# GENERAL OFFICER COMMANDING v. CBI AND ANR

- **Citation:** [2012] 5 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 2012-05-01
- **Case number:** Criminal Appeal No. 257 of 2011
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/general-officer-commanding-v-cbi-and-anr-28319
- **Pages:** 62

## Headnote

ARMED FORCES J & K (SPECIAL POWERS) ACT,
1990:
ss.4, 6 - Powers conferred on the officers of Armed forces
- Scope of.
A
B
c
s. 7 - Interpretation of - Held: The scheme of the Act
provides protection to- Army personnel in respect of anything
done or purported to be done in exercise of powers conferred D
by the Act - s. 7 prohibits institution of legal proceedings
against any Army personnel without prior sanction of the
Central Government - The term "institution" contained in s. 7
means taking cognizance of the offence and not mere
presentation of chargesheet by the investigating agency -
E
Therefore, chargesheet against the army personnel cannot be
filed without prior sanction of the Central Government - This
protection is available only when the alleged act done by the
army personnel is reasonably connected with the discharge
of his official duty and is not merely a cloak for doing the
F
objectionable act - The question to examine as to whether the
sanction is required or not under a statute has to be
considered at the time of taking cognizance of the offence and
not during enquiry or investigation - The Legislature has
conferred "absolute power" on the statutory authority to accord
G
sanction or withhold the same and the court has no role in
this subject - In such a situation the court would not proceed
without sanction of the competent statutory authority - Code
599
H
600
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A of Criminal Procedure, 1973 - s.197 - General Clauses Act,
1897 - s.3(22) -Army Act, 1950.
CODE OF CRIMINAL PROCEDURE, 1973: Institution of
a case - Meaning of - Neid: The term 'institution' has to be
8 ascertained taking into consideration the scheme of the Act/
Statute applicable - So far as the criminal proceedings are
concerned, "Institution" does not mean filing; presenting or
initiating the proceedings, rather it means taking cognizance
as per the provisions contained in the Cr.P. C.
C
GENERAL CLAUSES ACT, 1897: s.3(22) - Good faith -
Held: A public servant i.s under a moral and legal obligation
to perform his duty with truth, honesty, honour, loyality and
faith etc. - He is to perform his duty according to the
expectation of the officEi and the nature of the post for the
D reason that he is to have a respectful obedience to the law
and authority in order to accomplish the duty assigned to him
- Good faith is defined in s. 3(22) to mean a thing which is, in
·fact, done honestly, whether it is done negligently or not -
Anything done with due care and attention, which is not
E malafide, is presumed to have been done in good faith -
Good faith and public good are though questions of fact, are
required to be proved by adducing evidence.
ARMY ACT, 1950: s.125 - Exercise of option under -
Held: The stage of making option to try an accused by a courtF martial and not by the criminal court is after filing of the
chargesheet and before taking cognizance or framing of the
charges - If the Army chooses, it can prosecute the accused
through court-martial instead of going through the criminal
court - Once the option is made that accused is to be tried by
G a court-martial, further proceedings would be in accordance
with the provisions .of s. 70 of the Army Act and for that
purpose, sanction of the Central Government is not required.
WORDS AND PHRASES:
H
GENERAL OFFICER COMMANDING v. CBI AND
601
ANR.
'Cognizance', 'prosecution', 'suit', 'legal proceedings', and
A
expression 'institution of case' - Meaning of
Except', 'purport', 'good faith' - Meaning of.
"Legal proceedings" and ''judicial proceedings" -
Distinction between.
B
The prosecution case was that in fake encounters,
few civilians were killed by the army officers. The CBI was
asked to conduct the investigation. The CBI conducted
the investigation and filed charge-sheet against the army c
officers. The Magistrate granted opportunity to Army to
exercise the option as to whether the competent
authority would prefer to try the case by way of court
martial by taking over

## Text

_Characters 0–39,795 of 118,279. This is a partial read: ask again with offset=39795 for what follows._

[2012] 5 S.C.R. 599
GENERAL OFFICER COMMANDING
v.
CBI AND ANR.
(Criminal Appeal No. 257 of 2011)
MAY 1, 2012
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
ARMED FORCES J & K (SPECIAL POWERS) ACT,
1990:
ss.4, 6 - Powers conferred on the officers of Armed forces
- Scope of.
A
B
c
s. 7 - Interpretation of - Held: The scheme of the Act
provides protection to- Army personnel in respect of anything
done or purported to be done in exercise of powers conferred D
by the Act - s. 7 prohibits institution of legal proceedings
against any Army personnel without prior sanction of the
Central Government - The term "institution" contained in s. 7
means taking cognizance of the offence and not mere
presentation of chargesheet by the investigating agency -
E
Therefore, chargesheet against the army personnel cannot be
filed without prior sanction of the Central Government - This
protection is available only when the alleged act done by the
army personnel is reasonably connected with the discharge
of his official duty and is not merely a cloak for doing the
F
objectionable act - The question to examine as to whether the
sanction is required or not under a statute has to be
considered at the time of taking cognizance of the offence and
not during enquiry or investigation - The Legislature has
conferred "absolute power" on the statutory authority to accord
G
sanction or withhold the same and the court has no role in
this subject - In such a situation the court would not proceed
without sanction of the competent statutory authority - Code
599
H
600
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A of Criminal Procedure, 1973 - s.197 - General Clauses Act,
1897 - s.3(22) -Army Act, 1950.
CODE OF CRIMINAL PROCEDURE, 1973: Institution of
a case - Meaning of - Neid: The term 'institution' has to be
8 ascertained taking into consideration the scheme of the Act/
Statute applicable - So far as the criminal proceedings are
concerned, "Institution" does not mean filing; presenting or
initiating the proceedings, rather it means taking cognizance
as per the provisions contained in the Cr.P. C.
C
GENERAL CLAUSES ACT, 1897: s.3(22) - Good faith -
Held: A public servant i.s under a moral and legal obligation
to perform his duty with truth, honesty, honour, loyality and
faith etc. - He is to perform his duty according to the
expectation of the officEi and the nature of the post for the
D reason that he is to have a respectful obedience to the law
and authority in order to accomplish the duty assigned to him
- Good faith is defined in s. 3(22) to mean a thing which is, in
·fact, done honestly, whether it is done negligently or not -
Anything done with due care and attention, which is not
E malafide, is presumed to have been done in good faith -
Good faith and public good are though questions of fact, are
required to be proved by adducing evidence.
ARMY ACT, 1950: s.125 - Exercise of option under -
Held: The stage of making option to try an accused by a courtF martial and not by the criminal court is after filing of the
chargesheet and before taking cognizance or framing of the
charges - If the Army chooses, it can prosecute the accused
through court-martial instead of going through the criminal
court - Once the option is made that accused is to be tried by
G a court-martial, further proceedings would be in accordance
with the provisions .of s. 70 of the Army Act and for that
purpose, sanction of the Central Government is not required.
WORDS AND PHRASES:
H
GENERAL OFFICER COMMANDING v. CBI AND
601
ANR.
'Cognizance', 'prosecution', 'suit', 'legal proceedings', and
A
expression 'institution of case' - Meaning of
Except', 'purport', 'good faith' - Meaning of.
"Legal proceedings" and ''judicial proceedings" -
Distinction between.
B
The prosecution case was that in fake encounters,
few civilians were killed by the army officers. The CBI was
asked to conduct the investigation. The CBI conducted
the investigation and filed charge-sheet against the army c
officers. The Magistrate granted opportunity to Army to
exercise the option as to whether the competent
authority would prefer to try the case by way of court
martial by taking over the case under the provisions of
Section 125 of the Army Act, 1950. The Army officers filed
D
an application before the Magistrate that no prosecution
could be instituted except with the previous sanction of
the Central Government in view of the provisions of
Section 7 of the Armed Forces J & K (Special Powers)
Act, 1990 and, therefore, the proceedings be closed by
E
returning the charge-sheet to the CBI. The Magistrate
dismissed the application holding that it was for the trial
court to find out whether the action complained of falls
within the ambit of the discharge of official duty or not.
The Sessions Court dismissed the revision. It, however,
directed the Magistrate to give one more opportunity to
F
the Army officials for exercise of option under Section 125
of the Army Act. The High Court affirmed the decisions
of lower courts and held that the very objective of
sanction is to enable the Army officers to perform their
duties fearlessly by protecting them from vexatious,
G
malafide and false prosecution for the act done in
performance of their duties.
In the instant appeals, it was contended that Section
H
602
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A 7 of the Act 1990 provides that no prosecution, suit or
legal proceeding shall be instituted without prior sanction
of the Central Government against any person in respect
of anything done or purported to be done in exercise of
powers conferred under the Act; that the prosecution
B would be deemed to have instituted/initiated at the
moment the chargu-sheet is filed and received by the
court and such an acceptance/receipt is without
jurisdiction; and that the previous sanction of the
competent authorit~( is a pre-condition for the court in
c taking the charge-sheet on record if the offence alleged
to have been commiitted in discharge of official duty and
such issue touches the jurisdiction of the court.
Disposing of the appeals, the Court
D
HELD: 1.1. The Armed Forces J & K (Special Powers)
Act, 1990 confers CE!rtain special powers upon members
of the Armed Forces in the disturbed area in the State of
J & K. The disturb1ed area is defined and there is no
dispute that the place where the incident occurred stood
E notified under the Act 1990. Section 4 of the Act 1990
confers special powers on the officer of armed forces to
take measures, where he considers it necessary to do so,
for the maintenance of public order. However, he must
give due warning according to the circumstances and
F even fire upon or use force that may also result in
causing death against any person acting
in
contravention of law and order in the disturbed area and
prohibit the assembly of five or more persons or carrying
of weapons etc. Such an officer has further been
G empowered to destroy any arms dump, arrest any
person without warrant who has committed a cognizable
offence and enter and search without warrant any
premises to make any arrest. Section 6 of the Act 1990
requires that such arrested person and seized property
H
GENERAL OFFICER COMMANDING v. CBI AND
603
ANR.
be handed over to the local police by such an officer. A
[Para 9] [627-H; 628-A-D]
1.2. Section 7 of the Act 1990 provides for umbrella
protection to the Army personnel in respect of anything
done or purported to be done in exercise of powers 8
conferred by the Act. The scheme of the Act requires that
any prosecution, suit or legal proceeding instituted
against any Army official working under the Act 1990 has
to be subjected to stringent test before any such
proceeding can be instituted. Section 7 is required to be C
interpreted keeping the said objectives in mind. The
'prosecution' means a criminal action before the court of
law for the purpose of determining 'guilt' or 'innocence'
of a person charged with a crime. Civil suit refers to a civil
action instituted before a court of law for realisation of a
right vested in a party by law. The phrase 'legal D
proceeding' connotes a term which means the
proceedings in a court of justice to get a remedy which
the law permits to the person aggrieved. It includes any
formal steps or measures employed therein. It is not
synonymous with the 'judicial proceedings'. Every E
judicial proceeding is a legal proceeding but not viceversa, for the reason that there may be a 'legal
proceeding' which may not be judicial at all, e.g. statutory
remedies like assessment under Income Tax Act, Sales
Tax Act, arbitration proceedings etc. So, the ambit of F
expression 'legal proceedings' is much wider than
'judicial proceedings'. The expression 'legal proceeding'
is to be construed in its ordinary meaning but it is quite
distinguishable from the departmental and administrative
proceedings. The terms used in Section 7 i.e. suit, G
prosecution and legal proceedings are not interchangeable or convey the same meaning. The phrase
'legal proceedings' is to be understood in the context of
the statutory provision applicable in a particular case, and
considering the preceding words used therein. Legal H
604
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
proceedings' means proceedings regulated or prescribed
by law in which a judicial decision may be given; it
means proceedings in a court of justice by which a party
pursues a remedy which a law provides, but does not
include administrative and departmental proceedings.
B The provision of Section 7 of the Act 1990 prohibits
institution of legal proceedings against any Army
personnel without prior sanction of the Central
Government. Therefore, chargesheet cannot be instituted
without prior sanction of the Central Government. Th1
c use of the words 'anything done' or 'purported to be
done' in exercise of powers conferred by the Act 1990 is
very wide in its scope and ambit and it consists of twin
test. Firstly, the act or omission complained of must have
been done in the course of exercising powers conferred
0
under the Act, i.e., while carrying out the duty in the
course of his service and secondly, once it is found to
have been performed in discharge of his official duty,
then the protection !given under Section 7 must be
construed liberally. Therefore, the provision contained
under Section 7 of tho Act 1990 touches the very issue
E of jurisdiction of launching the prosecution. [Paras 10, 11,
12] [628-D-E; 629-B-H; 630-A; 631-A-E]
Assistant Collector of Central Excise, Guntur v. Ramdev
Tobacco Company, AIR 1991 SC 506; Maharashtra Tubes
F
Ltd. v. State Industrial & Investment Corporation of
Maharashtra Ltd. & Anr. ·(1993) 2 SCC 144: 1993 (1) SCR
340; S. V. Kondaskar, Official Liquidator v. V.M. Deshpande,
/. T.O. & Anr. AIR 1972 SC 878: 1972 (2) SCR 965; Babula/
v. Mis. Hajari Lal Kishori Lal & Ors. AIR 1982 SC 818: 1982
G (3) SCR 94; Binod Mills Co. Ltd., Ujjain v. Shri. Suresh
Chandra Mahaveer Prasad Mantri, Bombay AIR 1987 SC
1739: 1987 (3) SCR 2~~7 - relied on.
2. INSTITUTION OF A CASE:
H
The meaning of the term 'institution' has to be
GENERAL OFFICER COMMANDING v. CBI AND
605
ANR.
ascertained taking into consideration the scheme of the
A
AcUStatute applicable. The expression may mean filing/
presentation or received or entertained by the court. Mere
presentation of a complaint cannot be held to mean that
the Magistrate has taken the cognizance. Thus, the
expression "Institution" has to be understood in the
B
context of the scheme of the Act applicable in a particular
case. So far as the criminal proceedings are concerned,
"Institution" does not mean filing; presenting or initiating
the proceedings, rather it means taking cognizance as
per the provisions contained in the Cr.P.C. [Paras 13, 20, c
21) [631-F; 634-8-D]
Mis. Lakshmiratan Engineering Works Ltd. v. Asst.
Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur
& Anr. AIR 1968 SC 488; Lala Ram v. Hari Ram, AIR 1970
SC 1093 Hindustan Commercial Bank Ltd. v. Punnu Sahu
D
{dead) through LRs. AIR 1970 SC 1384; Martin and Harris
Ltd. v. Vlth Additional District Judge & Ors. AIR 1998 SC 492;
Jamuna Singh & Ors. v. Bhadai Shah AIR 1964 SC 1541
Satyavir Singh Rathi ACP & Ors. v. State through CBI (2011)
6 SCC 1: 2011 (6) SCR 138; Kamalapati Trivedi v. The State
E
of West Bengal AIR 1979 SC 777: 1979 (2) SCR 717;
Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana
Reddy & Ors. AIR 1976 SC 1672: 1976 (0) Suppl. SCR 524;
Narsingh Oas Tapadia v. Goverdhan Oas Partani & Anr. AIR
2000 SC 2946: 2000 (3) Suppl. SCR 171 - relied on.
F
3. SANCTION FOR PROSECUTION:
3.1. The protection given under Section 197 Cr.P.C.
is to protect responsible public servants against the
institution of possibly vexatious criminal proceedings for G
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 H
606
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A of their official duties without reasonable cause, and if
sanction is granted, to confer on the Government, if they
choose to exercisu it, complete control of the
pros~cution. This protection has certain limits and is
available only when tlhe alleged act done by the public
B servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing the
objectionable act. Uso of the expression "official duty"
implies that the act or omission must have been done by
the public servant in the course of his service and that it
c should have been done in discharge of his duty. The
section does not extend its protective cover to every act
or omission done by a public servant in service but
restricts its scope of' operation to only those acts or
omissions which are done by a public servant in
0
discharge of official duty. If on facts, therefore, it is prima
facie found that the act or omission for which the
accused was charged had reasonable connection with
discharge of his duty, then it must be held to be official
to which applicability of Section 197 Cr.P.C. cannot be
E disputed. The question to examine as to whether the
sanction is required or not under a statute has to be
considered at the time of taking cognizance of the
offence and not during enquiry or investigation. There is
a marked distinction in the stage of investigation and
prosecution. The prosecution starts when the
F cognizance of offence is taken. The cognizance is taken
of the offence and not of the offender. The sanction of
the appropriate authority is necessary to protect a public
servant from unnecessary harassment or prosecution.
Such a protection is inecessary as an assurance to an
G honest and sincere officer to perform his public duty
honestly and to the best of his ability. The threat of
prosecution demorali:ses the honest officer. However,
performance of public duty under colour of duty cannot
be camouflaged to commit a crime. The public duty may
H provide such a public servant an opportunity to commit
GENERAL OFFICER COMMANDING v. CBI AND
607
ANR.
crime and such issue is required to be examined by the A
sanctioning authority or by the court. It is quite possible
that the official capacity may enable the pubic servant to
fabricate the record or mis-appropriate public funds etc.
Such activities definitely cannot be integrally connected
or inseparably inter-linked with the crime committed in B
the course of the same transaction. Thus, all acts done
by a public servant in the purported discharge of his
official duties cannot as a matter of course be brought
under the protective umbrella of requirement of sanction.
In fact, the issue of sanction becomes a question of c
paramount importance when a public servant is alleged
to have acted beyond his authority or his acts
complained of are in dereliction of the duty. In such an
eventuality, if the offence is alleged to have been
committed by him while acting or purporting to act in D
discharge of his official duty, grant of prior sanction
becomes imperative. It is so, for the reason that the power
of the State is performed by an executive authority
authorised in this behalf in terms of the Rules of
Executive Business framed under Article 166 of the
Constitution of India insofar as such a power has to be
E
exercised in terms of Article 162 thereof. In broad and
literal sense ·cognizance' means taking notice of an
offence as required under Section 190 Cr.P.C.
·cognizance' indicates the point when the court first
takes judicial notice of an offence. The court not only F
applies its mind to the contents of the complaint/police
report, but also proceeds in the manner as indicated in
the subsequent provisions of Chapter XIV of the Cr.P.C.
[Paras 22-24, 39] [634-E-H; 635-A-B; D-H, 636-A-E; 646-DF]
G
R. Balakrishna Pillai v. State of Kera/a & Anr. AIR 1996
SC 901: 1995 ( 6 ) Suppl. SCR 236; S. K. Zutshi & Anr. v.
Bimal Debnath & Anr. AIR 2004 SC 4174; Center for Public
Interest Litigation & Anr. v. Union of India & Anr. AIR 2005
SC 4413: 2005 (4) Suppl. SCR 77; Rakesh Kumar Mishra H
608
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
v. State of Bihar & Ors. AIR 2006 SC 820: 2006 (1) SCR 124;
Anjani Kumar v. State of Bihar & Ors. AIR 2008 SC 1992:
2008 (6) SCR 912; State of Madhya Pradesh v. Sheet/a
Sahai & Ors. (2009) a SCC 617: 2009 (12) SCR 1048;
Bhanuprasad Hariprasad Dave & Anr. v. The State of Gujarat
B AIR 1968 SC 1323: 11969 SCR 22; Hareram Satpathy v.
Tikaram Agarwala & Ors. AIR 1978 SC 1568: 1979 (1) SCR
349; State of Maharashtra v. Dr. Budhikota Subbarao (1993)
3 SCC 339: 1993 (2) SCR 311; Anil Saran v. State of Bihar
& Anr. AIR 1996 SC 204: 1995 (3) Suppl. SCR 58;
c Shambhoo Nath Misra v State of U.P. & Ors. AIR 1997 SC
2102: 1997 (2) SCR 1 '139; Choudhury Parveen Sultana v.
State of West Bengal ~~ Anr. AIR 2009 SC 1404: 2009 (1)
SCR 99; State of Punjab & Anr. v. Mohammed Iqbal Bhatti
(2009) 17 SCC 92: 2009 (11) SCR 790; The State of Andhra
D Pradesh v. N. Venugopal & Ors. AIR 1964 SC 33: 1964 SCR
742; State of Maharashtra v. Narhar Rao AIR 1966 SC 1783:
1966 SCR 880; State of Maharashtra v. Atma Ram & Ors.
AIR 1966 SC 1786; Prof Sumer Chand v. Union of India &
Ors. (1994) 1 SCC 64: 1993 (2) Suppl. SCR 123; State of
Orissa & Ors. v. Ganesh Chandra Jew AIR 2004 SC 2179:
E 2004 (3 ) SCR 504; P. Arulswami v. State of Madras AIR
1967 SC 776: 1967 SCR 201; Suresh Kumar Bhikamchand
Jain v. Pandey Ajay Blwshan & Ors. AIR 1998 SC 1524:
1997 ( 5 ) Suppl. SCR 5i24; Matajog Dobey v. H. C. Bhari AIR
1956 SC 44: 1955 SCR 925; Sankaran Moitra v. Sadhna Das
F
& Anr. AIR 2006 SC ~1599: 2006 (3 ) SCR 305; Rizwan
Ahmed .Javed Shaikh & Ors. v. Jammal Patel & Ors. AIR 2001
SC 2198: 2001 ( 3 ) SCR 766; S.B. Saha & Ors. v. M.S.
Kochar AIR 1979 SC 1841: 1980 ( 1 ) SCR 111; Parkash
Singh Badal & Anr. v. State of Punjab & Ors. AIR 2007 SC
G 1274: 2006 (10) Suppl. SCR 197; P.K. Choudhury v.
Commander, 48 BRTF (GREF) (2008) 13 SCC 229: 2008
(4) SCR 976; Nagraj v. State of Mysore AIR 1964 SC 269:
1964 SCR 671; Naga People's Movement of Human Rights
v. Union of India AIR 1998 SC 431: 1997 (5) Suppl. SCR
H 469; Jamiruddin Ansari v. Central Bureau of Investigation &
GENERAL OFFICER COMMANDING v. CBI AND
609
ANR.
Anr. (2009) 6 SCC 316: 2009 (7) SCR 759; Harpa/ Singh v.
A
State of Punjab (2007) 13 SCC 387: 2007 (12) SCR 830;
Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat AIR
1997 SC 3475: 1997 (3) Suppl. SCR 356; State of H.P. v.
M.P. Gupta (2004) 2 SCC 349: 2003 (6) Suppl. SCR 541;
R.R. Chari v. The State of Uttar Pradesh AIR 1951 SC 207:
B
1991 (1) SCC 57; State of W B. & Anr. v. Mohd. Khalid & Ors.
(1995) 1 sec 684: 1994 (6) Suppl. SCR 16; Dr.
Subramanian Swamy v. Dr. Manmohan Singh & Anr. AIR
2012 SC 1185: 2012 (3) SCC 64; Bhushan Kumar v. State
(NCT of Delhi) (2012) 4 SCALE 191; State of Uttar Pradesh C
v. Paras Nath Singh (2009) 6 SCC 372: 2009 (8) SCR 85 -
relied on.
3.2. Section 7 of the Act 1990, puts an embargo on
the complainant/investigating agency/person aggrieved
to file a suit, prosecution etc. in respect of anything done D
or purported to be done by a Army personnel, in good
faith, in exercise of power conferred by the Act, except
with the previous sanction of the Central Government.
Three expressions i.e. 'except', 'good faith' and
'purported' contained in the said provision require E
clarification/elaboration. (i) Except : To leave or take out:
exclude; omit; save Not including; unless. The word has
also been construed to mean until. Exception - Act of
excepting or excluding from a number designated or
from a description; that which is excepted or separated
F
from others in a general rule of description; a person,
thing, or case specified as distinct or not included; an act
of excepting, omitting from mention or leaving out of
consideration. (ii) Purport : Purport means to present,
especially deliberately, the appearance of being; profess G
or claim, often falsely. It means to convey, imply, signify
or profess outwardly, often falsely. In other words it
means to claim (to be a certain thing, etc.) by manner or
appearance; intent to show; to mean; to intend. Purport
also means 'alleged'. 'Purporting' - When power is given H
610
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A to do something 'purporting' to have a certain effect, it
will seem to prevent objections being urged against the
validity of the act which might otherwise be raised. Thus
when validity is given to anything 'purporting' to be done
in pursuance of a power, a thing done under it may have
B validity though done a1t a time when the power would not
be really exercisable. 'Purporting to be done' - There
must be something in the nature of the act that attaches
it to his oftrcial charac:ter. Even if the act is not justified
or authorised by law, he will still be purporting to act in
c the execution of his duty if he acts on a mistaken view
of it." So it means that something is deficient or amiss:
everything is not as it is intended to be. [Paras 42, 43]
(647-F-H; 648-A-H; 64!9-A-B]
Azimunnissa and Ors. v. The Deputy Custodian,
D Evacuee Properties, District Deoria and Ors. AIR 1961 SC
365: 1961 SCR 91; Haji Siddik Haji Umar & Ors. v. Union
of India AIR 1983 SC 259: 1983 (2) SCR 249 - relied on.
Dicker v. Angerstein, 3 Ch D 600 - referred to.
E 4. GOOD FAITH:
4.1. A public se1rvant is under a moral and legal
obligation to perform his duty with truth, honesty,
honour, loyality and faith etc. He is to perform his duty
F
according to the expe~ctation of the office and the nature
of the post for the reason that he is to have a respectful
obedience to the law and authority in order to accomplish
the duty assigned to him. Good faith has been defined
in Section 3(22) of the General Clauses Act, 1897, to mean
a thing which is, in fai::t, done honestly, whether it is done
G negligently or not. Anything done with due care and
attention, which is nolt malafide, is presumed to have been
done in good faith. There should not be personal ill-will
or malice, no intention to malign and scandalize. Good
faith and public good are though the question of fact, it
H required -to be proved by adducing evidence. The facts
GENERAL OFFICER COMMANDING v. CBI AND
611
ANR.
of each case are, therefore, necessary to constitute the
A
ingredients of an official act. The act has to be official and
not private as it has to be distinguished from the manner
in which it has been administered or performed. Then
comes the issue of such a duty being performed in good
faith. The act which proceeds on reliable authority and
accepted as truthful is said to be in good faith. It is the
opposite of the intention to deceive. A duty performed in
good faith is to fulfil a trust reposed in an official and
which bears an allegiance to the superior authority. Such
B
a duty should be honest in intention, and sincere in c
professional execution. It is on the basis of such an
assessment that an act can be presumed to be in good
faith for which while judging a case the entire material on
record has to be assessed. The allegations which are
generally made are, that the act was not traceable to any
D
lawful discharge of duty. That by itself would not be
sufficient to conclude that the duty was performed in bad
faith. It is for this reason that the immunity clause is
contained in statutory provisions conferring powers on
E
law enforcing authorities. This is to protect them on the
presumption that acts performed in good faith are free
from malice or ill will. The immunity is a kind of freedom
conferred on the authority in the form of an exemption
while performing or discharging official duties and
responsibilities. The act or the duty so performed are
such for which an official stands excused by reason of
F
his office or post. It is for this reason that the assessment
of a complaint or the facts necessary to grant sanction
against immunity that the chain of events has to be
looked into to find out as to whether the act is dutiful and
in good faith and not maliciously motivated. It is the
G
intention to act which is important. A sudden decision to
do something under authority or the purported exercise
of such authority may not necessarily be predetermined
except for the purpose for which the official proceeds to
accomplish. For example, while conducting a raid an
H
612
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A official may not have the apprehension of being attacked
but while performing his official duty he has to face such
a situation at thE! hands of criminals and unscrupulous
persons. The official may in his defence perform a duty
which can be on account of some miscalculation or
B wrong informatioin but such a duty cannot be labelled as
an act in bad faith unless it is demonstrated by positive
material in particular that the act was tainted by personal
motives and was not connected with the discharge of any
official duty. Thus;, an act which may appear to be wrong
c or a decision which may appear to be incorrect is not
necessarily a maliicious act or decision. The presumption
of good faith therefore can be dislodged only by cogent
and clinching material and so long as such a conclusion
is not drawn, a duty in good faith should be presumed
0 to have been done or purported to have been done in
exercise of the powers conferred under the statute. There
has to be material to attribute or impute an unreasonable
motive behind an act to take away the immunity clause.
It is for this reasc>n that when the authority empowered
E to grant sanction is proceeding to exercise its discretion,
it has to take in1to account the material facts of the
incident complai1ned of before passing an order of
granting sanction or else official duty would always be
in peril even if performed bonafidely and genuinely.
[Paras 44-51] [649-E-H; 650-A; 651-B-H; 652-A-H]
F
Madhavrao Narayanrao Patwardhan v. Ram Krishna
Govind Bhanu & Ors. AIR 1958 SC 767: 1959 SCR 564;
Madhav Rao Scindia Bahadur Etc. v. Union of India & Anr.
AIR 1971 SC 530: 1971 (3) SCR 9; Sewakram Sobhani v.
G R.K Karanjiya, Chief Editor, Weekly Blitz & Ors. AIR 1981 SC
1514; Vijay Kumar Hampal & Ors. v. Diwan Devi & Ors. AIR
1985 SC 1669; Deona (Dead) through Lrs. v. Bharat Singh
(Dead) through LRs. & Ors., (2002) 6 SCC 336: 2002 (1)
Suppl. SCR 289; Goondla Venkateshwar/u v. State of Andhra
H Pradesh & Anr. (2008) 9 SCC 613: 2008 (12) SCR 608;
GENERAL OFFICER COMMANDING v. CBI AND
613
ANR.
Brijendra Singh v. State of UP. & Ors. AIR 1981 SC 636 -
A
relied on.
4.2. The protection and immunity granted to an official
particularly in provisions of the Act 1990 or like Acts has
to be widely construed in order to assess the act
complained of. This would also include the assessment
8
of cases like mistaken identities or an act performed on
the basis of a genuine suspicion. Therefore, such
immunity clauses have to be interpreted with wide
discretionary powers to the sanctioning authority in order
to uphold the official discharge of duties in good faith
C
and a sanction therefore has to be issued only on the
basis of a sound objective assessment and not
otherwise. Use of words like 'No' and 'shall' in Section 7
of the Act 1990 denotes the mandatory requirement of
obtaining prior sanction of the Central Government D
before institution of the prosecution, suit or legal
proceedings. The conjoint reading of Section 197(2)
Cr.P.C. and Section 7 of the Act 1990 would show that
prior sanction is a condition precedent before institution
of any of the said legal proceedings. Under the provisions
E
of Cr.P.C. and Prevention of Corruption Act, it is the court
which is restrained to take cognizance without previous
sanction of the competent authority. Under the Act 1990,
the investigating agency/complainant/person aggrieved
is restrained to institute the criminal proceedings; suit or
F
other legal proceedings. Thus, there is a marked
distinction in the statutory provisions under the Act 1990,
which are of much wider magnitude and are required to
be enforced strictly. Thus, the question of sanction is of
paramount importance for protecting a public servant G
who has acted in good faith while performing his duty.
In order that the public servant may not be unnecessarily
harassed on a complaint of an unscrupulous person, it
is obligatory on the part of the executive authority to
protect him. However, there must be a discernible
H
614
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A connection between the act complained of and the
powers and duties of the public servant. The act
complained of may fall within the description of the action
purported to have been done in performing the official
duty. Therefore, if the allegi:id act or omission of the
B public servant can be shown to have reasonable
connection inter-·relationship or inseparably connected
with discharge 1:>f his duty, he becomes entitled for
protection of sanction. If the law requires sanction, and
the court proceEids against a public servant without
C sanction, the public servant has a right to raise the issue
of jurisdiction as the entire action may be rendered void
ab-initio for want of sanction. Sanction can be obtained
even during the course of trial depending upon the facts
of an individual case and particularly at what stage of
proceedings, reqU1irement of sanction has surfaced. The
D question as to whether the act complained of, is done in
performance of duty or in purported performance of duty,
is to be determinE!d by the competent authority and not
by the court. The Legislature has conferred "absolute
power" on the statutory authority to accord sanction or
E withhold the same and the court has no role in this
subject. In such a situation the court would not proceed
without sanction 1of the competent statutory authority.
Thus, sanction of the Central Government is required in
the facts and circumstances of the case and the court
F concerned lacks jurisdiction to take cognizance unless
sanction is granted by the Central Government. [Paras
52-56) [653-A-D; 6!i4-C-H; 655-A-E]
5. The CJM Court gave option to the higher
G authorities of the Army to choose whether the trial be held
by the court-martial or by the criminal court as required
under Section 125 1of the Army Act. File notings of Army
Authorities revealed their decision that in case it is
decided by this Court that sanction is required and the
H Central Government accords sanction, option would be
GENERAL OFFICER COMMANDING v. CBI AND
615
ANR.
availed at that stage. Thus, Military Authority may ask the A
criminal court dealing with the case that the accused
would be tried by the court-martial in view of the
provisions of Section 125 of the Army Act. However, the
option given by the Authority is not final in view of the
provisions of Section 126 of the Army Act. Criminal court B
having jurisdiction to try the offender may require the
competent military officer to deliver the offender to the
Magistrate concerned to be proceeded according to law
or to postpone the proceedings pending reference to the
Central Government, if that criminal court is of the c
opinion that proceedings be instituted before itself in
respect of that offence. Thus, in case the criminal court
makes such a request, the Military Officer either .has to
comply with it or to make a reference to the Central
Government whose orders would be final with respect to D
the venue of the trial. Therefore, the discretion exercised
by the Military Officer is subject to the control of the
Central Government. Such matter is being governed by
the provisions of Section 475 Cr.P.C. read with the
provisions of the J & K Criminal Courts and Court-Martial
(Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the E
said Rules, 1983, provides that in case the accused has
been handed over to the Army authorities to be tried by
a court-martial, the proceedings of the criminal court shall
remain stayed. Rule 7 thereof, further provides that when
an accused has been delivered by the criminal court to
F
the Army authorities, the authority concerned shall inform
the criminal court whether the accused has been tried by
a court-martial or other effectual proceedings have been
taken or ordered to be taken against him. If the Magistrate
is informed that the accused has not been tried or other G
effectual proceedings have not been taken, the
Magistrate shall report the circumstances to the State
Government which may, in consultation with the Central
Government, take appropriate steps to ensure that the
accused person is dealt with in accordance with law. H
616
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A Under Section 125 of the Army Act, the stage of making
option to try an c;1ccused by a court-martial and not by the
criminal court is after filing of the chargesheet and before
taking cognizance or framing of the charges. Section 7
of the Act 1990 does not contain non-obstante clause.
B Therefore, once the option is made that accused is to be
tried by a court-martial, further proceedings would be in
accordance with the provisions of Section 70 of the Army
Act and for that purpose, sanction of the Central
Government is not required. [Paras 57-58, 62, 64] [655-EC H; 656-A-F; 657-F-G; 658-C-D]
Delhi Special Police Establishment, New Delhi v. Lt. Col.
S.K. Loraiya AIR 1972 SC 2548; Balbir Singh & Anr. v. State
of Punjab 1994 (5) Suppl. SCR 422; Ram Sarup v. Union of
India & Anr. AIR 1965 SC 247; Union of India & Ors. v. Major
D A. Hussain AIR 1998 SC 577 - relied on.
E
F
G
H
6. Sum up:
(i) The conjoint reading of the relevant statutory
provisions and rules make it clear that the term
"institution" contained in Section 7 of the Act 1990
means taking cognizance of the offence and not
mere presentation of the chargesheet by the
investigating agency.
(ii) The competent Army Authority has to exercise his
discretion to opt as to whether the trial would be by
a court-martial or criminal court after filing of the
chargesheet imd not after the cognizance of the
offence is taken by the court.
(iii) Facts of this case require sanction of the Central
Government to proceed with the criminal
prosecution/trial.
(iv) In case op1tion is made to try the accused by a
GENERAL OFFICER COMMANDING v. CBI AND
617
ANR.
court-martial, sanction of the Central Government is
A
not required. [Para 66) [658-F-H; 659-A-C]
7. In view of that, the following directions are passed:
I The competent authority in the Army shall take a
decision within a period of eight weeks from today
B
as to whether the trial would be by the criminal court
or by a court-martial and communicate the same to
the Chief Judicial Magistrate concerned immediately
thereafter.
II In case the option is made to try the case by a
C
court-martial, the said proceedings would commence .
immediately and would be concluded strictly in
accordance with law expeditiously.
Ill In case the option is made that the accused would
D
be tried by the criminal court, the CBI shall make an
application to the Central Government for grant of
sanction within four weeks from the receipt of such
option and in case such an application is filed, the
Central Government shall take a final decision on the
said application within a period of three months from
E
the date of receipt of such an application.
IV In case sanction is granted by the Central
Government, the criminal court shall proceed with the
trial and conclude the same expeditiously. [Para 67)
F
[659-D-H; 670-A-B]
Case Law Reference:
AIR 1991 SC 506
1993 (1) SCR 340
1972 (2) SCR 965
AIR 1982 SC 818
AIR 1987 SC 1739
relied on
relied on
relied on
relied on
relied on
Para 12
Para 12
Para 12
Para 12
Para 12
G
H
618
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
AIR 1968 SC 488
relied on
Para 14
AIR 1970 SC 1093
relied on
Para 15
AIR 1970 SC 1384
relied on
Para 16
B
AIR 1998 SC 492
relied on
Para 17
AIR 1964 SC 1541
relied on
Para 18
2011 (6) SCR 138
relied on
Para 18,25
1979 (2) SCR 717
relied on
Para 19
c
1976 (0) Suppl. SCR 524 relied on
Para 19
2000 (3) Suppl. SCR 171
relied on
Para 20
1995 (6) Suppl. SCR 236 relied on
Para 22
D
AIR 2004 SC 4174
relied on
Para 22
2005 (4) Sup~1I. SCR 77
relied on
Para 22
2006 (1) SCR 124
relied on
Para 22
E
2008 (6) SCR 912
relied on
Para 22
2009 (12) SCR 1048
relied on
Para 22
1969 SCR 22
relied on
Para 23
F
1979 (1) SCR 349
relied on
Para 23
1993 (2) SCR 311
relied on
Para 23
1995 (3) Suppl. SCR 58
relied on
Para 23
1997 (2) SCR 1139
relied on
Para 23
G
2009 (1) SCR 99
relied on
Para 23
2009 (11) SCR 790
relied on
Para 25
1964 SCR 7 4'!
relied on
Para 24
H
1966 SCR 88CI
relied on
Para 25
GENERAL OFFICER COMMANDING v. CBI AND
619
ANR.
AIR 1966 SC 1786
relied on
Para 25
A
1993 (2) Suppl. SCR 123 relied on
Para 25
2004 (3) SCR 504
relied on
Para 26
1967 SCR 201
relied on
Para 26
B
1997 (5) Suppl. SCR 524 relied on
Para 27
1955 SCR 925
relied on
Para 28,56
2006 (3) SCR 305
relied on
Para 29, 56 c
2001 (3) SCR 766
relied on
Para 29
1980 (1) SCR 111
relied on
Para 30
2006 (10) Suppl. SCR 197 relied on
Para 31
2008 (4) SCR 976
relied on
Para 32
D
1964 SCR 671
relied on
Para 33
1997 (5) Suppl. SCR 469 relied on
Para 34
2009 (7) SCR 759
relied on
Para 35
E
2007 (12) SCR 830
relied on
Para 36
1997 (3) Suppl. SCR 356 relied on
Para 37
2003 (6) Suppl. SCR 541
relied on
Para 38
F
1991 (1) sec 57
relied on
Para 39
1994 (6) Suppl. SCR 16
relied on
Para 39
2012 (3 ) sec 64
relied on
Para 40
(2012) 4 SCALE 191
relied on
Para 40
G
2009 (8) SCR 85
relied on
Para 41
1961 SCR 91
relied on
Para 43
1983 (2) SCR 249
relied on
Para 43
H
A
B
c
D
E
620
SUPREME COURT REPORTS
[2012] 5 S.C.R.
1959 SCR !i64
relied on
Para 44
1971 (3) SCR 9
relied on
Para 44
AIR 1981 SC 1514
relied on
Para 44
AIR 1985 SC 1669
relied on
Para 44
2002 (1) Su1ppl. SCR 289 relied on
Para 44
2008 (12) SCR 608
relied on
Para 44
AIR 1981 SG 636
relied on
Para 44
AIR 1969 SC 414
relied on
Para 59
AIR 1972 SC 2548
relied on
Para 60
1994 (5) Suppl. SCR 422 relied on
Para 61
AIR 1965 SC: 247
relied on
Para 61
AIR 1998 SC: 577
relied on
Para 65
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 257 of 2011 E!tC.
From the Jud!lment & Order dated 10.07.2007 of the High
Court of Jammu & Kashmir in 561A 78 & 80 of 2006.
WITH
F
Crl. Appeal No. SS of 2006.
P.P. Malhotra, Mohan Parasaran, H.P. Raval, ASG, M.S.
Ganesh, Ashok Bhan, D.L. Chidananda, B.K. Prasad, Anil
Katiyar, D.S. Mahra, R. Ayyam Perumal, Sukun K.S. Chandele,
P.K. Dey, Dr. Chaiudhary Shamsuddin Khan, Arvind Kumar
G Sharma for the appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. Criminal Appeal No. 257 of
H 2011 has been preferred against the impugned judgment and
GENERAL OFFICER COMMANDING v. CBI AND
621
ANR. [DR. B.S. CHAUHAN, J.]
order dated 10.7.2007 passed by the High Court of Jammu and
A
Kashmir in Petition Nos.