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CASE NO.: Appeal (crl.)  35 of 1998

PETITIONER: State of Orissa Through Kumar Raghvendra Singh & Ors.

RESPONDENT: Genesh Chandra Jew

DATE OF JUDGMENT: 24/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Appellants have questioned legality of judgment  rendered by a learned Single Judge of the Orissa High Court  rejecting the petition under Section 482 of the Code of  Criminal Procedure, 1973 (in short the ’Code’).  Background  facts essentially are as follows:

       Grievances were made against six officers of the Orissa  State Forest Department, the present appellants by the  respondent (described hereinafter as the ’complainant’)  alleging that they had falsely implicated him for offences  under the Orissa Forest Act, 1972 (in short ’the Act’), the  Wildlife Protection Act, 1972 (in short ’the Wildlife Act’)  and being not content with the illegal acts, and that they  seriously assaulted him thereby committing offences  punishable under Sections 341, 323, 325, 506 and 386 read  with Section 34 of the Indian Penal Code, 1860 (in short  ’the IPC’). They also publicly humiliated him. The  appellants questioned legality of the proceedings instituted  by the complainant in ICC case No. 45/91 in the Court of  Sub-Divisional Judicial Magistrate, Baripada (in short ’the  S.D.J.M.’). Their primary stand was that the complaint was  lodged as a counterblast and retaliatory measure because  large quantity of ivory was seized from the complainant and  he could not produce any material to justify the possession  thereof.  

According to the complainant he is a reputed  Pharmacist, and also a man of means and the owner of a  cinema hall and producer of films. While on 27.2.1991 he was  engaged in the professional work, the present appellants  along with some police personnel entered into his clinic and  arrested him alleging that some elephant tusks were  recovered from his possession. He is a man having good  reputation and standing in the society. There was absolutely  no reason for appellants to apprehend that he would flee  away from custody.  Nevertheless he was made to walk on the  bazar roads with hand-cuff. He was taken to the range office  and was made to sit under a tree with the intention to give  an impression to the general public that he was an illicit  trader in elephant tusks. An advocate requested the  officials to allow the complainant to take insulin since he  was a diabetic patient, but the request was not heeded to.  

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Complainant was treated as a criminal. On the next day he  was produced before the SDJM. Before doing that, some  elephant tusks were put on his shoulders and photographs  were taken. Appellants 5 and 6 assaulted him severely  causing serious injuries. When he was produced before the  SDJM before evening, he was not in a proper state of mind.   Subsequently, after being released on bail he got himself  medically examined and complaint was lodged after consulting  lawyers. Appellants questioned legality of the proceedings.   According to them, they were officials to whom protection  under Section 197 of the Code was applicable. In any event,  the complaint was lodged with oblique motive and intention  to get out of the illegalities committed and as a  retaliatory measure. There was absolutely no material to  take cognizance of the case. The acts of search, seizure and  arrest were done in pursuance of their official duty and  they cannot be proceeded against without necessary sanction  as contemplated under Section 197 of the Code. The Orissa  High Court at the first instance permitted the appellants to  make submission before the SDJM.  But the SDJM took the view  that there was no necessity for sanction under Section 197  of the Code.

       Matter was again brought before the High Court which by  the impugned judgment was of the view that Section 197 of  the Code has no application to the facts of the case.

       In support of the appeal, learned counsel for the  appellants submitted that the complaint instituted by the  respondent is nothing but an abuse of the process of the  court. The High Court has not taken note of the factual  positions which were highlighted to substantiate the prayer  for quashing of the proceedings in terms of Section 482 of  the Code, particularly in the background of Section 197  thereof.  The alleged occurrence took place on 27.2.1991. On  the next day i.e. 28.2.1991 the accused was produced before  the Magistrate and prayer for remand to custody was made.   Simultaneously, the respondent moved for bail. While hearing  the bail application, the SDJM specifically asked the  respondent as to whether there was any ill-treatment.  As  the order of the learned SDJM clearly shows, the accused did  not make any grievance of any ill-treatment and on the  contrary admitted that there was no ill-treatment.   Interestingly, the respondent got himself examined after  three days by a private doctor and the complaint was lodged  after 13 days.  These clearly establish the mala fides. In  the complaint petition also there was no specific allegation  against many of the appellants and vague statements were  made about alleged assaults. To divert attention, respondent  has filed several cases and the complaint in question is one  of them.  Acts done were in accordance with law and as part  of official duty and the High Court was not justified in  holding that Section 197 of the Code is not applicable.

       In response, learned counsel for the respondent- complainant submitted that the assaults made by the  appellants cannot be construed to be in pursuance of  official duty.  Seriousness of the injuries can be gauged  from the materials brought on record.  It is not correct to  say that any mala fides are involved.  A citizen’s liberties  were seriously trampled by these officials who committed  series of illegal acts. Merely because respondent who was in  a dazed stage on account of the ignominies brought upon by  the acts of the appellants and both mentally and physically  battered, could not take steps instantly, that is of no

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consequence; more particularly when the bail application  indicated the illegalities committed. Section 197 of the  Code has, therefore, rightly been held to be inapplicable.                                                         

The pivotal issue i.e. applicability of Section 197 of  the Code needs careful consideration. In Bakhshish Singh  Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this  Court while emphasizing on the balance between protection to  the officers and the protection to the citizens observed as  follows:-                                                                                                                 "It is necessary to protect the public  servants in the discharge of their duties.  In the facts and circumstances of each case  protection of public officers and public  servants functioning in discharge of  official duties and protection of private  citizens have to be balanced by finding out  as to what extent and how far is a public  servant working in discharge of his duties  or purported discharge of his duties, and  whether the public servant has exceeded his  limit. It is true that Section 196 states  that no cognizance can be taken and even  after cognizance having been taken if facts  come to light that the acts complained of  were done in the discharge of the official  duties then the trial may have to be stayed  unless sanction is obtained. But at the same  time it has to be emphasised that criminal  trials should not be stayed in all cases at  the preliminary stage because that will  cause great damage to the evidence."

The protection given under Section 197 is to protect  responsible public servants against the institution of  possibly vexatious criminal proceedings for offences  alleged to have been committed by them while they are  acting or purporting to act as public servants. The policy  of the legislature is to afford adequate protection to  public servants to ensure that they are not prosecuted for  anything done by them in the discharge of their official  duties without reasonable cause, and if sanction is  granted, to confer on the Government, if they choose to  exercise it, complete control of the prosecution.  This  protection has certain limits and is available only when  the alleged act done by the public servant is reasonably  connected with the discharge of his official duty and is  not merely a cloak for doing the objectionable act.  If in  doing his official duty, he acted in excess of his duty,  but there is a reasonable connection between the act and  the performance of the official duty, the excess will not  be a sufficient ground to deprive the public servant from  the protection.  The question is not as to the nature of  the offence such as whether the alleged offence contained  an element necessarily dependent upon the offender being a  public servant, but whether it was committed by a public  servant acting or purporting to act as such in the  discharge of his official capacity. Before Section 197 can  be invoked, it must be shown that the official concerned  was accused of an offence alleged to have been committed by  him while acting or purporting to act in the discharge of

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his official duties.  It is not the duty which requires  examination so much as the act, because the official act  can be performed both in the discharge of the official duty  as well as in dereliction of it.  The act must fall within  the scope and range of the official duties of the public  servant concerned.  It is the quality of the act which is  important and the protection of this section is available  if the act falls within the scope and range of his official  duty.  There cannot be any universal rule to determine  whether there is a reasonable connection between the act  done and the official duty, nor is it possible to lay down  any such rule.  One safe and sure test in this regard would  be to consider if the omission or neglect on the part of  the public servant to commit the act complained of could  have made him answerable for a charge of dereliction of his  official duty, if the answer to his question is in the  affirmative, it may be said that such act was committed by  the public servant while acting in the discharge of his  official duty and there was every connection with the act  complained of and the official duty of the public servant.  This aspect makes it clear that the concept of Section 197  does not get immediately attracted on institution of the  complaint case.  

At this juncture, we may refer to P. Arulswami v.  State of Madras (AIR 1967 SC 776), wherein this Court held  as under: "... It is not therefore every offence  committed by a public servant that requires  sanction for prosecution under Section  197(1) of the Criminal Procedure Code; nor  even every act done by him while he is  actually engaged in the performance of his  official duties; but if the act complained  of is directly concerned with his official  duties so that, if questioned, it could be  claimed to have been done by virtue of the  office, then sanction would be necessary. It  is quality of the act that is important and  if it falls within the scope and range of  his official duties the protection  contemplated by Section 197 of the Criminal  Procedure Code will be attracted. An offence  may be entirely unconnected with the  official duty as such or it may be committed  within the scope of the official duty. Where  it is unconnected with the official duty  there can be no protection. It is only when  it is either within the scope of the  official duty or in excess of it that the  protection is claimable."  

Prior to examining if the Courts below committed any  error of law in discharging the accused it may not be out of  place to examine the nature of power exercised by the Court  under Section 197 of the Code and the extent of protection  it affords to public servant, who apart, from various  hazards in discharge of their duties, in absence of a  provision like the one may be exposed to vexatious  prosecutions. Section 197(1) and (2) of the Code reads as  under :  "197. (1) When any person who is or was a  Judge or Magistrate or a public servant not  removable from his office save by or with  the sanction of the Government is accused of

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any offence alleged to have been committed  by him while acting or purporting to act in  the discharge of his official duty, no Court  shall take cognizance of such offence except  with the previous sanction -  (a) in the case of person who is employed  or, as the case may be, was at the time of  commission of the alleged offence employed,  in connection with the affairs of the Union,  of the Central Government;  (b) in the case of a person who is employed  or, as the case may be, was at the time of  commission of the alleged offence employed,  in connection with the affairs of a State,  of the State Government.  

*               *                     * (2) No Court shall take cognizance of any  offence alleged to have been committed by  any member of the Armed Forces of the Union  while acting or purporting to act in the  discharge of his official duty, except with  the previous sanction of the Central  Government."  

The section falls in the chapter dealing with conditions  requisite for initiation of proceedings. That is if the  conditions mentioned are not made out or are absent then no  prosecution can be set in motion. For instance no  prosecution can be initiated in a Court of Sessions under  Section 193, as it cannot take cognizance, as a court of  original jurisdiction, of any offence unless the case has  been committed to it by a Magistrate or the Code expressly  provides for it. And the jurisdiction of a Magistrate to  take cognizance of any offence is provided by Section 190  of the Code, either on receipt of a complaint, or upon a  police report or upon information received from any person  other than police officer, or upon his knowledge that such  offence has been committed. So far public servants are  concerned the cognizance of any offence, by any court, is  barred by Section 197 of the Code unless sanction is  obtained from the appropriate authority, if the offence,  alleged to have been committed, was in discharge of the  official duty. The section not only specifies the persons  to whom the protection is afforded but it also specifies  the conditions and circumstances in which it shall be  available and the effect in law if the conditions are  satisfied. The mandatory character of the protection  afforded to a public servant is brought out by the  expression, ’no court shall take cognizance of such offence  except with the previous sanction’. Use of the words, ’no’  and ’shall’ make it abundantly clear that the bar on the  exercise of power by the court to take cognizance of any  offence is absolute and complete. Very cognizance is  barred. That is the complaint, cannot be taken notice of.  According to Black’s Law Dictionary the word ’cognizance’  means ’jurisdiction’ or ’the exercise of jurisdiction’ or  ’power to try and determine causes’. In common parlance it  means taking notice of. A court, therefore, is precluded  from entertaining a complaint or taking notice of it or  exercising jurisdiction if it is in respect of a public  servant who is accused of an offence alleged to have  committed during discharge of his official duty. Such being the nature of the provision the question is  how should the expression, ’any offence alleged to have been

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committed by him while acting or purporting to act in the  discharge of his official duty’, be understood? What does it  mean? ’Official’ according to dictionary, means pertaining  to an office, and official act or official duty means an act  or duty done by an officer in his official capacity. In B.  Saha and Ors. v. M. S. Kochar (1979 (4) SCC 177), it was  held : (SCC pp. 184-85, para 17)  "The words ’any offence alleged to have been  committed by him while acting or purporting  to act in the discharge of his official  duty’ employed in Section 197(1) of the  Code, are capable of a narrow as well as a  wide interpretation. If these words are  construed too narrowly, the section will be  rendered altogether sterile, for, ’it is no  part of an official duty to commit an  offence, and never can be’. In the wider  sense, these words will take under their  umbrella every act constituting an offence,  committed in the course of the same  transaction in which the official duty is  performed or purports to be performed. The  right approach to the import of these words  lies between two extremes. While on the one  hand, it is not every offence committed by a  public servant while engaged in the  performance of his official duty, which is  entitled to the protection of Section 197  (1), an Act constituting an offence,  directly and reasonably connected with his  official duty will require sanction for  prosecution and the said provision."  

Use of the expression, ’official duty’ implies that the act  or omission must have been done by the public in the course  of his service and that it should have been in discharge of  his duty. The Section does not extend its protective cover  to every act or omission done by a public servant in service  but restricts its scope of operation to only those acts or  omissions which are done by a public servant in discharge of  official duty.  It has been widened further by extending protection to  even those acts or omissions which are done in purported  exercise of official duty. That is under the colour of  office. Official duty therefore implies that the act or  omission must have been done by the public servant in course  of his service and such act or omission must have been  performed as part of duty which further must have been  official in nature. The Section has, thus, to be construed  strictly, while determining its applicability to any act or  omission in course of service. Its operation has to be  limited to those duties which are discharged in course of  duty. But once any act or omission has been found to have  been committed by a public servant in discharge of his duty  then it must be given liberal and wide construction so far  its official nature is concerned. For instance a public  servant is not entitled to indulge in criminal activities.  To that extent the Section has to be construed narrowly and  in a restricted manner. But once it is established that act  or omission was done by the public servant while discharging  his duty then the scope of its being official should be  construed so as to advance the objective of the Section in  favour of the public servant. Otherwise the entire purpose  of affording protection to a public servant without sanction  shall stand frustrated. For instance a police officer in

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discharge of duty may have to use force which may be an  offence for the prosecution of which the sanction may be  necessary. But if the same officer commits an act in course  of service but not in discharge of his duty and without any  justification therefor then the bar under Section 197 of the  Code is not attracted. To what extent an act or omission  performed by a public servant in discharge of his duty can  be deemed to be official was explained by this Court in  Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) thus :  "The offence alleged to have been committed  (by the accused) must have something to do,  or must be related in some manner with the  discharge of official duty ... 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."

If on facts, therefore, it is prima facie found that  the act or omission for which the accused was charged had  reasonable connection with discharge of his duty then it  must be held to official to which applicability of Section  197 of the Code cannot be disputed.  In S.A. Venkataraman v. The State (AIR 1958 SC 107) and  in C. R. Bansi v. The State of Maharashtra (1970 (3) SCC  537) this Court has held that :  "There is nothing in the words used in  Section 6(1) to even remotely suggest that  previous sanction was necessary before a  court could take cognizance of the offences  mentioned therein in the case of a person  who had ceased to be a public servant at the  time the court was asked to take cognizance,  although he had been such a person at the  time the offence was committed."  

       The above position was illuminatingly highlighted in  State of Maharashtra v. Dr. Budhikota Subbarao (1993 (3) SCC  339). When the newly-worded section appeared in the Code  (Section 197) with the words "when any person who is or was  a public servant" (as against the truncated expression in  the corresponding provision of the old Code of Criminal  Procedure, 1898) a contention was raised before this Court  in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC  411) that the legal position must be treated as changed even  in regard to offences under the Old Act and New Act also.  The said contention was, however, repelled by this Court  wherein a two-Judge Bench has held thus :  "A public servant who committed an offence  mentioned in the Act, while he was a public  servant, can be prosecuted with the sanction  contemplated in Section 197 of the Act if he  continues to be a public servant when the  court takes cognizance of the offence. But  if he ceases to be a public servant by that  time, the court can take cognizance of the  offence without any such sanction."

The correct legal position, therefore, is that an  accused facing prosecution for offences under the Old Act or  New Act cannot claim any immunity on the ground of want of

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sanction, if he ceased to be a public servant on the date  when the court took cognizance of the said offences. But the  position is different in cases where Section 197 of the Code  has application.          Section 197(1) provides that when any person who is or  was a public servant not removable from his office save by  or with the sanction of the Government is accused of any  offence alleged to have been committed by him while acting  on purporting to act in the discharge of his official duty,  no Court shall take cognizance of such offence except with  the previous sanction (a) in the case of a person who is  employed or, as the case may be, was at the time of  commission of the alleged offence employed, in connection  with the affairs of the Union, of the Central Government and  (b) in the case of a person who is employed or, as the case  may be, was at the time of commission of the alleged offence  employed, in connection with the affairs of a State, of the  State Government.          We may mention that the Law Commission in its 41st  Report in paragraph 15.123 while dealing with Section 197,  as it then stood, observed "it appears to us that  protection under the section is needed as much after  retirement of the public servant as before retirement. The  protection afforded by the section would be rendered  illusory if it were open to a private person harbouring a  grievance to wait until the public servant ceased to hold  his official position, and then to lodge a complaint. The  ultimate justification for the protection conferred by  Section 197 is the public interest in seeing that official  acts do not lead to needless or vexatious prosecution. It  should be left to the Government to determine from that  point of view the question of the expediency of prosecuting  any public servant". It was in pursuance of this  observation that the expression ’was’ come to be employed  after the expression ’is’ to make the sanction applicable  even in cases where a retired public servant is sought to be  prosecuted.  Above position was highlighted in R. Balakrishna Pillai  v. State of Kerala (AIR 1996 SC 901) and in State of M.P.   v. M.P. Gupta (2004 (2) SCC 349).          When the background facts of the case are considered  the question regarding applicability of Section 197 of the  Code takes a temporary back seat. The factual scenario as  indicated above goes to show that on 28.2.1991 respondent  was produced before the Magistrate. He was specifically  asked as to whether there was any ill-treatment. Learned  SDJM specifically records that no complaint of any ill- treatment was made.  This itself strikes at the credibility  of the complaint. Additionally, the doctor who has examined  him stated that for the first time on 2.3.1991 he treated  the complainant. Though there are several other aspects  highlighted in the version indicated in the complaint and  the materials on record are there, we do not think it  necessary to go into them because of the inherent  improbabilities of the complainant’s case and the patent  mala fides involved. It is no doubt true that the threshold  interference by exercise of jurisdiction under Section 482  of the Code has to be in very rare cases, and this case  appears to be of that nature.  It fits in with the category  no.7 of broad categories indicated in State of Haryana v.  Bhajan Lal (1992 Supp (1) SCC 335). It is to be noted that  though plea regarding non-complaint before the Magistrate  was specifically taken to justify interference, the High  Court has not dealt with this aspect at all thereby adding  to the vulnerability thereof.

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The continuance of the proceeding by way of prosecution  in this case would amount to abuse of the process of law.

       The High Court’s judgment and the proceedings in ICC  No. 45/91 are quashed. We make it clear that we have not  expressed any opinion about the merits of the cases  instituted against respondent-complainant which shall be  dealt with in accordance with law.   

The appeal is allowed.