2025 INSC 267 Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 1 of 28

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025

(Arising out of Special Leave Petition (Crl.) No.6898 of 2023)

SUNEETI TOTEJA APPELLANT

VERSUS

STATE OF U.P. & ANOTHER RESPONDENT S

J U D G M E N T

NAGARATHNA, J.

Leave granted.

2. The present Criminal Appeal arises out of the order dated

16.11.2022 passed by the High Court of Judicature at Allahabad,

Lucknow Bench, in Application u/s 482 No.8057/2022, wherein

the High Court has dismissed the petition filed by the appellant

herein for quashing of the summoning order dated 12.07.2022

and the chargesheet No.01/2022 dated 02.07.2022.

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 2 of 28

3. The appellant herein is stated to be an employee of the

Bureau of Indian Standards (BIS). Briefly stated, the facts giving

rise to the present case are that Dr. Manisha Narayan, the

respondent No.2 herein (hereinafter referred to as “complainant”)

had filed FIR No.610/2018 dated 30.10.2018 at the Aliganj Police

Station, District Lucknow. It was stated in the said FIR that

during her tenure with the Food Safety and Standards Authority

of India (hereinafter “FSSAI” or “authority”) in New Delhi in the

capacity of an Associate Director, she was sexually harassed on

multiple occasions by Dr. S.S. Ghonkrorkta, the Enforcement

Director therein. Being aggrieved, she disclosed the same to her

mother who then filed a complaint before the FSSAI for action to

be taken under the provisions of the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act,

2013 (hereinafter “POSH Act”). An Internal Complaints

Committee (ICC) was constituted to investigate the allegations of

the complainant and the enquiry was referred to the ICC on

04.12.2014. The enquiry report of the ICC was submitted to the

Chief Executive Officer of FSSAI on 22.06.2015, which found Dr.

S.S. Ghonkrorkta to be guilty of the offences charged against him

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and thereby it was recommended to the Authority to register an

FIR against him for offences under Sections 354, 509, 192, 197,

204, 218, 202 and 120B of Indian Penal Code, 1860 (hereinafter

“IPC”), apart from taking appropriate disciplinary action against

the other officers involved in the misconduct.

4. However, as per the complainant, since the Authority did

not take any action against the persons involved in the offence

and misconduct, she was compelled to file FIR No.610 of 2018

dated 30.10.2018, in respect of offences punishable under

Sections 354, 509, 120B, 192, 197, 204, 218, 202, 468, 471 and

506 of IPC, against Dr. S.S. Ghonkrorkta and Mr. Sunil Kumar

Bhadoria. It is pertinent to note that the appellant herein was

neither part of the ICC proceedings, nor named in the FIR. Her

name surfaced during the statement given by the complainant

under Section 164 of the Code of Criminal Procedure (hereinafter

“CrPC”) on 14.10.2020.

5. Meanwhile, Dr. S.S. Ghonkrorkta challenged the

investigation report of the ICC before the Central Administrative

Tribunal, New Delhi (hereinafter “the Tribunal” for short) by filing

O.A. No.1505 of 2016, and vide order dated 16.09.2016, the

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Tribunal directed the respondents therein not to act on the report

of the ICC. In the said case before the Tribunal, the complainant

was arrayed as respondent No. 6 and the FSSAI was represented

by its officials who were arrayed as respondent Nos.3 and 7. The

appellant was posted on deputation during the period from

27.04.2016 to 25.07.2019 at the FSSAI, New Delhi. On

12.05.2016, the appellant herein was appointed as the Presiding

Officer (PO) of the ICC. In her capacity as the PO of the ICC, she

filed a short counter affidavit dated 16.01.2017 on behalf of

respondent Nos.3, 6 and 7 therein before the Tribunal. In the

said affidavit, the appellant largely defended the findings of the

enquiry report submitted by the ICC. However, the complainant

later asserted that she had not authorized the appellant to file

the counter affidavit on her behalf and that the said counter

affidavit was filed without her knowledge and cons ent. In

response, the FSSAI, represented by the respondent Nos.3 and 7

therein, filed a Misc. Application No.1658 of 2017 before the

Tribunal, seeking the amendment of the counter affidavit filed by

them in O.A. No.1505 of 2016, since the complainant was willing

to represent herself independently in the case. Subsequently, the

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appellant was repatriated to her parent Department BIS on

25.07.2019.

6. In the interregnum, the FIR had already been filed by the

complainant on 30.10.2018, though it did not name the

appellant as an accused person. On 16.06.2020, the statement

of the complainant under Section 161 of the Code of Criminal

Procedure, 1973, (for short “CrPC”) was recorded but the

appellant was not named there in as well. Thereafter, on

14.10.2020, the statement of the complainant was recorded

under Section 164 of the CrPC and it is here that the allegations

against the appellant were brought out. These allegations

primarily pertained to the counter affidavit filed by the appellant

herein before the Tribunal. It was alleged that the appellant was

representing the complainant before the Tribunal without her

knowledge and consent and that the appellant had wrongfully

submitted the affidavit before Tribunal to the effect that the

complainant had authorized the appellant to represent her in

those proceedings.

7. It was further alleged by the complainant that she was

transferred from Delhi to Chennai during the pendency of the

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proceedings before the Tribunal, and when she gave a

representation to cancel her transfer, the appellant threatened

her by saying that if she does not want to go to Chennai, then

she can take a study leave and quit the place, or else, she would

be harassed. The appellant was also allegedly involved in

threatening and pressurising the complainant to withdraw the

case.

8. In pursuance of these allegations, the chargesheet No.1

dated 02.07.2022 was filed in the matter and the appellant

herein was arrayed as accused No. 4 thereunder. The

chargesheet stated that the sanction for the prosecution of

accused No.4 and others was sought under Section 197 of the

CrPC, but since the sanction was not granted within the

stipulated time period, the sanction for prosecution was deemed

to have been received and therefore the chargesheet was filed

against the accused persons for the offences punishable under

Sections 509, 120B, 192, 354A, 506, 202, 218, 204 and 197 of

the IPC. The Special Chief Judicial Magistrate, Lucknow, vide

order dated 06.10.2022, took cognizance of the chargesheet and

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offences stated thereunder and issued summons against the

accused persons.

9. Being aggrieved, the appellant and two other co-accused

persons filed a petition under Section 482 of the CrPC before the

High Court, seeking quashing of the chargesheet No.1 dated

02.07.2022 and the summoning order dated 06.10.2022 passed

by the Special Chief Judicial Magistrate, Lucknow. However, by

the impugned order dated 16.11.2022 passed by the High Court

of Judicature at Allahabad, Lucknow Bench in Application u/s

482 No.8057/2022, the prayer of the appellant for the quashing

of the chargesheet and the summoning order was dismissed. The

High Court however reserved liberty to the appellant to approach

the Magistrate in accordance with law and directed the trial court

to release the appellant on bail.

10. It is this order of the High Court which has now been

assailed by the appellant before this Court through the present

Criminal Appeal.

11. We have heard learned senior counsel Ms. Rebecca John,

appearing for the appellant herein; learned counsel appearing for

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the respondent-State; and learned counsel, Mr. Prashant

Bhushan, appearing for complainant.

12. Learned senior counsel for the appellant has submitted that

the High Court was not correct in refusing to quash the

chargesheet and the summoning order with respect to the

appellant, having regard to the facts and circumstances of the

case. It was submitted that the appellant is a government servant

who had acted in the course of her official duties and therefore,

cognizance could not have been taken against the offences

alleged against her in the absence of a valid sanction for

prosecution granted by the concerned authority. That the

competent authority to grant sanction for prosecution of the

appellant herein is the BIS. However, the Investigating Officer

failed to send the letter seeking sanction directly to the BIS and

had sent it to FSSAI on 02.12.2021, as a result of which the letter

was received by the BIS only on 29.07.2022, which was way

beyond the stipulated period of four months for granting

sanction.

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 9 of 28

13. The learned senior counsel drew our attention to the letter

Ref. No.HRD/7:062545 dated 22.09.2022 sent by BIS to the

Additional Chief Secretary, Department of Home, UP Police

Division/4, Lucknow. In the said letter, the BIS had prima facie

found the appellant to have not been involved in the aforesaid

crime, but the BIS sought the copy of the FIR and other relevant

documents to take an appropriate decision in the matter of grant

of sanction for prosecution with respect to the appellant. It is

further submitted that after perusal of the relevant FIR and

chargesheet, BIS had sent another letter dated 14.11.2022,

wherein BIS found that the appellant was in no way related to

the allegations made in the chargesheet and thus it was not a fit

case for grant of sanction for prosecution. Therefore, BIS had

categorically denied the sanction for prosecution of the appellant

in the said case vide its letter dated 14.11.2022.

14. Per contra, the learned counsel for the respondent-State

have filed their counter affidavit, wherein they have defended the

action of taking cognizance against the appellant and have

sought the dismissal of this criminal appeal. It was contended

that the Investigating Officer had sought the sanction for

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prosecution, but upon not receiving the sanction, the

Investigating Officer had sought a legal opinion and on the basis

of the same, the officer had proceeded to file the chargesheet

against the appellant. Reliance has been placed by the counsel

on the judgment of this Court in Vineet Narain vs. Union of

India, AIR 1998 SC 889 [“Vineet Narain”], to contend that the

time limit of three months for grant of sanction for prosecution

has to be strictly adhered to and therefore, in light of the fact that

no sanction was granted by the competent authority within the

stipulated time period, the State was correct in proceeding on the

basis of deemed sanction. Therefore, it is submitted that enough

material was available on record to proceed against the

appellant, and once the cognizance has been taken and the trial

has commenced, it is not open for the proceedings to be quashed

on the ground of refusal of sanction for prosecution.

15. Learned counsel, Sri Prashant Bhushan, has supported the

impugned order and has also sought the dismissal of the present

criminal appeal, since the trial court and the High Court have

already taken the argument of sanction for prosecution into

consideration. It was submitted that the appellant has concealed

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material facts before this Court, including the fact that the

appellant and the other co-accused have filed applications before

the trial court for seeking discharge in the matter. That the

appellant has annexed only the summoning order of the trial

court to give an impression that the trial court had mechanically

issued summons to the accused and not applied its mind, but in

fact the trial court had also filed a separate detailed order dated

12.07.2022 while issuing process in the matter. It was also

submitted that the appellant not only filed an affidavit before the

Tribunal without the knowledge and consent of the complainant,

but had also committed perjury by trying to protect the other

accused persons of the Authority. That there has been dereliction

of duty by the appellant insofar as the appellant in her capacity

as the presiding officer of the ICC was duty-bound to keep the

complainant informed about the proceedings in the case and to

proceed in furtherance of the findings of the ICC in its

investigation report.

16. With respect to the contention that the complainant did not

name the appellant in the FIR and the statement under Section

161 of the CrPC is concerned, learned counsel has submitted

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that the police had initially refused to file the FIR against the

appellant herein since her name was not mentioned in the ICC

report and later during the stage of recording of her statement

under Section 161 of the CrPC, the police forced the complainant

to restrict her statement to the accused mentioned in the FIR.

Thus, it was only later when statement was recorded by the

Magistrate under Section 164 of the CrPC that the complainant

felt it was safe to explain her stance with respect to the appellant

herein.

17. Learned counsel for the complainant has reiterated the

argument with respect to deemed sanction upon which the

prosecution against the appellant was proceeded with and has

submitted that the letter of BIS which expressly refused to grant

sanction was issued beyond the stipulated period for granting

sanction and therefore it does not amount to a denial of sanction

for prosecution. Learned counsel has placed reliance on the

judgment of this Court in Subramanian Swamy vs . Manmohan

Singh, (2012) 3 SCC 64 [“Subramanian Swamy”] , to contend

that if no decision is taken by the sanctioning authority, then at

the end of the extended time limit, sanction will be deemed to

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have been granted to the proposal for prosecution. It was further

submitted that the issue of sanction may be raised by the

appellant either at the stage of cognizance or at any subsequent

stage of the trial, so as to contend that since the cognizance has

now been taken in the matter, the plea of sanction for

prosecution may be taken by the appellant before the trial court

when they appear in compliance with the summons or at the

stage of discharge. Thus, there is no occasion to examine the

issue of sanction for prosecution during the exercise of the

powers under Section 482 of the CrPC.

18. We have considered the material on record and the

extensive submissions advanced at the Bar. The short issue for

consideration before this Court is, whether, in light of the facts

and circumstances of this case and the position of law apropos

to the sanction for prosecution, the High Court ought to have

exercised its powers under Section 482 of the CrPC to quash the

chargesheet and the summoning with respect to the appellant

herein.

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 14 of 28

19. The appellant herein is a permanent employee of BIS since

06.09.1999. She was holding the post of Scientist E/Director &

Head (FAD) in BIS. On 27.04.2016, she was relieved from BIS to

take up her assignment as the Director at FSSAI on deputation

basis. She was relieved on 25.07.2019 from the FSSAI and

thereafter, she reported at BIS. Therefore, the appellant was at

FSSAI from 27.04.2016 to 25.07.2019. During this tenure, the

appellant took over the position of Presiding Officer of ICC after

the erstwhile presiding officer was repatriated to BIS, Ministry of

Health on completion of her tenure in April 2016. The allegations

of sexual harassment levelled by complainant date back to the

year 2012. The enquiry under the provisions of the POSH Act

took place during the year 2014-15 and the final enquiry report

of the ICC was submitted on 22.06.2015 to the Chief Execution

Officer of the Authority. Therefore, it is clear that the appellant

was not in the picture or involved in the dispute till the

submission of the enquiry report of the ICC in June 2015.

20. The report of the ICC was assailed by the accused Dr. S.S.

Ghonkrokta before the Tribunal by filing of O.A. No.1505 of 2016

on 16.03.2016. The appellant joined FSSAI, Delhi on 27.04.2016,

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 15 of 28

after a month of filing of this Original Application before the

Tribunal. In the subsequent month, she was appointed as the

Presiding Officer of ICC. It is for the period thereafter, to which

the allegations of the complainant pertain to.

21. The complainant in the present case has alleged that the

appellant filed a counter affidavit before the Tribunal on her

behalf, without the consent or knowledge of the complainant. The

perusal of the said counter affidavit shows that the appellant had

detailed the events that unfolded in the Authority from the time

the sexual harassment complaint was filed by the complainant

and till the completion of the enquiry by the ICC. The counter

affidavit reproduces the conclusions and recommendations of

the ICC and has therefore sought dismissal of the Original

Application filed by Dr. S.S. Ghonkrokta. Thus, the said counter

affidavit does not reveal any aspersions made by the appellant or

the Authority against the complainant, or any averment to

defend the actions of the accused Dr. S.S. Ghonkrokta. The

counter affidavit has been filed by the appellant in her official

capacity as the Director, FSSAI and the Presiding Officer, ICC.

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22. Be that as it may. The appellant respected the desire of the

complainant to represent her case independently and therefore

filed M.A. No.1658 of 2017 before the Tribunal, seeking to amend

the counter affidavit filed earlier. Thus, there is no criminal

intent on the part of the appellant to cheat the complainant or

wrongfully represent her in the proceedings before the Tribunal.

Further, the question is whether, the actions of the appellant

were during the course of her official duties only requiring

sanction for prosecution.

23. Now coming to the contentious issue of sanction for

prosecution arising in the present case, the test to decide

whether sanction is necessary in a particular case is, whether,

the act is totally unconnected with the official duty or whether,

there is a reasonable connection with the official duty. In the

present case, the letter requesting sanction for prosecution was

sent to FSSAI, Delhi by the Additional Chief Secretary,

Department of Home (Police), Government of UP, but the same

was not sent to BIS, even though at that time, the appellant had

gone back to BIS from her deputation at FSSAI. The letter seeking

sanction for prosecution is said to have been received by BIS only

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 17 of 28

on 29.07.2022. By that time, the chargesheet had already been

filed and the summoning order was issued by the Magistrate.

Thereafter, BIS sought for further documents, including the FIR,

and upon furnishing of the FIR and the chargesheet, BIS denied

the sanction for prosecution of the appellant vide its letter dated

14.11.2022. This issue of sanction was decided by BIS within the

stipulated period of four months. The relevant paragraph of the

letter dated 14.11.2022 reads as under:

“2. To examine the matter, the related documents i.e. the

report of Internal Complaints Committee (ICC) and the

copy of FIR was sought from FSSAI vide BIS letter dated

25 Aug 2022 and 22 Sep 2022 respectively. On perusal

of the records received, the following facts are observed:

i. The alleged offence (based on the complaint

filed by Dr. Manisha Narayan against Dr. S.

S. Ghonkrokta) took place during the period

May 2012 to December 2012 and the ICC

submitted its report in June 2015.

ii. Smt. Suneeti Toteja Scientist-E was relieved

on 27 April 2016 (FN) from BIS to lake up her

assignment on deputation as Director in

FSSAl, long after the occurrence of the

alleged incident and submission of the

report by the ICC. She was relieved from

FSSAl on 25 July 2019 and reported back to

BIS on 26 July 2019.

iii. Dr S.S. Ghonkrokta had filed a case in CAT

(O.A. No. 1505 of 2016) for setting aside the

constitution of ICC. its proceedings and

findings. Smt. Suneeti Toteja had signed the

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counter affidavit (to dismiss the referred OA)

in this ease in her official capacity' as the

presiding officer of the ICC. alter the

erstwhile presiding officer Dr. Sandhya Kalra

was repatriated to the Ministry of Health on

completion of her tenure in April 2016.”

24. The question therefore is whether the sanction was

necessary in the present case for the prosecution of the

appellant, or whether the Magistrate was correct in taking

cognizance against the appellant without there being any

sanction.

25. For the sake of convenience, the provisions of Section 197

CrPC are reproduced hereinunder:

“197. Prosecution of Judges and public servants.—(1)

When any person who is or was a Judge or Magistrate

or a public servant not removable from his office save by

or with the sanction of the Government is accused of any

offence alleged to have been committed by him while

acting or purporting to act in the discharge of his official

duty, no Court shall take cognizance of such offence

except with the previous sanction save as otherwise

provided in the Lokpal and Lokayuktas Act, 2013—

(a) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of a State, of the State Government:

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Provided that where the alleged offence was

committed by a person referred to in clause (b) during

the period while a Proclamation issued under clause (1)

of article 356 of the Constitution was in force in a State,

clause (b) will apply as if for the expression “State

Government” occurring therein, the expression “Central

Government” were substituted.

Explanation.—For the removal of doubts it is

hereby declared that no sanction shall be required in

case of a public servant accused of any offence alleged

to have been committed under section 166A, section

166B, section 354, section 354A, section 354B, section

354C, section 354D, section 370, section 375, section

376A, section 376AB, section 376C, section 376D,

section 376DA, section 376DB or section 509 of the

Indian Penal Code (45 of 1860).

(2) No Court shall take cognizance of any offence

alleged to have been committed by any member of

the Armed Forces of the Union while acting or

purporting to act in the discharge of his official

duty, except with the previous sanction of the

Central Government.

(3) The State Government may, by notification, direct

that the provisions of sub-section (2) shall apply to

such class or category of the members of the Forces

charged with the maintenance of public order as

may be specified therein, wherever they may be

serving, and thereupon the provisions of that sub-

section will apply as if for the expression “Central

Government” occurring therein, the expression

“State Government” were substituted.

(3A) Notwithstanding anything contained in sub -

section (3), no court shall take cognizance of any

offence, alleged to have been committed by any

member of the Forces charged with the

maintenance of public order in a State while acting

or purporting to act in the discharge of his official

duty during the period while a Proclamation issued

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under clause (1) of article 356 of the Constitution

was in force therein, except with the previous

sanction of the Central Government.

(3B) Notwithstanding anything to the contrary

contained in this Code or any other law, it is hereby

declared that any sanction accorded by the State

Government or any cognizance taken by a court

upon such sanction, during the period

commencing on the 20th day of August, 1991 and

ending with the date immediately preceding the

date on which the Code of Criminal Procedure

(Amendment) Act, 1991 (43 of 1991), receives the

assent of the President, with respect to an offence

alleged to have been committed during the period

while a Proclamation issued under clause (1) of

article 356 of the Constitution was in force in the

State, shall be invalid and it shall be competent for

the Central Government in such matter to accord

sanction and for the court to take cognizan ce

thereon.

(4) The Central Government or the State Government,

as the case may be, may determine the person by

whom, the manner in which, and the offence or

offences for which, the prosecution of such Judge,

Magistrate or public servant is to be conducted,

and may specify the Court before which the trial is

to be held.”

26. The object and purpose of the aforesaid provision was

recently reiterated by this Court in the case of Gurmeet Kaur vs.

Devender Gupta, 2024 SCC OnLine SC 3761 , which reads as

follows:

“22. … the object and purpose of the said provision is to

protect officers and officials of the State from unjustified

criminal prosecution while they discharge their duties

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within the scope and ambit of their powers entrusted to

them. A reading of Section 197 of the CrPC would

indicate that there is a bar for a Court to take cognizance

of such offences which are mentioned in the said

provision except with the previous sanction of the

appropriate government when the allegations are made

against, inter alia, a public servant. There is no doubt

that in the instant case the appellant herein was a public

servant but the question is, whether, while discharging

her duty as a public servant on the relevant date, there

was any excess in the discharge of the said duty which

did not require the first respondent herein to take a prior

sanction for prosecuting the appellant herein. In this

regard, the salient words which are relevant under sub-

section (1) of Section 197 are “is accused of any offence

alleged to have been committed by him while acting or

purporting to act in the discharge of his official duty, no

Court shall take cognizance of such offence except with

the previous sanction”. Therefore, for the purpose of

application of Section 197, a sine qua non is that the

public servant is accused of any offence which had been

committed by him in “discharge of his official duty”. The

said expression would clearly indicate that

Section 197 of the CrPC would not apply to a case if a

public servant is accused of any offence which is de

hors or not connected to the discharge of his or her

official duty. However, there are a line of judgments

which have considered this expression in two different

ways which we shall now advert to.”

27. In Amod Kumar Kanth vs. Association of Victim of

Uphaar Tragedy, 2023 SCC Online SC 578 disposed of by a

three-Judge Bench of this Court on 20.04.2023, of which one of

us (Nagarathna, J.) was a member, it was observed that the

question of cognizance being taken in the absence of sanction

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and thereby Section 197 of the CrPC being flouted 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 CrPC is protection being accorded to public

servants. In paragraphs 28, 29 and 31, it was observed as under:

“(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 public 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 place.

(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. 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 against them.

x x x x

(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.

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(32) 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 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 the 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.”

It was concluded that learned Magistrate had erred in the

facts of the said case in taking cognizance against the appellant

therein contrary to the mandate of Section 197 of the CrPC and

on that short ground alone, the appeal was allowed and the

proceedings challenged in Section 482 CrPC were quashed.

However, it was observed that the same would not stand in the

way of the competent authority taking a decision in the matter

and/or granting sanction for prosecuting the appellant therein

in accordance with law.

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 24 of 28

28. In another case titled Amrik Singh vs The State of

PEPSU, AIR 1955 SC 309, this Court explained the scope of

Section 197 of CrPC as follows:

“8. … It is not every offence committed by a public

servant that requires sanction for prosecution under

section 197(1) of the Code of Criminal Procedure; nor

even every act done by him while he is actually engaged

in the performance of his official duties; but if the act

complained of is directly concerned with his official

duties so that, if questioned, it could be claimed to have

been done by virtue of the office, then sanction would be

necessary; and that would be so, irrespective of whether

it was, in fact, a proper discharge of his duties, because

that would really be a matter of defence on the merits,

which would have to be investigated at the trial, and

could not arise at the stage of the grant of sanction,

which must precede the institution of the prosecution.”

The Court thereunder further concluded that:

“12 … The result then is that whether sanction is

necessary to prosecute a public servant on a charge of

criminal misappropriation, will depend on whether the

acts complained of hinge on his duties as a public

servant. If they do, then sanction is requisite. But if they

are unconnected with such duties, then no sanction is

necessary.”

29. As per the aforementioned proposition, it is only to be seen

if the accused public servant was acting in the performance of

his/her official duties, and if the answer is in the affirmative,

then prior sanction for their prosecution is a condition precedent

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 25 of 28

to the cognizance of the cases against them by the courts. It is

therefore largely a disputed question of fact here and not a

question of law. However, this fact of appellant herein acting in

her official capacity is not seriously contested by the respondents

herein. In the instant case, the appellant had filed the counter

affidavit and interacted with the complainant in her capacity of

a Presiding Officer, ICC. The correctness of the allegations with

regard to the conduct of the appellant need not be ascertained

herein by this Court but the fact that she was acting in her

official duty is sufficient to hold that a prior sanction from the

department was in fact necessary before the Magistrate taking

cognizance against her. The Magistrate therefore erred in

proceeding to take cognizance against the appellant without the

sanction for prosecution being received from BIS, and since BIS

has eventually refused to grant sanction for the prosecution of

the appellant, the prosecution against the appellant could not

have been sustained.

30. The argument advanced by the respondent -State and the

complainant with respect to “deemed sanction” is also not

tenable. Section 197 of CrPC does not envisage a concept of

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 26 of 28

deemed sanction. The chargesheet, as well as the counter

affidavit of the respondent-State, have relied upon the judgment

of this Court in Vineet Narain to contend that lack of grant of

sanction by the concerned authority within relevant time would

amount to deemed sanction for prosecution. However, a perusal

of the said judgment reveals that it did not deal with Section 197

CrPC and rather it dealt with the investigation powers and

procedures of Central Bureau of Investigation and Central

Vigilance Commission. While it did mention that the time limits

for grant of sanction for prosecution must be strictly adhered to,

there is no observation to the effect that lack of grant of sanction

for prosecution within the time limit would amount to deemed

sanction for prosecution.

31. Similarly, learned counsel for the complainant had placed

reliance on the judgment of this Court in Subramanian Swamy

to lend credence to the argument of deemed sanction for

prosecution. However, even the said judgment does not in any

manner lay down the notion of deemed sanction. First, the said

judgment dealt primarily with the Prevention of Corruption Act,

1988 and the sanction for prosecution under that Act. Secondly,

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 27 of 28

G.S. Singhvi, J. while penning his separate but concurring

opinion in the said judgment, had given some guidelines for the

consideration of the Parliament, one of which is to the effect that

at the end of the extended period of time limit, if no decision is

taken, sanction will be deemed to have been granted to the

proposal for prosecution, and the prosecuting agency or the

private complainant will proceed to file the char gesheet/

complaint in the court to commence prosecution within fifteen

days of the expiry of the aforementioned time limit. However,

such a proposition has not yet been statutorily incorporated by

the Parliament and in such a scenario, this Court cannot read

such a mandate into the statute when it does not exist.

32. Therefore, we are of the opinion that the learned Magistrate

was not right in taking cognizance of the offence against the

appellant herein without there being a sanction for prosecution

granted by the competent authority. Further, the High Court erred

in not considering the fact that the sanction for prosecution was

not granted by the competent authority under Section 197 of the

CrPC and eventually the sanction was expressly denied by the

competent authority with respect to the allegations against the

Crl. Appeal @ SLP (Crl.) No.6898 of 2023 Page 28 of 28

appellant. The necessary sanction not having been granted has

vitiated the very initiation of the criminal proceeding against the

appellant herein. Consequently, the chargesheet, the

summoning order and the consequent steps, if any, taken by the

trial court pursuant to the same are liable to be quashed qua the

appellant herein and are thus quashed.

The appeal is therefore allowed in the aforesaid terms.

….…………………………………………..J.

(B. V. NAGARATHNA)

.……………………………………………..J.

(SATISH CHANDRA SHARMA )

NEW DELHI;

FEBRUARY 25, 2025.