- (1.) HEARD Ms. Harshita Raghuvanshi learned counsel for the applicant, who has made two fold submissions, first on the issue of the absence of an appropriate sanction under Section 197 Cr.P.C. for prosecuting the applicant and in support of her submission, she has filed a supplementary affidavit to establish that the applicant was a Government Servant as on the date when the alleged offence is said to have been committed. The submission is that the entire action of the applicant was in consonance with his official act and consequently in the absence of any sanction under Section 197 Cr.P.C. the entire prosecution has to fall through. She has relied on paragraph 22 onwards of the judgment in the case of General Officer Commanding Vs. C.B.I., 2012 4 JT 510 and the following decision to buttress her submissions in the case of State of M.P. Vs. Sheetla Sahai & Ors, 2009 10 JT 388.
(2.) SHE has further relied on orders passed by the Apex Court in SLP (CRL) Nos. 5027 of 2013 Usha Tomar Vs. State of U.P. and Anr, SLP (CRL) No. 5141 of 2013 S.N. Shukla Vs. State of U.P. and Anr and SLP (CRL) No. 6778 of 2013 Dr. V.P. Singh Vs. State of U.P. and Anr. and similar matters in the case of Dr. Atul Kumar Singh Vs. U.O.I. And Ors (Application U/S 482 Nos. 40487, 39631, 36335, 40486, 40488 of 2013.
(3.) ON the other hand the Court has come across the latest decision in the case of Chandan Kumar Basu Vs. State of Bihar decided on 7.7.2004 where the Apex Court in paragraph 9 has observed as under: - "9. The above discussion will now require the Court to consider the question as to whether the acts giving rise to the alleged offences had been committed by the accused in the actual or purported discharge of his official duties. In a series of pronouncements commencing with Satwant Singh Vs. State of Punjab; Harihar Prasad Vs. State of Bihar and Prakash Singh Badal and Anr. Vs. State of Punjab and Ors. it has been consistently held that it can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required under Section 197 of the Code. Notwithstanding the above, the High Court had granted liberty to the appellant to raise the issue of sanction, if so required, depending on the evidence that may come on record in the course of the trial. Despite the view taken by this Court in the series of pronouncements referred to above, the opportunity that has been provided by the High Court to the benefit of the appellant need not be foreclosed by us inasmuch as in Matajog Dobey Vs. H.C. Bhari, P.K. Pradhan Vs. State of Sikkim and Prakash Singh Badal this Court had consistently held that the question of sanction under Section 197 of the Code can be raised at any time after cognizance had been taken and may have to be determined at different stages of the proceeding/trial. The observations of this Court in this regard may be usefully extracted below. Matajob Dobey Vs. H.C. Bhari "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case." P.K. Pradhan Vs. State of Sikkim "It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance: may be immediately after cognizance of framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." "The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. ..............";