# PROF. N. K. GANGULY v. CBI NEW DELHI

- **Citation:** [2015] 10 S.C.R. 192
- **Court:** Supreme Court of India
- **Decided:** 2015-11-19
- **Case number:** Criminal Appeal No. 798 of2015
- **Bench:** V. Gopala Gowda, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prof-n-k-ganguly-v-cbi-new-delhi-30157
- **Pages:** 28

## Headnote

Code of Criminal Procedure, 1973 - s. 197 - Sanction
c for prosecution of public servants - Requirement of -
Allegation of unauthorized and illegal transfer of plot against
appellant and others-public servants -
Registration of
criminal case u/s.120-8 /PC rlw ss.13(1)(d), 13(2) of the 198e
Act against the appellants and others and thereafter, filing of
D charge-sheet- Order of the Special Judge taking cognizance
and issuance of summons-Application by appellant seeking
quashing of the entire proceedings-Dismissal by High Court
- On appeal, held: For the purpose of obtaining previous
sanction from the appropriate ·government u/s. 197, it is
E imperative that the alleged offence is committed in discharge
of official duty by the accused - On facts, FIR and chargesheet both contain references to the allegations made against
the appellants and others, that they entered into a criminal
conspiracy by abusing their official positions as public
F
servants and illegally transferred the plot and obtained an
undue pecuniary advantage, which is an offence u/s. 13(1 )(d)
of the 1988Act ands. 1208 /PC- Thus, s. 197 applicable to
the facts of the case - Previous sanction of the Central
Government was required to prosecute them for the same -
G Proceedings taking cognizance and issuing summons to
appellant by Special Judge in absence of previous sanction
to prosecute them, quashed - Penal Code, 1860 - s. 120-8
- Prevention of Corruption Act, 1988 - ss. 13(1 )(d), 13(2).
H
192
PROF. N. K. GANGULY v. CBI NEW DELHI
193
Allowing the appeals, the Court
A
HELD: 1.1 The FIR and the charge-sheet both
contain references to the allegations made against the
appellants and other unknown persons, that they
entered into a criminal conspiracy by abusing their s
official positions as public servants during the year 20062007 and illegally transferred the plot from ICPO to ICPOICMR Housing Society at a much lower price than the
then prevailing sector rate. On this basis, it is alleged
that the appellants dishonestly obtained an undue C
pecuniary advantage for themselves and others to the
extent of Rs.13,14,36,823/- by illegally transferring the
plot in favour of the said society with an ulterior motive.
The process of transfer of the plot was initiated by the
then Director, ICPO on the basis of a representation D
prepared by the then Administrative Officer, ICPO,
containing signatures of 51 employees of ICPO sent to
Sr. Dy. Director General (Admn), ICMR. The said
representation was for the purpose of establishment of
the ICPO-ICMR Housing Society with an object to E
promote control, coordinate and take charge of the plot
• in question. The final approval for transfer of the plot and
formation of the proposed ICPO-ICMR society was given
by the appellant, the then Director General of ICMR and
F
the same was approved and communicated by Executive
Engineer to the then Director, ICPO. The appellant
recorded a note in the file stating that "the proposal was
approved provided it was under the provisions of laws
and land use for which it was acquired". The said G
allegations contained in the chargesheet suggest that a
conspiracy was hatched by the appellants to commit an
offence u/s.13(1)(d) of the P.C.Act, 1988.Aperusal of the
chargesheet reveals that there is sufficient material on
record to indicate the existence of the alleged H
194
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A conspiracy. In view of the same, Section 197 CrPC is
squarely applicable to the facts of the instant case. [Para
17] [204-E-H; 205-A-D]
1.2 In the instant case, it is alleged in the charges sheet that the appellants entered into an agreement to
commit an illegal act, which is an offence punishable
under Section 1208 of IPC. Therefore, the provision of
s.197 CrPC is squarely applicable to the facts of the case.
Prior sanction of the Central Government was required
C to be taken by the respondent before the Special Judge
took cognizance of the offence once the final report was
filed u/s.173(2) CrPC

## Text

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A
B
[2015] 10 S.C.R. 192
PROF. N. K. GANGULY
V.
CBI NEW DELHI
(Criminal Appeal No. 798 of2015 & Ors.)
NOVEMBER 19, 2015
[V. GOPALA GOWDA AND AMITAVA ROY, JJ.]
Code of Criminal Procedure, 1973 - s. 197 - Sanction
c for prosecution of public servants - Requirement of -
Allegation of unauthorized and illegal transfer of plot against
appellant and others-public servants -
Registration of
criminal case u/s.120-8 /PC rlw ss.13(1)(d), 13(2) of the 198e
Act against the appellants and others and thereafter, filing of
D charge-sheet- Order of the Special Judge taking cognizance
and issuance of summons-Application by appellant seeking
quashing of the entire proceedings-Dismissal by High Court
- On appeal, held: For the purpose of obtaining previous
sanction from the appropriate ·government u/s. 197, it is
E imperative that the alleged offence is committed in discharge
of official duty by the accused - On facts, FIR and chargesheet both contain references to the allegations made against
the appellants and others, that they entered into a criminal
conspiracy by abusing their official positions as public
F
servants and illegally transferred the plot and obtained an
undue pecuniary advantage, which is an offence u/s. 13(1 )(d)
of the 1988Act ands. 1208 /PC- Thus, s. 197 applicable to
the facts of the case - Previous sanction of the Central
Government was required to prosecute them for the same -
G Proceedings taking cognizance and issuing summons to
appellant by Special Judge in absence of previous sanction
to prosecute them, quashed - Penal Code, 1860 - s. 120-8
- Prevention of Corruption Act, 1988 - ss. 13(1 )(d), 13(2).
H
192
PROF. N. K. GANGULY v. CBI NEW DELHI
193
Allowing the appeals, the Court
A
HELD: 1.1 The FIR and the charge-sheet both
contain references to the allegations made against the
appellants and other unknown persons, that they
entered into a criminal conspiracy by abusing their s
official positions as public servants during the year 20062007 and illegally transferred the plot from ICPO to ICPOICMR Housing Society at a much lower price than the
then prevailing sector rate. On this basis, it is alleged
that the appellants dishonestly obtained an undue C
pecuniary advantage for themselves and others to the
extent of Rs.13,14,36,823/- by illegally transferring the
plot in favour of the said society with an ulterior motive.
The process of transfer of the plot was initiated by the
then Director, ICPO on the basis of a representation D
prepared by the then Administrative Officer, ICPO,
containing signatures of 51 employees of ICPO sent to
Sr. Dy. Director General (Admn), ICMR. The said
representation was for the purpose of establishment of
the ICPO-ICMR Housing Society with an object to E
promote control, coordinate and take charge of the plot
• in question. The final approval for transfer of the plot and
formation of the proposed ICPO-ICMR society was given
by the appellant, the then Director General of ICMR and
F
the same was approved and communicated by Executive
Engineer to the then Director, ICPO. The appellant
recorded a note in the file stating that "the proposal was
approved provided it was under the provisions of laws
and land use for which it was acquired". The said G
allegations contained in the chargesheet suggest that a
conspiracy was hatched by the appellants to commit an
offence u/s.13(1)(d) of the P.C.Act, 1988.Aperusal of the
chargesheet reveals that there is sufficient material on
record to indicate the existence of the alleged H
194
SUPREME COURT REPORTS
[2015) 10 S.C.R.
A conspiracy. In view of the same, Section 197 CrPC is
squarely applicable to the facts of the instant case. [Para
17] [204-E-H; 205-A-D]
1.2 In the instant case, it is alleged in the charges sheet that the appellants entered into an agreement to
commit an illegal act, which is an offence punishable
under Section 1208 of IPC. Therefore, the provision of
s.197 CrPC is squarely applicable to the facts of the case.
Prior sanction of the Central Government was required
C to be taken by the respondent before the Special Judge
took cognizance of the offence once the final report was
filed u/s.173(2) CrPC. [Para 19] [205-H; 206-A-B]
1.3 For the purpose of obtaining previous sanction
o from the appropriate government under Section 197
CrPC, it is imperative that the alleged offence is
committed in discharge of official duty by the accused.
It is also important for the Court to examine the
allegations contained in the final report against the
E appellants, to decide whether previous sanction is
required to be obtained by the respondent from the
appropriate government before taking cognizance of the.
alleged offence by the Special Judge against the
accused. In the instant case, since the allegations made
F against the appellants in the final report filed by the
respondent that the alleged offences were committed by
them in discharge of their official duty, therefore, it was
essential for the Special Judge to correctly decide as to
whether the previous sanction from the Central
G Government u/s. 197 CrPC was required to be taken by
the respondent, before taking cognizance and passing
an order issuing summons to the appellants for their
presence. [Para 25] [218-D-G]
H
1.4 The judgment and order of the High Court is set
PROF. N. K. GANGULY v. CBI NEW DELHI
195
aside and the proceedings taking cognizance and A
issuing summons to the appellants by the Special Judge
in absence of previous sanction obtained from the .
Central Government to prosecute the appellants as
required u/s.197 CrPC is quashed. [Para 26] [219-8-C]
R.R. Chari v. State of Uttar Pradesh AIR 1951 SC
207: 1951
SCR
312; Superintendent
Remembrance of Legal Affairs, West Bengal v.
Abhani Kumar Bannerjee AIR 1950 Cal 437;
Shreekantiah Ramayya Munipal/i v. State of
Bombay AIR 1955 SC 287: 1955 SCR 1177; Dr.
Hori Ram Singh v. Emperor AIR 1939 FC 43;
Amrik Singh v. State of Pepsu AIR 1955 SC
309: 1955 SCR 1302; H.H.B. Gillv. The King AIR
1948 PC 128; Matajog Dobey v. H.C. Bhari AIR
1956 SC 44: 1955 SCR 92; Satwant Singh v.
State of Punjab AIR 1960 SC 266: 1960 SCR
89; Baijnath Gupta v. State of Madhya Pradesh
AIR 1966 SC 220: 1966 SCR 210; B. Saha v.
M.S ~.ochar(1979) 4sec177; R.S Nayak V. A.R
Antutay (1984) 2 sec 183: 1984 (2) SCR 495;
R. Balakrishna Pillai v. State of Kera/a (1996) 1
SCC 478; Abdul Wahab Ansari v. State of Bihar
(2000) 8 sec 500:2000 (3) Suppl. SCR 747;
Shankaran Moitra v. Sadhna Das (2006) 4 SCC
584: 2006 (3) SCR 305; State of M.P v. Sheet/a
Sahai (2009)8 sec 617: 2009 (12) SCR 1048;
Prakash Singh Badal. v. Union of India (2007) 1
SCC 1: 2006 (10)·Suppl. SCR 197 - referred
to.
1951 SCR 312
1950 Cal 437
1955 SCR 1177
Case Law Reference
Referred to.
Referred to.
Referred to.
Para 19
Para 19
Para 20
B
c
D
E
F
G
H
196
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
AIR 1939 FC 43
Referred to.
Para 20
1955 SCR 1302
Referred to.
Para 21
AIR 1948 PC 128
Referred to.
Para 21
1955 SCR 92
Referred to.
Para 22
1960 SCR 89
Referred to.
Para 22
B 1966 SCR 210
Referred to.
Para 22
(1979) 4 sec 111
Referred to.
Para 22
1984 (2) SCR 495
Referred to.
Para 22
(1996) 1 sec 478
Referred to.
Para 23
2000 (3) Suppl. SCR 747 Referred to.
Para 23
c 2006 (3) SCR 305
Referred to.
Para 23
2009 (12) SCR 1048
Referred to.
Para 23
2006 (10) Suppl. SCR 197Referred to.
Para 23
CRIMINAL APPELLATE JURISDICTION : Criminal
D Appeal No. 798 of 2010
From the Judgment and Order dated 27.05.2013 of the
High Court of Judicature at Allahabad in Application U/S 482
No. 480 of2013.
•
E
WITH
Crl.A. Nos. 799, 800, 801, 930, 1537 of2015
P. P. Khurana, R. Basant, Gopal Subramanium, Sachin
F Sood, Rajesh Singh Chavhan, Sumit Sinha, Arun K. Sinha,
Jetendra Singh, Kalpana Sabharwal, Priyanka Singh, Vijendra
K. Kaushik, Ved Prakash Arya, Shiv Ram Pandey, Bhupesh
Sharma, Manju Jetley, S.D. Singh, Bharti Tyagi, Jitender Singh,
Surbhi Shukla, T. Srinivasa Murthy, Abdul Rahman Talha,
G Senthil Jagadeesan, Shruti Iyer, Govind Manoharan, Suchitra
Kumbhat, Kushagra Pandey for the Appellant.
Kiran Suri, Raj iv Nanda, Arch it Upadhayay, B. V. Balaram
Das for the Respondent.
H
The Judgment of the Court was delivered by
PROF. N. K. GANGULY v. CBI NEW DELHI
197
V. GOPALA GOWDA, J. 1. Delay condoned. Leave A
granted in Special Leave Petition (Crl) 9838 Crl.M.P. No.9612
of2015.
2. These appeals arise out of the common judgment and
order dated 27.05.2013 passed in Application Nos. 480 of B
2013, 41206, 40718, 41006 and 41187 of 2012 and judgment
and order by the High.,Court of Judicature at Allahabad dated
07.10.2014 passed in Application No. 277KH of 2014 in
Special Case No. 18 of 2012 by the learned Special Judge,
whereby the High Court dismissed the applications filed by C
the appellants herein under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
CrPC") to quash the criminal proceedings of Special Case
No. 18 of 2012 as well as the summoning order dated
08.11.2012 passed by the learned Special Judge, Anti D
Corruption, CBI, Ghaziabad. All the appeals are being
disposed of by this common judgment.
3. As the facts in all the appeals are common, for the
sake of convenience, we refer fo the facts of Criminal Appeal
E
No. 798 of 2015, in this judgment which are briefly stated
hereunder:
4. The Indian Council of Medical Research (herein<;1fter
referred to as "ICMR"), a registered society under the Societies
F
Registration Act, 1860 is a premier research institute dealing
with the formulation, coordination and promotion of bio:medical
research. Its functional object is to initiate, aid develop and
coordinate medical and scientific research in India and to
promote and assist institutions for the study of diseases, their G
prevention, causation and remedy. It is fully funded by the
Gover~ment of India through Department of Health Research,
Ministry of Health and Family Welfare. The Institute of Cytology
& Preventive Oncology (hereinafter referred to as "ICPO") is
H
198
SUPREME COURT REPORTS
[2015] 10S.C.R.
A
one of the institutes of ICMR, the main aim of which is to
promote research in the field of cancer.
5. On 30.11.2010, a criminal case was registered under
Section 120~8 of the Indian Penal Code (hereinafter referred
B to as the "IPC") read with Section 13(1 )(d) and 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as
the "P. C. Act, 1988") on the basis of written complaint filed by
M.R. Atrey, Sub-Inspector of Police, CB('EOU, VII, New Delhi
against the appellants herein namely N.K. Ganguly, the then
C Director General, Mohinder Singh, the then Sr. Dy. Director
General-Admin, P.O. Seth, the then Financial Advisor, A.K.
Srivastava, Executive Engineer, all from ICMR, New Delhi and
B.C. Das, the then Director ICPO, NOIDA and other unknown
persons in the matter relating to the alleged unauthorized and
D illegal transfer of plot no.119, Sector 35, NOIDA, measuring
9712.62 sq. meters from ICPO, NOIDA to ICPO-ICMR
Cooperative Group Housing Society Ltd. NOIDA (hereinafter
referred to as the "ICPO-ICMR Housing Society").
E
6. In the preliminary inquiry in the matter, it was found
that the aforesaid officials and the other unknown persons had
entered into a criminal conspiracy by abusing their official
position as public servants and had unauthorisedly and illegally
transferred the aforesaid plot from ICPO to ICPO-ICMR
F
Housing Society at a consideration of Rs.4,33,90,337/-which
was much lower than the then prevailing sector rate of
Rs.18,000/- per sq.mtrs. of NOIDA, thereby, giving themselves
and other members of the ICPO-ICMR Housing Society an
undue pecuniary advantage. It was also revealed in the enquiry
G thatthe membership of the ICPO-ICMR Housing Society was
granted to such persons who were otherwise not eligible for
getting membership as per the bye-laws of the society and
terms and conditions stipulated and approved by ICMR for
H membership in the said society. It was further revealed that
PROF. N. K. GANGULY v. CBI NEW DELHI
199
[V. GOPALA GOWDA, J.]
the officers of New Okhla Industrial Development Authority A
(hereinafter referred to as "NOIDA") allowed the transfer of the
said plot unauthorisedly and illegally from ICPO to ICPO-ICMR
Housing Society, despite the fact that they were not competent
to pass such order of transfer.
7. During the course of investigation by CBI, apart from
the aforesaid named accused persons in the FIR, the fact of
B
the involvement of other officials namely, L.D. Pushp, the then
Administrative Officer, ICPO, Jatinder Singh, the then Senior
Accounts Officer, ICMR, Dr. S.K. Bhattacharya, the then C
Additional Director General, ICMR, Dr. Bela Shah, Head of
NCO Division, ICMR, Smt. Bhawani Thiagarajan, the then Joint
Secretary, Ministry of Health and Family Welfare, Government
of India, S.C. Pabreja, the then Manager (Residential Plots),
NOIDAand R.S. Yadav, OSD (Residential Plots), NOIDA, was D
revealed.
8. After completion of the investigation, a charge-sheet
was filed against the appellants for the alleged offences
committed by them on account of unauthorised and illegal E
transfer of the plot in question in favour of the ICPO-ICMR
Housing Society.
9. The competent authority of ICMR granted sanction
under Section 19 of the P.C. Act, 1988 for prosecuting A.K.
F
Srivastava and Dr. Bela Shah. The charge-sheet was filed
before the learned Special Judge, Anti Corruption, CBI
(hereinafter referred to as the "Special Judge") against all the
appellants, except R.S. Yadav, OSD, NOIDA, under Section
· 173(2) of CrPC for the offences punishable under Section 120G
B of IPC read with Section 13(1)(d) and 13(2) of the P.C. Act,
1988. The requisite sanction for prosecution against R.S.
Yadav was declined by the Competent Authority. After
considering the charge-sheet and other materials available
on record, the learned Special Judge came to the conclusion
H
200
SUPREME COURT REPORTS
[2015] 10 S.C.R.
A
that a prima facie case appeared to have been made out by
the CBI against the appellants. Accordingly, the learned Special
Judge vide his order dated 08.11.2012 has taken cognizance
and summonswere issued against the appellants to face the
trial for the said offences.
B
10. Aggrieved ofthe order of taking cognizance and
issuance of summons, the appellants filed applications before
the High Court of Allahabad under Section 482 of CrPC, urging
various grounds and prayed that the entire proceedings on
C the file of the learned Special Judge in the case No. 18 of
2012 be quashed. Finding no merit in the applications filed by
the appellants, the High Court refused to interfere with the order
of the learned Special Judge dated 08.11.2012 and dismissed
D
E
F
G
H
the same. The learned Judge of the High Court held as under:
" ..... at this stage it cannot be said that no offence under
Section 1208 IPC read with Section 13(2) and 13(1 )(d)
of the Prevention of Corruption Act is made out against
the petitioners. There are sufficient materials available
on record which may prima facie establish the
involvement of the petitioners accused in commission of
the aforesaid offences by getting the plot in question
transferred for the purposes of constructing flats to ICPOICMR Cooperative Group Housing Society (a private
housing society) in which they were also the members
and ultimately after construction of the flats they also
obtained individual flats after getting pecuniary benefit
for themselves and others and caused loss to the ICPO/
ICMR (a ~ully govt. funded body). Due to the said transfer
of plots allotted to ICPO for staff quarters, the officials of
the ICPO have been permanently deprived of getting
official quarters in future .
...... In this case, the role of each petitioners in processing,
approving and ultimately getting the plot in question
PROF. N. K. GANGULY v. CBI NEW DELHI
201
[V. GOPALA GOWDA, J.]
transferred to ICPO-ICMR Cooperative Group Housing A
Society (a private housing society) has been categorically
assigned by the prosecution and after conducting
thorough and detailed investigation in the matter, the
charge sheet has been submitted against them, on which
the learned Special Judge, Anti Corruption, CBI,
B
Ghaziabad has taken cognizance. In my considered
opinion, there appears to be no infirmity, illegality,
irregularity or jurisdictional error in submitting the charge
sheet by the CBI and taking cognizance thereon by the C
learned Special Judge, Anti Corruption, CBI,
Ghaziabad."
Hence the present appeals.
11. We have heard Mr. P.P Khurana, Mr. Gopal D
Subramanium and Mr. R Basant, the learned senior counsel
appearing on behalf of the appellants, and Mr. P.S Patwalia,
the learned Additional Solicitor General and Ms. Kiran Suri,
learned senior counsel appearing on behalf of the respondent.
On the basis of the factual evidence on record produced before E
us, the circumstances of the case and also in the light of the
rival legal contentions urged by the learned senior counsel for
both the parties, we have broadly framed the following points
that would arise for our consideration:-
1) Whether an offence under Section 120B IPC is made
out against the appellants, and if so, whether previous
sanction of the Central Government is required to
prosecute them for the same?
F
G
2) Whether the order dated 08.11.2012 passed by the
learned Special Judge taking cognizance of the offence
against the appellants is legal and valid?
3) What order?
H
202
SUPREME COURT REPORTS
[2015] 1 O S.C.R.
A
Answer to Point Nos. 1 and 2:
12. As the point numbers 1and2 are inter-related, we
answer them together by assigning the following reasons:
8
The issue of prior sanction required to be obtainec! against
the appellants in order to prosecute them for the offence said
to have been committed by them under Section 1208, IPC
has to be examined in light of the allegations contained in the
charge-sheet that was filed before the learned Special Judge
c by the respondent herein.
13. The learned senior counsel appearing on behalf of
the appellants contended that the entire transaction of
transferring the plot in question in favour of the ICPO-ICMR
0
Housing Society was handled in a transparent manner, and it
was done keeping in view the dire need of housing of the
employees of ICPO-ICMR. The learned senior counsel
submitted that the transfer of the said plot from ICPO to the
ICPO-ICMR Housing Society was done after obtaining legal
E
opinions and necessary sanction from the competent authority
of NOIDA. The learned senior counsel further contended that
the CBI withheld the report of the Comptroller and Auditor
General of India (CAG) while submitting the charge-sheet
before the learned Special Judge, which is not tenable in law.
F
14. It is further contended by Mr. P.P. Khurana, and Mr.
Gopal Subramanium, the learned senior counsel appearing
on behalf of some of the appellants that no prior sanction was
obtained from the Central Government, which was mandatorily
G required under Section 197, CrPC as the appellants were
employed as public servants at the time of commission of the
alleged offences. It is contended by them that the transfer of
the plot in question occurred when the appellants were holding
public office and the alleged offences were committed by them,
H if at all, in discharge of their official duty. Thus, the learned
PROF. N. K. GANGULY v. CBI NEW DELHI
203
[V. GOPALA GOWDA, J.]
Special Judge erred in taking cognizance of the offences A
alleged against the appellants without prior sanction of the
Central Government having been obtained by the respondent.
The learned senior counsel further contended that the learned
Special Judge should not have taken cognizance in the
· absence of prior sanction obtained from the Central B
Government, especially in light of the fact that taking cognizance
of the alleged offences and setting the wheel of the criminal
justice system in motion is a matter which could affect the
fundamental rights guaranteed to the appellants under Articles
14, 19 and 21 of the Constitution of India.
C
15. The other learned counsel appearing on behalf of
other appellants have adopted the arguments made by Mr.
P.P Khurana and Mr. Gopal Subramanium and they have filed
their written submissions in support of their contentions, which
D
are also considered by this Court.
16. On the other hand, Mr. P.S. Patwalia, the learned
Additional Solicitor General and Ms. Kiran Suri, learned senior
counsel appearing on behalf of the respondent contended that E
the legal submissions advanced by the learned senior counsel
appearing on behalf of the appellants are wholly untenable in
law for the reason that the very act of the appellants constitute
an offence under IPC, as they entered into a conspiracy to
illegally transfer the plot in question in favour of the said society
F
referred to Supra without obtaining the permission of the
competent authority of NOIDA, with an ulterior motive to make
unlawful gain for themselves. The appellants became members
of the ICPO-ICMR Housing Society, even though they were
not eligible to be enrolled as members of the society, and G
thereafter proceeded to transfer the plot at a value which was
much lesser than the prevailing market rate at the time, thus
making an unlawful gain for themselves, which is al] offence
under Section 13(1)(d) of the P.C. Act, 1988, punishable under H
204
SUPREME COURT REPORTS
[2015] 10S.C.R.
A
Section 13(2) of the Act. It is further contended that the CBI
filed the charge-sheet against the appellants after due
investigation, and therefore, the High Court has rightly
dismissed the applications filed by them under Section 482 of
CrPC by passing a valid judgment and order which does not
B call for interference by this Court in exercise of its appellate
jurisdiction. The illegal acts done by the appellants in
transferring the said plot at a lower price cannot be said to
have been carried out in exercise of their official duty.
Therefore, no previous sanction from the CompetentAuthority
C was required under Section 197 of CrPC to prosecute the
appellants for the alleged offence. The learned Additional
Solicitor General and the learned senior counsel appearing
on behalf of the respondent submitthat this is the reason that
D the present cases are not ones which warrant for this Court to
exercise its appellate jurisdiction and quash the proceedings
as prayed bytheAppellants.
17. The FIR and the charge-sheet both contain
references to the allegations made against the appellants and
E other unknown persons, that they entered into a criminal
conspiracy by abusing their official positions as public servants
during the year 2006-2007 and illegally transferred the plot in
question from !CPO to ICPO-ICMR Housing Society at a much
F
lower price than the then prevailing sector rate. On this basis,
it is alleged that the appellants dishonestly obtained an undue
pecuniary advantage for themselves and others to the extent
of Rs.13, 14,36,823/- by illegally transferring the plot in favour
of the above said society with an ulterior motive. The process
G of transfer of the plot was initiated by B.C. Das, the then
Director, ICPO, vide letter dated 29.03.2006 on the basis of a
representation prepared byl.D. Pushp, thethenAdministrative
Officer, ICPO, containing signatures of 51 employees of ICPO
sent to Mohinder Singh, Sr. Dy. Director General (Admn),
H ICMR. The said representation was for the purpose of
PROF. N. K. GANGULY v. CBI NE\'V DELHI
205
[V. GOPALA GOWDA, J.J
establishment of the ICPO-ICMR Housing Society with an A
object to promote control, coordinate and take charge of the
plot in question. The final approval for transfer of the plot and
formation of the proposed ICPO-ICMR society was given by
the appellant N.K. Ganguly, the then Director General of ICMR
on 06.06.2006 _and the same was approved and B
communicated by A.K. Srivastava, Executive Engineer vide
letter dated 09.06.2006 to B.C. Das. On 12.06.2006, N.K.
(3anguly recorded a note in the file stating that "the proposal
was approved provided it was under the provisions of laws
and land use for which it was acquired". The aforesaid C
allegations contained in the chargesheet suggest that a
conspiracy was hatched by the appellants to commit an offence
under Section 13(1)(d) of the P.C. Act, 1988. A perusal of the
chargesheet reveals that there is sufficient material on record 0
to indicate the existence of the alleged conspiracy. In view of
the same, Section 197 of CrPC is squarely applicable to the
facts of the present case.
18. At this stage, it is important to examine the concept
of criminal conspiracy as defined in IPC. Section 120-A of the E
IPC reads as under:
"When two or more persons agree to do, or cause to be
done,-
( 1) an illegal act, or
F
(2) an act which is not illegal by illegal means, such an
agr~ement is designated a criminal conspiracy: Provided
that no agreement except an agreement to commit an G
offence shall amount to a criminal conspiracy unless
some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof."
19. In the instant case, it is alleged in the charge-sheet H
that the appellants entered into an agreement to commit an
206
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illegal act, which i& an offence punishable under Section 1208
of IPC. Therefore, the provision of Section 197 of CrPC is
squarely applicable to the facts of the case. Prior sanction of
the Central Government was required to be taken by the
respondent before the learned Special Judge took cognizance
B of the offence once the final report was filed under Section
173(2) of CrPC. In this regard, Mr. Gopal Subramanium,
learned senior counsel appearing on behalf of the appellant
has very aptly placed reliance on the decision of a three judge
bench of this Court in the case of R.R. Chari v. State of Uttar
C Pradesh1, wherein, while examining the scope of Section 197
of CrPC, this Court made an observation indicating that the
term "cognizance" indicates the stage of initiation of
proceedings against a public servant. The Court placed
0
reliance upon the judgment of the Calcutta High Court delivered
in the case of Superintendent and Remembrance of Legal
Affairs, West Bengal v. Abhani Kumar Bannerjee2, wherein
it was held that before taking cognizance of any offence, a
Magistrate must not only be said to have applied his mind to
E the contents of the petitionF
G
" but he must have done so for the purpose of proceeding
in a particular way as indicated in the subsequent
provisions of this Chapter,-proceeding under Section
200, and thereafter sending it for enquiry and report under
Section 202. When the Magistrate applies his mind not
for the purpose of proceeding under the subsequent
sections of this Chapter, but for taking action of some
other kind, e.g., ordering investigation under Section
156(3), or issuing a search warrant for the purpose of
the investigation, he cannot be said to have taken
cognizance of the offence."
1 AIR 1951 SC 207
H
2 AIR 1950 Cal 437
PROF. N. K. GANGULY v. CBI NEW DELHI
207
[V. GOPALA GOWDA, J.]
20. Both the learned senior counsel placed reliance on A
another judgment of a three judge bench of this Court in
Shreekantiah Ramayya Munipal/i v. State of Bombay3. In
that case, the allegation against the appellant therein and two
other government servants was that they had conspired to
defraud the Government in respect of certain properties and B ·
arranged to sell the goods to the approver. The case against
them was registered under Section 120-8 read with Section
409 of IPC. While considering the contention advanced that
the said acts could not be said to have been committed in
discharge of official duty, Bose, J. placed reliance upon the C
observations made by the Federal Court in the case of Dr.
Hori Ram Singh v. Emperor', wherein Vardachariar, J
observed that in respect of a charge under Section 409 of
IPC, the official capacity is relevant only for entrustment, and 0
not necessarily in respect of misappropriation or conversion
which may be the act complained of. It was held by this Court
that the correct position of law was laid down in the case of
Hori Ram Singh, which is as under:-
" I would observe at the outset that the question is E
. substantially one of fact, to be determined with reference
to the act complained of and the attendant
circumstances; it seems neither useful nor desirable.to
paraphrase the language of the section in attempting to F
lay down hard and fast tests."
Bose, J., further held in Shreekantiah case referred to supra
that there are cases and cases and each must be decided on
its own facts. It was held as under:
"Now it is obvious that if Section 197 of the Code of
Criminal Procedure is construed too narrowly it can never
'AIR 1955 SC 287
4 AIR 1939 FC 43
G
H
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[2015) 10 S.C.R.
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be applied. for of course, it is no part of an official's duty
to commit an offence and never can be. But it is not the
duty we have to examine so much as the act. because
an official act can be performed in the discharge of
B
official dufyias well
as in dereliction of !t."
(emphasis laid by this Court)
While considering the facts of the case, Bose J. observed
that the offence in question, could not have been committed
c any other way, and held as under:
.
D
E
F
G
H
" ... If it was innocent. it was an official act; if dishonest. it
was the dishonest doing of an official act. but in either
event the act was official because the second accused
.. could not dispose of the goods save by the doing of an
official act. namely officially permitting their disposal: and
that he did. He actually permitted their release and
purported to do it in an official capacity, and apart from
the fact that he did not pretend to act privately; there was
no other way in which he could have done it. Therefore,
whatever the intention or motive behind the act may have
been, the physical part of it remained unaltered, so if it
was official in the one case it was equally official in the
order, and the only difference would lie in the intention
with which it was done: in the one event, it would be done
in the discharge of an official duty and in the other, in the
purported discharge of it."
(emphasis laid by this Court)
21. Mr. Gopal Subramanium, the learned senior counsel
on behalf of some of the appellants has further rightly placed
reliance upon the judgement of a three judge bench of this
Court in the case of Amrik Singh v. State of Pepsu5 to
buttress the contention that the issue of requirement of prior
'
5 AIR 1955 SC 309
PROF. N. K. GANGULY v. CBI NEW DELHI
209
[V. GOPALA GOWDA, J.)
sanction under Section 197 of Cr.PC can be raised at any A
stage of the proceedings, and not just at stage of framing of
charges. The decision in the case of Hori Ram Singh (supra)
was also quoted with approval, especially the categorisation
of situations in three scenarios, as under:
"a) Decision which held that sanction was necessary
when the act complained of attached to the official
character of the person doing it;
B
b) Judgments which held that sanction was necessary in c
all cases in which the official character of the person gave
him an opportunity for the commission of the crime; and
c) Those which held it was necessary when the offence
was committed while the accused was actually engaged D
in the performance of official duties."
It was further held in the Amrik Singh case that:
"The result of the authorities may thus be summed up: i!
is not every offence committed by a public servant that E
requires sanction for prosecution u/s 197 of the Cr.PC;
nor even everv act done by him while he is actually
engaged in the performance of his official duties; but if
the act complained of is directly concerned with his official
duties so that. if questioned, it could be claimed to have
F
been done by virtue of the office. then sanction would be
necessary; and that would be so, irrespective of whether
it was, in fact, a proper discharge of his duties, because
that would really be a matter of defence on the merits,
which would have to be invested at the trial and could not G
arise at the stage of grant of sanction, which must
precede the institution of the prosecution."
(emphasis laid by this Court)
H
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[2015] 10S.C.R.
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The position of law, as laid down in the case of Hori Ram
Singh was also approved by the Pr.ivy Council in the case of
H.H.B. Gill v. The King6, wherein it was observed as under:
"A public servant can only be said to act or purport to act
s
in the discharge of his official duty, if his act is such as to
lie within the scope of his official duty."
22. Reliance was further rightly placed by the learned
senior counsel on the decision of a constitution bench of this
c Court in the case of Matajog Dobey v. H. C. BharF, which
pertained to an income tax investigation. It was alleged by the
appellant therein that while conducting a search, the officials
of the income tax department had forcibly broke open the
entrance door of the house and interfered with the boxes and
o drawers of the tables. It was also alleged by the appellant
therein that the officials tied him and beat him up. Upon an
enquiry of the said complaint, the magistrate came to the
conclusion that a prima facie case had been made out and
issued process. During the course of trial, the issue pertaining
E to want of sanction was urged. This Court held as under:
"Article 14 does not render Section 197, Criminal
Procedure Code ultra vires as the discrimination is based
upon a rational classification. Public servants
F
have to be protected from harassment in the discharge
of official duties while ordinary citizens not so engaged
do not require this safeguard."
(emphasis laid by this Court)
G
On the other hand, ordinary citizens not so engaged do
not require this safeguard. It was further observed that:-
" .... Whether sanction is to be accorded or not, is a matter
for the Government to consider. The absolute power to
H
6 AIR 1948 PC 128
7 AIR 1956 SC 44
PROF. N. K. GANGULY v. CBI NEW DELHI
211
[V. GOPALA GOWDA, J.]
accord or withhold sanction on the Government is A ·
irrelevant and foreign to the duty cast on that Court which
is the ascertainment of the true nature of the act."
The Court finally summed up the result of the discussion as
follows:-
B
"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, but not a pretended or fanciful claim, that he c
did it in the course of the performance of his duty ..... "
(emphasis laid by this Court)
In the case of Satwant Singh v. State of Punjab8, a
constitution bench of this Court while examining the scope of D
Section 197 of CrPC, observed as follows:
"It appears to us to be clear that some offences cannot
by their very nature be regarded as having been
committed by public servants while acting or purporting E
to act in the discharge of their official duty. For instance,
acceptance of a bribe, an offence punishable under s.161
of IPC, is one of them and the offence of cheating or
abetment thereof is another ... where a public servant
commits the offence of cheating or abets another so to F
cheat, the offence committed by him is not one while he
is acting or purporting to act in the discharge of his official
duty, as such offences have no necessary connection
between them and the performance of the duties of a
public servant, the official status furnishing only the G
occasion or opportunity for the commission of the
offences ..... .
8 AIR 1960 SC 266
H
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... the Act of cheating or abetment thereof has no
reasonable connection with the discharge of official duty.
The act must bear such relation to the duty that the public
servant could lay a reasonable but not a pretended or
fanciful claim, that he did it in the course of the
B
performance of his duty."
c
D
E
F
G
H
In the case of R.R. Chari referred to supra, while examining
the scope of Section 197 of CrPC, this Court held as follows:
"It is clear that the first part of Section 197 ( 1) provides a
special protection, inter alia, to public servants who are
not removable from their offices save by or with the
sanction of the State Government or the Central
Government where they are charged with having
committed offences while acting or purporting to act in
the discharge of their official duties; and the form which
this protection has taken is that before a criminal Court
can take cognizance of any offence alleged to have been
committed by such public servants, a sanction should
have been accorded to the said prosecution by the
appropriate authorities. In other words, the appropriate
authorities-must be satisfied that there is a prima facie
case for starting the prosecution and this prima facie
satisfaction has been interposed as a safeguard before
the actual prosecution commences. The object of Section
197 ( 1) clearly is to save public servants form frivolous
t.
"
prosecu ion ..... .
(emphasis laid by this Court)
The learned senior counsel further placed reliance on a three
judge bench decision of this Court in the case of Baijnath
Gupta v. State of Madhya Pradesh9, wherein the question
that arose before this Court was whether the conviction of the
9 AIR 1966 SC 220
PROF. N. K. GANGULY v. CBI NEW DELHI
213
[V. GOPALA GOWDA, J.]
appellant underSections409 and 477Aofthe IPC was illegal · A
for want of sanction. This Court observed as follows:
"It is not that every offence committed by a public servant
that requires sanction for prosecution under Section
197(1) of the Criminal Procedure Code; nor even every s
act done by him while he is actually engaged in the
performance of his official duties; but if the act
complained of is directly concerned with his official duties
so that, if questioned it could be claimed to have been
done by virtue of the office, then sanction would be C
necessary. It is the quality of the act that is important and
if it falls within the scope and range of his official duties
. the protection contemplated by Section 197 of the
Criminal Procedure Code will be attracted. An offence
may be entirely unconnected with the official duty as such
D
or it may be committed within the scope of the official
duty. Where it is unconnected with the official duty there
can be no protection. It is only when it is either within the
scope of the official duty or in excess of it that the
protection is claimable."
E
. (emphasis laid by this Court)
In the case of B. Saha v. M.S Kochar10, the constitution bench
of this Court observed that the question of sanction under F
Section 197 of CrPC could be raised and considered at any
stage of the proceedings. On the issue of when the protection
of Section 197 of CrPC is attracted, this Court held as under:
"In sum, the sine qua non for the applicability of this G
Section is that the offence charged, be it one of
commission or omission, must be one which has been
committed by the public servant either in his official
capacity or under colour of the office held by him."
10 (1979) 4 sec 111
H
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The learned senior counsel further placed reliance on the
decision of a constitution bench of this Court in the case of R.
S. Nayak v. A. R Antulay11, wherein certain observations
were made with regard to Section 6 of P.CAct, 1988, as under:
B
c
D
E
F
''Therefore, it unquestionably follows that the sanction to
prosecute can be given by an authority competent to
remove the public servant from the office which he has
misused or abused because that authority alone would
be able to know whether there has been a misuse or
abuse of the office by the public servant and not some
rank outsider.