# Gurmeet Kaur v. Devender Gupta & Another

- **Citation:** 2024 INSC 967
- **Court:** Supreme Court of India
- **Decided:** 2024-11-26
- **Bench:** B.V. Nagarathna, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurmeet-kaur-v-devender-gupta-another-37726
- **Pages:** 26

## Headnote

Issue arose whether the appellant while discharging her duty as a
public servant on the relevant date, there was any excess in the
discharge of the said duty which did not require the first respondent
to take a prior sanction for prosecuting the appellant.
Headnotes†
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Appellant-District Town Planner
(Enforcement) and 12 others forcibly entered the college of
the respondent-chairman, created chaos and took away the
college telephone forcibly - Complaint filed but no action
taken - Thereafter, the appellant asked for the building map/
plan and other documents, and one of the accused demanded
illegal gratification but the respondent refused - Consequently,
the appellant forcibly entered the college premises along with
police personnel with heavy machinery and equipment for
demolition and after vacating the campus, the demolition took
place - In a writ petition, the Local Commissioner appointed by
the High Court submitted his report that the existing building
was constructed prior to 2004 much before the notification
whereby respondent's college area was declared controlled
area - Private complaint filed - All accused discharged except
the appellant-and accused nos.2 and 4 - Summoning order
passed against them u/ss. 452, 506, 427, 384, 440, 166 read
with s.120-B IPC - Thereafter, petition u/s. 482 CrPC by the
appellant seeking quashing of the complaint, all consequential
proceedings, and the summoning order - High Court dismissed
the petition - Correctness:
*Author
[2024] 11 S.C.R.
1603
Gurmeet Kaur v. Devender Gupta & Another
Held: Appellant who is accused of carrying out the demolition was
doing so within the scope and ambit of her authority - Not a case
where appellant carried out the demolition dehors any legal backing
or basis; neither was the said act of carrying out of the demolition
outside the scope of her authority as the District Town Planner in
the Enforcement Division - Appellant was carrying out the orders
of the superior officers - There is a correlation between the act
of demolition and the discharge of official duty - Demolition was
carried out during the course of performance of appellant's official
duties - Fact that an application was filed seeking regularisation
of the construction put up by the first respondent would indicate
that even according to the first respondent, there was a digression
and other irregularities in the construction put up which required
regularisation - It cannot be said that when such an application
was pending, the appellant had no authority to demolish the
construction - Impugned demolition cannot also be termed as
an "excess" - First respondent ought to have sought sanction for
prosecution u/s.197 - Same, not having been done vitiated the
initiation of the criminal proceeding against the appellant - Thus,
the summoning order and the consequent steps taken by the trial
court pursuant to the said summoning order quashed - Since there
was no prior order of sanction passed u/s.197 of the CrPC, the
initiation of the complaint itself, is non est. [Paras 32, 33]
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Object and purpose of s.197:
Held: Is to protect officers and officials of the State from unjustified
criminal prosecution while they discharge their duties within the
scope and ambit of their powers entrusted to them - Reading of
s.197 indicate that there is a bar for a Court to take cognizance
of such offences mentioned in the said provision except with
the previous sanction of the appropriate government when the
allegations are made against, inter alia, a public servant - Salient
words relevant under sub-section (1) of s.197 are "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" - Thus, for th

## Text

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[2024] 11 S.C.R. 1602 : 2024 INSC 967
Gurmeet Kaur
v.
Devender Gupta & Another
(Criminal Appeal No(s). 4825-4826 of 2024)
26 November 2024
[B.V. Nagarathna* and
Nongmeikapam Kotiswar Singh JJ.]
Issue for Consideration
Issue arose whether the appellant while discharging her duty as a
public servant on the relevant date, there was any excess in the
discharge of the said duty which did not require the first respondent
to take a prior sanction for prosecuting the appellant.
Headnotes†
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Appellant-District Town Planner
(Enforcement) and 12 others forcibly entered the college of
the respondent-chairman, created chaos and took away the
college telephone forcibly - Complaint filed but no action
taken - Thereafter, the appellant asked for the building map/
plan and other documents, and one of the accused demanded
illegal gratification but the respondent refused - Consequently,
the appellant forcibly entered the college premises along with
police personnel with heavy machinery and equipment for
demolition and after vacating the campus, the demolition took
place - In a writ petition, the Local Commissioner appointed by
the High Court submitted his report that the existing building
was constructed prior to 2004 much before the notification
whereby respondent's college area was declared controlled
area - Private complaint filed - All accused discharged except
the appellant-and accused nos.2 and 4 - Summoning order
passed against them u/ss. 452, 506, 427, 384, 440, 166 read
with s.120-B IPC - Thereafter, petition u/s. 482 CrPC by the
appellant seeking quashing of the complaint, all consequential
proceedings, and the summoning order - High Court dismissed
the petition - Correctness:
*Author
[2024] 11 S.C.R.
1603
Gurmeet Kaur v. Devender Gupta & Another
Held: Appellant who is accused of carrying out the demolition was
doing so within the scope and ambit of her authority - Not a case
where appellant carried out the demolition dehors any legal backing
or basis; neither was the said act of carrying out of the demolition
outside the scope of her authority as the District Town Planner in
the Enforcement Division - Appellant was carrying out the orders
of the superior officers - There is a correlation between the act
of demolition and the discharge of official duty - Demolition was
carried out during the course of performance of appellant's official
duties - Fact that an application was filed seeking regularisation
of the construction put up by the first respondent would indicate
that even according to the first respondent, there was a digression
and other irregularities in the construction put up which required
regularisation - It cannot be said that when such an application
was pending, the appellant had no authority to demolish the
construction - Impugned demolition cannot also be termed as
an "excess" - First respondent ought to have sought sanction for
prosecution u/s.197 - Same, not having been done vitiated the
initiation of the criminal proceeding against the appellant - Thus,
the summoning order and the consequent steps taken by the trial
court pursuant to the said summoning order quashed - Since there
was no prior order of sanction passed u/s.197 of the CrPC, the
initiation of the complaint itself, is non est. [Paras 32, 33]
Code of Criminal Procedure, 1973 - s.197 - Prosecution of
Judges and public servants - Object and purpose of s.197:
Held: Is to protect officers and officials of the State from unjustified
criminal prosecution while they discharge their duties within the
scope and ambit of their powers entrusted to them - Reading of
s.197 indicate that there is a bar for a Court to take cognizance
of such offences mentioned in the said provision except with
the previous sanction of the appropriate government when the
allegations are made against, inter alia, a public servant - Salient
words relevant under sub-section (1) of s.197 are "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" - Thus, for the purpose of application of s.197, a sine
qua non is that the public servant is accused of any offence
which had been committed by him in "discharge of his official
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duty" - Said expression clearly indicate that s.197 would not
apply to a case if a public servant is accused of any offence
which is de hors or not connected to the discharge of his or her
official duty. [Para 22]
Case Law Cited
State of Orissa v. Ganesh Chandra Jew [2004] 3 SCR 504 : (2004)
8 SCC 40; Om Prakash v. State of Jharkhand [2012] 9 SCR 125 :
(2012) 12 SCC 72 - relied on.
Urmila Devi v. Yudhvir Singh [2013] 16 SCR 542 : (2013) 15 SCC
624; Amrik Singh v. State of Pepsu [1955] 1 SCR 1302 : (1955)
1 SCR 1302 at 1307 - distinguished.
D.T. Virupakshappa v. C. Subhash [2015] 5 SCR 534 : (2015)
12 SCC 231; Abdul Wahab Ansari v. State of Bihar [2000] Supp.
3 SCR 747 : (2000) 8 SCC 500; D. Devaraja v. Owais Sabeer
Hussain [2020] 6 SCR 453 : (2020) 7 SCC 695; Bhagwan Prasad
Srivastava v. N.P. Mishra [1971] 1 SCR 317 : (1970) 2 SCC 56;
Punjab State Warehousing Corporation v. Bhushan Chander [2016]
4 SCR 537 : (2016) 13 SCC 44; Bakhshish Singh Brar v. Gurmej
Kaur [1988] 1 SCR 450 : (1987) 4 SCC 663; Amod Kumar Kanth
v. Association of Victim of Uphaar Tragedy [2023] 6 SCR 669 :
Criminal Appeal No.1359 of 2017; Matajog Dobey v. H.C. Bihari
[1955] 2 SCR 925 : AIR 1956 SC 44 - referred to.
List of Acts
Punjab Scheduled Roads and Controlled Areas Restriction of
Unregulated Development Act, 1963; Code of Criminal Procedure,
1973; Penal Code, 1860.
List of Keywords
Discharging duty as public servant; Excess in discharge; Prior
sanction; District Town Planner (Enforcement); Illegal gratification;
Demolition; Local Commissioner; Controlled area; Summoning
order; Orders of superior officers; Correlation between act of
demolition and discharge of official duty; Regularisation of
construction; Authority to demolish construction; Sanction for
prosecution u/s. 197 CrPC; Previous sanction of appropriate
government; Public servant; Acting or purporting to act in discharge
of his official duty.
[2024] 11 S.C.R.
1605
Gurmeet Kaur v. Devender Gupta & Another
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
4825-4826 of 2024
From the Judgment and Order dated 18.09.2017 and 01.11.2017 of
the High Court of Punjab & Haryana at Chandigarh in CRM-M No.
4549 of 2015 and CRM No. 33535 of 2017 respectively
Appearances for Parties
Alok Sangwan, Sr. A.A.G., Mukul Rohtagi, Sr. Adv., Sameer Rohtagi,
Sumit Kumar Sharma, Samar Vijay Singh, Rajat Sangwan, Ms.
Sabarni Som, Fateh Singh, Advs. for the Appellant.
Aseem Mehrotra, Ms. Deeksha Mehrotra, Rajeev Singh, Akshay
Amritanshu, Ms. Drishti Saraf, Ms. Pragya Upadhyay, Ms. Swati
Mishra, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
Leave granted.
2.
Being aggrieved by the order dated 18.09.2017 passed in
CRM-M-4549-2015 by the High Court of Punjab and Haryana at
Chandigarh in exercise of powers under Section 482 of the Code of
Criminal Procedure, 1973 dismissing the petition as not maintainable;
and order dated 01.11.2017 passed in application bearing CRM
No.33535 of 2017 declining to recall the order dated 18.09.2017,
the appellant is before this Court.
3.
The relevant facts of the case are that the appellant herein filed a
petition under Section 482 of the Code of Criminal Procedure, 1973
(for short "CrPC") seeking quashing of complaint No.1383 dated
13.03.2010/11.11.2011 titled "Devender Gupta vs. Director, Town and
Country Planning and others" along with the proceedings thereof.
The said complaint was filed by Devender Gupta under Sections 323,
452, 506, 427, 384, 440, 166, 148, 149 read with Section 34 of the
Indian Penal Code, 1860 (for short, "IPC") along with all consequential
proceedings and the impugned order dated 20.11.2014 passed by
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the learned Judicial Magistrate, First Class, Gurgaon summoning
the appellant herein and two others for the aforesaid offences were
assailed before the High Court.
4.
The original complaint filed by Devender Gupta-first respondent herein
under various provisions of the IPC referred to above against the
present appellant, who was at the relevant time, the District Town
Planner (Enforcement) and twelve others was that on 24.09.2006, the
appellant had forcibly entered Anupama College of Engineering and
Anupama Institute of Management, both situated at Gurgaon District
of which the first respondent was the Chairman, in her official jeep
along with some other officials and created chaos and had taken
away the college telephone No.2241615 forcibly. That the college
had resisted initially but the appellant refused to oblige them; a
complaint was lodged before the Bilaspur Police Post regarding the
said incident but no action was taken. Thereafter, the complainant
met the appellant herein on 10.11.2006 along with his advocate
but the appellant had asked for the building map/plan and other
documents and the first respondent-complainant had produced the
said documents. However, one of the accused, Manipal demanded
Rs.20,00,000/- (Rupees Twenty lakhs Only) as an illegal gratification
but the first respondent-complainant refused to oblige the same.
Consequently, on 05.02.2007 at about 9.45 A.M., the appellant
forcibly entered the college premises along with sufficient number
of police personnel with heavy machinery and equipment for the
purpose of demolition and after vacating the campus of the staff and
students, the demolition took place. The said action of the appellant
was with a mala fide intention owing to non-payment of the bribe
made previously; that an FIR was registered on the instructions of
accused No.5 and the same was found to be false.
Further, Writ Petition (C) No.16184/2001 had also been filed in which
the High Court had appointed a Local Commissioner to inspect the
college campus and he had submitted his report on 18.10.2007 stating
that there was an existing building which was constructed prior to
the year 2004 which was much before the notification being issued
under the provisions of The Punjab Scheduled Roads and Controlled
Areas Restriction of Unregulated Development Act, 1963 ("the Act"
for the sake of brevity). Therefore, the Notification issued under the
said Act was not applicable to the subject building inasmuch as its
construction was prior to 05.08.2005.
[2024] 11 S.C.R.
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Gurmeet Kaur v. Devender Gupta & Another
5.
The aforesaid complaint was filed under Section 200 of the CrPC as
a private complaint and on preliminary evidence and recording the
statement of the complainant and witnesses namely CW-1 and CW-2
and documentary evidence at Ex.PA to PZ, Ex. PAA to Ex.PDD.,
the Trial Court issued a summoning order on 20.11.2014 against the
present appellant and two others only under Sections 323, 452, 506,
427, 384, 440, 166 read with Section 120-B of the IPC.
6.
Being aggrieved by the summoning order and also the very filing
of the complaint against the appellant herein, the aforesaid petition
was filed before the High Court. On considering the pleadings on
record as well as the contentions, the High Court dismissed the
said writ petition. Although there were two main facets of the said
writ petition: one with regard to the quashing of the complaint itself
on merits on the premise that no offence whatsoever was made
out; the second aspect of the said case assumes significance
inasmuch as the contention of the appellant before the High Court
was that there was no sanction order passed under Section 197
of the Code of Criminal Procedure, 1973 (CrPC) and therefore,
the very initiation of the criminal proceedings against the appellant
herein were vitiated.
7.
The High Court dismissed the said writ petition by stating that at
that stage it could not categorically be opined whether there was an
illegal act as such which was committed by the public servant namely
the appellant herein which required sanction, or the requirement of
sanction was unnecessary having regard to the nature of the acts
complained against; that it required a detailed inquiry inasmuch
as the Trial Court had held that there was a prima facie evidence
against the appellant herein. In the above premise, the Writ Petition
was dismissed.
8.
Learned senior counsel Sri Mukul Rohatgi assisted by Sri Sameer
Rohatgi, learned counsel submitted that taking into consideration the
allegations against the appellant herein, it is a clear case where the
appellant, during the course of the discharge of her official duties
had carried out the demolition on the basis of the instructions of her
superior officers and therefore, there was no malicious act, malice
or any illegal act which could have been attributed to the appellant
herein let alone any criminal act which could have been alleged
against the appellant herein.
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9.
It was submitted that the High Court ought to have gone into the
aspect as to whether any offence at all was made out and quashed
the criminal complaint. It was further submitted that given the nature of
allegations against the appellant herein, it can be noted that the said
allegations emanate from the nature of the duties that the appellant
carried out on 05.02.2007 inasmuch as the demolition of the illegal
construction was carried out on the said date which neither can be
termed to be an instance of "excess" in the discharge of her duties
nor can it be said that there was a criminal intent on the part of the
appellant herein. The appellant had simply performed her duties as
per the instructions of her superior officers.
10. It was therefore submitted that the sanction for prosecution within the
scope and ambit of Section 197 of the CrPC, which is a mandatory
requirement, had to be taken from the State Government before the
initiation of criminal proceedings even though the criminal proceedings
in the instant case is under Section 200 of the CrPC by way of a
private complaint. In this regard our attention was also drawn to
Sections 20 and 21 of the Act to contend that no suit, prosecution
and other legal proceedings would lie against any person in respect
of anything which has been done in good faith or intended to be done
in pursuance of the Act or the rules made thereunder. Further, no Civil
Court would have any jurisdiction to entertain or decide any question
relating to matters under the Act or the rules made thereunder. It was
submitted that the object and purpose of obtaining sanction under
Section 197 of the CrPC is in order to protect the bona fide acts of
officers and officials done during the discharge of their official duties
and that the salutary intent of the said provision must be realised
and hence, before initiation of any criminal proceeding, the condition
precedent of obtaining a sanction is a mandatory requirement and
hence, in the instant case the absence of any sanction order being
issued by the State Government has vitiated the very initiation of
the criminal complaint against the appellant herein. In support of
this submission, reliance was placed on the following decisions of
this Court:
(1) D.T. Virupakshappa vs. C. Subhash (2015) 12 SCC 231
("D.T. Virupakshappa");
(2) Abdul Wahab Ansari vs. State of Bihar (2000) 8 SCC 500
("Abdul Wahab Ansari")
[2024] 11 S.C.R.
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Gurmeet Kaur v. Devender Gupta & Another
(3) D. Devaraja vs. Owais Sabeer Hussain (2020) 7 SCC 695
("D. Devaraja")
(4) Amod Kumar Kanth vs. Association of Victim of Uphaar
Tragedy and Anr., Crl. Appeal No.1359/2017 disposed of
on 20.04.2023.
11. It was submitted that having regard to the position of law which
squarely apply to the facts of the present case, the impugned order
may be set aside and the initiation of the criminal proceedings against
the appellant may be quashed and all consequential orders thereby
may be quashed.
12. Per contra, learned counsel for the first respondent Sri Aseem
Mehrotra, at the outset submitted that the impugned order would not
call for any interference; that the appellant would now have to face the
criminal trial; and that the appellant has had the benefit of the interim
order of stay of proceedings at the hands of this Court. Therefore,
the appeal may simply be dismissed in limine, so that the appellant
would stand the test of criminality which has been alleged against
her. It was contended that the first respondent was constrained to
file the complaint owing to the fact that the Notification issued under
the Act was not at all applicable and that the demolition carried out
by the appellant herein was with vengeance and malice; that she
had no authority to carry out the demolition of the building which
was constructed prior to 05.08.2005 inasmuch as the notification did
not apply to the period prior to 05.08.2005.
13. Further, the first respondent herein had made an application for
regularization of the alleged illegal construction, the same was
pending consideration and instead of considering the application for
regularization made by the first respondent herein, the Department
kept the same pending and went ahead with the demolition. This has
caused not only monetary loss but also has prejudiced the institutions
of which the first respondent is the Chairman.
14. In this regard, learned counsel for the first respondent drew our
attention to the following judgments of this Court:
(1) Bhagwan Prasad Srivastava vs. N.P. Mishra (1970) 2 SCC
56 ("Bhagwan Prasad Srivastava")
(2) Urmila Devi vs. Yudhvir Singh (2013) 15 SCC 624, ("Urmila
Devi")
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(3) Punjab State Warehousing Corporation vs. Bhushan
Chander (2016) 13 SCC 44 ("Bhushan Chander")
(4) Bakhshish Singh Brar vs. Gurmej Kaur (1987) 4 SCC 663
("Bakhshish Singh Brar")
15. Learned counsel for the first respondent submitted that there is
sufficient material against the appellant herein who cannot be
given the benefit of the legal position that the absence of sanction
prior to the initiation of criminal proceeding would vitiate the entire
proceeding. He submitted that in the event this Court was to hold
that the sanction under Section 197 of the CrPC was a necessary
condition to be complied with by the first respondent herein in the
context of filing a criminal complaint under Section 200 of the CrPC,
then, in the absence of such sanction being taken till date, liberty may
be reserved to the first respondent herein to make a representation
for seeking such a sanction.
16. Learned counsel for the second respondent-State, Sri Akshay
Amritanshu with reference to his counter affidavit and other pleadings
submitted that having regard to the fact that appellant herein was on
the relevant day discharging her duties as a District Town Planner and
it was in accordance with the scope and ambit of her authority that
the demolition was carried out, the first respondent herein could not
have initiated the criminal proceeding as against her in the absence
of an order of sanction for doing so under the provisions of Section
197 of the CrPC.
17. Learned counsel for the second respondent-State also submitted that
there is no merit in the arguments of the first respondent's counsel
that the appellant herein ought to have been slow in carrying out
the demolition inasmuch as the application for regularisation was
pending before the Department and therefore the act of demolition
of the illegal structure was an instance of excess as demonstrated
by the various dicta of this Court. He submitted that in view of the
conspectus of facts in the instant case, it was not at all a case of excess
inasmuch as the Department which had to consider the application for
regularisation was a different wing and the representation made for
regularisation was not an impediment for carrying out the demolition.
It was therefore submitted that appropriate orders may be made in
this appeal.
[2024] 11 S.C.R.
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Gurmeet Kaur v. Devender Gupta & Another
18. It was also submitted that this Court may be mindful of the fact that
when an officer or an official of the State is carrying out the duty
entrusted, the object and purpose of passing an order of sanction for
prosecution under Section 197 of the CrPC must be borne in mind
that a public servant ought not to be exposed to criminal prosecution
or other kinds of litigation which would be wholly unjustified.
19. In the circumstances, learned counsel for the second respondent
submitted that the impugned order may be set aside and appropriate
relief may be granted to the appellant herein.
20. We have considered the arguments advanced at the bar in light of
the facts which emanate in this case. At this stage itself, we may
opine that we would confine the scope of this appeal to the question
whether it was necessary for the first respondent herein to have made
an application seeking sanction under Section 197 of the CrPC and
thereafter proceeded to file the complaint under Section 200 of the
CrPC. We also state that having regard to our reasoning and our
decisions, it may not be necessary to go into the merits whether the
appellant herein had indeed committed the offences alleged against
her and therefore, the same ought to be quashed also.
21. For ease of reference, Section 197 of the CrPC is extracted 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
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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.] [Added by Act
43 of 1991, Section 2 (w.e.f. 2-5-1991).]
22. As already noted, the object and purpose of the said provision is
to protect officers and officials of the State from unjustified criminal
prosecution while they discharge their duties within the scope and
ambit of their powers entrusted to them. A reading of Section 197
of the CrPC would indicate that there is a bar for a Court to take
cognizance of such offences which are mentioned in the said provision
except with the previous sanction of the appropriate government
when the allegations are made against, inter alia, a public servant.
There is no doubt that in the instant case the appellant herein was
a public servant but the question is, whether, while discharging
her duty as a public servant on the relevant date, there was any
excess in the discharge of the said duty which did not require the
first respondent herein to take a prior sanction for prosecuting the
appellant herein. In this regard, the salient words which are relevant
under sub-section (1) of Section 197 are "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". Therefore, for
the purpose of application of Section 197, a sine qua non is that the
public servant is accused of any offence which had been committed
by him in "discharge of his official duty". The said expression would
clearly indicate that Section 197 of the CrPC would not apply to a
case if a public servant is accused of any offence which is de hors
or not connected to the discharge of his or her official duty. However,
there are a line of judgments which have considered this expression
in two different ways which we shall now advert to.
23. Learned senior counsel and learned counsel for the appellant have
submitted the following judgments which indicate that Section 197(1)
would apply prior to the initiation of a criminal proceeding under
Section 197 of the CrPC. On the basis of the said judgments they
have contended that it is during the discharge of her official duty that
the demolition had taken place in the instant case and therefore, the
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Gurmeet Kaur v. Devender Gupta & Another
necessity of an order of sanction being passed by the Government
was a sine qua non prior to initiation of the criminal proceeding. The
judgments relied upon by the learned senior counsel for the appellant
herein could be adverted to at this stage.
a)
In D.T. Virupakshappa vs. C. Subhash (2015) 12 SCC 231
("D.T. Virupakshappa"), the appellant therein was accused
in a private complaint before the Civil Judge (Junior Division)
and JMFC, on which the learned Magistrate took cognizance,
registered Criminal Case No.74 of 2009 and issued summons to
the appellant therein. The offences alleged were under Sections
323, 324, 326, 341, 120, 114, 506 read with Section 149 of
the IPC. The appellant therein moved the High Court under
Section 482 of the CrPC which was declined by the impugned
order therein. The main contention of the appellant therein was
that the learned Magistrate could not have taken cognizance
of the alleged offences and issued process to the appellant
without sanction from the State Government under Section 197
of CrPC, and on that sole ground, the High Court should have
quashed the proceedings. It was alleged that the appellant
therein exceeded in exercising his power during investigation of
a criminal case and assaulted the respondent therein in order to
extract some information with regard to the death of a person,
and in that connection, the respondent therein was detained
in the police station for some time. Therefore, the allegation
of the appellant therein had an essential connection with the
discharge of the official duty and therefore, the previous sanction
was necessary. The issue of "police excess" during investigation
and requirement of sanction for prosecution in that regard, was
also a subject-matter in State of Orissa vs. Ganesh Chandra
Jew (2004) 8 SCC 40 ("Ganesh Chandra Jew") which was
relied upon. There was also reliance on Om Prakash vs. State
of Jharkhand (2012) 12 SCC 72 ("Om Prakash"). The Court
held that the ratio of the aforesaid two judgments squarely apply
to the case of the appellant therein and having regard to the
factual matrix of that case, it was observed that the offensive
conduct was reasonably connected with the performance of
the official duty of the appellant therein. Therefore, the learned
Magistrate could not have taken cognizance of the case without
the previous sanction of the State Government and the High
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Court had missed this crucial point in the impugned order. This
Court observed that in case such sanction is obtained and the
same is produced before the learned Magistrate, the matter
could be proceeded further before the learned Magistrate in
accordance with law.
b)
In Abdul Wahab Ansari vs. State of Bihar (2000) 8 SCC
500 ("Abdul Wahab Ansari"), the facts were that the son of
the deceased, who was respondent No.2 therein, had filed
a complaint before the Chief Judicial Magistrate, alleging
commission of offences by the appellant therein under Sections
302, 307, 380, 427, 504, 147, 148 and 149 of the IPC as well as
Section 27 of the Arms Act. The Chief Judicial Magistrate was
of the opinion that the provisions of Section 197 of the CrPC
would have no application to the facts of the case. Further, there
was sufficient evidence available to establish a prima facie case
and therefore had directed issuance of non-bailable warrants
against the appellant therein and other accused persons. The
appellant therein moved the High Court under Section 482 of
the CrPC praying, inter alia, that no cognizance could be taken
without a sanction of the appropriate Government, as required
under Section 197 of the CrPC as the appellant was discharging
his official duty pursuant to an order of the competent authority.
The High Court opined that all the questions could be raised
at the time of framing of charge and disposed the application
filed by the appellant therein. Before this Court, two questions
were raised and it was observed that previous sanction of the
competent authority being a precondition for the Court taking
cognizance of the offences if the offences alleged had been
committed by the accused was in discharge of his official duty,
the question touched upon the jurisdiction of the Magistrate in
the matter of taking cognizance and therefore, there was no
requirement that an accused should wait for taking such plea till
the charges were framed. Placing reliance on certain decisions
of this Court, it was observed in this case that the appellant
therein had been directed by the Sub-Divisional Magistrate to
be present with police force and remove the encroachment in
question and in the course of discharge of his duty to control the
mob, he had directed for opening of fire, which was in exercise
of the power conferred upon him and the duty imposed upon
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him under the orders of the Magistrate. Hence, Section 197(1)
of the CrPC applied to the facts of the case. Since no sanction
had been taken, the cognizance by the Magistrate was bad in
law and therefore, the same was quashed qua the appellant
therein and the appeal was allowed.
c)
In D. Devaraja vs. Owais Sabeer Hussain (2020) 7 SCC
695 ("D. Devaraja"), the facts were that the High Court had
disposed of the application under Section 482 of the CrPC which
was filed for quashing the order passed by the Additional Chief
Metropolitan Magistrate III, Bengaluru City in taking cognizance
of a private complaint, inter alia, against the appellant-accused
therein, for offences punishable under Sections 120-B, 220,
323, 330, 348 and 506-B read with Section 34 of the IPC. The
High Court did not quash the impugned order of the Additional
Chief Metropolitan Magistrate dated 27.12.2006, but remitted
the complaint back to the learned Additional Chief Metropolitan
Magistrate instead, with, inter alia, liberty to the appellantaccused therein to apply for discharge. The question considered
by this Court was whether the learned Magistrate could, at all,
have taken cognizance against the appellant therein, in the
private complaint, in the absence of a sanction under Section
197 of the CrPC read with Section 170 of the Karnataka Police
Act, 1963, as amended by the Karnataka Police (Amendment)
Act, 2013, and if not, whether the High Court should have
quashed the impugned order of the Magistrate concerned,
instead of remitting the complaint to the Magistrate concerned
and requiring the appellant-accused therein to appear before
him and file an application for discharge. Referring to several
judgments of this Court, Indira Banerjee, J. speaking for the
Bench observed in paragraph 66 to paragraph 71 as under:
"66. Sanction of the Government, to prosecute a police
officer, for any act related to the discharge of an official
duty, is imperative to protect the police officer from
facing harassive, retaliatory, revengeful and frivolous
proceedings. The requirement of sanction from the
Government, to prosecute would give an upright
police officer the confidence to discharge his official
duties efficiently, without fear of vindictive retaliation
by initiation of criminal action, from which he would be
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protected under Section 197 of the Code of Criminal
Procedure, read with Section 170 of the Karnataka
Police Act. At the same time, if the policeman has
committed a wrong, which constitutes a criminal
offence and renders him liable for prosecution, he
can be prosecuted with sanction from the appropriate
Government.
67. Every offence committed by a police officer
does not attract Section 197 of the Code of Criminal
Procedure read with Section 170 of the Karnataka
Police Act. The protection given under Section 197
of the Criminal Procedure Code read with Section
170 of the Karnataka Police Act has its limitations.
The protection is available only when the alleged act
done by the public servant is reasonably connected
with the discharge of his official duty and official duty
is not merely a cloak for the objectionable act. An
offence committed entirely outside the scope of the
duty of the police officer, would certainly not require
sanction. To cite an example, a policeman assaulting a
domestic help or indulging in domestic violence would
certainly not be entitled to protection. However, if an
act is connected to the discharge of official duty of
investigation of a recorded criminal case, the act is
certainly under colour of duty, no matter how illegal
the act may be.
68. If in doing an official duty a policeman has acted
in excess of duty, but there is a reasonable connection
between the act and the performance of the official
duty, the fact that the act alleged is in excess of duty
will not be ground enough to deprive the policeman of
the protection of the government sanction for initiation
of criminal action against him.
69. The language and tenor of Section 197 of the
Code of Criminal Procedure and Section 170 of
the Karnataka Police Act makes it absolutely clear
that sanction is required not only for acts done in
discharge of official duty, it is also required for an
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act purported to be done in discharge of official duty
and/or act done under colour of or in excess of such
duty or authority.
70. To decide whether sanction is necessary, the test
is whether the act is totally unconnected with official
duty or whether there is a reasonable connection with
the official duty. In the case of an act of a policeman
or any other public servant unconnected with the
official duty there can be no question of sanction.
However, if the act alleged against a policeman is
reasonably connected with discharge of his official
duty, it does not matter if the policeman has exceeded
the scope of his powers and/or acted beyond the
four corners of law.
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."
It was concluded that the High Court had erred in law refusing
to exercise its jurisdiction under Section 482 of the CrPC to
set aside the impugned order of the learned Magistrate taking
cognizance of the complaint, after having held that it was a
recognized principle of law that sanction was a legal requirement
which empowers the court to take cognizance. This Court
allowed the appeal and set aside the judgment and order under
appeal and the complaint was quashed for want of sanction.
d)
In Amod Kumar Kanth vs. Association of Victim of Uphaar
Tragedy, Criminal Appeal No.1359 of 2017 disposed of by
three-Judge Bench of this Court on 20.04.2023 of which one
of us (Nagarathna, J.) was a member, it was observed that the
question of cognizance being taken in the absence of sanction
and thereby Section 197 of the CrPC being flouted is not to be
conflated and thereby confused with the question as to whether
an offence has been committed. The salutary purpose behind
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Section 197 of the CrPC is protection being accorded to public
servants. In paragraphs 28, 29 and 31, it was observed as under:
"(28) The State functions through its officers.
Functions of the State may be sovereign or not
sovereign. But each of the functions performed by
every public servant is intended to achieve public
good. It may come with discretion. The exercise of
the power cannot be divorced from the context in
which and the time at which the power is exercised
or if it is a case of an omission, when the omission
takes place.
(29) 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. It goes further. Even an officer who acts
in the purported exercise of his official power is given
the protection under Section 197 of the Cr.P.C. This is
for good reason that the officer when he exercises the
power can go about exercising the same fearlessly no
doubt with bona fides as public functionaries can act
only bona fide. In fact, the requirement of the action
being bona fide is not expressly stated in Section
197 of the Cr.P.C., though it is found in many other
statutes protecting public servants from action, civil
and criminal against them.
x x x x
(31) One ground which has found favour with the
High Court against the appellant is that the appellant,
according to the High Court, could raise the issue
before the Magistrate.
Here we may notice one aspect. When the question
arises as to whether an act or omission which
constitutes an offence in law has been done in the
discharge of official functions by a public servant
and the matter is under a mist and it is not clear
whether the act is traceable to the discharge of his
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official functions, the Court may in a given case tarry
and allow the proceedings to go on. Materials will be
placed before the Court which will make the position
clear and a delayed decision on the question may
be justified. However, in a case where the act or the
omission is indisputably traceable to the discharge
of the official duty by the public servant, then for the
Court to not accept the objection against cognizance
being taken would clearly defeat the salutary purpose
which underlies Section 197 of the Cr.P.C. It all
depends on the facts and therefore, would have to
be decided on a case-to-case basis."
It was concluded that learned Magistrate had erred in the facts of the
said case in taking cognizance against the appellant therein contrary
to the mandate of Section 197 of the CrPC and on that short ground
alone, the appeal was allowed and the proceedings challenged
in Section 482 were quashed. However, it was observed that the
same would not stand in the way of the competent authority taking
a decision in the matter and/or granting sanction for prosecuting the
appellant therein in accordance with law.
24. Learned counsel for the first respondent tried to distinguish the said
judgments by another set of judgments of this Court wherein the
question, whether the officer or official in discharge of the official duties
had exceeded limits of the official authority or capacity and therefore,
there was no necessity for seeking a sanction for prosecution for
the excess committed by an officer or official during the course of
discharge of duty.