Code of Criminal Procedure, 1973 – ss.197, 482 – Complainant alleged sexual harassment during her tenure at FSSAI – Enquiry report of ICC found accused-SSG guilty of the charges – SSG challenged the report before CAT – Meanwhile, appellant herein got posted at FSSAI and she was appointed PO of ICC – Before the Tribunal, the appellant filed a counter-affidavit on behalf of respondent nos. 3, 6, 7 (including complainant) defending the enquiry report – However, complainant asserted that she had not authorised the appellant to file affidavit on her behalf – In response, the FSSAI filed a Misc. application and sought amendment in the counter-affidavit since the complainant was willing to defend herself independently – In the interregnum, FIR was already filed by the complainant against the SSG, though appellant was not named in FIR her name surfaced during statement recorded u/s. 164 of CrPC – Complainant alleged that appellant threatened and pressurized her to withdraw case – In charge-sheet appellant was arrayed as accused no.4 – Sanction u/s.197 CrPC was not granted within stipulated time period and it was deemed to be have been received – Special Chief Judicial Magistrate took cognizance and summons were issued – Appellant sought quashing of charges against her – Her petition was dismissed by the High Court – Correctness:
Held: The counter affidavit reproduces the conclusions and recommendations of the ICC and has therefore sought dismissal of the Original Application filed by SSG – Thus, the said counter affidavit does not reveal any aspersions made by the appellant or the Authority against the complainant, or any averment to defend the actions of the accused-SSG – The counter affidavit has been filed by the appellant in her official capacity as the Director, FSSAI and the Presiding Officer, ICC – The appellant respected the desire of the complainant to represent her case independently and therefore filed Misc. application before the Tribunal, seeking to amend the counter affidavit filed earlier – Thus, there is no criminal intent on the part of the appellant to cheat the complainant or wrongfully represent her in the proceedings before the Tribunal – As far as issue of sanction for prosecution arising in the present case is concerned, it is only to be seen if the accused public servant was acting in the performance of his/her official duties, and if the answer is in the affirmative, then prior sanction for their prosecution is a condition precedent to the cognizance of the cases against them by the courts – In the instant case, the appellant had filed the counter affidavit and interacted with the complainant in her capacity of a Presiding Officer, ICC – The correctness of the allegations with regard to the conduct of the appellant need not be ascertained herein by this Court but the fact that she was acting in her official duty is sufficient to hold that a prior sanction from the department was in fact necessary before the Magistrate taking cognizance against her – The Magistrate therefore erred in proceeding to take cognizance against the appellant without the sanction for prosecution being received from BIS – Since, BIS has eventually refused to grant sanction for the prosecution of the appellant, the prosecution against the appellant could not have been sustained – The High Court erred in not considering the fact that the sanction for prosecution was not granted by the competent authority u/s. 197 of the CrPC and eventually the sanction was expressly denied by the competent authority with respect to the allegations against the appellant – Consequently, the chargesheet, the summoning order and the consequent steps, if any, taken by the trial court pursuant to the same are liable to be quashed qua the appellant. [Paras 21, 22, 23, 29, 32] Code of Criminal Procedure, 1973 – s.197 – Prosecution of Judges and public servants – Deemed sanction – In the instant case, the charge-sheet stated that the sanction for the prosecution of accused no.4 and others was sought u/s. 197 of the CrPC, but since the sanction was not granted within the stipulated time period, the sanction for prosecution was deemed to have been received – The Special Chief Judicial Magistrate took cognizance of the charge-sheet and issued summons – Propriety:
Held: Section 197 of CrPC does not envisage a concept of deemed sanction – The Magistrate was not right in taking cognizance of the offence against the appellant herein without there being a sanction for prosecution granted by the competent authority. [Paras 30, 32]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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