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Principles for grant of sanction under 197 cr.pc

section 197 CRPC to be read with 465 of Cr.PC

Test to determine - Whether public servant , if challegend , can reasonably claim that what he does is by the virtue of his office in acting or purporting to act in discharge of his official duty?

Supreme Court of India

Devinder Singh & Ors vs State Of Punjab Through Cbi on 25 April, 2016

I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.

VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.

IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.

In the instant cases, the allegation as per the prosecution case it was a case of fake encounter or death caused by torture whereas the defence of the accused person is that it was a case in discharge of official duty and as the deceased was involved in the terrorist activities and while maintaining law and order the incident has taken place. The incident was in the course of discharge of official duty. Considering the aforesaid principles in case the version of the prosecution is found to be correct there is no requirement of any sanction. However it would be open to the accused persons to adduce the evidence in defence and to submit such other materials on record indicating that the incident has taken place in discharge of their official duties and the orders passed earlier would not come in the way of the trial court to decide the question afresh in the light of the aforesaid principles from stage to stage or even at the time of conclusion of the trial at the time of judgment. As at this stage it cannot be said which version is correct. The trial court has prima facie to proceed on the basis of prosecution version and can re-decide the question afresh in case from the evidence adduced by the prosecution or by the accused or in any other manner it comes to the notice of the court that there was a reasonable nexus of the incident with discharge of official duty, the court shall re-examine the question of sanction and take decision in accordance with law.


(Arising out of Special Leave Petition (Crl.) No.6106 of 2019)

Station House Officer, CBI vs. B.A. Srinivasan, after the accused had retired from service, FIR was lodged against him under various provisions of Indian Penal Code and Prevention of Corruption Act. The High Court allowed his revision petition against the Trial Court order which refused his plea seeking discharge.

The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."

The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity

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.

(generally the plea is taken at the time of framing of charge but can also be taken at a later stage . Point of requirement of sanction could be raised at any time after cognizance of offence is taken may be even at the time of conclusion of trial or even thereafter . P.K. Pradhan v. State of sikkim AIR 2001 SC 2547)

Even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted."

Supreme Court of India

Dr. Subramanian Swamy vs Dr. Manmohan Singh And Anr on 31 January, 2012

Supreme Court observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant.

If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy.

Guidelines for grant of sanction by the concerned authority:

Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:

"2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.

(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department.

(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.

(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narain's case."

The aforementioned guidelines are in conformity with the law laid down by Supeme Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.

Supreme Court of India

Dr. Subramanian Swamy vs Dr. Manmohan Singh And Anr on 31 January, 2012

a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.

b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.

c) 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 chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.

Section 188


Case no.: CRIMINAL APPEAL NO. 394 OF 2020

Coram: Justices Rohinton Fali Nariman and S. Ravindra Bhat

Relying on Thota Venkateswarlu v. State of A.P

In this case, the Supreme Court had considered the issue whether in respect of a series of offences arising out of the same transaction, some of which were committed within India and some outside India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to Section 188 Cr.P.C. It held thus:

The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government.

The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.

Upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.

Supreme Court of India

John Thomas vs Dr. K. Jagadeesan on 12 July, 2001

If the defamation pertains to an association of persons or a body corporate, who could be the complainant?

The collocation of the words "by some persons aggrieved" definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K.J. Hospital is a private limited company, it is too far-fetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the company. Hence the appellant cannot justifiably contend that the Director of the K.J. Hospital would not fall within the wide purview of "some person aggrieved" as envisaged in Section 199(1) of the Code.

Some illustrative cases for the purpose of 197 :- The object of sanction for prosecution, whether under Section

197 of the Code of Criminal Procedure.As held by a Constitution

Bench of Supreme Court:-

Matajog Dobey v. H.C. Bhari AIR 1956 SC 44

“...Public servants have to be protected from harassment in

the discharge of official duties while ordinary citizens not so

engaged do not require this safeguard.…here is no

question of any discrimination between one person and

another in the matter of taking proceedings against a public

servant for an act done or purporting to be done by the public

servant in the discharge of his official duties. No one can take

such proceedings without such sanction..." Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287

Supreme Court explained the scope and object of Section 197

of the old Criminal Procedure Code, which as stated hereinabove, is in

pari materia with Section 197 of the Code of Criminal Procedure.

Court held:

“18. Now it is obvious that if Section 197 of the Code of

Criminal Procedure is construed too narrowly it can never

be applied, for of course it is no part of an official’s duty

to commit an offence and never can be. But it is not the

duty we have to examine so much as the act, because an

official act can be performed in the discharge of official

duty as well as in dereliction of it. The section has

content and its language must be given meaning. What it

says is—

‘When any public servant … 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….’ Now an offence seldom consists of a single act. It is

usually composed of several elements and, as a rule, a

whole series of acts must be proved before it can be

established. In the present case, the elements alleged

against the second accused are, first, that there was an

‘entrustment’ and/or ‘dominion’; second, that the

entrustment and/or dominion was ‘in his capacity as a

public servant’; third, that there was a ‘disposal’; and

fourth, that the disposal was ‘dishonest’. Now it is

evident that the entrustment and/or dominion here were

in an official capacity, and it is equally evident that there

could in this case be no disposal, lawful or otherwise,

save by an act done or purporting to be done in an

official capacity. Therefore, the act complained of,

namely, the disposal, could not have been done in any

other way. If it was innocent, it was an official act; if

dishonest, it was the dishonest doing of an official act,

but in either event the act was official because the

second accused could not dispose of the goods save by

the doing of an official act, namely, officially permitting

their disposal; and that he did. He actually permitted

their release and purported to do it in an official capacity,

and apart from the fact that he did not pretend to act

privately, there was no other way in which he could have

done it. Therefore, whatever the intention or motive

behind the act may have been, the physical part of it

remained unaltered, so if it was official in the one case it

was equally official in the other, and the only difference

would lie in the intention with which it was done: in the

one event, it would be done in the discharge of an official

duty and in the other, in the purported discharge of it.” In State of Orissa v. Ganesh Chandra Jew Appeal (crl.) 35 of 1998

Supreme Court interpreted the use of the expression “official duty” to imply

that the act or omission must have been done by the public servant

in course of his service and that it should have been in discharge of

his duty. Section 197 of the Code of Criminal Procedure does not

extend its protective cover to every act or omission done by a public

servant while in service. The scope of operation of the Section is

restricted to only those acts or omissions which are done by a public

servant in discharge of official duty. P. Arulswami vs. State of MadrasAIR 1967 SC 776

where Supreme Court held:

“...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.”

If the act is totally unconnected with the official duty, there

can be no protection. It is only when it is either within the

scope of the official duty or in excess of it that the

protection is claimable….” B. Saha and Others v. M.S. Kochar (1979) 4 SCC 177

Supreme Court held:

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

section (197) 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.” In Om Prakash and others vs. State of Jharkhand and

Anr. CRIMINAL APPEAL NO. 1491 OF 2012 Court, after referring to various decisions,

pertaining to the police excess, explained the scope of protection

under Section 197 of the Code of Criminal Procedure as follows:

“32. The true test as to whether a public servant was acting or

purporting to act in discharge of his duties would be whether the

act complained of was directly connected with his official duties

or it was done in the discharge of his official duties or it was so

integrally connected with or attached to his office as to be

inseparable from it (K. Satwant Singh [AIR 1960 SC 266]). The

protection given under Section 197 of the Code 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 of the protection (Ganesh Chandra Jew

[(2004) 8 SCC 40]). If the above tests are applied to the facts of

the present case, the police must get protection given under

Section 197 of the Code because the acts complained of are so

integrally connected with or attached to their office as to be

inseparable from it. It is not possible for us to come to a

conclusion that the protection granted under Section 197 of the

Code is used by the police personnel in this case as a cloak for

killing the deceased in cold blood.” In K.K. Patel and Another vs. State of Gujarat and Anr (2000) 6 SCC 195 “17. The indispensable ingredient of the said offence is that

the offender should have done the act “being a public

servant”. The next ingredient close to its heels is that such

public servant has acted in disobedience of any legal direction

concerning the way in which he should have conducted as

such public servant. For the offences under Section 167 and

219 IPC the pivotal ingredient is the same as for the offence

under Section 166 IPC. The remaining offences alleged in the

complaint, in the light of the averments made therein, are

ancillary offences to the above and all the offences are parts of

the same transaction. They could not have been committed

without there being at least the colour of the office or authority

which the appellants held.”

Devinder Singh & Ors. v. State of Punjab through CBI

(supra) was a case of killing by the police in fake encounter. Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr.

CBI CRIMINAL APPEAL NO. 2231 OF 2009 also pertains to a fake encounter, where the deceased

was mistakenly identified as a hardcore criminal and shot down

without provocation. The version of the police, that the police had

been attacked first and had retaliated, was found to be false. In the

light of these facts, that Court held that it could not, by any

stretch of imagination, be claimed by anybody that a case of murder

could be within the expression “colour of duty”. Supreme Court dismissed

the appeals of the concerned policemen against conviction, inter

alia, under section 302 of Indian Penal Code, which had duly been

confirmed by the High Court. in State of Andhra Pradesh v. N. Venugopal 1964 AIR 33 in that the policemen

concerned, being the Sub Inspector, Head Constable and a Constable

attached to a police station had without warrant illegally detained

the complainant for interrogation under Section 161 of the Criminal

Procedure Code in connection with a private complaint of house

break and theft, assaulted him along with the private complainant to

extract statements and left him in an injured condition. In the context of aforesaid, Supreme Court held that an act is not

"under" a provision of law merely because the point of time at which

it is done coincides with the point of time when some act in the

exercise of the powers granted by the provision or in performance of

the duty imposed by it. To be able to say that an act is done "'under"

a provision of law, one must discover the existence of a reasonable

relationship between the provisions and the act. In the absence of

such a relation, the act cannot be said to be done under the

particular provision of law. It cannot be said that beating a person

suspected of a crime or confining him or sending him away in an

injured condition, at a time when the police were engaged in

investigation, were acts done or intended to be done under the

provisions of the Madras District Police Act or the Criminal Procedure

Code or any other law conferring powers on the police. It could not

be said that the provisions of Section 161 of the Criminal Procedure

Code authorised the police officer examining a person to beat him or

to confine him for the purpose of inducing him to make a particular


Bhanuprasad Hariprasad Dave v. State of Gujarat 1968 AIR 1323

the Head Constable concerned was accused of preparing a

false report with the dishonest intention of saving a person from

whom ganja had been seized, after obtaining illegal gratification. The

Court held that demand and/or acceptance of illegal gratification

could not be said to be an act done under colour of duty.

Significantly, the concerned policemen had been tried and convicted and their conviction was affirmed by the High Court. The concerned

Head Constable was seeking bail in Supreme Court. in State of Maharashtra v. Atma Ram Criminal Appeal No. 167 of 1966

, was rendered in an appeal from a judgment and order of the

High Court, whereby the High Court had reversed the conviction of

the concerned policemen under Sections 330, 342, 343 and 348 of

the Indian Penal Code, holding the prosecution to be barred under

Section 161(1) of the Bombay Police Act. Allowing the appeal of the

State, Court held that Section 64(b) which confers duty on every

police officer to obtain intelligence concerning the commission of

cognizable offences or designs to commit such offences and to take

such other steps to bring offenders to justice or to prevent the

commission of cognizable and non cognizable offences, did not

authorise any police officer to beat persons in the course of

examination for the purpose of inducing them to make any particular

statement or to detain such persons. The acts complained were

factually found not to have been done under colour of any duty or

authority. The Order of the High Court acquitting the concerned

policemen was thus, set aside.

Bakhshish Singh Brar v. Gurmej Kaur 1988 AIR 257 , the

question raised before Court was, whether while carrying out

investigation in performance of duty as a policeman, it was

necessary for the concerned policeman to conduct investigation in

such a manner as would result in injury and death. Supreme Court held

that trial of a police officer accused of causing grievous injury and death in conducting raid and search, need not to be stayed for want

of sanction for prosecution of the police officer, at the preliminary

stage, observing that criminal trial should not be stayed at the

preliminary stage in every case, as it might cause damage to the

evidence. The Court observed that if necessary the question of

sanction might be agitated at a later stage.

In Matajog Dobey(AIR 1956 SC 44) the Constitution Bench

of Supreme Court was considering what is the scope and meaning

of a somewhat similar expression “any offence alleged to have

been committed by him while acting or purporting to act in the

discharge of his official duty” occurring in Section 197 of the

Criminal Procedure Code (5 of 1898). The Constitution Bench

observed that 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. On the question as to which act falls within the

ambit of abovequoted expression, the Constitution Bench

concluded that there must be a reasonable connection

between the act and the discharge of official duty; the act

must bear such relation to the duty that the accused could lay

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

it in the course of performance of his duty. While dealing with

the question whether the need for sanction has to be

considered as soon as the complaint is lodged and on the

allegations contained therein, the Constitution Bench referred

to Hori Ram Singh (AIR 1939 FC 43) and observed that at first

sight, it seems as though there is some support for this view in

Hori Ram Singh (AIR 1939 FC 43) because Sulaiman, J. has

observed in the said judgment that as the prohibition is

against the institution itself, its applicability must be judged in

the first instance at the earliest stage of institution and

Varadachariar, J. has also stated that: (Matajog Dobey case

(AIR 1956 SC44), AIR p. 49, para 20)

the question must be determined with reference to

the nature of the allegations made against the public

servant in the criminal proceed.

The legal position is thus settled by the Constitution Bench

in the above paragraph. Whether sanction is necessary or

not may have to be determined from stage to stage. If, at

the outset, the defence establishes that the act purported to

be done is in execution of official duty, the complaint will

have to be dismissed on that ground.

It is not the duty of the police officers to kill the accused

merely because he is a dreaded criminal. Undoubtedly, the

police have to arrest the accused and put them up for trial.

Court has repeatedly admonished trigger-happy police

personnel, who liquidate criminals and project the incident as

an encounter. Such killings must be deprecated. They are not

recognised as legal by our criminal justice administration

system. They amount to State-sponsored terrorism. But, one

cannot be oblivious of the fact that there are cases where the

police, who are performing their duty, are attacked and killed.

There is a rise in such incidents and judicial notice must be

taken of this fact. In such circumstances, while the police have

to do their legal duty of arresting the criminals, they have also

to protect themselves. The requirement of sanction to

prosecute affords protection to the policemen, who are

sometimes required to take drastic action against criminals to

protect life and property of the people and to protect

themselves against attack. Unless unimpeachable evidence is

on record to establish that their action is indefensible, mala

fide and vindictive, they cannot be subjected to prosecution.

Sanction must be a precondition to their prosecution. It affords

necessary protection to such police personnel. The plea

regarding sanction can be raised at the inception.

In Pukhraj v. State of Rajasthan 1973 AIR 2591- the accused Post

Master General, Rajasthan had allegedly kicked and abused a union

leader who had come to him when he was on tour, to submit a

representation. Supreme Court held that Section 197 of the Code of

Criminal Procedure, which is intended to prevent a public servant

from being harassed does not apply to acts done by a public servant

in his private capacity. Supreme Court however left it open to the

accused public servant to place materials on record during the trial

to show that the acts complained of were so interrelated with his

official duty as to attract the protection of Section 197 of the Criminal

Procedure Code. In Rizwan Ahmed Javed Shaikh and others v. Jammal

Patel and Others (2001) 5 SCC 7

Court held that where the gravamen of the

charge was failure on the part of the accused policemen to produce

the complainants, who were in their custody, before the Judicial

Magistrate, the offence alleged was in their official capacity, though it

might have ceased to be legal at a given point of time, and the

accused police officers would be entitled to the benefit of Section

197(2) of the Criminal Procedure Code. in Matajog Dobey

(supra) Court held it is not always necessary that the need for

sanction under Section 197 is to be considered as soon as the

complaint is lodged and on the allegations contained therein. The

complainant may not disclose that the act constituting the offence

was done or purported to be done in the discharge of official duty

and/or under colour of duty. However the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may

establish the necessity for sanction. Thus, whether sanction is

necessary or not may have to be determined at any stage of the


in B. Saha v. M.S. Kochar 1979 AIR 1841 was

rendered in the context of allegations against Customs Authorities of

misappropriation or conversion of goods. Supreme Court held that while

the seizure of goods by the concerned custom officers was an act

committed in discharge of official duty, the subsequent acts of

misappropriation or conversion of the goods could not be said to be

viewed as under the colour of official duty. Accordingly Court held that sanction for prosecution was not necessary.


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