 am at
\nMurar, Gwalior; that the illegal liquor carried by him was seized, and that
\nhe was later released from the Murar Police Station on the directions of<\/p>\n

Page 74 of 77
\nSHO, D.S. Khushawa upon furnishing a surety. It is true that the offence
\ncontemplated under Section 34 of the Excise Act is bailable and that any
\naccused under the said offence would be entitled to be released on bail from
\nthe police station. However, bearing in mind that there exist serious
\nsuspicion as to whether an arrest was ever made to begin with and if made,
\nwhether it was Ashok Dixit who was indeed arrested, we find ourselves
\nunable to arrive at an appropriate decision at this stage due to lack of reliable
\nand credible evidence to verify the same. The respondent nos. 3, 4 and 5
\nrespectively have stated that the accused had identified himself to be Ashok
\nDixit upon arrest and it is unclear whether the identity of the said accused
\nwas further duly verified while the case was registered under the Excise
\nAct. Despite the appellant\u2019s allegation that the release of the said accused
\non bail from the police station was done hurriedly, almost immediately after
\narrest, in order to conceal the identity of the person who was released and
\nthat an unconnected stranger might have been released from the police
\nstation, no other material which substantiates the bona fides of respondent
\nnos. 3, 4 and 5 have been made available before us at the present moment.<\/p>\n

82.It is the case of the IO at Dakshin, Firozabad that sanction for prosecution
\nof the accused respondents was not granted by the D.I.G., Gwalior citing
\nthe pendency of Case No. 15003 of 2007 in Case Crime No. 967 of 2007
\nregistered for the offence under the Excise Act before the CJM, Gwalior.<\/p>\n

Page 75 of 77
\nHowever, those proceedings have been stayed by the High Court of Madya
\nPradesh vide order dated 25.08.2009 and therefore, the question of sanction
\ncan be re-visited, if found necessary.<\/p>\n

83.As far as respondent no. 1 is concerned, it is made clear that there would be
\nno requirement for sanction since he was not acting in the discharge of his
\nofficial duty by virtue of not being posted at Murar Police Station, Gwalior
\nat the relevant time when the alleged false case was registered. As a
\nconsequence, the extent of the involvement of respondent no. 1 in the
\nalleged conspiracy to murder can be determined by the Trial Court upon a
\nfurther examination of the evidence adduced before itself. However, so far
\nas the respondent nos. 3, 4 and 5 respectively are concerned, if the case of
\nthe prosecution that they had also played a dubious role in registering a false
\ncase is correct then the requirement of sanction would not be a sin qua non
\nfor proceeding further with the criminal proceedings. However, the defence
\nmust be given an opportunity to rebut the same by leading appropriate
\nevidence.<\/p>\n

84.At this juncture on a prima facie examination of the materials adduced
\nbefore us, we are of the opinion that the criminal proceedings pending
\nbefore the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009 should
\nnot have been quashed at such a preliminary stage. In cases where there is<\/p>\n

Page 76 of 77
\na legitimate doubt as regards whether sanction for prosecution under
\nSection 197 CrPC is required or not, the progress of the trial must not be
\nhampered or unnecessarily delayed. Therefore, the CJM, Firozabad had
\nrightly taken cognizance of the two charge sheets vide its orders dated
\n24.11.2008 and 10.08.2009 respectively. The High Court committed an
\nerror in failing to consider this aspect while quashing the proceedings in
\nCase No. 67 of 2008 and 67A of 2009 respectively vide its impugned order.<\/p>\n

85.In view of the aforesaid discussion, the Trial Court is directed to proceed
\nwith the trial and at any stage of the trial if the evidence suggests that the
\nacts complained of were indeed done or purported to be done in the
\ndischarge of official duty by respondent nos. 3, 4 and 5 respectively or that
\nthe FIR registered by them was not bogus, the trial may be stayed for want
\nof sanction. Therefore, the question of sanction only qua respondent nos. 3,
\n4 and 5 respectively is left open to be appropriately decided by the Trial
\nCourt at a suitable stage, in accordance with the law, without being
\nprejudiced by any of the observations made in this order as well as in the
\norder passed by the High Court. As these proceedings arise from a case
\nregistered more than 16 years ago, the Trial Court is directed to proceed
\nwith the trial & conclude it expeditiously preferably within one year from
\ntoday.<\/p>\n

Page 77 of 77<\/p>\n

G. CONCLUSION<\/p>\n

86.In light of the aforesaid, the appeals filed by the appellant are allowed and
\nthe impugned order passed by the High Court is set aside.<\/p>\n

87. We dispose of the present appeals in light of the aforesaid directions.<\/p>\n

88.Pending application(s), if any, shall stand disposed of.<\/p>\n

………………………………………J.
\n(J.B. Pardiwala)<\/p>\n

………………………………………J.
\n(Manoj Misra)<\/p>\n

New Delhi.
\n13th December, 2024.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

\u0ba4\u0ba9\u0bbf \u0ba8\u0baa\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0baa\u0bca\u0baf\u0bcd \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0baa\u0bcb\u0b9f\u0bc1\u0bae\u0bcd \u0baa\u0bcb\u0bb2\u0bc0\u0b9a\u0bbe\u0bb0\u0bcd \u0bae\u0bc0\u0ba4\u0bc1 \u0bb5\u0bb4\u0b95\u0bcd\u0b95\u0bc1 \u0ba4\u0bca\u0b9f\u0bb0 \u0b85\u0bb0\u0b9a\u0bbf\u0ba9\u0bcd \u0b85\u0ba9\u0bc1\u0bae\u0ba4\u0bbf \u0ba4\u0bc7\u0bb5\u0bc8 \u0b87\u0bb2\u0bcd\u0bb2\u0bc8, \u0b89\u0b9a\u0bcd\u0b9a \u0ba8\u0bc0\u0ba4\u0bbf\u0bae\u0ba9\u0bcd\u0bb1\u0bae\u0bcd. IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 5267-5268 OF 2024 (Arising out of S.L.P. (Crl.) Nos. 8239-8240 of 2018) OM PRAKASH YADAV …APPELLANT(S) VERSUS NIRANJAN KUMAR UPADHYAY & ORS …RESPONDENT(S) J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":15018,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[481],"tags":[461,15,462],"class_list":["post-15017","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-481","tag-judgments-","tag-supreme-court--","tag-462"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"https:\/\/service-public.in\/wp-content\/uploads\/2025\/03\/False-Case.png","_links":{"self":[{"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/posts\/15017","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/service-public.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15017"}],"version-history":[{"count":1,"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/posts\/15017\/revisions"}],"predecessor-version":[{"id":15019,"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/posts\/15017\/revisions\/15019"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/service-public.in\/index.php?rest_route=\/wp\/v2\/media\/15018"}],"wp:attachment":[{"href":"https:\/\/service-public.in\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15017"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/service-public.in\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15017"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/service-public.in\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15017"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}