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PETITIONER: N.K. OGLE

       Vs.

RESPONDENT: SANWALDAS @ SANWALMAL AHUJA

DATE OF JUDGMENT:       18/03/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

     The  appellant  was Tehsildar in Damoh.  The  District Collector  had  ordered  by  sending  a  Revenue  Collection Certificate  to collect lease money amounting to  Rs.4,653/- from Sanwaldas, respondent herein.  The Tehsildar on receipt of  the  information  from  the   office  of  the  Collector registered  the  matter and passed an order for issuance  of Demand  Letter.   Under the said Demand Letter  the  initial date  had  been  fixed  as 14.11.1989  which  was,  however, changed  later  on  to  28.11.89.    The  Tehsildar  in  his order-sheet  Exhibit D mentioned that the Demand Letter  has been received back after being duly served on the respondent Sanwaldas.   On  4.12.89 an order of attachment warrant  was passed.  On 21.12.89 respondent Sanwaldas came to the office of  Tehsildar  and objected to the legality of the order  of issuing  the  Demand  Letter.   This  fact  was  immediately intimated by the Tehsildar to the District Magistrate on the same  day.   Respondent  Sanwaldas then  filed  a  complaint alleging  that while he had gone to the Tehsil Office on his scooter  the  Tehsildar  forcibly kept the Scooter,  and  as such,  has  committed  an offence under Section 379  of  the Indian  Penal Code.  It may be stated that after the seizure of  the scooter the Tehsildar directed for auctioning of the same  and  the scooter was ultimately auctioned on  22.1.90. On  the basis of the complaint filed by respondent Sanwaldas the  learned  Judicial Magistrate First Class,  Damoh,  took cognizance  of the offence and directed issuance of  process against Tehsildar.  Tehsildar appeared before the Magistrate on  2.3.90 and filed an application raising objection to the order  taking  cognizance of the offence on the ground  that the acts complained of was in discharge of the official duty of  the Tehsildar and, therefore, in the absence of sanction under  Section  197  of the Code of Criminal  Procedure  the Court  will have no jurisdiction to entertain the complaint. The   learned  Magistrate,  however,   rejected   the   said application  filed  by the Tehsildar by its order dated  7th March, 1990 on a finding that the acts complained of have no rational  nexus  with the discharge of official duty of  the Tehsildar  and, therefore, immunity under Section 197 Cr.P.C will  not  be attracted.  This order of the  Magistrate  was assailed  in  Revision  by  the Tehsildar in  the  Court  of Sessions  Judge,  Damoh  which was  registered  as  Criminal Revision  No.  17/90.  By judgment dated 24.4.90 the learned Sessions  Judge came to the conclusion that the alleged  act

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of  the Tehsildar is directly connected with the performance of  his  official  duties and, therefore, the claim  of  the applicant  regarding immunity under Section 197 Cr.P.C.  can neither  be said to be pretended nor fanciful.  The Sessions Judge  came  to the conclusion that the Tehsildar cannot  be prosecuted for the acts complained of without prior sanction of  the Government as required under Section 197 of the Code of  Criminal  Procedure.   Accordingly,  the  order  of  the Magistrate  was  set aside and the complaint was held to  be not  maintainable.   Against  the  aforesaid  order  of  the learned  Sessions Judge the complainant moved the High Court invoking  the jurisdiction of the Court under Section 482 of the  Code  of  Criminal Procedure.  The High  Court  by  the impugned  judgment  dated 3.12.91 being of the opinion  that the  acts complained of in fact do not appear to relate with the  responsibility  of the post of Tehsildar and  Tehsildar has  mis-used  his  powers,  interfered with  the  order  of Sessions  Judge and held that the provisions of Section  197 of  the Criminal Procedure has no application to the case in hand.   In coming to the aforesaid conclusion the High Court examined  the  provisions of the M.P.  Land Revenue Act  and came  to hold that the order of attachment of the  Collector was not in accordance with law, and therefore, any purported action taken by Tehsildar on the basis of such invalid order will  not give him protection of Section 197 of the Code  of Criminal  Procedure.   According  to   the  High  Court  the Tehsildar  must  be  held to have mis-used his post  or  the rights  associated with the post and, therefore, question of taking  sanction  from the Government before initiating  any criminal proceeding does not arise.  It is this order of the High Court which is being assailed in the present appeal.

     Mr.   Bachawat,  learned senior counsel appearing  for the  appellant contended that the Court while examining  the question of applicability of Section 197 Cr.P.C.  in a given case  is required to find out whether the acts complained of constituting  the  alleged offence can be said to have  been done  in exercise of the powers of the public officer or  in purported  exercise of the power of the said officer and  if the  answer  is  in the affirmative then the  provisions  of Section  197  Cr.  P.C.  would get attracted.  According  to Mr.   Bachawat,  if  it is found that the  concerned  public officer  has acted bona fide in exercise of or in  purported exercise of power conferred upon him and not on the basis of a  pretended plea, then the provisions of Sub-section (1) of Section  197 of the Code of Criminal Procedure would  apply, even  if such officer has done something in excess than what is provided for.  According to Mr.  Bachawat on the findings of the High Court the acts complained of having been done in exercise  of  the  powers under the provisions  of  M.P.Land Revenue  Act which order of the Tehsildar in turn was issued pursuant  to the order of the District Magistrate, Damoh for recovering  the  lease money from the respondent,  the  High Court  committed  error  in examining the legality  of  such order  and then coming to a conclusion on the question about the applicability of Section 197 Cr.P.C.  In support of this contention  reliance  was placed on the  Constitution  Bench decision  of  this  Court in the case of Matajog  Dobey  vs. H.C.  Bhari " 1955 (2) SCR 925 and a recent decision of this Court  in  the  case of Suresh Kumar  Bhikamchand  Jain  vs. Pandey Ajay Bhushan and others " (1998) 1 SCC 205.

     Mr.   Upadhyay,  learned  counsel  appearing  for  the respondent on the other hand contended, that the acts of the Tehsildar  which  was  the subject matter of  the  complaint

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filed  by  the respondent cannot be said to have  reasonable nexus  with the duties of the Tehsildar, and therefore,  for such  illegal acts the protection provided under Section 197 Cr.P.C.   will  not apply.  According to Mr.  Upadhyay,  the plea  of the Tehsildar that he forcibly retained the scooter in  exercise of his power under the provisions of M.P.  Land Revenue Act is nothing but a pretended and fanciful plea and consequently the High Court was fully justified in recording the findings that the provisions of Section 197 will have no application  to  the  case  in hand.   In  support  of  this contention reliance was placed on the decision of this Court in  the case of B.  Saha and others vs.  M.S.  Kochar (1979) 4  SCC  177  and  in  the case of  B.S.   Sambhu  vs.   T.S. Krishnaswamy  (1983) 1 SCC 11 and in the case of Pukhraj vs. State  of Rajasthan and Another (1973) 2 SCC 701.  According to  Mr.   Upadhyay the legislative intent  engrafted  behind Section  197 of the Code of Criminal Procedure is to prevent a  public servant from being unnecessarily harassed.  But if an authority misuses his power as found by the High Court in the  present case and such protection is given then the very purpose  for which Section 197 was engrafted on the  Statute Book would get frustrated.

     Bearing  in mind the rival submissions at the bar  and examining  the allegations made in the complaint petition we are  persuaded  to  agree with the submissions made  by  Mr. Bachawat,   learned  senior  counsel   appearing   for   the appellant.   Undisputedly the appellant at the relevant time was  the Tehsildar and the District Collector had passed  an order  for collecting the lease money of Rs.4,653/- from the respondent  Sanwaldas.  On the basis of the aforesaid  order of  the  District  Collector   the  Tehsildar,  the  present appellant,  appears  to  have registered the matter  in  his Court  and  ordered  for issuance of the Demand  Letter  and infact  such  a Demand Letter had been issued and  had  been duly served on the respondent and yet the respondent had not made  the payment.  It further appears that as no steps  had been  taken  by the respondent to pay the money an order  of attachment  warrant was issued on 4.12.89 and it is then  on 21.12.89  when the respondent was available with the scooter in  the Tehsil office the said scooter was seized and it  is such  seizure and retention of the scooter of the respondent which  is  the gravamen of the allegation of  offence  under Section  379  in  the complaint case.  Such  action  of  the Tehsildar  in  our considered opinion cannot but be  a  bona fide  act on the part of the Tehsildar in purported exercise of  the  power under the M.P.  Land Revenue Act.  In  Saha’s case  (supra) what this Court had held is that there must be direct  and  reasonable nexus between the offence  committed and the discharge of the official duty.  Charge of dishonest misappropriation or conversion of goods by customs authority which  they  had seized was held not to be in  discharge  of official  duty and as such Section 197 has no application as misappropriation  cannot  be  said  to be  in  discharge  of official duty.  We see no reasons how the aforesaid decision is  of any application in the present case.  It is  nobody’s case  that  the Tehsildar forcibly retained the scooter  and used  it for his own purpose.  On the other hand the scooter after being seized was put to public auction for recovery of the  legal dues of the government as against the respondent. In  Sambhu’s  case  (supra) the Court was  examining  as  to whether a defamatory language used by a judge to an advocate can  be  said  to  be in discharge  of  the  official  duty. Obviously  this  Court  held  that use  of  such  defamatory language  by no stretch of imagination can be held to be  in

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discharge  of official duty and consequently the  provisions of  Section  197  will have no application.   The  aforesaid decision  has no application to the present case.  The third decision  relied upon by Mr.  Upadhyay is the Pukhraj’s case (supra).   In  the said case the question for  consideration was that when a government servant on orders of transfer had requested  his employer for cancellation of the transfer and the  employer  started abusing and giving kicks to the  said government servant whether it can be said to be in purported exercise of his duty.  This Court in no uncertain terms came to  the conclusion that the act of abusing and giving  kicks cannot be said to be an act done in the execution of duty or in  purported exercise of the execution of the duty.  In our considered opinion the ratio of the aforesaid case also will have no application.

     The  Constitution  Bench  decision of  this  Court  in Matajog  Dobey’s  case  (supra) clearly enunciates  where  a power  is  conferred  or  a duty is 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 things to be done, it authorises the performance of whatever may  be necessary for executing its command.  The Court  was considering  in  the  said  case  the  allegation  that  the official  authorised in pursuance to a warrant issued by the Income  Tax  Investigation  Commission  in  connection  with certain  pending proceedings before it, forcibly broke  open the  entrance door and when some resistance was put the said officer  not  only  entered  forcibly but  tied  the  person offering   resistance   with  a   rope  and  assaulted   him mercilessly  causing  injuries and for such act a  complaint had  been filed against the concerned public officers.  This Court, however, came to hold that such a complaint cannot be entertained without a sanction of the Competent Authority as provided  under Section 197 Cr.P.C.  This Court had observed that before coming to a conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply the Court  must come to a conclusion that there is a  reasonable connection  between the act complained of and the  discharge of  official  duty;  the act must bear such relation to  the duty  that the accused could lay a reasonable claim that  he did  it  in  the  course of the  performance  of  his  duty. Applying  the  aforesaid  ratio  to the  case  in  hand  the conclusion  is inescapable that the act of the Tehsildar  in seizing  the  scooter of the respondent was in discharge  of his  official duty which he was required to do on the  basis of  the order issued by the Collector for getting the  lease money from the respondent and the said act cannot be said to be  a  pretended  or  fanciful  claim on  the  part  of  the Tehsildar.   The High Court, in our view committed error  at that stage in examining the flaw or legality of the order of attachment issued by the Tehsildar.

     In  Suresh  Kumar’s case (supra) relying upon  Matajog Dobey’s  case  (supra) and bearing in mind  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 this Court has held that the said provision is a prohibition imposed  by  the statute from taking cognizance and as  such the  jurisdiction  of  the  Court in the  matter  of  taking

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cognizance  and, therefore a Court will not be justified  in taking  cognizance of the offence without such sanction on a finding  that  the acts complained of are in excess  of  the discharge  of the official duty of the concerned  government servant.

     In  the  aforesaid  circumstances and in view  of  our earlier  conclusions as to the circumstances under which the order of attachment was issued and the scooter was seized we have  no  hesitation to hold that the acts complained of  by the  respondent against the Tehsildar had been committed  in discharge  of  the official duty of the such Tehsildar  and, therefore,  no cognizance can be taken by any court  without prior sanction of the Competent Authority.  Admittedly there has been no such sanction of the Competent Authority.

     We  accordingly  allow this appeal and set  aside  the impugned  order of the High Court.  The order passed by  the learned Sessions Judge is affirmed.