Protection of ‘sanction’ to Govt. servants cannot be camouflaged to commit crime; SC summarizes principles governing ‘sanction’ [Read Judgment]

In a significant judgment, the Supreme Court in Devinder Singh & Ors vs. State of Punjab through CBI, has summarized the principles governing requirement of sanction to prosecute Government servants and held that the offence committed by the Government servants must be directly and reasonably connected with official duty to require sanction. The Court also observed that Protection of sanction, which 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, cannot be camouflaged by them to commit crime.

Justices V. Gopala Gowda and Arun Misra made the following observations in an appeal by some police officers accused of fake encounter in Punjab. The question before the Apex Court was whether in view of the provisions contained in section 6 of Punjab Disturbed Areas Act, 1983 the prosecution or other legal proceedings relating to Police officers can be instituted without prior sanction of the Central Government?

Referring to various decisions cited by the counsels on either side, the Court summarised the principles governing requirement of sanction to prosecute Government servant.

• 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
• 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 that extent Section 197 CrPC has to be construed narrowly and in a restricted manner
• 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 CrPC. 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
• In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, 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 was incompletewithout proving, the official act, ordinarily the provisions of Section 197 CrPC would apply
• 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.
• 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 effect 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
• 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.
• 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 what his duty was. Accused has the right to lead evidence in support of his case on merits.
• In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.

Disposing of the appeals filed by police officers, the Court observed that version of the prosecution is found to be correct there is no requirement of any sanction, but 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 judgment. The bench added “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.”

Read the Judgment here.