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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.