OM PRAKASH YADAV versus NIRANJAN KUMAR UPADHYAY & ORS.
[2024] 12 S.C.R. 777, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2024] 12 S.C.R. 777 : 2024 INSC 979
Om Prakash Yadav
v.
Niranjan Kumar Upadhyay & Ors.
(Criminal Appeal No(s). 5267-5268 of 2024)
13 December 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Issue arose as regards whether in the absence of the grant 
of sanction for prosecution u/s.197 CrPC, the CJM, Firozabad 
could have taken cognizance of the charge sheets against the 
respondents; and whether the offence or the act alleged to have 
been committed by the respondents could be said to have been 
done while acting or purporting to act in the discharge of official 
duty.
Headnotes†
Code of Criminal Procedure, 1973 – s.197 – Prosecution of 
Judges and public servants – Incident of indiscriminate firing 
by eight persons including main accused at Firozabad resulting 
in death of the brother of the appellant and grievous injuries 
to brother's son – FIR by appellant – On the same day, another 
FIR registered against the main accused by respondent no. 
5-head constable for carrying bottles of illegal foreign liquor 
at Gwalior – Respondent no.5, alongwith respondent no. 
3-Head Constable and respondent no. 4-A.S.I. arrested the 
accused and released him on bail the same day – Chargesheet 
submitted by IO – Chargesheet also submitted in the first FIR 
stating that investigation was still pending against respondent 
no. 1, Town Inspector, respondent nos. 3, 4, 5 for shielding 
the accused – Thereafter, application by IO for staying the 
proceedings against the
accused as regards illegal liquor case 
alleging that respondent no. 1 was a relative of the accused 
and respondent nos. 3, 4, 5 had conspired to create a bogus 
case with the object of providing the main accused with an alibi 
for alleged crime committed at Firozabad which was rejected – 
Application by IO seeking sanction u/s.197 for prosecuting the 
respondents – Sanction could not be granted till the disposal 
* Author
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of the trial in case arising out of FIR in Gwalior – Appellant 
sought quashing of criminal proceedings in the case regarding 
seizure of illegal liquor – High Court stayed the proceedings – 
Supplementary charge sheets filed against respondents 
for being involved in hatching conspiracy of murder of the 
appellant's brother and CJM took cognizance – Respondents 
then filed application seeking quashing the proceedings arising 
out of the supplementary charge sheets – High Court quashed 
the proceedings on the ground that sanction to prosecute 
respondents u/s.197 was necessary – Correctness:
Held: When a police official is said to have lodged a false case, he 
cannot claim that sanction for prosecution u/s. 197 was required 
since it can be no part of the official duty of a public official to 
lodge a bogus case and fabricate evidence or documents in 
connection with the same – There exists no reasonable or rational 
nexus between such an act and the duties assigned to the public 
servant for the claim that it was done or purported to be done in 
the discharge of his official duty – Mere fact that an opportunity 
to register a false case was furnished by the official duty would 
certainly not be sufficient to apply s. 197 – Allowing so, would enable 
the accused to use their status as public servants as a facade for 
doing an objectionable, illegal and unlawful act and take undue 
advantage of their position – If case registered in
Gwalior was a 
false case then refusal to grant sanction would not operate as a 
bar for their prosecution – Moreover, the respondent no. 1 was 
not even posted as the S.H.O or T.I at the Police Station when 
the said false case was registered – Respondent no. 1 himself 
admitted that he was in fact posted at District, 120 kms away 
from Gwalior during the relevant time – Thus, any act or offence 
committed by the respondent no. 1 can safely be said to have been 
outside the scope of his official duty which obviates the question 
of sanction for his prosecution – Requirement of sanction is one 
that may arise at any stage of the proceeding – No requirement of 
sanction for respondent no. 1 as he was not posted at the Police 
station in Gwalior at the relevant time where the alleged false was 
registered – For respondent nos 3, 4, 5 if the prosecution case 
is correct that they also played dubious role in registering a false 
case, then the requirement of sanction would not be a sin qua non 
for proceeding further with the criminal proceedings – However, 
the defence must be given an opportunity to rebut the same by 
leading appropriate evidence – Criminal proceedings pending 
before the CJM, Firozabad should not have been quashed at such
[2024] 12 S.C.R. 
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
a preliminary stage – CJM, Firozabad rightly took cognizance of 
the charge sheets – High Court erred in considering this aspect 
while quashing the proceedings – Trial court directed to proceed 
with the trial and at any stage of trial if evidence suggests that the 
acts complained of were indeed done or purported to be done in 
the discharge of official duty by respondent nos. 3, 4 and 5 or that 
the FIR registered by them was not bogus, the trial may be stayed 
for want of sanction – Thus, the question of sanction only qua 
respondent nos. 3, 4 and 5 left open to be appropriately decided 
by the trial court at a suitable stage – Impugned order passed by 
the High Court set aside. [Paras 67, 75-86]
Code of Criminal Procedure, 1973 – s.197 – Object behind 
enactment of s.197 – Construction of expression “any 
offence alleged to have been committed by him while acting 
or purporting to act in the discharge of his official duty” 
in s.197 – Tests for applicability of s. 197 – Explained. 
[Paras 40-66, 68-74]
Case Law Cited
Dr. Hori Ram Singh v. The Crown, AIR 1939 FC 43; Gill and Another 
v. The King, AIR 1948 PC 128; Albert West Meads v. The King, 
AIR 1948 PC 156; Shreekantiah Ramayya Munipalli v. State of 
Bombay [1955] 1 SCR 1177 : (1954) 2 SCC 992; Amrik Singh v. 
State of Pepsu [1955] 1 SCR 1302 : AIR 1955 SC 309; Matajog 
Dobey v. H.C. Bhari [1955] 2 SCR 925 : AIR 1956 SC 44; Dhannjay 
Ram Sharma
v. M.S. Uppadaya and Others, AIR 1960 SC 745; P. 
Arulswami v. State [1967] 1 SCR 201; Harihar Prasad Etc. v. State 
of Bihar (1972) 3 SCC 89; B. Saha and Others v. M.S. Kochar 
[1980] 1 SCR 111 : (1979) 4 SCC 177; State of Maharashtra v. 
Dr. Budhikota Subbarao [1993] 2 SCR 300 : (1993) 3 SCC 339; 
R. Balakrishna Pillai v. State of Kerala and Another [1995] Supp. 
6 SCR 236 : (1996) 1 SCC 478; Shambhoo Nath Misra v. State 
of U.P. and Others [1997] 2 SCR 1139 : (1997) 5 SCC 326; State 
of Orissa and Others v. Ganesh Chandra Jew [2004] 3 SCR 504 : 
(2004) 8 SCC 40; S.K. Zutshi and Another v. Bimal Debnath and 
Another [2004] Supp. 3 SCR 400 : (2004) 8 SCC 31; K. Kalimuthu 
v. State [2005] 3 SCR 1 : (2005) 4 SCC 512; Sankaran Moitra 
v. Sadhna Das and Another [2006] 3 SCR 305 : (2006) 4 SCC 
584; Choudhury Parveen Sultana v. State of West Bengal and 
Another [2009] 1 SCR 99 : (2009) 3 SCC 398; Urmila Devi v.
780
[2024] 12 S.C.R.
Supreme Court Reports
Yudhvir Singh [2013] 16 SCR 542 : (2013) 15 SCC 624; Rajib 
Ranjan v. R. Vijaykumar [2014] 10 SCR 982 : (2015) 1 SCC 513; 
Inspector of Police and Another v. Battenapatla Venkata Ratnam 
and Another [2015] 4 SCR 609 : (2015) 13 SCC 87; Surinderjit 
Singh Mand and Another v. State of Punjab and Another [2016] 5 
SCR 653 : (2016) 8 SCC 722; Pukhraj v. State of Rajasthan and 
Another [1974] 1 SCR 559 : (1973) 2 SCC 701; State of Bihar v. 
Kamla Prasad Singh and Others [1998] 3 SCR 201 : (1998) 5 SCC 
690; Bakhshish Singh Brar v. Gurmej Kaur and Another [1988] 
1 SCR 450 : (1987) 4 SCC 663; P.K. Pradhan v. State of Sikkim 
[2001] 3 SCR 1119 : (2001) 6 SCC 704; Devinder Singh v. State 
of Punjab [2016] 6 SCR 295 : (2016) 12 SCC 87; Parvat Singh 
and Others v. State of Madhya Pradesh [2020] 2 SCR 964 : (2020) 
4 SCC 33; Birbal Nath v. State of Rajasthan [2023] 14 SCR 85 : 
2023 SCC OnLine SC 1396 – referred to.
List of Acts
Madhya Pradesh Excise Act, 1915; Government of India Act, 
1935; Evidence Act, 1872; Penal Code, 1860; Code of Criminal 
Procedure, 1898; Code of Criminal Procedure, 1973.
List of Keywords
Absence of grant of sanction for prosecution u/s.197 CrPC; 
While acting or purporting to act in the discharge of official duty; 
Supplementary charge sheets; Hatching conspiracy of murder; 
Quashing the proceedings; Sanction to prosecute; Reasonable 
or rational nexus; Necessity of sanction; Expression “any offence 
alleged to have
been committed by him while acting or purporting 
to act in the discharge of his official duty” in s.197; Sanction 
for prosecution; Bogus FIR; Malafide prosecution; Act integrally 
connected with official duties; Acts done under color of office; 
Where sanction not required; Dereliction of official duty; Misuse 
of authority; Sanction not sine qua non for criminal proceedings.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s). 
5267-5268 of 2024
From the Judgment and Order dated 19.04.2018 of the High Court 
of Judicature at Allahabad in APP Nos. 4080 and 32494 of 2009
[2024] 12 S.C.R. 
781
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
Appearances for Parties
Ravindra Singh, Sr. Adv., Raman Yadav, Syed Mehdi Imam, 
Ms.  Akriti Chaturvedi, Priyam Kaushik, Vishesh Kumar Singh, 
Advs. for the Appellant.
Ardhendumauli Kumar Prasad, Sr. A.A.G., R. Basant, Devashish 
Bharukha, Sr. Advs., Mayank Sapre, Yash Sharma, Aditya Pratap 
Singh, Ujjwal Singh,. Vishnu Shankar Jain, Ms. Ananya Sahu, 
Akshay Kumar, Mrs. Nanita Sharma, Vivek Sharma, Shailendra 
Singh, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1.	
Leave granted. 
2.	
These appeals arise out of the common Judgment and Order 
passed by a learned Single Judge of the High Court of Judicature at 
Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos. 
4080 of 2009 and 32494 of 2009 respectively filed by the respondent 
nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of 
Criminal Procedure, 1973 (for short, the “CrPC”) whereby the High 
Court allowed the applications and quashed the proceedings of 
Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well 
as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and 
others) pending before the CJM, Firozabad, both arising out of Case 
Crime No. 617 of 2007 registered for the offence punishable under 
Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of 
the Indian Penal Code, 1860 (for short, the “IPC”) with the Dakshin 
Police Station, District
Firozabad, Uttar Pradesh. 
A.	
FACTUAL MATRIX 
3.	
On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the 
“appellant”) lodged a First Information Report (hereinafter, “FIR”) 
as Case Crime No. 617 of 2007 for the offence punishable under 
Sections 147, 148, 149, 302 and 307 of IPC respectively with the 
Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender 
Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay
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Dixit and three others. The FIR alleged that the appellant’s brother, 
Suman Prakash Yadav who was a teacher at the Tilak Inter College, 
Firozabad, was killed and his brother’s son Harsh aged about 
4½ years was grievously injured by the aforesaid accused persons 
by indiscriminately firing with their handguns near the Suhagnagar 
Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that 
the incident was witnessed by him and several others. 
4.	
On the same day, another FIR was registered as Case Crime No. 
967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh, 
for the offence punishable under Section 34 of the Madhya Pradesh 
Excise Act, 1915 (hereinafter, the “Excise Act”) against Ashok 
Dixit who is the main accused of Case Crime No. 617 of 2007. 
The FIR which was lodged by Head Constable Ram Baran Singh 
Yadav (hereinafter, “respondent no.5”) stated that based on the 
information received from an informant while patrolling the area, the 
accused Ashok Dixit was arrested for carrying 12 bottles of illegal 
foreign liquor near the Thatipur Crossing. It was stated therein 
that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar 
(hereinafter, “respondent no. 4”) and Head Constable Vijay Bahadur 
Singh (hereinafter, “respondent no. 3”) of the Thatipur Chauki, 
Murar Police Station, had seized the illegal liquor and arrested the 
accused at around 09:30 am on 12.10.2007. It was further added 
that the
accused, Ashok Dixit, was later released on bail by the 
Station House Officer (hereinafter, “SHO”), D.S. Khushawa of the 
Murar Police Station, on the same day, upon furnishing the necessary 
surety since the offence under Section 34 of the Excise Act was 
a bailable one. On 26.10.2007, the concerned IO is said to have 
submitted a Charge Sheet in connection with Case Crime No. 967 
of 2007 against Ashok Dixit before the Chief Judicial Magistrate 
(hereinafter, “CJM”), Gwalior. 
5.	
The Investigating Officer (hereinafter, “IO”) at Dakshin, Firozabad 
undertook further investigation and recorded the statements of 
several witnesses under Section 161 CrPC in connection with Case 
Crime No. 617 of 2007. On 05.01.2008, the Charge Sheet No. 3 of 
2008 was submitted before the CJM, Firozabad, against 12 persons 
namely Ashok Dixit, Pappu Dixit, Sanjay Dixit, Surender Singh Gurjar, 
Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu, Suresh, 
Pancham, Rajesh and Devender. However, the charge sheet stated 
that the investigation against Niranjan Kumar Upadhyay (hereinafter,
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783
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
“respondent no. 1”), respondent no.3, respondent no. 4, respondent 
no. 5 and two other individuals in regard to the FIR registered for 
the offence under Section 34 of the Excise Act in Murar, Gwalior 
allegedly for the purpose of shielding the accused, Ashok Dixit, was 
still pending.
6.	
Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded 
the statements of SHO D.S. Khushawa, respondent no. 3, respondent 
no. 4 and respondent no. 5 respectively of the Murar Police Station, 
Gwalior under Section 161 of CrPC. 
7.	
Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad 
moved an application before the CJM, Gwalior, Madhya Pradesh, 
requesting that the proceedings in Case No. 15003 of 2007 relating 
to the Case Crime No. 967 of 2007 under Section 34 of the Excise 
Act filed against the accused Ashok Dixit, pending before him, be 
stayed. The application alleged that the respondent no. 1 who was 
posted in Gwalior as Town Inspector (for short, “TI”) was a relative of 
the accused Ashok Dixit. It was further alleged that the respondent 
nos. 1, 3, 4 and 5 respectively had conspired to shield the accused 
from the offence of murder by creating a bogus case under Section 
34 of the Excise Act with the sole object of providing the accused with 
an alibi for the crime alleged to have been committed in Firozabad. 
The incident in Firozabad occurred at 08:30 am while the incident in
Gwalior occurred at 09:30 am on the same day. The distance between 
Gwalior and Firozabad being 160 kilometers, the same could not 
have been covered in a duration of one hour by road. The application 
stated that, since the accused, Ashok Dixit, might confess his guilt in 
connection with the offence under Section 34 of the Excise Act with 
a view to save himself from the offence of murder, the proceedings 
in Case Crime No. 617 of 2007 pending before the CJM, Firozabad 
might get adversely affected if the proceedings in Case No. 15003 
of 2007 were allowed to be continued.
8.	
Upon due consideration of the aforesaid application, the CJM, Gwalior 
vide its order dated 05.02.2008, directed the SHO of the Murar Police 
Station, Gwalior, to furnish a report before the Court. On 12.02.2008, 
the statements of respondent nos. 3, 4 and 5 respectively, were 
recorded by the SHO of the Murar Police Station, Gwalior and an 
enquiry report was furnished on 17.02.2008 before the CJM, Gwalior. 
Upon perusal of the enquiry report, the CJM, Gwalior vide its order
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dated 23.02.2008 rejected the application dated 20.01.2008 filed by 
the IO at Dakshin, Firozabad, as being baseless. 
9.	
On 14.04.2008, the IO at Dakshin, Firozabad filed an application 
before the CJM, Firozabad for the issuance of non-bailable warrant 
against the respondent nos. 1, 3, 4 and 5 respectively along with two 
other persons. In pursuance of the said application, on 21.04.2008, 
the CJM, Firozabad issued a non-bailable warrant against the 
aforesaid 6 accused which included the respondent nos. 1, 3, 4 and 
5 respectively, herein. However, it is the case of the IO at Firozabad 
that the respondent nos. 1, 3, 4 and 5 were absconding and therefore, 
proceedings under Sections 82 and 83 CrPC respectively were also 
initiated and completed against them. 
10.	 On 02.05.2008, the IO at Dakshin, Firozabad filed an application 
before the D.I.G., Gwalior, Madhya Pradesh through the D.I.G., 
Agra, Uttar Pradesh, requesting sanction for prosecution of the 
respondent nos. 1, 3, 4 and 5 respectively. Further, on 07.05.2008, 
the Superintendent of Police, Firozabad, also sent a letter to the 
D.I.G., Gwalior, requesting for the sanction for prosecution under 
Section 197 CrPC so that the respondents could be charge-sheeted. 
11.	 In the meantime, the respondent no.1 preferred Criminal Misc. Writ 
Petition No. 10181 of 2008 before the High Court of Allahabad and 
vide order dated 23.07.2008, the arrest of respondent no. 1 was
stayed. 
12.	 On 30.07.2008, the Superintendent of Police, Firozabad, addressed 
one another letter to the D.I.G., Gwalior in the form of a reminder 
to accord sanction under Section 197 CrPC for prosecuting the 
respondents herein. However, on 02.08.2008, the D.I.G., Gwalior 
replied to the Superintendent of Police, Firozabad, informing him 
that sanction for prosecution cannot be granted till the disposal of 
the trial in connection with Case Crime No. 967 of 2007 registered 
at the Murar Police Station, Gwalior for the offence under Section 34 
of the Excise Act. 
13.	 On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 
of 2008 under Section 482 CrPC before the High Court of Madhya 
Pradesh at Gwalior for quashing the criminal proceedings concerning 
Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007 
registered for the offence under Section 34 of the Excise Act pending 
before the Court of CJM, Gwalior. In the alternative, it was prayed
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
that the proceeding be stayed till a decision is arrived at in the case 
pending against Ashok Dixit before the CJM, Firozabad, concerning 
Case Crime No. 617 of 2007. The High Court vide its order dated 
25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by 
observing as follows: 
“12. In the light of the above legal position, the Appellant 
who is a complainant in the criminal case in connection 
with Crime No.617 of 2007 registered against respondent 
No.2 at Firozabad has locus standi to file this petition under 
section 482 of Cr.P.C. Now legal aspect and circumstances 
of the case is to be considered. Suppose for the sake of 
argument, if respondent No.2 admits his guilt in the case 
of Excise Act pending in the Court of CJM Gwalior what 
will be its effect? He will have a good ground of alibi that 
at the time of alleged murder of Appellant’s brother he 
was not present at Firozabad but was present at Gwalior 
which is 160 Kms. away from Firozabad. So it will cause 
a great prejudice in that case and on the other hand, in 
the interest of justice, if proceedings pending in the court 
of CJM Gwalior are stayed, it will not cause any prejudice 
to respondent No.2. Moreover, it will avoid conflicting 
judgments of two Courts. Therefore, it is good case for 
invoking inherent powers of the court.
13. Considering the facts and circumstances of the case, 
petition is allowed and further
proceedings pending in 
the court of CJM Gwalior in connection with Excise. Act 
pending in the CJM Gwalior concerning Case No.15003 of 
2007 are hereby stayed till disposal of the Criminal Case 
pending at Firozabad concerning Crime No.617 of 2007.”
(emphasis supplied)
14.	 After a period of almost one year, on 25.10.2008, the IO at Dakshin, 
Firozabad recorded the statements of two persons i.e., Ramesh 
Yadav and Barelal under Section 161 CrPC. Both stated that they 
had witnessed the respondent no.1 being directly involved in the 
creation of a false case under Section 34 of the Excise Act in order 
to provide the accused Ashok Dixit the benefit of an alibi. Soon 
thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of 
2008 in case Crime No. 617 of 2007 was filed against the respondent
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no. 1 for the offence punishable under Sections 147, 148, 149, 307, 
302, 201 and 120-B IPC respectively for being involved in hatching 
a conspiracy of murder that occurred in Firozabad. It was the case 
of the IO at Firozabad that the Charge Sheet was filed since he had 
found out that the respondent no. 1 was not posted at the Murar 
Police Station, Gwalior at the time of the arrest of Ashok Dixit for 
the offence under Section 34 of the Excise Act and therefore, the 
provision of sanction under Section 197 CrPC would not be attracted 
against the respondent no. 1. It is pertinent to observe here that it 
is the case of the respondent no. 1 herein that the Charge Sheet 
No. 3A of 2008 was backdated to 03.11.2008 when in fact it was 
actually filed on 24.11.2008 before the Magistrate. 
15.	 The mother of respondent no.1, while alleging that the appellant was 
trying to falsely implicate the respondent no. 1 in the case of murder, 
moved an application before the D.I.G., Firozabad, requesting that 
the investigation be transferred from the Dakshin Police Station to 
some other police station. The D.I.G., Firozabad vide order dated 
11.11.2008 directed the Senior Superintendent of Police, Firozabad 
(for short, “S.S.P.”) to look into the matter. Thereafter, the S.S.P. 
called for a status report on the case from the Circle Officer vide 
letter dated 14.11.2008. The status report submitted by the Circle 
Officer revealed that while
the respondent no.1 had obtained a stay 
on his arrest from the High Court, the arrest of the other accused 
remained pending and the investigation was still going on. Upon 
consideration of the same, the S.S.P., Firozabad, vide order dated 
20.11.2008 transferred the investigation from the Dakshin Police 
Station to the Uttar Police Station at Firozabad, with immediate effect. 
16.	 The CJM, Firozabad took cognizance of the Charge Sheet No. 3A 
of 2008 vide order dated 24.11.2008. Immediately, on 28.01.2009, 
the respondent no. 1 preferred Criminal Misc. Application No. 4080 
of 2009 under Section 482 CrPC before the High Court of Allahabad 
seeking to quash the proceedings in Case No. 67 of 2008 (State vs. 
Niranjan Kumar Upadhyay) arising out of the above charge sheet in 
Case Crime No. 617 of 2007, pending before the CJM, Firozabad. 
17.	 Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was 
filed in the case of the respondent nos. 3, 4 and 5 respectively for the 
offence under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC 
respectively for being involved in the conspiracy to commit murder 
of the appellant’s brother at Firozabad. The CJM, Firozabad took
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
cognizance of the same vide order dated 10.08.2009. On 29.11.2009, 
the respondent nos. 3, 4 and 5 respectively also preferred an 
application being the Criminal Misc. Application No. 32494 of 2009 
under Section 482 CrPC before the High Court of Allahabad seeking 
to quash the proceedings of Case No. 67A of 2009 (State vs. Ram 
Prakash Gunkar and Ors.) arising out of the said charge sheet in 
Case Crime No. 617 of 2007 pending before the CJM, Firozabad.
18.	 During the pendency of the aforesaid two applications filed under 
Section 482 CrPC before the High Court, the Court of Additional 
District and Sessions Judge, Firozabad, completed the Sessions 
Trial No. 753 and 753A of 2008 respectively and vide the judgment 
& order dated 10.07.2015, held all the 12 accused, including Ashok 
Dixit, guilty of the offences under Sections 147, 148, 149, 307, 
302 and 120-B IPC with which they were charged. The relevant 
observations made by the Trial Court are reproduced hereinbelow: 
“…The “plea of alibi” taken by accused Ashok Dixit that 
on the day of incident he was lodged in jail u/s 34, Excise 
Act at P.S. Murar, district Gwalior was with the inconsistent 
report of the Murar police officials and after investigation 
I.O. has submitted its report to SSP, Gwalior and JM, 
Gwalior and stated that the case was false. The above 
mentioned police officials have been suspended after 
conducting a departmental
investigation also they have 
been named for conspiring the death along with accused 
Ashok Dixit in the charge sheet that has been presented 
before CJM, Firozabad in which they have been charged 
u/s 302, 120B I.P.C…
It is correct that the distance of 160 kilometres cannot be 
covered in one hour and if accused Ashok Dixit was at 
Murar, Gwalior at 9.30 a.m., then he cannot be involved in 
the commission of incident at Firozabad at 8.30 a.m. It was 
contended in this regard on behalf of the prosecution that 
accused Ashok Dixit is a cunning criminal. He showed his 
presence there colluding with Murar Police station, Gwalior 
in order to escape himself from the offence of murder. The 
investigator SHO Shri Baldhari Singh made enquiries after 
going there, then the whole matter was found forged and 
the investigator gave an application to SSP Gwalior in this 
regard and also submitted an application before JM Gwalior
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Madhya Pradesh and keeping the investigation in progress, 
it was found that in order to save accused Ashok Dixit from 
the heinous crime like murder, the forged arrest and his 
release on bail has been shown by the police of Murar 
police station. SSP Gwalior, on investigation, finding the 
whole case forged, has suspended all the officials involved 
in the said matter and initiated departmental inquiry against 
them and after collecting the evidence in the said case, a 
charge sheet has been filed in the court of CJM Firozabad 
against the said police officials Niranjan Upadhyay, T.I. 
Police Station Murar, Gwalior and Shailendra Singh and 
Triloki Gaur and ASI P.P. Gunkar, Head constable Vijay 
Bahadur and Head Constable. Rambaran Yadav under 
Section 147, 148, 149, 307, 302, 201, 120B IPC with 
regard to give cooperation in the conspiracy of murder 
under Section 120B IPC. A case No. 67 A/2008 State 
Versus Niranjan and others is pending in that regard in 
the court of CJM Firozabad and the warrant of the arrest 
of the accused persons have been issued. The said file 
pending in the court of CJM was summoned on behalf of 
the prosecution in this regard, which is available on the 
file of the instant session trial which makes it clear that 
accused Ashok Dixit has shown his presence at 9.30 a.m. 
on the day of incident showing his arrest under Section 34 
of Excise Act in order to escape from the case of murder 
of Suman Prakash
colluding with the police officials of 
police station Murar, District Gwalior, Madhya Pradesh 
which was found forged in the investigation and charge 
sheet has been filed against the said police officials 
involving them in the conspiracy of murder and in order 
to save accused Ashok Dixit from punishment, the case 
of the same is pending in the court of CJM, Firozabad 
and warrant of arrest against all the police officials have 
been issued and SSP Gwalior has suspended them and 
departmental inquiry has been initiated against them. All 
these police officials are absconding. Arrest warrants have 
been issued against them by CJM Court, Firozabad. The, 
copy of charge sheet of Case No.67 A/2008 State Versus 
Niranjan and others pending in the court of CJM has 
also been filed on record behalf of the prosecution. The
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
proceedings of case No.15003/2007 State Versus Ashok 
Dixit under Section 34 of Excise Act, police Station Murar 
pending before the CJM Court has been stayed by order 
dated 25.08.2009 by the Hon’ble High Court, bench at 
Gwalior passed in Misc. Case No.5971. The copy of the 
order passed by the Hon’ble High court bench at Gwalior 
is filed on record from 613B/25 to 613B/30. SLP has been 
filed against the said order before the Hon’ble Supreme 
court which was not admitted for hearing, the copy of the 
same is filed on record at 613B/31, Therefore, no profit of 
case under Section 34 of Excise Act cannot be given to 
accused Ashok Dixit and his presence at Murar, District 
Gwalior at the time of incident under the case of 34 Excise 
Act has been found forged and the accused has made 
a forged plea of alibi colluding with the police officials.”
(emphasis supplied)
19.	 The High Court at Allahabad heard the Criminal Misc. Writ Application 
Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed 
them vide the common Judgment and Order dated 19.04.2018. The 
High Court quashed the proceedings in Case Nos. 67 of 2008 and 
67A of 2009 respectively essentially on the ground that sanction 
to prosecute the respondent nos. 1, 3, 4, and 5 respectively under 
Section 197 CrPC was necessary & since it had not been obtained, 
the trial cannot proceed. The relevant observations are reproduced 
hereinbelow:
“Admittedly, the applicants are public servant and case 
was registered under Section 34 Excise Act against main 
accused of the murder in the discharge of public duty 
but the sanction to prosecute for the offence committed 
at Firozabad was not granted by the State of M.P. to 
prosecute the applicants for the offence committed within 
the jurisdiction of the Police Station, Dakhin at Firozabad 
(U.P.) as is evident from the Annexure SA-I and SA-II to 
the supplementary affidavit. In the above circumstances, 
it ought not to be proper to allow the proceedings to 
be continued against the applicants and in case, the 
proceeding is allowed to continue against the applicants, 
it would be nothing but misuse of process of law.
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In view of what has been submitted and discussed above, 
the applications have substance and are liable to be 
allowed.
Accordingly, the applications are allowed and the 
proceedings pending before CJM, Firozabad as Case No. 
67 of 2008 (State Vs. Niranjan Kumar Upadhyay) as well 
as Case No. 67A of 2009 (State Vs. Ram Prakash Gunkar 
and others) in connected application arising out of Case 
Crime No. 617 of 2007 under Sections 147, 148, 149, 307, 
302, 201, 120B IPC, P.S. Dakshin, District Firozabad are 
hereby quashed.”
(emphasis supplied)
20.	 In such circumstances referred to above, the appellant (complainant) 
is here before this Court with the present appeal. 
B.	
SUBMISSIONS ON BEHALF OF THE APPELLANT 
21.	 Mr. Ravindra Singh, the learned senior counsel appearing for the 
appellant submitted that the plea of Alibi which was taken by the 
accused Ashok Dixit on the ground that his arrest in connection 
with the offence under Section 34 of the Excise Act was effected on 
12.10.2007, at 09:30 am, by the officials of the Murar Police Station, 
Gwalior, Madhya Pradesh, has been appropriately considered by 
the Trial Court at Firozabad in Sessions Trial No. 753 and 753A of 
2008. However, the said plea of alibi was outrightly rejected by the 
Trial Court by way of its well-reasoned judgment. The Trial Court 
categorically observed that the accused Ashok Dixit in connivance 
with the police officials of the Murar Police Station,
Gwalior had 
managed to get a false case registered under Case Crime No. 967 
of 2007 related to Section 34 of the Excise Act. The Trial Court 
had further observed that during the investigation, the presence 
and arrest of Ashok Dixit in Murar, Gwalior was found to be false & 
bogus and therefore, charge sheet came to be filed against those 
police officials for acting in collusion with Ashok Dixit. Furthermore, 
those police officials have also been suspended and a departmental 
enquiry has been initiated against them. Therefore, it was submitted 
that the respondent no. 1 cannot assert that he has been erroneously 
implicated in Case Crime No. 617 of 2007 registered for the offence
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791
Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with 
the Dakshin Police Station, Firozabad, Uttar Pradesh. 
22.	 The counsel submitted that the High Court fell in serious error while 
passing the impugned order. The High Court could be said to have 
travelled beyond its jurisdiction by quashing the criminal proceedings 
against the respondents on the ground that the Trial Court has already 
decided the case against Ashok Dixit and the other accused. The 
Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively 
arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty 
of the offence of murder of the appellant’s brother. 
23.	 The counsel submitted that the High Court erroneously quashed the 
criminal proceedings against the respondents saying that the accused 
respondents being public servants, the sanction to prosecute for the 
alleged offence is a must. It was submitted that the act of hatching a 
conspiracy to commit murder and creating a plea of alibi by instituting 
a false case, cannot be said to be done in the exercise of discharge 
of official duty. It was further submitted that no sanction is required 
under Section 197 CrPC to prosecute an erring Government official/
respondent no.1 herein for the reason that the respondent no. 1 
was not posted at the Murar Police Station, Gwalior where the Case 
Crime No. 967 of 2007 was registered. 
24.	 It was also
submitted that the respondent no. 1 had managed with 
the police officials of the Murar Police Station, Gwalior, to get a false 
FIR being Case Crime No. 967 of 2007 registered under Section 34 
of the Excise Act and thereby falsely showed the presence of Ashok 
Dixit at Murar, Gwalior on 12.10.2007 at 09:30 am i.e., on the same 
day on which the Case Crime No. 617 of 2007 was registered at 
the Dakshin Police Station, Firozabad in respect of the murder of 
the appellant’s brother. Furthermore, the respondent no. 1 had also 
influenced the other respondents to release a person under the 
Excise Act from the Thatipur Chowki of the Murar Police Station 
without producing the said person before the concerned court, in 
order to save Ashok Dixit. 
25.	 The learned counsel relied upon the Police statements of Ramesh 
Yadav and Barelal dated 25.10.2008. They as independent witnesses 
have categorically stated that while they were at Thatipur, Gwalior, 
“Niranjan Upadhyay came out from car along with other person and 
said that Ashok Dixit you do not worry, I will protect you from murder
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case but you follow me and starts roaming in Thatipur, Gwalior 
along with 10-12 cartons of whisky….”. The same makes it clear 
that the respondent no. 1 was also actively involved in the lodging 
of a false FIR.
26.	 In such circumstances referred to above, the learned counsel 
submitted that there being merit in his appeal, the same may be 
allowed and the impugned order passed by the High Court be set 
aside.
C.	
SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1
27.	 Mr. R. Basant, the learned senior counsel appearing for the respondent 
no. 1 submitted that there is nothing to indicate that the respondent 
no. 1 was directly or indirectly responsible for the registration of Case 
Crime No. 967 of 2007 in any manner, since he was neither posted at 
the Murar Police Station nor he had instructed any of the concerned 
officials to register such an FIR. In fact, the respondent no. 1 was 
posted at District Shivpuri which is 120 kms away from Gwalior at 
the time of filing the Case Crime No. 967 of 2007 on 12.10.2007. 
28.	 The counsel submitted that the respondent no. 1 had neither filed 
the FIR in Case Crime No. 967 of 2007 at the Murar Police Station, 
Gwalior nor was he associated with the said police station in any 
manner. However, assuming without conceding that the said FIR was 
registered at the behest of respondent no. 1, sanction for prosecution 
with respect to Case Crime No. 617 of 2007 is required. It is an 
admitted fact
that sanction was refused by the D.I.G., Gwalior vide 
its letter dated 02.08.2008. 
29.	 The counsel further submitted that there are bleak chances of 
conviction of the respondent no. 1 for the following reasons – (a) the 
respondent no. 1 was not posted at the Murar Police Station, Gwalior 
where the Case Crime No. 967 of 2007 was registered, (b) the 
respondent no. 1 is 72 years old and no purpose would be served 
if the respondent no. 1 was made to face trial at this stage when 
the Case Crime No. 617 of 2007 was admittedly filed in the 2007, 
(c) the Trial Court has already convicted all the accused including 
Ashok Dixit by way of its judgment in 10.07.2015, (d) respondent 
no. 1 has retired from Police service in 2015 and 9 years have 
passed since then, (e) No departmental inquiry was initiated against 
respondent no. 1 for the alleged act of registration of Case Crime
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
No. 967 of 2007 at the Murar Police Station, Gwalior, and (f) there 
is nothing to indicate that the respondent no. 1 is related to the 
accused Ashok Dixit. 
30.	 The counsel submitted that the charge sheet should be read as a 
whole and there exists no circumstance or evidence to warrant any 
assumption of involvement of respondent no. 1 in connection with 
Case Crime No. 617 of 2007 for the alleged offence of conspiracy 
to commit murder. This is so because there are only two statements 
of witnesses recorded under Section 161 CrPC and such statements 
were recorded after a period of one year i.e., on 25.10.2008 from 
the date of registration of case Crime No. 617 of 2007 i.e., on 
12.10.2007. These two statements are the sole basis for instituting 
a prosecution against the respondent ro. 1. Furthermore, the said 
witnesses were not examined in the trial whereby the 12 accused 
including Ashok Dixit stood convicted vide order dated 10.07.2015. 
31.	 It was also submitted that there is a material contradiction in the 
case of the prosecution. The statements of the two witnesses i.e., 
Ramesh and Barelal suggest that the respondent no. 1 was seen 
with Ashok Dixit in Gwalior since they had verbatim deposed that 
they had heard respondent no. 1 telling Ashok Dixit that they would 
create a false plea of alibi. However, the eyewitnesses have all 
deposed that Ashok Dixit was present at the place of the
incident 
in Firozabad where the firing had occurred. These two contradictory 
statements confirm the presence of Ashok Dixit in Firozabad and 
also in Gwalior and are therefore, ex-facie derogatory to each other. 
32.	 The counsel submitted that Section 201 CrPC would not apply to 
the instant facts and circumstances. There is no allegation that the 
respondent no. 1 had conspired with the other co-accused persons 
for the offence of murder and the only allegation that surfaces 
from the charge sheet is that a false alibi was provided in order 
to shield Ashok Dixit by registering an FIR under the Excise Act 
in Gwalior. The said alleged act was made after the commission 
of the offence of murder and there is nothing on record to even 
remotely suggest that the respondent no. 1 had knowledge about 
the incident of murder. 
33.	 In light of the above, the counsel submitted that the impugned 
Judgment and Order of the High Court quashing the criminal 
proceedings against the respondent no. 1 may not be interfered with.
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D.	
SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS. 
3, 4 AND 5.
34.	 Ms. Nanita Sharma, the learned counsel appearing for the respondent 
nos. 3, 4, and 5 respectively submitted that the Uttar Pradesh police 
was bent upon falsely implicating her clients for the offence under 
Sections 302 and 120-B IPC. This is evident from the following – 
(a) he statements of Ramesh Yadav and Barelal were recorded under 
Section 161 CrPC after a gap of one year from the date of the offence 
committed at Firozabad i.e., 12.10.2007, (b) the address of Barelal 
as recorded by the IO while recording his statement under Section 
161 CrPC was found to be incorrect and as per the information of 
the Sarpanch, no person with the name of Barelal had ever lived at 
the said address. The permanent address of the witness Barelal was 
not in existence even as per the certificate given by the Parshad of 
the area on 28.12.2008, (c) Ramesh Yadav had also never lived at 
the address which was given by him to the IO during his statement 
recorded under Section 161 CrPC and the same was clear from 
the certificate issued by the Sarpanch of Bada Gaon, Murar Police 
Station, Gwalior. 
35.	 The counsel also submitted that the respondent nos. 3, 4 and 5 
respectively had never been named in the FIR registered in Case 
Crime No. 617 of 2007 nor their names were ever disclosed by 
any of the witnesses whose statements had been recorded by the 
IO under Section 161 CrPC
after the commission of the offence at 
Firozabad. It was never pointed out that there was any conspiracy 
between the respondents and the main accused, Ashok Dixit. It was 
submitted that the respondent nos. 3, 4 and 5 respectively or their 
family members are neither relatives nor known to the accused, 
Ashok Dixit, in any manner. 
36.	 The counsel submitted that the IO at Firozabad has falsely implicated 
the respondent nos. 3, 4 and 5 respectively in the murder case 
which occurred at Firozabad even though they had no role to play 
in the case. They have been implicated only because of the rivalry 
between the two police establishments and the refusal of the D.I.G., 
Gwalior to grant sanction to prosecute them. It was submitted that 
the respondents had only performed their duty without suspecting 
any kind of manipulation in both the arrest and release of Ashok Dixit 
because they were merely following the instructions of their superior 
officer i.e., the T.I. (SHO), D.S. Khushawa of the Murar Police Station.
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
37.	 The counsel in the last submitted that the High Court was justified 
in quashing the criminal proceedings against the respondent nos. 
3, 4 and 5 for want of sanction. 
E.	
ISSUE(S) FOR DETERMINATION 
38.	 Having heard the learned counsel appearing for the parties and 
having gone through the materials on record, the only issue that 
falls for our consideration is: 
a.	
Whether the CJM, Firozabad could have taken cognizance 
of the Charge Sheet No. 3A of 2008 and Charge Sheet No. 
30 of 2009 respectively against the respondent nos. 1, 3, 4 
and 5 respectively, in the absence of the grant of sanction for 
prosecution under Section 197 CrPC? In other words, whether 
the offence or the act alleged to have been committed by the 
respondent nos. 1, 3, 4 and 5 respectively could be said to have 
been done “while acting or purporting to act in the discharge 
of official duty”? 
F.	
ANALYSIS 
39.	 Section 197 CrPC reads 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 save as otherwise provided in the 
Lokpal and
Lokayuktas Act, 2013 (1 of 2014)— 
(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:
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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 (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.
Explanation. — For the removal of doubts it is hereby 
declared that no sanction shall be required in case of a 
public servant accused of any offence alleged to have been 
committed under section 166A, section 166B, section 354, 
section 354A, section 354B, section 354C, section 
354D, section 370, section 375, 3 [section 376A, section 
376AB, section 376C, section 376D, section  376DA, 
section 376DB] or section 509 of the Indian Penal Code 
(45 of 1860).
(2) No Court shall take cognizance of any offence alleged 
to have been committed by any member of the Armed 
Forces of the Union while acting or purporting to act in 
the discharge of his official duty, except with the previous 
sanction of the Central Government. 
(3) The State Government may, by notification, direct 
that the provisions of sub-section (2) shall apply to such 
class or category of the members of the Forces charged 
with the maintenance of public order as may be specified 
therein, wherever they may be serving, and thereupon 
the provisions of that sub-section will apply as if for the 
expression “Central
Government” occurring therein, the 
expression “State Government” were substituted. 
(3A) Notwithstanding anything contained in sub-section (3), 
no court shall take cognizance of any offence, alleged 
to have been committed by any member of the Forces 
charged with the maintenance of public order in a State 
while acting or purporting to act in the discharge of his 
official duty during the period while a Proclamation issued 
under clause (1) of article 356 of the Constitution was in 
force therein, except with the previous sanction of the 
Central Government.
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
(3B) Notwithstanding anything to the contrary contained 
in this Code or any other law, it is hereby declared that 
any sanction accorded by the State Government or any 
cognizance taken by a court upon such sanction, during 
the period commencing on the 20th day of August, 1991 
and ending with the date immediately preceding the date 
on which the Code of Criminal Procedure (Amendment) 
Act, 1991 (43 of 1991), receives the assent of the President, 
with respect to an offence alleged to have been committed 
during the period while a Proclamation issued under 
clause (1) of article 356 of the Constitution was in force 
in the State, shall be invalid and it shall be competent for 
the Central Government in such matter to accord sanction 
and for the court to take cognizance thereon.
(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.”
40.	 The 41st Report of the Law Commission of India contextualizes the 
object behind the enactment of Section 197 CrPC by pointing out 
that it enables the more important categories of public servants, 
performing onerous and responsible functions, to act fearlessly by 
protecting them from false, vexatious or mala
fide prosecutions. 
Under the erstwhile Code of Criminal Procedure, 1898, the ambit of 
the Section was considered a bit too wide since it read – “is accused 
as such Judge or public servant of any offence”. However, to offer 
more precision, the Amending Act of 1923 inserted the phrase – “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”. The 
same has been retained in the statute books till today despite the 
provision undergoing several amendments over the period of time. 
41.	 As rightly acknowledged by the Law Commission, the meaning 
of the word “acting or purporting to act” in Section 197 CrPC has 
been well settled by a legion of decisions of the Federal Court, the 
Privy Council and the Supreme Court and any difficulty that may be 
felt lies only in the actual application of the principles laid down in
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these decisions to the facts and circumstances of a particular case. 
In other words, the question whether a particular act is done by a 
public servant in the discharge of his official duty is substantially 
one of fact, which is to be determined in the unique circumstances 
of each case. 
42.	 The applicability of Section 197 CrPC has been the subject of judicial 
interpretation in several cases. One of the first and foremost case 
laws which examined the pith of the expression “any act done or 
purporting to be done” was the Federal Court decision in Dr. Hori Ram 
Singh v. The Crown reported in AIR 1939 FC 43. Their Lordships 
were called upon to consider the applicability of Section 270 of the 
Government of India Act, 1935 which albeit not identical, but was 
similar to Section 197 CrPC. The Court held that while the offence 
under Section 409 IPC as regards the criminal breach of trust by 
a public servant would not require consent from the Governor for it 
cannot be done or purported to be done in the execution of his duty, 
yet the offence under Section 477A IPC as regards the falsification of 
accounts would require the Governor’s consent. The words “purported 
to be done” was interpreted as follows: 
“Extent of the Protection. Obviously, the section does not 
mean that the very act which is the gravamen of the charge 
and constitutes the offence should be the official duty of 
the servant of the Crown. Such an
interpretation would 
involve a contradiction in terms, because an offence can 
never be an official duty. The words as used in the section 
are not “in respect of any official duty” but “in respect of 
any act done or purporting to be done in the execution of 
his duty.” The two expressions are obviously not identical. 
The offence should have been committed when an act is 
done in the execution of duty or when an act purports to 
be done in the execution of the duty. The reference as 
obviously to an offence committed in the course of an 
action, which is taken or purports to be taken in compliance 
with an official duty, and is in fact connected with it. The 
test appears to be not that the offence is capable of being 
committed only by a public servant and not by anyone 
else, but that it is committed by a public servant in an act 
done or purporting to be done in the execution of his duty. 
The section cannot be confined to only such acts as are
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
done by a public servant directly in pursuance of his public 
office, though in excess of the duty or under a mistaken 
belief as to the existence of such duty. Nor is it necessary 
to go to the length of saying that the act constituting the 
offence should be so inseparably connected with the official 
duty as to form part and parcel of the same transaction. 
If the act complained of is an offence, it must necessarily 
be not an execution of duty, but a dereliction of it. What 
is necessary is that the offence must be in respect of an 
act done or purported to be done in execution of duty, 
that is in the discharge of an official duty. It must purport 
to be done in the official capacity with which he pretends 
to be clothed at the time, that is to say under the cloak of 
an ostensibly official act, though, of course, the offence 
would really amount to a breach of duty. An act cannot 
purport to be done in execution of duty unless the offender 
professes to be acting in pursuance of his official duty and 
means to convey to the mind of another the impression 
that he is so acting.
The section is not intended to apply to acts done purely in 
a private capacity by a public servant. It must have been 
ostensibly done by him in his official capacity in execution 
of his duty, which would not necessarily be the case 
merely because it was done at a time when he held such 
office, nor even necessarily
because he was engaged in 
his official business at the time. For instance, if a public 
servant accepts as a reward a bribe in his office while 
actually engaged in some official work, he is not accepting 
it even in his official capacity, much less in the execution 
of any official duty, although it is quite certain that he could 
never have been able to take the bribe unless he were 
the official in charge of some official work. He does not 
even pretend to the person who offers the bribe that he 
is acting in the discharge of his official duty, but merely 
uses his official position to obtain the illegal gratification.”
(emphasis supplied)
43.	 His Lordship, Sulaiman, J, clarified that it is not imperative for the 
very act which is at the center of the charge to be the official duty of
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the public servant. This would lead to the inference that an offence 
can never be part of one’s official duty and defeat the very intent 
behind the enactment of the provision. Instead, the essence of the 
provision was that the offence must be in respect of an act done or 
purported to be done in the execution of duty i.e., in the discharge 
of an official duty. Although the offence would really amount to a 
breach of duty, it must purport to be done in the official capacity with 
which the official pretended to be clothed at the time. However, it 
was made clear that the provision must not be applied to acts done 
purely in a private capacity by a public servant but only to those 
acts ostensibly done by him in his official capacity and in execution 
of his duty. Therefore, merely because the act was committed at a 
time when he held such office or when he was engaged in his official 
business would not make the section automatically applicable. 
44.	 His Lordship, Varadachariar, J, in his concurring opinion, expressed 
that the question of whether or not the act complained of is one 
“purporting to be done in execution of his duty” as a public servant 
is substantially one of fact which is to be determined with reference 
to the act complained of along with the attendant circumstances. It 
would not be wise nor desirable to lay down any hard and fast tests 
in this regard. 
45.	 The Judicial Committee of the Privy Council in
Gill and Another 
v. The King reported in AIR 1948 PC 128 was faced with deciding 
whether sanction was required under Section 197 CrPC for the 
prosecution of a public servant charged with the offence of bribery 
and/or conspiracy to take bribes. The Court was of the opinion that 
it was impossible to distinguish or differentiate between S. 270 of the 
Government of India Act, 1935 and S. 197 CrPC, at least in relation 
to offences of this character. Therefore, the decision in Dr. Hori Ram 
Singh (supra) would be of great assistance in cases pertaining to S. 
197 as well. It was observed that a public servant can only be said 
to act or purport to act in the discharge of his official duty, if his act 
is as such as to lie within the scope of his official duty. Therefore, 
the test may well be whether the public servant, if challenged, can 
reasonably claim that, what he does, he does in virtue of his office. 
The relevant observations are reproduced hereinbelow: 
“A public servant can only be said to act or to purport to 
act in the discharge of his official duty, if his act is such
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
as to lie within the scope of his official duty. Thus, a judge 
neither acts nor purports to act as a judge in receiving 
a bribe, though the judgment which he delivers may be 
such an act: nor does a Government medical officer act or 
purport to act as a public servant in picking the pocket of 
a patient whom he is examining, though the examination 
itself may be such an act. The test may well be whether 
the public servant, if challenged, can reasonably claim 
that, what he does, he does in virtue of his office” Applying 
such a test to the present case, it seems clear that Gill 
could not justify the acts in respect of which he was 
charged as acts done by him by virtue of the office that 
he held. Without further examination of the authorities their 
Lordships, finding themselves in general agreement with 
the opinion of the Federal Court in the case cited, think 
it sufficient to say that in their opinion no sanction under 
s. 197 of the Code of Criminal Procedure was needed.”
(emphasis supplied)
46.	 In Albert West Meads v. The King reported in AIR 1948 PC 156, 
the Privy Council echoed the view taken in Gill (supra) and held that 
the appellant in that case could not justify that the act of fraudulently 
misapplying money entrusted to his care as a public servant was an 
act done by him by virtue of his office.
47.	 In Shreekantiah Ramayya Munipalli v. State of Bombay reported 
in (1954) 2 SCC
992, this Court stressed that each case must be 
decided in its own facts. Herein, the Bench opined that Section 197 
CrPC can never be applied if it is construed too narrowly since it is 
no part of an official’s duty to commit an offence and the language 
of the provision must be given its true meaning. However, it is not 
the duty but the act which has to be examined because an official 
act can be performed in the discharge of official duty as well as in 
the dereliction of it. The relevant observations are as follows: 
“14. Now it is obvious that if Section 197 of the Criminal 
Procedure Code is construed too narrowly it can never 
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
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an official act can be performed in the discharge of official 
duty as well as in dereliction of it. The section has content 
and its language must be given meaning. …”
(emphasis supplied)
48.	 In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309, 
the appellant was charged under Section 465 IPC for forging the 
thumb-impression of an individual and under Section 409 IPC for 
the criminal misappropriation of a certain sum. The Court opined 
that if the act complained of is directly concerned with the official 
duty of the public servant so that, if questioned, it could be claimed 
to have been done by virtue of the office, then sanction would be 
necessary. This would be 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 investigated 
at trial and not be examined at the stage of granting sanction for 
prosecution. Therefore, the test as to whether sanction is necessary 
to prosecute a public servant will depend on whether the acts 
complained of are so integrally connected with his duties as a public 
servant. If they do, then sanction is a requisite and there cannot 
be any uniform rule that an offence of criminal misappropriation 
or criminal breach of trust would always be outside the scope 
of Section 197 CrPC. The relevant observations are reproduced 
hereinbelow: 
“7. The result of the authorities may thus be
summed up : 
It is not every offence committed by a public servant that 
requires sanction for prosecution under Section 197(1) of 
the Code of Criminal Procedure; nor even every 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 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 
investigated at the trial, and could not arise at the stage 
of the grant of sanction, which must precede the institution 
of the prosecution.
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8. …In our judgment, even when the charge is one of 
misappropriation by a public servant, whether sanction is 
required under Section 197(1) will depend upon the facts 
of each case. If the acts complained of are so integrally 
connected with the duties attaching to the office as to 
be inseparable from them, then sanction under Section 
197(1) would be necessary; but if there was no necessary 
connection between them and the performance of those 
duties, the official status furnishing only the occasion or 
opportunity for the acts, then no sanction would be required.
xxx
xxx
xxx
11. …The result then is that whether sanction is necessary 
to prosecute a public servant on a charge of criminal 
misappropriation, will depend on whether the acts 
complained of hinge on his duties as a public servant. If they 
do, then sanction is requisite. But if they are unconnected 
with such duties, then no sanction is necessary.
(emphasis supplied)
49.	 A five-Judge Bench of this Court in Matajog Dobey v. H.C. Bhari 
reported in AIR 1956 SC 44 acknowledged that slightly differing tests 
had been laid down under Section 197 CrPC but the difference in 
those tests were only in language and not in substance. The Court 
laid down a more refined test that there must be a reasonable 
connection between the act done and the discharge of the official 
duty and 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 did it in the course of the performance of his duty. Therefore, 
what one must ascertain is whether the act and the official duty 
are so interrelated such that it can be reasonably postulated that it 
was done in the performance of the official duty, though possibly in 
excess of the needs and requirements of the situation. The relevant 
observations are as follows: 
“17. Slightly differing tests have been laid down in the 
decided cases to ascertain the scope and the 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
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duty”. But the difference is only in language and not in 
substance. 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 197, unless the act 
complained of is an offence; the only point to determine 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 if the 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 we must 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 the official duty, though possibly in 
excess of the needs and requirements of the situation. …
xxx
xxx
xxx
19. The result of the foregoing discussion is this : 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 did it in the course 
of the performance of his duty.”
(emphasis supplied)
50.	 Furthermore, in Dhannjay Ram Sharma v. M.S. Uppadaya and 
Others reported in AIR 1960 SC 745, it was clarified that the 
mere fact that an
opportunity to commit an offence is furnished by 
the official duty is not such a connection of the offence with the 
performance of such duty, so as to justify even remotely the view 
that the acts complained of are within the scope of the application 
of Section 197 CrPC. 
51.	 This Court in P. Arulswami v. State reported in (1967) 1 SCR 201 
was also concerned with an offence under Section 409 IPC and it 
was opined that the act must be directly concerned and connected 
with the official duties of the public servant such that it could be 
claimed to have been done by virtue of his office. Furthermore, it is 
the “quality” of the act that must be emphasized on. The act must
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not be totally unconnected with the official duty. Only if it falls either 
within the scope and range of the official duties, or is in excess of 
it, then Section 197 CrPC would stand attracted. The Court had 
stated as thus: 
“…It is not therefore every offence committed by a public 
servant that requires sanction for prosecution under s. 
197(1) of the Criminal Procedure Code; nor even every 
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 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 s. 197 of the Criminal Procedure Code 
will be attracted. An offence may be entirely unconnected 
with the official duty as such or it may be committed within 
the scope of 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…”
(emphasis supplied)
52.	 In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3 
SCC 89 the appellants were alleged to have entered into a criminal 
conspiracy for committing the offences of
criminal breach of trust 
and cheating in respect of a large amount of government money 
earmarked for a development project. The Court opined that sanction 
under Section 197 CrPC would not be necessary since it is no part 
of the duty of a public servant while discharging his official duties, to 
enter into a criminal conspiracy or to indulge in criminal misconduct 
and observed as thus: 
“66. The next point was with regard to consent or sanction. 
There is no doubt that in respect of B.P. Sinha consent 
was properly given by the Deputy Commissioner. So 
consent was also given in respect of N.K. Banerjee and 
Harihar Prasad by the Chief Secretary. This is not a case 
of sanction or consent under Section 196-A of the Code
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of Criminal Procedure. On the question of the applicability 
of Section 197 of the Code of Criminal Procedure, the 
principle laid down in two cases, namely, Shreekantiah 
Ramayya Munipalli v. State of Bombay [AIR 1955 SC 
287] and Amrik Singh v. State of Pepsu [AIR 1955 SC 
309] was as follows:
“It is not every offence committed by a public 
servant that requires sanction for prosecution 
under Section 197(1) of the Criminal Procedure 
Code; nor even every 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 necessary.”
The real question therefore is whether the acts complained 
of in the present case were directly concerned with the 
official duties of the three public servants. As far as the 
offence of criminal conspiracy punishable under Section 
120-B, read with Section 409 of the Penal Code, 1860 
is concerned and also Section 5(2) of the Prevention of 
Corruption Act, are concerned they cannot be said to be 
of the nature mentioned in Section 197 of the Code of 
Criminal Procedure. To put it shortly, it is no part of the 
duty of a public servant, while discharging his official 
duties, to enter into a criminal conspiracy or to indulge in 
criminal misconduct. Want of sanction under Section 197 
of
the Code of Criminal Procedure is, therefore, no bar.”
(emphasis supplied)
53.	 In B. Saha and Others v. M.S. Kochar reported in (1979) 4 SCC 
177, the appellants were charged for the offences under Sections 
409 and 120-B IPC. The Court opined that while it is not an invariable 
proposition of law that the act of criminal misappropriation or 
conversion cannot be inseparably intertwined with the performance 
of the official duty, yet in the facts of the present case, the alleged 
act of criminal misappropriation could not reasonably be said to be 
imbued with the color of office or having a direct connection with
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
the duties of the appellants as public servants. Therefore, sanction 
was not considered necessary. While observing so, the Court stated 
that the expression “any offence alleged to have been committed by 
him while acting or purporting to act in the discharge of his official 
duty” must neither be construed narrowly nor widely and the right 
approach would be to arrive at a balance between the two extremes. 
Therefore, the sine qua non for the applicability of this section is 
that the offence charged, be it one of commission or omission, must 
be committed by the public servant either in his official capacity or 
under the color of the office held by him such that there is a direct 
or reasonable connection between the act and the official duty. The 
relevant observations are as thus: 
“17.  The words “any offence alleged to have been 
committed by him while acting or purporting to act in the 
discharge of his official duty” employed in Section 197(1) 
of the Code, are capable of a narrow as well as a wide 
interpretation. If these words are 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”. In the wider sense, these words 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 purports to be
performed. The right 
approach to the import of these words 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 of Section 197(1), an act constituting an 
offence,  directly and reasonably  connected with his 
official duty will require sanction for prosecution under 
the said provision. As pointed out by Ramaswami, J., 
in Baijnath v. State of M.P. [AIR 1966 SC 220, 227 : (1966) 
1 SCR 210 : 1966 Cri LJ 179] , “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.”
18. In sum, the sine qua non for the applicability of this 
section is that the offence charged, be it one of commission 
or omission, must be one which has been committed by
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the public servant either in his official capacity or under 
colour of the office held by him.”
(emphasis supplied)
54.	 This Court in State of Maharashtra v. Dr. Budhikota Subbarao 
reported in (1993) 3 SCC 339 elaborated on how the balance 
between a narrow and wide construction of Section 197 CrPC can 
be maintained. The Court opined that the section must be construed 
strictly while determining its applicability to any act or omission in the 
course of service and its operation has to be limited only to those 
acts which are discharged in the “course of duty”. However, once 
any act or omission has been found to have been committed by a 
public servant in the discharge of his duty then a liberal and wide 
construction can be given to the particular act, so far as its official 
nature is concerned. For instance, a public servant is not entitled to 
indulge in criminal activities in the discharge of his duty and to that 
extent, the section must be construed narrowly and in a restricted 
manner. However, once it is established that the act or omission was 
done by the public servant while discharging his duty, then the scope 
of it being “official” should be interpreted such that the objective of 
the section is advanced in favor of the public servant. 
55.	 In R. Balakrishna Pillai v. State of Kerala and Another reported 
in (1996) 1 SCC 478, the appellant who was the then Minister for 
Electricity for the State of Kerala was
alleged to have entered into 
a criminal conspiracy to sell electricity to an industry in the State 
of Karnataka without the consent of the Government of Kerala. 
The Court stressed that the quality of the act must be looked into 
and there can be no general proposition that whenever there is a 
charge of criminal conspiracy levelled against a public servant, the 
protection under Section 197 CrPC would have no application. The 
question of whether the act complained of had a direct nexus with 
the discharge of official duties would depend on the facts of each 
case and it was stated as thus: 
“6. …The question 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
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
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 question would have to be examined in the 
facts of each case. …” 
(emphasis supplied)
56.	 In Shambhoo Nath Misra v. State of U.P. and Others reported 
in (1997) 5 SCC 326, allegations of fabrication of record and 
misappropriation of public funds were made against the accused 
public servant. The Court while holding that sanction was not 
necessary in the facts of the case re-affirmed that the public servant’s 
act must be in furtherance of the performance of his official duties 
and only if the act or omission is integral to the performance of the 
public duty, he would be entitled to protection under Section 197 
CrPC. While stating so, the Court elaborated on the objective behind 
the enactment of the provision and clarified that the protection of 
sanction is an assurance to an honest and sincere officer so that he 
can perform his public duty honestly and to the best of his ability. 
The threat of prosecution would demoralize them and therefore, the 
requirement of sanction by the competent authority or the appropriate 
Government can serve as a shield only for such honest officers who 
carry out their duty with an aim to further public interest. The Court 
also rightly cautioned that, however, such an
immunity cannot be 
utilized by public servants to camouflage the commission of a crime 
under the supposed color of public office. 
57.	 This Court’s reasoning in State of Orissa and Others v. Ganesh 
Chandra Jew reported in (2004) 8 SCC 40 was further adopted in 
a few other landmark decisions including S.K. Zutshi and Another 
v. Bimal Debnath and Another reported in (2004) 8 SCC 31 and 
K. Kalimuthu v. State reported in (2005) 4 SCC 512. The Court in 
Ganesh Chandra Jew (supra) considered the scope of the expression 
“official duty” and stated that the protective cover of the section must 
not be extended to every act or omission done by a public servant 
in service but be restricted to only those acts or omissions which 
are done by a public servant in the discharge of his “official” duty. 
The scope can be widened further by also extending protection to 
those acts or omissions which are done in the “purported” exercise 
of “official” duty i.e., under the color of office, but not more.
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58.	 Dr. Arijit Pasayat, J, went on to state that the protection given under 
Section 197 CrPC must not be viewed as limitless. This protection 
has certain limits and is available only when the alleged act done 
is reasonably connected with the discharge of his official duty and 
not merely a cloak for doing the objectionable act. However, if the 
public servant acted in excess of his official duty but there exists 
a reasonable connection between the act and the performance of 
his official duty, the excess cannot be a sufficient ground to deprive 
him of the protection under Section 197 CrPC. Therefore, it was re-
iterated that it is the “quality” of the act which is important and such 
an act must fall within the scope and range of the public servant’s 
official duty. While there cannot be any universal rule to determine 
whether there exists a reasonable connection between the act done 
and the official duty, one “safe and sure test” in this regard would be 
to consider if the omission or neglect on part of the public servant to 
commit the act complained of could have made him answerable for a 
charge of dereliction of his official duty. If the answer to this question 
is in the affirmative, the protection under Section 197 CrPC can be 
granted since there was every connection with the act complained of 
and the official duty of the public servant. The relevant observations 
are as follows: 
“7. This protection 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 performance of the official duty, the excess will 
not be a sufficient ground to deprive the public servant of 
the protection. The question is not as to the nature of the 
offence such as whether the alleged offence contained 
an element necessarily dependent upon the offender 
being a public servant, but whether it was committed 
by a public servant acting or purporting to act as such 
in the discharge of his official capacity. Before Section 
197 can be invoked, it must be shown that the official 
concerned was accused of an offence alleged to have 
been committed by him while acting or purporting to act 
in the discharge of his official duties. It is not the duty
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
which requires examination so much as the act, because 
the official act can be performed both in the discharge 
of the official duty as well as in dereliction of it. The act 
must fall within the scope and range of the official duties 
of the public servant concerned. It is the quality of the 
act which is important and the protection of this section 
is available if the act falls within the scope and range 
of his official duty. There cannot be any universal rule 
to determine whether there is a reasonable connection 
between the act done and the official duty, nor is it 
possible to lay down any such rule. One safe and sure 
test in this regard would be to consider if the omission 
or neglect on the part of the public servant to commit the 
act complained of could have made him answerable for 
a charge of dereliction of his official duty. If the answer 
to this question is in the affirmative, it may be said that 
such act was committed by the public servant while acting 
in the discharge of his official duty and there was every 
connection with the act complained of and the official 
duty of the public servant…”
(emphasis supplied)
59.	 In Sankaran Moitra v. Sadhna Das and Another reported in (2006) 
4 SCC 584, the appellant police officer was accused of killing the 
complainant’s husband while carrying out a lathi-charge near the 
polling-booth on an election day. While the Bench in its majority
opinion had held that the appellant was acting in the discharge of 
his official duty, C.K. Thakker, J, in his minority opinion had stated 
that the act complained of had no nexus, reasonable connection or 
relevance to the official act or duty of such public servant and was 
otherwise, illegal, unlawful and high-handed. He went on to state that 
it is not only the “power” but the “duty” of the court to apply its mind 
to the factual situation before it. The Courts must ensure that on the 
one hand, the public servant is protected if the case is covered by 
Section 197 CrPC and on the other hand, that appropriate action 
would be allowed to be taken if the provision is not attracted and the 
accused is trying to take undue advantage of the section under the 
guise of his position as a public servant. The relevant observations 
are as thus:
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“67.  From the aforesaid decisions, in my opinion, the law 
appears to be well settled. The primary object of the legislature 
behind Section 197 of the Code is to protect public officers who 
have acted in discharge of their duties or purported to act in 
discharge of such duties. But, it is equally well settled that the 
act said to have been committed by a public officer must have 
reasonable connection with the duty sought to be discharged 
by such public officer. If the act complained of has no nexus, 
reasonable connection or relevance to the official act or duty 
of such public servant and is otherwise illegal, unlawful or in 
the nature of an offence, he cannot get shelter under Section 
197 of the Code. In other words, protection afforded by the 
said section is qualified and conditional.
68. Mr Tulsi, no doubt, submitted that the appellant was a 
police officer. He was on duty. He had received a message 
about rioting and law and order situation at Beliaghata. He, 
therefore, had gone to the spot pursuant to the said message, 
in police uniform, in police jeep to deal with the situation. All the 
ingredients of Section 197 of the Code were thus satisfied and 
the High Court was wrong in not applying the said provision.
69. I am unable to agree with Mr Tulsi. In my judgment, it 
is precisely in such cases that the Court is called upon to 
consider whether the public servant was acting or purporting 
to act in discharge of
his duty or it was merely a cloak for 
doing illegal act under the excuse of his status as a public 
servant and by taking undue advantage of his position, 
he was committing an offence or an unlawful act. In such 
situations, when the question comes up for consideration 
before a court of law as to the applicability or otherwise 
of Section 197 of the Code, it is not only the  power  but 
the duty of the Court to apply its mind to the fact situation 
before it. It should ensure that on the one hand, the public 
servant is protected if the case is covered by Section 197 of 
the Code and on the other hand, appropriate action would 
be allowed to be taken if the provision is not attracted and 
under the guise of his position as public servant, he is trying 
to take undue advantage.”
(emphasis supplied)
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
60.	 In Choudhury Parveen Sultana v. State of West Bengal and 
Another reported in (2009) 3 SCC 398 the appellant’s husband 
had suffered grievous injury in a shoot-out for which a case was 
registered and police investigation was undertaken. The appellant 
had filed a complaint before the Magistrate that the respondent 
no. 2 (Investigating Officer) and the co-accused visited her house 
under the pretext of conducting an investigation, threatened her 
and her husband to make a tutored statement and had also tried to 
obtain the husband’s signature on a blank paper under threatening 
circumstances. While the Magistrate had taken cognizance, the High 
Court had quashed the proceedings for want of sanction. In such 
circumstances, the following observations were made: 
“18. The direction which had been given by this Court, as far 
back as in 1971 in Bhagwan Prasad Srivastava case [(1970) 
2 SCC 56 : 1970 SCC (Cri) 292 : (1971) 1 SCR 317] holds 
good even today. All acts done by a public servant in the 
purported discharge of his official duties cannot as a matter 
of course be brought under the protective umbrella of Section 
197 CrPC. On the other hand, there can be cases of misuse 
and/or abuse of powers vested in a public servant which 
can never be said to be a part of the official duties required 
to be performed by him. As mentioned in Bhagwan Prasad 
Srivastava case [(1970) 2 SCC 56 : 1970 SCC
(Cri) 292 : 
(1971) 1 SCR 317] the underlying object of Section 197 
CrPC is to enable the authorities to scrutinise the allegations 
made against a public servant to shield him/her against 
frivolous, vexatious or false prosecution initiated with the 
main object of causing embarrassment and harassment 
to the said official. However, as indicated hereinabove, 
if the authority vested in a public servant is misused for 
doing things which are not otherwise permitted under the 
law, such acts cannot claim the protection of Section 197 
CrPC and have to be considered dehors the duties which 
a public servant is required to discharge or perform. Hence, 
in respect of prosecution for such excesses or misuse of 
authority, no protection can be demanded by the public 
servant concerned.
19. In the instant case, certain deeds and acts have been 
attributed to Respondent 2 and another accused, which
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cannot be said to have been part of the official duties 
to be performed by Respondent 2. Hence, in our view, 
Respondent 2 was not entitled to the protection of Section 
197 CrPC in respect of such acts.”
(emphasis supplied)
The Court, while stating that the respondent no. 2 was not entitled 
to the protection under Section 197 CrPC, was of the view that if the 
authority which has been vested in a public servant is misused or 
abused for committing acts which are not otherwise permitted under 
the law, one cannot claim recourse under Section 197 CrPC. In such 
circumstances, the acts committed must be considered dehors the 
duties which a public servant is required to discharge or perform. 
61.	 In Urmila Devi v. Yudhvir Singh reported in (2013) 15 SCC 624, 
a complaint was filed by M alleging that the appellant and R were 
living in an illicit relationship. Therefore, the respondent Sub-Divisional 
Magistrate directed the Tehsildar to enquire into the matter and also 
directed the DSP concerned to conduct a special investigation. It 
was alleged that the respondent had forcibly entered the house of 
the appellant at 10:00 pm with his investigation team, equipped with 
video cameras, to carry out a search of the appellant’s house. It was 
further alleged that R was forced to remove his clothes in front of the 
other officials and that both the appellant and R were taken to a Civil 
Hospital where they were forced to undergo a
medical examination 
against their will. The medical examination of the appellant was also 
alleged to have been conducted by a male doctor. Furthermore, it 
was alleged that when the appellant and R filed a complaint against 
M, the respondent threatened them to withdraw the same. The Court 
stated that none of the acts alleged against the respondent, can 
by any stretch of imagination, be held to have been carried out in 
his capacity as an Executive Magistrate. Hence, the invocation of 
Section 197 CrPC was wholly uncalled for. While emphasizing that 
the test of direct and reasonable connection between the official 
duty of the accused and the acts allegedly committed by him is 
the true test, the Court stressed that public functionaries cannot, 
under the cloak of the purported discharge of official duties, resort 
to the harassment and humiliation of the citizens on the pretext of a 
complaint having been received by them. The relevant observations 
are reproduced hereinbelow:
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
“63. The test of direct and reasonable connection between 
the official duty of the accused and the acts allegedly 
committed by them is, therefore, the true test to be applied 
while deciding whether the protection of Section 197 CrPC 
is available to a public servant accused of the commission 
of an offence. The High Court has not adverted to this test 
nor has it held that there existed a direct and reasonable 
connection between the official duty being discharged by 
the accused public servant and the acts committed by 
him. The High Court has on the contrary misdirected itself 
when it said that the accused had only committed an act 
of omission towards his official duties which entitled him 
to the protection of Section 197 of the Code.
65. It is difficult to appreciate what the High Court meant 
by saying that the acts of the accused were “at best acts 
of omission towards official duty”. It was not the case of 
the respondent before the High Court nor is it his case 
before us that the complaint filed by Maya Devi disclosed 
any offence which could be taken cognizance of by him 
as an Executive Magistrate or investigated by the police. 
Assuming that the complainant and R.C. Chopra were 
living together even when they were not married to each 
other, the complaint regarding any such relationship could 
be filed only by the wife of R.C. Chopra, or the husband 
of the complainant Urmila Devi. The
complaint filed by 
Maya Devi could not provide a valid basis for the SDM, 
the Tahsildar or the Deputy Superintendent of Police 
concerned to barge into the house of the complainant, 
humiliate or harass her or drag her to the police station 
without the registration of any case or subject her to an 
uncalled for medical examination. The test of direct and 
reasonable connection between the official duty of the 
respondent Sub-Divisional Magistrate and the police 
officers concerned and the acts complained of thus fails 
in the present case especially because there is not even 
a semblance of a lawful justification forthcoming from the 
respondent for what he did. Entering the house of a woman, 
after sunset with a posse of police force, carrying video 
cameras conducting an unwarranted search of the house,
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humiliating and invading the privacy of the complainant, 
insulting and humiliating R.C. Chopra by asking him to 
undress and dragging both of them to the police station 
for medical examination against their wishes, especially 
when male doctors were asked to examine the complainant 
which added insult to injury, all remain unsupported by any 
lawful justification and have no connection with the duties 
that were cast upon the respondent as a public servant, 
even if a complaint alleging an adulterous relationship 
between the appellant and R.C. Chopra had been received 
by the SDM. The alleged acts of the respondent cannot, 
therefore, be said to be in discharge of his official duties 
or in the purported discharge of such duties.
66. Public functionaries cannot under the cloak of purported 
discharge of official duties resort to harassment and 
humiliation of the citizens on the pretext of a complaint 
having been received by them, especially when the same 
does not disclose the commission of any offence triable 
by the Executive Magistrate or cognizable by the police; 
nor was there any other proceeding in connection with 
which such conduct could be justified in law. The plea 
of the respondent that the prosecution was barred under 
Section 197 CrPC has, therefore, to be rejected.”
(emphasis supplied)
62.	 In Rajib Ranjan v. R. Vijaykumar reported in (2015) 1 SCC 513, a 
complaint was filed against the appellant public
officials for conspiracy 
to create false documents. This Court had held that even while 
discharging official duties, if a public servant enters into a criminal 
conspiracy or indulges in criminal misconduct, such a misdemeanor 
must not be treated as an act in the discharge of his official duties 
in order to grant protection under Section 197 CrPC and elaborated 
as follows: 
“15. The sanction, however, is necessary if the offence 
alleged against the public servant is committed by him 
“while acting or purporting to act in the discharge of his 
official duties”. In order to find out as to whether the alleged 
offence is committed while acting or purporting to act in
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
the discharge of his official duty, the following yardstick 
is provided by this Court in Budhikota Subbarao [State of 
Maharashtra v. Budhikota Subbarao (1993) 3 SCC 339 : 
1993 SCC (Cri) 901 : (1993) 2 SCR 311] in the following 
words : (SCC p. 347, para 6)
“6. … If on facts, therefore, it is prima facie found that 
the act or omission for which the accused was charged 
had reasonable connection with discharge of his duty 
then it must be held to be official to which applicability 
of Section 197 of the Code cannot be disputed.”
16. This principle was explained in some more detail in 
Raghunath Anant Govilkar v. State of Maharashtra [(2008) 
11 SCC 289 : (2009) 1 SCC (Cri) 130] , which was decided 
by this Court on 8-2-2008 in SLP (Crl.) No. 5453 of 2007, 
in the following manner : (SCC pp. 298-99, para 11)
“11. ‘7. … “66. … On the question of the applicability 
of Section 197 of the Code of Criminal Procedure, the 
principle laid down in two cases, namely, Shreekantiah 
Ramayya Munipalli v. State of Bombay [AIR 1955 SC 
287 : 1955 Cri LJ 857] and Amrik Singh v. State of 
Pepsu [AIR 1955 SC 309 : 1955 Cri LJ 865] was as 
follows : (Amrik Singh case [AIR 1955 SC 309 : 1955 
Cri LJ 865], AIR p. 312, para 8)
‘8. … It is not every offence committed by a public 
servant that requires sanction for prosecution under 
Section 197(1) of the Criminal Procedure Code; 
nor even every 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 necessary….’
The real question therefore, is whether the acts 
complained of in the present case were directly 
concerned with the official duties of the three public 
servants. As far as the offence of criminal conspiracy 
punishable under Section 120-B read with Section 409
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of the Penal Code is concerned and also Section 5(2) 
of the Prevention of Corruption Act, are concerned 
they cannot be said to be of the nature mentioned in 
Section 197 of the Code of Criminal Procedure. To put it 
shortly, it is no part of the duty of a public servant, while 
discharging his official duties, to enter into a criminal 
conspiracy or to indulge in criminal misconduct. Want 
of sanction under Section 197 of the Code of Criminal 
Procedure is, therefore, no bar.” [Ed. : As observed in 
Harihar Prasad v. State of Bihar (1972) 3 SCC 89, 115, 
para 66 : 1972 SCC (Cri) 409.] ‹ [Ed. : Quoted from 
State of Kerala v. V. Padmanabhan Nair (1999) 5 SCC 
690, 692, para 7 : 1999 SCC (Cri) 1031.] ”
17. Likewise, in Shambhoo Nath Misra v. State of U.P. 
[(1997) 5 SCC 326 : 1997 SCC (Cri) 676 : AIR 1997 SC 
2102], the Court dealt with the subject in the following 
manner : (SCC p. 328, para 5)
“5. The question is when the public servant is alleged 
to have committed the offence of fabrication of record 
or misappropriation of public fund, etc. can he be said 
to have acted in discharge of his official duties? It is 
not the official duty of the public servant to fabricate the 
false record and misappropriate the public funds, etc. in 
furtherance of or in the discharge of his official duties. 
The official capacity only enables him to fabricate the 
record or misappropriate the public fund, etc. It does 
not mean that it is
integrally connected or inseparably 
interlinked with the crime committed in the course of 
same transaction, as was believed by the learned Judge. 
Under these circumstances, we are of the opinion that 
the view expressed by the High Court as well as by the 
trial court on the question of sanction is clearly illegal 
and cannot be sustained.”
18. The ratio of the aforesaid cases, which is clearly 
discernible, is that even while discharging his official 
duties, if a public servant enters into a criminal conspiracy 
or indulges in criminal misconduct, such misdemeanour 
on his part is not to be treated as an act in discharge of
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
his official duties and, therefore, provisions of Section 197 
of the Code will not be attracted. In fact, the High Court 
has dismissed the petitions filed by the appellant precisely 
with these observations, namely, the allegations pertain to 
fabricating the false records which cannot be treated as 
part of the appellants’ normal official duties. The High Court 
has, thus, correctly spelt out the proposition of law. The 
only question is as to whether on the facts of the present 
case, the same has been correctly applied.”
(emphasis supplied)
63.	 The purpose behind the enactment of Section 197 CrPC must not be 
to shield corrupt officials and this was the position taken in Inspector 
of Police and Another v. Battenapatla Venkata Ratnam and 
Another reported in (2015) 13 SCC 87. Here, the respondents while 
working as Sub-Registrars in various offices of the State of Andhra 
Pradesh had conspired with stamp vendors, document writers and 
other staff to manipulate the registers and had gotten the documents 
registered with the old value of the respective properties, resulting 
in wrongful gain to themselves and loss to the Government. Such 
acts were held to not be in the discharge of their official duty. The 
observations made are reproduced hereinbelow: 
“11. The alleged indulgence of the officers in cheating, 
fabrication of records or misappropriation cannot be said 
to be in discharge of their
official duty. Their official duty 
is not to fabricate records or permit evasion of payment 
of duty and cause loss to the Revenue. Unfortunately, 
the High Court missed these crucial aspects. The learned 
Magistrate has correctly taken the view that if at all the 
said view of sanction is to be considered, it could be done 
at the stage of trial only.”
(emphasis supplied)
64.	 This Court in Surinderjit Singh Mand and Another v. State of 
Punjab and Another reported in (2016) 8 SCC 722 was faced 
with a factual scenario wherein an accused was allegedly arrested 
in a theft case by the appellant police officers on 24.06.1999 but 
was formally and officially shown to have been arrested only on 
28.06.1999. Prosecution was initiated against the appellant officers
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on the basis of an FIR registered at the instance of the mother of 
the accused in relation to the alleged illegal detention of the accused 
for the period from 24.06.1999 to 28.06.1999. While holding that no 
sanction to prosecute was required in the circumstances of an illegal 
detention, this Court observed as thus: 
“23. Having given our thoughtful consideration to the 
contention advanced at the hands of the learned counsel 
for the respondents, we are of the view that the decision 
rendered by this Court in P.P. Unnikrishnan case [P.P. 
Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131 : 2000 
SCC (Cri) 1460] is clear and emphatic. The same does 
not leave any room for making any choice. It is apparent 
that the official arrest of Neeraj Kumar in terms of the 
provisions of the Code, referred to hereinabove, would 
extend during the period from 28-6-1999 to 30-6-1999. 
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 Neeraj Kumar 
was not detained for the period from 24-6-1999 to 28-6-
1999. His detention during the above period, if true, in 
our considered view, would certainly not emerge from the 
action of the accused while acting or purporting to act in 
the discharge of their official duties. If it emerges from the 
evidence adduced before the
trial court that Neeraj Kumar 
was actually detained during the period from 24-6-1999 
to 28-6-1999, 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 Neeraj Kumar in jail during the period from 24-6-
1999 to 28-6-1999. If they had not detained him during 
the above period, it is not open to anyone to assume the 
position that the detention of Neeraj Kumar, during the 
above period, was while acting or purporting to act in the 
discharge of their official duties. Therefore, in the peculiar 
facts and circumstances of this case, based on the legal 
position declared by this Court in P.P. Unnikrishnan case 
[P.P. Unnikrishnan v. Puttiyottil Alikutty (2000) 8 SCC 131 : 
2000 SCC (Cri) 1460] , we are of the considered view that
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
sanction for prosecution of the accused in relation to the 
detention of Neeraj Kumar for the period from 24-6-1999 
to 28-6-1999 would not be required before a court of 
competent jurisdiction takes cognizance with reference to 
the alleged arrest of Neeraj Kumar. We therefore hereby, 
endorse the conclusions drawn by the High Court to the 
above effect.”
(emphasis supplied)
65.	 Thus, the legal position that emerges from a conspectus of all the 
decisions referred to above is that it is not possible to carve out 
one universal rule that can be uniformly applied to the multivarious 
facts and circumstances in the context of which the protection under 
Section 197 CrPC is sought for. Any attempt to lay down such a 
homogenous standard would create unnecessary rigidity as regards 
the scope of application of this provision. In this context, the position 
of law may be summarized as under: - 
(i)	
The object behind the enactment of Section 197 CrPC is 
to protect responsible public servants against institution of 
possibly false or vexatious criminal proceedings for offences 
alleged to have been committed by them while they are acting 
or purporting to act in their official capacity. It is to ensure that 
the public servants are not prosecuted for anything which is 
done by them in the discharge of their official duties, without 
any reasonable cause. The provision is in the form of an 
assurance to the
honest and sincere officers so that they can 
perform their public duties honestly, to the best of their ability 
and in furtherance of public interest, without being demoralized.
(ii)	
The expression “any offence alleged to have been committed by 
him while acting or purporting to act in the discharge of his official 
duty” in Section 197 CrPC must neither be construed narrowly 
nor widely and the correct approach would be to strike a balance 
between the two extremes. The section should be construed 
strictly to the extent that its operation is limited only to those acts 
which are discharged in the “course of duty”. However, once it 
has been ascertained that the act or omission has indeed been 
committed by the public servant in the discharge of his duty, then 
a liberal and wide construction must be given to a particular act 
or omission so far as its “official” nature is concerned.
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(iii)	 It is essential that the Court while considering the question of 
applicability of Section 197 CrPC truly applies its mind to the 
factual situation before it. This must be done in such a manner 
that both the aspects are taken care of viz., on one hand, the 
public servant is protected under Section 197 CrPC if the act 
complained of falls within his official duty and on the other, 
appropriate action be allowed to be taken if the act complained 
of is not done or purported to be done by the public servant in 
the discharge of his official duty. 
(iv)	 A public servant can only be said to act or purport to act in the 
discharge of his official duty, if his act is such that it lies within 
the scope and range of his official duties. The act complained 
of must be integrally connected or directly linked to his duties 
as a public servant for the purpose of affording protection under 
Section 197 CrPC. Hence, it is not the duty which requires an 
examination so much as the “act” itself.
(v)	
One of the foremost tests which was laid down in this regard 
was - whether the public servant, if challenged, can reasonably 
claim that, what he does, he does in virtue of his office.
(vi)	 Later, the test came to be re-modulated. It was laid down that 
there must be a reasonable connection between the act done 
and the discharge of the official duty and the act must bear such 
relation to the duty such that the accused could lay a
reasonable, 
but not a pretended or fanciful claim, that his actions were in the 
course of performance of his duty. Therefore, the sine qua non 
for the applicability of this section is that the offence charged, 
be it one of commission or omission, must be committed by the 
public servant either in his official capacity or under the color of 
the office held by him such that there is a direct or reasonable 
connection between the act and the official duty.
(vii)	 If in performing his official duty, the public servant acts in excess 
of his duty, the excess by itself will not be a sufficient ground 
to deprive the public servant from protection under Section 197 
CrPC if it is found that there existed a reasonable connection 
between the act done and the performance of his official duty. 
(viii)	 It is the “quality” of the act that must be examined and the 
mere fact that an opportunity to commit an offence is furnished
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
by the official position would not be enough to attract Section 
197 CrPC. 
(ix)	 The legislature has thought fit to use two distinct expressions 
“acting” or “purporting to act”. The latter expression means that 
even if the alleged act was done under the color of office, the 
protection under Section 197 CrPC can be given. However, this 
protection must not be excessively stretched and construed as 
being limitless. It must be made available only when the alleged 
act is reasonably connected with the discharge of his official 
duty and not merely a cloak for doing the objectionable act. 
(x)	
There cannot be any universal rule to determine whether there 
is a reasonable connection between the act done and the 
official duty, nor is it possible to lay down such a rule. However, 
a “safe and sure test” would be to consider if the omission 
or neglect on the part of the public servant to commit the act 
complained of would have made him answerable for a charge 
of dereliction of his official duty. If the answer to this question 
is in the affirmative, the protection under Section 197 CrPC 
can be granted since there was every connection with the act 
complained of and the official duty of the public servant.
(xi)	 The provision must not be abused by public servants to 
camouflage the commission of a crime under the supposed 
color of public office. The benefit of the provision must not be 
extended to
public officials who try to take undue advantage 
of their position and misuse the authority vested in them for 
committing acts which are otherwise not permitted in law. In 
such circumstances, the acts committed must be considered 
dehors the duties which a public servant is required to discharge 
or perform. 
(xii)	 On an application of the tests as aforesaid, if on facts, it is prima 
facie found that the act or omission for which the accused has 
been charged has a reasonable connection with the discharge 
of his official duty, the applicability of Section 197 CrPC cannot 
be denied. 
66.	 At the cost of repetition, we say that the position of law on the 
application of Section 197 CrPC is clear – that it must be decided 
based on the peculiar facts and circumstances of each case. This 
Court has held in a legion of decisions that any misuse or abuse of
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powers by a public servant to do something that is impermissible in 
law like threatening to provide a tutored statement or trying to obtain 
signatures on a blank sheet of paper; causing the illegal detention 
of an accused; engaging in a criminal conspiracy to create false or 
fabricated documents; conducting a search with the sole object of 
harassing and threatening individuals, amongst others, cannot fall 
under the protective umbrella of Section 197 CrPC. 
67.	 In light of the same, it follows that when a police official is said to have 
lodged a false case, he cannot claim that sanction for prosecution 
under Section 197 CrPC was required since it can be no part of the 
official duty of a public official to lodge a bogus case and fabricate 
evidence or documents in connection with the same. On examining 
the quality of the act, it is evident that there exists no reasonable 
or rational nexus between such an act and the duties assigned to 
the public servant for the claim that it was done or purported to 
be done in the discharge of his official duty. The mere fact that an 
opportunity to register a false case was furnished by the official 
duty would certainly not be sufficient to apply Section 197 CrPC. 
Allowing so, would enable the accused to use their status as public 
servants as a facade for doing an objectionable, illegal and unlawful 
act and take undue advantage of their position. If the Case Crime 
No. 967 of 2007
registered at the Murar Police Station, Gwalior, by 
respondent nos. 3, 4 and 5 respectively, was a false case, then there 
is no doubt that the refusal to grant sanction would not operate as a 
bar for their prosecution. Moreover, as far as the case of respondent 
no. 1 is concerned, it is an undisputed fact that he was not even 
posted as the S.H.O or T.I at the Murar Police Station when the said 
false case was registered. The same is evident from the affidavit 
submitted by the IO at Firozabad before the High Court. Additionally, 
the respondent no. 1 has himself admitted in his submissions before 
us that he was in fact posted at District Shivpuri which is 120 kms 
away from Gwalior during the relevant time. Therefore, any act or 
offence committed by the respondent no. 1 in the present case can 
safely be said to have been outside the scope of his official duty 
which obviates the question of sanction for his prosecution.
68.	 Having said the above, the question whether sanction is required 
or not is a question that may arise at any stage of the proceeding. 
There might arise situations where the complaint or the police report 
may not disclose that the act constituting the offence was done or
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
purported to be done in the discharge of official duty. However, the 
facts subsequently coming to light may establish the necessity for 
sanction. That the necessity of sanction may also reveal itself in 
the course of the progress of the case as was laid out in Matajog 
(supra) as follows: 
“20. Is the need for sanction to be considered as soon 
as the complaint is lodged and on the allegations therein 
contained? At first sight, it seems as though there is some 
support for this view in Hori Ram case [(1939) FCR 159, 
178] and also in Sarjoo Prasad v. King-Emperor [(1945) FCR 
227]. Sulaiman, J. says that as the prohibition is against the 
institution itself, its applicability must be judged in the first 
instance at the earliest stage of institution. Varadachariar, 
J. also states that the question must be determined with 
reference to the nature of the allegations made against 
the public servant in the criminal proceeding. But a careful 
perusal of the later parts of their judgments shows that they 
did not intend to lay down any such proposition. Sulaiman, 
J. refers (at P-179) to the prosecution case as disclosed 
by the complaint or the police report and he winds up 
the discussion in these words: “Of course, if the case as 
put forward fails or the defence establishes that the act 
purported to be done is in execution of duty, the proceedings 
will have to be dropped and the complaint
dismissed on that 
ground”. The other learned Judge also states at p. 185, “At 
this stage we have only to see whether the case alleged 
against the appellant or sought to be proved against him 
relates to acts done or purporting to be done by him in the 
execution of his duty”. It must be so. The question may 
arise at any stage of the proceedings. The complaint may 
not disclose that the act constituting the offence was done 
or purported to be done in the discharge of official duty; but 
facts subsequently coming to light on a police or judicial 
inquiry or even in the course of the prosecution evidence at 
the trial, may establish the necessity for sanction. Whether 
sanction is necessary or not may have to be determined 
from stage to stage. The necessity may reveal itself in the 
course of the progress of the case.”
(emphasis supplied)
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69.	 In Pukhraj v. State of Rajasthan and Another reported in (1973) 2 
SCC 701, the 2nd respondent was alleged to have abused and kicked 
his clerk who was his subordinate and was charged under Sections 
323 and 504 IPC. The Court opined that such an act cannot be said 
to be in the purported exercise of his duty and held that sanction 
under Section 197 CrPC was not necessary. However, it was also 
observed that the necessity of sanction may reveal itself in the course 
of progress of the case and that it would be open to the accused to 
place materials on record during the trial for showing what his duty 
was and also that the acts complained of were so interrelated to 
his duty that protection under Section 197 CrPC must be granted 
to him. It was observed as follows: 
“3. We must also make it clear that this is not the end 
of the matter. As was pointed out in Sarjoo Prasad v. 
King-Emperor [AIR 1946 FC 25 : 1954 FCR 227 : 47 
Cri LJ 838] referring to the observations of Sulaiman, J. 
in Hori Ram Singh case the mere fact that the accused 
proposes to raise a defence of the act having purported 
to be done in execution of duty would not in itself be 
sufficient to justify the case being thrown out for want 
of sanction. At this stage we have only to see whether 
the acts alleged against the 2nd respondent can be 
said to be in purported execution of his duty. But facts 
subsequently coming to light during the course of the
judicial inquiry or during the course of prosecution 
evidence at the trial may establish the necessity for 
sanction. Whether sanction is necessary or not may 
have to depend from stage to stage. The necessity may 
reveal itself in the course of the progress of the case 
[see observations in Matajog Dobey v. H.C. Bhari]. In 
Bhagwan Prasad Srivastava v. N.P. Misra also it was 
pointed out that it would be open to the appellant (the 
2nd respondent in this case) to place the material on 
record during the course of the trial for showing what 
his duty was and also that the acts complained of were 
so inter-related with his official duty so as to attract the 
protection afforded by Section 197 CrPC.”
(emphasis supplied)
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
70.	 In B. Saha (supra), the Court went on to observe that they have 
no quarrel with the proposition that the question of sanction under 
Section 197 CrPC can be raised and considered at any stage of 
the proceedings. Moreover, it was also stated that in considering the 
question whether or not sanction for prosecution was required, it is 
not necessary for the Court to confine itself to the allegations in the 
complaint, and it can take into account all the material on record 
at the time when the question is raised and falls for consideration. 
Similar to the rationale adopted in B. Saha (supra), this Court in State 
of Bihar v. Kamla Prasad Singh and Others reported in (1998) 5 
SCC 690 also re-affirmed that while determining whether the public 
servant was “acting in the discharge of his official duty”, the Court 
must consider not only the allegations made in the complaint but 
also other materials available on record. 
71.	 In Bakhshish Singh Brar v. Gurmej Kaur and Another reported in 
(1987) 4 SCC 663, the petitioner police officer along with 14 other 
persons was charged under Sections 148, 149, 302, 323 and 325 
IPC for allegedly causing hurt to the complainant and also causing 
the death of her son. This Court had emphasized that a balance 
has to be struck between protecting public servants from being 
harassed in criminal prosecutions and protecting the rights of the 
citizens against
unlawful acts of public servants. This must be done by 
examining as to what extent and how far is a public servant working 
in the discharge or purported discharge of his duties and whether 
the public servant had exceeded his limit. Having said so, it was 
observed that criminal trials must also not be stayed in all cases at 
the preliminary stage because that will cause great damage to the 
evidence. The relevant observations are reproduced hereinbelow: 
“6. In the instant case, it is alleged that grievous injuries 
were inflicted upon the complainant and as a result 
of injuries one of the alleged accused had died. The 
question is while investigating and performing his duties 
as a police officer was it necessary for the petitioner to 
conduct himself in such a manner which would result in 
such consequences. It is necessary to protect the public 
servants in the discharge of their duties. They must be 
made immune from being harassed in criminal proceedings 
and prosecution, that is the rationale behind Section 196 
and Section 197 of the CrPC. But it is equally important to
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emphasise that rights of the citizens should be protected 
and no excesses should be permitted. “Encounter death” 
has become too common. In the facts and circumstance of 
each case protection of public officers and public servants 
functioning in discharge of official duties and protection 
of private citizens have to be balanced by finding out as 
to what extent and how far is a public servant working in 
discharge of his duties or purported discharge of his duties, 
and whether the public servant has exceeded his limit. It 
is true that Section 196 states that no cognizance can be 
taken and even after cognizance having been taken if facts 
come to light that the acts complained of were done in the 
discharge of the official duties then the trial may have to be 
stayed unless sanction is obtained. But at the same time 
it has to be emphasised that criminal trials should not be 
stayed in all cases at the preliminary stage because that 
will cause great damage to the evidence.”
(emphasis supplied)
72.	 This Court in P.K. Pradhan v. State of Sikkim reported in (2001) 6 
SCC 704 re-emphasized that for invoking protection under Section 
197 CrPC, the acts of the accused must be such that it cannot be 
separated from the discharge of the official duty. However, if there 
was no reasonable connection between the act and the performance 
of those duties, and the official status only furnishes the occasion or 
opportunity for the
illegal act, then no sanction would be required. The 
Court acknowledged that the question of sanction can be raised at 
any time after cognizance i.e., maybe immediately after cognizance 
or framing of charge or even at the time of conclusion of trial and 
after conviction as well. However, there may be certain cases where 
it may not be possible to decide the question of sanction effectively 
without giving opportunity to the defence to establish that what he did, 
he did in the discharge of official duty. In such cases, the question 
of sanction must be left open to be decided in the main judgment 
which may be delivered upon conclusion of the trial. The relevant 
observations are as follows: 
“15….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
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
framing of charge or even at the time of conclusion of 
trial and after conviction as well. But there may be certain 
cases where it may not be possible to decide the question 
effectively without giving opportunity to the defence to 
establish that what he did was in discharge of official 
duty. In 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 opportunity 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.
16. In the present case, the accused is claiming that in 
awarding contract in his capacity as Secretary, Department 
of Rural Development, Government of Sikkim, he did not 
abuse his position as a public servant and works were 
awarded in favour of the contractor at a rate permissible 
under law and not low rates. These facts are required to 
be established which can be done at the trial. Therefore, 
it is not possible to grant any relief to the appellant at this 
stage. However, we may observe that during the course 
of trial, the court below shall examine this question afresh 
and deal with the same in the main judgment in the light 
of the law laid down in this
case without being prejudiced 
by any observation in the impugned orders.”
(emphasis supplied)
73.	 This Court in Devinder Singh v. State of Punjab reported in (2016) 
12 SCC 87 had observed that sometimes certain questions about 
the requirement of sanction cannot be decided without evidence 
and questions like the good faith or bad faith of the public servant 
can be decided on the conclusion of trial. The relevant observations 
made are reproduced hereinbelow: 
“39.8. Question of sanction may arise at any stage of 
proceedings. On a police or judicial inquiry or in course 
of evidence during trial. Whether sanction is necessary or 
not may have to be determined from stage to stage and 
material brought on record depending upon facts of each
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case. Question of sanction can be considered at any stage 
of the proceedings. Necessity for sanction may reveal itself 
in the course of the progress of the case and it would be 
open to the accused to place material during the course 
of trial for showing what his duty was. The accused has 
the right to lead evidence in support of his case on merits.
39.9. In some cases, it may not be possible to decide the 
question effectively and finally without giving opportunity 
to the defence to adduce evidence. Question of good faith 
or bad faith may be decided on conclusion of trial.
40. In the instant cases, the allegation as per the prosecution 
case is that it was a case of fake encounter or death caused 
by torture whereas the defence of the accused person is 
that it was a case in discharge of official duty and as the 
deceased was involved in the terrorist activities and while 
maintaining law and order the incident has taken place. 
The incident was in the course of discharge of official 
duty. Considering the aforesaid principles in case the 
version of the prosecution is found to be correct, there 
is no requirement of any sanction. However, it would be 
open to the accused persons to adduce the evidence in 
defence and to submit such other materials on record 
indicating that the incident has taken place in discharge of 
their official duties and the orders passed earlier would not 
come in the way of the trial court to decide
the question 
afresh in the light of the aforesaid principles from stage 
to stage or even at the time of conclusion of the trial at 
the time of judgment. As at this stage it cannot be said 
which version is correct. The trial court has prima facie to 
proceed on the basis of the prosecution version and can 
re-decide the question afresh in case from the evidence 
adduced by the prosecution or by the accused or in any 
other manner it comes to the notice of the court that there 
was a reasonable nexus of the incident with discharge of 
official duty, the court shall re-examine the question of 
sanction and take decision in accordance with law. The 
trial to proceed on the aforesaid basis.”
(emphasis supplied)
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
74.	 The legal position that emerges from the discussion of the aforesaid 
case laws is that: 
(i)	
There might arise situations where the complaint or the police 
report may not disclose that the act constituting the offence was 
done or purported to be done in the discharge of official duty. 
However, the facts subsequently coming to light may establish 
the necessity for sanction. Therefore, the question whether 
sanction is required or not is one that may arise at any stage 
of the proceeding and it may reveal itself in the course of the 
progress of the case. 
(ii)	
There may also be certain cases where it may not be possible 
to effectively decide the question of sanction without giving an 
opportunity to the defence to establish that what the public 
servant did, he did in the discharge of official duty. Therefore, it 
would be open to the accused to place the necessary materials 
on record during the trial to indicate the nature of his duty and 
to show that the acts complained of were so interrelated to 
his duty in order to obtain protection under Section 197 CrPC.
(iii)	 While deciding the issue of sanction, it is not necessary for the 
Court to confine itself to the allegations made in the complaint. 
It can take into account all the material on record available 
at the time when such a question is raised and falls for the 
consideration of the Court.
(iv)	 Courts must avoid the premature
staying or quashing of criminal 
trials at the preliminary stage since such a measure may cause 
great damage to the evidence that may have to be adduced 
before the appropriate trial court.
75.	 In the present case, we are concerned with the allegation of registering 
an FIR i.e., Case Crime No. 967 of 2007 for the offence under 
Section 34 of the Excise Act at the Murar Police Station, Gwalior, 
Madhya Pradesh at the instance of the accused respondents so as 
to facilitate one Ashok Dixit in raising the plea of alibi in Case Crime 
No. 617 of 2007 filed at the Dakshin Police Station, Firozabad, Uttar 
Pradesh for the murder of the appellant’s brother. The appellant’s 
brother was shot dead at 08:30 am on 12.10.2007 in Firozabad, Uttar 
Pradesh and the arrest of the accused Ashok Dixit for the offence 
under the Excise Act is said to have been made at 09:30 am on the
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very same day in Gwalior, Madhya Pradesh. Evidently the accused in 
both the cases i.e., Ashok Dixit could not have been simultaneously 
present at both the places on the same day, especially when the 
distance between the two locations is 160 Kms and such a distance 
cannot be covered by road in one hour. This is precisely the reason 
why the appellant asserts that the case registered at Gwalior is false 
or in other words concocted. 
76.	 It is relevant to note that the Trial Court vide its order dated 10.07.2015 
held the accused, Ashok Dixit along with 11 others guilty of murder of 
the appellant’s brother. In doing so, the Trial Court had made some 
pertinent observations regarding the registration of the case under the 
Excise Act by the accused respondents. The Trial Court had arrived 
at a categorical finding that the second FIR was registered as a result 
of collusion by the present accused respondents with Ashok Dixit. It 
has been observed that the IO at Dakshin, Firozabad after thorough 
investigation had found out that the entire case was concocted and 
hence, the Charge Sheets giving rise to Case Nos. 67 of 2008 and 
67A of 2009 had been filed against the accused respondents for 
being involved in the conspiracy of murder. The Trial Court also 
observed that the accused respondents had been suspended by the 
SSP, Gwalior and a departmental inquiry had been initiated against 
them. Adding to the above, the High Court
of Madhya Pradesh vide 
order dated 25.08.2009 had also stayed the proceedings in Case 
No. 15003 of 2007 (State vs. Ashok Dixit) under Section 34 of the 
Excise Act which is pending before the CJM, Gwalior for the reason 
that a decision in that case might cause severe prejudice to the case 
of murder of the appellant’s brother. 
77.	 The statements of the respondent nos. 3, 4 and 5 respectively 
recorded earlier by the IO at Dakshin, Firozabad during the course 
of his investigation on 23.01.2008 and later by the SHO of the Murar 
Police Station, D.S. Khushawa on 12.02.2008, under Section 161 
CrPC, are the only pieces of evidence that have been adduced before 
us for our consideration. Those statements reveal that – (a) amongst 
the two panchas of arrest and seizure namely, Shailendra Singh and 
Triloki Gaur in the alleged false second case i.e., Case Crime No. 
967 of 2007, Triloki Gaur was the former driver of the respondent no. 
1, (b) the respondent no. 1 had arrived at the Murar Police Station 
shortly after the alleged arrest of Ashok Dixit and had conversed 
with the SHO of the Murar Police Station, D. S. Khushawa, (c) the
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
respondent no. 1 also had a conversation with the person arrested 
by the accused respondents, and (d) the respondent no. 1 had asked 
the SHO of the Murar Police Station, D.S. Khushawa, to release the 
arrested person on bail stating that he was his relative. However, 
it is settled law that a statement recorded under Section 161 CrPC 
does not constitute substantive evidence and can only be utilized 
for the limited purpose of proving contradictions and/or omissions 
as envisaged under Section 145 of the Evidence Act, 1872. This 
has been laid down in a catena of decisions including in Parvat 
Singh and Others v. State of Madhya Pradesh reported in (2020) 
4 SCC 33 which observed as follows: 
“13.1…However, as per the settled proposition of law a 
statement recorded under Section 161 CrPC is inadmissible 
in evidence and cannot be relied upon or used to convict 
the accused. As per the settled proposition of law, the 
statement recorded under Section 161 CrPC can be 
used only to prove the contradictions and/or omissions. 
Therefore, as such, the High Court has erred in relying 
upon the statement of PW 8 recorded under Section 161 
CrPC while observing that the appellants were having 
the lathis.”
(emphasis supplied)
78.	 The aforesaid position of law was reiterated in Birbal Nath v. 
State of Rajasthan reported in 2023 SCC OnLine SC 1396 which 
observed as thus: 
“19. Statement given to police
during investigation under 
Section 161 cannot be read as an “evidence”. It has a 
limited applicability in a Court of Law as prescribed under 
Section 162 of the Code of Criminal Procedure (Cr.P.C.).
20. No doubt statement given before police during 
investigation under Section 161 are “previous statements” 
under Section 145 of the Evidence Act and therefore can 
be used to cross examine a witness. But this is only for 
a limited purpose, to “contradict” such a witness. Even 
if the defence is successful in contradicting a witness, it 
would not always mean that the contradiction in her two 
statements would result in totally discrediting this witness.
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It is here that we feel that the learned judges of the High 
Court have gone wrong.”
(emphasis supplied)
79.	 Moreover, the statements of the two independent witness i.e., Ramesh 
Yadav and Barelal recorded on 25.10.2008 by the IO at Dakshin, 
Firozabad, implicating the respondent no. 1, cannot be taken as a 
gospel truth either, especially when they were not examined in the 
Session Trial Nos. 753 and 753A of 2008 respectively which resulted 
in the conviction of the accused Ashok Dixit. Therefore, we are a 
bit hesitant to rely on the version of events as stated under these 
statements recorded under Section 161 CrPC at this stage. It would 
be best left for the Trial Court to decide the truthfulness and veracity 
of these statements which allegedly prove the case of the prosecution. 
80.	 Furthermore, the respondent no. 1 has contended that no departmental 
inquiry was ever initiated against him in relation to the registration of 
Case Crime No. 967 of 2007. However, the Trial Court in its order 
dated 10.07.2015 has made an observation that the respondent nos 
1, 3, 4 and 5 respectively were suspended and also subjected to an 
inquiry. Whether the departmental inquiry was initiated against all the 
accused respondents or just some of them and the exact findings 
of the inquiry is also an aspect where there exists some ambiguity.
81.	 Having said so, on the other hand, the respondent nos. 3, 4 and 5 
respectively have also not
adduced any credible evidence before us 
to prima facie establish that it was Ashok Dixit who was arrested at 
09:30 am at Murar, Gwalior; that the illegal liquor carried by him was 
seized, and that he was later released from the Murar Police Station 
on the directions of SHO, D.S. Khushawa upon furnishing a surety. It 
is true that the offence contemplated under Section 34 of the Excise 
Act is bailable and that any accused under the said offence would 
be entitled to be released on bail from the police station. However, 
bearing in mind that there exist serious suspicion as to whether an 
arrest was ever made to begin with and if made, whether it was Ashok 
Dixit who was indeed arrested, we find ourselves unable to arrive 
at an appropriate decision at this stage due to lack of reliable and 
credible evidence to verify the same. The respondent nos. 3, 4 and 
5 respectively have stated that the accused had identified himself 
to be Ashok Dixit upon arrest and it is unclear whether the identity 
of the said accused was further duly verified while the case was
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Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.
registered under the Excise Act. Despite the appellant’s allegation that 
the release of the said accused on bail from the police station was 
done hurriedly, almost immediately after arrest, in order to conceal 
the identity of the person who was released and that an unconnected 
stranger might have been released from the police station, no other 
material which substantiates the bona fides of respondent nos. 3, 4 
and 5 have been made available before us at the present moment. 
82.	 It is the case of the IO at Dakshin, Firozabad that sanction for 
prosecution of the accused respondents was not granted by the 
D.I.G., Gwalior citing the pendency of Case No. 15003 of 2007 in 
Case Crime No. 967 of 2007 registered for the offence under the 
Excise Act before the CJM, Gwalior. However, those proceedings 
have been stayed by the High Court of Madya Pradesh vide order 
dated 25.08.2009 and therefore, the question of sanction can be 
re-visited, if found necessary. 
83.	 As far as respondent no. 1 is concerned, it is made clear that there 
would be no requirement for sanction since he was not acting in the 
discharge of his official duty by virtue of not being posted at Murar 
Police Station, Gwalior at the relevant time when the alleged false 
case was registered. As a consequence, the extent of the involvement 
of respondent no. 1 in the alleged conspiracy to murder can be 
determined by the Trial Court
upon a further examination of the 
evidence adduced before itself. However, so far as the respondent 
nos. 3, 4 and 5 respectively are concerned, if the case of the 
prosecution that they had also played a dubious role in registering a 
false case is correct then the requirement of sanction would not be 
a sin qua non for proceeding further with the criminal proceedings. 
However, the defence must be given an opportunity to rebut the 
same by leading appropriate evidence. 
84.	 At this juncture on a prima facie examination of the materials adduced 
before us, we are of the opinion that the criminal proceedings pending 
before the CJM, Firozabad as Case Nos. 67 of 2008 and 67A of 2009 
should not have been quashed at such a preliminary stage. In cases 
where there is a legitimate doubt as regards whether sanction for 
prosecution under Section 197 CrPC is required or not, the progress 
of the trial must not be hampered or unnecessarily delayed. Therefore, 
the CJM, Firozabad had rightly taken cognizance of the two charge 
sheets vide its orders dated 24.11.2008 and 10.08.2009 respectively. 
The High Court committed an error in failing to consider this aspect
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while quashing the proceedings in Case No. 67 of 2008 and 67A of 
2009 respectively vide its impugned order. 
85.	 In view of the aforesaid discussion, the Trial Court is directed to 
proceed with the trial and at any stage of the trial if the evidence 
suggests that the acts complained of were indeed done or purported 
to be done in the discharge of official duty by respondent nos. 3, 4 
and 5 respectively or that the FIR registered by them was not bogus, 
the trial may be stayed for want of sanction. Therefore, the question 
of sanction only qua respondent nos. 3, 4 and 5 respectively is left 
open to be appropriately decided by the Trial Court at a suitable 
stage, in accordance with the law, without being prejudiced by 
any of the observations made in this order as well as in the order 
passed by the High Court. As these proceedings arise from a case 
registered more than 16 years ago, the Trial Court is directed to 
proceed with the trial & conclude it expeditiously preferably within 
one year from today. 
G.	
CONCLUSION 
86.	 In light of the aforesaid, the appeals filed by the appellant are allowed 
and the impugned order passed by the High Court is set aside.
87.	 We dispose of the present appeals in light of the aforesaid directions. 
88.	 Pending application(s), if any, shall stand disposed of. 
Result of the case: Appeals allowed.
†Headnotes prepared by: Nidhi Jain