REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2009

[Arising out of SLP (Crl.) No. 4130 of 2006]

State of Madhya Pradesh …Appellant

Versus

Sheetla Sahai & Ors. …Respondents

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2. Appellant is before us being aggrieved by and dissatisfied with a

judgment and order dated 12.01.2006 passed by a learned Single Judge of

the Madhya Pradesh High Court allowing the criminal revision applications

filed by the respondents herein arising out of the orders dated 21.12.1998

and 13.05.1997 passed by the Special Judge, Bhopal in Special Case No. 6

of 1997.

3. The respondents herein were proceeded against for commission of

offences under Section 13(1)(d)(2)(ii-iii) read with Section 13(2) of the

Prevention of Corruption Act, 1988 (for short “the Act”) and Section 120B

of the Indian Penal Code, 1860.

4. Before proceeding further, we may notice the positions held by the

respondents herein. Respondent No. 1 Sheetla Sahai was Minister for Water

Resources of the State of Madhya Pradesh. Respondent No. 2 D.V.S.R.

Sarma and the respondent No. 7 S.W. Mohgoankar were the Secretary to the

Government of Madhya Pradesh. Respondent No. 3 P.V. Srinivasaiyah was

the Engineer-in-Chief and the respondent No. 4 A.S. Laxminarsimhaiya was

the Deputy Secretary in the Government of Madhya Pradesh. Respondent

No. 5 V.R.B. Gopal and the respondent No. 6 M.N. Nadkarni were the Chief

Engineers, Hasdeo Bango Project. Respondent No. 11 R.P. Khare was the

Secretary, Control Board for Major Projects.

2

5. Appellant under the aegies of the World Bank undertook construction

of the Hasdeo Bango Masonry dam project. For the aforementioned

purpose, the respondent Nos. 8, 9 and 10 herein, viz.,M/s Progressive

Constructions Pvt. Ltd., M/s Prasad & Company, M/s SEW Construction

Co. (hereinafter referred to as “the contractors”) were awarded contracts in

terms whereof they were required to excavate stones etc. from Therma Pahar

Quarry, which was situate at only 12 kms. away from the site, for use of the

stone to be extracted therefrom for construction of masonry spillway.

6. One of the terms of the said contract is as under:

“…The tenderer should satisfy himself regarding

availability of the required quality and quantity of

the materials, if any quarry is changed for any

reason whatsoever, no claim shall be entertained

on this account.”

In addition to the guidelines, a plan was also supplied to the

contractors containing the following note:

“the contractor shall extract materials from

the approved sources and quarry areas to be

designated by the engineer-in-charge for their

particular contract group. They shall have no

claim for any material collected elsewhere without

3

having obtained the prior approval in writing of the

engineer in charge. Such material shall become

the property of the department unless approval to

use the same is subsequently accorded by the

engineer-in-charge, in which case, however, the

contractor shall not be entitled for any extra rate or

lead.”

7.However, on the premise that whereas eight lakh cubic meters of

stones of the requisite specification were required for masonry work, only

one lakh cubic meter stone was available from the Therma Pahar Quarry,

permission was sought for by the contractors to excavate stones, rubbles and

other materials from a quarry known as Katghora Quarry which was situated

at a distance of 22 kms. from the dam.

8. The question was considered by the concerned engineers. The

District Mining Officer and the Additional Collector Korba, having regard to

the fact that the mining leases in respect of the said quarries were to be

granted, asked them not to do so as the stones in the hillocks of villages

Katghora, Hunkra and Maheshpur were found to be suitable for the masonry

work of the dam, as would appear from a letter dated 14.07.1983 issued by

the Executive Engineer to the Additional Collector, Korba.

4

9. The Superintending Engineer, respondent No. 7 herein also by his

letter dated 28.07.1983 addressed to Shri R.C. Gupta, the then Executive

Engineer stated:

“I am informed that Rampura quarry near

Katghora on Kathora Ambikapur road, may also

yield good masonary stones. You may also

explore this possibility and let me know if the

stones were got tested. If not, the samples from

this quarry may also be tested. Case could also be

moved to obtain lease for this quarry.”

10. A request was also made to the Mining Officer of Bilaspur to the

same effect by Shri R.C. Gupta, the then Executive Engineer by a letter

dated 16.10.1983, stating:

“…Adequate quantity of rubble is not available

from Therma quarries of Forest Department

acquired for this purpose and Geologist,

Geological Survey of India had intimated that

about one lakh cum. of rubble can only be

extracted from Therma quarries. For completion

of this major dam about ten lakh cum. rubble &

metal are needed. Out of which 1 lakh cum. can

be extracted from Therma quarry, about three lakh

cum. can be used out of the stone received from

excavation of foundation of dam, remaining 6 (six)

lakh cum. is required from adjacent stone quarries

like Katghora, Hukra & Maheshpur. Hence, I have

requested in my letter cited above (copy enclosed)

5

to additional Collector, Korba, to reserve rubble

quarries in the surroundings of the above villages

so that rubble from these quarries can be extracted

for completion of the Bango Dam in time.

Now I understand that you have proposed

the above quarries for auction on 20th & 21st

Oct.’83. I request to delete the rubble quarries

situated in the surrounding of Katghora, Hukra &

Maheshpur from the purview of auction and

transfer to Irrigation Department. Depending upon

the quantity of rubble required by each agency

executed masonry works at Bango Dam, allotment

of individual quarries will be made by us after the

agencies deposit the royalty charges which will be

refundable to them after awarding the certificate of

utilizing the material in bonafide Government

works.

Till the formalities are over for transfer of

the above quarries to Irrigation Department, I

request to delete the following quarries from the

purview of auction.

S.No.Name of

Village

PC No.Name of

material

Khasra No.Area

1. Hukra 47 Stone 347/1 17.396

Hec.

2. Maheshpur 31-AStone 1/1-K 30.425

Hec.”

11. The Additional Collector (Mining Section), Korba in response thereto

by a letter dated 22.11.1983 addressed to the Executive Engineer reserved

6

the aforementioned quarries for extraction of stones departmentally, subject

to the conditions mentioned therein.

12. Yet again, the Executive Engineer by a letter dated 05.12.1984

addressed to the Superintending Engineer brought to his notice that

alternative sites for quarrying operations for extraction of stones were

necessary, inter alia, stating:

“2.The quarrying operations for extraction of

stones was started in the real sense during 82-83

working season, i.e., prior to the area was ready for

starting the masonry. The contractors after the

start of quarry operations, repeatedly wrote,

regarding the non availability of sufficient stones

of requisite quality. They had also brought out that

the yield of even this small quantity of stone was

very much less. In consultations with the

department and the resident geologist, they have

opened more number of quarry faces, but this did

not result yields. This office has also carried out

case studies which has established the yield of

useful stone to be very much less. The details

enclosed at Annexure A. Even the quantum of

stone available is less, when compared to the

requirement.

3.It was reported that the quantum of useful

rubble available in the entire Therma Pahad Hills

is to the tune of one lakh cum. against the total

requirement of 8 lakh cum. for the entire dam.

This was based on the detailed investigations and

7

report of the Resident Geologist. Even this

quantity can be extracted with much difficulty.

Therma Pahad Quarry on the visual appearance

and the random bore holes, initially appeared to be

good. As such this was declared as quarry for

masonry stone and accordingly estimates prepared

and designated as the specified quarry in the

quarry map enclosed along with the agreements.

The contractors naturally could not have

investigated the quarry by actual opening/

operation, and have inspected the quarry with the

data available to them. Therefore neither

department nor the contractor could have foreseen

the non availability of useful stone in the required

quantity from the designated quarry.”

It was requested:

“It is therefore requested that the sanction may be

obtained for payment of additional leads and

communicated. However, the payment towards

additional wasteful expenditure incurred in therma

quarries as claimed by contractors is recommended

for rejection.”

13. The Superintending Engineer brought the same to the notice of the

Chief Engineer by a letter dated 18.12.1984 stating that there had always

been a controversy regarding the use of those stones as rubble in masonry

dam. A question was also raised as to whether the department would permit

additional payment due to change in the quarry. If such a step is not taken,

8

the contractor may put an end to the contract and, thus, inter alia requested

that payment of additional leads from Katghora quarry may be allowed.

14. It appears that even the Central Water Commission of the Government

of India by a letter dated 04.05.1984 informed the Chief Engineer of the

project to the following effect:

“Please refer to your letter on the above mentioned

subject. You have proposed to use stone from

Therma Pahar quarry for the construction of the

dam. Though the stone from this quarry has been

approved as Granite, the Compressive strength of

the stone from this quarry varies from 289 kg/cm

to 373 kg/cm, which is very low. It is necessary

that the reasons for such low strength for the

Granite are investigated before deciding to use the

same for the construction of the dam.”

15. By a letter dated 7.06.1983, the Executive Engineer of the Quality

Control Division brought the following to the notice of the Superintending

Engineer of the Quality Control Department:

“Thus, it is noticed the mica existing in the rocks

under question varies from 7% to 11%. No

mention of the permissible percentage of mica is

given in IS codes or other books. Only Hand book

on civil engineering by PN Khanna, reveals that

9

2% of mica is permissible. In view of the above it

is submitted that the pigmetite band stones are not

fit for use in masonry dam from quality control

unit Machadoli’s point of view. This is, however,

continuously used in masonry on dam blocks 16,

17, 18, 19, 25, 26, 27, 28, 29, 35, 37 in which work

continuously in progress. If the higher authority

deems it fit, that use of pigmetite is to be continued

by overruling the opinion of the undersigned clear

written instructions may kindly be issued to this

office for guiding the A.R.Os. Quality Control

deployed on Quality control work of masonry dam.

Early reply is solicited.”

16. In view of the aforementioned development, the Chief Engineer of the

Project brought the same to the notice of the Secretary of the Major,

Medium and Minor Irrigation Department, Bhopal by a letter dated

11.01.1985 inter alia making the following recommendations:

“(i)Permitting the Chief Engineer for declaring

Katghora quarry as an additional quarry for

balance quantity of rubble quarry for rubble for

masonry dam other than one lakh cubic meter of

rubble, as assessed by the geologist to be extracted

by the contractors from Therma Pahad quarry as

far as possible in the contracts mentioned in this

letter.

(ii)To allow payment of additional leads from

Katghora quarry for cum of masonry at the rates

detailed in table at para 5.3 above.”

10

Along with the said letter, various other documents were enclosed as

specified therein including a letter dated 4.05.1990, wherein it was inter alia

stated:

“10.In view of the above, the Chief Engineer

submitted proposals on 4.07.85 for Government

Orders. According to the above proposals sanction

to pay extra lead amounting to Rs. 1,23,23,767/-

has been sought. This amount is about 3% of the

total amount of contract of Rs. 41.77 crores. The

Chief Engineer had also sought the opinion of the

World Bank, and the World Bank gave a

suggestion to deal the issue with in the contractual

provisions. Similar problem has been raised by the

contractors in Bansagar Project also, and the

Executive Committee had recommended approval

of lead payment.

11.According to the Chief Engineer’s report,

the Executive Engineers had reported that only

30% to 35% useful stones can be extracted which

was not economical. This project is under

construction with the World Bank assistance, will

have to be completed on time, to supply water to

the National Thermal Power Corporation, and also

to the M.P.E.B. Power Station. In view of this

stones have been brought from Katghora quarry

situated at 22 Km. where sufficient quality of

stones are available.

In case, due to above reasons had the Agreements

drawn been cancelled and new tenders recalled the

cost would have been more. Further, precious time

would have been lost in this process which would

have affected the works and it would not be

11

possible to supply water to N.T.P.C. and

M.P.E.B.”

17. In a letter dated 14.02.1985 addressed to the Chief Engineer, the

World Bank stated:

“We note you have referred the matter to the

Secretary, Irrigation Department, Bhopal for

decision. We suggest that the matter be resolved

within contractual limits.”

18. Pursuant thereto and in furtherance thereof, even the Progress Review

Committee observed in its note dated 14.05.1985 as follows:

“27. Chief Engineer (HBP) explained his proposal

submitted through his memo No. 1916/HB/84

dated 29/3/85. He gave the background of the

change of quarry, in view of unexpectedly low

yield of useful stone from the Therma Pahad

quarry, approved in the technically sanctioned,

sanctioned estimate and also on which basis

tenders had been invited and contractors’ rates

accepted. He informed the Committee that the

total extra commitment for the various contracts

worked out to Rs. 1.23 crores – approximately 3%

of the total contract value.

28.Financial Adviser observed that he had no

offered any comments on the merit of the case, as

12

then appeared to him essentially a claim case.

PRC does not deal such claim cases.

29.The Committee observed that the World

Bank too vide their letter of 14/2/85 had suggested

that the matter be resolved within contractual

limits.

30.In view of the above, the Committee did not

examine the proposal of Chief Engineer and

refrained from giving any comments in the matter

at this stage.”

19. However, the contractors invoked the arbitration agreement contained

in the said contract in the year 1987 and an ad hoc settlement was proposed.

20.The matter was placed before the Financial Adviser. The Financial

Adviser in his note dated 4.01.1991 to the Secretary, while stating that the

Financial Adviser functions as a consultant offering comments on cases

referred to him in the light of his background, experience and expertise and

going by the facts placed before him which may not be treated as a substitute

for vetting by the Finance Department wherever such vetting is required

under the rules of governmental business, inter alia made the following

comments:

13

“…However, since the whole contract action was

based on the presumption that the required

quantity of material of required specification

would be available from a quarry with in 12 KM of

the work site, it can be reasonable assumed that the

contractors have quoted their rates on this

assumption. The departmental estimates were also

based on this assumption. Since, later on, this

assumption was found to be invalid and majority

of the material had to be obtained from a quarry

with an average lead of 22 KM from the work site

as against 12 KM in respect of the contemplated

quarry, the contractors have a reasonable case for

additional payment on account of extra lead of the

material brought by them from this second quarry.

Thus, their claim is based on consideration of

equity rather than there of law.”

In regard thereto, the Financial Adviser opined:

“4.Since the proposed settlement will amount

to extra-contractual payment, it has to be ensured

that the proposed settlement is acceptable to the

contractors concerned. In other words, the

settlement has to be a negotiated settlement and

should not leave room for further disputes with the

various contractors. Since the purpose of the

whole exercise is to avoid arbitration it could even

be ascertained if there are any other disputed issues

in these contracts. If an overall settlement of all

the disputes could be attempted and a sort of

package deal is evolved in respect of each contract

so that the contracts are finalized once for all

leaving no scope for arbitration on the other hand

14

if the contractors intend to take resort to arbitration

for other issues, this issue could also go in for

arbitration. A package approach would allow

negotiation in a spirit or give and take for an over-

all settlement of all disputes.”

21. The then Secretary (Irrigation) Shri M.S. Billore constituted a

committee comprising of the Engineer-in-Chief P.V. Srinivasaiyah, the

Chief Engineer, the Financial Adviser, Secretary (Control Board) and the

Deputy Secretary, some of whom are Accused Nos. 3, 4,5 and 11.

22. The said Committee submitted a report in respect whereof the

Secretary made a note that the same be critically examined.

The Officer on Special Duty noticed the recommendations of the

Committee, which are as under:

“(i)As the quarry has been changed by the

Department due to Technical reasons the

contractors cannot be held responsible.

(ii)When the Department itself did not know

about the quarry’s unsuitability it will be unfair to

expect the contractors to bring stones from the

changed quarry at the same rates.

(iii)Payment to the extent of actual quantity

brought from the quarries be made.”

15

The proposals of the Chief Engineer, the quantities under each

agreement, the rate and the amount were also noticed. It was proposed:

“Therefore, it is proposed to approve payment for

actual quantity and the Chief Engineer may be

informed to take undertakings from the contractors

before making the payment.”

The Financial Adviser was asked to examine the said proposal in

details. Some discussions apparently were held and it was found necessary

to obtain the following information before taking decision at the government

level:

“1.After the inspection of the Geologists how

much quantity has been brought from Therma

Pahad by each contractor.

2.How much quantity has been brought from

Katghora quarry.

3.How the records are kept by the Department

about the quantity of stones brought from different

quarries.”

A draft letter was also prepared.

16

23. On or about 6.04.1991, one Shri Uday Shinde in his note stated that

the Chief Engineer had not sent any detail in regard to Block 31-38 as in the

agreement only Therma Pahar quarry had been shown for the balance work

and as the original file was sent to the Hon’ble Minister, it was not possible

to deal with the case. The file was re-submitted and the amount payable to

the contractor for additional lead was again put up for administrative

approval. Yet again, the Engineering in-Chief Committee was asked to

examine the matter.

24. In a note to the Secretary dated 27.04.1991, the salient features in

respect of the aforementioned matter were placed again to which Shri M.S.

Billore by his note dated 1.05.1991 opined :

“Since government decision has already been

informed to the Chief Engineer, Hasdeo Bango

Project through government letter No:

9/CP/B/31/89/319, Bhopal dated 28.2.89. Hence,

any action at government level is not pending in

this case and Chief Engineer to take action in this

case as per government order.”

17

25. Allegedly, the respondent No. 1 who was Minister at the relevant

point of time sat over the file for a period of about six months. He on

4.11.1991 noted:

“I have studied the case. Whenever any opinion

has been sought by the Secretary, from whichever

authority, they gave their opinion as per their

wisdom. Every time the Secretary has been

seeking the opinion from one after another officer.

In this process he spent a period of one year

between 3.5.90 to 1.5.91. In accepting the opinion

or recommending any action, it was expected from

the Secretary to take into consideration the fact

that the opinions had been given as per their

wisdom. Therefore, question does not arise to take

any action against the subordinate officers.

No basis appears for the Secretary to take a totally

different view than the unanimous opinions.

Therefore, it is necessary to investigate the basis

on which the Secretary Shri Billore had rendered

his opinion.

The new Secretary to study the case and give

opinion.”

26. Pursuant thereto or in furtherance thereof, the respondent No. 2 Shri

D.V.S.R. Sarma submitted a report upon constitution of a Committee,

stating:

18

“(i)Due to technical reasons, the department has

changed the quarry. Therefore, its liability should

not be upon the contractors.

(ii)When the Department had not any

knowledge about the quarry, and to expect this that

even under the changed quarry the contractor

should fetch/ transport the stones at the same rate,

is also not proper.

(iii)Where & Where (sic) and for that much of

the quantities, the materials have been brought

from a quarry at more distance, it is proper to

make payment for that much excess distance.”

27. The respondent No.1 approved the said note of the respondent No. 2

on or about 20.01.1992 whereupon the amount in question was sanctioned.

28. Thereafter, the accounts were audited and one Shri G.K. Shukla,

Deputy Accountant General reported:

“a)The clause of the agreement noted above

and the quarry chart clearly bring out that in the

event of change of quarry on whatever reasons no

claim will be entertained and contractor should

before quoting rates, visit the quarry site and

satisfy himself regarding quantity and quality of

the material available. Thus, the sanction appears

a negotiated settlement beyond the contractual

provisions, for which concurrence of Finance

Department ought to have been obtained.

19

b)The PRC considered this as a claim case

which was to be decided by Arbitrator under M.P.

Adhikaran Adhiniyan, 1983.

c)The Member, World Bank suggested to

resolve the matter within the contractual limits.

d)The Secretary Irrigation had earlier rejected

the case as it was not admissible.

e)The rates quoted by the contractors were

inclusive of all lead and lift, being item rate

tender.”

The Auditor General of India also took note of the said report, stating:

“Therefore, in spite of the report of the Geologist

that the good quality of stone was available in

sufficient quantities in the upper portion of the

quarry situated in the hill mentioned in the

agreement and in spite of there being specific

provision in the agreements that no additional

payment would be acceptable in the event of

change in leads or change in quarry, the payments

made to the contractors were irregular and

resultantly made additional gains of Rs. 102.46

lacs to them.”

29. Pursuant thereto or in furtherance thereof, a complaint was lodged.

The matter was investigated by the Special Police Establishment. They

collected all the materials and filed a chargesheet in the Court of learned

20

Special Judge on 27.03.1997. The case was registered as Special Case No. 6

of 1997.

30. By an order dated 13.05.1997, the learned Special Judge took

cognizance of the case, opining:

(i)As none of the accused is a public servant, no sanction was

required to be obtained in terms of Section 19 of the Act.

(ii)Criminal misconduct relating to corrupt practice under Section

13(1)(d)(ii-iii) of the Act has nothing to do with normal activity

and work under government duty of any public servant at any time.

31. In the year 1997, the respondent Nos. 1 and 2 had filed a revision

application before the High Court.

32. The Special Judge framed charges against the respondents on or about

29.07.1999; a sample copy whereof reads as under:

“You were working as Minister In-charge,

Ministry of Water Resources, Government of

Madhya Pradesh from June 1990 to September

21

1992. On the recommendatory note of Shri

D.V.S.R. Sharma ignoring the letter dated 14.02.85

of the Finance Branch of World Bank and earlier

decision dated 18.02.85 according to which the

case of extra lead was to be decided within the

ambit of the contract in respect of payment of extra

lead to the concerned Tender Contractors for

transportation of stones used in construction work

of masonry non-flow dam upstream in Hasdeo

Bango Project. You in conspiracy with the

employees and Tender Contractors accorded

administrative sanction and payment of one crore

two lac forty six thousand two hundred rupees was

made to the Contractors towards extra lead.

Hence, you while holding the post of public

servant misusing the position of the post provided

financial benefit to the Tender Contractors without

public interest.

Your above act being offence under Section

13(1)(D)(ii-iii), the Prevention of Corruption Act,

1988 is punishable under Section 13(2) the

Prevention of Corruption Act, 1988. In the

alternative, you in criminal conspiracy with Shri

D.V.S.R. Sharma, Secretary, working in the

Ministry of Water Resources, Government of

Madhya Pradesh and other employees and

contractors acted as mentioned above, which is

punishable under Section 13(1)(D)(ii and iii) read

with Section 120B IPC, which is within the

jurisdiction of this Court.

Hence, I hereby direct that you will be tried

for the offence mentioned above by this Court.”

22

33. Aggrieved by and dissatisfied therewith, the respondents filed revision

applications before the High Court, which by reason of the impugned order

have been allowed. The State is, thus, before us.

34. Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of the

appellant, in support of the appeal, inter alia would submit:

(i)The High Court committed a serious error in opining that an order

of sanction in terms of Section 197 of the Code of Criminal

Procedure was required to be obtained despite the fact that the

respondent Nos. 1 to 7 were no longer holders of public office(s).

(ii)While exercising its revisional jurisdiction, the High Court could

not enter into the question of appreciation of evidence as also the

probative value of the materials brought on record, contrary to the

tests laid down by this Court in Soma Chakravarty v. State

Through CBI [(2007) 5 SCC 403] as the tests for framing of charge

are different from the tests for recording a judgment of acquittal

against an accused insofar as whereas in the former, strong

suspicion would be sufficient, in the latter proof beyond any

reasonable doubt is necessary.

23

(iii)The prosecution agency being a special agency constituted under

the Madhya Pradesh Special Police Establishment Act, which

functions under the jurisdiction of the Lokayukata, only because all

materials have been made part of the chargesheet, the same could

not have been relied upon by the High Court as the only materials

upon which the prosecution would rely upon for proving its case

would be the terms of the contract, the note sheets, the letters dated

4.08.1983, 11.08.1983, 16.08.1983, 17.08.1983, 10.07.1984,

14.11.1984 and 2.03.1988, in terms whereof the contractors were

categorically informed that they would not be entitled to any extra

amount towards additional lead or otherwise.

(iv)The World Bank having opined that stones from alternative

sources may be obtained within the budgeted amount, the extra

amount could not have been sanctioned by the respondents.

(v)By reason of the acts of the respondents, the State has suffered a

loss to the extent of Rs. 1.02 crores and in that view of the matter,

the High Court should not have passed the impugned order.

(vi)As none of the accused is a public servant, the question of

obtaining sanction in terms of Section 19 of the Act did not arise.

24

(vii)Criminal misconduct relating to corrupt practices under Section

13(1)(d)(ii-iii) of the Act cannot be mingled with the normal

activity and duties of the public servant at any time, and, thus, no

order of sanction was required to be obtained even under Section

197 of the Code of Criminal Procedure, 1973.

(viii)The Indian Institute of Technology having tested the rocks

excavated from Therma Pahar Quarry and having opined that they

can safely be used for rubble masonry as well as for coarse and

fine aggregate, any opinion rendered contrary thereto or

inconsistent therewith should have been ignored.

35. Mr. U.U. Lalit and Mr. Vivek Tankha, learned senior counsel

appearing on behalf of the respondents, on the other hand, urged :

(i)The court at the stage of framing of charge and consequently the

High Court in exercise of its jurisdiction under Sections 397 and

401 of the Code of Criminal Procedure were entitled to consider

the entire materials on record for the purpose of arriving at a

finding as to whether the contents thereof, even if taken to be

25

correct in their entirety, constituted a prima facie case against the

accused or not.

(ii)It would not be correct to contend that although all the documents

collected during investigation form part of the final report

submitted by the Special Police Establishment in terms of Sub-

section (5) of Section 173 of the Code of Criminal Procedure, for

the purpose of framing of charge or otherwise the prosecution can

rely only on a few of them so as to make a distinction between the

documents which are in favour of the prosecution and those which

are in favour of the accused.

(iii)The materials brought on record clearly show that the concerned

authorities found it necessary to explore the possibility of

procuring stones of requisite quality from other sources as they had

proceeded on a wrong premise that stone of requisite quality to the

extent of 8 lakh cubic meters would be available in the quarry in

question.

(iv)Although the contract could be considered to show that no claim

for any material collected elsewhere, without obtaining the prior

approval of the Engineer Incharge, as was contended by the

prosecution, was admissible, on a close reading of the terms of the

26

contract it would appear that a contingency of this nature, viz., that

the parties entered into a contract on a mistaken fact was not

contemplated as the contractors cannot be asked to take upon

themselves the financial burden in respect of matter for which they

were not responsible.

(v)A decision having been taken by the highest authority not only

upon taking into consideration the opinion of all concerned, viz.,

from Executive Engineer to the Minister concerned but also in

view of the opinion of the Government of India and on the basis of

two reports of the Committee, viz., reports by respondent No. 2

D.V.S.R. Sarma Committee and respondent No. 3 P.V.

Srinivasaiyah Committee, no interference with the impugned

judgment is warranted.

(vi)The documents relied upon by the prosecution, even if given face

value and taken to be correct in their entirety, do not disclose

commission of any offence under the Prevention of Corruption Act

as no allegation had been made as regards misuse or abuse of

office.

(vii)The State having acted within its jurisdiction in taking a decision

in regard to making of extra payment by way of novation of the

27

original contract, no exception thereto can be taken as the situation

was unforeseen. Even the arbitral tribunal having passed an award

in favour of the contractor which is in consonance with a decision

of this Court in K.N. Sathyapalan (Dead) by LRs. v. State of

Kerala & Anr. [(2006) 12 SCALE 654], the respondents cannot be

said to have committed any offence.

(viii)In any view of the matter, no evidence has been brought on record

to show that any conspiracy was entered into by the respondents

inter se.

(ix)Assuming that the respondents have arrived at a wrong conclusion,

the same would only constitute an error of judgment and not a

criminal misconduct.

(x)The malafide attitude on the part of the State would be evident

from the fact that the respondents herein who were members of the

Committee have also been roped in although they had made fair,

proper and impartial recommendations which could have been

accepted or rejected. Even the respondent No. 1 in his note dated

4.11.1991 did not issue any direction to make payment but merely

asked the respondent No. 2 to have a re-look at the entire matter as

prior to the purported opinion of Mr. Billore, as contained in his

28

note dated 1.05.1991 he had opined otherwise, viz., not in the tune

of the recommendations made by the Quality Control Department,

i.e., in favour of the contractors.

(xi)There is nothing on record to show that the respondent Nos. 1 to 7

herein have done any act which was beyond their official duty and

hence, the impugned judgment is unassailable.

36. The question raised before us is required to be determined on the

backdrop of factual matrix involved herein. We have taken into

consideration in details the background materials only with a view to

consider as to whether the High Court was right in opining that no case for

framing of charges against the respondents was made out.

The fact that the State entered into contracts with the respondent Nos.

8, 9 and 10 is not in dispute. The basic terms of the contract, which we have

taken note of, are also not in dispute. What is in dispute is the interpretation

and application thereof.

37. The contract contained an arbitration clause. The respondents herein

invoked the said arbitration agreement, as noticed hereinbefore, as far back

29

in the year 1987. Indisputably, an award had been made in their favour on

the basis of a settlement arrived at by and between the parties. Such a

settlement was arrived at on the basis of the stand taken by the authorities of

the State of Madhya Pradesh upon entering into detailed deliberations.

38. The learned counsel for the parties took us through the entire

agreement to raise rival contentions as to whether despite the apparent

rigours contained therein, the contractors could have been paid any

additional amount towards extra lead.

39. We think a construction of the terms of contract in the light of the

factual matrix of the matter to which we have adverted to heretobefore, as

has been argued by the respondents, is possible. It is, however, not

necessary for us to delve deep into the matter inasmuch as we are concerned

only with the question as to whether the materials brought on record form

sufficient basis for framing of charges under Section 13(1)(d)(ii-iii) of the

Act read with Section 13(2) thereof read with Section 120B of the Indian

Penal Code or not.

30

40. At the outset, however, we must place on record that construction of

the dam over river Hasdeo Bango became necessary for the purpose of

supply of water to the National Thermal Power Corporation. It was a World

Bank project. The project was required to be completed within a time frame.

Stones required to be used for the construction of the dam, as of necessity,

were required to be of sufficient strength. The opinion of the Indian Institute

of Technology, referred to by Mr. Tulsi, is not on record. Correspondences

as also the opinion of the Central Water Commission, Government of India,

however, point out that stones of requisite strength were not available at

Therma Pahar Quarry. The quantum of stone required was eight lakh cubic

meters and only one lakh cubic metres was available thereat. The balance

seven lakh cubic meters of stone was, thus, required to be obtained from the

quarries situated at villages villages Katghora, Hunkra and Maheshpur.

41. Stone is a minor mineral within the meaning of the provisions of the

Mines and Minerals (Regulation and Development) Act, 1957 and the Minor

Mineral Concession Rules framed by the State. Lease and/ or licence for

extraction thereof is to be granted by the Collector. Although the Mines

Department of the State intended to grant ‘Quarry lease’ in favour of others

31

having regard to the requirements of the State, the said quarries were

reserved, subject to certain conditions.

42.The respondent Nos. 8 to 10, in view of the provisions of the Mines

and Mineral (Regulation and Development) Act, 1957 and the Madhya

Pradesh Minor Mineral Concession Rules could not have on their own

undertaken mining operation for the purpose of extracting the said minor

mineral. They could have done so only on a licence granted in their favour

by the Collector/State. However, as the hillocks of the villages in question

were reserved for departmental use, only by reason thereof the contractors

could carry on mining operation thereat and not otherwise. It was, therefore,

a conscious decision on the part of the competent authorities of the State.

43. The contract itself suggests that there was a possibility of dispute in

regard to allocation of the parts of the quarries. A dispute resolution

mechanism by creating a forum viz. the Office of the Superintending

Engineer was created.

44. The intra-departmental and inter-departmental correspondences and

notesheets to which we have adverted to heretobefore clearly go to show that

32

the authorities incharge of construction of the dam were aware of the

difficulties which were being faced by the contractors. Their apprehension

was that in the event the contractors were not permitted to mine stones from

Katghora Quarry and other Quarries, they may leave the job as a result

whereof the entire project might come to a stand-still.

45. The representations made by the contractors for the aforementioned

purpose, even if to be ignored, the intra-departmental and inter-departmental

correspondences cannot be. They clearly point out a clear picture as regards

necessity for explaining the possibilities of extracting stones from some

other mines for being used in the construction of dam.

46. We would proceed on the basis that two divergent opinions on the

construction of the contract in the light of the stand taken by the World Bank

as also the earlier decision taken by the State was possible. That, however,

would not mean that a fresh decision could not have been taken keeping in

view the exigencies of the situation. A decision to that effect was not taken

only by one officer or one authority. Each one of the authorities was ad

idem in their view in the decision making process. Even the Financial

Adviser who was an independent person and who had nothing to do with the

33

implementation of the project made recommendations in favour of the

contractors stating that if not in law but in equity they were entitled to the

additional amount.

47. From the materials available on record, it is crystal clear that the

decision taken was a collective one. The decision was required to be taken

in the exigency of the situation. It may be an error of judgment but then no

material has been brought on record to show that they did so for causing any

wrongful gain to themselves or to a third party or for causing wrongful loss

to the State

48. Section 13 of the Act provides for criminal misconduct by a public

servant. Such an offence of criminal misconduct by a public servant can be

said to have been committed if in terms of Section 13(1)(d)(ii-iii) a public

servant abuses its position and obtains for himself or for any other person

any valuable thing or pecuniary advantage; or while holding office as a

public servant, obtains for any person any valuable thing or pecuniary

advantage without any public interest. Sub-section (2) of Section 13

provides that any public servant who commits criminal misconduct shall be

34

punishable with imprisonment for a term which shall be not less than one

year but which may extend to seven years and shall also be liable to fine.

49. Criminal conspiracy has been defined in Section 120A of the Indian

Penal Code, 1860 to mean:

“When two or more persons agree to do, or cause

to be done,--

(1) an illegal act, or

(2) an act which is not illegal by illegal means,

such an agreement is designated a criminal

conspiracy:

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal

conspiracy unless some act besides the agreement

is done by one or more parties to such agreement

in pursuance thereof.

Explanation.--It is immaterial whether the illegal

act is the ultimate object of such agreement, or is

merely incidental to that object.”

Section 120B of the Indian Penal Code provides for punishment for

criminal conspiracy.

35

50. Criminal conspiracy is an independent offence. It is punishable

separately. Prosecution, therefore, for the purpose of bringing the charge of

criminal conspiracy read with the aforementioned provisions of the

Prevention of Corruption Act was required to establish the offence by

applying the same legal principles which are otherwise applicable for the

purpose of bringing a criminal misconduct on the part of an accused.

51. A criminal conspiracy must be put to action inasmuch as so long a

crime is generated in the mind of an accused, it does not become punishable.

What is necessary is not thoughts, which may even be criminal in character,

often involuntary, but offence would be said to have been committed

thereunder only when that take concrete shape of an agreement to do or

cause to be done an illegal act or an act which although not illegal by illegal

means and then if nothing further is done the agreement would give rise to a

criminal conspiracy.

Its ingredients are

(i)an agreement between two or more persons;

36

(ii)an agreement must relate to doing or causing to be done either (a)

an illegal act; (b) an act which is not illegal in itself but is done by

illegal means.

What is, therefore, necessary is to show meeting of minds of two or

more persons for doing or causing to be done an illegal act or an act by

illegal means.

52. While saying so, we are not oblivious of the fact that often conspiracy

is hatched in secrecy and for proving the said offence substantial direct

evidence may not be possible to be obtained. An offence of criminal

conspiracy can also be proved by circumstantial evidence.

In Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3)

SCC 609 at 731], this Court has quoted the following passage from Russell

on Crimes (12

th

Edn. Vol 1):

“The gist of the offence of conspiracy then lies, not

in doing the act, or effecting the purpose for which

the conspiracy is formed, nor in attempting to do

them, nor in inciting others to do them, but in the

forming of the scheme or agreement between the

parties. Agreement is essential. Mere knowledge,

37

or even discussion, of the plan is not, per se

enough”

In State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru [(2005) 11

SCC 600], this Court stated the law, thus:

“101. One more principle which deserves notice is

that the cumulative effect of the proved

circumstances should be taken into account in

determining the guilt of the accused rather than

adopting an isolated approach to each of the

circumstances. Of course, each one of the

circumstances should be proved beyond reasonable

doubt. Lastly, in regard to the appreciation of

evidence relating to the conspiracy, the Court must

take care to see that the acts or conduct of the

parties must be conscious and clear enough to infer

their concurrence as to the common design and its

execution.”

We may also notice that in Ram Narayan Popli v. CBI [(2003) 3 SCC

641], it was held:

“…Law making conspiracy a crime is designed to

curb immoderate power to do mischief which is

gained by a combination of the means. The

encouragement and support which co-conspirators

give to one another rendering enterprises possible

which, if left to individual effort, would have been

impossible, furnish the ground for visiting

38

conspirators and abettors with condign

punishment…”

In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra [(2008) 6

SCALE 469], this Court opined:

“23. Thus, it is manifest that the meeting of minds

of two or more persons for doing an illegal act or

an act by illegal means is sine qua non of the

criminal conspiracy but it may not be possible to

prove the agreement between them by direct proof.

Nevertheless, existence of the conspiracy and its

objective can be inferred from the surrounding

circumstances and the conduct of the accused. But

the incriminating circumstances must form a chain

of events from which a conclusion about the guilt

of the accused could be drawn. It is well settled

that an offence of conspiracy is a substantive

offence and renders the mere agreement to commit

an offence punishable even if an offence does not

take place pursuant to the illegal agreement.”

Ex facie, there is no material to show that a conspiracy had been

hatched by the respondents.

53. Mr. Tulsi would suggest that the very fact that the respondent No. 1

being a Minister kept the file with him for a period of six months so as to see

that the then Secretary Mr. M.S. Billore retires so as to enable him to obtain

39

opinion of another officer would prima facie establish that he intended to

cause pecuniary gain to the respondent Nos. 8, 9 and 10.

We have noticed hereinbefore that the Minister in his note dated

4.11.1991 did not make any recommendation. He merely lamented the

manner in which the former Secretary Mr. M.S. Billore acted as prior

thereto, the said authority himself for all intent and purport had accepted the

recommendations of the authorities incharge of construction of the dam

including the Chief Engineer. He constituted a committee. He obtained the

opinion of the Financial Adviser. If upon consideration of the entire

materials on record, independent opinion had been rendered and

recommendations were made, it is difficult to comprehend as to how that by

itself would constitute a criminal misconduct or leads to the conclusion of

hatching any criminal conspiracy. Recommendations made by the

Committee or the opinion rendered by an independent officer like Financial

Adviser need not be acted upon. It was for the State to take a decision.

Such a decision was required to be taken on the basis of the materials

available.

40

In Inspector Prem Chand v. Govt. of N.C.T. of Delhi & Ors. [2007

AIR SCW 2532], this Court observed:

“In State of Punjab and Ors. vs. Ram Singh Ex.

Constable [1992 (4) SCC 54], it was stated:

“Misconduct has been defined in Black's

Law Dictionary, Sixth Edition at page 999, thus:

'A transgression of some established and

definite rule of action, a forbidden act, a

dereliction from duty, unlawful behaviour, wilful

in character, improper or wrong behaviour, its

synonyms are misdemeanor, misdeed,

misbehavior, delinquency, impropriety,

mismanagement, offense, but not negligence or

carelessness.'

Misconduct in office has been defined as:

“Any unlawful behaviour by a public officer

in relation to the duties of his office, willful in

character. Term embraces acts which the officer

holder had no right to perform, acts performed

improperly, and failure to act in the face of an

affirmative duty to act.”

In P. Ramanatha Aiyar's Law Lexicon, 3

rd

edition, at page 3027, the term 'misconduct' has

been defined as under:

“The term ‘misconduct’ implies, a wrongful

intention, and not a mere error of judgment.

Misconduct is not necessarily the same thing

as conduct involving moral turpitude.

41

The word ‘misconduct’ is a relative term,

and has to be construed with reference to the

subject matter and the context wherein the term

occurs, having regard to the scope of the Act or

statute which is being construed. Misconduct

literally means wrong conduct or improper

conduct.”

[See also Bharat Petroleum Corpn. Ltd. vs. T.K.

Raju, [2006 (3) SCC 143].”

54. Even under the Act, an offence cannot be said to have been committed

only because the public servant has obtained either for himself or for any

other person any pecuniary advantage. He must do so by abusing his

position as public servant or holding office as a public servant. In the latter

category of cases, absence of any public interest is a sine qua non. The

materials brought on record do not suggest in any manner whatsoever that

the respondent Nos. 1 to 7 either had abused their position or had obtained

pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without

any public interest.

55. Whether, on the one hand, the dam should be constructed within a

time frame fixed by the World Bank is a public interest or whether sticking

to the terms of the contract which may lead to abandonment of work by the

contractors would be a public interest is a matter over which a decision was

42

required to be taken, particularly when the authorities proceeded on the basis

that they had made advertisements and called for the tender on a wrong

premise, viz., the stones available in the quarry in question for supply of

requisite quality of stone was not in requisite quantity.

56. It is also interesting to notice that the prosecution had proceeded

against the officials in a pick and choose manner. We may notice the

following statements made in the counter-affidavit which had not been

denied or disputed to show that not only those accused who were in office

for a very short time but also those who had retired long back before the file

was moved for the purpose of obtaining clearance for payment of additional

amount from the government, viz., M.N. Nadkarni who worked as Chief

Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer

who worked till 19.06.1989 have been made accused but, on the other hand,

those who were one way or the other connected with the decision, viz., Shri

J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We

fail to understand on what basis such a discrimination was made.

57.In Soma Chakravarty (supra), whereupon strong reliance has been

placed by Mr. Tulsi, this Court opined:

43

“23. In a case of this nature, the learned Special

Judge also should have considered the question

having regard to the “doctrine of parity” in mind.

An accused similarly situated has not been

proceeded against only because, the departmental

proceedings ended in his favour. Whether an

accused before him although stands on a similar

footing despite he having not been departmentally

proceeded against or had not been completely

exonerated also required to be considered. If

exoneration in a departmental proceeding is the

basis for not framing a charge against an accused

person who is said to be similarly situated, the

question which requires a further consideration

was as to whether the applicant before it was

similarly situated or not and/or whether the

exonerated officer in the departmental proceeding

also faced same charges including the charge of

being a party to the larger conspiracy.”

58. There cannot be any doubt whatsoever that the tests for the purpose of

framing of charge and the one for recording a judgment of conviction are

different.

A distinction must be borne in mind that whereas at the time of

framing of the charge, the court may take into consideration the fact as to

whether the accused might have committed the offence or not; at the time of

44

recording a judgment of conviction, the prosecution is required to prove

beyond reasonable doubt that the accused has committed the offence.

59.In this case, the probative value of the materials on record has not

been gone into. The materials brought on record have been accepted as true

at this stage. It is true that at this stage even a defence of an accused cannot

be considered. But, we are unable to persuade ourselves to agree with the

submission of Mr. Tulsi that where the entire materials collected during

investigation have been placed before the court as part of the chargesheet,

the court at the time of framing of the charge could only look to those

materials whereupon the prosecution intended to rely upon and ignore the

others which are in favour of the accused. The question as to whether the

court should proceed on the basis as to whether the materials brought on

record even if given face value and taken to be correct in their entirety

disclose commission of an offence or not must be determined having regard

to the entirety of materials brought on record by the prosecution and not on a

part of it. If such a construction is made, Sub-section (5) of Section 173 of

the Code of Criminal Procedure shall become meaningless.

45

The prosecution, having regard to the right of an accused to have a

fair investigation, fair inquiry and fair trial as adumbrated under Article 21

of the Constitution of India, cannot at any stage be deprived of taking

advantage of the materials which the prosecution itself has placed on record.

If upon perusal of the entire materials on record, the court arrives at an

opinion that two views are possible, charges can be framed, but if only one

and one view is possible to be taken, the court shall not put the accused to

harassment by asking him to face a trial.

{See State of Maharashtra and Others v. Som Nath Thapa and Others

[(1996) 4 SCC 659]}.

60. This leaves us with the question as to whether an order of sanction

was required to be obtained. There exists a distinction between a sanction

for prosecution under Section 19 of the Act and Section 197 of the Code of

Criminal Procedure. Whereas in terms of Section 19, it would not be

necessary to obtain sanction in respect of those who had ceased to be a

public servant, Section 197 of the Code of Criminal Procedure requires

sanction both for those who were or are public servants.

46

61. Strong reliance has been placed by Mr. Tulsi on a judgment of this

Court in Centre for Public Interest Litigation and Another v. Union of India

and Another [(2005) 8 SCC 202]. In that case, it was held:

“9. The protection given under Section 197 is to

protect responsible public servants against the

institution of possibly vexatious criminal

proceedings for offences alleged to have been

committed by them while they are acting or

purporting to act as public servants. The policy of

the legislature is to afford adequate protection to

public servants to ensure that they are not

prosecuted for anything done by them in the

discharge of their official duties without

reasonable cause, and if sanction is granted, to

confer on the Government, if they choose to

exercise it, complete control of the prosecution.

This protection has certain limits and is available

only when the alleged act done by the public

servant is reasonably connected with the discharge

of his official duty and is not merely a cloak for

doing the objectionable act. If in doing his official

duty, he acted in excess of his duty, but there is a

reasonable connection between the act and the

performance of the official duty, the excess will

not be a sufficient ground to deprive the public

servant from the protection. The question is not as

to the nature of the offence such as whether the

alleged offence contained an element necessarily

dependent upon the offender being a public

servant, but whether it was committed by a public

servant acting or purporting to act as such in the

discharge of his official capacity. Before Section

197 can be invoked, it must be shown that the

official concerned was accused of an offence

alleged to have been committed by him while

47

acting or purporting to act in the discharge of his

official duties. It is not the duty which requires

examination so much as the act, because the

official act can be performed both in the discharge

of the official duty as well as in dereliction of it.

The act must fall within the scope and range of the

official duties of the public servant concerned. It is

the quality of the act which is important and the

protection of this section is available if the act falls

within the scope and range of his official duty.

There cannot be any universal rule to determine

whether there is a reasonable connection between

the act done and the official duty, nor is it possible

to lay down any such rule. One safe and sure test

in this regard would be to consider if the omission

or neglect on the part of the public servant to

commit the act complained of could have made

him answerable for a charge of dereliction of his

official duty. If the answer to this question is in the

affirmative, it may be said that such act was

committed by the public servant while acting in the

discharge of his official duty and there was every

connection with the act complained of and the

official duty of the public servant. This aspect

makes it clear that the concept of Section 197 does

not get immediately attracted on institution of the

complaint case.

10. Use of the expression “official duty” implies

that the act or omission must have been done by

the public servant in the course of his service and

that it should have been in discharge of his duty.

The section does not extend its protective cover to

every act or omission done by a public servant in

service but restricts its scope of operation to only

those acts or omissions which are done by a public

servant in discharge of official duty.

48

11. If on facts, therefore, it is prima facie found

that the act or omission for which the accused was

charged had reasonable connection with discharge

of his duty then it must be held to be official to

which applicability of Section 197 of the Code

cannot be disputed.”

62. Were the respondent Nos. 1 to 7 required to act in the matter as a part

of official duty?

Indisputably, they were required to do so. Be he an Executive

Engineer, Superintending Engineer, Chief Engineer, Engineer-in-Chief,

Secretary or Deputy Secretary, matters were placed before them by their

subordinate officers. They were required to take action thereupon. They

were required to apply their own mind. A decision on their part was

required to be taken so as to enable them to oversee supervision and

completion of a government project. The Minister having regard to the

provisions of the Rules of Executive Business was required to take a

decision for and on behalf of the State. Some of the respondents, as noticed

hereinbefore, were required to render their individual opinion required by

their superiors. They were members of the Committee constituted by the

authorities, viz., the Minister or the Secretary. At that stage, it was not

possible for them to refuse to be a Member of the Committee and/ or not to

49

render any opinion at all when they were asked to perform their duties.

They were required to do the same and, thus, there cannot be any doubt

whatsoever that each one of the respondent Nos. 1 to 7 was performing his

official duties.

63. For the purpose of attracting the provisions of Section 197 of the Code

of Criminal Procedure, it is not necessary that they must act in their official

capacity but even where a public servant purports to act in their official

capacity, the same would attract the provisions of Section 197 of the Code of

Criminal Procedure. It was so held by this Court in Sankaran Moitra v.

Sadhna Das and Another [(2006) 4 SCC 584].

The question came up for consideration before this Court in Matajog

Dobey v. H.C. Bhari [AIR 1956 SC 44 : 1955 (2) SCR 925] wherein it was

held:

“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 duty”. But the

difference is only in language and not in substance.

The offence alleged to have been committed must

50

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. In Hori Barn Singh

v. Crown Sulaiman, J. observes:

“The section cannot be confined to only such acts

as are done by a public servant directly in

pursuance of his public office, though in excess of

the duty or under a mistaken belief as to the

existence of such duty. Nor is it necessary to go to

the length of saying that the act constituting the

offence should be so inseparably connected with

the official duty as to form part and parcel of the

same transaction.”

The interpretation that found favour with

Varadachariar, J. in the same case is stated by him

in these terms at p. 187: “There must be something

in the nature of the act complained of that attaches

it to the official character of the person doing it.”

In affirming this view, the Judicial Committee of

the Privy Council observe in Gill case: “A public

servant can only be said to act or purport to act in

the discharge of his official duty, if his act is such

as to lie within the scope of his official duty …

The test may well be whether the public servant, if

challenged, can reasonably claim that, what he

51

does, he does in virtue of his office.” Hori Ram

case is referred to with approval in the later case of

Lieutenant Hector Thomas Huntley v. King-

Emperor but the test laid down that it must be

established that the act complained of was an

official act appears to us unduly to narrow down

the scope of the protection afforded by Section 197

of the Criminal Procedure Code as defined and

understood in the earlier case. The decision in

Meads v. King does not carry us any further; it

adopts the reasoning in Gill’s case.”

The said principle has been reiterated by this Court in B. Saha v. M.S.

Kochar [(1979) 4 SCC 177] in the following terms:

“17. The words “any offence alleged to have been

committed by him while acting or purporting to act

in the discharge of his official duty” employed in

Section 197(1) of the Code, are capable of a

narrow as well as a wide interpretation. If these

words are construed too narrowly, the section will

be rendered altogether sterile, for, “it is no part of

an official duty to commit an offence, and never

can be”. In the wider sense, these words will take

under their umbrella every act constituting an

offence, committed in the course of the same

transaction in which the official duty is performed

or purports to be performed. The right approach to

the import of these words lies between these two

extremes. While on the one hand, it is not every

offence committed by a public servant while

engaged in the performance of his official duty,

which is entitled to the protection of Section

197(1), an act constituting an offence, directly and

reasonably connected with his official duty will

52

require sanction for prosecution under the said

provision. As pointed out by Ramaswami, J., in

Baijnath v. State of M.P., “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 Section 197 of the Criminal

Procedure Code will be attracted”.

18. In sum, the sine qua non for the applicability of

this section is that the offence charged, be it one of

commission or omission, must be one which has

been committed by the public servant either in his

official capacity or under colour of the office held

by him.”

[See also R. Balakrishna Pillai v. State of Kerala and Another [(1996)

1 SCC 478]

In Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC

557], this Court held:

“12. It has been widened further by extending

protection to even those acts or omissions which

are done in purported exercise of official duty; that

is under the colour of office. Official duty,

therefore, implies that the act or omission must

have been done by the public servant in the course

of his service and such act or omission must have

been performed as part of duty which further must

have been official in nature. The section has, thus,

to be construed strictly, while determining its

applicability to any act or omission in the course of

service. Its operation has to be limited to those

duties which are discharged in the course of duty.

But once any act or omission has been found to

53

have been committed by a public servant in the

discharge of his duty then it must be given liberal

and wide construction so far its official nature is

concerned. For instance a public servant is not

entitled to indulge in criminal activities. To that

extent the section has to be construed narrowly and

in a restricted manner. But once it is established

that an act or omission was done by the public

servant while discharging his duty then the scope

of its being official should be construed so as to

advance the objective of the section in favour of

the public servant. Otherwise the entire purpose of

affording protection to a public servant without

sanction shall stand frustrated. For instance a

police officer in the discharge of duty may have to

use force which may be an offence for the

prosecution of which the sanction may be

necessary. But if the same officer commits an act

in the course of service but not in the discharge of

his duty and without any justification therefor then

the bar under Section 197 of the Code is not

attracted…”

64. Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v.

State of Punjab and Others [(2007) 1 SCC 1] wherein this Court held:

“38. The question relating to the need of sanction

under Section 197 of the Code is not necessarily to

be considered as soon as the complaint is lodged

and on the allegations contained therein. This

question may arise at any stage of the proceeding.

The question whether sanction is necessary or not

may have to be determined from stage to stage.”

54

In that case, the appellant therein was charged for commission of an

offence of cheating under Section 420 and Sections 467, 468, 471 and 120B

of the Indian Penal Code.

In the factual matrix involved therein, it was held:

“29. The effect of sub-sections (3) and (4) of

Section 19 of the Act are of considerable

significance. In sub-section (3) the stress is on

“failure of justice” and that too “in the opinion of

the court”. In sub-section (4), the stress is on

raising the plea at the appropriate time.

Significantly, the “failure of justice” is relatable to

error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in

sanction is (sic not) considered fatal unless it has

resulted in failure of justice or has been occasioned

thereby. Section 19(1) is a matter of procedure and

does not go to the root of jurisdiction as observed

in para 95 of Narasimha Rao case. Sub-section

(3)(c) of Section 19 reduces the rigour of

prohibition. In Section 6(2) of the old Act [Section

19(2) of the Act] question relates to doubt about

authority to grant sanction and not whether

sanction is necessary.”

65. In State of Karantaka v. Ameerjan [(2007) 11 SCC 273], it was held

that an order of sanction is required to be passed on due application of mind.

55

66. Thus, in this case, sanction for prosecution in terms of Section 197 of

the Code of Criminal Procedure was required to be obtained.

67. For the reasons aforementioned, there is no merit in this appeal which

is dismissed accordingly.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Cyriac Joseph]

New Delhi;

August 04, 2009

56