Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors.

These appeals arise out of the common Judgment and Order passed by a learned Single Judge of the High Court of Judicature at Allahabad dated 19.04.2018 in Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 respectively filed by the respondent nos. 1, 3, 4 and 5 respectively under Section 482 of the Code of Criminal Procedure, 1973 (for short, the “CrPC”) whereby the High Court allowed the applications and quashed the proceedings of Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) as well as Case No. 67-A of 2009 (State vs. Ram Prakash Gunkar and others) pending before the CJM, Firozabad, both arising out of Case Crime No. 617 of 2007 registered for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B respectively of the Indian Penal Code, 1860 (for short, the “IPC”) with the Dakshin Police Station, District Firozabad, Uttar Pradesh. A. FACTUAL MATRIX

On 12.10.2007, at 09:15 am, Om Prakash Yadav (hereinafter, the “appellant”) lodged a First Information Report (hereinafter, “FIR”) as Case Crime No. 617 of 2007 for the offence punishable under Sections 147, 148, 149, 302 and 307 of IPC respectively with the Dakshin Police Station, Firozabad, Uttar Pradesh, against Surender Singh Gurjar, Veerbhan Gurjar, Ashok Dixit, Pappu Dixit, Sanjay Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 782 [2024] 12 S.C.R. Dixit and three others. The FIR alleged that the appellant’s brother, Suman Prakash Yadav who was a teacher at the Tilak Inter College, Firozabad, was killed and his brother’s son Harsh aged about 4½ years was grievously injured by the aforesaid accused persons by indiscriminately firing with their handguns near the Suhagnagar Crossing, at 08:30 am, on 12.10.2007. The appellant claimed that the incident was witnessed by him and several others.

On the same day, another FIR was registered as Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior, Madhya Pradesh, for the offence punishable under Section 34 of the Madhya Pradesh Excise Act, 1915 (hereinafter, the “Excise Act”) against Ashok Dixit who is the main accused of Case Crime No. 617 of 2007. The FIR which was lodged by Head Constable Ram Baran Singh Yadav (hereinafter, “respondent no.5”) stated that based on the information received from an informant while patrolling the area, the accused Ashok Dixit was arrested for carrying 12 bottles of illegal foreign liquor near the Thatipur Crossing. It was stated therein that the respondent no. 5 along with A.S.I. Ram Prakash Gunkar (hereinafter, “respondent no. 4”) and Head Constable Vijay Bahadur Singh (hereinafter, “respondent no. 3”) of the Thatipur Chauki, Murar Police Station, had seized the illegal liquor and arrested the accused at around 09:30 am on 12.10.2007. It was further added that the accused, Ashok Dixit, was later released on bail by the Station House Officer (hereinafter, “SHO”), D.S. Khushawa of the Murar Police Station, on the same day, upon furnishing the necessary surety since the offence under Section 34 of the Excise Act was a bailable one. On 26.10.2007, the concerned IO is said to have submitted a Charge Sheet in connection with Case Crime No. 967 of 2007 against Ashok Dixit before the Chief Judicial Magistrate (hereinafter, “CJM”), Gwalior.

The Investigating Officer (hereinafter, “IO”) at Dakshin, Firozabad undertook further investigation and recorded the statements of several witnesses under Section 161 CrPC in connection with Case Crime No. 617 of 2007. On 05.01.2008, the Charge Sheet No. 3 of 2008 was submitted before the CJM, Firozabad, against 12 persons namely Ashok Dixit, Pappu Dixit, Sanjay Dixit, Surender Singh Gurjar, Veerbhan Gurjar, Sandeep, Swadesh Bhardwaj, Ashu, Suresh, Pancham, Rajesh and Devender. However, the charge sheet stated that the investigation against Niranjan Kumar Upadhyay (hereinafter, Supreme Court Reports [2024] 12 S.C.R. 783 “respondent no. 1”), respondent no.3, respondent no. 4, respondent no. 5 and two other individuals in regard to the FIR registered for the offence under Section 34 of the Excise Act in Murar, Gwalior allegedly for the purpose of shielding the accused, Ashok Dixit, was still pending.

Subsequently, on 23.01.2008, the IO at Dakshin, Firozabad recorded the statements of SHO D.S. Khushawa, respondent no. 3, respondent no. 4 and respondent no. 5 respectively of the Murar Police Station, Gwalior under Section 161 of CrPC.

Soon thereafter, on 30.01.2008, the IO at Dakshin, Firozabad moved an application before the CJM, Gwalior, Madhya Pradesh, requesting that the proceedings in Case No. 15003 of 2007 relating to the Case Crime No. 967 of 2007 under Section 34 of the Excise Act filed against the accused Ashok Dixit, pending before him, be stayed. The application alleged that the respondent no. 1 who was posted in Gwalior as Town Inspector (for short, “TI”) was a relative of the accused Ashok Dixit. It was further alleged that the respondent nos. 1, 3, 4 and 5 respectively had conspired to shield the accused from the offence of murder by creating a bogus case under Section 34 of the Excise Act with the sole object of providing the accused with an alibi for the crime alleged to have been committed in Firozabad. The incident in Firozabad occurred at 08:30 am while the incident in Gwalior occurred at 09:30 am on the same day. The distance between Gwalior and Firozabad being 160 kilometers, the same could not have been covered in a duration of one hour by road. The application stated that, since the accused, Ashok Dixit, might confess his guilt in connection with the offence under Section 34 of the Excise Act with a view to save himself from the offence of murder, the proceedings in Case Crime No. 617 of 2007 pending before the CJM, Firozabad might get adversely affected if the proceedings in Case No. 15003 of 2007 were allowed to be continued.

Upon due consideration of the aforesaid application, the CJM, Gwalior vide its order dated 05.02.2008, directed the SHO of the Murar Police Station, Gwalior, to furnish a report before the Court. On 12.02.2008, the statements of respondent nos. 3, 4 and 5 respectively, were recorded by the SHO of the Murar Police Station, Gwalior and an enquiry report was furnished on 17.02.2008 before the CJM, Gwalior. Upon perusal of the enquiry report, the CJM, Gwalior vide its order Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 784 [2024] 12 S.C.R. dated 23.02.2008 rejected the application dated 20.01.2008 filed by the IO at Dakshin, Firozabad, as being baseless.

On 14.04.2008, the IO at Dakshin, Firozabad filed an application before the CJM, Firozabad for the issuance of non-bailable warrant against the respondent nos. 1, 3, 4 and 5 respectively along with two other persons. In pursuance of the said application, on 21.04.2008, the CJM, Firozabad issued a non-bailable warrant against the aforesaid 6 accused which included the respondent nos. 1, 3, 4 and 5 respectively, herein. However, it is the case of the IO at Firozabad that the respondent nos. 1, 3, 4 and 5 were absconding and therefore, proceedings under Sections 82 and 83 CrPC respectively were also initiated and completed against them.

On 02.05.2008, the IO at Dakshin, Firozabad filed an application before the D.I.G., Gwalior, Madhya Pradesh through the D.I.G., Agra, Uttar Pradesh, requesting sanction for prosecution of the respondent nos. 1, 3, 4 and 5 respectively. Further, on 07.05.2008, the Superintendent of Police, Firozabad, also sent a letter to the D.I.G., Gwalior, requesting for the sanction for prosecution under Section 197 CrPC so that the respondents could be charge-sheeted.

In the meantime, the respondent no.1 preferred Criminal Misc. Writ Petition No. 10181 of 2008 before the High Court of Allahabad and vide order dated 23.07.2008, the arrest of respondent no. 1 was stayed.

On 30.07.2008, the Superintendent of Police, Firozabad, addressed one another letter to the D.I.G., Gwalior in the form of a reminder to accord sanction under Section 197 CrPC for prosecuting the respondents herein. However, on 02.08.2008, the D.I.G., Gwalior replied to the Superintendent of Police, Firozabad, informing him that sanction for prosecution cannot be granted till the disposal of the trial in connection with Case Crime No. 967 of 2007 registered at the Murar Police Station, Gwalior for the offence under Section 34 of the Excise Act.

On 28.08.2008, the appellant filed a Misc. Criminal Case. No. 5971 of 2008 under Section 482 CrPC before the High Court of Madhya Pradesh at Gwalior for quashing the criminal proceedings concerning Case No. 15003 of 2007 arising out of Case Crime No.967 of 2007 registered for the offence under Section 34 of the Excise Act pending before the Court of CJM, Gwalior. In the alternative, it was prayed Supreme Court Reports [2024] 12 S.C.R. 785 that the proceeding be stayed till a decision is arrived at in the case pending against Ashok Dixit before the CJM, Firozabad, concerning Case Crime No. 617 of 2007. The High Court vide its order dated 25.08.2009 stayed the proceedings in Case No. 15003 of 2007 by observing as follows: “12. In the light of the above legal position, the Appellant who is a complainant in the criminal case in connection with Crime No.617 of 2007 registered against respondent No.2 at Firozabad has locus standi to file this petition under section 482 of Cr.P.C. Now legal aspect and circumstances of the case is to be considered. Suppose for the sake of argument, if respondent No.2 admits his guilt in the case of Excise Act pending in the Court of CJM Gwalior what will be its effect? He will have a good ground of alibi that at the time of alleged murder of Appellant’s brother he was not present at Firozabad but was present at Gwalior which is 160 Kms. away from Firozabad. So it will cause a great prejudice in that case and on the other hand, in the interest of justice, if proceedings pending in the court of CJM Gwalior are stayed, it will not cause any prejudice to respondent No.2. Moreover, it will avoid conflicting judgments of two Courts. Therefore, it is good case for invoking inherent powers of the court.

13. Considering the facts and circumstances of the case, petition is allowed and further proceedings pending in the court of CJM Gwalior in connection with Excise. Act pending in the CJM Gwalior concerning Case No.15003 of 2007 are hereby stayed till disposal of the Criminal Case pending at Firozabad concerning Crime No.617 of 2007.” (emphasis supplied)

After a period of almost one year, on 25.10.2008, the IO at Dakshin, Firozabad recorded the statements of two persons i.e., Ramesh Yadav and Barelal under Section 161 CrPC. Both stated that they had witnessed the respondent no.1 being directly involved in the creation of a false case under Section 34 of the Excise Act in order to provide the accused Ashok Dixit the benefit of an alibi. Soon thereafter, on 03.11.2008, a supplementary Charge Sheet No. 3A of 2008 in case Crime No. 617 of 2007 was filed against the respondent Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 786 [2024] 12 S.C.R. no. 1 for the offence punishable under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC respectively for being involved in hatching a conspiracy of murder that occurred in Firozabad. It was the case of the IO at Firozabad that the Charge Sheet was filed since he had found out that the respondent no. 1 was not posted at the Murar Police Station, Gwalior at the time of the arrest of Ashok Dixit for the offence under Section 34 of the Excise Act and therefore, the provision of sanction under Section 197 CrPC would not be attracted against the respondent no. 1. It is pertinent to observe here that it is the case of the respondent no. 1 herein that the Charge Sheet No. 3A of 2008 was backdated to 03.11.2008 when in fact it was actually filed on 24.11.2008 before the Magistrate.

The mother of respondent no.1, while alleging that the appellant was trying to falsely implicate the respondent no. 1 in the case of murder, moved an application before the D.I.G., Firozabad, requesting that the investigation be transferred from the Dakshin Police Station to some other police station. The D.I.G., Firozabad vide order dated 11.11.2008 directed the Senior Superintendent of Police, Firozabad (for short, “S.S.P.”) to look into the matter. Thereafter, the S.S.P. called for a status report on the case from the Circle Officer vide letter dated 14.11.2008. The status report submitted by the Circle Officer revealed that while the respondent no.1 had obtained a stay on his arrest from the High Court, the arrest of the other accused remained pending and the investigation was still going on. Upon consideration of the same, the S.S.P., Firozabad, vide order dated 20.11.2008 transferred the investigation from the Dakshin Police Station to the Uttar Police Station at Firozabad, with immediate effect.

The CJM, Firozabad took cognizance of the Charge Sheet No. 3A of 2008 vide order dated 24.11.2008. Immediately, on 28.01.2009, the respondent no. 1 preferred Criminal Misc. Application No. 4080 of 2009 under Section 482 CrPC before the High Court of Allahabad seeking to quash the proceedings in Case No. 67 of 2008 (State vs. Niranjan Kumar Upadhyay) arising out of the above charge sheet in Case Crime No. 617 of 2007, pending before the CJM, Firozabad.

Later, on 25.02.2009, the Charge Sheet bearing No. 30 of 2009 was filed in the case of the respondent nos. 3, 4 and 5 respectively for the offence under Sections 147, 148, 149, 307, 302, 201 and 120-B IPC respectively for being involved in the conspiracy to commit murder of the appellant’s brother at Firozabad. The CJM, Firozabad took Supreme Court Reports [2024] 12 S.C.R. 787 cognizance of the same vide order dated 10.08.2009. On 29.11.2009, the respondent nos. 3, 4 and 5 respectively also preferred an application being the Criminal Misc. Application No. 32494 of 2009 under Section 482 CrPC before the High Court of Allahabad seeking to quash the proceedings of Case No. 67A of 2009 (State vs. Ram Prakash Gunkar and Ors.) arising out of the said charge sheet in Case Crime No. 617 of 2007 pending before the CJM, Firozabad.

During the pendency of the aforesaid two applications filed under Section 482 CrPC before the High Court, the Court of Additional District and Sessions Judge, Firozabad, completed the Sessions Trial No. 753 and 753A of 2008 respectively and vide the judgment & order dated 10.07.2015, held all the 12 accused, including Ashok Dixit, guilty of the offences under Sections 147, 148, 149, 307, 302 and 120-B IPC with which they were charged. The relevant observations made by the Trial Court are reproduced hereinbelow: “…The “plea of alibi” taken by accused Ashok Dixit that on the day of incident he was lodged in jail u/s 34, Excise Act at P.S. Murar, district Gwalior was with the inconsistent report of the Murar police officials and after investigation I.O. has submitted its report to SSP, Gwalior and JM, Gwalior and stated that the case was false. The above mentioned police officials have been suspended after conducting a departmental investigation also they have been named for conspiring the death along with accused Ashok Dixit in the charge sheet that has been presented before CJM, Firozabad in which they have been charged u/s 302, 120B I.P.C… It is correct that the distance of 160 kilometres cannot be covered in one hour and if accused Ashok Dixit was at Murar, Gwalior at 9.30 a.m., then he cannot be involved in the commission of incident at Firozabad at 8.30 a.m.

The High Court at Allahabad heard the Criminal Misc. Writ Application Nos. 4080 of 2009 and 32494 of 2009 analogously and disposed them vide the common Judgment and Order dated 19.04.2018. The High Court quashed the proceedings in Case Nos. 67 of 2008 and 67A of 2009 respectively essentially on the ground that sanction to prosecute the respondent nos. 1, 3, 4, and 5 respectively under Section 197 CrPC was necessary & since it had not been obtained, the trial cannot proceed. The relevant observations are reproduced hereinbelow:

Admittedly, the applicants are public servant and case was registered under Section 34 Excise Act against main accused of the murder in the discharge of public duty but the sanction to prosecute for the offence committed at Firozabad was not granted by the State of M.P. to prosecute the applicants for the offence committed within the jurisdiction of the Police Station, Dakhin at Firozabad (U.P.) as is evident from the Annexure SA-I and SA-II to the supplementary affidavit. In the above circumstances, it ought not to be proper to allow the proceedings to be continued against the applicants and in case, the proceeding is allowed to continue against the applicants, it would be nothing but misuse of process of law. Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 790 [2024] 12 S.C.R. In view of what has been submitted and discussed above, the applications have substance and are liable to be allowed. Accordingly, the applications are allowed and the proceedings pending before CJM, Firozabad as Case No. 67 of 2008 (State Vs. Niranjan Kumar Upadhyay) as well as Case No. 67A of 2009 (State Vs. Ram Prakash Gunkar and others) in connected application arising out of Case Crime No. 617 of 2007 under Sections 147, 148, 149, 307, 302, 201, 120B IPC, P.S. Dakshin, District Firozabad are hereby quashed.

(emphasis supplied)

In such circumstances referred to above, the appellant (complainant) is here before this Court with the present appeal. B. SUBMISSIONS ON BEHALF OF THE APPELLANT

Mr. Ravindra Singh, the learned senior counsel appearing for the appellant submitted that the plea of Alibi which was taken by the accused Ashok Dixit on the ground that his arrest in connection with the offence under Section 34 of the Excise Act was effected on 12.10.2007, at 09:30 am, by the officials of the Murar Police Station, Gwalior, Madhya Pradesh, has been appropriately considered by the Trial Court at Firozabad in Sessions Trial No. 753 and 753A of 2008. However, the said plea of alibi was outrightly rejected by the Trial Court by way of its well-reasoned judgment. The Trial Court categorically observed that the accused Ashok Dixit in connivance with the police officials of the Murar Police Station, Gwalior had managed to get a false case registered under Case Crime No. 967 of 2007 related to Section 34 of the Excise Act. The Trial Court had further observed that during the investigation, the presence and arrest of Ashok Dixit in Murar, Gwalior was found to be false & bogus and therefore, charge sheet came to be filed against those police officials for acting in collusion with Ashok Dixit. Furthermore, those police officials have also been suspended and a departmental enquiry has been initiated against them. Therefore, it was submitted that the respondent no. 1 cannot assert that he has been erroneously implicated in Case Crime No. 617 of 2007 registered for the offence Supreme Court Reports [2024] 12 S.C.R. 791 under Sections 147, 148, 149, 307, 302, 201 & 120-B of IPC with the Dakshin Police Station, Firozabad, Uttar Pradesh.

The counsel submitted that the High Court fell in serious error while passing the impugned order. The High Court could be said to have travelled beyond its jurisdiction by quashing the criminal proceedings against the respondents on the ground that the Trial Court has already decided the case against Ashok Dixit and the other accused. The Trial Court in Sessions Trial Nos. 753 and 753A of 2008 respectively arising out of Case Crime No. 617 of 2007 held Ashok Dixit guilty of the offence of murder of the appellant’s brother.

The counsel submitted that the High Court erroneously quashed the criminal proceedings against the respondents saying that the accused respondents being public servants, the sanction to prosecute for the alleged offence is a must. It was submitted that the act of hatching a conspiracy to commit murder and creating a plea of alibi by instituting a false case, cannot be said to be done in the exercise of discharge of official duty. It was further submitted that no sanction is required under Section 197 CrPC to prosecute an erring Government official/ respondent no.1 herein for the reason that the respondent no. 1 was not posted at the Murar Police Station, Gwalior where the Case Crime No. 967 of 2007 was registered.

It was also submitted that the respondent no. 1 had managed with the police officials of the Murar Police Station, Gwalior, to get a false FIR being Case Crime No. 967 of 2007 registered under Section 34 of the Excise Act and thereby falsely showed the presence of Ashok Dixit at Murar, Gwalior on 12.10.2007 at 09:30 am i.e., on the same day on which the Case Crime No. 617 of 2007 was registered at the Dakshin Police Station, Firozabad in respect of the murder of the appellant’s brother. Furthermore, the respondent no. 1 had also influenced the other respondents to release a person under the Excise Act from the Thatipur Chowki of the Murar Police Station without producing the said person before the concerned court, in order to save Ashok Dixit.

The learned counsel relied upon the Police statements of Ramesh Yadav and Barelal dated 25.10.2008. They as independent witnesses have categorically stated that while they were at Thatipur, Gwalior,

Niranjan Upadhyay came out from car along with other person and said that Ashok Dixit you do not worry, I will protect you from murder Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 792 [2024] 12 S.C.R. case but you follow me and starts roaming in Thatipur, Gwalior along with 10-12 cartons of whisky….

. The same makes it clear that the respondent no. 1 was also actively involved in the lodging of a false FIR.

In such circumstances referred to above, the learned counsel submitted that there being merit in his appeal, the same may be allowed and the impugned order passed by the High Court be set aside. C. SUBMISSIONS OF BEHALF OF THE RESPONDENT NO. 1

Mr. R. Basant, the learned senior counsel appearing for the respondent no. 1 submitted that there is nothing to indicate that the respondent no. 1 was directly or indirectly responsible for the registration of Case Crime No. 967 of 2007 in any manner, since he was neither posted at the Murar Police Station nor he had instructed any of the concerned officials to register such an FIR. In fact, the respondent no. 1 was posted at District Shivpuri which is 120 kms away from Gwalior at the time of filing the Case Crime No. 967 of 2007 on 12.10.2007.

The counsel submitted that the respondent no. 1 had neither filed the FIR in Case Crime No. 967 of 2007 at the Murar Police Station, Gwalior nor was he associated with the said police station in any manner. However, assuming without conceding that the said FIR was registered at the behest of respondent no. 1, sanction for prosecution with respect to Case Crime No. 617 of 2007 is required. It is an admitted fact that sanction was refused by the D.I.G., Gwalior vide its letter dated 02.08.2008.

The counsel further submitted that there are bleak chances of conviction of the respondent no. 1 for the following reasons – (a) the respondent no. 1 was not posted at the Murar Police Station, Gwalior where the Case Crime No. 967 of 2007 was registered, (b) the respondent no. 1 is 72 years old and no purpose would be served if the respondent no. 1 was made to face trial at this stage when the Case Crime No. 617 of 2007 was admittedly filed in the 2007, (c) the Trial Court has already convicted all the accused including Ashok Dixit by way of its judgment in 10.07.2015, (d) respondent no. 1 has retired from Police service in 2015 and 9 years have passed since then, (e) No departmental inquiry was initiated against respondent no. 1 for the alleged act of registration of Case Crime Supreme Court Reports [2024] 12 S.C.R. 793 No. 967 of 2007 at the Murar Police Station, Gwalior, and (f) there is nothing to indicate that the respondent no. 1 is related to the accused Ashok Dixit.

The counsel submitted that the charge sheet should be read as a whole and there exists no circumstance or evidence to warrant any assumption of involvement of respondent no. 1 in connection with Case Crime No. 617 of 2007 for the alleged offence of conspiracy to commit murder. This is so because there are only two statements of witnesses recorded under Section 161 CrPC and such statements were recorded after a period of one year i.e., on 25.10.2008 from the date of registration of case Crime No. 617 of 2007 i.e., on 12.10.2007. These two statements are the sole basis for instituting a prosecution against the respondent ro. 1. Furthermore, the said witnesses were not examined in the trial whereby the 12 accused including Ashok Dixit stood convicted vide order dated 10.07.2015.

It was also submitted that there is a material contradiction in the case of the prosecution. The statements of the two witnesses i.e., Ramesh and Barelal suggest that the respondent no. 1 was seen with Ashok Dixit in Gwalior since they had verbatim deposed that they had heard respondent no. 1 telling Ashok Dixit that they would create a false plea of alibi. However, the eyewitnesses have all deposed that Ashok Dixit was present at the place of the incident in Firozabad where the firing had occurred. These two contradictory statements confirm the presence of Ashok Dixit in Firozabad and also in Gwalior and are therefore, ex-facie derogatory to each other.

The counsel submitted that Section 201 CrPC would not apply to the instant facts and circumstances. There is no allegation that the respondent no. 1 had conspired with the other co-accused persons for the offence of murder and the only allegation that surfaces from the charge sheet is that a false alibi was provided in order to shield Ashok Dixit by registering an FIR under the Excise Act in Gwalior. The said alleged act was made after the commission of the offence of murder and there is nothing on record to even remotely suggest that the respondent no. 1 had knowledge about the incident of murder.

In light of the above, the counsel submitted that the impugned Judgment and Order of the High Court quashing the criminal proceedings against the respondent no. 1 may not be interfered with. Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 794 [2024] 12 S.C.R. D. SUBMISSIONS OF BEHALF OF THE RESPONDENT NOS. 3, 4 AND 5.

Ms. Nanita Sharma, the learned counsel appearing for the respondent nos. 3, 4, and 5 respectively submitted that the Uttar Pradesh police was bent upon falsely implicating her clients for the offence under Sections 302 and 120-B IPC. This is evident from the following – (a) he statements of Ramesh Yadav and Barelal were recorded under Section 161 CrPC after a gap of one year from the date of the offence committed at Firozabad i.e., 12.10.2007, (b) the address of Barelal as recorded by the IO while recording his statement under Section 161 CrPC was found to be incorrect and as per the information of the Sarpanch, no person with the name of Barelal had ever lived at the said address. The permanent address of the witness Barelal was not in existence even as per the certificate given by the Parshad of the area on 28.12.2008, (c) Ramesh Yadav had also never lived at the address which was given by him to the IO during his statement recorded under Section 161 CrPC and the same was clear from the certificate issued by the Sarpanch of Bada Gaon, Murar Police Station, Gwalior.

The counsel also submitted that the respondent nos. 3, 4 and 5 respectively had never been named in the FIR registered in Case Crime No. 617 of 2007 nor their names were ever disclosed by any of the witnesses whose statements had been recorded by the IO under Section 161 CrPC after the commission of the offence at Firozabad. It was never pointed out that there was any conspiracy between the respondents and the main accused, Ashok Dixit. It was submitted that the respondent nos. 3, 4 and 5 respectively or their family members are neither relatives nor known to the accused, Ashok Dixit, in any manner.

The counsel submitted that the IO at Firozabad has falsely implicated the respondent nos. 3, 4 and 5 respectively in the murder case which occurred at Firozabad even though they had no role to play in the case. They have been implicated only because of the rivalry between the two police establishments and the refusal of the D.I.G., Gwalior to grant sanction to prosecute them. It was submitted that the respondents had only performed their duty without suspecting any kind of manipulation in both the arrest and release of Ashok Dixit because they were merely following the instructions of their superior officer i.e., the T.I. (SHO), D.S. Khushawa of the Murar Police Station. Supreme Court Reports [2024] 12 S.C.R. 795

The counsel in the last submitted that the High Court was justified in quashing the criminal proceedings against the respondent nos. 3, 4 and 5 for want of sanction. E. ISSUE(S) FOR DETERMINATION

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only issue that falls for our consideration is: a. Whether the CJM, Firozabad could have taken cognizance of the Charge Sheet No. 3A of 2008 and Charge Sheet No. 30 of 2009 respectively against the respondent nos. 1, 3, 4 and 5 respectively, in the absence of the grant of sanction for prosecution under Section 197 CrPC? In other words, whether the offence or the act alleged to have been committed by the respondent nos. 1, 3, 4 and 5 respectively could be said to have been done “while acting or purporting to act in the discharge of official duty”? F. ANALYSIS

Section 197 CrPC reads as under: “197. Prosecution of Judges and public servants. — (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)— (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Om Prakash Yadav v.

The 41st Report of the Law Commission of India contextualizes the object behind the enactment of Section 197 CrPC by pointing out that it enables the more important categories of public servants, performing onerous and responsible functions, to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. Under the erstwhile Code of Criminal Procedure, 1898, the ambit of the Section was considered a bit too wide since it read – “is accused as such Judge or public servant of any offence”. However, to offer more precision, the Amending Act of 1923 inserted the phrase – “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”. The same has been retained in the statute books till today despite the provision undergoing several amendments over the period of time.

As rightly acknowledged by the Law Commission, the meaning of the word “acting or purporting to act” in Section 197 CrPC has been well settled by a legion of decisions of the Federal Court, the Privy Council and the Supreme Court and any difficulty that may be felt lies only in the actual application of the principles laid down in Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 798 [2024] 12 S.C.R. these decisions to the facts and circumstances of a particular case. In other words, the question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact, which is to be determined in the unique circumstances of each case.

The applicability of Section 197 CrPC has been the subject of judicial interpretation in several cases. One of the first and foremost case laws which examined the pith of the expression “any act done or purporting to be done” was the Federal Court decision in Dr. Hori Ram Singh v. The Crown reported in AIR 1939 FC 43. Their Lordships were called upon to consider the applicability of Section 270 of the Government of India Act, 1935 which albeit not identical, but was similar to Section 197 CrPC. The Court held that while the offence under Section 409 IPC as regards the criminal breach of trust by a public servant would not require consent from the Governor for it cannot be done or purported to be done in the execution of his duty, yet the offence under Section 477A IPC as regards the falsification of accounts would require the Governor’s consent. The words “purported to be done” was interpreted as follows: “Extent of the Protection.

His Lordship, Sulaiman, J, clarified that it is not imperative for the very act which is at the center of the charge to be the official duty of Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 800 [2024] 12 S.C.R. the public servant. This would lead to the inference that an offence can never be part of one’s official duty and defeat the very intent behind the enactment of the provision. Instead, the essence of the provision was that the offence must be in respect of an act done or purported to be done in the execution of duty i.e., in the discharge of an official duty. Although the offence would really amount to a breach of duty, it must purport to be done in the official capacity with which the official pretended to be clothed at the time. However, it was made clear that the provision must not be applied to acts done purely in a private capacity by a public servant but only to those acts ostensibly done by him in his official capacity and in execution of his duty. Therefore, merely because the act was committed at a time when he held such office or when he was engaged in his official business would not make the section automatically applicable.

His Lordship, Varadachariar, J, in his concurring opinion, expressed that the question of whether or not the act complained of is one “purporting to be done in execution of his duty” as a public servant is substantially one of fact which is to be determined with reference to the act complained of along with the attendant circumstances. It would not be wise nor desirable to lay down any hard and fast tests in this regard.

The Judicial Committee of the Privy Council in Gill and Another v. The King reported in AIR 1948 PC 128 was faced with deciding whether sanction was required under Section 197 CrPC for the prosecution of a public servant charged with the offence of bribery and/or conspiracy to take bribes. The Court was of the opinion that it was impossible to distinguish or differentiate between S. 270 of the Government of India Act, 1935 and S. 197 CrPC, at least in relation to offences of this character. Therefore, the decision in Dr. Hori Ram Singh (supra) would be of great assistance in cases pertaining to S. 197 as well. It was observed that a public servant can only be said to act or purport to act in the discharge of his official duty, if his act is as such as to lie within the scope of his official duty. Therefore, the test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. The relevant observations are reproduced hereinbelow:

A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such Supreme Court Reports [2024] 12 S.C.R. 801 as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office

Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion no sanction under s. 197 of the Code of Criminal Procedure was needed.” (emphasis supplied)

In Albert West Meads v. The King reported in AIR 1948 PC 156, the Privy Council echoed the view taken in Gill (supra) and held that the appellant in that case could not justify that the act of fraudulently misapplying money entrusted to his care as a public servant was an act done by him by virtue of his office. In Shreekantiah Ramayya Munipalli v. State of Bombay reported in (1954) 2 SCC 992, this Court stressed that each case must be decided in its own facts. Herein, the Bench opined that Section 197 CrPC can never be applied if it is construed too narrowly since it is no part of an official’s duty to commit an offence and the language of the provision must be given its true meaning. However, it is not the duty but the act which has to be examined because an official act can be performed in the discharge of official duty as well as in the dereliction of it. The relevant observations are as follows: “14. Now it is obvious that if Section 197 of the Criminal Procedure Code is construed too narrowly it can never be applied, for of course it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 802

[2024] 12 S.C.R. an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. …” (emphasis supplied) In Amrik Singh v. State of Pepsu reported in AIR 1955 SC 309, the appellant was charged under Section 465 IPC for forging the thumb-impression of an individual and under Section 409 IPC for the criminal misappropriation of a certain sum. The Court opined that if the act complained of is directly concerned with the official duty of the public servant so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. This would be irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits which would have to be investigated at trial and not be examined at the stage of granting sanction for prosecution. Therefore, the test as to whether sanction is necessary to prosecute a public servant will depend on whether the acts complained of are so integrally connected with his duties as a public servant. If they do, then sanction is a requisite and there cannot be any uniform rule that an offence of criminal misappropriation or criminal breach of trust would always be outside the scope of Section 197 CrPC. The relevant observations are reproduced hereinbelow: “7. The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. Supreme Court Reports [2024] 12 S.C.R. 803

8. …In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.

11. …The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. (emphasis supplied)

A five-Judge Bench of this Court in Matajog Dobey v. H.C. Bhari reported in AIR 1956 SC 44 acknowledged that slightly differing tests had been laid down under Section 197 CrPC but the difference in those tests were only in language and not in substance. The Court laid down a more refined test that there must be a reasonable connection between the act done and the discharge of the official duty and the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Therefore, what one must ascertain is whether the act and the official duty are so interrelated such that it can be reasonably postulated that it was done in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. The relevant observations are as follows: “17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 804 [2024] 12 S.C.R. duty”. But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. …

19. The result of the foregoing discussion is this : There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” (emphasis supplied)

Furthermore, in Dhannjay Ram Sharma v. M.S. Uppadaya and Others reported in AIR 1960 SC 745, it was clarified that the mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty, so as to justify even remotely the view that the acts complained of are within the scope of the application of Section 197 CrPC.

This Court in P. Arulswami v. State reported in (1967) 1 SCR 201 was also concerned with an offence under Section 409 IPC and it was opined that the act must be directly concerned and connected with the official duties of the public servant such that it could be claimed to have been done by virtue of his office. Furthermore, it is the “quality” of the act that must be emphasized on. The act must Supreme Court Reports [2024] 12 S.C.R. 805 not be totally unconnected with the official duty. Only if it falls either within the scope and range of the official duties, or is in excess of it, then Section 197 CrPC would stand attracted. The Court had stated as thus:

…It is not therefore every offence committed by a public servant that requires sanction for prosecution under s. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by s. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable…

(emphasis supplied)

In Harihar Prasad Etc. v. State of Bihar reported in (1972) 3 SCC 89 the appellants were alleged to have entered into a criminal conspiracy for committing the offences of criminal breach of trust and cheating in respect of a large amount of government money earmarked for a development project. The Court opined that sanction under Section 197 CrPC would not be necessary since it is no part of the duty of a public servant while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and observed as thus: “66. The next point was with regard to consent or sanction. There is no doubt that in respect of B.P. Sinha consent was properly given by the Deputy Commissioner. So consent was also given in respect of N.K. Banerjee and Harihar Prasad by the Chief Secretary. This is not a case of sanction or consent under Section 196-A of the Code Om Prakash Yadav v. Niranjan Kumar Upadhyay & Ors. 806 [2024] 12 S.C.R.