Appeal
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.
Based on the internal committee report formed under POSH Act an FIR was registered against appellant
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 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.
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 therein 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.
Though sanction was not granted Special Chief Judicial Magistrate took cognizance
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 offences stated thereunder and issued summons against the accused persons.
Appellant filed petition under section 482 Cr.P.C for quashing charge sheet and the same was dismissed
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.
Analysis
Issue for consideration: Whether High Court ought to have quash the chargesheet or not?
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.
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.
Analysis: Sanction
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 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 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.
Object of Sanction under section 197 Cr.P.C
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 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 subsection (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 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.
(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.
Since the appellant interacted with the complainant in her capacity of a presiding officer, ICC sanction is required to take cognizance
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 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.
No concept of deemed sanction under section 197 Cr.P.C
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 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.
Conclusion: Chargesheet quashed
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 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.
Judgments that are relied upon or cited
1. Vineet Narain vs. Union of India, AIR 1998 SC 889
2. Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64
3. Gurmeet Kaur vs. Devender Gupta, 2024 SCC OnLine SC 3761
4. Amod Kumar Kanth vs. Association of Victim of Uphaar Tragedy, 2023 SCC Online SC 578
5. Amrik Singh vs. The State of PEPSU, AIR 1955 SC 309
Party
Suneeti Toteja (Appellant) vs. State of U.P. & Anr. (Respondents) – Criminal Appeal 975 of 2025 @ SLP (Crl.) No. 6898 of 2023 – 2025 INSC 267 – February 25, 2025
