Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties.

Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - sanction under Section 197 of the CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties.

Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy Vs. Manmohan Singh 4 ]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty”, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao] 5 . The real question, therefore, is whether the act committed is directly concerned with the official duty

What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent No.2 pertained to the subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No.2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 of the CrPC qua these two other officers. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No.2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well. In view of the aforesaid, the appeals are dismissed.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 593 OF 2021

[Arising out of SLP (Crl) No. 1605 of 2018]

INDRA DEVI ……APPELLANT

VERSUS

STATE OF RAJASTHAN & ANR. ….RESPONDENTS

WITH

CRIMINAL APPEAL NO. 594 OF 2021

[Arising out of SLP (Crl) No.5015 of 2021

D.No. 7196 of 2019]

STATE OF RAJASTHAN ……APPELLANT

VERSUS

YOGESH ACHARYA ….RESPONDENT

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Indra Devi, the appellant, is the complainant in FIR No.80 dated

23.02.2011 registered under Sections 420/467/468/471/120B of the IPC and

Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe

(Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. It was alleged

that she and her husband Bhanwar Lal purchased two plots in Khasra

1

No.1179/03 located in Distt. Barmer. Out of these two plots, one plot was

sold to one Megharam while another plot was sold to one Chetan Choudhary.

In the plot purchased in the name of her husband, a residential house and

shops are stated to have been made. Megharam is alleged to have

tampered with and fabricated the agreement with the intention to defraud.

This was allegedly done in collusion with the then executive officer of the

Municipality, one Surender Kumar Mathur and “the concerned clerk and

others”, by enlarging the dimensions of the plot which have been sold to him

with the intention to grab the land and house occupied by the complainant

and her husband. The Khasra number is also alleged to have been changed

from 1179/03 to 1143/04. This fact is stated to have come to the notice of

the complainant only when they were served with a court notice when they

were in physical possession of the plot with the house and the shop. Her

husband is stated to have gone to Jaipur for treatment of cancer. The

accused persons are, thus, alleged to have committed the offences of

fraudulently making a scheduled caste women, her cancer diagnosed

husband and other family members homeless. It may be noted that

Respondent No.2 herein, Yogesh Acharya was not named in the FIR but,

apparently, he is stated to be “the concerned clerk”.

2. In pursuance of the investigation, a chargesheet was filed and charges

were framed vide order dated 10.04.2012 against Megharam. Once again

Respondent No.2 was not named in the chargesheet but a reference was

made to Megharam acting in collusion with “co-accused persons”.

2

3. The records placed before us do not reflect how Respondent No.2 was

exactly roped in, but suffice to say, Respondent No.2 moved an application

under Section 197 of the CrPC before the trial court stating that he was a

public servant and what he did in respect of allotment of lease, that was

executed in favour of Megharam, was done during the course of his official

duty and thus he was entitled to protection under the aforementioned

provision. He also sought to assail the chargesheet as the same had been

filed without obtaining sanction of the competent authority under Section

197 of the CrPC.

4. The trial court dismissed the application vide order dated 10.08.2017,

while noticing that Respondent No.2 had not been mentioned in the FIR. It

was opined that it was the duty of Respondent No.2 to bring irregularities to

the knowledge of the competent officers, i.e. Megharam had mentioned the

wrong Khasra number in the lease but no documents of ownership of the

land were produced. The trial court was of the view that had the

discrepancies been brought to the knowledge of the competent officers by

Respondent No.2, the disputed lease would not have been issued. The result

of the failure to do so caused the forged lease to be prepared. Respondent

No.2 had also drafted the disputed lease in which he failed to mention

necessary details. It was, thus, opined that Respondent No.2 was liable to be

prosecuted against for having committed criminal offence to procure a

forged lease. What Respondent No.2 did was held not to be done by the

3

public servant in discharge of his official duty and thus protection under

Section 197 of the CrPC would not come to his aid.

5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017

under Section 482 of the CrPC before the High Court of Judicature at Jodhpur

assailing the said order of the trial court. The High Court, vide impugned

order dated 03.10.2017, allowed the petition. It was opined that the case

was similar to the one of Devi Dan v. State of Rajasthan

1

. The High Court

had opined therein that sanction under Section 197 of the CrPC was required

before triggering any prosecution against the Station House Officer for

filing/failing to file an FIR and for other criminal acts committed during the

discharge of his duties. The complainant, aggrieved by the said judgment,

has approached this court by filing a special leave petition. The State has

also filed an SLP. Leave was granted in both the matters.

6. The appellant contended before us that the involvement of Respondent

No.2 only came to light during investigation. He had failed to bring the

irregularities to the knowledge of his superiors which was instrumental in

issuing the forged lease. Thus, he had conspired with his superiors in

dishonestly concealing the forgery, and intentionally omitting mentioning the

date of the proceedings on the order sheet. Such action of forging

documents would not be considered as an act conducted in the course of his

official duties and, thus Section 197 of the CrPC would not give protection to

Respondent No.2.

1 Crim. Misc. Pet. No.2177/2013 decided on 10.10.2014

4

7. On the other hand, Respondent No.2 endeavoured to support the

impugned judgment of the High Court by emphasising that in FIR only

Megharam alongwith some unnamed officials were mentioned. Surender

Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition

under Section 482 of the CrPC relating to the same transaction and the High

Court had granted him protection under Section 197 of the CrPC vide order

dated 22.02.2018. The conduct of putting his initials was held to be an act

done in discharge of his duties. Similarly, Sandeep Mathur, a Junior

Engineer, who was part of the same transaction, was granted protection by

the Sessions Court vide order dated 19.03.2020, once again under the same

provision, i.e., Section 197 of the CrPC. Both the orders remained

unchallenged by the complainant and the State. Further, it has been argued

that Respondent No.2 was simply carrying out his official duty which is

apparent from the work allotted to him that pertained to allotment,

regularisation, conversion of agricultural land and all kinds of work relating to

land and conversion. The application of Megharam was routed through the

office, and the proceedings show that the file was initially put up before the

Executive Officer, who directed inspection, which was carried out by the

Junior Engineer. Thereafter, file was placed before the Executive Officer

again and only then was it signed by the Municipal Commissioner. The two

key people involved in the process had already been granted protection and

thus Respondent No.2 herein, who was merely a Lower Division Clerk, could

not be denied similar protection.

5

8. Learned counsel for Respondent relied upon the judgments of this

Court in B. Saha & Ors. Vs. M.S. Kochar

2

 and State of Maharashtra Vs. Dr.

Budhikota Subbarao

3

 to contend that Section 197 of the CrPC ought to be

read in a liberal sense for grant of protection to the public servant with

respect to actions, which though constitute an offence, are “directly and

reasonably” connected with their official duties.

9. We have given our thought to the submissions of learned counsel for

the parties. Section 197 of the CrPC seeks to protect an officer from

unnecessary harassment, who is accused of an offence committed while

acting or purporting to act in the discharge of his official duties and, thus,

prohibits the court from taking cognisance of such offence except with the

previous sanction of the competent authority. Public servants have been

treated as a special category in order to protect them from malicious or

vexatious prosecution. At the same time, the shield cannot protect corrupt

officers and the provisions must be construed in such a manner as to

advance the cause of honesty, justice and good governance. [See

Subramanian Swamy Vs. Manmohan Singh

4

]. The alleged indulgence of the

officers in cheating, fabrication of records or misappropriation cannot be said

to be in discharge of their official duty. However, such sanction is necessary

if the offence alleged against the public servant is committed by him “while

acting or purporting to act in the discharge of his official duty” and in order

2 (1979) 4 SCC 177

3 (1993) 3 SCC 339

4 (2012) 3 SCC 64

6

to find out whether the alleged offence is committed “while acting or

purporting to act in the discharge of his official duty”, the yardstick to be

followed is to form a prima facie view whether the act of omission for which

the accused was charged had a reasonable connection with the discharge of

his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]

5

. The real

question, therefore, is whether the act committed is directly concerned with

the official duty.

10. We have to apply the aforesaid test to the facts of the present case. In

that behalf, the factum of Respondent No.2 not being named in the FIR is not

of much significance as the alleged role came to light later on. However,

what is of significance is the role assigned to him in the alleged infraction,

i.e. conspiring with his superiors. What emerges therefrom is that insofar as

the processing of the papers was concerned, Surendra Kumar Mathur, the

Executive Officer, had put his initials to the relevant papers which was held

in discharge of his official duties. Not only that, Sandeep Mathur, who was

part of the alleged transaction, was also similarly granted protection. The

work which was assigned to Respondent No.2 pertained to the subject matter

of allotment, regularisation, conversion of agricultural land and fell within his

domain of work. In the processing of application of Megharam, the file was

initially put up to the Executive Officer who directed the inspection and the

inspection was carried out by the Junior Engineer and only thereafter the

Municipal Commissioner signed the file. The result is that the superior

5 supra

7

officers, who have dealt with the file, have been granted protection while the

clerk, who did the paper work, i.e. Respondent No.2, has been denied similar

protection by the trial court even though the allegation is of really conspiring

with his superior officers. Neither the State nor the complainant appealed

against the protection granted under Section 197 of the CrPC qua these two

other officers.

11. We are, thus, not able to appreciate why a similar protection ought not

to be granted to Respondent No.2 as was done in the case of the other two

officials by the Trial Court and High Court respectively. The sanction from

competent authority would be required to take cognisance and no sanction

had been obtained in respect of any of the officers. It is in view thereof that

in respect of the other two officers, the proceedings were quashed and that

is what the High Court has directed in the present case as well.

12. In view of the aforesaid, the appeals are dismissed leaving the parties

to bear their own costs.

……..……………………………….J.

 [SANJAY KISHAN KAUL]

……..……………………………….J.

 [HEMANT GUPTA]

NEW DELHI.

JULY 23, 2021

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