Code of Criminal Procedure, 1973 – s.197 – Prosecution of Judges and public servants – Incident of indiscriminate firing by eight persons including main accused at Firozabad resulting in death of the brother of the appellant and grievous injuries to brother's son – FIR by appellant – On the same day, another FIR registered against the main accused by respondent no. 5-head constable for carrying bottles of illegal foreign liquor at Gwalior – Respondent no.5, alongwith respondent no. 3-Head Constable and respondent no. 4-A.S.I. arrested the accused and released him on bail the same day – Chargesheet submitted by IO – Chargesheet also submitted in the first FIR stating that investigation was still pending against respondent no. 1, Town Inspector, respondent nos. 3, 4, 5 for shielding the accused – Thereafter, application by IO for staying the proceedings against the accused as regards illegal liquor case alleging that respondent no. 1 was a relative of the accused and respondent nos. 3, 4, 5 had conspired to create a bogus case with the object of providing the main accused with an alibi for alleged crime committed at Firozabad which was rejected – Application by IO seeking sanction u/s.197 for prosecuting the respondents – Sanction could not be granted till the disposal of the trial in case arising out of FIR in Gwalior – Appellant sought quashing of criminal proceedings in the case regarding seizure of illegal liquor – High Court stayed the proceedings – Supplementary charge sheets filed against respondents for being involved in hatching conspiracy of murder of the appellant's brother and CJM took cognizance – Respondents then filed application seeking quashing the proceedings arising out of the supplementary charge sheets – High Court quashed the proceedings on the ground that sanction to prosecute respondents u/s.197 was necessary – Correctness: Held: When a police official is said to have lodged a false case, he cannot claim that sanction for prosecution u/s. 197 was required since it can be no part of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same – There exists no reasonable or rational nexus between such an act and the duties assigned to the public servant for the claim that it was done or purported to be done in the discharge of his official duty – Mere fact that an opportunity to register a false case was furnished by the official duty would certainly not be sufficient to apply s. 197 – Allowing so, would enable the accused to use their status as public servants as a facade for doing an objectionable, illegal and unlawful act and take undue advantage of their position – If case registered in Gwalior was a false case then refusal to grant sanction would not operate as a bar for their prosecution – Moreover, the respondent no. 1 was not even posted as the S.H.O or T.I at the Police Station when the said false case was registered – Respondent no. 1 himself admitted that he was in fact posted at District, 120 kms away from Gwalior during the relevant time – Thus, any act or offence committed by the respondent no. 1 can safely be said to have been outside the scope of his official duty which obviates the question of sanction for his prosecution – Requirement of sanction is one that may arise at any stage of the proceeding – No requirement of sanction for respondent no. 1 as he was not posted at the Police station in Gwalior at the relevant time where the alleged false was registered – For respondent nos 3, 4, 5 if the prosecution case is correct that they also played dubious role in registering a false case, then the requirement of sanction would not be a sin qua non for proceeding further with the criminal proceedings – However, the defence must be given an opportunity to rebut the same by leading appropriate evidence – Criminal proceedings pending before the CJM, Firozabad should not have been quashed at such a preliminary stage – CJM, Firozabad rightly took cognizance of the charge sheets – High Court erred in considering this aspect while quashing the proceedings – Trial court directed to proceed with the trial and at any stage of trial if evidence suggests that the acts complained of were indeed done or purported to be done in the discharge of official duty by respondent nos. 3, 4 and 5 or that the FIR registered by them was not bogus, the trial may be stayed for want of sanction – Thus, the question of sanction only qua respondent nos. 3, 4 and 5 left open to be appropriately decided by the trial court at a suitable stage – Impugned order passed by the High Court set aside. [Paras 67, 75-86]
Code of Criminal Procedure, 1973 – s.197 – Object behind enactment of s.197 – Construction of expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” in s.197 – Tests for applicability of s. 197 – Explained. [Paras 40-66, 68-74]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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