# AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND ANR

- **Citation:** [2023] 6 S.C.R. 669
- **Court:** Supreme Court of India
- **Decided:** 2023-04-20
- **Case number:** Criminal Appeal No. 1359 of 2017
- **Bench:** K. M. Joseph, B.V. Nagarathna, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amod-kumar-kanth-v-association-of-victim-of-uphaar-tragedy-and-anr-37214
- **Pages:** 26

## Headnote

Code of Criminal Procedure, 1973 - s.197 -Ambit of -
Uphaar Tragedy case - Closure report filed by the CBI against the
appellant was rejected by the Magistrate,who instead took
cognizance on the protest petition filed by the first respondent and
issued summons against the appellant - Cognizance was taken for
offences u/ss.304A, 337, 338, IPC and u/s.14, Cinematograph Act
r/w the Rules - Appellant filed petition u/s.482, CrPC challenging
the order issuing summons - Dismissed - On appeal, held: When
considering the question of cognizance being taken in the absence
of sanction and thereby s.197 being flouted it is not to be conflated
and thereby confused with the question as to whether an offence
has been committed - The salutary purpose behind s.197 is protection
being accorded to public servants - The most important question
which must be posed and answered by the Court when dealing with
the argument that sanction is not forthcoming is whether the officer
was acting in the exercise of his official duties - Even an officer
who acts in the purported exercise of his official power is given the
protection u/s.197- In the present case, having regard to the
admitted facts, it cannot be said that the appellant was not acting in
the discharge of his official functions -The subtle and nuanced
distinction between the question as to whether the offence has been
committed and if an offence has been committed, whether a sanction
is required for prosecuting a public servant who is alleged to have
committed the same, must not be lost sight of - Magistrate and the
High Court overlooked this distinction - Magistrate erred in taking
cognizance against the appellant contrary to the demands of s.197
-Impugned order set aside -Proceedings challenged in s.482 stand
quashed-Penal Code, 1860- ss.304A, 337, 338 - Cinematograph
Act, 1952 - s.14.
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[2023] 6 S.C.R.
D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC
695 : [2020] 6 SCR 453; Indra Devi v. State of
Rajasthan and Another (2021) 8 SCC 768; State of
Haryana and Others v. Bhajan Lal and Others 1992
Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; Sukhpal
Singh Khaira v. State of Punjab (2023) 1 SCC 289;
Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC
500 : [2000] 3 Suppl. SCR 747; Surinderjit Singh Mand
v. State of Punjab, (2016) 8 SCC 722 : [2016] 5 SCR
653; Devinder Singh v. State of Punjab, (2016) 12 SCC
87 : [2016] 6 SCR 295; Sushil Ansal v. State through
CBI 2014 (6) SCC 173 : [2014] 9 SCR 571; Shantaben
Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and
Others 2021 SCC Online SC 974; MCD v. Uphaar
Tragedy Victims Assn. (2011) 14 SCC 481: [2011] 16
SCR 1 - referred to.
Case Law Reference
[2020] 6 SCR 453
referred to
Para 5
[1990] 3 Suppl. SCR 259
referred to
Para 7
[2000] 3 Suppl. SCR 747
referred to
Para 13
[2016] 5 SCR 653
referred to
Para 14
[2016] 6 SCR 295
referred to
Para 15
[2014] 9 SCR 571
referred to
Para 16, 29
[2011] 16 SCR 1
referred to
Para 32

## Text

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669
 [2023] 6 S.C.R. 669
669
AMOD KUMAR KANTH
v.
ASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND
ANR.
(Criminal Appeal No. 1359 of 2017)
APRIL 20, 2023
[K. M. JOSEPH, B.V. NAGARATHNA AND
ARAVIND KUMAR, JJ.]
Code of Criminal Procedure, 1973 - s.197 -Ambit of -
Uphaar Tragedy case - Closure report filed by the CBI against the
appellant was rejected by the Magistrate,who instead took
cognizance on the protest petition filed by the first respondent and
issued summons against the appellant - Cognizance was taken for
offences u/ss.304A, 337, 338, IPC and u/s.14, Cinematograph Act
r/w the Rules - Appellant filed petition u/s.482, CrPC challenging
the order issuing summons - Dismissed - On appeal, held: When
considering the question of cognizance being taken in the absence
of sanction and thereby s.197 being flouted it is not to be conflated
and thereby confused with the question as to whether an offence
has been committed - The salutary purpose behind s.197 is protection
being accorded to public servants - The most important question
which must be posed and answered by the Court when dealing with
the argument that sanction is not forthcoming is whether the officer
was acting in the exercise of his official duties - Even an officer
who acts in the purported exercise of his official power is given the
protection u/s.197- In the present case, having regard to the
admitted facts, it cannot be said that the appellant was not acting in
the discharge of his official functions -The subtle and nuanced
distinction between the question as to whether the offence has been
committed and if an offence has been committed, whether a sanction
is required for prosecuting a public servant who is alleged to have
committed the same, must not be lost sight of - Magistrate and the
High Court overlooked this distinction - Magistrate erred in taking
cognizance against the appellant contrary to the demands of s.197
-Impugned order set aside -Proceedings challenged in s.482 stand
quashed-Penal Code, 1860- ss.304A, 337, 338 - Cinematograph
Act, 1952 - s.14.
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SUPREME COURT REPORTS
[2023] 6 S.C.R.
D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC
695 : [2020] 6 SCR 453; Indra Devi v. State of
Rajasthan and Another (2021) 8 SCC 768; State of
Haryana and Others v. Bhajan Lal and Others 1992
Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; Sukhpal
Singh Khaira v. State of Punjab (2023) 1 SCC 289;
Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC
500 : [2000] 3 Suppl. SCR 747; Surinderjit Singh Mand
v. State of Punjab, (2016) 8 SCC 722 : [2016] 5 SCR
653; Devinder Singh v. State of Punjab, (2016) 12 SCC
87 : [2016] 6 SCR 295; Sushil Ansal v. State through
CBI 2014 (6) SCC 173 : [2014] 9 SCR 571; Shantaben
Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and
Others 2021 SCC Online SC 974; MCD v. Uphaar
Tragedy Victims Assn. (2011) 14 SCC 481: [2011] 16
SCR 1 - referred to.
Case Law Reference
[2020] 6 SCR 453
referred to
Para 5
[1990] 3 Suppl. SCR 259
referred to
Para 7
[2000] 3 Suppl. SCR 747
referred to
Para 13
[2016] 5 SCR 653
referred to
Para 14
[2016] 6 SCR 295
referred to
Para 15
[2014] 9 SCR 571
referred to
Para 16, 29
[2011] 16 SCR 1
referred to
Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1359 of 2017.
From the Judgment and Order dated 03.10.2013 of the High Court
of Delhi at New Delhi in CRLM No.2746 of 2010.
R. Basant, Mathai M Paikaday, Sr. Advs., Ms. Liz Mathew, Ms.
Biji Rajesh, A.K. Singh, Ms. Mohini Priya, Akshay Sahay, Ms. Mallika
Agarwal, Ms. Vasudha Jain, Sudarshan Singh Rawat, Sajjan Singh Nahar,
Sanjay Jain, Advs. for the Appellant.
Tushar Mehta, Solicitor General, K. M. Nataraj, A.S.G., KTS Tulsi,
Sr. Adv., Sukant Vikram, Aditya Pratap Singh, Mrs. Pallavi Malhotra,
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Avish Bhati, T A Khan, B K Satija, Ms. Swati Ghildiyal, Shantnu Sharma,
Sharath Nambiar, Arvind Kumar Sharma, Mukesh Kumar Maroria,
Shreekant Neelappa Terdal, Shailesh Madiyal, Veer Vikrant Singh, Indira
Bhakar, Dr. N. Visakamurthy, Advs. for the Respondents.
The following Judgment of the Court was delivered :
JUDGMENT
(1) By the impugned order, the High Court has dismissed the petition
filed by the appellant under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). The
petition under Section 482 Cr.P.C. was filed against the order passed by
the Additional Sessions Judge Metropolitan Magistrate rejecting the
closure report filed by the Central Bureau of Investigation (hereinafter
referred to as 'CBI' for short) which was filed against the appellant.
The closure report filed by the CBI was not accepted by the Magistrate,
who instead took cognizance on the protest petition filed by the first
respondent before us (Association of Victims of Uphaar Tragedy). As
noted by the learned Judge in the impugned judgment on 13.06.1997, 59
persons lost their lives and over 100 persons received serious injuries
while viewing a film sitting in the balcony of Uphaar theater. The
unfortunate and tragic incident led to a criminal prosecution against 16
accused. While the trial was ongoing, an application was filed under
Section 319 Cr.P.C. against inter alia the present appellant. It is not in
dispute that no orders were immediately passed thereon. The trial against
the 16 accused culminated in the judgment dated 23.11.2007. The learned
Sessions Judge while disposing of Sessions Case No. 13/07 ordered the
CBI to conduct a further investigation under Section 173(8) of the Cr.P.C.
The learned Sessions Judge, no doubt, proceeded to find the accused
who were arraigned in Sessions Case No. 13/2007 guilty of various
charges. It is after so finding and awarding appropriate sentences as
against them that further investigation was ordered vide the judgment
dated 23.11.2007. The CBI after investigation filed a closure report on
05.03.2009. It is therein stated that no criminal act was found against
any officer other than those who were chargesheeted earlier. The first
respondent thereupon, filed protest petition dated 13.05.2009. As already
noticed, rejecting the closure report but accepting the complaint in the
protest petition the Magistrate issued summons against the appellant.
Cognizance has been taken for offences under Section 304A, 337, 338
of the Indian Penal Code, 1860 and the provisions under Section 14 of
AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF
UPHAAR TRAGEDY AND ANR.
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the Cinematograph Act, 1952 read with the Rules. It is the order issuing
summons that was the subject matter of the proceeding under Section
482 of the Cr.P.C. and which has finally culminated in the impugned
order.
(2) We have heard Shri R. Basant, learned senior counsel appearing
for the appellant. We have also heard Shri K.M. Nataraj, learned
Additional Solicitor General, who appears on behalf of the additional
Respondent namely Delhi Police. Besides, we have also heard Smt.
Aparajita, learned senior counsel appearing on behalf of the CBI. We
further heard Shri K.T.S. Tulsi, learned senior counsel who appears on
behalf of the first respondent.
(3) Shri Basant, learned senior counsel for the appellant would
essentially address three contentions before us. First and foremost, he
would contend that the impugned order upholding the order of the
Magistrate taking cognizance and issuing summons is afflicted with an
incurable illegality. The illegality consists in both the Courts overlooking
the mandatory command in Section 197 of the Cr.P.C. In other words,
cognizance has been taken against the appellant for the offences
comprehended within the ambit of Section 197 Cr.P.C. without seeking
and obtaining sanction as is contemplated under Section 197. The
Magistrate has proceeded to take cognizance in the teeth of the
unambiguous bar against such cognizance. He would submit that on this
short point the impugned order must perish.
(4) He would elaborate and submit on the facts, as to what
transpired as follows. Somewhere in the year 1976, a decision was taken
by the Lieutenant Governor of Delhi to reduce the price of cinema tickets.
Bearing in mind that this decision would cause a financial loss to the
theater owners, it was decided to permit the theaters to be fitted with
more seats so that from the revenue earned thereunder, the loss caused
by the reduction in the price of the cinema tickets could be offset. On
the strength of the said decision which was taken in 1976, theaters in
Delhi came to be equipped with more seats. The appellant took over as
Deputy Commissioner of Police on 02.02.1979. In his capacity as the
DCP, he also came to be entrusted with the duties of a licensing officer
under the Cinematograph Act, 1952 and the Rules. He continued in this
official position till 26.05.1980. There was a change of policy brought
about by the Lieutenant Governor. The earlier decision which was taken
in the year 1976 to increase seats came to be revoked. This was done
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on 27.07.1979. The appellant, according to the learned senior counsel,
issued orders to the cinema theaters directing them to remove the extra
seats and to report compliance by 04.08.1979 failing which their licenses
would be suspended. The notification dated 27.07.1979 issued by the
Lieutenant Governor and the order passed by the appellant dated
28.07.1979 came to be impugned in a batch of writ petitions in the High
Court of Delhi. The High Court of Delhi passed an interim order dated
02.08.1979 granting protection to the owners, in that, the direction to
remove the extra seats was kept in abeyance but they were forbidden
from issuing tickets in regard to the additional seats. A joint inspection
came to be carried out on 05.10.1979. The joint inspection recommended
the complete removal of the additional seats. The appellant on 22.10.1979
filed a counter affidavit before the High Court. Therein it is pointed out
that the appellant stoutly opposed the plea of the writ petitioners that
additional seats may be allowed to be preserved. On 29.11.1979, it is
pointed out that the High Court rejected the report of the joint inspection
team. The High Court also did not find favour with the stand taken by
the appellant in the counter affidavit. The High Court by its judgment
dated 29.11.1979, in short, directed the appellant to look into the matter
and find out whether the seats could be continued on their being a
substantial and not too rigid and inflexible compliance. Show cause notices
was issued on 06.12.1979 to the theater owners. On 19.12.1979, joint
inspection was carried out by the Executive Engineer (PWD), Chief
Fire Officer and the Assistant Commissioner of Police (Licensing). A
hearing was afforded to the theater owners. This included the owners
of the UphaarTheater. This took place on 20.12.1979. It is, thereafter,
that on 24.12.1979, according to the appellant, on the recommendations
of the committee, the appellant ordered the removal of 06 seats in the
balcony and 56 seats in the rest of the floor of Uphaar Theater. This
means a total of 62 additional seats out of the total of 100 seats which
had been put in place on the strength of the notification issued in 1976
came to be ordered to be removed. It is stated by the appellant that
annual inspections were carried out subsequently. The appellant came
to be transferred and he vacated the post on 26.05.1980. There was
another inspection which was conducted on 09.06.1983 and 17.06.1983
by a joint inspection team comprising the licensing branch of the Delhi
Police. The Municipal Corporation of Delhi and the Delhi Fire Services
also were part of the team. Large scale safety violations were found.
The license of Uphaar theater came to be suspended on 27.06.1983.
AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF
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From 1980-1997, it is pointed out that the theater in question was inspected
every year. The suspension order passed against the theater in question
was the subject matter of challenge in the two writ petitions and the
suspension was kept in abeyance. The theater continued to operate. It is
nearly 17 years after the order dated 24.12.1979, on 13.06.1997 that a
fire broke out which led to the unfortunate passing away of 59 persons
besides injury to several others. He would, therefore, point out that, at
best or at worst, what could be projected against the appellant could not
take it out of the ambit of Section 197. In other words, it could not be
said despite all that has happened that he was not exercising power
which flowed from his office. He did whatever he did in the discharge
of his official functions. Section 197 immunisesa person if his act is in
exercise of his official power. Whichever way one looks at it, whatever
he has done, or even if there is an excess, even if there has been
negligence, he would be entitled in law to the protection afforded by
Section 197 of the Cr.P.C. The Courts have ignored this salutary principle
enshrined in Section 197 of the Cr.P.C. The principle enshrined by Section
197 of the Cr.P.C. is intended to protect public servants. It is not to be
confused with the question as to whether an offence has been committed.
The law mandates that once the person against whom cognizance is
taken was holding a public office within the meaning of Section 197 of
the Cr.P.C. and the act or omission attributed to him is done in the discharge
of his official duties or in the purported exercise of his official duties, it
would be completely illegal for the judicial officer concerned to move
the law forward against him by taking cognizance in the absence of
sanction. In the facts of the case before the Court, he would submit that
it was clear that whatever he did or did not, it arose within the discharge
of his official functions. In this regard, he drew inspiration from the
following decisions:
(5) In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC
695, he drew our attention to the following:
"71. If the act alleged in a complaint purported to be filed against
the policeman is reasonably connected to discharge of some
official duty, cognizance thereof cannot be taken unless requisite
sanction of the appropriate Government is obtained under
Section 197 of the Code of Criminal Procedure and/or Section
170 of the Karnataka Police Act.
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74. It is well settled that an application under Section 482 of the
Criminal Procedure Code is maintainable to quash proceedings
which are ex facie bad for want of sanction, frivolous or in abuse
of process of court. If, on the face of the complaint, the act alleged
appears to have a reasonable relationship with official duty, where
the criminal proceeding is apparently prompted by mala fides and
instituted with ulterior motive, power under Section 482 of the
Criminal Procedure Code would have to be exercised to quash
the proceedings, to prevent abuse of process of court."
(6) Next, he drew our attention to Indra Devi v. State of
Rajasthan and Another (2021) 8 SCC 768 to the following paragraphs:
"10. We have given our thought to the submissions of the learned
counsel for the parties. Section 197 CrPC seeks to protect an
officer from unnecessary harassment, who is accused of an
offence committed while acting or purporting to act in the discharge
of his official duties and, thus, prohibits the court from taking
cognizance of such offence except with the previous sanction of
the competent authority. Public servants have been treated as a
special category in order to protect them from malicious or
vexatious prosecution. At the same time, the shield cannot protect
corrupt officers and the provisions must be construed in such a
manner as to advance the cause of honesty, justice and good
governance. (See Subramanian Swamy v. Manmohan
Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3
SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .)
The alleged indulgence of the officers in cheating, fabrication of
records or misappropriation cannot be said to be in discharge of
their official duty. However, such sanction is necessary if the
offence alleged against the public servant is committed by him
"while acting or purporting to act in the discharge of his official
duty" and in order to find out whether the alleged offence is
committed "while acting or purporting to act in the discharge of
his official duty", the yardstick to be followed is to form a prima
facie view whether the act of omission for which the accused
was charged had a reasonable connection with the discharge of
his duties. (See State of Maharashtra v. Budhikota
Subbarao [State of Maharashtra v. Budhikota Subbarao,
(1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question,
AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF
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therefore, is whether the act committed is directly concerned with
the official duty.
11. We have to apply the aforesaid test to the facts of the present
case. In that behalf, the factum of Respondent 2 not being named
in the FIR is not of much significance as the alleged role came to
light later on. However, what is of significance is the role assigned
to him in the alleged infraction i.e. conspiring with his superiors.
What emerges therefrom is that insofar as the processing of the
papers was concerned, Surendra Kumar Mathur, the Executive
Officer, had put his initials to the relevant papers which was held
in discharge of his official duties. Not only that, Sandeep Mathur,
who was part of the alleged transaction, was also similarly granted
protection. The work which was assigned to Respondent 2
pertained to the subject-matter of allotment, regularisation,
conversion of agricultural land and fell within his domain of work.
In the processing of application of Megharam, the file was initially
put up to the Executive Officer who directed the inspection and
the inspection was carried out by the Junior Engineer and only
thereafter the Municipal Commissioner signed the file. The result
is that the superior officers, who have dealt with the file, have
been granted protection while the clerk, who did the paper work
i.e. Respondent 2, has been denied similar protection by the trial
court even though the allegation is of really conspiring with his
superior officers. Neither the State nor the complainant appealed
against the protection granted under Section 197 CrPC qua these
two other officers.
12. We are, thus, not able to appreciate why a similar protection
ought not to be granted to Respondent 2 as was done in the case
of the other two officials by the trial court and High Court,
respectively. The sanction from the competent authority would
be required to take cognizance and no sanction had been obtained
in respect of any of the officers. It is in view thereof that in respect
of the other two officers, the proceedings were quashed and that
is what the High Court has directed in the present case as well."
(7) Next, the learned senior counsel for the appellant would contend
that the Court must not be oblivious to the facts of the case as well. The
appellant's acts or omissions are traceable to the year 1979-1980. The
incident in question took place a good 17 years thereafter. Annual
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inspections took place. Other officers have had powers of oversight and
exercised it from time to time. Several theaters apart from Uphaar theater
had extra seats. It is only in this unfortunate case that the occurring of
the fire in 1997 has led to the entire proceedings. He would submit that
following the principle in State of Haryana and Others v. Bhajan Lal
and Others 1992 Supp (1) SCC 335, it is a fit case where no criminality
can be attached to the alleged acts and omissions.
(8) Thirdly, he would also submit that, as noticed, in this narration
above, though an application was filed to take action under Section 319
of the Cr.P.C. pending the trial against the original accused, no orders
were passed thereon. It received final attention of the Court only when
the matter was finally disposed of by way of the judgment convicting the
original accused.
(9) The Court, he would point out, departed from the requirement
of the law by directing investigation under Section 173(8) after the trial
was concluded and judgment was pronounced. This is according to him,
not permissible in law. He drew our attention to Sukhpal Singh Khaira
v. State of Punjab (2023) 1 SCC 289:
"39.(I) Whether the trial court has the power under Section
319CrPC for summoning additional accused when the trial with
respect to other co-accused has ended and the judgment of
conviction rendered on the same date before pronouncing the
summoning order?
The power under Section 319 CrPC is to be invoked and exercised
before the pronouncement of the order of sentence where there
is a judgment of conviction of the accused. In the case of acquittal,
the power should be exercised before the order of acquittal is
pronounced. Hence, the summoning order has to precede the
conclusion of trial by imposition of sentence in the case of
conviction. If the order is passed on the same day, it will have to
be examined on the facts and circumstances of each case and if
such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same will not
be sustainable."
(10) He also presses for our consideration the aspect that the
appellant is a highly decorated officer with an impeccable track record.
AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OF
UPHAAR TRAGEDY AND ANR.
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(11) Shri K. M. Nataraj, learned Additional Solicitor General, who
appears for the additional respondent-Delhi Police would submit that the
Delhi Police is the authority which sanctions prosecution under Section
197 of the Cr.P.C.
(12) Shri K. M. Nataraj, would submit that it is indispensable for
taking cognizance against a public servant within the meaning of Section
197 of the Cr.P.C., that the sanctioning authority grants sanction. He
would in this regard appear to us to support the contention taken by the
appellant. He also seeks fortification from the following case law:
(13) He drew our attention to Abdul Wahab Ansari v. State of
Bihar, (2000) 8 SCC 500 wherein this Court held:
7. Previous sanction of the competent authority being a
precondition for the court in taking cognizance of the offence if
the offence alleged to have been committed by the accused can
be said to be an act in discharge of his official duty, the question
touches the jurisdiction of the Magistrate in the matter of taking
cognizance and, therefore, there is no requirement that an accused
should wait for taking such plea till the charges are framed.
In Suresh Kumar Bhikamchand Jain v. Pandey Ajay
Bhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similar
contention had been advanced by Mr Sibal, the learned Senior
Counsel appearing for the appellants in that case. In that case,
the High Court had held on the application of the accused that the
provisions of Section 197 get attracted. Rejecting the contention,
this Court had observed: (SCC pp. 217-18, para 23)
"The legislative mandate engrafted in sub-section (1) of Section
197 debarring a court from taking cognizance of an offence
except with a previous sanction of the Government concerned
in a case where the acts complained of are alleged to have
been committed by a public servant in discharge of his official
duty or purporting to be in the discharge of his official duty and
such public servant is not removable from his office save by or
with the sanction of the Government touches the jurisdiction
of the court itself. It is a prohibition imposed by the statute
from taking cognizance, the accused after appearing before
the court on process being issued, by an application indicating
that Section 197(1) is attracted merely assists the court to
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rectify its error where jurisdiction has been exercised which it
does not possess. In such a case there should not be any bar
for the accused producing the relevant documents and materials
which will be ipso facto admissible, for adjudication of the
question as to whether in fact Section 197 has any application
in the case in hand. It is no longer in dispute and has been
indicated by this Court in several cases that the question of
sanction can be considered at any stage of the proceedings."
The Court had further observed: (SCC pp. 218-19, para 24)
"The question of applicability of Section 197 of the Code and
the consequential ouster of jurisdiction of the court to take
cognizance without a valid sanction is genetically different from
the plea of the accused that the averments in the complaint do
not make out an offence and as such the order of cognizance
and/or the criminal proceedings be quashed. In the aforesaid
premises we are of the considered opinion that an accused is
not debarred from producing the relevant documentary
materials which can be legally looked into without any formal
proof, in support of the stand that the acts complained of were
committed in exercise of his jurisdiction or purported jurisdiction
as a public servant in discharge of his official duty thereby
requiring sanction of the appropriate authority."
9. Coming to the second question, it is now well settled by the
Constitution
Bench
decision
of
this
Court
in MatajogDobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2
SCR 925] that in the matter of grant of sanction under Section
197 of the Code of Criminal Procedure the offence alleged to
have been committed by the accused must have something to do,
or must be related in some manner, with the discharge of official
duty. In other words, there must be a reasonable connection
between the act and the discharge of official duty; the act must
bear such relation to the duty that the accused could lay a
reasonable claim, but not a pretended or fanciful claim, that he did
it in the course of the performance of his duty. In the said case it
had been further held that where a power is conferred or a duty
imposed by statute or otherwise, and there is nothing said expressly
inhibiting the exercise of the power or the performance of the
duty by any limitations or restrictions, it is reasonable to hold that
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it carries with it the power of doing all such acts or employing
such means as are reasonably necessary for such execution,
because it is a rule that when the law commands a thing to be
done, it authorises the performance of whatever may be necessary
for executing its command. This decision was followed by this
Court in Suresh Kumar Bhikamchand Jain case [(1998) 1 SCC
205 : 1998 SCC (Cri) 1] and in a recent judgment of this Court in
the case of Gauri Shankar Prasad v. State of Bihar [(2000) 5
SCC 15 : 2000 SCC (Cri) 872] . The aforesaid case has full force
even to the facts of the present case inasmuch as in the said case,
the Court had observed: (SCC p. 21, para 14)
"[I]t is manifest that the appellant was present at the place of
occurrence in his official capacity as Sub-Divisional Magistrate
for the purpose of removal of encroachment from government
land and in exercise of such duty, he is alleged to have committed
the acts which form the gravamen of the allegations contained
in the complaint lodged by the respondent. In such
circumstances, it cannot but be held that the acts complained
of by the respondent against the appellant have a reasonable
nexus with the official duty of the appellant. It follows, therefore,
that the appellant is entitled to the immunity from criminal
proceedings without sanction provided under Section 197
CrPC."
It is not necessary for us to multiply authorities on this point and
bearing in mind the ratio of the aforesaid cases and applying the
same to the facts of the present case as indicated in the complaint
itself, we have no hesitation to come to the conclusion that the
appellant had been directed by the Sub-Divisional Magistrate to
be present with police force and remove the encroachment in
question and in course of discharge of his duty to control the mob,
when he had directed for opening of fire, it must be held that the
order of opening of fire was in exercise of the power conferred
upon him and the duty imposed upon him under the orders of the
Magistrate and in that view of the matter the provisions of Section
197(1) applies to the facts of the present case. Admittedly, there
being no sanction, the cognizance taken by the Magistrate is bad
in law and unless the same is quashed qua the appellant, it will be
an abuse of the process of Court. Accordingly, we allow this appeal
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and quash the criminal proceeding, so far as the appellant is
concerned.
(14) He also brought to the notice of the Court, the decision in
Surinderjit Singh Mand v. State of Punjab, (2016) 8 SCC 722:
25. In continuation of the submissions noticed in the foregoing
paragraphs, it was asserted by the learned counsel representing
the respondents that the prosecution contemplated under Section
197 of the Code and the action of the Court in taking cognizance
pertain to actions initiated on the basis of complaints which disclose
the commission of an offence, or on a police report of such facts,
or upon receipt of information from a person other than the police
officer that such offence had been committed. It was asserted
that the above action of taking cognizance by a court is based on
alleged "facts" and not "on evidence" recorded by a court. The
above distinction was drawn by referring to Section 190 of the
Code which contemplates initiation of action on the basis of facts
alleged against an accused, as against, Section 319 of the Code
whereunder action is triggered against the person concerned only
if it appears from the evidence recorded during the trial that the
said person was involved in the commission of an offence. While
making a reference to Section 319 of the Code, it was submitted
on behalf of the respondents that cognizance taken under Section
319 of the Code was by the Court itself and therefore, the same
having been based on "evidence", as also, the satisfaction of the
Court itself that such person needed to be tried together with the
"other accused", it seemed unreasonable that sanction postulated
under Section 197 of the Code should still be required. It was
pointed out that the protection contemplated under Section 197 of
the Code was not a prerequisite necessity when cognizance was
based on the evaluation of "evidence" by a court itself. The learned
counsel emphasised that when a court itself had determined that
cognizance was required to be taken, based on evidence which
had been recorded by the same court, it would be undermining
the authority of the court concerned if its judicial determination
was considered subservient to the decision taken by the authorities
contemplated under Section 197 of the Code. Based on the
submissions noticed above, it was the vehement contention of the
learned counsel for the respondents that the mandate of Section
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197 would not extend to cases where cognizance had been taken
under Section 319 of the Code.
(15) He further drew our attention to the decision in Devinder
Singh v. State of Punjab, (2016) 12 SCC 87
"39. The principles emerging from the aforesaid decisions are
summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and
sincere officer to perform his duty honestly and to the best of his
ability to further public duty. However, authority cannot be
camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed
by public servant in discharging his duty it must be given liberal
and wide construction so far its official nature is concerned. Public
servant is not entitled to indulge in criminal activities. To that extent
Section 197 CrPC has to be construed narrowly and in a restricted
manner.
39.3. Even in facts of a case when public servant has exceeded
in his duty, if there is reasonable connection it will not deprive him
of protection under Section 197 CrPC. There cannot be a universal
rule to determine whether there is reasonable nexus between the
act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or
related to performance of official duties, sanction would be
necessary under Section 197 CrPC, but such relation to duty should
not be pretended or fanciful claim. The offence must be directly
and reasonably connected with official duty to require sanction. It
is no part of official duty to commit offence. In case offence was
incomplete without proving, the official act, ordinarily the provisions
of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by
competent authority and sanction has to be issued on the basis of
sound objective assessment. The court is not to be a sanctioning
authority.
39.6. Ordinarily, question of sanction should be dealt with at the
stage of taking cognizance, but if the cognizance is taken
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erroneously and the same comes to the notice of court at a later
stage, finding to that effect is permissible and such a plea can be
taken first time before the appellate court. It may arise at inception
itself. There is no requirement that the accused must wait till
charges are framed.
39.7. Question of sanction can be raised at the time of framing of
charge and it can be decided prima facie on the basis of accusation.
It is open to decide it afresh in light of evidence adduced after
conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings.
On a police or judicial inquiry or in course of evidence during trial.
Whether sanction is necessary or not may have to be determined
from stage to stage and material brought on record depending
upon facts of each case. Question of sanction can be considered
at any stage of the proceedings. Necessity for sanction may reveal
itself in the course of the progress of the case and it would be
open to the accused to place material during the course of trial for
showing what his duty was. The accused has the right to lead
evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question
effectively and finally without giving opportunity to the defence to
adduce evidence. Question of good faith or bad faith may be
decided on conclusion of trial.
(16) Smt. Aparajita, learned senior counsel appearing on behalf
of the respondent-CBI though finding herself in an unenviable position
for the reason that her client CBI has, after investigation found nothing
against the appellant, she stated that she would have to redeem the
position, in the interest of justice. She canvassed for the position that the
contention of the appellant that there was no sanction would not advance
his case. She would submit that the trial Court, the High Court in appeal
and what is more, this Court have found against the licensing authorities
which includes the appellant. She took us through the judgment of this
Court reported in Sushil Ansalv. State through CBI 2014(6) SCC 173.
They read as follows:
"134. That apart, a seating plan, which was in breach of the
statutory provisions and compromised the safety requirements
prescribed under the DCR, 1953, could hardly support a belief in
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good faith that exhibition of films with such a plan was legally
justified. That is so especially when the repeal of the Notification
dated 30-9-1976 by which Uphaar was permitted 100 more seats
was followed by a demand for removal of the additional seats.
Instead of doing so the occupiers/owners assailed that demand in
Isherdas Sahni and Bros. v. Delhi Admn. [Isherdas Sahni and
Bros. v. Delhi Admn., AIR 1980 Del 147] before the High Court
of Delhi in which the High Court directed the authorities to have
a fresh look from the standpoint of substantial compliance with
the provisions of the Cinematograph Act. The High Court observed
: (AIR p. 152, paras 11-12)
"11. Proposition 3 : It has been already made clear above
that the relaxation was granted after considering the public
health and the fire hazard aspects. It is also clear that the very
fact that the relaxation could not be granted after bearing these
main considerations in mind would show that there was some
rule for the extension of the sitting accommodation in these
theatres within the Rules, though the provision of some of the
additional seats may perhaps have been to some extent contrary
to some of the Rules. It is not necessary for us to speculate on
this question. It is enough to say that the result of the
cancellation of the relaxation is simply the withdrawal of the
relaxation. It does not automatically mean that all the additional
seats which were installed in the cinema theatres were contrary
to the Rules and must, therefore, be dismantled without any
consideration as to how many of these seats were in consonance
with the Rules and how many of them were contrary to the
Rules.
12. Our finding on Proposition 3 is, therefore, that the
Administration will apply their mind to the additional seats with
a view to determine which of them have contravened which
rules and to what extent. They will bear in mind that the
compliance with the Rules is to be substantial and not rigid and
inflexible."
If while carrying out the above directive, the authorities concerned
turned a blind eye to the fundamental requirement of the Rules by
ignoring the closure of the right side exit and gangway prescribed
as an essential requirement under the DCR, 1953, they acted in
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breach of the rules and in the process endangered the safety of
the patrons.
135. We shall presently turn to the question whether the repeal of
the notification had the effect of obliging the occupier/licensee of
the Cinema to remove the seats and restore the gangways and
exits as originally sanctioned. But we cannot ignore the fact that
the occupiers/licensees of the Cinema, had opposed the removal
of the additional seats even when the respondents in the writ
petition had expressed concerns about the safety of the patrons if
the additional seats were not removed which removal it is evident
would have by itself resulted in the restoration of the right side
gangway. So also the authorities ought to have insisted on the
restoration of the right side exit by removal of the eight-seater
box which was allowed in the year 1978, ostensibly because with
the right side gangway getting closed by additional seats occupying
that space the authorities considered the continuance ofthe right
side exit to be of no practical use. Withdrawal of relaxation in the
year 1979 ought to have resulted in the reversal of not only the
fixing of additional seats but all subsequent decisions that proceeded
on the basis thereof.