[2008] 6 S.C.R. 912

ANJAN1 KUMAR

STAT"E OF BIHAR AND ANR. (Criminal Appeal No. 413 of 2000)

APRIL 24, 2008

[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Code of Criminal Procedure, 1973:

s. 482 and 197 - Complaint against public servant - C Criminal proceedings u/ss 465, 466, 469 and 471 /PC - Petition for quashing of the proceedings - Dismissed by High Court - On appeal, held: Proceedings liable to be quashed - Continuance thereof would amount to abuse of process of law

- Interference u/s 482 permissible only in rare cases - Instant D case falls under the category of rare case - The prosecution was without sanction uls. 197 Cr.PC. as the acts for which the accused was charged were performed in discharge of his official duty - In the facts of the case malafide was involved.

s. 197 -Applicability- Object and scope of- Held: The E protection under the provision is to protect responsible public servants against possibility of vexatious criminal proceedings

- However, the protection does not cover every act or omission of a public servant - It is available only when the alleged act by the public servant is connected with discharge of his official F duty or in purported exercise of his official duty

Words and Phrases - "Cognizance" and "Official duty" - Meaning of - In the context of s. 197 Cr PC.

Respondent No. 2 filed an application for G cancellation of application form relating to license.

Appellant sent a report for cancellation of the same. On the same date, appellant conducted raid at the medial shop of respondent No. 2 and s.eized some medicines.

Thereafter on 8.9.1992 appellant filed FIR and a case was H 912

ANJANI KUMAR v. STATE OF BIHAR AND ANR. • 913

registered against respondent No. 2 u/ss 420, 467, 468 A IPC and u/ss 27 (b) (ii) and 28 of Drugs and Cosmetics Act, 1940. Appellant informed the authorities as well as Police about the threat received from respondent No. 2.

On 4.2.1993 respondent No. 2 filed a complaint against

--+ the appellant on the basis whereof FIR was registered u/ B ss 161, 167, 465, 466, 469 and 471 IPC. Thereafter District Magistrate passed the order u/s 196 Cr.P.C. according sanction for prosecution of the appellant. Charge sheet was filed against the appellant u/ss. 465, 466., 469 and 471 IPC. Cognizance was taken. Appellant filed petition c u/s 482 Cr.P.C. seeking quashing of the order taking cognizance. High Court dismissed the petition on the ground that no sanction was required. Hence the present appeal.

Appellant contended that allegations were made as D

-+ a counterblast by respondent No. 2 for the action taken

1 against him; and that since the appellant had acted in the course of his official duty, High Court was wrong in saying that no sanction was required.

Allowing the appeal, the Court E

HELD: 1.1 The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while F ... they are acting or purporting to act as public servants .

The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the. discharge of their official duties without reasonable cause, and if G sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. [Para 11] [921-E, F]

1.2 This protection has certain limits and is available only when the alleged act done by the public servant is H

A 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 B will not be a sufficient ground to deprive the public servant from 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 c committed by a public servant acting or purporting to act as such in the discharge of his official capacity. [Para

11] [921-G, H; 922-A, B]

1.3 Before Section 197 Cr.P.C. can be invoked, it must be shown that the official concerned was accused of an D 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 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 E 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. [Para 11] [922-8,

F C, D]

1.4 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 G 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 the question is in the affirmative, it may be said that such act was committed H by the public servant while acting in the discharge of his

ANJANI KUMAR v. STATE OF BIHAR AND ANR. 915

official duty and there was every connection with the act A complained of and the official duty of the public servant.

This aspect makes it clear that the concept of Section 197 Cr.P.C. does not get immediately attracted on institution of the complaint case. [Para 11] [922-D, E, F]

1.5 Prior to examining if the Courts below committed 8

any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court under Section 197 Cr.P.C. and the extent of protection it affords to public servant, who, apart from various hazards in discharge. of their duties, in absence C

of a provision like the one may be exposed to vexatious prosecutions. [Para 13] [923-C, D]

1.6 Use of the expression, 'official duty' implies that the act or omission must have been done by the public officer in the course of his service and that it should have D been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or on:iissions which are done by a public servant in discharge of official duty. E [Para 14] [925-H, 926-A, B]

1.7 It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under F the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, G to be construed strictly; while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. [Para 15] [926-B, C]

Matajog Dobey v. H. C. Bhari AIR 1956 SC 44 - H

A relied on.

1.8 If on facts, 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 8 197 Cr.P.C. cannot be disputed. [Para 16J [927-CJ

1.9 The ultimate justification for the protection conferred by Section 197 Cr.P.C. is the public interest in seeing that official acts do not lead to needless or c vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant. It was in pursuance of the observation of 41st Report of Law Commission that the expression 'was' come to be

0 employed after the expression 'is' to make the sanction

applicable even in cases where a retired public servant is sought to be prosecuted. [Para 18J [928-A, BJ

Bakhshish Singh Brar vs. Smt. Gurmej Kaur and Anr.

AIR 1988 SC 257; P Arulswamia v State of Madras AIR 1967 E SC 776; B. Saha and Ors. v M.S. Kochar 1979 (4) SCC 177relied on.

R. Ba/akrishna Pillai v. State of Kera/a and Anr. 1996 (1) SCC 478; State of H.P v M.P Gupta 2004 (2) SCC 349; State of Orissa through Kumar Raghvendra Singh and Ors. v.

F Ganesh Chandra Jew 2004 (8) SCC 40; Rakesh Kumar Mishra

v. State of Bihar and Ors. 2006 (1) SCC 557 - referred to.

Law Commission in its 41st Reportreferred to.

2.1 A court is precluded from entertaining a complaint G or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. [Para 13J [925-A, BJ

H B. Saha and Ors. v M. S. Kochar 1979 (4) SCC 177 -

f, T

' '

ANJANI KUMAR v. STATE OF BIHAR AND ANR. 917

referred to.

2.2 Section 197 falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out o-r are absent then no prosecution can be set in motion. In B .. respect of public servants, the cognizance of any offence, by any court, is barred by Section 197 Cr.P.C. unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duy. The Section not only specifies the persons to whom the protection is afforded but it also c specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. [Para 13) [924-B, C, E, F]

2.3 The mandatory character of the protection D • afforded to a public servant is brought out by the , expression, 'no court shall take cognizance of such •, offence except with the previous sanction'. Use of the

-~~".i,; words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take E cognizance of any offence is absolute and complete. Very cognizance is barred. [Para 13] [924-F,. G]

3. When the factual background is considered on the touchstone of legal principles, the inevitable conclusion is that certainly ma/a fides were involved apart from the F " applicability of Section 197 Cr.P.C .. The factual scenario goes to show the complaint filed by respondent No. 2 appears to be a counter blast for the action taken by the appellant against him. It is no doubt true th;:tt at the threshold interference by exercise of Section 482 Cr, P.C. Q has to be in rare cases. The present case appears tc:> b~ of that nature and falls under category (7) indicated In

-f *Bhajan Lal's case. The continuance of the proceedings by the prosecution would amount to abuse of the process of law. Hence the same are quashed. [Paras 20]

A [928-D, E, F]

*State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 - relied on.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal s No.413of2000.

From the final Judgment and Order dated 01.07.1999 of the High Court of Judicature at Patna in Criminal Misc. No. 18238 of 1993

S.B. Sanyal, Akhilesh Kumar Pandey and Sushanshu Saran for the Appellant.

Rituraj Biswas, Chandra Prakash and Laksmi Raman Singh for the Respondents.

Anukul Raj and Gopal Singh for the State of Bihar.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a learned Single Judge of the Patna High Court dismissing the petition filed by the appellant in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The appellant in the said petition had prayed for quashing the order dated 2.12.1993 taking cognizance of offences punishable under Sections 465, 466, 468, 469 and 471 of Indian Penal Code, 1860 (in short the 'IPC') in Begusarai Town P.S. Case No.63 of 1993.

2. Background facts as projected by the appellant are essentially as follows:

On 29.8.1992 an application by respondent No.2 (hereinafter referred to as the 'complainant') was filed for cancellation of Form 19 filed relating to the license of M/s Arun Medical Hall. On the said date, appellant sent a report for cancellation of the application form for license. On the same date, as per the directions of District Magistrate, appellant conducted raid at the medical shop of respondent No.2 around

5.15 p.m. in the presence of two Executive Magistrates and A certain medicines were seized. On 8.9.1992 appellant filed FIR (P.S. Case No.258/92) and a case was registered against respondent No.2 for alleged commission of offences punishable under Sections 420, 467, 468 IPC and Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940 (in short 'Drugs Act'). s On 15.9.1992 respondent No.2 filed an application for bail.

Significantly there was no averment in the bail petition that the appellant demanded bribe or made any interpolation of records.

On 10.10.1992 respondent N0.2 moved the Civil Surgeon for release of the seized medicines. Here again there was no c allegation of demand of bribe and interpolation. On 7 .11 .1992

appellant informed the authorities about the threats received from respondent No.2 and others. On 16.11.1992 respondent No.2 moved the learned Chief Judicial Magistrate for release of seized medicines. Here again, there was no allegation of D demand of bribe or interpolation of records. On 16.12.1992 appellant informed the police officials about the threat received from respondent No.2 and others and requested to protect his life. On 4.2.1993 a complaint was made by respondent No.2 alleging that appellant had committed offences punishable under

Sections 161, 167, 465, 466, 469 and 471 IPC and on the basis 6

of the complaint, FIR was registered.

3. According to the appellant, there was no explanation offered as to why there was delay in filing the complaint and there was no grievance that the police officials had refused to F register any FIR. On 31.7.1993 an order purported to have been passed under Section 196 of the Code was passed by District Magistrate according sanction for prosecution of the appellant.

On 4.8.1993 charge sheet was filed against the appellant for alleged commission of offences under Sections 465, 466, 469 G and 471 IPC. Here again, there was no allegation of alleged commission of offence relating to demand of bribe which is punishable under the Prevention of Corruption Act, 1988 (in short 'PC Act'). On 2.12.1993 cognizance was taken.

4. It is submitted that the District Magistrate had no authority H

A to grant sanction purportedly under Section 196 of the Code.

Further in the petition before the High Court it was categorically stated as follows:

"15. That it is stated that the lncharge of the Peon Book or

B the Issue Register is not the petitioner. It is in the hands of the clerk of the office and the concerned clerk was the appointee of Dr. A.A. Mallick whose services has been terminated as his appointment itself was illegal and during his termination process from service, he connived with the informant and have done all the mischiefs against the c petitioner."

5. As noted above, a petition under Section 482 was filed, which was rejected by the High Court primarily on the ground that no sanction was required. No other question was decided.

D It is pointed out by learned counsel for the appellant that on the basis of the FIR given by the appellant, respondent No.2 has been convicted under Section 18A and 28 of the Drugs Act and " Sections 420 and 468 IPC.

6. In support of the appeal, learned counsel for the appellant E submitted that the factual scenario as noted above goes to show ttie allegations were made as a counter blast by respondent No.2 for the action taken against him. With a view to harass and humiliate the appellant a complaint was filed. The appellant had acted in course of his official duty and the High Court should

F not have dismissed the petition on the ground that no sanction was necessary, without considering the mala fides.

7. Learned counsel for the respondent-State on the other hand supported the judgment of the High Court.

8. There is no appearance on behalf of respondent no.2 in spite of service of notice.

9. As the factual scenario goes to show the complaint filed on 4.2.1993 appe1rs to be a counter blast by respondent No.2 for the action taken by the appellant against him.

10. The pivotal issue i.e. applicability of Section 197 of A the Code needs careful consideration. In Bakhshish Singh Brar

v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-

"It is necessary to protect the public servants in the B

discharge of their duties. In the facts and circumstances 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 c

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 D done in the di'Scharge 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." E

11. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate F

protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection.has certain G 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 H

A act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from 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, B 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 C discharge of his official duties. It is not the duty 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

0 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 E 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 his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of F his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

12. At this juncture, we may refer to P Arulswami v. State of Madras (AIR 1967 SC 776), wherein this Court held as under:

" ... It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even H every act done by him while he is actually engaged in the

performance of his official duties; but if the act complained A 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 quality of the act that is important and if it falls within the scope and range of his official duties the protection B contemplated by Section 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 the official duty. Where it is unconnected with the official duty there can be no c 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."

13. Prior to examining if the Courts below committed any error of law in discharging the accused it may not be out of place D to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of E the Code reads as under:

"197. (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 F by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -

(a) in the case of person who is employed or, as the case G 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, wa~ at the time of commission of the alleged H

offence employed, in connection with the affairs of a State, of the State Government.

* * *

(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."

The section falls in the chapter dealing with conditions C requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence o unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any E person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been F committed, was in discharge of the official duty. The section not

only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court G shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken H notice of. According to Black's Law Dictionary the word

~ 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' A or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of B his official duty.

14. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it c mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v.

M. S. Koch<"r (1979 (4) SCC 177), it was held: (SCC pp. 184- 85, para 17) D

>' "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.

E 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 F 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 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), G an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."

Use of the expression, 'official duty' implies that the act or H

A omission must have been done by the public officer in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which B are done by a public servant in discharge of official duty.

15. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been C done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be D limited to those duties which are discharged in course of duty.

But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled E to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the F Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary.

G But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained H by this Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC

44) thus:

"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... there must be a reasonable connection between the act and the

discharge of official duty; the act must bear such relation 8

to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."

16. If on facts, therefore, it is prima facie found that the act c 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.

17. Section 197(1) provides that when any person who is D or was 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'pwporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction E

(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 and (b) in the case of a person who is employE!d or, as the case may be, was at the time of commission F of the alleged offence employed, in. connection with the affairs of a State, of the State Government.

18. We may mention that the Law Commission in its 41 st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed "it appears to us that protection under G the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a H

A complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It B was in pursuance of this observation that the expression 'was' come to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.

19. The above position was highlighted in R. Balakrishna C Pillai v. State of Kera/a and Anr. (1996 (1) SCC 478), State of H.P. v. M.P. Gupta (2004 (2) SCC 349), State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew (2004 (8) SCC 40) and Rakesh Kumar Mishra v. State of Bihar and Ors. (2006 (1) SCC 557).

20. When the factual background as noted above is considered on the touchstone of legal principles set out above the inevitable conclusion is that certainly mala fides were involved

apart from the applicability of Section 197 of the Code. It is no doubt true that at the threshold interference by exercise of E Section 482 of the Code has to be in rare cases. The present case appears to be of that nature and falls under category (7) indicated in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335). The continuance of the proceedings by the prosecution would amount to abuse of the process of F law. The criminal proceedings in the Court of learned Chief

Judicial Magistrate, Begusarai in PS Case No.63/1993 are quashed. The appeal is allowed.

K.K.T.

Appeal .allowed