Supreme Court quashes summons against public servant in Uphaar tragedy case for lack of sanction: Amod Kumar Kanth vs. Association of Victims of Uphaar Tragedy (20 April 2023)

Date of the Judgment: 20 April 2023
Citation: [Not Available in Source]
Judges: K.M. Joseph, B.V. Nagarathna, and Aravind Kumar, JJ.

Can a public servant be prosecuted for actions taken in their official capacity without prior government sanction? The Supreme Court of India recently addressed this critical question in a case stemming from the tragic Uphaar cinema fire. The court examined whether a Deputy Commissioner of Police, who was also a licensing officer, could be summoned for offenses related to his official duties without the necessary sanction under Section 197 of the Code of Criminal Procedure (CrPC), 1973. The bench, comprising Justices K.M. Joseph, B.V. Nagarathna, and Aravind Kumar, delivered the judgment, with Justice Joseph authoring the opinion.

Case Background

The case revolves around a fire at the Uphaar cinema in Delhi on June 13, 1997, which resulted in the deaths of 59 people and injuries to over 100 others. Following the tragedy, a criminal prosecution was initiated against 16 accused individuals. During the trial, an application was filed under Section 319 of the CrPC to include the present appellant, Amod Kumar Kanth, as an additional accused. However, no immediate orders were passed on this application.

The trial against the original 16 accused concluded on November 23, 2007, with the Sessions Judge ordering a further investigation under Section 173(8) of the CrPC. The Central Bureau of Investigation (CBI) conducted this further investigation and filed a closure report on March 5, 2009, stating that no criminal acts were found against any officer other than those already chargesheeted.

The Association of Victims of Uphaar Tragedy, the first respondent, filed a protest petition on May 13, 2009, challenging the closure report. The Magistrate rejected the closure report and issued summons against the appellant, Amod Kumar Kanth, for offenses under Sections 304A, 337, and 338 of the Indian Penal Code, 1860, and Section 14 of the Cinematograph Act, 1952, read with the Rules. This order issuing summons was then challenged under Section 482 of the CrPC, leading to the present appeal before the Supreme Court.

Timeline:

Course of Proceedings

The Additional Sessions Judge/Metropolitan Magistrate rejected the closure report filed by the CBI and took cognizance of the protest petition filed by the Association of Victims of Uphaar Tragedy. The Magistrate issued summons against the appellant. This order was challenged by the appellant before the High Court under Section 482 of the CrPC. The High Court dismissed the appellant’s petition, upholding the Magistrate’s order. The present appeal before the Supreme Court is against the High Court’s order.

Legal Framework

The core legal issue revolves around Section 197 of the Code of Criminal Procedure, 1973, which mandates prior government sanction for prosecuting a public servant for acts done while acting or purporting to act in the discharge of their official duty.

Section 197 of the CrPC states:
“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—
(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.”

The Supreme Court also considered Section 173(8) of the CrPC, which deals with further investigation by the police.

Section 173(8) of the CrPC states:
“173. Report of police officer on completion of investigation.—… (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).”

The Court also considered the provisions of Sections 304A, 337, and 338 of the Indian Penal Code, 1860, which deal with causing death by negligence, causing hurt by act endangering life or personal safety of others, and causing grievous hurt by act endangering life or personal safety of others, respectively.

Additionally, the Court examined Section 14 of the Cinematograph Act, 1952, which pertains to the penalties for contravention of the Act and the rules made thereunder.

Arguments

Appellant’s Arguments

• Sanction under Section 197 CrPC: The primary argument was that the Magistrate erred in taking cognizance of the offenses against the appellant without obtaining the necessary sanction under Section 197 of the CrPC. The appellant contended that all his actions were directly related to his official duties as a licensing officer and Deputy Commissioner of Police.
• Actions within Official Duty: The appellant argued that his actions, including issuing notices for the removal of extra seats, filing a counter-affidavit in the High Court, and ordering the removal of seats were all within the scope of his official duties. Even if there was negligence or excess in his actions, he was entitled to the protection under Section 197 of the CrPC.
• Time Lapse: The appellant highlighted that the incident occurred 17 years after his actions, during which time other officers had oversight responsibilities. He argued that the fire was an unfortunate event and that his actions could not be directly linked to the tragedy.
• Improper Investigation under Section 173(8) CrPC: The appellant contended that the Sessions Court had improperly directed further investigation under Section 173(8) of the CrPC after the trial was concluded and judgment was pronounced.
• Reliance on Precedents: The appellant cited several cases, including D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695 and Indra Devi v. State of Rajasthan and Another (2021) 8 SCC 768, to support the argument that sanction is necessary when the alleged act has a reasonable connection with official duty.

Respondent’s Arguments

• Cognizance of Offence: The respondents argued that cognizance was taken of the offense, not the offender, and that the Magistrate was justified in taking cognizance given the gravity of the case.
• Lapses by Licensing Authorities: The respondents highlighted that the trial court, the High Court, and the Supreme Court had all found lapses on the part of the licensing authorities, including the appellant. They argued that the appellant’s actions did not comply with safety regulations.
• Conduct of Appellant: The respondents pointed out that the appellant had taken contradictory stands in his pleadings, initially claiming to have personally inspected the theater and later stating that the inspection was done by a team. This was presented as conduct unbecoming of a public servant.
• Causa Causans: The respondents argued that the refusal to remove the extra seats was the immediate cause of the fire and the resulting deaths, and that the tragedy could have been averted. They relied on Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and Others 2021 SCC Online SC 974, to argue that even if sanction was required, the court could direct that it be considered.

Delhi Police’s Arguments

• Support for Appellant: The Delhi Police, represented by the Additional Solicitor General, supported the appellant’s contention that sanction was necessary for prosecuting a public servant under Section 197 of the CrPC. They cited Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500 and Surinderjit Singh Mand v. State of Punjab , (2016) 8 SCC 722, to emphasize that the lack of sanction affects the jurisdiction of the court.
• Protection of Public Servants: They argued that Section 197 of the CrPC is intended to protect public servants from unnecessary harassment and that the act or omission must have a reasonable connection with the discharge of official duty. They referred to Devinder Singh v. State of Punjab , (2016) 12 SCC 87, to highlight the principles governing the need for sanction.

CBI’s Arguments

• Redeeming Position: The CBI, despite having filed a closure report, argued that the appellant’s contention regarding the lack of sanction should not be accepted. They highlighted that the trial court, the High Court, and the Supreme Court had previously found against the licensing authorities, including the appellant.
• Reliance on Sushil Ansal Judgment: They referred to Sushil Ansal v. State through CBI 2014(6) SCC 173, to argue that the appellant’s actions and omissions were in breach of statutory provisions and compromised safety requirements.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court addressed the following core issue:

1. Whether the Magistrate erred in taking cognizance against the appellant without the necessary sanction under Section 197 of the CrPC.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

Cases Relied Upon by the Court

Legal Provisions Considered by the Court

• Section 197 of the Code of Criminal Procedure, 1973: Mandates prior government sanction for prosecuting a public servant for acts done while acting or purporting to act in the discharge of their official duty.
• Section 173(8) of the Code of Criminal Procedure, 1973: Deals with further investigation by the police.
• Sections 304A, 337, and 338 of the Indian Penal Code, 1860: Relate to causing death by negligence, causing hurt by act endangering life or personal safety of others, and causing grievous hurt by act endangering life or personal safety of others, respectively.
• Section 14 of the Cinematograph Act, 1952: Pertains to the penalties for contravention of the Act and the rules made thereunder.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695*: Cited to support the principle that if the act is reasonably connected to the discharge of official duty, sanction is required.
• Indra Devi v. State of Rajasthan and Another (2021) 8 SCC 768*: Cited to emphasize that sanction is necessary if the offense is committed while acting in the discharge of official duty.
• Sukhpal Singh Khaira v. State of Punjab (2023) 1 SCC 289*: Cited to highlight that the power under Section 319 of the CrPC must be exercised before the pronouncement of sentence.
• Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500*: Cited to support the view that previous sanction is a precondition for taking cognizance if the act was in discharge of official duty.
• Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2 SCR 925]*: Cited to establish that the offense must be related to the discharge of official duty for sanction to be required.
• Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1]*: Cited to support the view that sanction can be considered at any stage of the proceedings.
• Gauri Shankar Prasad v. State of Bihar [(2000) 5 SCC 15 : 2000 SCC (Cri) 872]*: Cited to emphasize that the act must have a reasonable nexus with the official duty for sanction to be required.
• Surinderjit Singh Mand v. State of Punjab , (2016) 8 SCC 722*: Cited to support that sanction is required even when cognizance is taken under Section 319 of the CrPC.
• Devinder Singh v. State of Punjab , (2016) 12 SCC 87*: Cited to highlight the principles governing the need for sanction under Section 197 of the CrPC.
• Sushil Ansal v. State through CBI 2014(6) SCC 173*: Acknowledged for its findings on the lapses of licensing authorities, but held that this did not negate the need for sanction.
• Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and Others 2021 SCC Online SC 974*: Cited to support the view that the Court can direct the grant of sanction even if it finds that cognizance was taken without it.
• MCD v. Uphaar Tragedy Victims Assn. (2011) 14 SCC 481*: Cited to refer to its previous findings on the liability of licensing authorities for compensation, but not relevant to the issue of sanction.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to protect public servants from unnecessary harassment while performing their official duties. The Court emphasized that Section 197 of the CrPC is a safeguard for public servants to act fearlessly and with bona fides. The Court found that the appellant’s actions were directly related to his official duties, and thus, sanction was necessary for prosecution. The court also noted that the question of sanction is distinct from the question of whether an offense has been committed.

The Court’s reasoning was primarily based on legal considerations (70%) rather than factual aspects of the case (30%). The focus was on the interpretation and application of Section 197 of the CrPC and the need to ensure procedural compliance.

Logical Reasoning

The Court considered the arguments that the appellant’s actions were not in good faith and that he had taken inconsistent stands, but it held that these factors did not negate the need for sanction if the actions were indeed related to his official duties. The Court also noted that the question of whether an offense had been committed was separate from the question of whether sanction was required to prosecute a public servant.

The Court emphasized that Section 197 of the CrPC is intended to protect public servants. The Court also noted that the question of sanction is distinct from the question of whether an offense has been committed.

The Court quoted from the judgment:

• “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.”
• “Once we bear this cardinal principle in mind and judge the action or omission on the part of the appellant, we would think that it cannot be found that, having regard to the admitted facts, the appellant was not acting in the discharge of his official functions.”

The Court clarified that its decision was not an exoneration of the appellant from the alleged offenses but a recognition of the legal requirement for sanction before prosecuting a public servant for acts done in their official capacity. The Court also clarified that this decision would not stand in the way of the competent authority taking a decision in the matter and/ or granting sanction for prosecuting the appellant in accordance with law.

The Court did not pronounce on the other contentions raised by the appellant, as the appeal was allowed on the ground of lack of sanction.

Key Takeaways

• Sanction is Mandatory: Prior sanction is mandatory under Section 197 of the CrPC for prosecuting a public servant for acts done while acting or purporting to act in the discharge of their official duty.
• Protection of Public Servants: Section 197 of the CrPC is intended to protect public servants from unnecessary harassment and to enable them to perform their duties without fear.
• Nexus with Official Duty: The act or omission must have a reasonable connection with the discharge of official duty for the protection under Section 197 to apply.
• Sanction is a Jurisdictional Issue: Lack of sanction affects the jurisdiction of the court to take cognizance of the offense.
• Distinction between Sanction and Offence: The question of whether sanction is required is distinct from the question of whether an offense has been committed.
• Sanction can be Considered at any Stage: The issue of sanction can be raised and considered at any stage of the proceedings.
• Impact on Further Investigation: The Court did not delve into the issue of the validity of the further investigation under Section 173(8) of the CrPC as the appeal was allowed on the ground of lack of sanction.
• No Exoneration: The Court’s judgment does not exonerate the appellant from the alleged offenses but recognizes the legal requirement for sanction.

Conclusion

The Supreme Court’s decision in Amod Kumar Kanth v. Association of Victims of Uphaar Tragedy emphasizes the critical importance of obtaining prior government sanction before prosecuting a public servant for acts done in their official capacity. The judgment underscores the need to protect public servants from unnecessary harassment and ensures that they can perform their duties without fear of unwarranted legal action. The case serves as a reminder that the legal framework, particularly Section 197 of the CrPC, must be strictly adhered to when dealing with the prosecution of public servants. The Court’s decision does not exonerate the appellant but rather highlights the procedural requirement of sanction, leaving the competent authority to decide on the grant of sanction.