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CASE NO.: Appeal (crl.)  413 of 2000

PETITIONER: Anjani Kumar

RESPONDENT: State of Bihar and Anr

DATE OF JUDGMENT: 24/04/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 413 OF 2000

Dr. ARIJIT PASAYAT, J.

        1.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Patna High Court dismissing the petition  filed by the appellant in terms of Section 482 of the Code of  Criminal Procedure, 1973 (in short the ’Code’). The appellant  in the said petition had prayed for quashing the order dated  2.12.1993 taking cognizance of offences punishable under  Sections 465, 466, 468, 469 and 471 of Indian Penal Code,  1860 (in short the ’IPC’) in Begusarai Town P.S. Case No.63 of  1993.

2.      Background facts as projected by the appellant are  essentially as follows:

       On 29.8.1992 an application by respondent No.2  (hereinafter referred to as the ’complainant’) was filed for  cancellation of Form 19 filed relating to the license of M/s  Arun Medical Hall. On the said date, appellant sent a report  for cancellation of the application form for license. On the  same date, as per the directions of District Magistrate,  appellant conducted raid at the medical shop of respondent  No.2 around 5.15 p.m. in the presence of two Executive  Magistrates and certain medicines were seized. On 8.9.1992  appellant filed FIR (P.S. Case No.258/92) and  a case was  registered against respondent No.2 for alleged commission of  offences punishable under Sections 420, 467, 468 IPC and  Sections 27(b)(ii) and 28 of the Drugs and Cosmetics Act, 1940  (in short ’Drugs Act’). On 15.9.1992 respondent No.2 filed an  application for bail.  Significantly there was no averment in the  bail petition that the appellant demanded bribe or made any  interpolation of records. On 10.10.1992 respondent NO.2  moved the Civil Surgeon for release of the seized medicines.  Here again there was no allegation of demand of bribe and  interpolation. On 7.11.1992 appellant informed the authorities  about the threats received from respondent No.2 and others.  On 16.11.1992 respondent No.2 moved the learned Chief  Judicial Magistrate for release of seized medicines. Here again,  there was no allegation of demand of bribe or interpolation of  records. On 16.12.1992 appellant informed the police officials  about the threat received from respondent No.2 and others  and requested to protect his life. On 4.2.1993 a complaint was

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made by respondent No.2 alleging that appellant had  committed offences punishable under Sections 161, 167, 465,  466, 469 and 471 IPC and on the basis of the complaint, FIR  was registered.   

3.      According to the appellant, there was no explanation  offered as to why there was delay in filing the complaint and  there was no grievance that the police officials had refused to  register any FIR. On 31.7.1993 an order purported to have  been passed under Section 196 of the Code was passed by  District Magistrate according sanction for prosecution of the  appellant.  On 4.8.1993 charge sheet was filed against the  appellant for alleged commission of offences under Sections  465, 466, 469 and 471 IPC. Here again, there was no  allegation of alleged commission of offence relating to demand  of bribe which is punishable under the Prevention of  Corruption Act, 1988 (in short ’PC Act’).  On 2.12.1993  cognizance was taken.  

4.      It is submitted that the District Magistrate had no  authority to grant sanction purportedly under Section 196 of  the Code.  Further in the petition before the High Court it was  categorically stated as follows:

"15. That it is stated that the Incharge of the  Peon Book or the Issue Register is not the  petitioner.  It is in the hands of the clerk of the  office and the concerned clerk was the  appointee of Dr. A.A. Mallick whose services  has been terminated as his appointment itself  was illegal and during his termination process  from service, he connived with the informant  and have done all the mischief’s against the  petitioner."       5.      As noted above, a petition under Section 482 was filed,  which was rejected by the High Court primarily on the ground  that no sanction was required. No other question was decided.  It is pointed out by learned counsel for the appellant that on  the basis of the FIR given by the appellant, respondent No.2  has been convicted under Section 18A and 28 of the Drugs Act  and Sections 420 and 468 IPC.

6.      In support of the appeal, learned counsel for the  appellant submitted that the factual scenario as noted above  goes to show the allegations were made as a counter blast by  respondent No.2 for the action taken against him. With a view  to harass and humiliate the appellant a complaint was filed.  The appellant had acted in course of his official duty and the  High Court should not have dismissed the petition on the  ground that no sanction was necessary, without considering  the mala fides.  

7.      Learned counsel for the respondent-State on the other  hand supported the judgment of the High Court.  

8.      There is no appearance on behalf of respondent no.2 in  spite of service of notice.  

9.      As the factual scenario goes to show the complaint filed  on 4.2.1993 appears to be a counter blast by respondent No.2  for the action taken by the appellant against him.  

10.     The pivotal issue i.e. applicability of Section 197 of the  Code needs careful consideration. In Bakhshish Singh Brar v.

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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."

11.     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 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

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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.  

12.     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."  

13.     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 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.

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*               *                     * (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. 14.     Such being the nature of the provision the question is  how should the expression, ’any offence alleged to have been  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

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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 officer 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.  15.     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 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."

16.     If on facts, therefore, it is prima facie found that the act

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or omission for which the accused was charged had  reasonable connection with discharge of his duty then it must  be held to be official to which applicability of Section 197 of  the Code cannot be disputed.  17.     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 or  purporting to act in the discharge of his official duty, no Court  shall take cognizance of such offence except with the previous  sanction (a) in the case of a person who is employed or, as the  case may be, was at the time of commission of the alleged  offence employed, in connection with the affairs of the Union,  of the Central Government 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.  18.     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.  19.     The above position was highlighted in R. Balakrishna  Pillai v. State of Kerala and Anr. (1996 (1) SCC 478), State of  H.P. v. M.P. Gupta (2004 (2) SCC 349), State of Orissa through  Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew  (2004 (8) SCC 40) and Rakesh Kumar Mishra v. State of Bihar  and Ors. (2006 (1) SCC 557).

20.     When the factual background as noted above is  considered on the touchstone of legal principles set out above  the inevitable conclusion is that certainly mala fides were  involved apart from the applicability of Section 197 of the  Code.  It is no doubt true that at the threshold interference by  exercise of Section 482 of the Code has to be in rare cases. The  present case appears to be of that nature and falls under  category (7) indicated in State of Haryana and Ors. v. Bhajan  Lal and Ors. (1992 Supp (1) SCC 335). The continuance of the  proceedings by the prosecution would amount to abuse of the  process of law. The criminal proceedings in the Court of  learned Chief Judicial Magistrate, Begusarai in PS Case  No.63/1993 are quashed. The appeal is allowed.