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CASE NO.: Appeal (crl.)  30 of 1999

PETITIONER: Shri S.K. Zutshi & Another

RESPONDENT: Shri Bimal Debnath & Anr.

DATE OF JUDGMENT: 10/08/2004

BENCH: S.N. VARIAVA & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

Appellants call in question legality of the judgment rendered by  learned Additional Sessions Judge,  Belonia, South Tripura in Criminal  Revision No.29(4) of 1997.  Appellants had challenged legality of the  cognizance taken and issuance of process on the basis of a complaint filed  by respondent no.1.  The complaint was filed by respondent no.1 alleging  that on 21.3.1997 the present appellants along with some other personnel of  Border Security Force (in short ’BSF’) came to his crockery-cum-cloth shop  and demanded Rs.10,000/- as illegal gratification which the complainant  refused to pay.  They entered into his shop without any authority, ransacked  the shop and illegally took away some commodities which were stored for  business purposes.  Certain documents were also taken away.  It was further  alleged that they threatened him to take away his life and with dire  consequences on the point of revolver. They illegally took away the articles  on the basis of a purported seizure memo taking signature of some persons  forcibly.  Allegations were also made about the illegal activities of BSF  personnel and as to how the people in the locality were subjected to reign of  terror by them.  It was in essence alleged that the accused persons committed  offences punishable under Sections 395, 447 and 506 of the Indian Penal  Code, 1860  (in short the ’IPC’).  Learned Additional Sessions Judge,  Belonia, took cognizance of the offences and issued process to the present  appellants. The order taking cognizance and the continuance of the  proceedings were questioned by the appellants before the learned Additional  Sessions Judge, Belonia by filing an application under Section 397 of the  Code of Criminal Procedure, 1973 (in short the ’Code’).  The only point  which was urged was that the appellants were, on the basis of a notification  issued in June, 1986, authorized to function under Sections 100-104, 106,  107, 109 and 110 of the Customs Act, 1962 (in short the ’Customs Act’).  As  the appellants suspected that the complainant had stored articles in his shop  for the purpose of smuggling to Bangladesh, seizure was made.  There was  no demand of gratification as alleged.  The acts done were clearly within the  permissible area of statutory duties and they were entitled to get the  protection under Section 197 of the Code.  

The stand was resisted by the respondent-complainant on the ground  that the acts complained of had not even any remote link with any official  acts and duties and, therefore, Section 197 of the Code has no application.   Learned Additional Sessions Judge, Belonia, accepted the stand of the  complainant and held that Section 197 of the Code had no application to the  facts of the case.             In support of the appeal learned counsel submitted that the factual

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scenario clearly shows that the acts done by the appellants were sanctioned  by law. Under the belief that articles were stored with the object of  smuggling, the search and seizure were made. There is no evidence except  the vague assertion of the complainant about the alleged demand of any  illegal gratification and/or other acts.  Taking into account the objective for  which Section 197 of the Code has been enacted it is a fit case where the  protection provided by the said provision should be extended.  Learned  counsel for the respondent no.1-complainant, however, submitted that the  acts alleged do not have any link whatsoever with the officials acts and,  therefore, the order taking cognizance and/or directing issuance of process  cannot be faulted.  The judgment of learned Additional Sessions Judge,  Belonia, does not suffer from any infirmity to warrant interference.

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 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

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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."  

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.  

*               *                     * (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

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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 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

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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."

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.  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 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.          Above position was highlighted in R. Balakrishna Pillai v. State of  Kerala (AIR 1996 SC 901), State of M.P.  v. M.P. Gupta (2004 (2) SCC  349) and in State of Orissa through Kumar Raghvendra Singh & Ors. v.  Ganesh Chandra Jew (JT 2004 (4) SC 52).   In this case the complaint is that illegal gratification of Rs.10,000/-  was demanded and because of refusal to pay the shop was ransacked and  goods taken away. When this factual background is considered on the anvil  of legal principles delineated above, the inevitable conclusion is that the  appellants have not made out any case for interference.  The appeal fails and  is dismissed.

Before we part in the case, it has to be noted that learned counsel for  the appellants submitted that there was prayer made for transfer of the  proceedings in terms of Section 475 of the Code which has not been  considered.  To a pointed query whether such a stand was taken before  learned Additional Sessions Judge, no definite reply could be given.  In  addition, we find that after disposal of the matter by learned Additional  Sessions Judge,  a petition was filed before learned SDJM with reference to  Section 475 of the Code.  The same has been dealt with and orders have  been passed on 18th June, 1998 which have become final. That being so, the  plea in that regard presently raised has no leg to stand.        

The appeal fails and is dismissed.