SURESH KUMAR BHIKAMCHAND JAIN

PANDEY AJAY BHUSHAN AND ORS.

NOVEMBER 27, 1997

[G.N. RAY AND G.B. PATTANAIK, JJ.]

Code of Criminal Procedure, 1973-Section 197-Criminal complaint against Government servants-Sanction for prosecution from government- C Want of-Plea of bar against cognizance-Raising of-Held, question of sanction can be considered at any stage of the proceedings-The question of sanction should not be confused with the scheme of trial-The usual procedure of leading evidence against the merits of the prosecution case by way of defence evidence is not required to be followed for bringing materials in support of plea of bar for want of sanction.

D Practice and Procedure-Jurisdictional error-Plea against-Held, ca11 be raised at any stage-No bar for producing the relevant documents and materials for such consideration.

Jalgaon Municipality took a decision to demolish certain unauthorised encroachment (tapri) pursuant to which the unit of Anti-Encroachment E Department of Municipality went to demolish the same on July 3, 1993. One

of the Councillors of the Municipality tried to stop the attempt of the Municipality to demolish the said tapri. Respondents I to 4, the Collector and District Magistrate, Additional Superintendent of Police, Sub Divisional Magistrate and Superintendent of Police of Jalgoan respectively were also F personally present at the site and prevented the staff of the Municipality from demolishing the tapri. The appellant, who was the President of Jalgaon Municipality at material point of time, on coming to know about this, went to the spot and protested against the said action of the respondents in preventing the Municipality staff from discharging their statutory obligation to demolish unauthorised construction. It was stated that the Respondents G did not accede to the protest and persuasion of the appellant and physically assaulted the appellant, his driver and some other persons including the

ouncillors who were present at the spot. Subsequently the respondents issued certain orders viz. prohibiting the demolition work for some time, suspending the action of the Municipality in removing the encroachment and H ordering, the Municipality not to use any force. The Jalgaon Municipality 524

SU RESH KUMAR BHIKAMCHAND v. PANDEY A.JAY BHUSHAN 525

' . challenged the prohibitory orders before the Atirangabad Bench Of B.ombay A High Court which was subsequently withdrawn. The appellant filed three writ petitions on July 18, 1993 seeking various reliefs against certain actions of the State Government.

Meanwhile, the appellant lodged a criminal complaint on 19-7-1993 in the Court of Chief Judicial Magistrate, Jalgaon against the said respondents B under various provisions of the Indian Penal Code. On the basis ofdepositions of witnesses of the appell:mt, the trial court issued processes against respondents l to 3. The trial court, however, dischargedresponderit No. 4 on the ground of lack of sanction.

The respondents l,2 and 3 moved a writ petition before the Aurangabad C Belich of Bombay High Court challenging the order of the triltl court issuing process against them. In t_he meanwhile, the respondents.also m-Oved an . application before the trial court for recalling or the ordr of issuaricCo.of •., .. process which was dismissed: The appelia.nt also pn?ferredCrifuinal lle; iion before the High Court challenging the o'tder ofthe tdal cort by hich tile . D complaint against RespolldentNo~ 4 was dismissed on t.he ground oflackof sanction. The writj1etition flied by.respondents l to 3 was ailowed:an.d the Criminal Revision Application fll.ed by the apjJellarit was a is missed by the .

HighCourt. . . . ·

Aggrieved, the appellant preferred the presnt appealliefote the.Court.' E . ' ' ' . . . ' ' . •.. '.

On behalf of the appellat, it was ontetide~ tht the quesion ofissiie of process is to be d_eierlllined by"Considerig the.'ontritsofthe complaint

.. arid decidin"g as to whether ; prima facie; such:conlplint mlikes out a case

within Hie four col'riers oqhe offences alleged by the complaiant: If the ·.· ·.· complaint prima facie disci0ses eognizable offence;.the)riat court ought to F take cognizanc~ and issu~ process. bl)!~~~ the cmplaint ori the face of i.t

disclses official action; no sanctio.n for prosecutiori can be insisted at the initial stage for initiating a cirinaLcase against the Senior Government servants against whom the co.fupiaint had beeij lodged;

On behalf of the Respo.ndents, it was submitted that the question of sanction as a bar of a criminal trial and defence. againstthe merit .of the ·

prosecution case stand on different footing. The question ofsanction goes at the root because without the sanction, even if a complaint discloses a case

for criminal trial, such trial cannot be commenced or proceeded with, where

sch sanction is necessary. The requirement of sanction unde'r Section 197 H

A Criminal Procedure Code was there in the present case in view of the fact. that the respondents had been acting or Pl!rporting to act in discharge of their offiCial duties. Tension had developed at the place of occurrence .because th.e Municipal Staff wanted to remove the tapari. This was likely to create . a law and order situation. The Respondents with the view to curb the . B precipitation of the trouble and further did not allow the Municipal staff to demolish the tapri which was removed later on when the tension subsided.

Dismissing the appeal, the Court

HELD : 1.1. Considering the facts and circumstances of the case, it .. prima facie appears that the alleged acts on the part of the respondents were C purported to be in the exercise of official duties. Therefore, a case of sanction

. under.Sectionl97 Criminal Procedure Code has been .prima facie made out.

' '

[541-D].

i.2. An accused is not. debarred from producing the relevant documentary materiais which can be legally looked into without any formal D proof, in support ofthe stand that tile acts complained of were committed in

exereise'0f his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate

authoriy. [541-C]

1.3. It would be unreasonable to hold that accused even though might E have really acted in discharge of his official duty for which the complaints have been lodged yet he will have to wait till the stage under sub-section ( 4) Section 246 of the Code reaches or at least till he will be able to bring in relevant materials while cross examining the prosecution witnesses. On the other hand it would be logical to hold that the matter being one dealing with F the jurisdiction of the court to take cognisance, the accused would be entitled to produce the relevant and material documents which can be admitted into evidence without formal proof, for the limited consideration of the court whether the necessary ingredients to attract Section 197 of the Code have been established or not. [540-G-H; 541-A1

G 1.4. The question of requirement of sanction under Section 197 Criminal Procedure Code should not be confused with scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognisance of offence has been taken by the Magistrate can lead evidence in support of his defence. [538-Hl

H 1.5. The legislative mandate engrafted in sub-section (1) of Section

SURESHKUMAR BH!KAMCHANOv. PANDEY AJAY BHUSHAN 527

197 debarring a court from taking cognisance of an offence except with the A previous sanction of the concerne.d Government in a case where the acts compl.ained of are alleged to have been committed by the public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant.is not removable from his office save by or with the sanction of the Government touches thejurisdiction of the court itself. Itis a prohibition imposed by the statute froni taking cognisance; B the accused after appearing before the court on process beihg issued, by an application indicating that Secti.on 197 (I). is attracted, merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar. for the accused producing the relevant documents and materials which will.be ipso facto C admissible, for adjudication of the question as to whether in fat section 197 has any application in the case in hand. The question of sanction can be considered at any stage of the proceedings. [540-A-D]

Matajog Dubey v. H.C. Bhari, [1955] 2 SCR 925; Pukhrajv. State of Rajasthan, [1973] 2 SCC 701 and R Saha v. MS. Kochar, 11979] 4 SCC 177,. D referred to.

K.M Mathew v. State of Kera/a, [1992] I SCC 217, distinguished; Smt.

Nagawwa v. Veeranna S. Konjalgi & Ors .. [1976] 3 SCC 736; Nagaraj v.

State of Mysore. f1964] 3 SCR 671, ChandraDeo Singh v. Prakash Chandra E Bose. 11964] 1 ~CR 639; Y.D. Yesudasarl & Ors. v. Guruswamy. AIR (1957) Madras 555; Pancham Lal v .. Dadan Singh, (1979) Criminal Law Journal 1018 (Patna); Dr. Ravindra v. V.K. Panwar, (1989) Criminal Law Journal 191.(Madhya Pradesh) and Premji Mahananda v. Mohanpani Karva, (1996) l Criminal Law Journal 836 (Orissa), cited.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 1114l 5ofI997c

From the Judgment and Order dated 10.9.96 of the Bombay High Court

in Crl. W.P. No. 414193 Crl. Application No.16of1994.

Kapil Sibal, A.M. Khanwilkar, A.P. Mayee and Ms. V.D. Khanna for the Appellant.

Ashok Desai, Attorney General, S.G. Page, D.V. Mirzakar, N.M.

Sakharande and D.M. Nargolkar for !he Respondents.

. H

A The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted. Heard learned counsel for the parties.

The order of the Bombay High Court (Aurangabad Bench) dated September JO, 1996 passed in Criminal Writ Petition No. 414 of 1993 and B Criminal Revision Application No. 16of1994, is impugned in these appeals.

It will be appropriate at this stage to indicate in brief the background facts:-

(a) the appellant, at material point of time, was the President of the Jalgaon Municipality. The said Jalgaon Municipality took a decision to demolish the unauthori.sed encroachment (tapri). On the basis of such decision of the C Municipality, the unit of Anti Encroachment Department f Municipality had gone to demolish the unauthorised encroached construction on July 3, 1993.

One Shri Sita Ram @ Saban Baheti was also one the Councillors of Jalgaon Municipality, The said councillor however, remained present at the site and tried to stop the attempt of the Municipality to demolish the unauthorised D tapri. The respondent No. I., Shri Pandey Ajay Bhushan, was Collector and District Magistrate of Jalgaon and respondent No2 Shri Dilip G. Shriro, was Additional Superintendent of Police, Jalgaon respondent No3., Shri Prakash . Mahajan, was Sub-Divisional Magistrate, Jalgaon and respondent No.4, Shri

D.S. Jog was Superintendent of Police, .lalgaon, at the relevant time. The said respondent Nos. 1 to 4 were personally present at the site and prevented the E staffof the Municipality to demolish the tapri.

(b) The appellant was away from Jalgaon and having returned to Jalgaon in the evening, came to know that the respondents were not allowing ihe demolition of the unauthorised tapri. The appellant went to the spot and protested against the said action of the respondents in preventing the F Municipality staff from discharging their statutory obligation to demolish unauthorised construction. The respondents, however, did not accede to the protest and persuasion of the appellant. On the contrary, the respondents physically assaulted the appellant, his driver and some other including the councillors present at the spot. It has been alleged by the appellant that the G respondent No.4 put a stick on the chest of the appellant and gave a vio1nt

push. The respondent No.2 caught hold of ti1e neck of the appellant and threatened him with his revolver. The respondent No.3 had given a stick blow on the persons of the appellant. The respondent No. I also kicked and abused him. The appellant and his supporters including the driver and some of the councillors sustained injuries on account of the said high handed action of H the respondents.

SURESHKUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY, J.] 529

(c) On the next day i.e., on July 4, 1993, the respondent No.3 issued A prohibitory orders-under Section 144 of Criminal Procedure Code by declaring that no demolition work could be done till July 20, 1993. On July 6, 1993 respondents issued an order suspending the action of the Municipality in removing the encroachment. On the same day, another order was issued by the respondents to the effect that no force would be used by the Municipality. B

(d) The Jalgaon Municipality challenged the prohibitory orders issued under Section 144 of Cr.P, C, by filing a Writ Petition before Aurangabad Bench of Bombay High Court being Writ Petition No. 261 of 1993 on July 7, 1993, Such Writ Petition was, however, withdrawn on July 8, 1993. On July 18,1993, the appellant filed three writ petitions being Writ petition Nos. 2149, C 2150 and 2151 of 1993 seeking various reliefs against certain actions of the State Government. Writ Petition No. 2149of1993 was filed by the appellant chl!llenging the order restraining the Municipality from using any force in removing the unauthorised construction. Writ Petition No. 2151of1993 was filed for prohibiting the State Government from issuing any order of supersession of the Jalgaon Municipality. Such Writ Petition was filed because D the appellant and. other councillors had apprehended that on account of political vendatta, the persons in power would invoke action of superseding the JalgaDll" Municipality.

(e) The appellant lodged a criminal complaint on July 19, 1993 being Regular C.C. No. 194 of 1993 in the Court of Chief Judicial Magistrate, Jalgaon . E against the said respondents under Sections 353, 332, 323, 307, 504 and 506 read with Section 34 Indian Penal Code. The appellant examined himself as complainant on July 31, 1993. The Trial Court directed the appellant to produce his witnesses on August 4, 1993. On August 4, 1993 the State Government issued a letter in view of which the Writ Petition Nos. 2149, 2150 and 2151 F of 1993 became infructuous and the High Court disposed of the said Writ Petitions by order dated August 3, 1993.

(f) The appellant examined 7 witnesses in support of his complaint. The deposition of the witnesses examined expressly disclosed cognizable offence committed by the saidrespondents. The Trial Court, however, discharged the G respondent No. 4 on the ground of lack of sanction but issued processes against respondent Nos. Ito 3. The Trial Court also dropped the charge under

Section 307 !PC.

The respondent Nos. 1, 2 and 3 moved a Criminal Writ Petition No. 414 of 1993 before the Aurangabad Bench of Bombay High Court challenging the H

A order issuirig process against theltl, but without disposing of such writ petition, by the order dated February 10, 1994, the High Court gave liberty to the said

respondents to move applications before the trial court for recalling the order issuing pro_cess against the1i1;

 (g) The respondentNos. 1 to 3 thereafter moved an application before B the trial court for recalling of the order of issuance of process. Such application was, however, dismissed by the learned Chief Judicial Magistrate by order . dated April 12, 1994. The appellantalso preferred cfiminal Revision Application No. 16 of 1?94 before the High Court challenging the order of the trial court dated September 8, 1993 by which the complaint against respondent No. 4 C was dismis'sed on the ground of lack of sanction. The said Criminal Revisional Application No. 16of1994 was tagged with the Criminal Writ Petition No. 414. of 1993. By the impugned order dated September 10, 1996, the Writ Petition filed by the respondent Nos. 1 to 3 was allowed and the Criminal Revisional Application filed by the appellant was dismissed.

D Mr. Kapil Sibal, the learned Senior Counsel appearing for the appellant, has contended that the impugned order of the High Court dated September

10, 1996 has not only resulted in manifest injustice meted out to the appellant but the same is patently illegal, improper and unjustified. Mr. Sibal has contended that the law is well settled about the scope of supervisory E jurisdiction of the High Court under Article 227 of the Constitution of India and inherent jurisdiction under Section 482 of Criminal Procedure Code and this Court has clearly indicated that such jurisdiction is extremely circumscribed.

Mr. Sibal has also submitted that the High Court failed to appreciate that in exercise of its supervisory jurisdiction under Article 227 and inherent F jurisdiction under Section 482 Cr. P.C., the High Court was not to embark upon . ·

full fledged and full dressed appreciation of the evidences like a regular appellate court and on such appreciation to quash the complaint on the score of absence of requisite sanction. Mr. Sibal has also contended that the law is now well settled that if the complaint prima facie discloses cognizable G offence, the trial court ought to take cognizance and issue process. The trial court can discharge the accused only when the complaint ex facie does not .. disclose any offence. The aforesaid principle applies with greater vigour in case of High Court exercising its jurisdiction under Section 482 Cr.P.C. The order or issuance of process is basically a matter of discretion vested in the .· concerned Magistrate and the only exception is that such discretion should H not be exercised arbitrarily and without application of mind to the facts

SU RESH KUMAR BHIKAMCHAN[k PANDEYAJAYBHUSHAN [G N RAY, J.l 53 J

alleged in the complaint.

Mr. .Sibal has contended. that the learned Chief Judicial Magistrate, Jalgaon had taken more than abundant caution in exercising the discretion . which is clearly reflected in the initial order of Chief Judicial Magistrate when

he postponed the issuance of process and also in the subsequent order B issuing process to respondents No. 1 to 3 and discharging respondent No. 1 after taking into consideration the deposition of the complainant and the number of eye witnesses examined and also the medical certificates issued to the complainant and the injured witnesses.

Mr. Sibal has submitted that it was improper on the part of the High C Court in not disposing of the writ petition but granting liberty to the said respondents to approach the trial court for recalling the order of issuance of summons by way of an interim direction even though such summons were issued on consideration of the complaint and evidence adduced in support of the complaint. In the application tnade by the said respondents before the learned Chief Judicial Magistrate, Jalgaon for recalling the process certain . D documents were annexed in an attempt to destroy evidence of the complainant even though at that stage the accused were not entitled to bring in documents in their defence. The learned Chief Judicial Magistrate, Jalgaon after hearing the parties rejected the said applicaticm by confinning the order of issuance of the processes.

Mr. Sibal has submitted that question of issue of process is to be detennined by considering the contents of the complaint and deciding as to whether, prima facie, such complaint makes out a case within the four comers

of the offences alleged by the complainant and in case, the complainant makes out a case, which would indicate a cognizable offence, then the process F is to be issued and the question of probable defence is not to be considered at that stage. Mr. Sibal has submitted that the complaint lodged by the appellant clearly makes out various offences committed by the respondents and in support of such complaint; the complainant got himself examined and had also examined a number of witnesses including the injured witnesses. On G consideration of such materials on record, the learned Chief Judicial Magistrate had issued the process against respondent Nos, I and 3. The applications made by the said respondents later on, pursuant to the liberty granted by the High Court, to recall the processes were also dismissed by indicating cogent reasons. Such orders of the learned Chief Judicial Magistrate should not have been interfered with by the High Court by improper I)'. exercising the revisional H

A jurisdiction under Article 226 and 227 of the Constitution and also under Section 482 of Criminal Procedure Code.

Referring to Sections 202 and 204 of the Code of Criminal Procedure, Mr.

Sibal has contended that till the process is issued by the Magistrate on

consideration of the complaint and evidences adduced in support of the B complaint by the complainant and his witnesses, the accused does not come in the picture. The accused is also not authorised to lead any evidence to destroy the complaint case at that stage. In support of such contention, Mr.

Sibal has referred to the decision of this Court in Smt. Nagawwa v. Veeranna S. Konjalgi & Ors., [ 1976) 3 SCC 736). It has been held in the said decision C that the scope of enquiry under Section 202 of the Code of Criminal Procedure 1898 (pari materia same as Section 202 of Cr. P.C. 1973) is extremely limitedlimited only to the ascertainment of the truth of falsehood of the allegations made in the complaint ( 1) on the materials placed by the complainant before the court (2) for the limiteq purpose of finding out whether a prim a facie case for issue of process has been made out and (3) for deciding the question D ·· purely from the point of view of the com.plainant without at all adverting to any defence that the accused may have. It is not the province of the Magistrate to enter into detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one. In proceedings under Section 202, the accused has got absolutely E no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. In the decision in Nagawwa's case, this Court has also held that the Magistrate, for the purpose of considering as to whether a process should .be issued or not, can take into consideration the inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant iri support of the allegations. The Magistrate F has been given an undo\lbted .discretion in the matter of deciding whether a process should be issued or . not but such discretion has to be judicially exercised. Once the discretion has been exercised by the Magistrate, it is not open for the High Court or even this court to substitute its own discretion with a view to find out whether or not the allegations in the complaint if G proved, would ultimately end in conviction against the accused.

Mr. Sibal has submitted that on two occasions the learned Magistrate had taken irito consideration the complaint case and the evidence adduced by the compiainant in support of allegations in complaint and h2ving exercised his discretion judicially upon objective consideration of the complaint and H complainanes evidence directed for issuing the process. In such circumstances,

SURESll KUMAR llfllKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY. J.] 533

there was no occasion for the High Court to quash the process issued by the A I.earned Magistrate.

Mr. Sibal has also submitted that scope and ambit of the writ petitions moved before the High Court were entirely different The statements made in such writ petitions cannot be taken into consideration either by the High Court or by the learned Magistrate for deciding whether the complainant has B prima facie made out a case for issuance of summons and consequential trial on the basis of complaint.

Coming to the question of requirement of sanction for initiating a criminal case against the senior government servants against whom the C complaint had been lodged, Mr. Sibal has contented that unless the complaint on the face of it discloses official action, no sanction can be insisted at the initial stage. In the absence of ex facie official action alleged in the complaint, the accused would be proceeded against in the criminal trial like other accused without any requirement for sanction. In support of such contention, Mr.

Sibal has referred to the decision of this Court in Nagaraj v. State of Mysore, D [1964] 3 SCR 671. Mr. Sibal has also referred to the decision of this Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] I SCR 639. In Chandra Deo's case, it has been held that if court on consideration of the complainant's case issues process to the accused, the accused has no locus standi to take part in the criminal proceedings and the Magistrate has also no jurisdiction E to allow the accused to take pa1i in such proceedings. Mr. Sibal has also referred to the decisions of this Court in Matajog Dubey v. H.C. Bhari, [1955] 2 SCR 925. Mr. Sibal has submitted that in Matajog Dubey's case, this Court has indicated that the need for sanction under Section 197 Cr.P.C. is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. The complaint may not disclose that the act F 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 enquiry or even in the course of prosecution evidence at the trial may establish necessity of sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself . G in the course of progress of the case.

Mr. Sibal has submitted that the correct principle consistent with the scheme of criminal trial at various stages under the Code of Criminal Procedure has been indicated in the case of Matajog Dubey. This court has indicated in the said decision that it was not necessary for the Court to find out whether H

534 SUP.l{EME COURT REPORTS [1997] SUPP. 5 S.C.R.

A a sanction was necessary cir not at the time of taking cognizance of the complaint. The aucused, where sanction is necessary, is not without remedy even if cognizance is taken and process is issued because the question of sanction may still be taken into consideration at different stages of trial on the basis of .further materials revealed at such stages.

B According to Mr. Sibal simply because an accuse.cl is a government . servant and is clothed with duties to enforce law and order, he cannot claim sanction under Section 197 Cr. P.C. as a matter of course. The acts alleged against him must prima facie appear to be in the purported exercise of official duties and functions. In support of such contention, reference has been made C to the decision of this Court in Pukhraj v. State of Rajasthan, (1973) 2 SCC

701. In the said decision, the purpose and import of Section 173 Cr. P.C. have been taken into consideration. It has been held that intention behind Section

197 Cr. P.C. is to prevent public serv.ants from being unnecessarily harassed.

The Section is not restricted to cases of anything purported to be done in good faith for a person who ostensibly acts in execution of his duty still D purports so to act, although he may have a dishonest intention. Nor is it confined to ca.ses where the act, which constitutes the offence, is the official duty of the concerned office. The test appears to be that the offence is . capable being committed only by a public servant and not by any body else but that it is committed by a public servant in an act done or purporting to E be done in the execution of his duty. Section 197 is not confined to only such acts as are 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. What is necessary is that .the offence must be in respect of an act done or purported to be done in the discharge of official duty. It does not apply to acts done purely in private capacity by a public servant. In Pukhraj's F case, the Post Master General had kicked a clerk when such clerk requested to cancel his transfer order. Such act had no semblance of discharging any public duty by the Post Master General. Hence, it was held that no sanction under Section 197 Cr.P.C. was necessary.

G Mr. Sibal has contended that in the instant case, the Municipal Officials had been discharging their duties in removing unauthorised obstruction on public road. For executing such act, the local executive and police authorities were required to give necessary assistance by preventing persons. opposing execution by the municipal staff. But unfortunately, the respondents despite holding reasonable positions in the Government Service, obstructed municipal H staff from carrying on their duties and functions. When the complainant being

SU RESH KUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G:N. RAY, J.] 535

the Chairman of the Municipality protested against such improper act on the A part of the accused, he and other persons were assaulted,. abused and manhandled. Such acts prima facie cannot be held to have been done on purporting to be done in discharge of official duties. Hence, on the face of the allegations, no sanction was warranted. If, however at a later stage when the accused within the scheme of trial under the Criminal Procedure Code, will have occasions to lead evidence in defence they may do so. If on defence evidence, or on materials produced in support of dE:fence -clifo, it transpires that a case of sanction under Section 197 Cr. P.C. has been made out, the court will be justified to stop further proceedings for want of sanction. But it will

be illegal if the defence evidence is .allowed to be introduced de hors the scheme of trial at a stage when defence evidence could not have been C introduced. Mr. Sibal has submitted that the High Court failed to appreciate the legal import of Section 200 Cr. P.C. and not only allowed the accused to introduce evidence and materials in defence but relying on such materials passed the impugned judgment holding .inter alia that a case of sanction tinder Section 197 Cr. P.C. has been made out. Since such order is wholly unjustified, the same should be set aside t~ allowing this appeal.

 D

Mr Ashok Desai, learned. Attorney General appearing for the respondents has submitted that question of sanction as a bar of a criminal trial and defence against the merit of the prosecution case stand on different footing. The question of sanction goes at the root because without the sanction even if E a cmnplaint discloses a case for criminal trial s.uch trial cannot be commenced or proceeded with where such sanction is necessary. The learned Attorney General has submitted that writ petitio, ns were filed before the High Court by the complainant and other persons for various reiiefs. The facts disclosed in such writ petitions were relevant for the consideration as to the requirement of sanction under Section 197 Criminal Procedure Code in view of the fact that F the accused had been acting or purporting to act in discharge of their official duties and as such they were entitled to claim protection by way of requisite sanction under Section 197 of the Code of Criminal Procedure. Therefore, it was not improper on the part of the High Court to consider the averments in the writ petitions for the purpose of deciding whether a case for sanction G exists or not.

Mr. Attorney has also submitted that even on the basis of the evidences adduced by the witnesses of the c'implainant, a case of sanction has been clearly made out. The learned. Attorney has drawn the attention of the Court to the statement of PW I Vasant Baburao Suryavanshi who deposed to the H

A effect that :

"When we started removing the tapari, Sri Baban Baheti came there and stopped me to remove the stall...That time Sri Prakash Mahajan, S.D.M. came there and told me "the situation is under his hand and leave the spot along with your staff." At that time lot of people had gathered there. There was a crowd of spectators there. I tried to remove the stall but could not succeed. At 4'0 Clock accused Nos.

I to 3 came there with I 00 to 150 policemen ... the complainant told the accused No. I (DM) that they are authorised to remove the tapari and further told not to obstruct. As accused No. I did not listen, I along with the complainant, councillor and our staff started removing the stall ... Complainant got flared up. Thereafter, lathi charge took place ... . police brought us to the police station.

The learned Attorney has also drawn attention to the statement of PW 2 Pandurang_ Rathunath Kale. The said witness deposed to the following D effect:

;\Thenhe (SDM) told me that he had taken charge of the placeand . he WiJI not allow the stall to be removed. I again told SDM not to cause: obstruction and allow us to do our work. Then he told me not

t() wait here. At that time SP Sri jog and Rao also came. They also told E met() go away."

Our attention has also been drawn to the statement of PW 6 Babu Gangaram Suryavanshi. The said witness has stated: ' ··

. ~'I .am working as Municipal Engineer in Jalgaon Municipal Council:

On3.7.1993 at 7.30 A.M. as usual our Encroacheni Squad went to remove the encroachment. Shri.V.V. Suryavashi, Assistant Engineer and Shri S.L. Patil, Junior Engineer also went to .the spot. At around

I 0.30 A, M., I got the massage that Baban Baheti have opposed the squad in removing the encroachment and SDM and police had come to the spot and they are obstructing the removal of the encroachment.

SDM has said that he had.taken charge of the place and will not allow the encroachment to be removed. He told him to go away from the spot alongwith his staff. Complainant also asked the Collector why he was not allowing the encroachment to be removed. The Collector told him that he would not allow the encroachment to be removed.

H Complainant asked all of us to remove the encroachment. We all staff

SU RESH KUMAR BHIKAMCHAND v. PANDEY AJAY BHUSHAN [G.N: RAY, J.] 537

and Municipal Councillors started removing the encroachment. Then A the complainant exhorted to remove the stall but the Collector did not allow the stall to be removed. A very large crowd had gathered there.

The Collector said "do not bother about anyone put every one in the van."

The learned Attorney has submitted that it is quite apparent from the B said statements of witnesses of the complainant that a tension had developed at the place of occurrence because the Municipal Staff wanted to remove the tapari and Baban Baheti and a number of persons accompanying him opposed such removal. A large number of persons also gathered at the place of occurrence. It was at that stage, the accused respondent with police force come. The Collector , Superintendent of Police and the sub-Divisional C Magistrate warned the Councillors, Municipal staff and the complainant that they had taken charge of the said place and they would not allow anybody to remove the tapari. When such warning was not heeded to and the complainant and the other councillors and the Municipal staff took steps to remove the tapari, the police had to use force against the accused and others D who did not listen to such.warning and they were arrested and brought to the police station. The learned Attorney has submitted that even if there had been eDcroachment on the municipal road without any authority for which such encroachment was required to be removed, if over the proposed 1)-Ction of removal, a tension develops in the locality which is likely to create'il;!aw and order situation, the District Magistrate, the Superintendent of Police and E other Government Officers against whom the complaint had been mad~ were justified to take a decision not to allow anyone to preCipitate the trouble any further at that time. As a matter of fact the tapari was removed later on when the tension subsided. It was clearly made known to the complainant and other . councillors and municipal staff that the police had taken ch.arge of the place . F and no one would be permitted to remove the tapari at that point of time. If inspite of that the complainant, councillors and other municipal.staff wanted to remove the tapari by force, the respondents had enough justification to prevent them from doing so by exercising force. Mr. Attorney has submitted that the action on the part of the respondents was ckarly In the exercise of the official duties and it is immaterial whether in discharging the duties they G had exceeded the jurisdiction. Once the acts alleged by the complainant had been done in exercise or even in purported exercise of official duties, requirement of sanction under Section 197 Criminal Procedure Code is fulfilled.

The learned Attorney had submitted that in Matajog Duby's case (supra) even though it was alleged by the complainant that police officials and H

A Income Tax Officers used force and assaulted, since such action was made - in the purported exercise of the official duties, the Court held that a case of Sanction had been made out. In Pukhraj's case (supra), it has been clearly indicated th.at-even if in discharge of official duties some excesses had been niade. b'fthe concerned officer, the case of sanction must be held to be made

B out. Asthe Post Master General cannot be permitted to contend that kicking the clerk was resorted to even in the purported exercise of his official duties, it was he!~ that in facts of the case, sanction was not necessary.

The. foamed Attorney has also referred to the decisions of various High Courts where the question of sanction in the context of excesses committed c by the police in discharging 'official duties have been taken into consideration.

In this connection, the learned Attorney has referred to the decisions reported in AIR 1957 Madras 555' 1979, Criminal Law Journal 1018(Patna), 1989 Criminal Law Journal 191 (Madhya Pradesh), 1996 (I )Criminal Law Journal 836 (Orissa).

The learned Attorney has submitted that since the question of sanction goes at the root of the jurisdiction of the learned Magistrate to take cognizance or D to proceed further with the trial of the criminal case in the absence of required sanction, the accused must be permitted to raise the question of sanction at the threshold and it is not necessary for the accused to wait upto the stage when an accused, within the scheme of trail under the Code of Criminal . . . . . ' . .

Procedure; can lead evidence by way Of defence as contended by Mr. Sibal.

Mr. Attorney has submitted that if really a case of sanction was there, it will be wholly 'Unjustified for the Magistrate to take abortive and futile exercise either in taking cognizance of the complaint and proceeding further with criminal trail. Therefore, plea of bar against cognizance and consequential for want of sanction must be permitted to be taken at the threshold and the usual procedure of leading evidence against the merits of the prosecution case by F way of defence evidencejs not required to b\) followed for bringing materials in support of plea of bar for want of sanction. The learned Attorney has submitted that the impugned order passed by the High Court is legal and fully justified and no interference is called for against the impugned d<!cision.

' After giving our careful consideration to the facts and circumstance of

G the case and the respective submissions of the learned counsel for the parties it appears to us that the question of requirement of sanction under Section

197 Criminal Procedure Code should not be confused with the scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognisance of offence has been taken by the learned Magistrate can lead evidence in support of his defence. The question for H consideration is when a Magistrate on the basis ofa complaint issued process

' '

SURESH KUMAR BHIKAMCHAND v. PANDEY AJAY BHUSHAN [G.N. RAY, J ] 539

for appearance of the accused on being satisfied that there is sufficient A ground for proceeding and the accused appears before the Magistrate and 'takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the court has no power to take cognisance except with the previous sanction B of the Government as required under sub-section (I) of Section 197 of the Code of Criminal Procedure then the Magistrate would be required to decide the plea on the materials on record then existed or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197(1) of the Code? According to Mr. Sibal, the Magistrate can examine the plea only with reference to the materials available on record and at that stage C accused cannot have any righUo produce any evidence to support his plea.

According to the learned Attorney General, if the accused is debarred from producing the relevant materials to indicate that the acts complained of were in fact committed by the accued in discharge of his official duty and he can only produce the materials when the criminal proceeding reaches the under sub-section ( 4) of Section 246 in any warrant case instituted otherwise than D on police report, then the very object and purpose of the provisions of Section 197 will get frustrated and the public servants will have to face irresponsible or vexatious proceedings even in respect of acts done by him in discharge of official duty. According to the learned Attorney General, therefore, though at that stage it may not be permissible for an accused to E lead any oral evidence but there cannot be any bar for him to produce necessary documents including official records for the limited purpose of consideration as to whether Section 197 can be said to be attracted and whether there exists a valid sanction.

Mr. Sibal's contention is based upon the observations made by this F Court in Mathew's case [1992] 1 SCC 217, wherein this Court had observed that even after issuance of process under Section 204 of the Code if the accused appears before the Magistrate and establishes that the allegations in the Complaint Petition do not make out any offence for which process has been issued then the Magistrate will be fully within his powers to drop the G proceeding or rescind the process and it is in that connection the Court had observed "if _the complaint on the very face of it does not disclose any offence against the accused". The aforesaid observation made in the context of a case made out by the accused either for recall of process already issued or for quashing of the proceedings may not apply fully to a case where the sanction under Section 197 (I) of the Cr.P.C. is pleaded as a bar for taking H

. A cognisance. The legislative mandate en grafted in sub-section ( 1) of Section ,..,. 197 debarring a court from taking cognizance of an offence except with a previous sanction of the concerned Government in a case where the acts complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in the discharge of his B official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking congnizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197( I) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not C possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by thi~ Court in several cases that the question of sanction can be considered at any stage of the proceedings.

In Matajog's case 1955 (2) SCR 925 the Constitution Bench held that the complaint may not disclose all the facts to decide the question of applicability of Section 197, but facts subsequently coming either on police or judicial inquiry or even in the course of prosecution evidence may establish E the necessity for sanction. In S.B. Saha's case [1979) 4 SCC 177, the court observed that instead of confining itself to the allegations in the complaint the Magistrate can take into account all the materials on the record at the time when .the question is raised and falls for consideration. In Pukhraj's case,

(supra) this Court observed that whether sanction is necessary or not may depend from stage to stage. In Matajog's case the Constitution Bench had F further observed that the 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 the material on record during the course of trial for showing what his duty was and also the acts complained of were so inter related with his official duty so as to attract the protection afforded by Section 197 of the Code of Crim in al G Procedure. This being the position it would be unreasonable to hold that accused even though might have really acted in discharge of his official duty for which the complaints have been lodged yet he will have to wait till the stage under sub section (4) Section 246 of the Code reaches or at least till he will be able to bring in relevant materials while cross examining the prosecution witnesses. On the other hand it would be logical to hold that the H matter being one dealing with the jurisdiction of the court to take cognisance,

SURESH KUMAR BHIKAMCHANDv. PANDEY AJAY BHUSHAN [G.N. RAY, J] 54 J

the accused would be entitled to produce the relevant and material dccuments A which can be admitted into evidence without formal proof, for the limited consideration of the court whether the necessary ingredients to attract Section

197 of the Code have been established or not. The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognisance without a valid sanction is genetically different from B the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognisance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the c, onsidered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction C or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.

Considering the facts and circumstances of the case, it prima facie appears to us that the alleged acts on the part of the respondent were purported to be in the exercise of official duties. Therefore, a case of sanction D under Section 197 Criminal Procedure Code has been prima facie made out.

Whether it was unjustified on the part of the respondents to take recourse to the actions alleged in the complaint or the respondents were guilty of excesses committed by them will be gone into the trial after the required sanction is obtained on the basis of evidences adduced by the parties. At E this stage, such question are not required to be considered because the accused have not yet led evidence in support of their case on merits.

We, therefore, do not think that any interference against the impugned orderis called for. The appeals therefore, fail and are dismissed. By abundant caution, we make it clear that on the merits of the case we have not expressed F any opinion.

M.P.

Appeals dismissed.