Summary
A former Deputy Commissioner of Police who acted as cinema licensing officer in 1979-80 was summoned by a Magistrate, on a protest petition rejecting the CBI's closure report, for offences under Sections 304A, 337 and 338 IPC and Section 14 of the Cinematograph Act in connection with the 1997 Uphaar cinema fire, without sanction under Section 197 CrPC. The Supreme Court held that every act attributed to him, from the order directing removal of extra seats, through his counter affidavit in the High Court, to the December 1979 order removing 62 seats on a committee's recommendation, was done in the discharge or purported discharge of official duty; that the question of sanction must not be conflated with whether an offence was committed; and that cognizance without sanction was contrary to Section 197. The proceedings were quashed, leaving the competent authority free to consider sanction.
Issues
- Whether a Magistrate could take cognizance against a public servant for acts done as licensing authority under the Cinematograph Act without previous sanction under Section 197 CrPC.
- Whether the fact that the officer's final decision departed from the stand taken in his earlier counter affidavit, or findings of lapses by the licensing authorities in earlier judgments, took his acts outside the discharge of official duty.
Provisions considered
- Section 197, Code of Criminal Procedure, 1973Protection extends to acts done in the exercise or purported exercise of official power; where the act or omission is indisputably traceable to official duty, refusing the objection to cognizance defeats the provision's salutary purpose, and the issue is distinct from whether an offence was committed. (¶¶ 27, 28, 29, 30, 31, 34)
- Sections 482, 173(8) and 319, Code of Criminal Procedure, 1973The High Court dismissed the Section 482 petition against the summoning order; the appellant's further contentions that further investigation could not be ordered after judgment and that no criminality was disclosed were left undecided. (¶¶ 1, 8, 9, 34)
- Sections 304A, 337 and 338, Indian Penal Code, 1860Offences for which cognizance was taken on the protest petition, together with Section 14 of the Cinematograph Act, 1952 read with the Rules. (¶ 1)
Held
- The question whether cognizance can be taken without sanction under Section 197 CrPC is not to be conflated with whether an offence was committed; the provision protects public servants so that they may exercise official power fearlessly, and extends even to acts done in the purported exercise of official duty. (¶¶ 27, 29, 30)
- On the admitted facts, everything the appellant did, from his notice of 28 July 1979 in obedience to the Lieutenant Governor's revocation notification, his counter affidavit in the writ petitions, the show cause notice, to the order of 24 December 1979 directing removal of 62 additional seats on the committee's recommendations, was done in the exercise of official duties; a stand taken in the counter affidavit does not make his later act on the committee's recommendation one outside his official functions, and earlier findings of lapses by the licensing authorities do not dispense with sanction. (¶¶ 21, 25, 30, 34)
- Where it is unclear whether the act is traceable to official duty the Court may let proceedings go on and decide later, but where the act is indisputably so traceable, declining the objection to cognizance defeats Section 197; it depends on the facts of each case. (¶ 31)
- The Magistrate erred in taking cognizance contrary to Section 197 CrPC; on that short ground the proceedings are quashed, without prejudice to the competent authority deciding on sanction, and the other two contentions are not decided. (¶ 34)
Result
Appeal allowed; High Court order dated 03.10.2013 set aside and the proceedings challenged under Section 482 CrPC quashed for want of sanction under Section 197 CrPC, without prejudice to the competent authority taking a decision on granting sanction for prosecution in accordance with law.