Jagdish Singh Khehar, J.

1. Leave granted.

2. Surinderjit Singh Mand and P.S. Parmar, the appellants before this Court, while holding the rank of Deputy Superintendent of Police, were posted in District Kapurthala, in the State of Punjab, during the relevant period in 1999. Piara Lal (holding the rank of Assistant Sub-Inspector), was also posted at Kapurthala, at the same time. The above mentioned Piara Lal’s son - Neeraj Kumar was officially arrested on 28.06.1999. The arrest of Neeraj Kumar, was made in furtherance of a First Information Report bearing No.30, which was registered at Police Station City, Kapurthala on 03.03.1999. Before the arrest of Neeraj Kumar, his father Piara Lal was placed under suspension on 10.06.1999. The aforesaid FIR No.30, we were informed, was in respect of complaints made by residents of Kapurthala, pertaining to theft of motorcycles and other vehicles in the city.

3. It was pointed out, that while investigating into the allegations contained in the complaint dated 03.03.1999, three persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj Kumar was granted bail on 30.06.1999. In the above view of the matter, it is apparent that Neeraj Kumar had remained in jail for just about two/three days (from 28.06.1999 to 30.06.1999). Usha Rani - mother of Neeraj Kumar (detained during the investigation of FIR No. 30), filed a representation asserting, that her son had been detained on 24.06.1999 (and not on 28.06.1999, as alleged). That would make the duration of his arrest as of six/seven days. The present controversy pertains to the additional four/five days of the arrest of Neeraj Kumar. Her complaint highlighted, that her son – Neeraj Kumar was apprehended illegally and unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for four/five days.

4. Investigation into the complaint made by Usha Rani, was directed to be conducted in the first instance, by Munish Chawla, IPS. In the report submitted by him, it was concluded, that the charge levelled by the mother of Neeraj Kumar, could not be substantiated. Yet again, based on the accusations levelled by Usha Rani, another investigation was ordered. This time, it was required to be conducted by M.F. Farooqi, IPS. Yet again, in the second enquiry, it was concluded, that there was no material to establish that Neeraj Kumar had been in police detention from 24.06.1999 onwards, till his formal arrest on 28.06.1999. Despite the two reports submitted by two senior police officers, wherein it was found that there was no substance in the allegations levelled by Usha Rani, Gurpreet Deo, IPS, at her own, investigated into the matter. She too arrived at the same conclusion, that there was no substance in the claim of Usha Rani, that her son had been illegally and unauthorisedly detained by police personnel, prior to his formal arrest on 28.06.1999.

5. Usha Rani (mother of Neeraj Kumar) made another written complaint, this time to the Hon'ble Administrative Judge (a sitting Judge of the Punjab and Haryana High Court) having charge of Sessions Division, Kapurthala, on 01.10.1999. In her complaint, she reiterated, that her son Neeraj Kumar had been illegally detained by police personnel, on 24.06.1999. The Hon'ble Administrative Judge marked the complaint, dated 01.10.1999, to an Additional District and Sessions Judge, posted in the Sessions Division of Kapurthala, requiring him to look into the matter. On 25.09.2000, the concerned Additional District and Sessions Judge, Kapurthala, submitted a report concluding, that Neeraj Kumar had been falsely implicated, because he and some other accused had been discharged by a Court, from the proceedings initiated against them. Based on the aforesaid report dated 25.09.2000, First Information Report bearing No.46, came to be registered at Police Station City Kapurthala, on 22.10.2002.

6. After completion of police investigation in the above FIR No.46, a chargesheet was filed against six police officials, in the Court of the Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Before the aforesaid chargesheet was filed, the prosecution had obtained sanction under Section 197 of the Code of Criminal Procedure (hereinafter referred to as, the ‘Code’) for prosecuting the six concerned police officials. It is also relevant to mention, that it was the express contention of the appellants, that on the conclusion of investigation, no involvement of the appellants had emerged, and therefore, their names were recorded in Column No.2. It was submitted, that the aforesaid depiction of the names of the appellants in Column No.2 by itself, demonstrates their innocence (with reference to the allegations made by Usha Rani, that her son Neeraj Kumar had been illegally detained from 24.06.1999).

7. It is not a matter of dispute, that after the statements of three prosecution witnesses were recorded by the trial Court, Usha Rani moved an application under Section 319 of the ‘Code’ before the trial Judge – the Chief Judicial Magistrate, Kapurthala, for taking cognizance against the appellants herein. The aforesaid application was allowed by the trial Court, on 06.09.2003. Thereupon, the appellants were summoned by the Chief Judicial Magistrate, Kapurthala, to face trial. The appellants contested their summoning before the trial Court by asserting, that their prosecution was unsustainable in law, because no sanction had been obtained by the prosecution under Section 197 of the ‘Code’, before cognizance was taken against them.

8. Consequent upon the appellants having been summoned by the trial Court, charges were framed against them on 23.12.2006. The order passed by the trial Court framing charges against the appellants on 23.12.2006 was assailed by the appellants, through Criminal Revision No.348 of 2007. The primary submission advanced on behalf of the appellants before the High Court was, that the Chief Judicial Magistrate, Kapurthala, could not have proceeded against them, in the absence of sanction of prosecution, under Section 197 of the ‘Code’. The High Court, by its order dated 09.01.2008, dismissed the Criminal Revision filed by the appellants. The above order dated 09.01.2008 is subject matter of challenge through the instant appeal.

9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf of the appellants, in order to support the claim of the appellants, has drawn our attention to Section 197 of the ‘Code’, which is extracted hereunder:

10. In order to demonstrate the ambit and scope of the term “while acting or purporting to act in the discharge of his official duty”, learned senior counsel placed reliance on Dr. Hori Ram Singh vs. Emperor , AIR (1939) FC 43, wherein the Court has observed as under:

And as such, the Chief Judicial Magistrate, Kapurthala, could not have taken cognizance, without sanction under Section 197 of the ‘Code’.

11. Mr. Varinder S. Rana, learned counsel, who entered appearance on behalf of respondent no. 2, seriously contested the submissions advanced on behalf of the appellants. Learned counsel representing respondent no. 2, placed reliance on the following observations recorded by the High Court, in the impugned order :

This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the Executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England, the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus is as of right and that the Court has no discretion to refuse it. “Unlike certiorari or mandamus, a writ of habeas corpus is as of right “to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution of India.” (emphasis is ours)

12. The first task, which a Court is obliged to embark upon, when confronted with a proposition of the nature in hand, is to ascertain as to whether the alleged offence, attributed to the accused, had been committed by an accused “while acting or purporting to act in the discharge of his official duty”. In the facts and circumstances of the present case, the alleged action constituting the allegations levelled against the appellants, is based on the arrest and detention of Neeraj Kumar from 24.06.1999 upto 28.06.1999 (before, he was admitted to have been formally arrested on 28.06.1999).

13. Insofar as the power of arrest and detention by police officials/officers is concerned, reference may be made to Section 36 of the ‘Code’ which postulates, that all police officers superior in rank to an officer in charge of a police station, are vested with an authority to exercise the same powers (throughout the local area, to which they are appointed), which can be exercised by the officer in charge of a police station. Section 49 of the ‘Code’ postulates, the manner in which a police officer is to act, while taking an individual in custody. Section 49 of the ‘Code’, cautions the person making the arrest to ensure, that the individual taken into custody, is not subjected to more restraint than is necessary, to prevent his escape. Section 50 of the ‘Code’ mandates, that every police officer arresting a person without a warrant (as is the position, alleged in the present case), is mandated to forthwith disclose to the person taken in custody, full particulars of the offence for which he is arrested, as also, the grounds for such arrest. Section 50A obliges the police officer making the arrest, to immediately inform friends/relatives of the arrested person (on obtaining particulars from the arrested person), regarding his detention. And an entry of the arrest, and the communication of the information of the arrest to the person nominated by the detenu, has to be recorded in a register maintained at the police station, for the said purpose. Section 50A of the ‘Code’ also mandates, that the Magistrate before whom such an arrested person is produced, would satisfy himself that the obligations to be discharged by the arresting officer, had been complied with.

14. Based on the aforesaid provisions of the ‘Code’, there cannot be any serious doubt about the fact, that Surinderjit Singh Mand and P.S. Parmar, were holding the rank of Deputy Superintendent of Police, at the relevant time (from 24.06.199 to 28.06.1999). Both the appellants were “...officers superior in rank to an officer in charge of a police station...”. Both the appellants were therefore possessed with the authority to detain and arrest, Neeraj Kumar at the relevant time (from 24.06.1999 to 28.06.1999). The question for complying with the requirements in Sections 49 , 50 and 50A does not arise for the period under reference (from 24.06.1999 to 28.06.1999), because Neeraj Kumar according to official police records, was arrested only on 28.06.1999. The position adopted by the appellants was, that Neeraj Kumar was not under detention for the period from 24.06.1999 to 28.06.1999.

15. Keeping the legal position emerging from the provisions of the ‘Code’ referred to in the foregoing paragraphs in mind, it was the contention of learned counsel for the respondents, that in order to require sanction under Section 197 of the ‘Code’, it needs to be further established, that the appellants had acted in the manner provided for under the provisions of the ‘Code’, during the period Neeraj Kumar was allegedly arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formal arrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction under Section 197 would arise, because in that situation, the offence allegedly committed would be taken to have been committed “while acting or purporting to act in the discharge of their official duties”. In the present case, the arrest and detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, is denied. The formalities postulated under the ‘Code’, on the alleged arrest of Neeraj Kumar on 24.06.1999, were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrested on that date. It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true, was obviously without following the mandatory conditions of arrest and detention, contemplated under the provisions ( referred to above ). And therefore, would not fall within the realm of “acting or purporting to act in the discharge of their official duties”.

16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel for the respondents placed reliance on P.P. Unnikrishnan vs. Puttiyottil Alikutty , (2000) 8 SCC 131, and invited our attention to the following observations recorded therein:

17. Having given our thoughtful consideration to the contention advanced at the hands of learned counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P. Unnikrishnan case (supra) 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 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made “while acting or purporting to act in the discharge of their official duties”. The factual position expressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999. 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 evidence adduced before the trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while acting or purporting to act in the discharge of their official duties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jail during the period from 24.06.1999 to 28.06.1999. 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 the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect.

18. It was also the contention of learned counsel for the appellants, that the protection afforded to public servants under Section 197 of the ‘Code’, postulating sanction prior to prosecution, on account of the acts committed while discharging their official duties, is to shield public servants from frivolous harassment of prosecution, at the hands of private individuals. It was therefore, the submission of learned counsel for the respondents, that the scope and purview of Section 197 of the ‘Code’, should be limited to the initiation of criminal proceedings under Chapter- XIV of the ‘Code’, wherein such initiation is postulated under Section 190 (upon receipt of a complaint, wherein facts disclose the commission of an offence, or upon a police report of such facts, or upon information received from any person other than a police officer, that such offence had been committed). In all the above situations, it is open to a Magistrate to take cognizance of such offence subject to the condition, that the same falls within the jurisdictional competence of the said Magistrate. The Magistrate would however proceed against a public servant, after sanction has been granted by the concerned Government. And in case, the same does not fall within the competence of a Magistrate, to commit it to a Court of Session, which can take cognizance of the same, as provided for by Section 193 of the ‘Code’. Whereupon, the Court to which the matter is committed may proceed against a public servant, after sanction has been granted by the concerned Government under Section 197 of the ‘Code’. In emphasizing on the above scope of sanction, it was pointed out, that Section 197 of the ‘Code’ being a part of Chapter-XIV of the ‘Code’, its applicability would extend to the provisions under Chapter-XIV alone. It was submitted, that Section 319 of the ‘Code’ is contained in Chapter XXIV, over which Section 197 can have no bearing.

19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by learned counsel representing the respondents, that the prosecution contemplated under Section 197 of the ‘Code’, and the action of the Court in taking cognizance, pertain to actions initiated on the basis of complaints, which disclose the commission of an offence, or on a police report of such facts, or upon receipt of information from a person other than the police officer, that such offence had been committed. It was asserted, that the above action of taking cognizance by a Court, is based on alleged “facts” and not “on evidence” recorded by a Court. The above distinction was drawn by referring to Section 190 of the ‘Code’ which contemplates initiation of action on the basis of facts alleged against an accused, as against, Section 319 of the ‘Code’ whereunder action is triggered against the concerned person only if it appears from the evidence recorded during the trial, that the said person was involved in the commission of an offence. While making a reference to Section 319 of the ‘Code’, it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the ‘Code’, was by the Court itself, and therefore, the same having been based on “evidence”, as also, the satisfaction of the Court itself, that such person needed to be tried together with the “other accused”, it seemed unreasonable, that sanction postulated under Section 197 of the ‘Code’ should still be required. It was pointed out, that the protection contemplated under Section 197 of the ‘Code’, was not a prerequisite necessity, when cognizance was based on the evaluation of “evidence” by a Court itself. Learned counsel emphasized, that when a Court itself had determined, that cognizance was required to be taken, based on evidence which had been recorded by the same Court, it would be undermining the authority of the concerned Court, if its judicial determination, was considered subservient to the decision taken by the authorities contemplated under Section 197 of the ‘Code’. Based on the submissions noticed above, it was the vehement contention of learned counsel for the respondents, that the mandate of Section 197 would not extend to cases where cognizance had been taken under Section 319 of the ‘Code’.

20. While dealing with the first contention, we have already recorded our conclusions, which are sufficient to dispose of the matter under consideration. But, an important legal proposition has been canvassed, as the second submission, on behalf of the respondents (which we have recorded in the foregoing paragraph). Since it squarely arises in the facts and circumstances of this case, we consider it our bounden duty, to render our determination thereon, as well. In the succeeding paragraphs, we will deal with the second contention.

21. Insofar as the second contention advanced at the hands of learned counsel for the respondents is concerned, we are of the view that there is sufficient existing precedent, to draw a conclusion in respect of the proposition canvassed. Reference in the first instance may be made to Dilawar Singh vs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709. The following observations in the above cited judgment are of relevance to the present issue:

This section creates a complete bar on the power of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to

(c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7 , 10 , 11 , 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.

5. In State v. Raj Kumar Jain , (1998) 6 SCC 551, the Court was examining the scope of Section 6(1) of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) of the Prevention of Corruption Act, 1947, it was held as under in para 5 of the Report: (SCC pp. 552-53) "5. From a plain reading of the above section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions."

6. In Jaswant Singh v. State of Punjab , AIR 1958 SC 124, sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision.

7. In State of Goa v. Babu Thomas , (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was held that in the absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh, ASI is clearly erroneous in law.

(emphasis is ours) The above issue was also examined by this Court in Paul Varghese vs. State of Kerala , (2007) 14 SCC 783, wherein this Court observed as under :

The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution.

24. For the reasons recorded hereinabove, and in view of the conclusions recorded by us in paragraph 17, we are of the view that there is no merit in the instant appeal and the same deserves to be dismissed. Ordered accordingly.

..........................J. (JAGDISH SINGH KHEHAR) ..........................J. (C.NAGAPPAN) NEW DELHI;

JULY 05, 2016.

Criminal Appeal No(s).565/2016 @ SLP(Crl.) No.3406/2008 SURINDERJIT SINGH MAND & ANR. Appellant(s) VERSUS STATE OF PUNJAB & ANR. Respondent(s) [HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE C.NAGAPPAN, JJ.] Date : 05/07/2016 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Yash Pal Dhingra,Adv.

Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.

For the reasons recorded in the Reportable judgment, which is placed on the file, the appeal is dismissed.