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PETITIONER: PUKHRAJ

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ANR.

DATE OF JUDGMENT29/08/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ

CITATION:  1973 AIR 2591            1974 SCR  (1) 559  1973 SCC  (2) 701  CITATOR INFO :  F          1983 SC  64  (5)  R          1986 SC 345  (4)  R          1988 SC 257  (4)

ACT: Section  197 Cr.  P.C.-sanction- A criminal complaint  filed by a subordinate employee against his superior alleging use- of abusive language and giving kicks.

HEADNOTE: The  appellant filed a complaint against respondent  No.  2, his  superior  officer,  in  the  Postal  Department,  under sections  323  and  502 of I.P.C.  alleging  that  when  the appellant  went  with  a certain  complaint  to  the  second respondent, the second respondent kicked him,in his  abdomen and  abused him by saying "Sale, gunde, badmash. . .  "  The second respondent filed an application under section 197  of the   Cr.P.C.  praying  that  the  Court  should  not   take cognizance  of  the  offence without  the  sanction  of  the Government, as required by Section 197 of the Cr.P.C. it was further  contended that the alleged acts, if at ail done  by the  accused  were done while discharging his  duties  as  a public   servant.   The  trial  Magistrate   dismissed   the application.    The   ’High  Court  allowed   the   revision application of second respondent. Allowing the appeal, HELD  : (1) At this stage, the Court is concerned only  with one  point,  whether on facts alleged in the  complaint,  it could be said that the acts were done in purported  exercise of his duties.  Applying the test laid down in the decisions of  the Federal Court and Supreme Court to  acts  complained of,  viz.,  licking the complainant and abusing,  cannot  be said  to have been done in the course of the performance  of the duty by the second respondent. [561H] (2)  The  facts  subsequently  coming to  light  during  the course  of the judicial enquiry or during the course of  the prosecution   evidence  at  the  trial  may  establish   the necessity  for sanction.  It may be possible for the  second respondent to,place the material on record during the course of the trial for showing what his duty was and also that the acts  complained of were so inter-related with his  official duty,  so as to attract the protection afforded by sec.  197

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of  the Cr.  P.C. Whether sanction is necessary or  not  may have to depend from stage to stage. [562D] Horiram Singh, [1939] F.C.R. 159, Bhagwan Prasad  Srivastava v. N. P. Mshra, [1971] 1 S.C.R. 317, Matajog Dobey v. H.  C. Bhari  [1955]  2 S.C.R. 925 and Sarjoo Prasad  v.  The  King Emperor. [1945] F.C.R. 227. relied upon.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 101  of 1972. Appeal  by special leave from the Judgment and  order  dated the  25th  February,  1972 of the Rajasthan  High  Court  at Jodhpur in S. B. Criminal Revision No. 52 of 1972. B.   D.  Sharma, S. K. Bagga, S. Bagga, Rani Arora and  Yash Bagga, for the appellant. S.   M. Jain, for respondent No. 1. S.   N. Prasad, for respondent No. 2. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The appellant filed a complaint against the 2nd  respondent  before  the  Add.   Munsiff  Magistrate  of Jodhpur City under ss. 323 and 504 I.P.C. The 2nd respondent was  the Post Master General, Rajasthan and the appellant  a clerk in the Head Post Office 560 at  Jodhpur.   He  was also  the,  Divisional  Secretary  of National Union of Postal Employees.  The relevant portion of the complaint is as follows               "4,  That the accused came on tour to  Jodhpur               on  25-10-1971.  He arrived at the  Head  Post               Office   Jodhpur,  in  connection   with   the               inspection   at  5.45  P.M.  The   complainant               reached  to submit his representation  to  the               accused for cancelling his transfer, when. the               accused   just  sat  in  his  jeep   and   the               complainant started narrating his story’.               "5.  That  the accused being enraged  by  this               complaint,  kicked  him  in  his  abdomen  and               abused  him by saying "Sale, Goonda,  Badmash,               on  one  hand you are complaining and  on  the               other   hand  you  are  requesting   for   the               cancellation of transfer.               "6.  That  the complainant  became  very  much               enraged  over this incident but he  suppressed               his anger because of being responsible citizen               and to avoid any further disturbance.                "7.  That  after  kicking  and  abusing   the               complainant the accused ran away in his jeep." The 2nd respondent filed an application under S. 197 of  the Code of Criminal Procedure praying that the court should not take  cognizance of the offence without the sanction of  the Government  as  the  acts alleged, if at  all  done  by  the accused, were done while discharging his duties as a  public servant.   The Munsiff Magistrate dismissed the  application but  Justice Mehta of the Rajasthan High Court  allowed  the revision petition filed by the 2nd respondent and set  aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government  had been obtained.  This appeal is against  that order. The  law  regarding the circumstances under  which  sanction under  s.197 of the Code of Criminal Procedure is  necessary is by now well settled as result of the decisions from  Hori Ram Singh’s(1) case to the latest decision of this Court  in

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Bhagwan Prasad Srivastava v. N. P. Misra. (2) While the  law is well settled the difficulty really arises in applying the law  to  the facts of any particular  case.   The  intention behind the section is to prevent public servants from  being unnecessarily harassed.  The section is not restricted  only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty  still purports  so  to  act,  although he  may  have  a  dishonest intention.  Nor is it confined to cases where the act, which constitutes  the  offence,  is  the  official  duty  of  the official concerned.  Such an interpretation would involve  a contradiction  in terms, because an offence can never be  an official duty.  The offence should have been committed  when an  act  is  done in the execution of duty or  when  an  act purports  to  be done in the execution of  duty.   The  test appears  to  be  not that the offence is  capable  of  being committed only, by a (2)  [1971] (1) S. C. R. 317. (1) [1939] F. C, R. 159. 561 public servant and not anyone else, but that it is committed by a public servant in an act done or purporting to be  done in  the  execution  of  his duty.   The  section  cannot  be confined  to only such acts as are done by a public  servant directly in pursuance of his public office, though in excess of  the duty or under a mistaken belief as to the  existence of  such duty,.  Nor need the act constituting the  ,offence be  so  inseparably connected with the official duty  as  to form  part  and  parcel of the same  transaction.   What  is necessary  is that the offence must be in respect of an  act done or purported to be done in the discharge of an official duty.   It does not apply to acts done purely in  a  private capacity  by  a  public servant.  Expressions  such  as  the "capacity in which the act is performed", "Cloak of  office" and  "professed  exercise  of  office"  may  not  always  be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to  be one done or purporting to be done in execution  of  a duty.   In  Hori  Ram  Singh’s  case  (supra)  Sulaiman,  J. observed :               "The  section cannot be confined to only  such               acts as are done by a public servant  directly               in  pursuance of his public office, though  in               excess of the duty or under a mistaken  belief               as  to the existence of such duty.  Nor is  it               necessary  to go to the length of saying  that               the act constituting the offence should be  so               inseparably  connected with the official  duty               as to form part and parcel of the same  trans-               action." In  the same case Varadachariar, J. observed "there must  be something  in  the  nature of the  act  complained  of  that attaches  it to the official character of the  person  doing it."  In affirming this view, the Judicial Committee of  the Privy Council observed in  case:               "A  public servant can only be said to act  or               purport  to  act  in  the  discharge  of   his               official  duty, if his act is such as  to  lie               within the scope of his official duty....  The               test  may well be whether the public  servant,               if challenged, can reasonably claim that, what               he does, he does in virtue of his office." In Matajog Dobey v. H. C. Bhari(2) the Court was of the view that the test laid down that it must be established that the act  complained of was an official act unduly narrowed  down

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the scope of the protection afforded by section 197.   After referring  to  the  earlier cases the court  summed  up  the results as follows :               "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,  but               not a pretended or fanciful claim, that he did               it  in  the course of the performance  of  his               duty." Applying  this  test it is difficult to say  that  the  acts complained of i.e. of kicking the complainant and of abusing him, could be said to (1) 1948 L R. 75 1. A. 41.                  (2) [1955](2) S. C. R. 925. 562 have  been  done in the, course of performance  of  the  2nd respondent’s duty.  At this stage all that we are  concerned with  is  whether on the facts alleged in the  complaint  it could  be  said that what the 2nd respondent is  alleged  to have done could be said’ to be in purported exercise of  his duty.   Very  clearly  it is not.  We must  make  it  clear, however,  that  we  express no opinion as to  the  truth  or falsity of the allegations. We  must also make it clear that this is not the end of  the matter.   As  was pointed out in Sarjoo Prasad v.  The  King Emperor(1), referring to the observations of Sulaiman, J. in Hori  Ram  Singh’s  case (supra) the  mere  fact,  that  the accused  proposes  to  raise a defence  of  the  act  having purported  to  be done in. execution of duty  would  not  in itself  be sufficient to justify the case being  thrown  out for  want  of sanction.  At this stage we have only  to  see whether  the acts alleged against the 2nd respondent can  be said  to be in purported execution of his duty.   But  facts subsequently  coming  to  light during  the  course  of  the judicial  inquiry  or during the course of  the  prosecution evidence  at  the  trial may  establish  the  necessity  for sanction.  Whether sanction is necessary or not may have for depend  from  stage  to stage.  The  necessity  may  reveal, itself  in  the  court  of the progress  of  the  case  (see observations  in  Matajog Dobey v. H. C.  Bhari  (supra)  In Bhagwan  Prasad Srivastaval v. N. P: Misra (supra), also  it was  pointed  out that it would be, open. to  the  appellant (.the 2nd respondent in this case) to place the material  on record  during the course of the trail for showing what  his duty  was  and  also that the acts  complained  of  were  so interrelated  with, his official duty, so as to attract  the protection afforded by s.197, Cr.P.C. This  appeal  is,  therefore allowed and the  order  of  the learned Judge of the High Court is set aside. S.B.W. Appeal allowed. (1) [1945] F.C.R. 227. 563