Ansal Theatres And Clubotels P. Ltd. vs State Through Cbi

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1359 OF 2017

AMOD KUMAR KANTH Appellant(s)

VERSUS

ASSOCIATION OF VICTIM OF UPHAAR TRAGEDY AND ANR. Respondent(s)

J U D G M E N T

(1) By the impugned order, the High Court has dismissed the

petition filed by the appellant under Section 482 of the Code

of Criminal Procedure, 1973 (hereinafter referred to as

‘Cr.P.C.’ for brevity). The petition under Section 482 Cr.P.C.

was filed against the order passed by the Additional Sessions

Judge Metropolitan Magistrate rejecting the closure report

filed by the Central Bureau of Investigation (hereinafter

referred 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 first respondent before us

(Association of Victims of Uphaar Tragedy). As noted by the Signature Not Verified

learned Judge in the impugned judgment on 13.06.1997, 59 Digitally signed by Nidhi Ahuja Date: 2023.05.03 12:54:40 IST Reason:

persons lost their lives and over 100 persons received serious

1 injuries while viewing a film sitting in the balcony of Uphaar

theater. The unfortunate and tragic incident led to a criminal

prosecution against 16 accused. While the trial was ongoing,

an application was filed under Section 319 Cr.P.C. against

inter alia the present appellant. It is not in dispute that

no orders were immediately passed thereon. The trial against

the 16 accused culminated in the judgment dated 23.11.2007.

The learned Sessions Judge while disposing of Sessions Case

No. 13/07 ordered the CBI to conduct a further investigation

under Section 173(8) of the Cr.P.C. The learned Sessions

Judge, no doubt, proceeded to find the accused who were

arraigned in Sessions Case No. 13/2007 guilty of various

charges. It is after so finding and awarding appropriate

sentences as against them that further investigation was

ordered vide the judgment dated 23.11.2007. The CBI after

investigation filed a closure report on 05.03.2009. It is

therein stated that no criminal act was found against any

officer other than those who were chargesheeted earlier. The

first respondent thereupon, filed protest petition dated

13.05.2009. As already noticed, rejecting the closure report

but accepting the complaint in the protest petition the

Magistrate issued summons against the appellant. Cognizance

has been taken for offences under Section 304A, 337, 338 of

the Indian Penal Code, 1860 and the provisions under Section

14 of the Cinematograph Act, 1952 read with the Rules. It is

the order issuing summons that was the subject matter of the

proceeding under Section 482 of the Cr.P.C. and which has

2 finally culminated in the impugned order.

(2) We have heard Shri R. Basant, learned senior counsel

appearing for the appellant. We have also heard Shri K.M.

Nataraj, learned Additional Solicitor General, who appears on

behalf of the additional Respondent namely Delhi Police.

Besides, we have also heard Smt. Aparajita, learned senior

counsel appearing on behalf of the CBI. We further heard Shri

K.T.S. Tulsi, learned senior counsel who appears on behalf of

the first respondent.

(3) Shri Basant, learned senior counsel for the appellant

would essentially address three contentions before us. First

and foremost, he would contend that the impugned order

upholding the order of the Magistrate taking cognizance and

issuing summons is afflicted with an incurable illegality.

The illegality consists in both the Courts overlooking the

mandatory command in Section 197 of the Cr.P.C. In other

words, cognizance has been taken against the appellant for the

offences comprehended within the ambit of Section 197 Cr.P.C.

without seeking and obtaining sanction as is contemplated

under Section 197. The Magistrate has proceeded to take

cognizance in the teeth of the unambiguous bar against such

cognizance. He would submit that on this short point the

impugned order must perish.

(4) He would elaborate and submit on the facts, as to what

transpired as follows. Somewhere in the year 1976, a decision

was taken by the Lieutenant Governor of Delhi to reduce the

3 price of cinema tickets. Bearing in mind that this decision

would cause a financial loss to the theater owners, it was

decided to permit the theaters to be fitted with more seats

so that from the revenue earned thereunder, the loss caused

by the reduction in the price of the cinema tickets could be

offset. On the strength of the said decision which was taken

in 1976, theaters in Delhi came to be equipped with more seats.

The appellant took over as Deputy Commissioner of Police on

02.02.1979. In his capacity as the DCP, he also came to be

entrusted with the duties of a licensing officer under the

Cinematograph Act, 1952 and the Rules. He continued in this

official position till 26.05.1980. There was a change of

policy brought about by the Lieutenant Governor. The earlier

decision which was taken in 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

extra seats and to report compliance by 04.08.1979 failing

which their licenses would be suspended. The notification

dated 27.07.1979 issued by the Lieutenant Governor and the

order passed by the appellant dated 28.07.1979 came to be

impugned in a batch of writ petitions in the High Court of

Delhi. The High Court of Delhi passed an interim order dated

02.08.1979 granting protection to the owners, in that, the

direction to remove the extra seats was kept in abeyance but

they were forbidden from issuing tickets in regard to the

additional seats. A joint inspection came to be carried out

4 on 05.10.1979. The joint inspection recommended the complete

removal of the additional seats. The appellant on 22.10.1979

filed a counter affidavit before the High Court. Therein it

is pointed out that the appellant stoutly opposed the plea of

the writ petitioners that additional seats may be allowed to

be preserved. On 29.11.1979, it is pointed out that the High

Court rejected the report of the joint inspection team. The

High Court also did not find favour with the stand taken by

the appellant in the counter affidavit. The High Court by its

judgment dated 29.11.1979, in short, directed the appellant

to look into the matter and find out whether the seats could

be continued on their being a substantial and not too rigid

and inflexible compliance. Show cause notices was issued on

06.12.1979 to the theater owners. On 19.12.1979, joint

inspection was carried out by the Executive Engineer (PWD),

Chief Fire Officer and the Assistant Commissioner of Police

(Licensing). A hearing was afforded to the theater owners.

This included the owners of the Uphaar Theater. This took

place on 20.12.1979. It is, thereafter, that on 24.12.1979,

according to the appellant, on the recommendations of the

committee, the appellant ordered the removal of 06 seats in

the balcony and 56 seats in the rest of the floor of Uphaar

Theater. This means a total of 62 additional seats out of the

total of 100 seats which had been put in place on the strength

of the notification issued in 1976 came to be ordered to be

removed. It is stated by the appellant that annual inspections

were carried out subsequently. The appellant came to be

5 transferred and he vacated the post on 26.05.1980. There was

another inspection which was conducted on 09.06.1983 and

17.06.1983 by a joint inspection team comprising the licensing

branch of the Delhi Police. The Municipal Corporation of

Delhi and the Delhi Fire Services also were part of the team.

Large scale safety violations were found. The license of

Uphaar theater came to be suspended on 27.06.1983. From 1980-

1997, it is pointed out that the theater in question was

inspected every year. The suspension order passed against the

theater in question was the subject matter of challenge in the

two writ petitions and the suspension was kept in abeyance.

The theater continued to operate. It is nearly 17 years after

the order dated 24.12.1979, on 13.06.1997 that a fire broke

out which led to the unfortunate passing away of 59 persons

besides injury to several others. He would, therefore, point

out that, at best or at worst, what could be projected against

the appellant could not take it out of the ambit of Section

197. In other words, it could not be said despite all that

has happened that he was not exercising power which flowed

from his office. He did whatever he did in the discharge of

his official functions. Section 197 immunises a person if his

act is in exercise of his official power. Whichever way one

looks at it, whatever he has done, or even if there is an

excess, even if there has been negligence, he would be entitled

in law to the protection afforded by Section 197 of the Cr.P.C.

The Courts have ignored this salutary principle enshrined in

Section 197 of the Cr.P.C. The principle enshrined by Section

6 197 of the Cr.P.C. is intended to protect public servants. It

is not to be confused with the question as to whether an

offence has been committed. The law mandates that once the

person against whom cognizance is taken was holding a public

office within the meaning of Section 197 of the Cr.P.C. and

the act or omission attributed to him is done in the discharge

of his official duties or in the purported exercise of his

official duties, it would be completely illegal for the

judicial officer concerned to move the law forward against him

by taking cognizance in the absence of sanction. In the facts

of the case before the Court, he would submit that it was

clear that whatever he did or did not, it arose within the

discharge of his official functions. In this regard, he drew

inspiration from the following decisions:

(5) In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695,

he drew our attention to the following:

“71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal

7 proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.”

(6) Next, he drew our attention to Indra Devi v. State of

Rajasthan and Another (2021) 8 SCC 768 to the following

paragraphs:

“10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. (See Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him “while acting or purporting to act in the discharge of his official duty” and in order to find out whether the alleged offence is committed “while acting or purporting to act in the discharge of his official duty”, the yardstick to be followed is to form a prima facie view

8 whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question, therefore, is whether the act committed is directly concerned with the official duty.

11. We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent 2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent 2 pertained 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 initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work i.e. Respondent 2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted under Section 197 CrPC qua these two other officers.

12. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent 2 as was done in the case of the other two officials by the

9 trial court and High Court, respectively. The sanction from the competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well.”

(7) Next, the learned senior counsel for the appellant would

contend that the Court must not be oblivious to the facts of

the case as well. The appellant’s acts or omissions are

traceable to the year 1979-1980. The incident in question

took place a good 17 years thereafter. Annual inspections

took place. Other officers have had powers of oversight and

exercised it from time to time. Several theaters apart from

Uphaar theater had extra seats. It is only in this unfortunate

case that the occurring of the fire in 1997 has led to the

entire proceedings. He would submit that following the

principle in State of Haryana and Others v. Bhajan Lal and

Others 1992 Supp (1) SCC 335, it is a fit case where no

criminality can be attached to the alleged acts and omissions.

(8) Thirdly, he would also submit that, as noticed, in this

narration above, though an application was filed to take action

under Section 319 of the Cr.P.C. pending the trial against the

original accused, no orders were passed thereon. It received

final attention of the Court only when the matter was finally

disposed of by way of the judgment convicting the original

accused.

10 (9) The Court, he would point out, departed from the

requirement of the law by directing investigation under

Section 173(8) after the trial was concluded and judgment was

pronounced. This is according to him, not permissible in law.

He drew our attention to Sukhpal Singh Khaira v. State of

Punjab (2023) 1 SCC 289:

“39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.”

(10) He also presses for our consideration the aspect that

the appellant is a highly decorated officer with an impeccable

track record.

(11) Shri K. M. Nataraj, learned Additional Solicitor

General, who appears for the additional respondent-Delhi

Police would submit that the Delhi Police is the authority

which sanctions prosecution under Section 197 of the Cr.P.C.

(12) Shri K. M. Nataraj, would submit that it is indispensable

for taking cognizance against a public servant within the

meaning of Section 197 of the Cr.P.C., that the sanctioning

11 authority grants sanction. He would in this regard appear to

us to support the contention taken by the appellant. He also

seeks fortification from the following case law:

(13) He drew our attention to Abdul Wahab Ansari v. State of

Bihar, (2000) 8 SCC 500 wherein this Court held:

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

“The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by

12 the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction 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 and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.”

9. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2 SCR 925] that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the offence alleged to have been committed by the accused must have something to do, or must be

13 related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In the said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jain case [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] and in a recent judgment of this Court in the case of Gauri Shankar Prasad v. State of Bihar [(2000) 5 SCC 15 :

2000 SCC (Cri) 872] . The aforesaid case has full force even 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 of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 CrPC.”

14 It is not necessary for us to multiply authorities on this point and bearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question 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 the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned.

(14) He also brought to the notice of the Court, the decision

in Surinderjit Singh Mand v. State of Punjab, (2016) 8 SCC

722:

25. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by the learned counsel representing the respondents that the prosecution contemplated under Section 197 of the Code and the action of the Court in taking cognizance pertain to actions 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

15 the basis of facts alleged against an accused, as against, Section 319 of the Code whereunder action is triggered against the person concerned 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 that the 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. The learned counsel emphasised 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 court concerned 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 the 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.

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

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

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty.

However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that

16 extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

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

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

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

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

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

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 determined from stage

17 to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.

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

(16) Smt. Aparajita, learned senior counsel appearing on

behalf of the respondent-CBI though finding herself in an

unenviable position for the reason that her client CBI has,

after investigation found nothing against the appellant, she

stated that she would have to redeem the position, in the

interest of justice. She canvassed for the position that the

contention of the appellant that there was no sanction would

not advance his case. She would submit that the trial Court,

the High Court in appeal and what is more, this Court have

found against the licensing authorities which includes the

appellant. She took us through the judgment of this Court

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

They read as follows:

“134. That apart, a seating plan, which was in breach of the statutory provisions and compromised the safety requirements prescribed under the DCR, 1953, could hardly support a belief in good faith that exhibition of films with such a plan was legally justified. That

18 is so especially when the repeal of the Notification dated 30-9-1976 by which Uphaar was permitted 100 more seats was followed by a demand for removal of the additional seats. Instead of doing so the occupiers/owners assailed that demand in Isherdas Sahni and Bros. v. Delhi Admn. [Isherdas Sahni and Bros. v. Delhi Admn., AIR 1980 Del 147] before the High Court of Delhi in which the High Court directed the authorities to have a fresh look from the standpoint of substantial compliance with the provisions of the Cinematograph Act. The High Court observed : (AIR p. 152, paras 11-12) “11. Proposition 3 : It has been already made clear above that the relaxation was granted after considering the public health and the fire hazard aspects. It is also clear that the very fact that the relaxation could not be granted after bearing these main considerations in mind would show that there was some rule for the extension of the sitting accommodation in these theatres within the Rules, though the provision of some of the additional seats may perhaps have been to some extent contrary to some of the Rules. It is not necessary for us to speculate on this question. It is enough to say that the result of the cancellation of the relaxation is simply the withdrawal of the relaxation. It does not automatically mean that all the additional seats which were installed in the cinema theatres were contrary to the Rules and must, therefore, be dismantled without any consideration as to how many of these seats were in consonance with the Rules and how many of them were contrary to the Rules.

12. Our finding on Proposition 3 is, therefore, that the Administration will apply their mind to the additional seats with a view to determine which of them have contravened which rules and to what extent.

They will bear in mind that the compliance with the Rules is to be substantial and not rigid and inflexible.” If while carrying out the above directive, the authorities concerned turned a blind eye to the fundamental requirement of the Rules by ignoring the closure of the right side exit and gangway prescribed as an essential requirement under the DCR, 1953, they acted in breach of the rules and in the process endangered the safety of the patrons.

19

135. We shall presently turn to the question whether the repeal of the notification had the effect of obliging the occupier/licensee of the Cinema to remove the seats and restore the gangways and exits as originally sanctioned. But we cannot ignore the fact that the occupiers/licensees of the Cinema, had opposed the removal of the additional seats even when the respondents in the writ petition had expressed concerns about the safety of the patrons if the additional seats were not removed which removal it is evident would have by itself resulted in the restoration of the right side gangway. So also the authorities ought to have insisted on the restoration of the right side exit by removal of the eight-seater box which was allowed in the year 1978, ostensibly because with the right side gangway getting closed by additional seats occupying that space the authorities considered the continuance of the right side exit to be of no practical use. Withdrawal of relaxation in the year 1979 ought to have resulted in the reversal of not only the fixing of additional seats but all subsequent decisions that proceeded on the basis thereof. It is difficult to appreciate how even applying the test of substantial compliance the authorities could consider the 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 has

been employed by both the trial Court and the High Court viz.,

the fact that here is an officer who stoutly defended his

action taken under order dated 28.07.1979 in the light of the

notification dated 27.07.1979 revoking the earlier decision

to grant extra seats which was not followed to its logical

culmination when it came to the removal of the extra seats.

In other words, here is a person who prevaricated without

justification, what is more, contrary to the statutory rules

governing the safety features which must be indispensably

20 maintained and fostered.

(18) She also sought to draw support from the recent judgment

of this Court viz., Shantaben Bhurabhai Bhuriya v. Anand

Athabhai Chaudhari and Others 2021 SCC Online SC 974. She

would point out on the strength of the said judgment that even

if this Court finds that sans sanction, cognizance became

vulnerable, it would still justify this Court directing grant

of sanction be considered and given. The tragedy which

occurred after 17 years could have been averted. The causa

causans was the refusal to remove the extra seats which means

the immediate cause for the fire and the deaths caused by the

fire could have been avoided.

(19) Shri KTS Tulsi, learned senior counsel appearing on

behalf of the first respondent, would submit that cognizance

is taken of the offence and not the offender. No wrong has

been done by the Magistrate in taking cognizance in a case as

grave as the present case. He points out that the proportions

of the tragedy that overtook the lives of as many as 59 persons

should not be lost sight of by the Court. He reiterates the

argument of Smt. Aparajita that the matter has engaged the

attention of three Courts which includes this Court and the

blame of officers of the licensing bodies which includes the

appellant and that the same cannot be overlooked.

(20) Learned senior counsel would submit that a perusal of

the pleadings of the appellant would also reveal conduct

unbecoming on the part of an applicant before the High Court.

21 It is the requirement of an applicant who comes to Court to

conduct himself fairly. He elaborates by pointing out that

at one juncture, appellant had a case that he had personally

inspected the theater. It is contrasted with his pleading

wherein he took the stand that he has not personally inspected

the theaters whereas, actually, inspection was done by the

members of the inspecting team. In other words, here is a

person, who even though is wearing the robes of a public

servant, he cannot claim immunity under Section 197 of the

Cr.P.C. by reason of his conduct. Learned senior counsel

would submit that the change from the strict posture that he

adopted when he filed the counter affidavit is inexplicable

and it invited cognizance being legitimately taken. No case

has been made by the appellant, in other words, for interfering

with the impugned order.

ANALYSIS

(21) There is no dispute that the appellant was a public

servant. The period in question when he had a connection with

the theater in question can be seen as 1979-1980. We have

already indicated indisputably the train of events which

unfolded and the genesis of which is the issuance of the

notification in 1976 by the Lieutenant Governor. The number

of seats were allowed to be increased. The appellant had

nothing to do with that. Based on the decision, the seats were

increased. Again the appellant was nowhere near the scene at

22 the time. The appellant took over on 02.02.1979. On

27.07.1979, a notification came to be issued revoking the

earlier notification issued on 13.09.1976. Acting strictly

in obedience to the said notification revoking the earlier

notification, the appellant did issue an order dated

28.07.1979. The subsequent notification revoking the earlier

notification as also the action of the appellant came to 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 official respondent. It is thereafter that the

High Court proceeded to render its judgment. The High Court

inter alia held as follows:

(22) The High Court found that the relaxations granted under

the proviso to Rule 3(3) were capable of being modified or

revoked and in the circumstances, the cancellations of the

relaxations were justified and 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 was granted after considering the public health and the fire hazard aspects. It is also clear that the very fact that the relaxation could not be granted after bearing these main considerations in mind would show that there was some rule for the extension of the sitting accommodation in these theaters within the Rules, though the provision of some of the additional seats may perhaps have been to some extent contrary to some of the Rules. It is not necessary for us to speculate on this question. It is enough to say that the result of the cancellation of the relaxation is simply the withdrawal of the relaxation. It does not automatically mean that all

23 the additional seats which installed in the cinema theatres were contrary to the Rules and must, therefore, be dismantled without any consideration as to how many of these seats were in consonance, with the Rules and how many of them were contrary to the Rules.

Our finding on proposition No. 3, therefore, that the Administration will apply their mind to the additional seats with a view to determine which of them have contravened which rules and to what extent. They will bear in mind that the compliance with the Rules is to be substantial and not rigid and inflexible. With these guidelines furnished by the Act itself, they will determine which of the additional seats infringe upon the Rules and in respect of only such seats they will have the power to order removal of such seats.” “Proposition 4 It is not disputed that some of the cinema theatres had existed prior to the promulgation of 1953 rules. Advisedly, Rule 3(3) makes a distinction between these theatres and other theatres which have come into existence after the promulgation of these Rules. It would appear from the opening words of Rule 3(3) that licences may be granted or reviewed in respect of preexisting theatres which were already licensed prior to 1953 for buildings exhibition without their compliance with Rule 3(2). This is the effect of the words “Notwithstanding anything in the preceding sub- rule” with which Rule 3(3) begins. The preceding sub- rule is Rule 3(2) which insists that the requirements set forth in the First Schedule of the Rules have to be fulfilled before a licence can be granted to a building which is permanently equipped for cinematograph exhibition. This distinction will surely be bore in mind by the Administration in dealing with these two kinds of buildings. This will also be in accordance with the requirement already set out in sections 12(1)(a) and 17 that the compliance with the Rules has to be substantial and not rigid or inflexible.”

(24) The Court found that affording an opportunity of hearing

would have been a mere formality but the Court further notes

that the appellant would be well advised in giving a hearing

to the writ petitioners before the cancellation. This would

24 be necessary, it was found, because the question, as to, how

many of the additional seats substantially complied with the

Rules and how many contravened the Rules as at present has not

been determined and has to be determined by the Administrator

later.

“The main order has been passed during the currency of the licenses. But this is inevitable. Any any rate, in the light of the observations made above, the dismantling of the seats on the ground that they do no substantially comply with the Rules will be done in future after the Administration apply their mind to the question.

It cannot be expected as to exactly when this would occur. It is not, therefore, possible to ensure that any change in the sitting accommodation would be enforced by the Administration only at the end of any particular licensing period.

For the above reasons, the writ petitions are disposed of in the light of the findings given above and in the light of the observations as to the existing additional seats and as to the changes which may have to be made to them in future after the Administration examine the questions on merits and take steps. No costs. Pending the determination by the Administration as to the substantial compliance with the Rules by the additional seats or such of them as may be singled out by the Administration in each of the buildings of the licensees, the interim order dated 02.08.1979 will continue in force subject to the limitation that if no determination is made in respect of each building within one month by the Administration, then those licenses in respect of whose buildings the determination is not made shall be free to sell tickets for the additional seats in their building.”

(25) It is, thereafter, that, on 06.12.1979, the appellant

in purported compliance of the High Court order proceeded to

issue a show cause notice to the licencee of Uphaar Cinema.

A committee was indeed constituted as noticed by us earlier.

Finally on 24.12.1979 purporting to act on the basis of the

25 recommendations of the Committee, the appellant ordered the

removal of additional six seats from the balcony. 56 seats

were directed to be removed from the other part of the theater.

A total of 62 additional seats came to be ordered to be

removed. As we have noticed, the unfortunate fire took place

nearly 17 years thereafter.

(26) Both the Courts have drawn considerable support from the

stand taken by the appellant in his counter affidavit.

According to the appellant, the stand taken was in keeping

with the notification which was issued revoking the earlier

notification and also his notice. It is the further case of

the appellant that the Court must bear in mind that whatever

be his pleadings, the matter came to be considered by the High

Court and the judgment followed and the appellant was duly

bound to act in conformity with it. In particular, the

contention is, since what was contemplated was should there

be substantial compliance, it implied that additional seats

could be continued.

(27) It may be true that with the benefit of hindsight,

following the unfortunate tragedy which took place nearly 17

years, thereafter, the loopholes fatal as it turned out to be,

the action of the appellant and the members of the Committee

had been laid bare. We say this, for the reason that, as

pointed out by the learned senior counsel appearing on behalf

of the CBI, this aspect has received articulation at the hands

26 of this Court in the judgment reported in Sushil Ansal1. In

other words, there may have been, as found by this Court also,

lapses. We are, in this case, confined to grapple with the

contention of the appellant based on the impact of there being

no sanction within the meaning of Section 197 of the Cr.P.C.

When we consider the question of cognizance being taken in the

absence of sanction and thereby Section 197 of the Cr.P.C.

being flouted it is not to be conflated and thereby confused

with the question as to whether an offence has been committed.

The salutary purpose behind Section 197 of the Cr.P.C. is

protection being accorded to public servants.

(28) The State functions through its officers. Functions

of the State may be sovereign or not sovereign. But each of

the functions performed by every public servant is intended

to achieve public good. It may come with discretion. The

exercise of the power cannot be divorced from the context in

which and the time at which the power is exercised or if it

is a case of an omission, when the omission takes place.

(29) The most important question which must be posed and

answered by the Court when dealing with the argument that

sanction is not forthcoming is whether the officer was acting

in the exercise of his official duties. It goes further. Even

an officer who acts in the purported exercise of his official

power is given the protection under Section 197 of the Cr.P.C.

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

27 This is for good reason that the officer when he exercises the

power can go about exercising the same fearlessly no doubt

with bona fides as public functionaries can act only bona

fide. In fact, the requirement of the action being bona fide

is not expressly stated in Section 197 of the Cr.P.C., though

it is found in many other statutes protecting public servants

from action, civil and criminal against them.

(30) 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. 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 subsequent show cause notice which he

issued, and thereafter, finally on 24.12.1979, wherein he

directed the removal of a total of 62 additional seats, all

these acts were done in the exercise of his official duties.

As we have already noted, even if it were to be treated as

done in the purported exercise of his official duties, he

would still stand protected from prosecution without sanction.

This must not be confused with the question as to whether the

appellant had committed any offence with which he appears to

have been indicted by the Magistrate issuing summons and the

High Court upholding it. The fact that the appellant had

taken a certain stand in the counter affidavit would not make

28 his subsequent act of acting upon the recommendations of a

committee, an act which is not in the discharge of his official

functions. The findings of this Court which we have referred

to in the decision (supra) would not mean that, if they are

offences committed by the persons including the appellant,

they would not require sanction within the meaning of Section

197 of the Cr.P.C. The subtle and nuanced distinction between

the question as to whether the offence has been committed and

if an offence has been committed, whether a sanction is

required for prosecuting a public servant who is alleged to

have committed the same, must not be lost sight of. The

learned Magistrate and the High Court would appear to have

overlooked this distinction. We notice that, in fact,

apparently being conscious of the legal requirement of

sanction, the first respondent had sought sanction from the

appropriate Government and a writ petition was also filed

viz., 6238/2011 for directions to take appropriate steps in

the matter. It is further noticed by us that on account of

the pendency of the petition under Section 482 that no action

was taken on the same.

(31) One ground which has found favour with the High Court

against the appellant is that the appellant, according to the

High Court, could raise the issue before the Magistrate.

Here we may notice one aspect. When the question arises

as to whether an act or omission which constitutes an offence

in law has been done in the discharge of official functions by

29 a public servant and the matter is under a mist and it is not

clear whether the act is traceable to the discharge of his

official functions, the Court may in a given case tarry and

allow the proceedings to go on. Materials will be placed

before the Court which will make the position clear and a

delayed decision on the question may be justified. However,

in a case where the act or the omission is indisputably

traceable to the discharge of the official duty by the public

servant, then for the Court to not accept the objection against

cognizance being taken would clearly defeat the salutary

purpose which underlies Section 197 of the Cr.P.C. It all

depends on the facts and therefore, would have to be decided

on a case to case basis.

(32) We notice that Shri R. Basant, learned senior counsel,

drew our attention to the judgment of this Court in MCD v.

Uphaar Tragedy Victims Assn. (2011) 14 SCC 481 to contend that

this Court has exonerated the licensing authority of liablity:

“54. It is evident from the decisions of this Court as also the decisions of the English and Canadian Courts that it is not proper to award damages against public authorities merely because there has been some inaction in the performance of their statutory duties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the courts will not award damages unless there is malice or conscious abuse. The cases where damages have been awarded for direct negligence on the part of the statutory authority or cases involving doctrine of

30 strict liability cannot be relied upon in this case to fasten liability against MCD or the licensing authority. The position of the DVB is different, as direct negligence on its part was established and it was a proximate cause for the injuries to and death of victims. It can be said that insofar as the licensee and the DVB are concerned, there was contributory negligence.

55. The position of licensing authority and MCD is different. They were not the owners of the cinema theatre. The cause of the fire was not attributable to them or anything done by them. Their actions/omissions were not the proximate cause of the deaths and injuries. The licensing authority and MCD were merely discharging their statutory functions (that is granting licence in the case of the licensing authority and submitting an inspection report or issuing an NOC by MCD). In such circumstances, merely on the ground that the licensing authority and MCD could have performed their duties better or more efficiently, they cannot be made liable to pay compensation to the victims of the tragedy. There is no close or direct proximity to the acts of the licensing authority and MCD on the one hand and the fire accident and the death/injuries of the victims.

But there was close and direct proximity between the acts of the licensee and the DVB on the one 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 authorities which do not involve mala fides or abuse, the High Court committed a serious error in making the licensing authority and MCD liable to pay compensation to the victims jointly and severally with the licensee and the DVB.

56. We make it clear that the exoneration is only in regard to monetary liability to the victims. We do not disagree with the observations of the High Court that the performance of duties by the licensing authority

31 and by MCD (in its limited sphere) was mechanical, casual and lackadaisical. There is a tendency on the part of these authorities to deal with the files coming before them as requiring mere paperwork to dispose it. They fail to recognise the object of the law or rules, the reason why they are required to do certain acts and the consequences of non-application of mind or mechanical disposal of the application/requests which come to them. As rightly observed by Naresh Kumar's Report, there is a lack of safety culture and lack of the will to improve performance. The compliance with the procedure and rules is mechanical. We affirm the observations of the High Court in regard to the shortcoming in the performance of their functions and duties by the licensing authority and to a limited extent by MCD. But that does not lead to monetary liability.”

(33) He would contend on the strength of the same that this

Court has found that the appellant was not liable to

compensate. This Court was dealing with monetary liability.

(34) Though the appellant’s final decision to take action as

he did by proceedings dated 24.12.1979, stood in contrast with

the contents of his counter affidavit, it by itself may not

obviate the need for sanction, even proceeding on the basis

that the appellant could be accused of the offences which view

found favour with the Magistrate.

(1) The upshot of the above discussion is that we find that

the Magistrate erred in the facts of this case in taking

cognizance against the appellant contrary to the mandate of

Section 197 of the Cr.P.C. On that short ground alone, the

appellant succeeds. The appeal is allowed. The impugned

32 order will stand set aside. The proceedings challenged in

Section 482 will stand quashed. We, however, make it clear

that this will 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. In view of

the fact that the appellant succeeds on the aspect of there

being no sanction, we do not deem it necessary to pronounce

on the two other contentions which have been pressed before

us by the appellant.

……………………………………………………………., J.

[ K.M. JOSEPH ]

……………………………………………………………., J.

[ B.V. NAGARATHNA ]

……………………………………………………………., J.

[ ARAVIND KUMAR ]

New Delhi;

April 20, 2023.

33