# SURINDERJIT SINGH MAND & ANR v. STATE OF PUNJAB & ANR

- **Citation:** [2016] 5 S.C.R. 653
- **Court:** Supreme Court of India
- **Decided:** 2016-07-05
- **Case number:** Criminal Appeal No. 565 of2016
- **Bench:** Jagdish Singh Khehar, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surinderjit-singh-mand-anr-v-state-of-punjab-anr-31360
- **Pages:** 30

## Headnote

Code of Criminal Procedure, 1973:
s. I 97 - Sanction before prosecution - Arrest of one person
by police officials on 28. 6.1999 - Complaint by 111other of the
arrestee alleging illegal and unauthorised detention of her son fro111
24.6.1999 to 28.6.1999 - Prosecution against six police officials
aper obtaining wnction uls. 197 - Application of the complainant
uls. 319 for taking cognizance against the appellants-police
officials - Charges framed against appellants - Assailed in
Revision on the ground that appellants could not have been
prosecuted in absence of sanction for prosecution - Revision
dismissed by High Court - On appeal, held: For applying s.197,
it has to be ascertained as to whether the alleged offence had been
committed "while acting or purporting to act in the discharge of
his official duty" - Jn the present case, the period of apprehension
from 28. 6.1999 (when arrest was admitted) can be considered to
have been made "while acting or purporting to act in the discharge
of their official duty", but not the period fro111 24. 6.1999 to
28.6.1999 - Therefore, sanction for prosecution in respect of the
appellants-accused was not required.
ss. 197, 319 - Scope of s.197 - Whether the mandate of s.197
would extend to cases where cognizance taken under s.319 Cr.P.C.
- Held: Mandate of sanction uls.197 is a mandatory pre-requisite,
before a court of competent jurisdiction takes cognizance, even
when cognizance is taken u/s. 319 Cr.P.C.
Dismissing the appeal, the Court
HELD: 1. The alleged action constituting the allegations
levelled against the appellants, is based on the arrest and
detention of 'N' from 24.06.1999 upto 28.06.1999 (before, he
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was admitted to have been formally arrested on 28.06.1999).
Insofar as the power of arrest and detention by police officials/
officers is concerned, reference may be made to Sections 36,
49, 50 and 50A of Cr.P.C. In view of s. 36 Cr.P.C, there cannot
be any serious doubt about the fact, that the appellants were
holding the rank of Deputy Superintendent of Police, at the
relevant time (from 24.06.199 to 28.06.1999). Both the
appellants were " ... officers superior in rank to an officer in
charge of a police station ... ". Both the appellants were therefore
possessed with the authority to detain and arrest, 'N' at the
relevant time (from 24.06.1999 to 28.06.1999). The question
for complying with the requirements in Sections 49, 50 and 50A
does not arise for the period under reference (from 24.06.1999
to 28.06.1999), because 'N' according to official police records,
was arrested only on 28.06.1999. [Paras 12, 13 and 14)(670-GH; 671-A-D, F]
1.2 Court is obliged to embark upon, when confronted with
a proposition of the nature in hand, is to ascertain as to whether
the alleged offence, attributed to the accused, had been
committed by an accused "while acting or purporting to act in
the discharge of his official duty". The official arrest of 'N' in
terms of the pro\'isions of Cr.P.C.would extend during the period
from 28.06.19<;9 to 30.06.1999. The above period of
apprehension can legitimately be considered as, having been
made "while acting or purporting to act in the discharge of their
official duties". The factual position expressed by the appellants
is, that 'N' was not detained for the period from 24.06.1999 to
28.06.1999. His detention during the above period, if true, would
certainly not emerge froin the action of the accused while acting
or purporting to act in the discharge of their official cl uties. If it
emerges from evidence adduced before the trial Court, that 'N'
was actually detained during the period from 24.06.1999 to
28.06.1999, the said detention cannot be taken to have been
made by the accused while acting or purporting to act in the
discharge of their official duties. More so, because it is not the
case of the appellants, that they had kept 'N' in jail during the
period from 24.06.1999 to 28

## Text

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[2016] 5 S.C.R. 653
SURINDERJIT SINGH MAND & ANR.
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 565 of2016)
JULY 05, 2016
(JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
Code of Criminal Procedure, 1973:
s. I 97 - Sanction before prosecution - Arrest of one person
by police officials on 28. 6.1999 - Complaint by 111other of the
arrestee alleging illegal and unauthorised detention of her son fro111
24.6.1999 to 28.6.1999 - Prosecution against six police officials
aper obtaining wnction uls. 197 - Application of the complainant
uls. 319 for taking cognizance against the appellants-police
officials - Charges framed against appellants - Assailed in
Revision on the ground that appellants could not have been
prosecuted in absence of sanction for prosecution - Revision
dismissed by High Court - On appeal, held: For applying s.197,
it has to be ascertained as to whether the alleged offence had been
committed "while acting or purporting to act in the discharge of
his official duty" - Jn the present case, the period of apprehension
from 28. 6.1999 (when arrest was admitted) can be considered to
have been made "while acting or purporting to act in the discharge
of their official duty", but not the period fro111 24. 6.1999 to
28.6.1999 - Therefore, sanction for prosecution in respect of the
appellants-accused was not required.
ss. 197, 319 - Scope of s.197 - Whether the mandate of s.197
would extend to cases where cognizance taken under s.319 Cr.P.C.
- Held: Mandate of sanction uls.197 is a mandatory pre-requisite,
before a court of competent jurisdiction takes cognizance, even
when cognizance is taken u/s. 319 Cr.P.C.
Dismissing the appeal, the Court
HELD: 1. The alleged action constituting the allegations
levelled against the appellants, is based on the arrest and
detention of 'N' from 24.06.1999 upto 28.06.1999 (before, he
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was admitted to have been formally arrested on 28.06.1999).
Insofar as the power of arrest and detention by police officials/
officers is concerned, reference may be made to Sections 36,
49, 50 and 50A of Cr.P.C. In view of s. 36 Cr.P.C, there cannot
be any serious doubt about the fact, that the appellants were
holding the rank of Deputy Superintendent of Police, at the
relevant time (from 24.06.199 to 28.06.1999). Both the
appellants were " ... officers superior in rank to an officer in
charge of a police station ... ". Both the appellants were therefore
possessed with the authority to detain and arrest, 'N' at the
relevant time (from 24.06.1999 to 28.06.1999). The question
for complying with the requirements in Sections 49, 50 and 50A
does not arise for the period under reference (from 24.06.1999
to 28.06.1999), because 'N' according to official police records,
was arrested only on 28.06.1999. [Paras 12, 13 and 14)(670-GH; 671-A-D, F]
1.2 Court is obliged to embark upon, when confronted with
a proposition of the nature in hand, is to ascertain as to whether
the alleged offence, attributed to the accused, had been
committed by an accused "while acting or purporting to act in
the discharge of his official duty". The official arrest of 'N' in
terms of the pro\'isions of Cr.P.C.would extend during the period
from 28.06.19<;9 to 30.06.1999. The above period of
apprehension can legitimately be considered as, having been
made "while acting or purporting to act in the discharge of their
official duties". The factual position expressed by the appellants
is, that 'N' was not detained for the period from 24.06.1999 to
28.06.1999. His detention during the above period, if true, would
certainly not emerge froin the action of the accused while acting
or purporting to act in the discharge of their official cl uties. If it
emerges from evidence adduced before the trial Court, that 'N'
was actually detained during the period from 24.06.1999 to
28.06.1999, the said detention cannot be taken to have been
made by the accused while acting or purporting to act in the
discharge of their official duties. More so, because it is not the
case of the appellants, that they had kept 'N' in jail during the
period from 24.06.1999 to 28.06.1999. [Paras 12 and 17l[670F; 673-E-H; 674-A]
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
655
& ANR.
1.3 Therefore, sanction u/s. 197 Cr.P.C., for prosecution
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of the accused in relation to the detention of 'N' for the period
from 24.06.1999 to 28.06.1999, would not be required, before a
Court of competent jurisdiction, takes cognizance with reference
to the alleged arrest of 'N'. [Para 17](674-B-C)
P.P. Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC
B
131 : 2000 (3) Suppl. SCR 142 - relied on.
Dr. Hori Ram Singh v. Emperor AIR (1939) FC 43;
Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584 :
2006 (3) SCR 305; R. Balakrislma Pillai 1: State of
Kera/a (1996) 1 SCC 478 : 1995 (6) Suppl. SCR 236;
C
P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704 :
2001 (3) SCR 1119; Om Prakash v. Slale of Jharkhand
(2012) 12 SCC 72 : 2012 (9) SCR 125; Usharani v.
The Commissioner of Police (2015) 2 KarLJ 511 -
referred to.
2. Under Section 197 of Cr.P.C. and/or sanction mandated
under a special statute (as postulated under Section 19 of the
Prevention of Corruption Act) would be a necessary pre-requisite,
before a Court of competent jurisdiction, takes cognizance of an
offence (whether under the Indian Penal Code, or under the
concerned special statutory enactment). The procedure for
obtaining sanction would be governed by the provisions of Cr.P.C.
and/or as mandated under the special enactment. The words in
Section 197 of Cr.P.C. are, " ... no court shall take cognizance of
such offence except with previous sanction ... ". Likewise subsection (1) of Section 19 of the Prevention of Corruption Act
provides,"No Court shall take cognizance .. except with the
previous sanction ... ". The mandate is clear and unambiguous,
that a Court "shall not" take cognizance without sanction.
Therefore, a Court just cannot take cognizance, without sanction
by the appropriate authority. Thus, it cannot be said that where
cognizance is taken under Section 319 of Cr.P.C., sanction either
under Section 197 of Cr.P.C. (or under the concerned special
enactment) is not a mandatory pre-requisite. However, it does
not mean that the determination rendered by a Court under
Section 319 Cr.P.C., is subservient to the decision of the
competent authority under Section 197. The grant of sanction
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under Section 197, can be assailed by the accused by taking
recourse to judicial review. Likewise, the order declining sanction,
can similarly be assailed by the complainant or the prosecution.
[Paras 22 and 23)(681-E-H; 682-B-C]
Dilawar Singh vs. Parvinder Singh alias Iqbal Singh
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(2005) 12 SCC 709 : 2005 (5) Suppl. SCR 83; Paul
Varghese vs. State of Kera/a (2007) 14 SCC 783 : 2007
( 4) SCR 1155; Subra111a11ia11 Swamy vs. Manmohan
Singh (2012) 3 SCC 64 : 2012 (3) SCR 52 - relied on.
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Case Law Reference
AIR_ (1939) FC 43
referred to
Para 10
2006 (3) SCR 305
referred to
Para 10
1995 (6) Suppl. SCR 236
referred to
Para 10
2001 (3) SCR 1119
referred to
Para 10
2912 (9) SCR 125
referred to
Para 11
(2015) 2 KarLl 511
referred to
Para 11
2000 (3) Suppl. SCR 142
relied on
Para 16
2005 (5) Suppl. SCR 83
relied on
Para 21
2007 (4) SCR 1155
relied on
Para 21
2012 (3) SCR 52
relied on
Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
565 of2016.
From the Judgment and Order dated 09.01.2008 in Criminal
Revision No. 348 of 2007 passed by the High Court of Punjab and
Haryana, Chandigarh.
Ram Jethmalani, Sr. Adv., Chirag Madan, Anirudh Anand, Ajay
Awasthi,Anubhav, P.R. Mala, Yash Pal Dhingra, Advs. for the Appellants.
Jayant K. Sud, AAG, Ms. Jasleen Chahal, Asst. AG, Varinder
Singh Rana, Jeevan Gautam(For Subhasish Bhowmick), Honney Khanna,
Ajay P. Tushir (For Kuldip Singh), Ad vs. for the Respondents.
The Judgment of the Court was delivered by
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
657
& ANR.
JAGDISH SINGH KHEHAR, J. I. Leave granted.
2. Surindeijit Singh Mand and P.S. Parmar, the appellants before
this Court, while holding the rank of Deputy Superintendent of Police,
were posted in District Kapurthala, in the State of Punjab, during the
relevant period in I 999. Piara Lal (holding the rank of Assistant SubInspector), was also posted at Kapurthala, at the same time. The above
mentioned Piara Lal's son - Neeraj Kumar was officially arrested on
28.06.1999. The arrest ofNeeraj Kumar, was made in furtherance of a
First Information Report bearing No.30, which was registered at Police
Station City, Kapurthala on 03.03. I 999. Before the arrest of Neeraj
Kumar, his father Piara Lal was placed under suspension on I 0.06. I 999.
The aforesaid FIR No.30, we were informed, was in respect of
complaints made by residents of Kapm1hala, pe11aining to theft of
motorcycles and other vehicles in the city.
3. It was pointed out, that while investigating into the allegations
contained in the complaint dated 03.03. I 999, three persons including
Neeraj Kumar were arrested on 28.06. I 999. Neeraj Kumar was granted
bail on 30.06.1999. In the above view of the matter, it is apparent that
Neeraj Kumar had remained in jail for just about two/three days (from
28.06. I 999 to 30.06.1999). Usha Rani - mother of Neeraj Kumar
(detained during the investigation of FIR No. 30), filed a representation
asserting, that her son had been detained on 24.06.1999 (and not on
28.06. I 999, as alleged). That would make the duration of his arrest as
of six/seven days. The present controversy pertains to the additional
four/five days of the arrest ofNeeraj Kumar. Her complaint highlighted,
that her son - Neeraj Kumar was apprehended illegally and
unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for
four/five days.
4. Investigation into the complaint made by Usha Rani, was directed
to be conducted in the first instance, by Munish Chawla, IPS. In the
report submitted by him, it was concluded, that the charge levelled by
the mother ofNeeraj Kumar, could not be substantiated. Yet again, based
on the accusations levelled by Usha Rani, another investigation was
ordered. This time, it was required to be conducted by M.F. Farooqi,
IPS. Yet again, in the second enquiry, it was concluded, that there was
no material to establish that Neeraj Kumar had been in police detention
from 24.06. I 999 onwards, till his formal arrest on 28.06. I 999. Despite
the two reports submitted by two senior police officers, wherein it was
found that there was no substance in the allegations levelled by Usha
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Rani, Gurpreet Deo, IPS, at her own, investigated into the matter. She
too arrived at the same conclusion, that there was no substance in the
claim of Usha Rani, that her son had been illegally and unauthorisedly
detained by police personnel, prior to his formal arrest on 28.06.1999.
5. Usha Rani (mother ofNeeraj Kumar) made another written
complaint, this time to the Hon'ble Administrative Judge (a sitting Judge
of the Punjab and Haryana High Court) having charge of Sessions
Division, Kapmihala, on 0 I. I 0.1999. In her complaint, she reiterated,
that her son Neeraj Kumar had been illegally detained by police personnel,
on 24.06.1999. The Hon'bleAdministrative Judge marked the complaint,
dated 01.10.1999, to an Additional District and Sessions Judge, posted in
the Sessions Division ofKapu1ihala, requiring him to look into the matter.
On 25.09.2000, the concerned Additional District and Sessions Judge,
Kapurthala, submitted a report concluding, that Neeraj Kumar had been
falsely implicated, because he and some other accused had been
discharged by a Court, from the proceedings initiated against them. Based
on the aforesaid report dated 25.09.2000, First Information Report bearing
No.46, came to be registered at Police Station City Kapurthala, on
22.10.2002.
6. After completion of pol ice investigation in the above FIR No.46,
a chargesheet was filed against six police officials, in the Court of the
Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Before the
aforesaid chargesheet was filed, the prosecution had obtained sanction
under Section 197 of the Code of Criminal Procedure (hereinafter
referred to as, the 'Code') for prosecuting the six concerned police
officials. It is also relevant to mention, that it was the express contention
of the appellants, that on the conclusion of investigation, no involvement
of the appellants had emerged, and therefore, their names were recorded
in Column No.2. It was submitted, that the aforesaid depiction of the
names of the appellants in Column No.2 by itself, demonstrates their
innocence (with reference to the allegations made by Usha Rani, that
her son Neeraj Kumar had been illegally detained from 24.06.1999).
7. It is not a matter of dispute, that after the statements of three
prosecution witnesses were recorded by the trial Court, Usha Rani moved
an application under Section 319 of the 'Code' before the trial Judge -
the Chief Judicial Magistrate, Kapurthala, for taking cognizance against
the appellants herein. The aforesaid application was allowed by the trial
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
& ANR. [JAGDISH SINGH KHEHAR, J.]
Court, on 06.09.2003. Thereupon, the appellants were summoned by
the Chief Judicial Magistrate, Kapurthala, to face trial. The appellants
contested their summoning before the trial Court by asserting, that their
prosecution was unsustainable in law, because no sanction had been
obtained by the prosecution under Section 197 of the 'Code', beftlre
cognizance was taken against them.
8. Consequent upon the appellants having been summoned by the
trial Court, charges were framed against them on 23 .12.2006. The order
passed by the trial Court framing charges against the appellants on
23.12.2006 was assailed by the appellants, through Criminal Revision
· No.348 of 2007. The primary submission advanced on behalf of the
appellants before the High Court was, that the Chief Judicial Magistrate,
Kapurthala, could not have proceeded ·against them, in the absence of
sanction of prosecution, under Section 197 of the 'Code'. The High
Court, by its order dated 09.01.2008, dismissed the Criminal Revision
filed by the appellants. The above order dated 09.01.2008 is subject
matter of challenge through the instant appeal.
9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf
of the appellants, in order to support the claim of the appellants, has
drawn our attention to Section 197 of the 'Code', which is extracted._
hereunder:
"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 (save as otherwise provided in the
Lokpal and LokayuktasAct, 2013)-
(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
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the alleged offence employed, in connection with the
affairs ofa State, of the State Government:
Provided that where the alleged offence was
committed by a person referred to in clause (b) during
the period while a Proclamation issued under clause
B
(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.
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( 4) The Central Government or the State Government, as
the case may be, may determine the person by whom, the
manner in which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which
the trial is to be held."
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(emphasis is ours)
The learned senior counsel highlighted, that sanction under Section
197 of the 'Code' is mandatory, where the concerned public servant is
alleged to have committed an offence "while acting or purporting to act
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in the discharge of his official duty".
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I 0. In order to demonstrate the ambit and scope of the tenn "while
acting or purporting to act in the discharge of his official duty", learned
senior counsel placed reliance on Dr. Hori Ram Singh vs. Emperor, AIR
(1939) FC 43, wherein the Court has observed as under:
"But Sec.4 77-A in express terms covers the case of an
officer, who willfully falsifies accounts which may be his
duty to maintain. They have apparently put theft,
embezzlement, or breach of trust on exactly the same footing
as falsification of accounts. and have not considered the
charge of falsifying the accounts separately from that of
criminal breach of trust. This is ignoring the significance of
the words "purporting to be done" which are no less
important. They have thought that an act done or purporting
to be done in the execution of his duty as a servant of the
Crown cannot by any stretching of the English language be
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
& ANR. [JAGDISH SINGH KHEHAR, J.]
made to apply to an act which is clearly a dereliction ofhis
duty as such.
But if an act has purported to be done in execution of duty,
it may be done so, only ostensibly and not really, and if done
dishonestly may still be a dereliction of duty The High Court
Bench have taken the view that the Section is clearly meant
to apply to an act by a public servant which could be done
in good faith, but which possibly might also be done in bad
faith ..... The Section cannot be meant to apply to cases
where there could be no doubt that the act alleged must be
in bad faith.
So far as sub-s. (I) is concerned, the question of good faith
or bad faith cannot strictly arise, for the words used are not
only "any act done in the execution of his duty" but also
"any act purporting to be done in the execution of his duty."
When an act is not done in the execution of his duty, but
purports to have been done in the execution of his duty, it
may very well be done in bad faith: and even an act which
cannot at all be done in execution of duty if another is made
to believe wrongly that it was being done in execution of
duty It is therefore not possible to restrict the applicability
of the Section to only such cases where an act could
possibly have been done both in good and bad faith. Of
course, the question of good or bad faith cannot be gone
into at the early stage at which objection may be taken.
Making false entries in a register may well be an act
purported to be done in execution of duty, which would be
an offence, although it can never be done in good faith. It is
sub-sec. (2) only which introduces the element of good faith,
which relieves the Court of its obligation to dismiss the
proceedings. But that sub-section relates to cases even
previously instituted and in which there may not be a defect
of want of consent, and is therefore quite distinct and
separate, and not merely ancillary to sub-s.( I), as the learned
Sessions Judge supposed. Having regard to the ordinary
and natural meaning of the words "purporting to be done,"
it is difficult to say that it necessarily implies "purporting to
be done in good faith," for a person who ostensibly acts in
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execution of his duty still purports so to act, although he
may have a dishonest intention."
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(emphasis is ours)
Reliance was also placed on Sankaran Moitra vs. Sadhna Das,
(2006) 4 sec 584, wherefrom our attention was drawn to the following
paragraph:
"25. The High Court has stated that killing of a person by
use of excessive force could never be performance of duty.
It may be correct so far as it goes. But the question is
whether that act was done in the performance of duty or in
purported performance of duty. If it was done in
performance of duty or purported performance of duty,
Section 197( 1) of the Code cannot be bypassed by reasoning
that killing a man could never beuone in an official capacity
and consequently Section 197{1) of the Code could not be
attracted. Such a reasoning would be against the ratio of
the decisions of this Court referred to earlier. The other
reason given by the High Court that ifthe High Court were
to interfere on the ground of want of sanction, people will
lose faith in the judicial process, cannot also be a ground to
dispense with a statutory requirement or protection. Public
trust in the institution can be maintained by entertaining
causes coming within its jurisdiction, by performing the duties
entrusted to it diligently, in accordance with law and the
established procedure and without delay. Dispensing with
of jurisdictional or statutory requirements which may
ultimately affectthe adjudication itself, will itselfresult in
people losing faith in the system. So, the reason in that behalf
given by the High Court cannot be sufficient to enable it to
get over the jurisdictional requirement of a sanction under
Section 197(1) of the Code of Criminal Procedure. We are
therefore satisfied that the High Court was in error in holding
that sanction under Section 197(1) was not needed in this
case. We hold that such sanction was necessary and for
want of sanction the prosecution must be quashed at this
stage. It is not for us now to answer the submission of
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
663
& ANR. [JAGDISH SINGH KHEHAR, J.]
learned counsel for the complainant that this is an eminently
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fit case for grant of such sanction."
(emphasis is ours)
In order to substantiate the proposition being canvassed, the learned
senior counsel, also invited our attention to R. Balakrishna Pillai vs. State
ofKerala, (1996) I SCC 478, wherein this Court has held as under:
"6. The next question is whether the offence alleged against
the appellant can be said to have been committed by him
while acting or purporting to act in the discharge of his
official duty. It was contended by the learned counsel for
the State that the charge of conspiracy would not attract
Section 197 of the Code for the simple reason that it is no
part of the duty of a Minister while discharging his official
duties to enter into a criminal conspiracy. In support of his
contention, he placed strong reliance on the decision of this
Court in Harihar Prasad vs. State of Bihar, (1972) 3 SCC
89. He drew our attention to the observations in paragraph
74 of the judgment where the Court, while considering the
question whether the acts complained of were directly
concerned with the official duties of the public servants
concerned, observed that it was no duty of a public servant
to enter into a criminal conspiracy and hence want of
sanction under Section 197 of the Code was no bar to the
prosecution. The guestion whether the acts complained of
had a direct nexus or relation with the discharge of official
duties by the public servant concerned would depend on
the facts of each case. There can be no general proposition
that whenever there is a charge of criminal conspiracy
levelled against a public servant in or out of office the bar
of Section 197(1) of the Code would have no application.
Such a view would render Section 197(1) of the Code
specious. Therefore, the guestion would have to be
examined in the facts of each case. The observations were
made by the Court in the special facts of that case which
clearly indicated that the criminal conspiracy entered into
by the three delinguent public servants had no relation
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whatsoever with their official duties and, therefore, the bar
of Section J 97( 1) was not attracted. It must also be
remembered that the said decision was rendered keeping
in view Section 197( I), as it then stood, but we do not base
our decision on that distinction. Our attention was next
invited to a three-Judge decision in B. Saha vs. M.S. Kochar,
( 1979) 4 SCC 177. The relevant observations relied upon
are to be found in paragraph 17 of the judgment. It is pointed
out that the words "any offence alleged to have been
committed by him while acting or purpotting to act in the
discharge of his official duty" employed Section 197( 1) of
the code, are capable of both a narrow and a wide
interpretation but their Lordships pointed out that if they
were construed too narrowly, the section will be rendered
altogether sterile, for, "it is no part of an official duty to
commit an offence, and never can be". At the same time, if
they \vere too widely construed, they will take under their
umbrella every act constituting an offence committed in
the course of the same transaction in which the official
duty is performed or is purported to be performed. The
right approach, it was pointed out, was to see that the
meaning of this expression lies between these two extremes.
While on the one hand, it is not every offence committed
by a public servant while engaged in the performance of
his official duty, which is entitled to the protection. Only an
act constituting an offence directly or reasonably connected
with his official duty will require sanction for prosecution.
To put it briefly, it is the quality of the act that is important,
and if it falls within the scope of the aforequoted words, the
protection of Section 197 will have to be extended to the
public servant concerned. This decision, therefore, points
out what approach the Coutt should adopt while construing
Section 197(1) of the Code and its application to the facts
o{the case on hand.
7. In the present case, the appellant is charged with having
entered into a criminal conspiracy with the co-accused while
functioning as a Minister. The criminal conspiracy alleged
is that he sold electricity to an industry in the State of
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
& ANR. [JAGDISH SINGH KHEHAR, J.)
Karnataka "without the consent of the Government of
Kerala which is an illegal act" under the provisions of the
Electricity (Supply) Act, 1948 and the Kerala Electricity
Board Rules framed thereunder. The allegation is that he in
pursuance of the said alleged conspiracy abused his official
position and illegally sold certain units to the private industry
in Bangalore (Karnataka) which profited the private industry
to the tune of Rs.19,58,630.40 or more and it is, therefore,
obvious that the criminal conspiracy alleged against the
appellant is that while functioning as the Minister for
Electricity he without the consent of the Government of
Kerala supplied certain units of electricity to a private
industry in Karnataka. Obviously, he did this in the discharge
of his duties as a Minister. The allegation is that it was an
illegal act inasmuch as the consent of the Government of
Kerala was not obtained before this arrangement was
entered into and the supply was effected. For that reason,
it is said that he had committed an illegality and hence he
was liable to be punished for criminal conspiracy under
Section 120-B, I.P.C. lt is, therefore, clear from the charge
that the act alleged is directly and reasonably connected
with his official duty as a Minister and would, therefore,
attract the protection of Section 197(1) of the Act."
(emphasis is ours)
Reliance was finally placed on P.K. Pradhan vs. State of Sikkim,
(2001) 6 sec 704, and our attention was draw~, to the following
observations recorded therein:
"5. The legislative mandate engrafted in sub section (1) of
Section 197 debarring a com1 from taking cognizance of an
offence except with the previous sanction of the
Government concerned in a case where the acts complained
of are alleged to have been committed by a public servant
in discharge of his official duty or purporting to be in the
discharge of his official duty and such public servant is not
removable from office save by or with the sanction of the
Government, touches the jurisdiction of the court itself. It is
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a prohibition imposed by the Statute from taking cognizance.
Different tests have been laid down in decided cases to
ascertain the scope and meaning of the relevant words
occurring in Section 197 of the Code, "any offence alleged
to have-been committed by him while acting or purporting
to act in the discharge of his official duty." The offence
alleged to have been committed must have something to
do, or must be related in some manner, with the discharge
of official duty. No question of sanction can arise under
Section I 97, unless the act complained of is an offence; the
only point for determination is whether it was committed in
the discharge of official duty. There must be a reasonable
connection between the act and the official duty. It does
not matter even ifthe act exceeds what is strictly necessary
for the discharge of the duty, as this question will arise only
at a later stage when the trial proceeds on the merits. What
a court has to find out is whether the act and the official
duty are so inter-related that one can postulate reasonably
that it was done by the accused in the performance of official
duty, though, possibly in excess of the needs and
requirements of situation.
xxx
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xxx
15. Thus, from a conspectus of the aforesaid decisions, it
will be clear that for claiming protection under Section 197
of the Code, it has to be shown by the accused that there is
reasonable connection between the act complained of and
the discharge of official duty. An official act can be
performed in the discharge of official duty as well as in
dereliction ofit. For invoking protection under Section 197
of the Code, the acts of the accused complained of must be
such that the same cannot be separated from the discharge
of official duty, but if there was no reasonable connection
between them and the performance of those duties, the
official status furnishes only the occasion or opportunity
for the acts, then no sanction would be required. If the case
as put forward by the prosecution fails or the defence
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
& ANR. [JAGDISH SINGH KHEHAR, J.]
establishes that the act purported to be done is in discharge
of duty, the proceedings will have to be dropped. It is well
settled that question of sanction under Section 197 of the
Code can be raised any time after the cognizance: maybe
immediately after cognizance or framing of charge or even
at the time of conclusion of trial and after conviction as
wel I. But there may be certain cases where it may not be
possible to decide the question effectively without giving
oppo1tunity to the defence to establish that what he did was
in discharge of official duty. Jn order to come to the
conclusion whether claim of the accused, that the act that
he did was in course of the performance of his duty was a
reasonable one and neither pretended nor fanciful, can be
examined during the course of trial by giving oppo1tunity to
the defence to establish it. In such an eventuality, the question
of sanction should be left open to be decided in the main
judgment which may be delivered upon conclusion of the
trial."
(emphasis is ours)
All in all, based on the judgments referred to above, it was
contended, that even if it was assumed that Neeraj Kumar had been
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detained with effect from 24.06.1999, his detention by the appellants
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was "while acting or purporting to act" in the discharge of the appellants'
official d.uties. And as such, the Chief Judicial Magistrate, Kapurthala,
could not have taken cognizance, without sanction under Section 197 of
the 'Code'.
11. Mr. Varinder S. Rana, learned counsel, who entered
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appearance on behalf of respondent no. 2, seriously contested the
submissions advanced on behalf of d1e appellants. Learned counsel
representing respondent no. 2, placed reliance on the following
observations recorded by the High Court, in the impugned order:
"As far as question of sanction for prosecution of petitioners
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is concerned, the contentions raised by learned counsel for
the petitioners could possibly be applicable for the detention
period since 28.06.1999 when Neeraj Kumar was shown
to have been arrested in FIR No.30 dated 03.03.1999.
However. the petitioners are not entitled to protection of
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Section 197 of the Code for illegal detention and torture of
Neeraj Kumar since 24.06.1999 till 28.06.1999 when his
arrest was shown in FIR No.30 dated 03.03.1999. The said
period of illegal detention and torture has no nexus much
less reasonable nexus with the discharge or purported
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discharge of the official duty of the petitioners.
Consequently, the impugned order cannot be said to be illegal
because sanction for prosecution of the petitioners is not
JMUired for illegal detention and torture ofNeeraj Kumar
during the aforesaid period."
(emphasis is ours)
In order to support the conclusions drawn by the High Court,
learned counsel for respondent no. 2, also drew our attention to, Om
Prakash vs. State of Jharkhand, (2012) 12 SCC 72, wherein this Court
held as under :
"32. The true test as to whether a public servant was acting
or purporting to act in discharge of his duties would be
whether the act complained of was directly connected with
his official duties or it was done in the discharge of his
official duties or it was so integrally connected with or
attached to his office as to be inseparable from it (K. Satwant
Singh v. State of Punjab, AIR 1960 SC 266). The protection
given under Section 197 of the Code has certain limits and
is available only when the alleged act done by the public
servant is reasonably connected with the discharge of his
official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty. he acted in
excess of his duty, but there is a reasonable connection
between the act and the perfonnance of the official duty,
the excess will not be a sufficient ground to deprive the
public servant of the protection (State ofOrissa vs. Ganesh
Chandra Jew, (2004) 8 SCC 40). If the above tests are
applied to the facts of the present case, the police must get
protection given under Section 197 of the Code because
the acts complained ofare so integrally connected with or
attached to their office as to be inseparable from it. It is not
possible for us to come to a conclusion that the protection
SURINDERJIT SINGH MAND & ANR. v. STATE OF PUNJAB
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& ANR. [JAGDISH SINGH KHEHAR, J.]
granted under Section 197 of the Code is used by the po lice
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personnel in this case as a cloak for killing the deceased in
cold blood."
(emphasis is ours)
Reliance was then placed on Usharani vs. The Commissioner of
Police, (2015) 2 KarLJ 511 (a judgment rendered by the Karnataka
High Court), to highlight the importance and significance of personal
liberty, specially with reference to unlawful detention wherein it has been
observed as under:
"I 0. In Constitutional and Administrative Law by Hood
Phillips and Jackson, it is stated thus:
"The legality of any form of detention may be challenged
at common law by an application for the writ of habeas
corpus. Habeas corpus was a prerogative writ, that is, one
issued by the King against his officers to compel them to
exercise their functions properly. The practical impo1tance
of habeas corpus as providing a speedy judicial remedy for
the determination of an applicant's claim for freedom has
been asserted frequently by ju dies and writers. Nonetheless,
the effectiveness of the remedy depends in many instances
on the width of the statutory power under which a public
authority may be acting and the willingness of the Comts to
examine the legality of decision made in reliance on
wideranging statutory provision. It has been suggested that
the need for the "blunt remedy' of habeas corpus has
diminished as judicial review has developed into an ever
more flexible jurisdiction. Procedural reform of the writ may
be appropriate, but it is important not to lose sight of
substantive differences between habeas corpus and
remedies under judicial review. The latter are discretionary
and the court may refuse relief on practical grounds; habeas
corpus is a writ ofright, granted ex debito justitiae."
11. The ancient prerogative writ of habeas corpus takes its
name from the two mandatory words "habeas" and
"corpus". 'Habeas Corpus' literally means 'have his body'.
The general purpose of these writs as their name indicates
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was to obtain the production of the individual before a Court
or a Judge. This is a prerogative process for securing the
liberty of the subject by affording an effective relief of
immediate release from unlawful or unjustifiable detention,
whether in prison or in private custody. This is a writ of
such a sovereign and transcendent authority that no privilege
of power or place can stand against it. It is a very powerful
safeguard of the subject against arbitrary acts not only of
private individuals but also of the Executive, the greatest
safeguard for personal liberty, according to all constitutional
jurists. The writ is a prerogative one obtainable by its own
procedure. In England. the jurisdiction to grant a writ existed
in Common Law, but has been recognized and extended by
statute. It is well established in England that the writ of
habeas corpus is as of right and that the Court has no
discretion to refuse it. "Unlike ce11iorari or mandamus, a
writ of habeas corpus is as of right "to every man who is
unlawfully detained. In India, it is this prerogative writ which
has been given a constitutional status under Articles 32 and
226 of the Constitution. Therefore, it is an extraordinary
remedy available to a citizen of this Country, which he can
enforce under Article 226 or under Article 32 of the
Constitution oflndia."
(emphasis is ours)
12. The first task, which a Court is obliged to embark upon, when
confronted with a proposition of the nature in hand, is to ascertain as to
whether the alleged offence, attributed to the accused, had been
committed by an accused "while acting or purporting to act in the
discharge of his official duty". In the facts and circumstances of the
present case, the alleged action constituting the allegations levelled against
the appellants, is based on the arrest and detention of Neeraj Kumar
from 24.06. I 999 upto 28.06. I 999 (before, he was admitted to have been
formally arrested on 28.06. I 999).
13. Insofar as the power of arrest and detention by police officials/
officers is concerned, reference may be made to Section 36 of the 'Code'
which postulates, that all police officers superior in rank to an officer in
charge of a pol ice station, are vested with an authority to exercise the
SURINDERJlT SINGH MAND & ANR. v. STATE OF PUNJAB
& ANR. [JAGDISH SINGH KHEHAR, J.]
same powers (throughout the local area, to which they are appointed),
which can be exercised by the officer in charge of a police station.
Section 49 of the 'Code' postulates, the manner in which a police officer
is to act, while taking an individual in custody. Section 49 of the 'Code',
cautions the person making the arrest to ensure, that the individual taken
into custody, is not subjected to more restraint than is necessary, to prevent
his escape.