{"id":241923,"date":"2009-05-05T00:00:00","date_gmt":"2009-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-paras-nath-singh-on-5-may-2009"},"modified":"2017-01-18T12:13:38","modified_gmt":"2017-01-18T06:43:38","slug":"state-of-u-p-vs-paras-nath-singh-on-5-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-paras-nath-singh-on-5-may-2009","title":{"rendered":"State Of U.P vs Paras Nath Singh on 5 May, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Paras Nath Singh on 5 May, 2009<\/div>\n
Bench: Arijit Pasayat, D.K. Jain, Mukundakam Sharma<\/div>\n
                                   2009 (8 ) SCR 85\n                         STATE OF U.P.\n                                v.\n                      PARAS NATH SINGH\n                (Criminal Appeal No.<\/a> 499 of 2004)\n                                MAY 5, 2009\n         [DR. ARIJIT PASAYAT, D. K. JAIN AND DR.\n               MUKUNDAKAM SHARMA, JJ.]\n\n\n    The Judgment of the Court was delivered by\n\n    DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order passed\nby a learned Single Judge of the Allahabad High Court dismissing the appeal\nfiled by the appellant-State. The Criminal Misc. Case was filed seeking grant of\nleave to prefer an appeal against the judgment and order dated 19.4.2007\npassed by V Additional Sessions Judge, Sitapur, whereby the accused-\nrespondent was directed to be acquitted of the charges relatable to Sections 409<\/pre>\n
and 468 of the Indian, Penal Code, 1860 (in short `IPC’). The only factor which
\nweighed with the High Court in refusing grant of leave to appeal was that the
\nperson who granted sanction for initiation of the criminal proceedings was not the
\nauthority to do so. It is to be noted that the trial in this case was held by learned
\nChief Judicial Magistrate, Sitapur. The accused faced trial for alleged commission
\nof offence punishable under Sections 409, 420, 461 and 468 IPC. The trial court
\nheld that the accused was guilty of offence punishable under Sections 409 and
\n468 IPC. In appeal, learned V Additional Sessions Judge, Sitapur, allowed the
\nappeal primarily on three grounds. Firstly, it was held that the person who
\naccorded sanction was not authorised to do so. Secondly, it was observed that in
\nview of the provisions contained under Sections 218, 219 and 220 of the Code of
\nCriminal Procedure, 1973 (in short ‘Code’) charges could not have been framed
\nin respect of the transaction for more than one year and, therefore, because of
\nthe framing of wrong charges the accused was entitled to acquittal. Finally, it was
\nobserved that appropriate questions were not put while the accused was
\nexamined under Section 313 of the Code. In this context the Appellate Court
\nreferred to the question of sanction by the inappropriate authority. As noted
\nabove, the High Court referred to only the question of authority of the person
\ngranting sanction.\n<\/p>\n
    2. Learned counsel for the appellant submitted that no part of the alleged
\noffence is protected under Section 197 of the Code, and the effect of Section 464
\nof the Code has to be seen.\n<\/p>\n
    3. Prior to examining whether the Courts below committed any error of law in
\ndischarging the accused it may not be out of place to examine the nature of
\npower exercised by the Court under Section 197 of the Code and the extent of
\nprotection it affords to public servant, who apart, from various hazards in
\ndischarge of their duties, in absence of a provision like the one may be exposed
\nto vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:\n<\/p>\n
          “197(1) When any person who is or was a Judge or Magistrate or a
\n    public servant not removable from his office save by or with the sanction of
\n    the Government is accused of any offence alleged to have been committed
\n    by him while acting or purporting to act in the discharge of his official duty,
\n    no Court shall take cognizance of such offence except with the previous
\n    sanction –\n<\/p><\/blockquote>\n
           (a) in the case of person who is employed or, as the case may be,
\n           was at the time of commission of the alleged offence employed, in
\n           connection with the affairs of the Union, of the Central Government;\n<\/p><\/blockquote>\n
           (b) in the case of a person who is employed or, as the case may be,
\n           was at the time of commission of the alleged offence employed, in
\n           connection with the affairs of a State, of the State Government.\n<\/p><\/blockquote>\n
           xxx xxx         xxx<\/p>\n
           (2) No Court shall take cognizance of any offence alleged to have
\n           been committed by any member of the Armed Forces of the Union
\n           while acting or purporting to act in the discharge of his official duty,
\n           except with the previous sanction of the Central Government.”\n<\/p><\/blockquote>\n
    4. The Section falls in the chapter dealing with conditions requisite for
\ninitiation of proceedings. That is if the conditions mentioned are not made out or
\nare absent then no prosecution can be set into motion. For instance no
\nprosecution can be initiated in a Court Sessions under Section 193, as it cannot
\ntake cognizance, as a court of original jurisdiction, of any offence unless the case
\nhas been committed to it by a Magistrate or the Code expressly provides for it.\n<\/p><\/blockquote>\n
And the jurisdiction of a Magistrate to take cognizance of any offence is provided
\nby Section 190 of the Code, either on receipt of a complaint, or upon a police
\nreport or upon information received from any person other than police officer, or
\nupon his knowledge that such offence has been committed. So far as public
\nservants are concerned the cognizance of any offence, by any court, is barred by
\nSection 197 of the Code unless sanction is obtained from the appropriate
\nauthority, if the offence, alleged to have been committed, was in discharge of the
\nofficial duty. The Section not only specifies the persons to whom the protection is
\nafforded but it also specifies the conditions and circumstances in which it shall be
\navailable and the effect in law if the conditions are satisfied. The mandatory
\ncharacter of the protection afforded to a public servant is brought out by the
\nexpression, ‘no court shall take cognizance of such offence except with the
\nprevious sanction’. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that
\nthe bar on the exercise of power of the court to take cognizance of any offence is
\nabsolute and complete. Very cognizance is barred. That is the complaint cannot
\nbe taken notice of. According to Black’s law Dictionary the word ‘cognizance’
\nmeans ‘Jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine
\ncauses’. In common parlance it means taking notice of. A court, therefore, is
\nprecluded from entertaining a complaint or taking notice of it or exercising
\njurisdiction if it is in respect of a public servant who is accused of an offence
\nalleged to have committed during discharge of his official duty.\n<\/p>\n
    5. Such being the nature of the provision the question is how should the
\nexpression, ‘any offence alleged to have been committed by him while acting or
\npurporting to act in the discharge of his official duty’, be understood? What does it
\nmean? ‘Official’ according to dictionary, means pertaining to an office, and official
\nact or official duty means an act or duty done by an officer in his official capacity.
\nIn B. Saha and Ors. v. M. S. Kochar<\/a> (1979 (4) SCC 177) it was held :(SCC pp.
\n184-85 para 17)<\/p>\n
    “The words ‘any offence alleged to have been committed by him while acting
\n    or purporting to act in the discharge of his official duty’ employed in Section
\n    197(1) of the Code, are capable of a narrow as well as a wide interpretation.
\n    If these words are construed too narrowly, the section will be rendered
\n     altogether sterile, for, ‘it is no part of an official duty to commit an offence,
\n     and never can be’. In the wider sense, these words will take under their
\n     umbrella every act constituting an offence, committed in the course of the
\n     same transaction in which the official duty is performed or purports to be
\n     performed. The right approach to the import of these words lies between two
\n     extremes. While on the one hand, it is not every offence committed by a
\n     public servant while engaged in the performance of his official duty, which is
\n     entitled to the protection of Section 197(1), an Act constituting an offence,
\n     directly and reasonably connected with his official duty will require sanction
\n     for prosecution and the said provision.”\n<\/p>\n
     6. Use of the expression, `official duty’ implies that the act or omission must
\nhave been done by the public in the course of his service and that it should have
\nbeen in discharge of his duty. The Section does not extend its protective cover to
\nevery act or mission done by a public servant in service but restricts its scope of
\noperation to only those acts or omissions which are done by a public servant in
\ndischarge of official duty.\n<\/p>\n
     7. It has been widened further by extending protection to even those acts or
\nomissions which are done in purported exercise of official duty. That is under the
\ncolour of office. Official duty therefore implies that the act or omission must have
\nbeen done by the public servant in course of his service and such act or omission
\nmust have been performed as part of duty which further must have been official
\nin nature. The Section has, thus, to be construed strictly, while determining its
\napplicability to any act or omission in course of service. Its operation has to be
\nlimited to those duties which are discharged in course of duty. But once any act
\nor omission has been found to have been committed by a public servant in
\ndischarge of his duty then it must be given liberal and wide construction so far its
\nofficial nature is concerned. For instance a public servant is not entitled to indulge
\nin criminal activities. To that extent the Section has to be construed narrowly and
\nin a restricted manner. But once it is established that act or omission was done
\nby the public servant while discharging his duty then the scope of its being official
\nshould be construed so as to advance the objective of the Section in favour of the
\npublic servant. Otherwise the entire purpose of affording protection to a public
\nservant without sanction shall stand frustrated. For instance a police officer in
\ndischarge of duty may have to use force which may be an offence for the
\nprosecution of which the sanction may be necessary. But if the same officer
\ncommits an act in course of service but not in discharge of his duty then the bar
\nunder Section 197 of the Code is not attracted. To what extent an act or omission
\nperformed by a public servant in discharge of his duty can be deemed to be
\nofficial was explained by this Court in Matajog Dobey v. H. C. Bhari (AIR<\/a> 1956 SC\n<\/p>\n
44) thus”\n<\/p>\n
            “The offence alleged to have been committed (by the accused) must
\n    have something to do, or must be related in some manner with the discharge
\n    of official duty … there must be a reasonable connection between the act
\n    and the discharge of official duty the act must bear such relation to the duty
\n    that the accused could lay a reasonable (claim) but not a pretended or
\n    fanciful claim, that he did it in the course of the performance of his duty.”<\/p><\/blockquote>\n
    8. If on facts, therefore, it is prima facie found that the act or omission for
\nwhich the accused was charged had reasonable connection with discharge of his
\nduty then the act must be held as official to which applicability of Section 197 of
\nthe Code cannot be disputed.\n<\/p>\n
    9. In S.A. Venkataraman v. The State (AIR 1958 SC 107) and in C. R. Bansi
\nv. The State of Maharashtra<\/a> (1970 (3) SCC 537) this Court has held that :\n<\/p>\n
    “There is nothing in the words used in Section 6(1) to even remotely suggest
\n    that previous sanction was necessary before a court could take cognizance
\n    of the offences mentioned therein in-the case of a person who had ceased to
\n    be a public servant at the time the court was asked to take cognizance,
\n    although he had been such a person at the time the offence was committed.”<\/p><\/blockquote>\n
    10. That apart, the contention of the respondent that for offences under
\nSections 406 and 409 read with Section 120-B of IPC sanction under Section 197
\nof the Code is a condition precedent for launching the prosecution is equally
\nfallacious. This Court has stated the legal position in S.R. Munnipalli v. Bombay
\n(1955 (1) SCR 1177) and in Amrik Singh v. State Pepsu<\/a> (1955 RD-SC 9) that it is
\nnot every offence committed by a public servant, which requires sanction for
\nprosecution under Section 197 of the Code, nor even every act done by him while
\nhe is actually engaged in the performance of his official duties. Following the
\nabove legal position it was held in Harihar Prasad, etc. v. State of Bihar (1972 (3)
\nSCC 89) as follows:\n<\/p>\n
            “As far as the offence of criminal conspiracy punishable under Section
\n    120-8, read with Section 409, Indian Penal Code is concerned and also
\n    Section 5(2) of the Prevention of Corruption Act is concerned, they cannot
\n    be said to be of the nature mentioned in Section 197 of the Code of Criminal
\n    Procedure. To put it shortly, it is no part of the duty of a public servant, while
\n    discharging his official duties, to enter into a criminal conspiracy or to indulge
\n    in criminal misconduct. Want of sanction under Section 197 of the Code of
\n    Criminal Procedure is, therefore, no bar.”\n<\/p>\n
    11. Above views are reiterated in State of Kerala v. Padmanabhan Nair<\/a>
\n(1999 (5) SCC 690). Both Amrik Singh (supra) and S.R. Munnipalli (supra) were
\nnoted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable
\nsecurity, Will etc; forgery for purpose of cheating and using as genuine a forged
\ndocument respectively. It is no part of the duty of a public servant while
\ndischarging his official duties to commit forgery of the type covered by the
\naforesaid offences. Want of sanction under Section 197 of the Code is, therefore,
\nno bar.\n<\/p>\n
    12. This position was highlighted in State of H.P. v. M.P. Gupta<\/a> (2004 (2)
\nSCC 349).\n<\/p>\n
    13. The error in charge also does not vitiate the order. Finally, it is submitted
\nthat the question relating to Section 313 of the Code loses significance when
\nconsidered in the background as to whether there was any need for sanction.\n<\/p>\n
    14. Apparently the first Appellate Court and the High Court have not kept this
\naspect in view.\n<\/p>\n
    15. Further so far as the alleged error in framing the charge is concerned the
\neffect, of Section 464 of the Code has not been considered. The same reads as
\nfollows:\n<\/p>\n
            (1) No finding sentence or order by a Court of competent jurisdiction
\n    shall be deemed invalid merely on the ground that no charge was framed or
\n    on the ground of any error, omission or irregularity in the charge including
\n    any misjoinder of charge, unless, in the opinion of the Court of appeal,
\n    confirmation or revision, a failure of justice has in fact been occasioned
\n    thereby.<\/p>\n
          (2) If the Court of appeal, confirmation or revision is of opinion that a
\n    failure of justice has in fact been occasioned, it may –\n<\/p>\n
          (a) in the case of an omission to frame a charge order that a charge be
\n    framed and that the trial be recommended from the point immediately after
\n    the framing of the charge.\n<\/p>\n
          (b) in the case of an error, omission of irregularity in the charge, direct
\n    a new trial to be had upon a charge framed in whatever manner it thinks fit:\n<\/p>\n
          Provided that if the Court is of opinion that the facts of the case are
\n    such that no valid charge could be preferred against the accused in respect
\n    of the facts proved, it shall quash the conviction.\n<\/p>\n
    16. As the provision itself mandates that no finding sanction or order by a
\ncourt of competent jurisdiction becomes invalid unless it is so that a failure of
\njustice has in fact been occasioned because of any error omission or irregularlity
\nin the charge including in misjoinder of charge.\n<\/p>\n
    17. Obviously, the burden is on the accused to show that in fact failure of
\njustice has been occasioned. We set aside the impugned order of the High Court
\nand direct that leave to appeal shall be granted and the appeal shall be heard on
\nmerits. We make it clear that we have not expressed any opinion on the merits of
\nthe case which shall be decided in the appeal before the High Court.\n<\/p>\n
    18. The appeal is allowed.\n<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Paras Nath Singh on 5 May, 2009 Bench: Arijit Pasayat, D.K. Jain, Mukundakam Sharma 2009 (8 ) SCR 85 STATE OF U.P. v. PARAS NATH SINGH (Criminal Appeal No. 499 of 2004) MAY 5, 2009 [DR. ARIJIT PASAYAT, D. K. JAIN AND DR. MUKUNDAKAM SHARMA, JJ.] The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-241923","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Paras Nath Singh on 5 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-paras-nath-singh-on-5-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Paras Nath Singh on 5 May, 2009 - 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