AMOD KUMAR KANTH versus ASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND ANR. on 20 April 2023

JUDGMENT

(1) By the impugned order, the High Court has dismissed the petitionfiled by the appellant under Section 482 of the Code of CriminalProcedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity). Thepetition under Section 482 Cr.P.C. was filed against the order passed bythe Additional Sessions Judge Metropolitan Magistrate rejecting theclosure report filed by the Central Bureau of Investigation (hereinafterreferred to as ‘CBI’ for short) which was filed against the appellant.The closure report filed by the CBI was not accepted by the Magistrate,who instead took cognizance on the protest petition filed by the firstrespondent before us (Association of Victims of Uphaar Tragedy). Asnoted by the learned Judge in the impugned judgment on 13.06.1997, 59persons lost their lives and over 100 persons received serious injurieswhile viewing a film sitting in the balcony of Uphaar theater. Theunfortunate and tragic incident led to a criminal prosecution against 16accused. While the trial was ongoing, an application was filed underSection 319 Cr.P.C. against inter alia the present appellant. It is not indispute that no orders were immediately passed thereon. The trial againstthe 16 accused culminated in the judgment dated 23.11.2007. The learnedSessions Judge while disposing of Sessions Case No. 13/07 ordered theCBI to conduct a further investigation under Section 173(8) of the Cr.P.C.The learned Sessions Judge, no doubt, proceeded to find the accusedwho were arraigned in Sessions Case No. 13/2007 guilty of variouscharges. It is after so finding and awarding appropriate sentences asagainst them that further investigation was ordered vide the judgmentdated 23.11.2007. The CBI after investigation filed a closure report on05.03.2009. It is therein stated that no criminal act was found againstany officer other than those who were chargesheeted earlier. The firstrespondent thereupon, filed protest petition dated 13.05.2009. As alreadynoticed, rejecting the closure report but accepting the complaint in theprotest petition the Magistrate issued summons against the appellant.Cognizance has been taken for offences under Section 304A, 337, 338of the Indian Penal Code, 1860 and the provisions under Section 14 of A

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Athe Cinematograph Act, 1952 read with the Rules. It is the order issuingsummons that was the subject matter of the proceeding under Section482 of the Cr.P.C. and which has finally culminated in the impugnedorder.

(2) We have heard Shri R. Basant, learned senior counsel appearingBfor the appellant. We have also heard Shri K.M. Nataraj, learnedAdditional Solicitor General, who appears on behalf of the additionalRespondent namely Delhi Police. Besides, we have also heard Smt.Aparajita, learned senior counsel appearing on behalf of the CBI. Wefurther heard Shri K.T.S. Tulsi, learned senior counsel who appears onbehalf of the first respondent.C

(3) Shri Basant, learned senior counsel for the appellant wouldessentially address three contentions before us. First and foremost, hewould contend that the impugned order upholding the order of theMagistrate taking cognizance and issuing summons is afflicted with anincurable illegality. The illegality consists in both the Courts overlookingDthe mandatory command in Section 197 of the Cr.P.C. In other words,cognizance has been taken against the appellant for the offencescomprehended within the ambit of Section 197 Cr.P.C. without seekingand obtaining sanction as is contemplated under Section 197. TheMagistrate has proceeded to take cognizance in the teeth of theEunambiguous bar against such cognizance. He would submit that on thisshort point the impugned order must perish.

(4) He would elaborate and submit on the facts, as to whattranspired as follows. Somewhere in the year 1976, a decision was takenby the Lieutenant Governor of Delhi to reduce the price of cinema tickets.FBearing in mind that this decision would cause a financial loss to thetheater owners, it was decided to permit the theaters to be fitted withmore seats so that from the revenue earned thereunder, the loss causedby the reduction in the price of the cinema tickets could be offset. Onthe strength of the said decision which was taken in 1976, theaters inDelhi came to be equipped with more seats. The appellant took over asGDeputy Commissioner of Police on 02.02.1979. In his capacity as theDCP, he also came to be entrusted with the duties of a licensing officerunder the Cinematograph Act, 1952 and the Rules. He continued in thisofficial position till 26.05.1980. There was a change of policy broughtabout by the Lieutenant Governor. The earlier decision which was takenHin the year 1976 to increase seats came to be revoked. This was done

on 27.07.1979. The appellant, according to the learned senior counsel,issued orders to the cinema theaters directing them to remove the extraseats and to report compliance by 04.08.1979 failing which their licenseswould be suspended. The notification dated 27.07.1979 issued by theLieutenant Governor and the order passed by the appellant dated28.07.1979 came to be impugned in a batch of writ petitions in the HighCourt of Delhi. The High Court of Delhi passed an interim order dated02.08.1979 granting protection to the owners, in that, the direction toremove the extra seats was kept in abeyance but they were forbiddenfrom issuing tickets in regard to the additional seats. A joint inspectioncame to be carried out on 05.10.1979. The joint inspection recommendedthe complete removal of the additional seats. The appellant on 22.10.1979filed a counter affidavit before the High Court. Therein it is pointed outthat the appellant stoutly opposed the plea of the writ petitioners thatadditional seats may be allowed to be preserved. On 29.11.1979, it ispointed out that the High Court rejected the report of the joint inspectionteam. The High Court also did not find favour with the stand taken bythe appellant in the counter affidavit. The High Court by its judgmentdated 29.11.1979, in short, directed the appellant to look into the matterand find out whether the seats could be continued on their being asubstantial and not too rigid and inflexible compliance. Show cause noticeswas issued on 06.12.1979 to the theater owners. On 19.12.1979, jointinspection was carried out by the Executive Engineer (PWD), ChiefFire Officer and the Assistant Commissioner of Police (Licensing). Ahearing was afforded to the theater owners. This included the ownersof the UphaarTheater. This took place on 20.12.1979. It is, thereafter,that on 24.12.1979, according to the appellant, on the recommendationsof the committee, the appellant ordered the removal of 06 seats in thebalcony and 56 seats in the rest of the floor of Uphaar Theater. Thismeans a total of 62 additional seats out of the total of 100 seats whichhad been put in place on the strength of the notification issued in 1976came to be ordered to be removed. It is stated by the appellant thatannual inspections were carried out subsequently. The appellant cameto be transferred and he vacated the post on 26.05.1980. There wasanother inspection which was conducted on 09.06.1983 and 17.06.1983by a joint inspection team comprising the licensing branch of the DelhiPolice. The Municipal Corporation of Delhi and the Delhi Fire Servicesalso were part of the team. Large scale safety violations were found.The license of Uphaar theater came to be suspended on 27.06.1983.

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AFrom 1980-1997, it is pointed out that the theater in question was inspectedevery year. The suspension order passed against the theater in questionwas the subject matter of challenge in the two writ petitions and thesuspension was kept in abeyance. The theater continued to operate. It isnearly 17 years after the order dated 24.12.1979, on 13.06.1997 that afire broke out which led to the unfortunate passing away of 59 personsBbesides injury to several others. He would, therefore, point out that, atbest or at worst, what could be projected against the appellant could nottake it out of the ambit of Section 197. In other words, it could not besaid despite all that has happened that he was not exercising powerwhich flowed from his office. He did whatever he did in the dischargeCof his official functions. Section 197 immunisesa person if his act is inexercise of his official power. Whichever way one looks at it, whateverhe has done, or even if there is an excess, even if there has beennegligence, he would be entitled in law to the protection afforded bySection 197 of the Cr.P.C. The Courts have ignored this salutary principleenshrined in Section 197 of the Cr.P.C. The principle enshrined by SectionD197 of the Cr.P.C. is intended to protect public servants. It is not to beconfused with the question as to whether an offence has been committed.The law mandates that once the person against whom cognizance istaken was holding a public office within the meaning of Section 197 ofthe Cr.P.C. and the act or omission attributed to him is done in the dischargeEof his official duties or in the purported exercise of his official duties, itwould be completely illegal for the judicial officer concerned to movethe law forward against him by taking cognizance in the absence ofsanction. In the facts of the case before the Court, he would submit thatit was clear that whatever he did or did not, it arose within the dischargeof his official functions. In this regard, he drew inspiration from theFfollowing decisions:(5) In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC695, he drew our attention to the following:

“71. If the act alleged in a complaint purported to be filed againstGthe policeman is reasonably connected to discharge of someofficial duty, cognizance thereof cannot be taken unless requisitesanction of the appropriate Government is obtained underSection 197 of the Code of Criminal Procedure and/or Section170 of the Karnataka Police Act.

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AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OFUPHAAR TRAGEDY AND ANR.

74. It is well settled that an application under Section 482 of theCriminal Procedure Code is maintainable to quash proceedingswhich are ex facie bad for want of sanction, frivolous or in abuseof process of court. If, on the face of the complaint, the act allegedappears to have a reasonable relationship with official duty, wherethe criminal proceeding is apparently prompted by mala fides andinstituted with ulterior motive, power under Section 482 of theCriminal Procedure Code would have to be exercised to quashthe proceedings, to prevent abuse of process of court.”

(6) Next, he drew our attention to Indra Devi v. State ofRajasthan and Another (2021) 8 SCC 768 to the following paragraphs:

“10. We have given our thought to the submissions of the learnedcounsel for the parties. Section 197 CrPC seeks to protect anofficer from unnecessary harassment, who is accused of anoffence committed while acting or purporting to act in the dischargeof his official duties and, thus, prohibits the court from takingcognizance of such offence except with the previous sanction ofthe competent authority. Public servants have been treated as aspecial category in order to protect them from malicious orvexatious prosecution. At the same time, the shield cannot protectcorrupt officers and the provisions must be construed in such amanner as to advance the cause of honesty, justice and goodgovernance. (See Subramanian Swamy v. ManmohanSingh [Subramanian Swamy v. Manmohan Singh, (2012) 3SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .)The alleged indulgence of the officers in cheating, fabrication ofrecords or misappropriation cannot be said to be in discharge oftheir official duty. However, such sanction is necessary if theoffence alleged against the public servant is committed by him“while acting or purporting to act in the discharge of his officialduty” and in order to find out whether the alleged offence iscommitted “while acting or purporting to act in the discharge ofhis official duty”, the yardstick to be followed is to form a primafacie view whether the act of omission for which the accusedwas charged had a reasonable connection with the discharge ofhis duties. (See State of Maharashtra v. BudhikotaSubbarao [State of Maharashtra v. Budhikota Subbarao,(1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question, AB

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therefore, is whether the act committed is directly concerned withthe official duty.

11. We have to apply the aforesaid test to the facts of the presentcase. In that behalf, the factum of Respondent 2 not being namedin the FIR is not of much significance as the alleged role came tolight later on. However, what is of significance is the role assignedto him in the alleged infraction i.e. conspiring with his superiors.What emerges therefrom is that insofar as the processing of thepapers was concerned, Surendra Kumar Mathur, the ExecutiveOfficer, had put his initials to the relevant papers which was heldin discharge of his official duties. Not only that, Sandeep Mathur,who was part of the alleged transaction, was also similarly grantedprotection. The work which was assigned to Respondent 2pertained to the subject-matter of allotment, regularisation,conversion of agricultural land and fell within his domain of work.In the processing of application of Megharam, the file was initiallyput up to the Executive Officer who directed the inspection andthe inspection was carried out by the Junior Engineer and onlythereafter the Municipal Commissioner signed the file. The resultis that the superior officers, who have dealt with the file, havebeen granted protection while the clerk, who did the paper worki.e. Respondent 2, has been denied similar protection by the trialcourt even though the allegation is of really conspiring with hissuperior officers. Neither the State nor the complainant appealedagainst the protection granted under Section 197 CrPC qua thesetwo other officers.

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12. We are, thus, not able to appreciate why a similar protectionought not to be granted to Respondent 2 as was done in the caseof the other two officials by the trial court and High Court,respectively. The sanction from the competent authority wouldbe required to take cognizance and no sanction had been obtainedin respect of any of the officers. It is in view thereof that in respectof the other two officers, the proceedings were quashed and thatis what the High Court has directed in the present case as well.”

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(7) Next, the learned senior counsel for the appellant would contendthat the Court must not be oblivious to the facts of the case as well. Theappellant’s acts or omissions are traceable to the year 1979-1980. TheHincident in question took place a good 17 years thereafter. Annual inspections took place. Other officers have had powers of oversight andexercised it from time to time. Several theaters apart from Uphaar theaterhad extra seats. It is only in this unfortunate case that the occurring ofthe fire in 1997 has led to the entire proceedings. He would submit thatfollowing the principle in State of Haryana and Others v. Bhajan Laland Others 1992 Supp (1) SCC 335, it is a fit case where no criminalitycan be attached to the alleged acts and omissions.

(8) Thirdly, he would also submit that, as noticed, in this narrationabove, though an application was filed to take action under Section 319of the Cr.P.C. pending the trial against the original accused, no orderswere passed thereon. It received final attention of the Court only whenthe matter was finally disposed of by way of the judgment convicting theoriginal accused.

(9) The Court, he would point out, departed from the requirementof the law by directing investigation under Section 173(8) after the trialwas concluded and judgment was pronounced. This is according to him,not permissible in law. He drew our attention to Sukhpal Singh Khairav. State of Punjab (2023) 1 SCC 289:

“39.(I) Whether the trial court has the power under Section319CrPC for summoning additional accused when the trial withrespect to other co-accused has ended and the judgment ofconviction rendered on the same date before pronouncing thesummoning order?

The power under Section 319 CrPC is to be invoked and exercisedbefore the pronouncement of the order of sentence where thereis a judgment of conviction of the accused. In the case of acquittal,the power should be exercised before the order of acquittal ispronounced. Hence, the summoning order has to precede theconclusion of trial by imposition of sentence in the case ofconviction. If the order is passed on the same day, it will have tobe examined on the facts and circumstances of each case and ifsuch summoning order is passed either after the order of acquittalor imposing sentence in the case of conviction, the same will notbe sustainable.”

(10) He also presses for our consideration the aspect that theappellant is a highly decorated officer with an impeccable track record.

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[2023] 6 S.C.R.

A(11) Shri K. M. Nataraj, learned Additional Solicitor General, whoappears for the additional respondent-Delhi Police would submit that theDelhi Police is the authority which sanctions prosecution under Section197 of the Cr.P.C.

(12) Shri K. M. Nataraj, would submit that it is indispensable forBtaking cognizance against a public servant within the meaning of Section197 of the Cr.P.C., that the sanctioning authority grants sanction. Hewould in this regard appear to us to support the contention taken by theappellant. He also seeks fortification from the following case law:

(13) He drew our attention to Abdul Wahab Ansari v. State ofCBihar, (2000) 8 SCC 500 wherein this Court held:

7. Previous sanction of the competent authority being aprecondition for the court in taking cognizance of the offence ifthe offence alleged to have been committed by the accused canbe said to be an act in discharge of his official duty, the questionDtouches the jurisdiction of the Magistrate in the matter of takingcognizance and, therefore, there is no requirement that an accusedshould wait for taking such plea till the charges are framed.In Suresh Kumar Bhikamchand Jain v. Pandey AjayBhushan [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] a similarcontention had been advanced by Mr Sibal, the learned SeniorECounsel appearing for the appellants in that case. In that case,the High Court had held on the application of the accused that theprovisions of Section 197 get attracted. Rejecting the contention,this Court had observed: (SCC pp. 217-18, para 23)

“-The legislative mandate engrafted in subsection (1) of SectionF197 debarring a court from taking cognizance of an offenceexcept with a previous sanction of the Government concernedin a case where the acts complained of are alleged to havebeen committed by a public servant in discharge of his officialduty or purporting to be in the discharge of his official duty andGsuch public servant is not removable from his office save by orwith the sanction of the Government touches the jurisdictionof the court itself. It is a prohibition imposed by the statutefrom taking cognizance, the accused after appearing beforethe court on process being issued, by an application indicatingthat Section 197(1) is attracted merely assists the court to H

rectify its error where jurisdiction has been exercised which itdoes not possess. In such a case there should not be any barfor the accused producing the relevant documents and materialswhich will be ipso facto admissible, for adjudication of thequestion as to whether in fact Section 197 has any applicationin the case in hand. It is no longer in dispute and has beenindicated by this Court in several cases that the question ofsanction can be considered at any stage of the proceedings.”

The Court had further observed: (SCC pp. 218-19, para 24)

“The question of applicability of Section 197 of the Code andthe consequential ouster of jurisdiction of the court to takecognizance without a valid sanction is genetically different fromthe plea of the accused that the averments in the complaint donot make out an offence and as such the order of cognizanceand/or the criminal proceedings be quashed. In the aforesaidpremises we are of the considered opinion that an accused isnot debarred from producing the relevant documentarymaterials which can be legally looked into without any formalproof, in support of the stand that the acts complained of werecommitted in exercise of his jurisdiction or purported jurisdictionas a public servant in discharge of his official duty therebyrequiring sanction of the appropriate authority.”

9. Coming to the second question, it is now well settled by theConstitution Bench decision of this Courtin MatajogDobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2SCR 925] that in the matter of grant of sanction under Section197 of the Code of Criminal Procedure the offence alleged tohave been committed by the accused must have something to do,or must be related in some manner, with the discharge of officialduty. In other words, there must be a reasonable connectionbetween the act and the discharge of official duty; the act mustbear such relation to the duty that the accused could lay areasonable claim, but not a pretended or fanciful claim, that he didit in the course of the performance of his duty. In the said case ithad been further held that where a power is conferred or a dutyimposed by statute or otherwise, and there is nothing said expresslyinhibiting the exercise of the power or the performance of theduty by any limitations or restrictions, it is reasonable to hold that A

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it carries with it the power of doing all such acts or employingsuch means as are reasonably necessary for such execution,because it is a rule that when the law commands a thing to bedone, it authorises the performance of whatever may be necessaryfor executing its command. This decision was followed by thisCourt in Suresh Kumar Bhikamchand Jain case [(1998) 1 SCC205 : 1998 SCC (Cri) 1] and in a recent judgment of this Court inthe case of Gauri Shankar Prasad v. State of Bihar [(2000) 5SCC 15 : 2000 SCC (Cri) 872] . The aforesaid case has full forceeven to the facts of the present case inasmuch as in the said case,the Court had observed: (SCC p. 21, para 14)

“[I]t is manifest that the appellant was present at the place ofoccurrence in his official capacity as Sub-Divisional Magistratefor the purpose of removal of encroachment from governmentland and in exercise of such duty, he is alleged to have committedthe acts which form the gravamen of the allegations containedin the complaint lodged by the respondent. In suchcircumstances, it cannot but be held that the acts complainedof by the respondent against the appellant have a reasonablenexus with the official duty of the appellant. It follows, therefore,that the appellant is entitled to the immunity from criminalproceedings without sanction provided under Section 197CrPC.”

It is not necessary for us to multiply authorities on this point andbearing in mind the ratio of the aforesaid cases and applying thesame to the facts of the present case as indicated in the complaintitself, we have no hesitation to come to the conclusion that theappellant had been directed by the Sub-Divisional Magistrate tobe present with police force and remove the encroachment inquestion and in course of discharge of his duty to control the mob,when he had directed for opening of fire, it must be held that theorder of opening of fire was in exercise of the power conferredupon him and the duty imposed upon him under the orders of theMagistrate and in that view of the matter the provisions of Section197(1) applies to the facts of the present case. Admittedly, therebeing no sanction, the cognizance taken by the Magistrate is badin law and unless the same is quashed qua the appellant, it will bean abuse of the process of Court. Accordingly, we allow this appeal AMOD KUMAR KANTH v. ASSOCIATION OF VICTIM OFUPHAAR TRAGEDY AND ANR.

and quash the criminal proceeding, so far as the appellant isconcerned.

(14) He also brought to the notice of the Court, the decision inSurinderjit Singh Mand v. State of Punjab, (2016) 8 SCC 722:

25. In continuation of the submissions noticed in the foregoingparagraphs, it was asserted by the learned counsel representingthe respondents that the prosecution contemplated under Section197 of the Code and the action of the Court in taking cognizancepertain to actions initiated on the basis of complaints which disclosethe commission of an offence, or on a police report of such facts,or upon receipt of information from a person other than the policeofficer that such offence had been committed. It was assertedthat the above action of taking cognizance by a court is based onalleged “facts” and not “on evidence” recorded by a court. Theabove distinction was drawn by referring to Section 190 of theCode which contemplates initiation of action on the basis of factsalleged against an accused, as against, Section 319 of the Codewhereunder action is triggered against the person concerned onlyif it appears from the evidence recorded during the trial that thesaid person was involved in the commission of an offence. Whilemaking a reference to Section 319 of the Code, it was submittedon behalf of the respondents that cognizance taken under Section319 of the Code was by the Court itself and therefore, the samehaving been based on “evidence”, as also, the satisfaction of theCourt itself that such person needed to be tried together with the“other accused”, it seemed unreasonable that sanction postulatedunder Section 197 of the Code should still be required. It waspointed out that the protection contemplated under Section 197 ofthe Code was not a prerequisite necessity when cognizance wasbased on the evaluation of “evidence” by a court itself. The learnedcounsel emphasised that when a court itself had determined thatcognizance was required to be taken, based on evidence whichhad been recorded by the same court, it would be underminingthe authority of the court concerned if its judicial determinationwas considered subservient to the decision taken by the authoritiescontemplated under Section 197 of the Code. Based on thesubmissions noticed above, it was the vehement contention of thelearned counsel for the respondents that the mandate of Section A

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197 would not extend to cases where cognizance had been takenunder Section 319 of the Code.

(15) He further drew our attention to the decision in DevinderSingh v. State of Punjab, (2016) 12 SCC 87

“39. The principles emerging from the aforesaid decisions aresummarised hereunder:

39.1. Protection of sanction is an assurance to an honest andsincere officer to perform his duty honestly and to the best of hisability to further public duty. However, authority cannot becamouflaged to commit crime.

39.2. Once act or omission has been found to have been committedby public servant in discharging his duty it must be given liberaland wide construction so far its official nature is concerned. Publicservant is not entitled to indulge in criminal activities. To that extentSection 197 CrPC has to be construed narrowly and in a restrictedmanner.

39.3. Even in facts of a case when public servant has exceededin his duty, if there is reasonable connection it will not deprive himof protection under Section 197 CrPC. There cannot be a universalrule to determine whether there is reasonable nexus between theact done and official duty nor is it possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with orrelated to performance of official duties, sanction would benecessary under Section 197 CrPC, but such relation to duty shouldnot be pretended or fanciful claim. The offence must be directlyand reasonably connected with official duty to require sanction. Itis no part of official duty to commit offence. In case offence wasincomplete without proving, the official act, ordinarily the provisionsof Section 197 CrPC would apply.

39.5. In case sanction is necessary, it has to be decided bycompetent authority and sanction has to be issued on the basis ofsound objective assessment. The court is not to be a sanctioningauthority.

39.6. Ordinarily, question of sanction should be dealt with at thestage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a laterstage, finding to that effect is permissible and such a plea can betaken first time before the appellate court. It may arise at inceptionitself. There is no requirement that the accused must wait tillcharges are framed.

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

39.8. 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 determinedfrom stage to stage and material brought on record dependingupon facts of each case. Question of sanction can be consideredat any stage of the proceedings. Necessity for sanction may revealitself in the course of the progress of the case and it would beopen to the accused to place material during the course of trial forshowing what his duty was. The accused has the right to leadevidence in support of his case on merits.

39.9. In some cases it may not be possible to decide the questioneffectively and finally without giving opportunity to the defence toadduce evidence. Question of good faith or bad faith may bedecided on conclusion of trial.

(16) Smt. Aparajita, learned senior counsel appearing on behalfof the respondent-CBI though finding herself in an unenviable positionfor the reason that her client CBI has, after investigation found nothingagainst the appellant, she stated that she would have to redeem theposition, in the interest of justice. She canvassed for the position that thecontention of the appellant that there was no sanction would not advancehis case. She would submit that the trial Court, the High Court in appealand what is more, this Court have found against the licensing authoritieswhich includes the appellant. She took us through the judgment of thisCourt reported in Sushil Ansalv. State through CBI 2014(6) SCC 173.They read as follows:

“134. That apart, a seating plan, which was in breach of thestatutory provisions and compromised the safety requirementsprescribed under the DCR, 1953, could hardly support a belief in A

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good faith that exhibition of films with such a plan was legallyjustified. That is so especially when the repeal of the Notificationdated 30-9-1976 by which Uphaar was permitted 100 more seatswas followed by a demand for removal of the additional seats.Instead of doing so the occupiers/owners assailed that demand inIsherdas Sahni and Bros. v. Delhi Admn. [Isherdas Sahni andBros. v. Delhi Admn., AIR 1980 Del 147] before the High Courtof Delhi in which the High Court directed the authorities to havea fresh look from the standpoint of substantial compliance withthe provisions of the Cinematograph Act. The High Court observed : (AIR p. 152, paras 11-12)

“11. Proposition 3 : It has been already made clear abovethat the relaxation was granted after considering the publichealth and the fire hazard aspects. It is also clear that the veryfact that the relaxation could not be granted after bearing thesemain considerations in mind would show that there was somerule for the extension of the sitting accommodation in thesetheatres within the Rules, though the provision of some of theadditional seats may perhaps have been to some extent contraryto some of the Rules. It is not necessary for us to speculate onthis question. It is enough to say that the result of thecancellation of the relaxation is simply the withdrawal of therelaxation. It does not automatically mean that all the additionalseats which were installed in the cinema theatres were contraryto the Rules and must, therefore, be dismantled without anyconsideration as to how many of these seats were in consonancewith the Rules and how many of them were contrary to theRules.

12. Our finding on Proposition 3 is, therefore, that theAdministration will apply their mind to the additional seats witha view to determine which of them have contravened whichrules and to what extent. They will bear in mind that thecompliance with the Rules is to be substantial and not rigid andinflexible.”

If while carrying out the above directive, the authorities concernedturned a blind eye to the fundamental requirement of the Rules byignoring the closure of the right side exit and gangway prescribedas an essential requirement under the DCR, 1953, they acted in breach of the rules and in the process endangered the safety ofthe patrons.

135. We shall presently turn to the question whether the repeal ofthe notification had the effect of obliging the occupier/licensee ofthe Cinema to remove the seats and restore the gangways andexits as originally sanctioned. But we cannot ignore the fact thatthe occupiers/licensees of the Cinema, had opposed the removalof the additional seats even when the respondents in the writpetition had expressed concerns about the safety of the patrons ifthe additional seats were not removed which removal it is evidentwould have by itself resulted in the restoration of the right sidegangway. So also the authorities ought to have insisted on therestoration of the right side exit by removal of the eight-seaterbox which was allowed in the year 1978, ostensibly because withthe right side gangway getting closed by additional seats occupyingthat space the authorities considered the continuance ofthe rightside exit to be of no practical use. Withdrawal of relaxation in theyear 1979 ought to have resulted in the reversal of not only thefixing of additional seats but all subsequent decisions that proceededon the basis thereof. It is difficult to appreciate how even applyingthe test of substantial compliance the authorities could considerthe theatre to be compliant with the DCR, 1953 especially insofar as the same related to an important aspect like gangways and”exits so very vital for speedy dispersal from the cinema hall.

(17) She would also seek support from the reasoning which hasbeen employed by both the trial Court and the High Court viz., the factthat here is an officer who stoutly defended his action taken under orderdated 28.07.1979 in the light of the notification dated 27.07.1979 revokingthe earlier decision to grant extra seats which was not followed to itslogical culmination when it came to the removal of the extra seats. Inother words, here is a person who prevaricated without justification,what is more, contrary to the statutory rules governing the safety featureswhich must be indispensably maintained and fostered.

(18) She also sought to draw support from the recent judgment ofthis Court viz., ShantabenBhurabhaiBhuriyav. Anand AthabhaiChaudhari and Others 2021 SCC Online SC 974. She would point outon the strength of the said judgment that even if this Court finds thatsans sanction, cognizance became vulnerable, it would still justify this A

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ACourt directing grant of sanction be considered and given. The tragedywhich occurred after 17 years could have been averted. The causacausans was the refusal to remove the extra seats which means theimmediate cause for the fire and the deaths caused by the fire couldhave been avoided.

B(19) Shri KTS Tulsi, learned senior counsel appearing on behalfof the first respondent, would submit that cognizance is taken of theoffence and not the offender. No wrong has been done by the Magistratein taking cognizance in a case as grave as the present case. He pointsout that the proportions of the tragedy that overtook the lives of as manyas 59 persons should not be lost sight of by the Court. He reiterates theCargument of Smt. Aparajita that the matter has engaged the attention ofthree Courts which includes this Court and the blame of officers of thelicensing bodies which includes the appellant and that the same cannotbe overlooked.

(20) Learned senior counsel would submit that a perusal of theDpleadings of the appellant would also reveal conduct unbecoming on thepart of an applicant before the High Court. It is the requirement of anapplicant who comes to Court to conduct himself fairly. He elaboratesby pointing out that at one juncture, appellant had a case that he hadpersonally inspected the theater. It is contrasted with his pleading whereinEhe took the stand that he has not personally inspected the theaterswhereas, actually, inspection was done by the members of the inspectingteam. In other words, here is a person, who even though is wearing therobes of a public servant, he cannot claim immunity under Section 197of the Cr.P.C. by reason of his conduct. Learned senior counsel wouldsubmit that the change from the strict posture that he adopted when heFfiled the counter affidavit is inexplicable and it invited cognizance beinglegitimately taken. No case has been made by the appellant, in otherwords, for interfering with the impugned order.

ANALYSIS

G(21) There is no dispute that the appellant was a public servant.The period in question when he had a connection with the theater inquestion can be seen as 1979-1980. We have already indicatedindisputably the train of events which unfolded and the genesis of whichis the issuance of the notification in 1976 by the Lieutenant Governor.The number of seats were allowed to be increased. The appellant hadHnothing to do with that. Based on the decision, the seats were increased.

Again the appellant was nowhere near the scene at the time. The appellanttook over on 02.02.1979. On 27.07.1979, a notification came to be issuedrevoking the earlier notification issued on 13.09.1976. Acting strictly inobedience to the said notification revoking the earlier notification, theappellant did issue an order dated 28.07.1979. The subsequent notificationrevoking the earlier notification as also the action of the appellant cameto be impugned before the High Court of Delhi. An interim order followed.The appellant did defend the action as was expected of him as an officialrespondent. It is thereafter that the High Court proceeded to render itsjudgment. The High Court inter alia held as follows:

(22) The High Court found that the relaxations granted under theproviso to Rule 3(3) were capable of being modified or revoked and inthe circumstances, the cancellations of the relaxations were justifiedand legal.

(23) Thereafter the Court, inter alia, went on to hold as follows:

“Proposition No. 3:

It has been already made clear above that the relaxation wasgranted after considering the public health and the fire hazardaspects. It is also clear that the very fact that the relaxation couldnot be granted after bearing these main considerations in mindwould show that there was some rule for the extension of thesitting accommodation in these theaters within the Rules, thoughthe provision of some of the additional seats may perhaps havebeen to some extent contrary to some of the Rules. It is notnecessary for us to speculate on this question. It is enough to saythat the result of the cancellation of the relaxation is simply thewithdrawal of the relaxation. It does not automatically mean thatall the additional seats which installed in the cinema theatres werecontrary to the Rules and must, therefore, be dismantled withoutany consideration as to how many of these seats were inconsonance, with the Rules and how many of them were contraryto the Rules.

Our finding on proposition No. 3, therefore, that the Administrationwill apply their mind to the additional seats with a view to determinewhich of them have contravened which rules and to what extent.They will bear in mind that the compliance with the Rules is to besubstantial and not rigid and inflexible.

A

B

C

D

E

F

G

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A

With these guidelines furnished by the Act itself, they will determinewhich of the additional seats infringe upon the Rules and in respectof only such seats they will have the power to order removal ofsuch seats.”

“Proposition 4

B

It is not disputed that some of the cinema theatres had existedprior to the promulgation of 1953 rules. Advisedly, Rule 3(3) makesa distinction between these theatres and other theatres which havecome into existence after the promulgation of these Rules. It wouldappear from the opening words of Rule 3(3) that licences may beCgranted or reviewed in respect of preexisting theatres which werealready licensed prior to 1953 for buildings exhibition without theircompliance with Rule 3(2). This is the effect of the words“Notwithstanding anything in the preceding sub-rule” with whichRule 3(3) begins. The preceding sub-rule is Rule 3(2) which insiststhat the requirements set forth in the First Schedule of the RulesDhave to be fulfilled before a licence can be granted to a buildingwhich is permanently equipped for cinematograph exhibition. Thisdistinction will surely be bore in mind by the Administration indealing with these two kinds of buildings. This will also be inaccordance with the requirement already set out in sectionsE12(1)(a) and 17 that the compliance with the Rules has to besubstantial and not rigid or inflexible.”

(24) The Court found that affording an opportunity of hearingwould have been a mere formality but the Court further notes that theappellant would be well advised in giving a hearing to the writ petitionersFbefore the cancellation. This would be necessary, it was found, becausethe question, as to, how many of the additional seats substantially compliedwith the Rules and how many contravened the Rules as at present hasnot been determined and has to be determined by the Administratorlater.

“The main order has been passed during the currency of thelicenses. But this is inevitable. Any any rate, in the light of theobservations made above, the dismantling of the seats on theground that they do no substantially comply with the Rules will bedone in future after the Administration apply their mind to thequestion.

G

H

It cannot be expected as to exactly when this would occur. It isnot, therefore, possible to ensure that any change in the sittingaccommodation would be enforced by the Administration only atthe end of any particular licensing period.

For the above reasons, the writ petitions are disposed of in thelight of the findings given above and in the light of the observationsas to the existing additional seats and as to the changes whichmay have to be made to them in future after the Administrationexamine the questions on merits and take steps. No costs.

Pending the determination by the Administration as to thesubstantial compliance with the Rules by the additional seats orsuch of them as may be singled out by the Administration in eachof the buildings of the licensees, the interim order dated 02.08.1979will continue in force subject to the limitation that if no determinationis made in respect of each building within one month by theAdministration, then those licenses in respect of whose buildingsthe determination is not made shall be free to sell tickets for theadditional seats in their building.”

(25) It is, thereafter, that, on 06.12.1979, the appellant in purportedcompliance of the High Court order proceeded to issue a show causenotice to the licencee of Uphaar Cinema. A committee was indeedconstituted as noticed by us earlier. Finally on 24.12.1979 purporting toact on the basis of the recommendations of the Committee, the appellantordered the removal of additional six seats from the balcony. 56 seatswere directed to be removed from the other part of the theater. A totalof 62 additional seats came to be ordered to be removed. As we havenoticed, the unfortunate fire took place nearly 17 years thereafter.

(26) Both the Courts have drawn considerable support from thestand taken by the appellant in his counter affidavit. According to theappellant, the stand taken was in keeping with the notification whichwas issued revoking the earlier notification and also his notice. It is thefurther case of the appellant that the Court must bear in mind thatwhatever be his pleadings, the matter came to be considered by theHigh Court and the judgment followed and the appellant was duly boundto act in conformity with it. In particular, the contention is, since whatwas contemplated was should there be substantial compliance, it impliedthat additional seats could be continued.

A

B

C

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E

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A

A(27) It may be true that with the benefit of hindsight, following theunfortunate tragedy which took place nearly 17 years, thereafter, theloopholes fatal as it turned out to be, the action of the appellant and themembers of the Committee had been laid bare. We say this, for thereason that, as pointed out by the learned senior counsel appearing onbehalf of the CBI, this aspect has received articulation at the hands ofBthis Court in the judgment reported in Sushil Ansal[1]. In other words,there may have been, as found by this Court also, lapses. We are, in thiscase, confined to grapple with the contention of the appellant based onthe impact of there being no sanction within the meaning of Section 197of the Cr.P.C. When we consider the question of cognizance being takenCin the absence of sanction and thereby Section 197 of the Cr.P.C. beingflouted it is not to be conflated and thereby confused with the questionas to whether an offence has been committed. The salutary purposebehind Section 197 of the Cr.P.C. is protection being accorded to publicservants.

D(28) The State functions through its officers. Functions of theState may be sovereign or not sovereign. But each of the functionsperformed by every public servant is intended to achieve public good. Itmay come with discretion. The exercise of the power cannot be divorcedfrom the context in which and the time at which the power is exercisedor if it is a case of an omission, when the omission takes place.E

D

(29) The most important question which must be posed andanswered by the Court when dealing with the argument that sanction isnot forthcoming is whether the officer was acting in the exercise of hisofficial duties. It goes further. Even an officer who acts in the purportedexercise of his official power is given the protection under Section 197Fof the Cr.P.C. This is for good reason that the officer when he exercisesthe power can go about exercising the same fearlessly no doubt withbona fides as public functionaries can act only bona fide. In fact, therequirement of the action being bona fide is not expressly stated inSection 197 of the Cr.P.C., though it is found in many other statutesGprotecting public servants from action, civil and criminal against them.

(30) Once we bear this cardinal principle in mind and judge theaction or omission on the part of the appellant, we would think that itcannot be found that, having regard to the admitted facts, the appellant H

1 Sushil Ansal v. State through CBI 2014(6) SCC 173

was not acting in the discharge of his official functions. All that happened,under his oversight starting with his notice which he issued on 28.07.1979,to the counter affidavit which he filed in the writ petitions, the subsequentshow cause notice which he issued, and thereafter, finally on 24.12.1979,wherein he directed the removal of a total of 62 additional seats, allthese acts were done in the exercise of his official duties. As we havealready noted, even if it were to be treated as done in the purportedexercise of his official duties, he would still stand protected fromprosecution without sanction. This must not be confused with the questionas to whether the appellant had committed any offence with which heappears to have been indicted by the Magistrate issuing summons andthe High Court upholding it. The fact that the appellant had taken acertain stand in the counter affidavit would not make his subsequent actof acting upon the recommendations of a committee, an act which is notin the discharge of his official functions. The findings of this Court whichwe have referred to in the decision (supra) would not mean that, if theyare offences committed by the persons including the appellant, they wouldnot require sanction within the meaning of Section 197 of the Cr.P.C.The subtle and nuanced distinction between the question as to whetherthe offence has been committed and if an offence has been committed,whether a sanction is required for prosecuting a public servant who isalleged to have committed the same, must not be lost sight of. The learnedMagistrate and the High Court would appear to have overlooked thisdistinction. We notice that, in fact, apparently being conscious of thelegal requirement of sanction, the first respondent had sought sanctionfrom the appropriate Government and a writ petition was also filed viz.,6238/2011 for directions to take appropriate steps in the matter. It isfurther noticed by us that on account of the pendency of the petitionunder Section 482 that no action was taken on the same.

(31) One ground which has found favour with the High Courtagainst the appellant is that the appellant, according to the High Court,could raise the issue before the Magistrate.

Here we may notice one aspect. When the question arises as towhether an act or omission which constitutes an offence in law hasbeen done in the discharge of official functions by a public servant andthe matter is under a mist and it is not clear whether the act is traceableto the discharge of his official functions, the Court may in a given casetarry and allow the proceedings to go on. Materials will be placed before AB

CD

EF

G

H

Athe Court which will make the position clear and a delayed decision onthe question may be justified. However, in a case where the act or theomission is indisputably traceable to the discharge of the official duty bythe public servant, then for the Court to not accept the objection againstcognizance being taken would clearly defeat the salutary purpose whichunderlies Section 197 of the Cr.P.C. It all depends on the facts andBtherefore, would have to be decided on a case to case basis.

(32) We notice that Shri R. Basant, learned senior counsel, drewour attention to the judgment of this Court in MCD v. Uphaar TragedyVictims Assn. (2011) 14 SCC 481 to contend that this Court hasexonerated the licensing authority of liablity:C

“54. It is evident from the decisions of this Court as also thedecisions of the English and Canadian Courts that it is not properto award damages against public authorities merely because therehas been some inaction in the performance of their statutory dutiesor because the action taken by them is ultimately found to bewithout authority of law. In regard to performance of statutoryfunctions and duties, the courts will not award damages unlessthere is malice or conscious abuse. The cases where damageshave been awarded for direct negligence on the part of the statutoryauthority or cases involving doctrine of strict liability cannot berelied upon in this case to fasten liability against MCD or thelicensing authority. The position of the DVB is different, as directnegligence on its part was established and it was a proximatecause for the injuries to and death of victims. It can be said thatinsofar as the licensee and the DVB are concerned, there wascontributory negligence.

D

E

F

55. The position of licensing authority and MCD is different. Theywere not the owners of the cinema theatre. The cause of the firewas not attributable to them or anything done by them. Theiractions/omissions were not the proximate cause of the deathsand injuries. The licensing authority and MCD were merelydischarging their statutory functions (that is granting licence inthe case of the licensing authority and submitting an inspectionreport or issuing an NOC by MCD). In such circumstances, merelyon the ground that the licensing authority and MCD could haveperformed their duties better or more efficiently, they cannot bemade liable to pay compensation to the victims of the tragedy.

G

H

There is no close or direct proximity to the acts of the licensingauthority and MCD on the one hand and the fire accident and thedeath/injuries of the victims. But there was close and directproximity between the acts of the licensee and the DVB on theone hand and the fire accident resultant deaths/injuries of victims.In view of the well-settled principles in regard to public law liability,in regard to discharge of statutory duties by the public authoritieswhich do not involve mala fides or abuse, the High Court committeda serious error in making the licensing authority and MCD liableto pay compensation to the victims jointly and severally with thelicensee and the DVB.

56. We make it clear that the exoneration is only in regard tomonetary liability to the victims. We do not disagree with theobservations of the High Court that the performance of duties bythe licensing authority and by MCD (in its limited sphere) wasmechanical, casual and lackadaisical. There is a tendency on thepart of these authorities to deal with the files coming before themas requiring mere paperwork to dispose it. They fail to recognisethe object of the law or rules, the reason why they are required todo certain acts and the consequences of non-application of mindor mechanical disposal of the application/requests which come tothem. As rightly observed by Naresh Kumar’s Report, there is alack of safety culture and lack of the will to improve performance.The compliance with the procedure and rules is mechanical. Weaffirm the observations of the High Court in regard to theshortcoming in the performance of their functions and duties bythe licensing authority and to a limited extent by MCD. But thatdoes not lead to monetary liability.”

(33) He would contend on the strength of the same that this Courthas found that the appellant was not liable to compensate. This Courtwas dealing with monetary liability.

(34) Though the appellant’s final decision to take action as he didby proceedings dated 24.12.1979, stood in contrast with the contents ofhis counter affidavit, it by itself may not obviate the need for sanction,even proceeding on the basis that the appellant could be accused of theoffences which view found favour with the Magistrate.

The upshot of the above discussion is that we find that theMagistrate erred in the facts of this case in taking cognizance against AB

C

D

E

F

G

H

Athe appellant contrary to the mandate of Section 197 of the Cr.P.C. Onthat short ground alone, the appellant succeeds. The appeal is allowed.The impugned order will stand set aside. The proceedings challenged inSection 482 will stand quashed. We, however, make it clear that this willnot stand in the way of the competent authority taking a decision in the matter and/ or granting sanction for prosecuting the appellant inBaccordance with law. In view of the fact that the appellant succeeds onthe aspect of there being no sanction, we do not deem it necessary topronounce on the two other contentions which have been pressed beforeus by the appellant.

C

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Appeal allowed.

D

E

F

G

H