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‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1359 OF 2017

AMOD KUMAR KANTH Appellant(s)

VERSUS

ASSOCIATION OF VICTIM OF

UPHAAR TRAGEDY AND ANR. Respondent(s)

J U D G M E N T

(1) By the impugned order, the High Court has dismissed the

petition filed by the appellant under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as

‘Cr.P.C.’ for brevity). The petition under Section 482 Cr.P.C.

was filed against the order passed by the Additional Sessions

Judge Metropolitan Magistrate rejecting the closure report

filed by the Central Bureau of Investigation (hereinafter

referred to as ‘CBI’ for short) which was filed against the

appellant. The closure report filed by the CBI was not

accepted by the Magistrate, who instead took cognizance on the

protest petition filed by the first respondent before us

(Association of Victims of Uphaar Trage dy). As noted by the

learned Judge in the impugned judgment on 13.06.1997, 59

persons lost their lives and over 100 persons received serious

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injuries while viewing a film sitting in the balcony of Uphaar

theater. The unfortunate and tragic incident led t o a criminal

prosecution against 16 accused. While the trial was ongoing,

an application was filed under Section 319 Cr.P.C. against

inter alia the present appellant. It is not in dispute that

no orders were immediately passed thereon. The trial against

the 16 accused culminated in the judgment dated 23.11.2007.

The learned Sessions Judge while disposing of Sessions Case

No. 13/07 ordered the CBI to conduct a further investigation

under Section 173(8) of the Cr.P.C. The learned Sessions

Judge, no doubt, proceeded to find the accused who were

arraigned in Sessions Case No. 13/2007 guilty of various

charges. It is after so finding and awarding appropriate

sentences as against them that further investigation was

ordered vide the judgment dated 23.11.2007. The CBI after

investigation filed a closure report on 05.03.2009. It is

therein stated that no criminal act was found against any

officer other than those who were chargesheeted earlier. The

first respondent thereupon, filed protest petition dated

13.05.2009. As already noticed, rejecting the closure report

but accepting the complaint in the protest petition the

Magistrate issued summons against the appellant. Cognizance

has been taken for offences under Section 304A, 337, 338 of

the Indian Penal Code, 1860 and the provisions under Section

14 of the Cinematograph Act, 1952 read with the Rules. It is

the order issuing summons that was the subject matter of the

proceeding under Section 482 of the Cr.P.C. and which has

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finally culminated in the impugned o rder.

(2) We have heard Shri R. Basant, learned senior counsel

appearing for the appellant. We have also heard Shri K.M .

Nataraj, learned Additional Solicitor General, who appears on

behalf of the additional Respondent namely Delhi Police.

Besides, we have a lso heard Smt. Aparajita, learned senior

counsel appearing on behalf of the CBI. We further heard Shri

K.T.S. Tulsi, learned senior counsel who appears on behalf of

the first respondent.

(3) Shri Basant, learned senior counsel for the appellant

would essentially address three contentions before us. First

and foremost, he would contend that the impugned order

upholding the order of the Magistrate taking cognizance and

issuing summons is afflicted with an incurable illegality.

The illegality consists in both the Courts overlooking the

mandatory command in Section 197 of the Cr.P.C. In other

words, cognizance has been taken against the appellant for the

offences comprehended within the ambit of Section 197 Cr.P.C.

without seeking and obtaining sanction as is c ontemplated

under Section 197. The Magistrate has proceeded to take

cognizance in the teeth of the unambiguous bar against such

cognizance. He would submit that on this short point the

impugned order must perish.

(4) He would elaborate and submit on the fa cts, as to what

transpired as follows. Somewhere in the year 1976, a decision

was taken by the Lieutenant Governor of Delhi to reduce the

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price of cinema tickets. Bearing in mind that this decision

would cause a financial loss to the theater owners, it w as

decided to permit the theaters to be fitted with more seats

so that from the revenue earned thereunder, the loss caused

by the reduction in the price of the cinema tickets could be

offset. On the strength of the said decision which was taken

in 1976, theaters in Delhi came to be equipped with more seats.

The appellant took over as Deputy Commissioner of Police on

02.02.1979. In his capacity as the DCP, he also came to be

entrusted with the duties of a licensing officer under the

Cinematograph Act, 195 2 and the Rules. He continued in this

official position till 26.05.1980. There was a change of

policy brought about by the Lieutenant Governor. The earlier

decision which was taken in the year 1976 to increase seats

came to be revoked. This was done on 27.07.1979. The

appellant, according to the learned senior counsel, issued

orders to the cinema theaters directing them to remove the

extra seats and to report compliance by 04.08.1979 failing

which their licenses would be suspended. The notification

dated 27.07.1979 issued by the Lieutenant Governor and the

order passed by the appellant dated 28.07.1979 came to be

impugned in a batch of writ petitions in the High Court of

Delhi. The High Court of Delhi passed an interim order dated

02.08.1979 granting protection to the owners, in that, the

direction to remove the extra seats was kept in abeyance but

they were forbidden from issuing tickets in regard to the

additional seats. A joint inspection came to be carried out

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on 05.10.1979. The joint inspection recommended the complete

removal of the additional seats. The appellant on 22.10.1979

filed a counter affidavit before the High Court. Therein it

is pointed out that the appellant stoutly opposed the plea of

the writ petitioners that additional seats may be allowed to

be preserved. On 29.11.1979, it is pointed out that the High

Court rejected the report of the joint inspection team. The

High Court also did not find favour with the stand taken by

the appellant in the counter affidavit. The High Court by its

judgment dated 29.11.1979, in short, directed the appellant

to look into the matter and find out whether the seats could

be continued on their being a substantial and not too rigid

and inflexible compliance. Show cause notices was issued on

06.12.1979 to the theater owners. On 19.12.1979, joint

inspection was carried out by the Executive Engineer (PWD),

Chief Fire Officer and the Assistant Commissioner of Police

(Licensing). A hearing was afforded to the theater owners.

This included the owners of the Uphaar Theater. This took

place on 20.12.1979. It is, thereafter, that on 24.12.1979,

according to the appellant, on the recommendations of the

committee, the appellant ordered the removal of 06 seats in

the balcony and 56 seats in the rest of the fl oor of Uphaar

Theater. This means a total of 62 additional seats out of the

total of 100 seats which had been put in place on the strength

of the notification issued in 1976 came to be ordered to be

removed. It is stated by the appellant that annual insp ections

were carried out subsequently. The appellant came to be

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transferred and he vacated the post on 26.05.1980. There was

another inspection which was conducted on 09.06.1983 and

17.06.1983 by a joint inspection team comprising the licensing

branch of the Delhi Police. The Municipal Corporation of

Delhi and the Delhi Fire Services also were part of the team.

Large scale safety violations were found. The license of

Uphaar theater came to be suspended on 27.06.1983. From 1980 -

1997, it is pointed out that the theater in question was

inspected every year. The suspension order passed against the

theater in question was the subject matter of challenge in the

two writ petitions and the suspension was kept in abeyance.

The theater continued to operate. I t is nearly 17 years after

the order dated 24.12.1979, on 13.06.1997 that a fire broke

out which led to the unfortunate passing away of 59 persons

besides injury to several others. He would, therefore, point

out that, at best or at worst, what could be pr ojected against

the appellant could not take it out of the ambit of Section

197. In other words, it could not be said despite all that

has happened that he was not exercising power which flowed

from his office. He did whatever he did in the discharge of

his official functions. Section 197 immunises a person if his

act is in exercise of his official power. Whichever way one

looks at it, whatever he has done, or even if there is an

excess, even if there has been negligence, he would be entitled

in law to the protection afforded by Section 197 of the Cr.P.C.

The Courts have ignored this salutary principle enshrined in

Section 197 of the Cr.P.C. The principle enshrined by Section

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197 of the Cr.P.C. is intended to protect public servants. It

is not to be c onfused with the question as to whether an

offence has been committed. The law mandates that once the

person against whom cognizance is taken was holding a public

office within the meaning of Section 197 of the Cr.P.C. and

the act or omission attributed to him is done in the discharge

of his official duties or in the purported exercise of his

official duties, it would be completely illegal for the

judicial officer concerned to move the law forward against him

by taking cognizance in the absence of sanction. In the facts

of the case before the Court, he would submit that it was

clear that whatever he did or did not, it arose within the

discharge of his official functions. In this regard, he drew

inspiration from the following decisions:

(5) In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695,

he drew our attention to the following:

“71. If the act alleged in a complaint purported to be

filed against the policeman is reasonably connected to

discharge of some official duty, cognizance thereof

cannot be taken u nless requisite sanction of the

appropriate Government is obtained under Section 197

of the Code of Criminal Procedure and/or Section 170

of the Karnataka Police Act.

74. It is well settled that an application under

Section 482 of the Criminal Procedure Code is

maintainable to quash proceedings which are ex facie

bad for want of sanction, frivolous or in abuse of

process of court. If, on the face of the complaint,

the act alleged appears to have a reasonable

relationship with official duty, where the criminal

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proceeding is apparently prompted by mala fides and

instituted with ulterior motive, power under Section

482 of the Criminal Procedure Code would have to be

exercised to quash the proceedings, to prevent abuse

of process of court.”

(6) Next, he drew our attention to Indra Devi v. State of

Rajasthan and Another (2021) 8 SCC 768 to the following

paragraphs:

“10. We have given our thought to the submissions of

the learned counsel for the parties. Section 197 CrPC

seeks to protect an officer from unnecessary

harassment, who is accused of an offence committed

while acting or purporting to act in the discharge of

his official duties and, thus, prohibits the court

from taking cognizance of such offence except with the

previous sanction of the competent authority. Public

servants have been treated as a special category in

order to protect them from malicious or vexatious

prosecution. At the same time, the shield cannot

protect corrupt officers and the provisions must be

construed in such a manner as to advance the cause of

honesty, justice and good governance. (See Subramanian

Swamy v. Manmohan Singh [Subramanian

Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1

SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .) The alleged

indulgence of the officers in cheating, fabrication of

records or misappropriation cannot be said to be in

discharge of their official duty. However, such

sanction is necessary if the offence alleged against

the public servant is committed by him “while acting

or purporting to act in the discharge of his official

duty” and in order to find out whether the alleged

offence is committed “while acting or purporting to

act in the discharge of his official duty”, the

yardstick to be followed is to form a prima facie view

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whether the act of omission for which the accused was

charged had a reasonable connection with the discharge

of his duties. (See State of Maharashtra v. Budhikota

Subbarao [State of Maharashtra v. Budhikota Subbarao,

(1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real

question, therefore, is whether the act committed is

directly concerned with the official duty .

11. We have to apply the aforesaid test to the facts

of the present case. In that behalf, the factu m of

Respondent 2 not being named in the FIR is not of much

significance as the alleged role came to light later

on. However, what is of significance is the role

assigned to him in the alleged infraction i.e.

conspiring with his superiors. What emerges the refrom

is that insofar as the processing of the papers was

concerned, Surendra Kumar Mathur, the Executive

Officer, had put his initials to the relevant papers

which was held in discharge of his official duties.

Not only that, Sandeep Mathur, who was part of the

alleged transaction, was also similarly granted

protection. The work which was assigned to Respondent

2 pertained to the subject -matter of allotment,

regularisation, conversion of agricultural land and

fell within his domain of work. In the processi ng of

application of Megharam, the file was initially put up

to the Executive Officer who directed the inspection

and the inspection was carried out by the Junior

Engineer and only thereafter the Municipal

Commissioner signed the file. The result is that t he

superior officers, who have dealt with the file, have

been granted protection while the clerk, who did the

paper work i.e. Respondent 2, has been denied similar

protection by the trial court even though the

allegation is of really conspiring with his su perior

officers. Neither the State nor the complainant

appealed against the protection granted under Section

197 CrPC qua these two other officers.

12. We are, thus, not able to appreciate why a similar

protection ought not to be granted to Respondent 2 as

was done in the case of the other two officials by the

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trial court and High Court, respectively. The sanction

from the competent authority would be required to take

cognizance and no sanction had been obtained in

respect of any of the officers. It is in v iew thereof

that in respect of the other two officers, the

proceedings were quashed and that is what the High

Court has directed in the present case as well.”

(7) Next, the learned senior counsel for the appellant would

contend that the Court must not be ob livious to the facts of

the case as well. The appellant’s acts or omissions are

traceable to the year 1979 -1980. The incident in question

took place a good 17 years thereafter. Annual inspections

took place. Other officers have had powers of oversight and

exercised it from time to time. Several theaters apart from

Uphaar theater had extra seats. It is only in this unfortunate

case that the occurring of the fire in 1997 has led to the

entire proceedings. He would submit that following the

principle in State of Haryana and Others v. Bhajan Lal and

Others 1992 Supp (1) SCC 335, it is a fit case where no

criminality can be attached to the alleged acts and omissions.

(8) Thirdly, he would also submit that, as noticed, in this

narration above, though an appli cation was filed to take action

under Section 319 of the Cr.P.C. pending the trial against the

original accused, no orders were passed thereon. It received

final attention of the Court only when the matter was finally

disposed of by way of the judgment co nvicting the original

accused.

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(9) The Court, he would point out, departed from the

requirement of the law by directing investigation under

Section 173(8) after the trial was concluded and judgment was

pronounced. This is according to him, not permissible in law.

He drew our attention to Sukhpal Singh Khaira v. State of

Punjab (2023) 1 SCC 289:

“39.(I) Whether the trial court has the power under

Section 319CrPC for summoning additional accused when

the trial with respect to other co -accused has ended

and the judgment of conviction rendere d on the same

date before pronouncing the summoning order?

The power under Section 319CrPC is to be invoked and

exercised before the pronouncement of the order of

sentence where there is a judgment of conviction of

the accused. In the case of acquittal, the power should

be exercised before the order of acquittal is

pronounced. Hence, the summoning order has to precede

the conclusion of trial by imposition of sentence in

the case of conviction. If the order is passed on the

same day, it will have to be examined on the facts and

circumstances of each case and if such summoning order

is passed either after the order of acquittal or

imposing sentence in the case of conviction, the same

will not be sustainable.”

(10) He also presses for our consideration the aspect that

the appellant is a highly decorated officer with an impeccable

track record.

(11) Shri K. M. Nataraj, learned Additional Solicitor

General, who appears for the additional respondent -Delhi

Police would submit that the Delhi Police is the authori ty

which sanctions prosecution under Section 197 of the Cr.P.C.

(12) Shri K. M. Nataraj, would submit that it is indispensable

for taking cognizance against a public servant within the

meaning of Section 197 of the Cr.P.C., that the sanctioning

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authority grants sanction. He would in this regard appear to

us to support the contention taken by the appellant. He also

seeks fortification from the following case law:

(13) He drew our attention to Abdul Wahab Ansari v. State of

Bihar, (2000) 8 SCC 500 wherein this Court held:

7. Previous sanction of the competent authority being

a precondition for the court in taking cognizance of

the offence if the offence alleged to have been

committed by the accused can be said to be an act in

discharge of his official duty, the question touches

the jurisdiction of the Magistrate in the matter of

taking cognizance and, therefore, there is no

requirement that an accused should wait for taking such

plea till the charges are framed . In Suresh Kumar

Bhikamchand Jain v. Pandey Ajay Bhushan [(1998) 1 SCC

205 : 1998 SCC (Cri) 1] a similar contention had been

advanced by Mr Sibal, the learned Senior Counsel

appearing for the appellants in that case. In that

case, the High Court had held on the application of

the accused that the provisions of S ection 197 get

attracted. Rejecting the contention, this Court had

observed: (SCC pp. 217 -18, para 23)

“The legislative mandate engrafted in sub -section

(1) of Section 197 debarring a court from taking

cognizance of an offence except with a previous

sanction of the Government concerned in a case where

the acts complained of are alleged to have been

committed by a public servant in discharge of his

official duty or purporting to be in the discharge

of his official duty and such public servant is not

removable from his office save by or with the

sanction of the Government touches the jurisdiction

of the court itself. It is a prohibition imposed by

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the statute from taking cognizance, the accused

after appearing before the court on process being

issued, by an application indicating that Section

197(1) is attracted merely assists the court to

rectify its error wher e jurisdiction has been

exercised which it does not possess. In such a case

there should not be any bar for the accused producing

the relevant documents and materials which will be

ipso facto admissible, for adjudication of the

question as to whether in fa ct Section 197 has any

application in the case in hand. It is no longer in

dispute and has been indicated by this Court in

several cases that the question of sanction can be

considered at any stage of the proceedings. ”

The Court had further observed: (SCC pp. 218 -19, para

24)

“The question of applicability of Section 197 of the

Code and the consequential ouster of jurisdiction of

the court to take cognizance without a valid sanction

is genetically different from the plea of the accused

that the averments in the complaint do not make out

an offence and as such the order of cognizance and/or

the criminal proceedings be quashed . In the

aforesaid premises we are of the considered opinion

that an accused is not debarred from producing the

relevant documentary materials which can be legally

looked into without any formal proof, in support of

the stand that the acts complained of were committed

in exercise of his jurisdiction or purported

jurisdiction as a public servant in discharge of his

official duty thereby requiring sanction of the

appropriate authority.”

9. Coming to the second question, it is now well

settled by the Constitution Bench decision of this

Court in Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44

: (1955) 2 SCR 925] that in the matter of grant of

sanction under Section 197 of the Code of Criminal

Procedure the offence alleged to have been committed

by the accused must have something to do, or must be

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related in some manner, with the discharge of official

duty. In other words, there must b e 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 claim,

but not a pretended or fanciful claim, that he did it

in the course of the performance of his duty. In the

said case it had been further held that where a power

is conferred or a duty imposed by statute or otherwise,

and there is nothing said expressly inhibiting the

exercise of the power or the performance of the duty

by any limitations or restrictions, it is reasonable

to hold that it carries with it the power of doing all

such acts or employing such means as are reasonably

necessary for such execution, because it is a rule

that when the law commands a thing to be done, it

authorises the pe rformance of whatever may be

necessary for executing its command . This decision was

followed by this Court in Suresh Kumar Bhikamchand

Jain case [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] and in

a recent judgment of this Court in the case of Gauri

Shankar Prasad v. State of Bihar [(2000) 5 SCC 15 :

2000 SCC (Cri) 872] . The aforesaid case has full force

even to the facts of the present case inasmuch as in

the said case, the Court had observed: (SCC p. 21,

para 14)

“[I]t is manifest that the appellant was present

at the place of occurrence in his official capacity

as Sub-Divisional Magistrate for the purpose of

removal of encroachment from government land and

in exercise of such duty, he is alleged to have

committed the acts which form the gravamen of the

allegations contained in the complaint lodged by

the respondent. In such circumstances, it cannot

but be held that the acts complained of by the

respondent against the appellant have a reasonable

nexus with the official duty of the appellant. It

follows, therefore, that the appellant is entitled

to the immunity from criminal proceedings without

sanction provided under Section 197 CrPC.”

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It is not necessary for us to multiply authorities on

this point and bearing in mind the ratio of the

aforesaid cases and applyin g the same to the facts of

the present case as indicated in the complaint itself,

we have no hesitation to come to the conclusion that

the appellant had been directed by the Sub -Divisional

Magistrate to be present with police force and remove

the encroachment in question and in course of

discharge of his duty to control the mob, when he had

directed for opening of fire, it must be held that the

order of opening of fire was in exercise of the power

conferred upon him and the duty imposed upon him under

the orders of the Magistrate and in that view of the

matter the provisions of Section 197(1) applies to the

facts of the present case. Admittedly, there being no

sanction, the cognizance taken by the Magistrate is

bad in law and unless the same is quashed qua t he

appellant, it will be an abuse of the process of Court.

Accordingly, we allow this appeal and quash the

criminal proceeding, so far as the appellant is

concerned.

(14) He also brought to the notice of the Court, the decision

in Surinderjit Singh Mand v. Sta te of Punjab, (2016) 8 SCC

722:

25. In continuation of the submissions noticed in the

foregoing paragraphs, it was asserted by the learned

counsel representing the respondents that the

prosecution contemplated under Section 197 of the Code

and the action of the Court in taking cognizance

pertain to actions initiated on the basis of

complaints which disclose the commission of an

offence, or on a police report of such facts, or upon

receipt of information from a person other than the

police officer that such offence had been committed.

It was asserted that the above action of taking

cognizance by a court is based on alleged “facts” and

not “on evidence” recorded by a court. The above

distinction was drawn by referring to Section 190 of

the Code which contemplates initiation of action on

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the basis of facts alleged against an accused, as

against, Section 319 of the Code whereunder action is

triggered against the person concerned only if it

appears from the evidence recorded during the trial

that the said person was involved in the commission of

an offence. While making a reference to Section 319 of

the Code, it was submitted on behalf of the respondents

that cognizance taken under Section 319 of the Code

was by the Court itself and therefore, the same having

been based on “evidence”, as also, th e satisfaction of

the Court itself that such person needed to be tried

together with the “other accused”, it seemed

unreasonable that sanction postulated under Section

197 of the Code should still be required. It was

pointed out that the protection contemp lated under

Section 197 of the Code was not a prerequisite

necessity when cognizance was based on the evaluation

of “evidence” by a court itself. The learned counsel

emphasised that when a court itself had determined

that cognizance was required to be take n, based on

evidence which had been recorded by the same court, it

would be undermining the authority of the court

concerned if its judicial determination was considered

subservient to the decision taken by the authorities

contemplated under Section 197 of the Code. Based on

the submissions noticed above, it was the vehement

contention of the learned counsel for the respondents

that the mandate of Section 197 would not extend to

cases where cognizance had been taken under Section

319 of the Code.

(15) He further drew our attention to the decision in Devinder

Singh v. State of Punjab , (2016) 12 SCC 87

“39. The principles emerging from the aforesaid

decisions are summarised hereunder:

39.1. 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.

39.2. 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

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extent Section 197 CrPC has to be construed narrowly

and in a restricted manner.

39.3. 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 is it possible to lay down such

rule.

39.4. 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 p retended

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 incomplete without

proving, the official act, ordinarily the pro visions

of Section 197 CrPC would apply.

39.5. 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 .

39.6. 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 the appellate court. It may arise at

inception itself. There is no requirement that the

accused must wait till charges are framed.

39.7. Question of sanction can be raised at the time

of framing of charge and it can be decided pr ima 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.

39.8. 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

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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 the

accused to place material during the course of trial

for showing what his duty was. The accused has the

right to lead evidence in support of his case on

merits.

39.9. In some cases 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.

(16) Smt. Aparajita, learned senior counsel appearing on

behalf of the respondent -CBI though finding herself in an

unenviable position for the reason that her client CBI has,

after investigation found nothing against the appellant, she

stated that she would have to rede em the position, in the

interest of justice. She canvassed for the position that the

contention of the appellant that there was no sanction would

not advance his case. She would submit that the trial Court,

the High Court in appeal and what is more, this Court have

found against the licensing authorities which includes the

appellant. She took us through the judgment of this Court

reported in Sushil Ansal v. State through CBI 2014(6) SCC 173.

They read as follows:

“134. That apart, a seating plan, which was in breach

of the statutory provisions and compromised the safety

requirements prescribed under the DCR, 1953, could

hardly support a belief in good faith that exhibition

of films with such a plan was legally just ified. That

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is so especially when the repeal of the Notification

dated 30-9-1976 by which Uphaar was permitted 100 more

seats was followed by a demand for removal of the

additional seats. Instead of doing so the

occupiers/owners assailed that demand in Isherdas

Sahni and Bros. v. Delhi Admn. [Isherdas Sahni and

Bros. v. Delhi Admn., AIR 1980 Del 147] before the

High Court of Delhi in which the High Court directed

the authorities to have a fresh look from the

standpoint of substantial compliance with the

provisions of the Cinematograph Act. The High Court

observed : (AIR p. 152, paras 11 -12)

“11. Proposition 3 : It has been already made

clear above that the relaxation was granted

after considering the public health and the

fire hazard aspects. It is also clea r that

the very fact that the relaxation could not

be granted after bearing these main

considerations in mind would show that there

was some rule for the extension of the

sitting accommodation in these theatres

within the Rules, though the provision of

some of the additional seats may perhaps have

been to some extent contrary to some of the

Rules. It is not necessary for us to

speculate on this question. It is enough to

say that the result of the cancellation of

the relaxation is simply the withdrawal of

the relaxation. It does not automatically

mean that all the additional seats which were

installed in the cinema theatres were

contrary to the Rules and must, therefore,

be dismantled without any consideration as to

how many of these seats were in consonance

with the Rules and how many of them were

contrary to the Rules.

12. Our finding on Proposition 3 is,

therefore, that the Administration will apply

their mind to the additional seats with a

view to determine which of them have

contravened which rules and to what extent.

They will bear in mind that the compliance

with the Rules is to be substantial and not

rigid and inflexible.”

If while carrying out the above directive, the

authorities concerned turned a blind eye to the

fundamental requirement of the Rules by ignoring the

closure of the right side exit and gangway prescribed

as an essential requirement under the DCR, 1953, they

acted in breach of the rules and in the process

endangered the safety of the patrons.

20

135. We shall presently turn to the question whether

the repeal of the notification had the effect of

obliging the occupier/licensee of the Cinema to remove

the seats and restore the gangways and exits as

originally sanctioned. But we cannot ignore the fact

that the occupiers/licensees of the Cinema, had

opposed the removal of the additional seats even when

the respondents in the writ petition had expressed

concerns about the safety of the patrons if the

additional seats were not removed which removal it is

evident would have by itself resulted in the

restoration of the right side gangway. So also the

authorities ought to have insisted on the restoration

of the right side exit by removal of the eight -seater

box which was allowed in the year 1978, ostensibly

because with the right side gangway getting c losed by

additional seats occupying that space the authorities

considered the continuance of the right side exit to

be of no practical use. Withdrawal of relaxation in

the year 1979 ought to have resulted in the reversal

of not only the fixing of additiona l seats but all

subsequent decisions that proceeded on the basis

thereof. It is difficult to appreciate how even

applying the test of substantial compliance the

authorities could consider the theatre to be compliant

with the DCR, 1953 especially insofar as the same

related to an important aspect like gangways and exits

so very vital for speedy dispersal from the cinema

hall.”

(17) She would also seek support from the reasoning which has

been employed by both the trial Court and the High Court viz.,

the fact that here is an officer who stoutly defended his

action taken under order dated 28.07.1979 in the light of the

notification dated 27.07.1979 revoking the earlier decision

to grant extra seats which was not followed to its logical

culmination when it came to t he removal of the extra seats.

In other words, here is a person who prevaricated without

justification, what is more, contrary to the statutory rules

governing the safety features which must be indispensably

21

maintained and fostered.

(18) She also sought to draw support from the recent judgment

of this Court viz., Shantaben Bhurabhai Bhuriya v. Anand

Athabhai Chaudhari and Others 2021 SCC Online SC 974. She

would point out on the strength of the said judgment that even

if this Court finds that sans sanction, cognizance became

vulnerable, it would still justify this Court directing grant

of sanction be considered and given. The tragedy which

occurred after 17 years could have been averted. The causa

causans was the refusal to remove the extra seats which mean s

the immediate cause for the fire and the deaths caused by the

fire could have been avoided.

(19) Shri KTS Tulsi, learned senior counsel appearing on

behalf of the first respondent, would submit that cognizance

is taken of the offence and not the offender. No wrong has

been done by the Magistrate in taking cognizance in a case as

grave as the present case. He points out that the proportions

of the tragedy that overtook the lives of as many as 59 persons

should not be lost sight of by the Court. He reiterat es the

argument of Smt. Aparajita that the matter has engaged the

attention of three Courts which includes this Court and the

blame of officers of the licensing bodies which includes the

appellant and that the same cannot be overlooked.

(20) Learned senior cou nsel would submit that a perusal of

the pleadings of the appellant would also reveal conduct

unbecoming on the part of an applicant before the High Court.

22

It is the requirement of an applicant who comes to Court to

conduct himself fairly. He elaborates b y pointing out that

at one juncture, appellant had a case that he had personally

inspected the theater. It is contrasted with his pleading

wherein he took the stand that he has not personally inspected

the theaters whereas, actually, inspection was done b y the

members of the inspecting team. In other words, here is a

person, who even though is wearing the robes of a public

servant, he cannot claim immunity under Section 197 of the

Cr.P.C. by reason of his conduct. Learned senior counsel

would submit that the change from the strict posture that he

adopted when he filed the counter affidavit is inexplicable

and it invited cognizance being legitimately taken. No case

has been made by the appellant, in other words, for interfering

with the impugned order.

ANALYSIS

(21) There is no dispute that the appellant was a public

servant. The period in question when he had a connection with

the theater in question can be seen as 1979 -1980. We have

already indicated indisputably the train of events which

unfolded and th e genesis of which is the issuance of the

notification in 1976 by the Lieutenant Governor. The number

of seats were allowed to be increased. The appellant had

nothing to do with that. Based on the decision, the seats were

increased. Again the appellant was nowhere near the scene at

23

the time. The appellant took over on 02.02.1979. On

27.07.1979, a notification came to be issued revoking the

earlier notification issued on 13.09.1976. Acting strictly

in obedience to the said notification revoking the ear lier

notification, the appellant did issue an order dated

28.07.1979. The subsequent notification revoking the earlier

notification as also the action of the appellant came to be

impugned before the High Court of Delhi. An interim order

followed. The appellant did defend the action as was expected

of him as an official respondent. It is thereafter that the

High Court proceeded to render its judgment. The High Court

inter alia held as follows:

(22) The High Court found that the relaxations granted under

the proviso to Rule 3(3) were capable of being modified or

revoked and in the circumstances, the cancellations of the

relaxations were justified and legal.

(23) Thereafter the Court, inter alia, went on to hold as

follows:

“Proposition No. 3:

It has been already made clear above that the

relaxation was granted after considering the public

health and the fire hazard aspects. It is also clear

that the very fact that the relaxation could not be

granted after bearing these main considerations in

mind would show that there was some rule for the

extension of the sitting accommodation in these

theaters within the Rules, though the provision of

some of the additional seats may perhaps have been to

some extent contrary to some of the Rules. It is not

necessary for us to speculate on this question. It is

enough to say that the result of the cancellation of

the relaxation is simply the withdrawal of the

relaxation. It does not automatically mean that all

24

the additional seats which installed in the cinem a

theatres were contrary to the Rules and must,

therefore, be dismantled without any consideration as

to how many of these seats were in consonance, with

the Rules and how many of them were contrary to the

Rules.

Our finding on proposition No. 3, therefore , that the

Administration will apply their mind to the additional

seats with a view to determine which of them have

contravened which rules and to what extent. They will

bear in mind that the compliance with the Rules is to

be substantial and not rigid an d inflexible.

With these guidelines furnished by the Act itself,

they will determine which of the additional seats

infringe upon the Rules and in respect of only such

seats they will have the power to order removal of

such seats.”

“Proposition 4

It is not disputed that some of the cinema theatres

had existed prior to the promulgation of 1953 rules.

Advisedly, Rule 3(3) makes a distinction between these

theatres and other theatres which have come into

existence after the promulgation of these Rules. It

would appear from the opening words of Rule 3(3) that

licences may be granted or reviewed in respect of

preexisting theatres which were already licensed prior

to 1953 for buildings exhibition without their

compliance with Rule 3(2). This is the effect of the

words “Notwithstanding anything in the preceding sub -

rule” with which Rule 3(3) begins. The preceding sub -

rule is Rule 3(2) which insists that the requirements

set forth in the First Schedule of the Rules have to

be fulfilled before a licence can be gran ted to a

building which is permanently equipped for

cinematograph exhibition. This distinction will

surely be bore in mind by the Administration in dealing

with these two kinds of buildings. This will also be

in accordance with the requirement already se t out in

sections 12(1)(a) and 17 that the compliance with the

Rules has to be substantial and not rigid or

inflexible.”

(24) The Court found that affording an opportunity of hearing

would have been a mere formality but the Court further notes

that the appellant would be well advised in giving a hearing

to the writ petitioners before the cancellation. This would

25

be necessary, it was found, because the question , as to, how

many of the additional seats substantially complied with the

Rules and how many contraven ed the Rules as at present ha s not

been determined and has to be determined by the Administrator

later.

“The main order has been passed during the currency of

the licenses. But this is inevitable. Any any rate,

in the light of the observations made above , the

dismantling of the seats on the ground that they do no

substantially comply with the Rules will be done in

future after the Administration apply their mind to

the question.

It cannot be expected as to exactly when this would

occur. It is not, theref ore, possible to ensure that

any change in the sitting accommodation would be

enforced by the Administration only at the end of any

particular licensing period.

For the above reasons, the writ petitions are disposed

of in the light of the findings given above and in the

light of the observations as to the existing additional

seats and as to the changes which may have to be made

to them in future after the Administration examine the

questions on merits and take steps. No costs.

Pending the determination b y the Administration as to

the substantial compliance with the Rules by the

additional seats or such of them as may be singled out

by the Administration in each of the buildings of the

licensees, the interim order dated 02.08.1979 will

continue in force subject to the limitation that if no

determination is made in respect of each building

within one month by the Administration, then those

licenses in respect of whose buildings the

determination is not made shall be free to sell tickets

for the additional se ats in their building.”

(25) It is, thereafter, that, on 06.12.1979, the appellant

in purported compliance of the High Court order proceeded to

issue a show cause notice to the licencee of Uphaar Cinema.

A committee was indeed constituted as noticed by us ea rlier.

Finally on 24.12.1979 purporting to act on the basis of the

26

recommendations of the Committee, the appellant ordered the

removal of additional six seats from the balcony. 56 seats

were directed to be removed from the other part of the theater.

A total of 62 additional seats came to be ordered to be

removed. As we have noticed, the unfortunate fire took place

nearly 17 years thereafter.

(26) Both the Courts have drawn considerable support from the

stand taken by the appellant in his counter affidavit.

According to the appellant, the stand taken was in keeping

with the notification which was issued revoking the earlier

notification and also his notice. It is the further case of

the appellant that the Court must bear in mind that whatever

be his pleadings, the matter came to be considered by the High

Court and the judgment followed and the appellant was duly

bound to act in conformity with it. In particular, the

contention is, since what was contemplated was should there

be substantial compliance, it im plied that additional seats

could be continued.

(27) It may be true that with the benefit of hindsight,

following the unfortunate tragedy which took place nearly 17

years, thereafter, the loopholes fatal as it turned out to be,

the action of the appellant and t he members of the Committee

had been laid bare. We say this, for the reason that, as

pointed out by the learned senior counsel appearing on behalf

of the CBI, this aspect has received articulation at the hands

27

of this Court in the judgment reported in Sushil Ansal

1

. In

other words, there may have been, as found by this Court also,

lapses. We are, in this case, confined to grapple with the

contention of the appellant based on the impact of there being

no sanction within the meaning of Section 197 of the Cr.P.C.

When we consider the question of cognizance being taken in the

absence of sanction and thereby Section 197 of the Cr.P.C.

being flouted it is not to be conflated and thereby confused

with the question as to whether an offence has been committed.

The salutary purpose behind Section 197 of the Cr.P.C. is

protection being accorded to public servants.

(28) The State functions through its officers. Functions

of the State may be sovereign or not sovereign. But each of

the functions performed by every publ ic servant is intended

to achieve public good. It may come with discretion. The

exercise of the power cannot be divorced from the context in

which and the time at which the power is exercised or if it

is a case of an omission, when the omission takes pla ce.

(29) The most important question which must be posed and

answered by the Court when dealing with the argument that

sanction is not forthcoming is whether the officer was acting

in the exercise of his official duties. It goes further. Even

an officer who acts in the purported exercise of his official

power is given the protection under Section 197 of the Cr.P.C.

1 Sushil Ansal v. State through CBI 2014(6) SCC 173

28

This is for good reason that the officer when he exercises the

power can go about exercising the same fearlessly no doubt

with bona fides as public functionaries can act only bona

fide. In fact, the requirement of the action being bona fide

is not expressly stated in Section 197 of the Cr.P.C., though

it is found in many other statutes protecting public servants

from action, civil and criminal aga inst them.

(30) Once we bear this cardinal principle in mind and judge

the action or omission on the part of the appellant, we would

think that it cannot be found that, having regard to the

admitted facts, the appellant was not acting in the discharge

of his official functions. All that happened, under his

oversight starting with his notice which he issued on

28.07.1979, to the counter affidavit which he filed in the

writ petitions, the subsequent show cause notice which he

issued, and thereafter, finally on 24 .12.1979, wherein he

directed the removal of a total of 62 additional seats, all

these acts were done in the exercise of his official duties.

As we have already noted, even if it were to be treated as

done in the purported exercise of his official duties, he

would still stand protected from prosecution without sanction.

This must not be confused with the question as to whether the

appellant had committed any offence with which he appears to

have been indicted by the Magistrate issuing summons and the

High Court upholding it. The fact that the appellant had

taken a certain stand in the counter affidavit would not make

29

his subsequent act of acting upon the recommendations of a

committee, an act which is not in the discharge of his official

functions. The findings of this Court which we have referred

to in the decision (supra) would not mean that, if they are

offences committed by the persons including the appellant,

they would not require sanction within the meaning of Section

197 of the Cr.P.C. The subtle and nuanced distinction between

the question as to whether the offence has been committed and

if an offence has been committed, whether a sanction is

required for prosecuting a public servant who is alleged to

have committed the same, must not be lost sigh t of. The

learned Magistrate and the High Court would appear to have

overlooked this distinction. We notice that, in fact,

apparently being conscious of the legal requirement of

sanction, the first respondent had sought sanction from the

appropriate Government and a writ petition was also filed

viz., 6238/2011 for directions to take appropriate steps in

the matter. It is further noticed by us that on account of

the pendency of the petition under Section 482 that no action

was taken on the same.

(31) One ground which has found favour with the High Court

against the appellant is that the appellant, according to the

High Court, could raise the issue before the Magistrate.

Here we may notice one aspect. When the question arises

as to whether an act or omission which constitutes an offence

in law has been done in the discharge of official functions by

30

a public servant and the matter is under a mist and it is not

clear whether the act is traceable to the discharge of his

official functions, the Court may in a given case tarry and

allow the proceedings to go on. Materials will be placed

before the Court which will make the position clear and a

delayed decision on the question may be justified. However,

in a case where the act or the omission is indisputably

traceable to the discharge of the official duty by the public

servant, then for the Court to not accept the objection against

cognizance being taken would clearly defeat th e salutary

purpose which underlies Section 197 of the Cr.P.C. It all

depends on the facts and therefore, would have to be decided

on a case to case basis.

(32) We notice that Shri R. Basant, learned senior counsel,

drew our attention to the judgment of this Co urt in MCD v.

Uphaar Tragedy Victims Assn. (2011) 14 SCC 481 to contend that

this Court has exonerated the licensing authority of liablity:

“54. It is evident from the decisions of this Court as

also the decisions of the English and Canadian Courts

that it is not proper to award damages against public

authorities merely because there has been some

inaction in the performance of their statutory duties

or because the action taken by them is ultimately found

to be without authority of law. In regard to

performance of statutory functions and duties, the

courts will not award damages unless there is malice

or conscious abuse. The cases where damages have been

awarded for direct negligence on the part of the

statutory authority or cases involving doctrine of

31

strict liability cannot be relied upon in this case to

fasten liability against MCD or the licensing

authority. The position of the DVB is differ ent, as

direct negligence on its part was established and it

was a proximate cause for the injuries to and death of

victims. It can be said that insofar as the licensee

and the DVB are concerned, there was contributory

negligence.

55. The position of licen sing authority and MCD is

different. They were not the owners of the cinema

theatre. The cause of the fire was not attributable to

them or anything done by them. Their actions/omissions

were not the proximate cause of the deaths and

injuries. The licensing authority and MCD were merely

discharging their statutory functions (that is

granting licence in the case of the licensing

authority and submitting an inspection report or

issuing an NOC by MCD). In such circumstances, merely

on the ground that the licens ing authority and MCD

could have performed their duties better or more

efficiently, they cannot be made liable to pay

compensation to the victims of the tragedy. There is

no close or direct proximity to the acts of the

licensing authority and MCD on the on e hand and the

fire accident and the death/injuries of the victims.

But there was close and direct proximity between the

acts of the licensee and the DVB on the one hand and

the fire accident resultant deaths/injuries of

victims. In view of the well -settled principles in

regard to public law liability, in regard to discharge

of statutory duties by the public authorities which do

not involve mala fides or abuse, the High Court

committed a serious error in making the licensing

authority and MCD liable to pay compensation to the

victims jointly and severally with the licensee and

the DVB.

56. We make it clear that the exoneration is only in

regard to monetary liability to the victims. We do not

disagree with the observations of the High Court that

the performance of duties by the licensing authority

32

and by MCD (in its limited sphere) was mechanical,

casual and lackadaisical. There is a tendency on the

part of these authorities to deal with the files coming

before them as requiring mere paperwork to dispose it.

They fail to recognise the object of the law or rules,

the reason why they are required to do certain acts

and the consequences of non -application of mind or

mechanical disposal of the application/requests which

come to them. As rightly observed by Naresh K umar's

Report, there is a lack of safety culture and lack of

the will to improve performance. The compliance with

the procedure and rules is mechanical. We affirm the

observations of the High Court in regard to the

shortcoming in the performance of their f unctions and

duties by the licensing authority and to a limited

extent by MCD. But that does not lead to monetary

liability.”

(33) He would contend on the strength of the same that this

Court has found that the appellant was not liable to

compensate. This Cou rt was dealing with monetary liability.

(34) Though the appellant’s final decision to take action as

he did by proceedings dated 24.12.1979, stood in contrast with

the contents of his counter affidavit, it by itself may not

obviate the need for sanction, even proceeding on the basis

that the appellant could be accused of the offences which view

found favour with the Magistrate.

(1) The upshot of the above discussion is that we find that

the Magistrate erred in the facts of this case in taking

cognizance against the appellant contrary to the mandate of

Section 197 of the Cr.P.C. On that short ground alone, the

appellant succeeds. The appeal is allowed. The impugned

33

order will stand set aside. The proceedings challenged in

Section 482 will stand quashed. We, howe ver, make it clear

that this will not stand in the way of the competent authority

taking a decision in the matter and/ or granting sanction for

prosecuting the appellant in accordance with law. In view of

the fact that the appellant succeeds on the aspect of there

being no sanction, we do not deem it necessary to pronounce

on the two other contentions which have been pressed before

us by the appellant.

……………………………………………………………., J.

[ K.M. JOSEPH ]

……………………………………………………………., J.

[ B.V. NAGARATHNA ]

……………………………………………………………., J.

[ ARAVIND KUMAR ]

New Delhi;

April 20, 2023.