BHAGWAN PRASAD SRIVASTAVA versus N. P. MISRA

BHAGWAN PRASAD SRIVASTAVA

N. P. MISRA

4pril 20, 1970

[A. N. RAY AND I. D. DUA, JJ.]

Code of Cr'mi11al P•ocedure, (5 of 1898) s. 191-Scope of.

The respondent filed complaint stating that the appellant, civil surgeon used defamatory and abusive words and got the respondent push-ed out by the cook of the hospital. On the question whether tlie case was covered by s. 197 Cr. P.C. and previous sanction of the superior authority was necessary before the trial Court could take cognizance Cit the complaint,

HELD : The case was not coveced by s. 197 Cr. P.C. The object and purpose underlying section 197 Cr. P.C. is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act 0 in the discharge_ of their official duty. The larger interest of efficiency of Stale administration demands that public servants should be free to per-form their official duty 'fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoypn•c or injury may have been caused by 'their legitimate acts done in the dis-charge of their official duty. This section is designed to facilitate 'effec-tive and unhampered performan~e of their official duty by· public servants hy providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction 'for their prosecution as condition precedent to the cognizance of the cases against th'!m, by the courts. It is nelther to be too narrowly construed nor too widely. Too narrow anc! pedantic construction may render it otiose fo·r it is no part of an official duty, and never can be-to commit an offence. 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. One must also guard against too wide f' construction because in our constitutional set up the idea o'f legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. The question wh"ther particular act is done by public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. [320 D-H;' 321 G]

In the present case the alleged offence consists of the use df defama-tory and abusive wo·rds and of gettin~ the complainant-respondont forcibly turned out of the operation theatre, by the Cook. There was nothing on the record to show that this was part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the perfor-mance of his official dutv that without so acting he could not have pro-perly dischargecl it. [321 G-H]

Matajog Dobey v. H. C. Bhari, [1955] 2 S.C.R. 925 Amrik Singh v. The State of PEPSU. [1955] I S.C.R. 1302 at 1307 /Jaijn(lth Gupta v. S1<1te of M. P., [1966] 1 S.C.R. 210; Prabhakar V. Sinari v. Shanker Anunt Verlekar [1969] 2 S.C.R. 1013, referred to.

CRl\!INAL APPELLATE JURISDICTION: Criminal Appeal No.

139 ot 1967.

Appeal by special leave from the judgment and order dated Februan 21, 19&7 of the Patna High Court in Criminal Revision No. 546 of 1965. '

Sar/oo Prasad, S. S. Jauhar and K. K. Sinha,. for the appellant. U. P. Singh, for the respondent.

Th.e Judgment of the Court was delivered by

Oua, J. Jn this appeal by special leave arising out of com-u:aint tiled by the respondent Shri N. P. Mishra against the appel-lant Sh ri Bhagwan Prasad Srivastava. the only question requiring determination is if cognizance of the case by the Magistrate re-quired previous sanction under s. 197, Cr. P.C. The Sub-Divi-sional '.'vlagistrate, in whose court the complaint was instituted. upheld the preliminary objection based on the absence of previous sanction and the Second Additional Sessions Judge, on revision, agreed with this view. On further revision the Patna High Court disagreed with the yiew taken by the two courts below and holding s. 197. Cr. P.C. to be inapplicable to the case directed the Sub-Divisional Magistrate to make further er.quiry into the petition of complaint. Before us the view taken by the High Court is assailed.

The complaint was filed by the respondent Shri N. P. Mishra. Civil Assistant Surgeon, Sadar Hospital, Chapra (hereinafter called the complainant) agai·nst Shri Bhagwan Prasad Srivastava. Civil Surgeon, Chapra (appellant in this Court) and Shri Ramjash Pandey. Cook, Sadar Hospital, Chapra. It was alleged in the complaint that on the 6th and 7th January, 1964 the appellant had used defamatory language towards the complainant, and the two accused persons had i·nsulted and humiliated him in the eyes ,Jf the public. As result, the complainant was put to great mental pain and agony, his repuration was harmed and his profes-sional career prejudicially affected. The relevant averments in the complaint may now be stated with· the requisite detail. The complainant claiming to be Master cf Surgery and specialist in Ophthalmology had joined Chapra Sadar Hospital as Civil Assistant Surgeon (C.A.S.) in January, 1962. The appellant joined the said hospital as Civil Surgeon towards the end of 1962. The appellant bore illwi1l and malice towards the complainant and was always c;u the look out for an opportunity to harm him in his profession and to humiliate and disgrace him in the eyes of the public. Some cataract operations were to be performed on Janu-ary 7, 1964 i: the Blind Relief Camp to be organised for that

purpose. On January 6, when the complainant was making final' selection of the patients for the cataract operations to be perform-ed on the following day, the appellant informed the complainant that he had not been able to arrange for cataract knives and that the complainant should arrange for them from somewhere. The complainant requested the appellant to place order for the kni~es with some local firm and give him the necessary letter of autp.onty so that the same could be purchased on credit. The appellant apparently did not like this suggestion. He got enraged and in an insulting tone and linguage told the complainant that it was his job to arrange for the knives and that as last resort he might bring his own knife. The complainant repeated his suggestion adding that in the alternative man be sent to' Patna to make local purchases. On this the appellant again addressed the complain-ant in highly defamatory language in the presence of the hospital staff and the attendants. On January 7, 1964 at about 9 a.m. the complainant was in the operation theatre. Some members of the hospitnl staff and some attendants o-' the patients who were wait-ing outside the operation theatre were also present. The appellant ll came there and again asked the complainant if he had brought two more cataract knives froPl somewhere. The complainant replieJ that in the absence of the appellant"s final orders the two knives C1)ltld not be arranged from the local market. The appellant again got annoyed and addressed the complainant in insulting tone and defamatory language. Not satisfied with the use of such ,. language the ''appellant ordered Ramjesh Pandey, Cook of the " Hospital. to turn out the complainant, the purport of the actual words used being "Pandey turn out this badmash (one who follows evil courses.). To his utter humiliatfon the complainant was then ~1ctually pushed out by the Cook. The actual words used in Hindi hy the appellant have been reproduced in the judgment of the High Court. We have. therefore, not considered it necessary to repro-F duce them al!ain, except the word 'badmash' c.f which the literal 111eaning in English as· stated by us is generally well-understood. The question which falls for decision by this Court is whether the complai·nant's case is covered. by s. 197, Cr.P.C. and previous sanction of the superior authority is necessary before the trial court can take cognizance of the complaint.

Section 197, Cr.P.C. provides as under:

"(1) When any person who is Judge within the meaning of section 19 of the Tndian Penal Code, or when any Magistrate or when any public servant who is not removable from his office save by or with the sanction of State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting er purporting to ~ct in the discharge

Gf his official duty, no Court shall take cognizance o~ such offence except with the previous sanction-

( a) in the case of person employed in connection with the affairs of the Union, of the Central Government; and

( b) in the case of person employed in connection with the affairs of State of the State Govern-ment. '

Power of Central or State Government as to prosecu-tion.-

(2) The Central Governme•nt or the State Govern-

ment, as the case may be. may detem1ine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

·The object and purpose underlying section 197 Cr. P.C. to afford protection to public servants against frivolous, vexatious or false prosecution for offences allege:! to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration de-mands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance ·or injury may have been caused by their legitimate acts done in the discharge c.' their official duty. This section is designed to facili-tate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of ·commission of offence by them by their superior authorities anti prior sanction for their prosecution as condition precedent to the cognizance of the cases against them by the courts. It is neither to be too narrowly construed nor too widely. Too narrow ·and pedantic co1nstruction may render it otiose for it is no part of an official duty-and never can be-to commit an offence. Jn · our view, it is not the "duty" which requires exan1ination 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 o.f it. One must also guard against too wide construction because in our constitutional set up the idea of legal equality or of universal sub-. jection of all citi~ens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, ·with ... s 1no man, whatever his rank or condition is above the law cand every official from the highest down to the Jowest is under the

same responsibility for every act done without Je~al.justification. as. any other citizen. In construing s. 197. CrP.C.; therefore, !me: has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties. According to the decision of this Court in Matajor Debey v. H. C. Bhari(') cited' by Shri Sarjoo Prasad on behalf of thC"llPpeliant there prnst be· reasonable connection between the act and the discharge of offi-cial duty; the act must bear such reiution to the duty that the· . accused .could fay reasonable claim, but not P,retended or fanciful claim, that he did it in the course of the pe'rformance of his duty. l1n Amrik Singh -v. The State of PEPSU(') this Court said : ,

• "It is not every offence committed by public ·servant that requires sanction for prosecution under section 197 (I ) of the Code C·~ Criminal Procedure; nor· even every act done by him while he is actually engagr,d in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questicned, it c.ould he clailued to have been done by virtue of the office, then sanction wou!d be necessary; and that would be so, irrespective of whe-. ther it was, in fact, proper dischurge of his duties, because that would really be u mutter of defence on th,e · ,• , merits, which would have to be investigated at the trial~ and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution·."·

Recently in Baljnath Gupta v. State of M.P.(") t~is Court further· explained that it is the quality of the act thnt is important and if it falls within the scope and range of the oflki11! duties of the public · ·servant concerned the protection contempluted by s. 197 ·of the Crimim1! Procedure Code will be attracted.

The principle embodied i·n this section seems to be well-under-stood; the difficulty normally lies is in its application to the facts of given case. The. question whether ·a particular act is done by public servant in the discharge of his official duty is substan-tially one of fact Jo be determined on the circumstances of each case. In the present case the alleged offence consists of the use of defamatory arn'd abusive words and of getting the complainant forcibly turned out of the operation theatre by the Cook. There is nothing on the record to show that this was part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his fficial duty that without so acting he could not have pro~rly ·discharged it. '-...

(I) (1955) 2 S.C.R. 925.

. . (21 (1955) I S.C.R. 130201. iJ07 ..

(3) (1966) I S.C.R. 2JO.

As suggested by this Court in Prabhakar V .. Sinari v. Shanker ,Anant Ver/ekar(') it would be open to the appeJla,nt to place mate-rial on the record during the course of the trial for showing what his duty as Cjvil Surgeon was and also that the impugned acts were inter-related with his official duty so as to attract the protecti0n afforded bys. 197, Cr.P.C. We do not find any material on the ·existing record suggesting that the impugned ac:s were 'do;oo by the appellant in the discharge of his official duty or that they are directly connected with it. This appeal accordingly must fail ,11nd is dismissed.

Appeal dismissed.