LexDEVINDER SINGH & ORS. versus STATE OF PUNJAB THROUGH CBI
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[2016] 6 S.C.R. 295 DEVINDER SINGH & ORS. v. STATE OF PUNJAB THROUGH CBI (Criminal Appeal No.190 of2003) APRIL 25, 2016 [V. GOPALA GOWDA AND ARUN MISHRA, JJ.) Punjab Disturbed Areas Act, 1983 (as amended in 1989) - s.6 - Sanction before prosecution - Prosecution of police officials for cases alleging deaths caused in fake encounters and torture or death in police custody - After obtaining sanction from State Government and without obtaining sanction from Central Government - Need for sanction from Central Gm•ernmenl - Held: Jn case the version of prosecution is found to be correct, /here is no requireme/11 for sanction, as a public servant is not entitled to indulge in criminal activities - Howeve1; it would be open to the accused person to adduce evidence and such other materials to indicate that the incide111 was in discharge of their official duties - Trial court to decide the question aji·esh fi'om stage to stage or even at the time of conclusion of trial as lo whether there was reasonable nexus of the incident with discharge of official duty - Thereafter. the court shall re-examine the question <~l sanction. Code of Criminal Procedure, 197 3 - s.197 - Sanction before prosecution - Principle relatin?, to - Discussed. Disposing of the appeals and the writ petition, the Court HELD: I.The accused are not correct in saying that this Court is bound by the stand of the CBI, that it would refer the cases for sanction to the Central Government on the basis of which interim order was passed and the petition may be disposed of in terms of the interim order that the Central Government may decide the question of sanction. In the interim order, this Court has never decided the legality or the correctness of the impugned orders passed by the High Court. In the course of 1>roceedings interim order was passed on the basis of particular submission made by counsel for the CBI but this Court has never decided the question whether sanction at this stage is neccssitry 295 A B c D E F G H 296 SUPREME COURT REPORTS (2016) 6 S.C.R. A or not. Hence the interim orders are of no avail to the cause espoused by the appellants. [Para 9] [303-1<'-H; 304-A] 2.1 Protection of sanction before prosecution, is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further 1mblic duty. B However, authority cannot be camouflaged to commit crime. [Para 37] [329-H; 330-A) 2.2 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 ofticial nature is c concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Cr.P.C. has to be construed narrowly and in a restricted manner. [Para 37] (330-B) 2.3 Even in facts of a case, when public servant has exceeded in his duty, if there is reasonable connection, it will not deprive D 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. [Para 37) [330-C) 2.4 In case the assault made is intrinsically connected with E 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 111 ust be directly and reasonably connected with official duty to requit·e sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily F the provisions of Section 197 Cr.P.C. would apply. [Para 37[ [330-D-E) 2.5 In case sunction 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 G authority. [Para 37] [330-F] 2.6 Ordinarily, question of sanction should be dealt with at the stage of faking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be H taken first time before appellate Court. It may arise at inception DEVINDER SINGH & ORS. v. STATE OF PUNJAB THROUGH 297 CBI itself. There is no requirement that accused must wait till charges are framed. [Para 37] [330-G] 2. 7 Quest
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