# Vijay Kumar Pandey v. Union of India & Ors

- **Citation:** (2020) 6 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-pandey-v-union-of-india-ors-45859
- **Pages:** 11

## Headnote

A.G.A.,
A.S.G.I.2016/0057,
Sri
R.P.S.
Chauhan

Section 197 (1) Cr.P.C.-Constitutional validity
of section 197 (1) Cr.P.C. challenged-as it is
discriminatory by excluding such public servants
-who are not removable with sanction of State
Government
-Petitioner-Deputy
Jailor-be
appointed or removed without sanction of State
Government-section 197 Cr.P.C. purpose-State
also concerned with such offence by public
servants-not discriminatory-Mandamus to State
for ammending section 197 Cr.P.C. -cannot be
issued-being of legislative character.

Writ Petition dismissed. (E-9)

List of cases cited:-

1.State of Orissa through Kumar Raghvendra
Singh and Ors. vs. Ganesh Chandra Jew,
2004(8) SCC 40;

## Text

6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
569
to deposit Rs.50,000/- within a period of
three months, after being released from jail
before the trial court and, in turn, the trial
court shall disburse the said amount to Smt.
Rani (PW-1) and Sri Kalyan Singh (PW-2),
mother
and
father
of
the
deceased
respectively. In case, the appellant fails to
deposit the said compensation amount
within the stipulated time, the court below
shall proceed against him in the light of
judgment of the Apex Court reported in
Kumaran vs. State of Kerala and another,
(2017) 7 SCC 471.

30. The appeal is partly allowed.

31. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.
----------

(2020)06ILR A569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Crl. Misc. Writ Petition No. - 10661 of 2016

Vijay Kumar Pandey ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Neeraj Pandey, Sri Raj Kumar Sharma

Counsel for the Respondents:
A.G.A.,
A.S.G.I.2016/0057,
Sri
R.P.S.
Chauhan

Section 197 (1) Cr.P.C.-Constitutional validity
of section 197 (1) Cr.P.C. challenged-as it is
discriminatory by excluding such public servants
-who are not removable with sanction of State
Government
-Petitioner-Deputy
Jailor-be
appointed or removed without sanction of State
Government-section 197 Cr.P.C. purpose-State
also concerned with such offence by public
servants-not discriminatory-Mandamus to State
for ammending section 197 Cr.P.C. -cannot be
issued-being of legislative character.

Writ Petition dismissed. (E-9)

List of cases cited:-

1.State of Orissa through Kumar Raghvendra
Singh and Ors. vs. Ganesh Chandra Jew,
2004(8) SCC 40;

2. D.T. Virupakshappa vs. C. Subhash, 2015(12)
SCC 231;

3. R.S. Nayak vs. A.R. Antulay, AIR 1984 SC
684;

4. Ram Krishna Dalmia vs. Shri Justice S.R.
Tendolkar and Ors., 1959 SCR 279;

5.The State of West Bengal vs. Anwar Ali
Sarkar, 1952 SCR 284;

6. Western M.P. Electric Power and Supply
Company Ltd. vs. State of U.P. and Anr.,
1969(3) SCR 865

7.
Hanumant
Shrinivas
Kulkarni
Versus
Emperor, (31) 1930 Crl.L.J. 353

8. E Versus G. Sadagopan, 1953 Crl.L.J.1929

9.Indu Bhushan Chatterjee Versus State, AIR
1955 Cal.430

10.Gurbachan Singh Versus State, AIR 1970
Delhi 102

11. R. Bala Krishna Pillai Vs. State of Kerala,
(1996) 1 SCC 478

12.P.V. Narsimha Rao Versus The State, AIR
1998 SC 2120

13.Gauri Shankar Prasad Vs. State of Bihar,
2000 SCC (Cri) 872
570 INDIAN LAW REPORTS ALLAHABAD SERIES
14.State of Himachal Pradesh Vs. M.P.
Gupta, 2004(2) SCC 349

15. State of Orissa and others Vs. Ganesh
Chandra Jew, AIR 2004 SC 2179

16. Rakesh Kumar Mishra Versus State of
Bihar, JT 2006 (1) SC 1

17. Devinder Singh and others vs. State of
Punjab through CBI, (2016) 12 SCC 87

18.S.A. Venkataraman Versus State, 1958
SCR 1040

19. Dilawar Singh Versus Parvinder Singh @
Iqbal Singh & another, (2005) 12 SCC 709

20. Union of India & ors Vs. Parul
Debnath & ors JT 2009 (9) SC 134

21.
Maharastra
State
Road
Transport
Corporation & Anr Vs. Casteribe Rajya P.
Karmchari Sanghatana JT 2009 (11) SC 609

(Delivered by Hon'ble Sudhir Agarwal, J.
& Hon'ble Rajeev Misra, J.)

1. Heard Sri Raj Kumar Sharma,
Advocate for petitioner and Sri Udit
Chandra, learned A.G.A. as well as Sri
R.P.S. Chauhan, Advocate for respondents.

2.

Petitioner
has
assailed
constitutional validity of Section 197(1) of
Criminal
Procedure
Code,
1973
(hereinafter referred to as "Cr.P.C.") as
violative of Articles 14 and 16 of
Constitution of India to the extent those
public servants are excluded who are not
removable by State Government. It has also
sought
a
mandamus
commanding
Respondents-1 and 2 to amend Section
197(1) so as to include petitioner as well as
those
public
servants
who
are
not
removable by State Government or Central
Government. Petitioner has further sought a
writ of certiorari to quash entire criminal
proceedings in Criminal Case No. 5375 of
2005 as also order dated 10.12.2015 passed
by Chief Judicial Magistrate, Ghazipur
taking cognizance upon charge sheet No.
41A/14 dated 30.08.2014, arising out of
Case Crime No. 244 of 2014, under
Sections 323, 504, 325, 302 IPC, Police
Station
Kotwali
Ghazipur,
District
Ghazipur. Petitioner has also sought a writ
of mandamus commanding respondents to
obtain sanction from appropriate authority
before prosecuting petitioner.

3. Facts, in brief, giving rise to
present writ petition are that petitioner was
appointed as Deputy Jailer in 2001 and
initially posted at District Jail, Pratapgarh
wherefrom he was transferred to different
District Jails and in 2014 posted at District
Jail Ghazipur. On 14.02.2014 petitioner
was discharging his duties as Deputy Jailer
as also Jailer Incharge of District Jail,
Ghazipur since the post of Jailer was
vacant and Jail Superintendent was on
leave. On the said day petitioner
alongwith other Jail Officials made
search operations to find out use of
illegal means for communication, i.e.,
Mobile Phones etc., when some inmates
resisted and even attacked petitioner and
his colleagues in planned manner so as
to escape from Jail. They also started
pelting stones forcing petitioner and his
team to return to barracks. Aforesaid
inmates while causing violence on
petitioner and his team also caused
destruction of Government property in
order to break main gate of Jail. In
respect of above destruction of public
property and violence caused by some
prisoners,
petitioner
lodged
First
Information Report (hereinafter referred
to as "FIR") dated 14.02.2014 as Case
Crime No. 243 of 2014 for the offences
under Sections 353, 332, 147, 148, 149,
6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
571
307, 336, 436, 436, 427 IPC at Police
Station Kotwali Ghazipur. The violence
also caused injury to petitioner and his
colleagues. Petitioner sustained injury in
his left hand leading to fracture of
second metacarpal bone of left index
finger,
besides
other
injuries.
The
miscreants in Jail also attacked jail
vehicles parked in jail campus. The said
incident
caused
death
of
one,
Vishwanath Prajapati, a prisoner, due to
gun shot injury, he sustained on his left
thigh, and later succumbed due to
excessive bleeding.

4. Prisoners in Jail also lodged FIR
against petitioner and five other Jail
Warders, registered as Case Crime No.
244 of 2014, under Sections 147, 323,
504, 307 IPC, Police Station Kotwali
Ghazipur, District Ghazipur. During
investigation, Sections 148, 149, 109,
120B IPC were added and Section 307
IPC was converted into Section 302 IPC.

5. Petitioner also moved a Criminal
Misc. Bail Application No. 10730 of
2014, which was allowed by this Court
on 17.04.2014.

6. Police after making investigation
submitted charge sheet No. 41A/14
dated 30.08.2014 and another charge
sheet No. 41/14 dated 11.05.2014 in
Case Crime No. 244 of 2014. Charge
sheet No. 41/14 was filed against 11
prisoners and charge sheet No. 41A/14
was filed against petitioner and other jail
officials.

7. Respondent-5 before filing charge
sheet against petitioner opined that sanction
from Government under Section 197 Cr.P.C. be
obtained
whereupon
Respondent-4,
i.e.,
Inspector General, Prison Administration and
Reforms, U.P., Lucknow opined, vide letter
dated 26.08.2014, that petitioner is a "Deputy
Jailer" and for his removal sanction of State
Government is not required, therefore, he is not
a public servant, who is within the ambit of
Section 197(1) Cr.P.C., hence no sanction
under Section 197 is admissible.

8. Learned counsel for petitioner
contended that making Section 197 Cr.P.C.
inapplicable to petitioner is arbitrary. Statutory
duties of petitioner as Deputy Jailer are at par
with that of Jailer and for this purpose he placed
reliance on Paras 838 to 840 of U.P. Jail
Manual, which read as under:

"838. Duties of Jailors or
Deputy
Jailors
before
arrival
of
Superintendent:-Pending the arrival of
the Superintendent, the jailor or the
deputy jailor shall act in accordance
with the following instructions:

(1) He shall post sentries above the
main gate to observe and report the movement
of the prisoners and detail a parity of warders
of duty around the main wall of the jail.

(2) If the sentries on the main
gate roof report that the main gate is clear,
he shall take the remainder of the guard
inside the jail, and in the event of an
outbreak proceed to the scene, and if the
circumstances are such as a necessitate
immediate action, he shall warn the
prironers three times in a loud voice that if
they do not atonce submit and peacefully
disperse, they shall be fired upon. If the
circumstances are such delay the warning
need not be repeated. If upon being
warned, the prisoners do not submit and
disperse, and if there appear to be no other
immediate
means
of
quelling
the
disturbance, he shall order the guard to
fire upon them. But the firing shall cease
the moment the prisoners disperse or yield.
572 INDIAN LAW REPORTS ALLAHABAD SERIES

839. Superintendent to assume
charge of operations.--The Superintendent
shall on arrival assume charge of the
operations.

840. Use of arms at outbreaks or
attempted escape-The following rules have
been made under clause (6), Section 59 of
the Prisons Act, 1894 (Act IX of 1894),
regulating the use of arms against any
prisoners or body of prisoners in the case
of an outbreak of attempt to escape:

(1) Any officer of the prison may
use a sword, baynot, firearm or any other
weapon against any prisoner escaping or
attempting to escape; provided that resort
shall not be had to the use of any such
weapon unless such officer has reasonable
ground to believe that he cannot otherwise
prevent the escape.

(2) Any officer of the prison may
use a sword, baynot, firearm or any other
weapon on any prisoner engaged in any
combined outbreak or any attempt to force
or break open the outer gate or enclosure
wall of the prison, and may continue to use
such weapon so long as such combined
outbreak or attempt is being actually
prosecuted.

(3) Any officer of the prison may
use a sword, bayonet, firearm or any other
weapon
against
any
prisoner
using
violence to any offfice of the prisoner or
other person; provided that the such officer
of the prison or other person is in danger of
life or limb, or that other grievous hurt is
likely to be caused to him.

(4) Before using firearm against
a prisoner under this paragraph, the officer
of
the
prison
shall,
except
where
circumstances
make
such
course
impossible, give a warning to the prisoner
that he is about to fire on him.

(5) No officer of the prison shall,
when a superior officer is present, use any
arms against a prisoner under this
paragraph except under the orders of such
superior officer."

9. It is contended that confining the
scope of sanction under Section 197
Cr.P.C. only to such public servants who
are not removable except by sanction of
State Government and thereby creating two
classes of public servants, i.e., those who
are removable and those who are not so, is
arbitrary
creating
an
artificial
discrimination, hence violative of Articles
14 and 16 of the Constitution o India.
Reliance is placed by petitioner in this
regard on State of Orissa through Kumar
Raghvendra Singh and Ors. vs. Ganesh
Chandra Jew, 2004(8) SCC 40; D.T.
Virupakshappa vs. C. Subhash, 2015(12)
SCC 231; R.S. Nayak vs. A.R. Antulay,
AIR 1984 SC 684; Ram Krishna Dalmia
vs. Shri Justice S.R. Tendolkar and Ors.,
1959 SCR 279; The State of West Bengal
vs. Anwar Ali Sarkar, 1952 SCR 284;
and, Western M.P. Electric Power and
Supply Company Ltd. vs. State of U.P.
and Anr., 1969(3) SCR 865. He further
submits that under Section 6 of Prevention
of Corruption Act, 1947 (hereinafter
referred to as "Act, 1947") there is no such
classification in respect of public servants
as has been carved out in Section 197
Cr.P.C.
and
this
also
shows
that
classification under Section 197 Cr.P.C. is
artificial and illegal, has no rationale with
object sought to be achieved.

10. On the contrary, learned A.G.A.
submitted that petitioner is basically
challenging entire proceedings on the
ground of lack of sanction under Section
197 Cr.P.C. but this is in accordance with
law since Section 197 Cr.P.C. is not
attracted in the case of petitioner. Validity
of Section 197 Cr.P.C. has already been
upheld by Supreme Court and, therefore, it
6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
573
is not open to petitioner to re-agitate the
same issue, hence writ petition is liable to
be dismissed.

11. Learned counsel for petitioner
submitted that validity of Section 197 Cr.P.C. is
upheld when it was challenged on the
classification of treating public servants as one
class vis-a-vis other common offenders but he
submits that it has never been examined that
Section 197 Cr.P.C. is creating two classes of
public servants, i.e., those who are removable
with sanction of State Government and those
who are not so and this classification made is
illogical and arbitrary, hence this Court can
examine validity of Section 197 Cr.P.C. in the
light of aforesaid ground.

12. The submissions advanced by learned
counsel for petitioner, in fact, raise following
issues:

(i)
Whether
exclusion
of
petitioner or alike public servants is a
reasonable classification founded on an
intelligible
differentia
which
distinguishes the public servants that
are grouped together on the basis of
"removable by State Government" from
the others left-out of the group, "who
are
not
removable
by
State
Government".

(ii)
Whether
the
above
differentia/classification created by law
has a rational relation to the object of
Section 197 Cr.P.C. (safeguard from
unnecessary
harassment
of
public
servant).

(iii) Whether petitioner be
treated equally to those public servants,
who avail protection under Section
197(1) Cr.P.C. and does he stand in
equal circumstance to those public
servants, who avail protection under
Section 197(1) Cr.P.C.

13. Though we have noted the
submission by framing three issues but
we
find
that
all
the
issues
are
interconnected and can be examined
collectively.

14. Since entire controversy is
centered around Section 197 Cr.P.C., it
would be appropriate to reproduce the
same as under:

"197. Prosecution of Judges and
public servants.-(1) When any person who
is or was a Judge or Magistrate or a
public servant not removable from his
office save by or with the sanction of the
Government is accused of any offence
alleged to have been committed by him
while acting or purporting to act in the
discharge of his official duty, no Court
shall take cognizance of such offence
except with the previous sanction-

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government:

Provided that where the alleged
offence was committed by a person referred
to in clause (b) during the period while a
Proclamation issued under clause (1) of
Article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression" State Government" occurring
therein,
the
expression"
Central
Government" were substituted.

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
574 INDIAN LAW REPORTS ALLAHABAD SERIES
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may,
by notification, direct that the provisions of
sub- section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub- section will apply as
if for the expression "Central Government"
occurring therein, the expression "State
Government" were substituted.

(3A) Notwithstanding anything
contained in sub- section (3), no court shall
take cognizance of any offence, alleged to
have been committed by any member of the
Forces charged with the maintenance of
public order in a State while acting or
purporting to act in the discharge of his
official duty during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
therein, except with the previous sanction
of the Central Government.

(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State Government
or any cognizance taken by a court upon
such
sanction,
during
the
period
commencing on the 20th day of August,
1991 and ending with the date immediately
preceding the date on which the Code of
Criminal Procedure (Amendment) Act,
1991 , receives the assent of the President,
with respect to an offence alleged to have
been committed during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in the State, shall be invalid and it shall be
competent for the Central Government in
such matter to accord sanction and for the
court to take cognizance thereon.

(4) The Central Government or
the State Government, as the case may be,
may determine the person by whom, the
manner in which, and the offence or
offences for which, the prosecution of such
Judge, Magistrate or public servant is to be
conducted, and may specify the Court
before which the trial is to be held."

15. Section 197 Cr.P.C. has referred to
two terms. One is the "public servant" and
another "offence".

16. The term "offence" has been defined
in Section 2(n) of Cr.P.C. and Section 40 IPC
and both may be reproduced as under:

"(n) "Offence" means any act or
omission made punishable by any law for
the time being in force and includes any act
in respect of which a complaint may be
made under Section 20 of the Cattletrespass Act, 1891 (1 of 1871)."

"40. "Offence"-Except in the
Chapters and Sections mentioned in
clauses 2 and 3 of this Section, the word
"offence" denotes a thing made punishable
by this Code.

In Chapter IV, Chapter V-A and
in the following sections, namely, Sections
64, 65, 66, 67, 71, 109, 110, 112, 114, 115,
116, 117, 187, 194, 195, 203, 211, 213,
214, 221, 222, 223, 224, 225, 327, 328,
329, 330, 331, 347, 348, 388, 389 and 445,
the word "offence" denotes a thing
punishable under this Code, or under any
special or local law as hereinafter defined.

And in Sections 141, 176, 177,
201, 202, 212, 216 and 441, the word
"offence" has the same meaning when the
thing punishable under the special or local
law is punishable under such law with
imprisonment for a term of six months or
upwards, whether with or without fine."
6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
575

17. Term "public servant" has not
been defined in Cr.P.C. but is defined in
Section 21 IPC. We may refer the
definition of "public servant" at a later
stage whenever it is necessary.

18. At this stage suffice it to mention
that learned counsel for parties have
admitted that Rules governing recruitment
and conditions of service of "Deputy Jailer"
have been framed under proviso to Article
309 of Constitution are U.P. Jail Executive
Subordinate (Non Gazetted) Service Rules,
1980 (hereinafter referred to as "Rules,
1980"). Under the Rules, initially framed in
1980, as per Rule 3(a), "appointing
authority" means Inspector General of
Prisons, Uttar Pradesh. Said Rules, 1980
have been amended by U.P. Jail Executive
Subordinate (Non Gazetted) Service (First
Amendment) Rules, 2006 (hereinafter
referred to as "Rules, 2006") published in
U.P.
Gazette
(Extraordinary)
dated
22.06.2006 and thereby Rule 3(a) has been
substituted and now "appointing authority"
means
Director
General
of
Prison
Administration and Reforms Services, U.P.

19. Rules, 1980 has further been
amended by U.P. Prison Administration
and Reforms Executive Subordinate (NonGazetted) Service (Second Amendment)
Rules, 2014 (hereinafter referred to as
"Rules, 2014") published in U.P. Gazette
(Extraordinary)
dated
27.06.2014
and
thereby cause title of Rules has been
changed. Earlier Rules comprised of only
Group C posts and now includes Group B
posts also, but the same remained to be in
the status of Non-Gazetted Subordinate
Services.

20. Since in the present case, incident
is of 2014, learned counsel for parties
admitted that petitioner, a Deputy Jailer,
can be appointed by Director General of
Prison
Administration
and
Reforms
Services, U.P. and also can be removed by
him and sanction of State Government is
not required.

21. Now we proceed to consider
applicability
of
Section
197
Cr.P.C.
providing sanction of criminal prosecution
and the purpose and objective of aforesaid
provision.

22. Section 197 Cr.P.C. was also
available in Code of Criminal Procedure,
1898. It came up for consideration before
Bombay
High
Court
in
Hanumant
Shrinivas Kulkarni Versus Emperor,
(31) 1930 Crl.L.J. 353. Court observed
that object of sanction is to guard against
vexatious
proceedings
against
public
servants and to secure the well considered
opinion of a superior authority before their
prosecution.

23. In E Versus G. Sadagopan, 1953
Crl.L.J.1929 Madras High Court said that
the object of sanction is nothing more than
to ensure the discouragement of frivolous,
doubtful and impolite prosecution.

24. In Indu Bhushan Chatterjee
Versus State, AIR 1955 Cal.430 Calcutta
High Court said that provision for sanction
is
a
most
salutary
safeguard.
The
sanctioning authority is placed somewhat in
the position of a sentinel at the door of
Criminal
Courts
in
order
that
no
irresponsible or malicious prosecution can
pass the portals of the Court of Justice.

25. In Gurbachan Singh Versus
State, AIR 1970 Delhi 102 Delhi Bench of
Punjab High Court said that intention of
legislature in providing for a sanction in
respect of offences covered by Section 6 of
576 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1947 is merely to afford a reasonable
protection to public servants in discharge of
their official functions. It is not the object
of section that a public servant who is
guilty of the particular offence mentioned
in
that
section
should
escape
the
consequences of his criminal act by raising
the technical plea of invalidity of sanction.
The sanction is a safeguard for innocent
and is not a shield for guilty.

26. In R. Bala Krishna Pillai Vs.
State of Kerala, (1996) 1 SCC 478
Supreme Court while referring to the
Law Commission's 41st Report with
respect to Section 197 quoted the
following
observations
of
Law
Commission:

"The protection afforded by
the section would be rendered illusory
if it were open to a private person
harbouring a grievance to wait until the
public servant ceased to hold his
official position, and then to lodge a
complaint. The ultimate justification
for the protection conferred by section
197 is the public interest in seeking
that official acts do not lead to
needless or vexatious prosecutions."
(emphasis added)

27. In P.V. Narsimha Rao Versus
The State, AIR 1998 SC 2120 Supreme
Court said:

"The requirement of sanction
under Section 19(1) is intended as a
safeguard against criminal prosecution of
a public servant on the basis of malicious
or frivolous alleging by interested persons.
The object underlying the said requirement
is not to condone the commission of an
offence by a public servant." (emphasis
added)

28. In Gauri Shankar Prasad Vs.
State of Bihar, 2000 SCC (Cri) 872 Supre
Court held:

"The object of the section is to
save officials from vexatious proceedings
against Judges, magistrates and public
servants but it is no part of the policy to set
an official above the common law. If he
commits an offence not connected with his
official duty he has no privilege. But if one
of his official acts is alleged to be an
offence, the State will not allow him to be
prosecuted without its sanction. Section
197 embodies one of the exceptions to the
general rules laid down in Section 190
Cr.P.C., that any offence may be taken
cognizance
of
by
the
Magistrates
enumerated therein. Before this section can
be invoked in the case of a public servant
two conditions must be satisfied i.e.(1) that
the accused was a public servant who was
removable from his office only with the
sanction of the State Government or the
Central Government; and (2) he must be
accused of an offence alleged to have been
committed
by
him
while
acting
or
purporting to act in the discharge of his
official duty." (Emphasis added)

29. In State of Himachal Pradesh
Vs. M.P. Gupta, 2004(2) SCC 349 it was
said:

"The
protection given
under
Section 197 is to protect responsible public
servants against the institution of possible
vexatious criminal proceedings for offence
alleged to have been committed by them
while they are acting or purporting to act
as public servants. The policy of the
legislature is to afford adequate protection
to public servants to ensure that they are
not prosecuted for anything done by them
in the discharge of their official duties
6 All. Vijay Kumar Pandey Vs. Union of India & Ors.
577
without reasonable cause, and if sanction is
granted, to confer on the Government, if
they choose to exercise it, complete control
of the prosecution." (Emphasis added)

30. In State of Orissa and others Vs.
Ganesh Chandra Jew, AIR 2004 SC 2179
it was held:

"The
protection given
under
Section 197 is to protect responsible public
servants against the institution of possibly
vexatious criminal proceedings for offences
alleged to have been committed by them
while they are acting or purporting to act
as public servants. The policy of the
legislature is to afford adequate protection
to public servants to ensure that they are
not prosecuted for anything done by them
in the discharge of their official duties
without reasonable cause, and if sanction is
granted, to confer on the Government, if
they choose to exercise it, complete control
of the prosecution."

 (Emphasis added)

31. Supreme Court has again
reiterated in Rakesh Kumar Mishra
Versus State of Bihar, JT 2006 (1) SC 1
as under:

"The
protection given
under
Section 197 is to protect responsible public
servants against the institution of possibly
vexatious
criminal
proceedings...."
(emphasis added)

32. The above authorities have also
been followed in Devinder Singh and
others vs. State of Punjab through CBI,
(2016) 12 SCC 87.

33. The object of the legislature for
making provision pertaining to sanction
seems to be clear. Where a public servant is
prosecuted
for
an
offence,
which
challenges his honesty and integrity, the
issue in such a case is not only between the
prosecutor and the offender but the State is
also vitally concerned in it as it affects the
morale of the public servants and also the
administrative interests of the State. For
these reasons, the discretion to prosecute
appears to be taken away from the
prosecuting agency and is vested in
departmental authorities, i.e., the employer
probably with the view that they may
assess and weigh the accusation in a far
more
dispassionate
and
responsible
manner. The ultimate justification is public
interest. It, however, does not condone the
commission of an offence by a public
servant or to use it as shield to escape from
legal proceedings on mere technicalities.

34. The observations of Supreme
Court in State of Himachal Pradesh Vs.
M.P. Gupta (supra); State of Orissa and
others Vs. Ganesh Chandra Jew (supra);
and, Rakesh Kumar Mishra Versus State
of Bihar (supra) clearly shows that
protection provided in Section 197 is for
"responsible public servants" who are
mainly
involved
in
superior
duties
including policy decision so that such
superior officials may not be harassed in
taking policy decision etc. This protection
is not available to every public servant.
When State itself has made a distinction
based on degree of responsibility, nature of
duties, nature of functions etc., and that is
why the public servants who are removal
with sanction of Government and those
who are not, are treated in a two different
classes, it cannot be said that distinction is
artificial and has no nexus to the object
sought to be achieved. The very distinction
in the category of two government servants,
namely, those who are supposed to take
responsible decisions and those who are
not, shows that neither it is artificial nor
578 INDIAN LAW REPORTS ALLAHABAD SERIES
irrational nor lack nexus to the object
sought to be achieved.

35. Parity sought to be drawn by
learned
counsel
for
petitioner
with
reference to the provisions of Act, 1947
and Prevention of Corruption Act, 1988
(hereinafter referred to as "Act, 1988") is
misconceived since both statutes, i.e.,
Prevention of Corruption Act and Cr.P.C.
have different ambit and scope.

36. Section 6 of Act, 1947 and
Section 19 of Act, 1988 is much wider
comparing to Section 197 Cr.P.C. The
definition of "public servant" under Act,
1988 is wider than Section 6 of Act, 1947
and, therefore, scope of Section 6 of Act,
1947 and Section 19 of Act, 1988 is much
different than Section 197 Cr.P.C. Section
197 Cr.P.C. is a part of procedural law
since Cr.P.C. is procedural law while Act,
1947 and Act, 1988 is special enactment
having its own independent procedural
provisions.

37. Further while considering Section
6 of Act, 1947 and Section 197 Cr.P.C.
Supreme Court in S.A. Venkataraman
Versus State, 1958 SCR 1040 has
observed that Section 6 of Act, 1947 must
be considered with reference to the words
used in the Section independent of any
construction which may have been placed
by the decisions on the words used in
Section 197 Cr.P.C.

38. In this regard reference may be
made to Supreme Court's decision in
Dilawar Singh Versus Parvinder Singh
@ Iqbal Singh & another, (2005) 12 SCC
709 wherein Court said:

"The Prevention of Corruption
Act is a special statute and as the preamble
shows this Act has been enacted to
consolidate and amend the law relating to
the prevention of corruption and for
matters connected therewith. Here, the
principle expressed in the maxim Generalia
specialibus non derogant would apply
which means that if a special provision has
been made on a certain matter, that matter
is excluded from the general provisions.
(See Venkateshwar Rao V. Govt. of Andhra
Pradesh, AIR 1966 Supreme Court 828,
State of Bihar Vs. Yogendra Singh AIR
1982 Supreme Court 882 and Maharashtra
State Board of Secondary Education V.
Paritosh Bhupesh Kumar Sheth AIR 1984
Supreme Court 1543. Therefore, the
provisions of Section 19 of the Act will
have an overriding effect over the general
provisions contained in Section 190 or 319
Cr.P.C. A Special Judge while trying an
offence under the Provisions of Corruption
Act, 1988, cannot summon another person
and proceed against him in the purported
exercise of power under Section 319
Cr.P.C. if no sanction has been granted by
the appropriate authority for prosecution of
such a person as the existence of a sanction
is sine quo non for taking cognizance of the
offence qua that person." (Emphasis added)

39. Therefore, the submission that
Section 197 Cr.P.C. is discriminatory by
excluding such public servants who are not
removable
with
sanction
of
State
Government, has no substance and has to
be rejected.

40. Petitioner has further sought a
writ
of
mandamus
commanding
respondents to amend Section 197 Cr.P.C.
but I am afraid that such a mandamus
cannot be issued since it is within the realm
of policy and legislative in character, in
respect whereto no mandamus can be
issued. This aspect has been settled in
6 All. Prof Chandra Shekhar Upadhyay & Ors. Vs. State of U.P. & Ors.
579
Union of India & ors Vs. Parul Debnath
& ors JT 2009 (9) SC 134 wherein Court
has held as under:

"....Court
cannot
direct
the
creation of posts since the same is
prerogative of the executive or the
legislative authorities and the Court could
not arrogate to itself this purely executive
or legislative function and direct creation
of the posts in the organization. It was also
observed that this Court has, time and
again, pointed out that the creation of a
post is an executive and legislative function
as it involves economic factors". (emphasis
added)

41. The same view has been reiterated
in Maharastra State Road Transport
Corporation & Anr Vs. Casteribe Rajya
P. Karmchari Sanghatana JT 2009 (11)
SC 609.

42. Next prayer that respondents be
directed not to proceed unless sanction is
granted by State Government also cannot
be accepted for the reason that, whether
sanction can be granted or not is within the
authority of State Government. This Court
can only examine whether sanction is
necessary or not and if necessary, whether
it
has
been
granted
before
taking
cognizance but no mandamus can be issued
to competent authority to act in a particular
manner.

43. In the entirety of facts and
circumstances, we find no merit in the writ
petition. Dismissed accordingly. Interim
order, if any, stands vacated.
----------
(2020)06ILR A579
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020
BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Crl. Misc. Writ Petition No. - 33609 of 2018

Prof Chandra Shekhar Upadhyay & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Aishwarya Pratap Singh, Sri Girijesh
Kumar
Gupta,
Sri
Gopal
Swarup
Chaturvedi, Sri Ratnesh Kumar Shukla

Counsel for the Respondents:
A.G.A., Sri Anoop Trivedi, Sri Anupam
Kumar, Sri T.P. Singh

A. Quashing of FIR-Comment or taunting on
specialization of knowledge in a close door
meeting-is not publication which affects the
reputation -provision of section 500 IPC-not
attracted;

Section 66 D of Information Technology
(Ammendment )Act, 2008 applies if cheating by
personation -No offence under sections in which
FIR registered are made out-F.I.R. quashed.

Writ Petition allowed. (E-9)

Held, Comments or taunting of a person in
respect of his 16 specialization of knowledge in
a close door meeting i.e. during the course of
interview cannot be said to be a publication of
something which affects the reputation of any
person and such observations or comments, in
our view, will not attract Section 500 IPC. This
situation, if accepted, may result in everyday
complaints against the member of interview
board or the persons performing judicial or
quasi judicial functions whenever they make any
observation with regard to understanding or
knowledge of another person. (para 26)

So far as publication of E-mail is concerned,
complaint itself shows that it was sent by some
unknown person and there is nothing to show