Principles for Sanction to Prosecute Govt. Officer

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THE APPELLANTS ARE THE OFFICERS OFTHE PUNJAB POLICE. At the relevant time they were entrusted with the respondent and duties of public order and peace in the State of Punjab. It is averred by the appellants that, in the early 1980s, there was a sudden spurt in the terrorist activities, massive killings at the hands of terrorists, looting, extortions, kidnapping, resulting into total collapse of the civil administration. More than 25,000 civilians, 1800 men in uniform and their relatives had been killed at the hands of the terrorists resulting into migration of civil population in the border districts of Amritsar, Ferozepur and Gurdaspur . District Amritsar was bifurcated into three police districts for the purpose of better administration, namely Amritsar, Taran Taran and Majitha. The present cases arise from police district Taran Taran which is the closest police district to Pakistan.
It is further averred that on 22.7.1993 four persons were killed in an encounter with the police. The prosecution alleged that they were killed in a fake encounter. On the basis of the complaint lodged by Chaman Lal, father of one of the deceased, the CBI obtained sanction from the State Government to prosecute the accused as at the relevant time, under section 6 of the 1983 Act, sanction from Central Government was required. However, on the basis of sanction obtained from the State Government, the CBI filed chargesheet against the accused persons in the Court of Special Judge, Patiala. The appellant filed application under section 227 of the Cr .P.C. for discharge on the ground that they had acted in the incident in the course of their duty and sanction granted by the State Government was without jurisdiction, illegal and void.
The CBI contested the application on the ground that sections 4 and 5 of the 1983 Act were not applicable and there was no need for obtaining any sanction because the deceased had been killed in a fake encounter. The Special Court dismissed the application filed by the accused persons. Aggrieved thereby, they approached the High Court by filing a criminal revision and the same has also been dismissed. The High Court has held that as per prosecution case it is a case of fake encounter, as such sanction is not required. The same could not be said to be an act in discharge of official duties. Aggrieved thereby the appellants are before the Supreme Court. The facts are more or less similar in all the cases.
Writ Petition (Crl.) No. 139/2012 has been filed by Chaman Lal with a prayer that Union of India may be directed to grant sanction under section 197 Cr.P.C. for prosecution of police officer as set out in the affidavit of CBI filed in Appeal No. 190/2003.
The Supreme Court vide order 20.7.2001 stayed the further proceedings before the trial court in SLP (Crl.) No. 2336/2001-Balbir Singh & Ors. v. State of Punjab. Similar orders of interim stay were passed on 21.1.2002 in SLP (Crl.) Nos. 3072-75/2001 and these matters had been tagged. On behalf of the accused appellants, order dated 16.2.2006 has been referred to in which it has been observed that the CBI had stated during the course of the arguments that the matter be sent to the Central Government with the entire record to consider the question of sanction in terms of section 6 of the 1983 Act. The Supreme Court in view of the stand taken by the CBI continued the interim stay on operation of the impugned orders and observed that the Central Government will consider the matter in terms of section 6 and in accordance with law without being prejudiced by any observation made in any of the impugned orders. Cases were ordered to the listed after three months. The Supreme Court was informed by the Additional Solicitor General on 10.10.2006 that the Central Government has opined that the case of Balbir Singh was not a fit case for giving sanction for prosecution in terms of section 6 of the 1983 Act. So far as Harpal Singh is concerned, the Central Government was not the competent authority and with respect to another accused Bhupinderjit Singh, CBI has not submitted full report. Thereafter interim order was passed on 13.2.2007 by Supreme Court to consider grant of sanction in the case of Gurmeet Singh. On 22.9.2010 Supreme Court noted in the interim order that Balbir Singh in Crl.Appeal No. 190/ 2003 had died and Supreme Court dismissed the appeal as abated against him. Appeal with respect to other appellants was adjourned. Interim stay was granted in other connected matters on 30.7.2012 with respect to cases pending in the trial court at Patiala.
It was submitted by learned counsel appearing on behalf of accused appellant that sanction to prosecute was necessary in view of the provisions contained in section 6 of the 1983Act as amended in 1989.Thus the prosecution could not have been launched without obtaining sanction of the Central Government. The Supreme Court by interim order had directed on submission being raised by CBI that the matter will be referred to the Central Government for sanction and in certain cases Central Government had granted sanction and in others it had declined. Sanction to prosecute was necessary as the act was done in discharge of official duties. As a matter of fact, false allegations of fake encounter have been made in the cases. The deceased indulged in various criminal activities. They were creating unrest and the officers have discharged their duties at the time of the incident. Thus without prior sanction to prosecute by the Central Government, they could not have been prosecuted. The prosecution deserves to be quashed.
The Supreme Court on the basis of numerous decisions laid down various principles which are hereunder:
I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
II. Once act or omission has been found to have been committed by public servant in discharging his duty. It must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To the extent Section 197 Cr.P.C. has to be construed narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
IV. In case the assault made in intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 Cr.P.C., but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence as incomplete without proving, the official act, ordinarily the provisions of Section 197 Cr.P.C. would apply.
V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that affect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing that his duty was. Accused has the right to lead evidence in support of his case on merits.
IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the deference to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgement. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law. The trial to proceed on the aforesaid basis. Accordingly, Supreme Court dispose of the appeals/writ petition in the light of the aforesaid directions.
Authorities relied upon : SLP (Crl.) No. 2336/2001, 1981 (Supp.) SCC 12, 1967 (1) SCR 201,AIR 1956 SC 44, 1955 (1) SCR 177, 1955 (2) SCR 925,AIR 1939 FC 43.
Reference : Supreme Court. Devinder Singh & Ors. v. State of Punjab through CBI, criminal appeal no. 190 of 2003.