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CASE NO.:

Appeal (crl.) 35 of 1998

PETITIONER:

State of Orissa Through Kumar Raghvendra Singh & Ors.

RESPONDENT:

Genesh Chandra Jew

DATE OF JUDGMENT: 24/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Appellants have questioned legality of judgment

rendered by a learned Single Judge of the Orissa High Court

rejecting the petition under Section 482 of the Code of

Criminal Procedure, 1973 (in short the 'Code'). Background

facts essentially are as follows:

Grievances were made against six officers of the Orissa

State Forest Department, the present appellants by the

respondent (described hereinafter as the 'complainant')

alleging that they had falsely implicated him for offences

under the Orissa Forest Act, 1972 (in short 'the Act'), the

Wildlife Protection Act, 1972 (in short 'the Wildlife Act')

and being not content with the illegal acts, and that they

seriously assaulted him thereby committing offences

punishable under Sections 341, 323, 325, 506 and 386 read

with Section 34 of the Indian Penal Code, 1860 (in short

'the IPC'). They also publicly humiliated him. The

appellants questioned legality of the proceedings instituted

by the complainant in ICC case No. 45/91 in the Court of

Sub-Divisional Judicial Magistrate, Baripada (in short 'the

S.D.J.M.'). Their primary stand was that the complaint was

lodged as a counterblast and retaliatory measure because

large quantity of ivory was seized from the complainant and

he could not produce any material to justify the possession

thereof.

According to the complainant he is a reputed

Pharmacist, and also a man of means and the owner of a

cinema hall and producer of films. While on 27.2.1991 he was

engaged in the professional work, the present appellants

along with some police personnel entered into his clinic and

arrested him alleging that some elephant tusks were

recovered from his possession. He is a man having good

reputation and standing in the society. There was absolutely

no reason for appellants to apprehend that he would flee

away from custody. Nevertheless he was made to walk on the

bazar roads with hand-cuff. He was taken to the range office

and was made to sit under a tree with the intention to give

an impression to the general public that he was an illicit

trader in elephant tusks. An advocate requested the

officials to allow the complainant to take insulin since he

was a diabetic patient, but the request was not heeded to.

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Complainant was treated as a criminal. On the next day he

was produced before the SDJM. Before doing that, some

elephant tusks were put on his shoulders and photographs

were taken. Appellants 5 and 6 assaulted him severely

causing serious injuries. When he was produced before the

SDJM before evening, he was not in a proper state of mind.

Subsequently, after being released on bail he got himself

medically examined and complaint was lodged after consulting

lawyers. Appellants questioned legality of the proceedings.

According to them, they were officials to whom protection

under Section 197 of the Code was applicable. In any event,

the complaint was lodged with oblique motive and intention

to get out of the illegalities committed and as a

retaliatory measure. There was absolutely no material to

take cognizance of the case. The acts of search, seizure and

arrest were done in pursuance of their official duty and

they cannot be proceeded against without necessary sanction

as contemplated under Section 197 of the Code. The Orissa

High Court at the first instance permitted the appellants to

make submission before the SDJM. But the SDJM took the view

that there was no necessity for sanction under Section 197

of the Code.

Matter was again brought before the High Court which by

the impugned judgment was of the view that Section 197 of

the Code has no application to the facts of the case.

In support of the appeal, learned counsel for the

appellants submitted that the complaint instituted by the

respondent is nothing but an abuse of the process of the

court. The High Court has not taken note of the factual

positions which were highlighted to substantiate the prayer

for quashing of the proceedings in terms of Section 482 of

the Code, particularly in the background of Section 197

thereof. The alleged occurrence took place on 27.2.1991. On

the next day i.e. 28.2.1991 the accused was produced before

the Magistrate and prayer for remand to custody was made.

Simultaneously, the respondent moved for bail. While hearing

the bail application, the SDJM specifically asked the

respondent as to whether there was any ill-treatment. As

the order of the learned SDJM clearly shows, the accused did

not make any grievance of any ill-treatment and on the

contrary admitted that there was no ill-treatment.

Interestingly, the respondent got himself examined after

three days by a private doctor and the complaint was lodged

after 13 days. These clearly establish the mala fides. In

the complaint petition also there was no specific allegation

against many of the appellants and vague statements were

made about alleged assaults. To divert attention, respondent

has filed several cases and the complaint in question is one

of them. Acts done were in accordance with law and as part

of official duty and the High Court was not justified in

holding that Section 197 of the Code is not applicable.

In response, learned counsel for the respondent-

complainant submitted that the assaults made by the

appellants cannot be construed to be in pursuance of

official duty. Seriousness of the injuries can be gauged

from the materials brought on record. It is not correct to

say that any mala fides are involved. A citizen's liberties

were seriously trampled by these officials who committed

series of illegal acts. Merely because respondent who was in

a dazed stage on account of the ignominies brought upon by

the acts of the appellants and both mentally and physically

battered, could not take steps instantly, that is of no

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consequence; more particularly when the bail application

indicated the illegalities committed. Section 197 of the

Code has, therefore, rightly been held to be inapplicable.

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

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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 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."

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

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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 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

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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 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

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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.

In S.A. Venkataraman v. The State (AIR 1958 SC 107) and

in C. R. Bansi v. The State of Maharashtra (1970 (3) SCC

537) this Court has held that :

"There is nothing in the words used in

Section 6(1) to even remotely suggest that

previous sanction was necessary before a

court could take cognizance of the offences

mentioned therein in the case of a person

who had ceased to be a public servant at the

time the court was asked to take cognizance,

although he had been such a person at the

time the offence was committed."

The above position was illuminatingly highlighted in

State of Maharashtra v. Dr. Budhikota Subbarao (1993 (3) SCC

339).

When the newly-worded section appeared in the Code

(Section 197) with the words "when any person who is or was

a public servant" (as against the truncated expression in

the corresponding provision of the old Code of Criminal

Procedure, 1898) a contention was raised before this Court

in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC

411) that the legal position must be treated as changed even

in regard to offences under the Old Act and New Act also.

The said contention was, however, repelled by this Court

wherein a two-Judge Bench has held thus :

"A public servant who committed an offence

mentioned in the Act, while he was a public

servant, can be prosecuted with the sanction

contemplated in Section 197 of the Act if he

continues to be a public servant when the

court takes cognizance of the offence. But

if he ceases to be a public servant by that

time, the court can take cognizance of the

offence without any such sanction."

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

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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.

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

on 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.

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.

Above position was highlighted in R. Balakrishna Pillai

v. State of Kerala (AIR 1996 SC 901) and in State of M.P.

v. M.P. Gupta (2004 (2) SCC 349).

When the background facts of the case are considered

the question regarding applicability of Section 197 of the

Code takes a temporary back seat. The factual scenario as

indicated above goes to show that on 28.2.1991 respondent

was produced before the Magistrate. He was specifically

asked as to whether there was any ill-treatment. Learned

SDJM specifically records that no complaint of any ill-

treatment was made. This itself strikes at the credibility

of the complaint. Additionally, the doctor who has examined

him stated that for the first time on 2.3.1991 he treated

the complainant. Though there are several other aspects

highlighted in the version indicated in the complaint and

the materials on record are there, we do not think it

necessary to go into them because of the inherent

improbabilities of the complainant's case and the patent

mala fides involved. It is no doubt true that the threshold

interference by exercise of jurisdiction under Section 482

of the Code has to be in very rare cases, and this case

appears to be of that nature. It fits in with the category

no.7 of broad categories indicated in State of Haryana v.

Bhajan Lal (1992 Supp (1) SCC 335). It is to be noted that

though plea regarding non-complaint before the Magistrate

was specifically taken to justify interference, the High

Court has not dealt with this aspect at all thereby adding

to the vulnerability thereof.

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The continuance of the proceeding by way of prosecution

in this case would amount to abuse of the process of law.

The High Court's judgment and the proceedings in ICC

No. 45/91 are quashed. We make it clear that we have not

expressed any opinion about the merits of the cases

instituted against respondent-complainant which shall be

dealt with in accordance with law.

The appeal is allowed.