Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words "habeas" and "corpus". 'Habeas Corpus' literally means 'have his body'. The general purpose of these writs as their name indicates c c [20 I 6] 5 S.C.R. was to obtain the production of the individual before a Court or a Judge. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the Executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England. the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus is as of right and that the Court has no discretion to refuse it. "Unlike ce11iorari or mandamus, a writ of habeas corpus is as of right "to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution oflndia." (emphasis is ours)
12. The first task, which a Court is obliged to embark upon, when confronted with a proposition of the nature in hand, is to ascertain as to whether the alleged offence, attributed to the accused, had been committed by an accused "while acting or purporting to act in the discharge of his official duty". In the facts and circumstances of the present case, the alleged action constituting the allegations levelled against the appellants, is based on the arrest and detention of Neeraj Kumar from 24.06. I 999 upto 28.06. I 999 (before, he was admitted to have been formally arrested on 28.06. I 999).
13. Insofar as the power of arrest and detention by police officials/ officers is concerned, reference may be made to Section 36 of the 'Code' which postulates, that all police officers superior in rank to an officer in charge of a pol ice station, are vested with an authority to exercise the SURINDERJlT SINGH MAND & ANR. v. STATE OF PUNJAB & ANR. [JAGDISH SINGH KHEHAR, J.] same powers (throughout the local area, to which they are appointed), which can be exercised by the officer in charge of a police station. Section 49 of the 'Code' postulates, the manner in which a police officer is to act, while taking an individual in custody. Section 49 of the 'Code', cautions the person making the arrest to ensure, that the individual taken into custody, is not subjected to more restraint than is necessary, to prevent his escape. Section 50 of the 'Code' mandates, that every police officer arresting a person without a warrant (as is the position, alleged in the present case), is mandated to forthwith disclose to the person taken in custody, full particulars of the offence for which he is arrested, as also, the grounds for such arrest. Section 50A obliges the police officer making the arrest, to immediately inform friends/relatives of the arrested person (on obtaining particulars from the arrested person), regarding his detention. And an entry of the arrest, and the communication of the.information of the arrest to the person nominated by the detenu, has to be recorded in a register maintained at the pol ice station, for the said purpose. Section 50A of the 'Code' also mandates, that the Magistrate before whom such an arrested person is produced, would satisfy himself that the obligations to be discharged by the arresting officer, had been complied with.
14. Based on the aforesaid provisions of the 'Code', there cannot be any serious doubt about the fact, that Surinderjit Singh Mand and P.S. · Parmar, were holding the rank of Deputy Superintendent of Police, at the relevant time (from 24.06.199 to 28.06.1999). Both the appellants were " … officers superior in rank to an officer in charge of a police station … ". Both the appellants were therefore possessed with the authority to detain and arrest, Neeraj Kumar at the relevant time (from 24.06.1999 to 28.06.1999). The question for complying with the requirements in Sections 49, 50 and 50A does not arise for the period under reference (from 24.06.1999 to 28.06.1999), because Neeraj Kumar according to official police records, was arrested only on 28.06.1999. The position adopted by the appellants was, that Neeraj Kumar was not under detention for the period from 24.06.1999 to 28~06.1999.
15. Keeping the legal position emerging from the provisions of the 'Code' referred to in the foregoing paragraphs in mind, it was the contention oflearned counsel for the respondents, that in order to require sanction under Section 197 of the 'Code', it needs to be further established, c c (2016] 5 S.C.R. that the appellants had acted in the manner provided for under the provisions of the 'Code', during the period Neeraj Kumar was allegedly arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formal arrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction under Section 197 would arise, because in that situation, the offence allegedly committed would be taken to have been committed "while acting or purporting to act in the discharge of their official duties". In the present case, the arrest and detention of N eeraj Kumar from 24.06.1999 to 28.06.1999, is denied. The formalities postulated under the 'Code', on the alleged arrest ofNceraj Kumaron 24.06.1999, were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrested on that date. It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true, was obviously without following the mandatOI)' conditions ofarrest and detention, contemplated under the provisions (referred to above). And therefore, would not fall within the realm of"acting or purporting to act in the discharge of their official duties".
16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel for the respondents placed reliance on P.P. Unnikrishnan vs. Puttiyottil Alikutty. (2000) 8 SCC 131, and invited our attention to the following observations recorded therein: "21. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence 111 ight fall within the amplitude of Section 197 of the Code as wel I as Section 64(3) of the KP Act. But ifa police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of24 hours without the sanction ofa Magistrate or an orderof a court it would be an offence for which he cannot claim any protection in the normal course, nor can he claim that such act was done in exercise of his official duty. A policeman keeping a person in the fock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority." (emphasis is ours) Based on the provisions of the 'Code', pertaining to arrest and detention of individuals at the hands of police personnel (referred to above), it was submitted, that the arrest of Neeraj Kumar from 28.06.1999 to 30.06.1999 would unquestionably fall within the purview of"acting or purporting to act in the discharge of his official duties" (of the concerned police officers/officials who arrested Neeraj Kumar).
It was however asserted, that ifthe arrest ofNeeraj Kumar from 24.06.1999 to 28.06.1999 (before he was formally detained on 28.06.1999) is found to be factually correct, such arrest ofNeeraj Kumar cannot be accepted to have been made by the appellants – Surinderjit Singh Mand and P.S.Parmar, while acting or purporting to act in the discharge cf their official duties. It was therefore submitted, that any alleged criminality, in connection with the detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, would not require to be sanctioned under Section 197, before the concerned Court, took cognizance of the matter, against the concerned public servants.
17. Having given our thoughtful consideration to the contention advanced at the hands of learned counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P. Unnikrishnan case (supra) is clear and emphatic. The same does not leave any room for making any choice. It is apparent, that the official arrestofNeeraj Kumar in terms of the provisions of the 'Code', referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above period of apprehension can legitimately be considered as, having been made "while acting or purporting to act in the discharge of their official duties". The factual position t;xpressed by the appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999. His detention during the above period, if true, in our considered view, would certainly not emerge from the action of the accused while acting or purporting to act in the discharge of their official duties.
If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actually detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to have been made by the accused while c c (2016] 5 S.C.R. acting or purporting to act in the discharge of their official duties. More so, because it is not the case of the appel !ants, that they had kept N eeraj Kumar in jail during the period from 24.06.1999 to 28.06.1999. If they had not detained him during the above period, it is not open to anyone to assume the position, that the detention ofNeeraj Kumar, during the above period, was while acting or purporting to act in the discharge of their official duties. Therefore, in the peculiar facts and circumstances of this case, based on the legal position declared by this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for prosecution of the accused in relation to the detention of Neeraj Kumar for the period from 24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes cognizance with reference to the alleged arrest ofNeeraj Kumar. We therefore hereby, endorse the conclusions drawn by the High Court, to the above effect.
18. It was also the contention oft earned counsel for the appellants, that the protection afforded to public servants under Section 197 of the 'Code', postulating sanction prior to prosecution, on account of the acts committed while discharging their official duties, is to shield public servants from frivolous harassment of prosecution, at the hands of private individuals. It was therefore, the submission of learned counsel for the respondents, that the scope and purview of Section 197 of the 'Code', should be limited to the initiation of criminal proceedings under Chapter- XIV of the 'Code', wherein such initiation is postulated under Section 190 (upon receipt ofa complaint, wherein facts disclose the commission of an offence, or upon a police report of such facts, or upon information received from any person other than a police officer, that such offence had been committed). In all the above situations, it is open to a Magistrate to take cognizance of such offence subject to the condition, that the same falls within the jurisdictional competence of the said Magistrate.
The Magistrate would however proceed against a public servant, after sanction has been granted by the concerned Government. And in case, the same does not fall within the competence of a Magistrate, to commit it to a Court of Session, which can take cognizance of the same, as provided for by Section 193 of the 'Code'. Whereupon, the Court to which the matter is committed may proceed against a public servant, after sanction has been granted by the concerned Government under Section 197 of the 'Code'. In emphasizing on the above scope of sanction, it was pointed out, that Section 197 of the 'Code' being a part of Chapter- XIV of the 'Code', its applicability would extend to the provisions under Chapter-XIV alone. It was submitted, that Section 319 of the 'Code' is contained in Chapter XXIV, over which Section 197 can h~ve"no bearing.
19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by learned counsel representing the respondents, thatthe prosecution contemplated under Section 197 of the 'Code', and the action of the Court in taking cognizance, pertain to actiolll' initiated on the basis of complaints, which disclose the commission of an offence, or on a police report of such facts, or upon receipt of information from a person other than the police officer, that such offence had been committed. It was asserted, that the above action of taking cognizance by a Court, is based on alleged "facts" and not "on evidence" recorded by a Court. The above distinction was drawn by referring to Section 190 of the 'Code' which contemplates initiation of action on the basis of facts alleged against.an accused, as against, Section 319 of the 'Code' whereunder action is triggered against the concerned person only if it appears from the evidence recorded during the trial, that the said person was involved in the commission of an offence.
While making a reference to Section 319 of the 'Code', it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the 'Code', was by the Court itself, and therefore, the same having been based on "evidence'', as also, the satisfaction of the Court itself, that such person needed to be tried together with the "other accused'', it seemed unreasonable, that sanction postulated under Section 197 of the 'Code' should still be required. It was pointed out, thatthe protection contemplated under Section 197 of the 'Code', was not a prerequisite necessity, when cognizance was based on the evaluation of"evidence" by a Court itself. Learned counsel emphasized, that when a Court itself had determined, that cognizance was required to be taken, based on evidence which had been recorded by the same Court, it would be undermining the authority of the concerned Court, if its judicial determination, was considered subservient to the decision taken by the authorities contemplated under Section 197 of the 'Code'. Based on the submissions noticed above, it was the vehement contention of learned counsel for the respondents, that the mandate of Section 197 would not extend to cases where cognizance had been taken under Section 319 of the 'Code'.
20. While dealing with the first contention, we have already c c recorded our conclusions, which are sufficient to dispose of the matter under consideration. But, an important legal proposition has been canvassed, as the second submission, on behalf of the respondents (which we have recorded in the foregoing paragraph). Since it squarely arises in the facts and circumstances of this case, we consider it our bounden duty, to render our determination thereon, as well. In the succeeding paragraphs, we will deal with the second contention.
21. Insofar as the second contention advanced at the hands of learned counsel for the respondents is concerned, we are of the view that there is sufficient existing precedent, to draw a conclusion in respect of the proposition canvassed. Reference in the first instance may be made to Dilawar Singh vs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709. The following observations in the above cited judgment are ofrelevance to the present issue: "2. It is necessary to mention the basic facts giving rise to the present appeals. On the complaint made by the wife, a case was registered against Parvinder Singh@ Iqbal Singh under Section 406/498-A IPC. On 27.1.2000 Parvinder Singh @ Iql'lal Singh gave a complaint to the SSP, Barna la alleging that on 23.1.2000, Jasbir Singh, AS! and a Home Guard came to his house on a scooter and forcibly took him to the Police Station Bamala. He was beaten and tortured and was subjected to third-degree methods. Some of his relatives, namely, Jamail Singh, Sukhdev Singh, Sadhu Singh Grewal and Sukhdev Singh Virk came to the police station and requested the police personnel not to beat or torture him. It was f1:11'ther alleged in the complaint that Jasbir Singh, AS!, told them that they should talk to Dilawar Singh, S.H.0., who was sitting there on a chair. Dilawar Singh then demanded an amount ofRs.20,000/- for releasing Parvinder Singh. His relations then brought the amount, out of which Rs.15,000/- was offered to Dilawar Singh but he said that the money may be handed over to ASI Jasbir Singh. The amount ofRs.15,000/- was then given to ASI Jasbir Singh, who kept the same in the pocket of his coat. Parvinder Singh was medically examined on 28.1.2000 and a case was registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act"). After investigation, charge-s~eet was submitted only against ASI Jasbir Singh. A closure report was submitted against Dilawar Singh, S.H.0. as in the opinion of the investigating officer he had not committed any offence. It may be mentioned here that for prosecution of ASI Jasbir Singh, necessary sanction had been obtained from the competent authority under Section 19 of the Act. After the statement of the complainant Parvinder Singh had been recorded, he moved an application under Section 319 Cr.P.C. for summoning Dilawar Singh, S.H.O. as a co-accused in the case. After hearing the counsel for the parties, the learned Special Judge dismissed the application by the order dated 7.1.2002. Parvinder Singh filed a revision petition against the aforesaid order which has been allowed by the High Court by the impugned order dated 3. 7 .2002 and a direction has been issued to summon Dilawar Singh and try him iri accordance with .law. xxx xxx xxx 4. Jn our opinion, the contention raised by the learned counsel forthe appellant is well founded. Sub-section (I) of Section 19 of the Act, which is relevant for the controversy in c dispute, reads as under : "19.
Previous sanction necessa1:y for prosecution.- ( I) No court shall take cognizance of an offence punishable under sections 7, I 0, 11, 13 and l 5 alleged to have been committed by a public servant, except with the previous sanction, – (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; ( c) in the case of any other person, of the authority c [2016) 5 S.C.R. competent to remove him from his office." This section creates a complete bar on the power of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, l3 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution. 5. In State v. Raj Kumar Jain, ( 1998) 6 SCC 551, the Court was examining the scope of Section 6(1) of the Prevention of Corruption Act, 1947, which is almost similar to sub- section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1) of the Prevention of Corruption A~t. 194 7, it was held as under in para 5 of the Report: {SCC pp. 552-53) "5.
From a plain reading of the above section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions." 6. Ir! Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act 194 7, but no sanction had been granted for his prosecution under Section 5( l)(a) of the said Act. It !Vas held that no cognizance could be taken for _prosecution of the accused under Section 5( l)(a) of the Prevention of Corruption Act, 1947. as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5( 1 )(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision. 7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was held that in the absence ofa valid sanction on the date when the Special Judge took cognizance of the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the settled position oflaw, the impugned order of the High Court directing summoning of the appellant and p1oceeding against him along with Jasbir Singh, ASI is clearly erroneous in law. (emphasis is ours) The above issue was also examined by this Court in Paul Varghese vs. State of Kerala, (2007) 14 SCC 783, wherein this Court observed as under: "2.
Challenge in this appeal is to the order passed by a learned Single Judge of the Kera la High Court allowing the revision filed by the Respondent 2 in the present appeal who was the petitioner before the High Court. He had questioned correctness of the order passed by the Inquiry Commissioner and Special Judge, Trichoor, by which the prayer for his impleadment as the accused in terms of Section 319 of the Code of Criminal Procedure, 1973 (in short "the Code") was accepted. By the said order the Trial Court had held that Section 319 of the Code overrides the provisions of Section 19 of the Prevention of Corruption Act, 1988 (in short "the Act") and for exercise of power under the former provision, the only conditions required to be fulfilled are set out in sub-section ( 4) of Section 319 c itself. The High Court felt that the view was not sustainable in view of what has been stated by this Court in Dilawar Singh v. Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC 709).
Accordingly, the order was set aside. c xxx xxx xxx 4. As has been rightly held by the High Court in view of what has been stated in Dilawar Singh's case (supra), the Trial Court was not justified in holding that Section 319 of the Code has to get preference/primacy over Section 19 of the Act, and that matter stands concluded ….. " (emphasis is ours) Last of all, reference may be made to a recent decision of this Court in Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64. For-the issue under reference, the following observations recorded in the above judgment are relevant: "74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless th~ Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt pub I ic servants.
These protections are not · available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and w'.thout threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption. 75. Therefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under the P.C.
Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the Rule of Law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty." (emphasis is ours)
22. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt, that under Section 197 of the 'Code' and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether under the Indian Penal Code, or under the concerned special statutory enactment). The procedure for obtaining sanction would be governed by the provisions of the 'Code' and/or as mandated under the special enactment. The words engaged in Section 197 of the 'Code' are, " … no court shall take cognizance of such offence except with previous sanction … •. Likewise sub-section (I) of Section 19 of the Prevention of Corruption Act provides, "No Cou~ shall take cognizance .. except with the previous sanction … ". The mandate is clear and unambiguous, that a Court "shall not" take cognizance without sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance, without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention advanced at the hands of learned counsel for the respondents, that where c c cognizance is taken under Section 319 of the 'Code', sanction either under Section 197 of the 'Code' (or under the concerned special enactment) is not a mandatory pre-requisite.
23. According to learned counsel representing respondent no. 2, the position concluded above, would give the impression, that the determination rendered by a Court under Section 319 of the 'Code', is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution.
24. For the reasons recorded hereinabove, and in view of the conclusions recorded by us in paragraph 17, we are of the view that there is no merit in the instant appeal and the same deserves to be dismissed. Ordered accordingly. Kalpana K. Tripathy Appeal dismissed.