Sanction is mandatory prerequisite even when an additional Accused is added under Section 319CrPC [Read Judgment]

The Supreme Court in SURINDERJIT SINGH MAND VS. STATE OF PUNJAB has held that protection of ‘sanction’under Section 197 of the Criminal Procedure Code is not available to police officers accused of illegal detention and offences committed during the period before the formal-arrest is recorded.

Reiterating the settled law that Courts cannot take cognizance of the complaints against the public servants, without sanction by the appropriate authority the Apex Court bench comprising of Justices Jagdish Singh Khehar and C. Nagappan also held that such sanction from appropriate authority is mandatory prerequisite even when the cognizance is taken under Section 319 of the Code of Criminal Procedure.

These observations while made while dismissing the appeal filed by two police officers against High Court judgment which had dismissed their Revision application allowing the Trial court to proceed against them in the complaint by mother of one Neeraj Kumar.

OFFENCES COMMITTED DURING ILLEGAL DETENTION DOES NOT REQUIRE ‘SANCTION’

The contention raised by the appellants was that even if it was assumed that Neeraj Kumar had been detained with effect from 24.06.1999 (Four days before arrest was officiallyrecorded), his detention by the appellants was “while acting or purporting to act” in the discharge of the appellants’ official duties and as such, the Chief Judicial Magistrate, could not have taken cognizance, without sanction under Section 197 of the ‘Code’.

Rejecting this contention, the court held “It is apparent, that the official arrest of Neeraj Kumar in terms of the provisions of the ‘Code’, referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made “while acting or purporting to act in the discharge of their official duties”. The factual position expressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999. His detention during the above period, if true, in our considered view, would certainly not emerge from the action of the accused while acting or purporting to act in the discharge of their official duties. If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while acting or purporting to act in the discharge of their official duties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jail during the period from 24.06.1999 to 28.06.1999. If they had not detained him during the above period, it is not open to anyone to assume the position, that the detention of Neeraj Kumar, during the above period, was while acting or purporting to act in the discharge of their official duties. Therefore, in the peculiar facts and circumstances of this case, based on the legal position declared by this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect.”

SANCTION IS MANDATORY PRE REQUISITE EVEN IF COGNIZANCE IS TAKEN UNDER SECTION 319 CRPC

Addressing the other contention of the respondents that that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite, the court further observed : The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt, that under Section 197 of the ‘Code’ and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of 31 Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). The procedure for obtaining sanction would be governed by the provisions of the ‘Code’ and/or as mandated under the special enactment. The words engaged in Section 197 of the ‘Code’ are, “...no court shall take cognizance of such offence except with previous sanction...” Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act provides, “No Court shall take cognizance...except with the previous sanction...” The mandate is clear and unambiguous, that a Court “shall not” take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where cognizance is taken under Section 319 of the ‘Code’, sanction either under Section 197 of the ‘Code’ (or under the concerned special enactment) is not a mandatory pre-requisite. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the ‘Code’, is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution.”

Read the Judgment here.