PUKHRAJ versus STATE OF RAJASTHAN & ANR.

PUKHRAJ

STATE OF RAJASTHAN & ANR. August 29, 1973

lR R. KHA~NA AND A. _ALAGIRISWAMI, JJ.J

Sectio11 197 Cr. P.C;-Sa11etlon-A criminal complaint fil6d l1y o &11bordlnate cnip/oyee ogait1.rt his superior alleging 11Se of abusive language and giving kicb.

The appellant filed complaint &pilnt respondent No. 2, his superior officer, in the Postal Department, under sections 323 and 502 of I.P.C. alleging that when 1he appellant went with certain complaint to the second responden~ the second resoondent kicked him in his abdomen and abused him by eaying "Sale, gunde, badmaoh ... " The second respondent filed an application under oection 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 all done by the accused were done while discharging his duties as public 5ervant. The trial ~tagistra.te dismissed the application. The High Court allowed tho revision ;1 pplkation of second respor:.::lent. Allowing the appeal, HELD : ( i) At. this stage, the Court ls concerned only with one point, viz., 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;., kitting the complainant and abusing, cannot be . said to have been done in the cpnrse 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 esta~ blisb the necessity for sanction. It may be possible for the second 1espondent 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 ofticial duty, so as to attract the protection afforded by Sec. 197 of the Cr. P.C. Whether sanction is necessary or not may have to depend from stage to stage.

Horirarn Singh, [1939] F.C.R. 159, Bhagwau Prasad Sriv4flava v. N.' P. Mishra, [1971] 1 S.C.R. 317, Mataiog Dobey v. H. C. Bharl [19551 2 S.C.R. 925 and Sarioo Prasad v. The King Emperor, (1945] F.C.R. 227, relied npon.

CR1MiNAL 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 Jodhour in S. B. Criminal Revision No. 52 of 1972.

B. D. Sharma, S. K .. Bagga, S. Bagga, Rani Arora and Yash Bagga, 0 for the a.PPellant.

S. M. Jain, for respondent No. 1.

S. N. Prasad, for respondent No. 2.

The Judgment of the Court was delivered by ALAGill.ISWAMI, J. The appellant filed complaint against the 2nd respondent before the Addi. Munsiff Magistrate of J.odhpur City under ss. 3Z3 and 504 l.P.C. The 2nd respondent was the Post Master General. Rajasthan and the appellant clerk in the Head Post Office

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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-HJ..1971. He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5.45 P.M. The com!>' lainant reached to submit his representation to the accused for cancelling his transfer, when the accnsed just sat in his jeep and the complainant started narrating his story.

came on tour to Jodhpur on

"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 · yOll · are OOJ!IPJaining ·and · on the other hand you are requesting for the.,.Cimcellation of transfer. ·

"6. That the complainant became v&y much enraged over this incident but he suppressed .his anger because. of being responsible citizen and to avoid any further disturbance.

"1·. 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 oognizance of the offence without the sanction of the Government as the acts alleged, if at .all done by the accused, were done while dis-charging his duties as a. public servant. The Munsiff Magistrate dis· misScd the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and s.:t aside the order of the lower court holding that the 2nd respondent could oot be prosecuted unless prior sanction of the Central Government had been obtained. This appeal is against that ord&.

The law regarding the circllllllltances under which sanction \ll]der 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 Bhagwan Prasad Srivastava v. N. P. Miara. (2) While the law is well settled the difficulty really arisee in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being un!ltt#-sarily harassed. The section is not restricted only to cases of anyd!log purported to be done in good faith, for person who ostensibly acts In execution of his duty still.P~ so to act. although .he may have dishonest. intention. Nor is It coDfined to cases where. the act, which constitutes the offenee, is the officiiil duty of the official concemcd. Such an int&pretation would involve contradiction. in terms, because an offence can. never lie 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

(2) [1971] (I) S. C. R. 317.

(1) [1939] F. C. R.159.

A. public servant and not by anyone else, but that it is committed by public servant in an act done or purportiµg to be done in the execu-tfon of his duty. The section cannot be· confined 1IO OQly such acts as are done by public servant directly in pursuance of his pllblic office, though in excess of the duty or under mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so ir.separably 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 private capacity by 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 des· cribe 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 duty. In Hori Ram Singh's case (supra) Swaim an, J. observed : "The section cannot be confined to only such acts as are done by j>ublic servant directly in pursuance of his public office, though in excess of the duty or under mis-D taken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act consti-tuting the offence should be so inseparably connected with the official duty as to form part and parcel of the samt> trans• action."In th;> .same case V aradachariar, J. observed "there must be some-E thing in the nature of the act complained of that attaches it to the official character of the person doing it." In affirtning this view,· the Judicial Committee -of the Privy Council observed· in Gill'&(I) ·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(•) the Court was of the mw that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protec-tion afforded by section 197. After referring to the earlier cases the court summed up the results as follows :

"There must be reasonable connection between the act and the diSGl!arge of official duty; the act must bear such relation to the duty that the accused could lay reasonable but not pretended or fanciful claim, that he did it in th~ course of the performance of his duty." . Applying this test it is difficult to say that the acts complained of 1.e .. of kicking the complainant and of abusing him. could be said to (1) 1948 L .R. 75 I. A. 41. (2) [1955] (2) S; C. R. 925,

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have been dbne in the course of performance of the· 2nd responden\'s duty, At this stage all that we are concerned with is whether on the f&c1a alleged. in the complaint it could be said that what the 2nd res-pondellt 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]) referr-ing to .. the observations of Sulaiman, J. in Hori Ram Singh's caae (t111pra) the mere fact that the accused proposes to raise defence of th~ act having purported to be done in execution of duty would not in imelf 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 du!r. But facts subsequently coming to light during the course of the jlldicial inquiry or during the cowse of the prosecution evidence at the trial may establish the tleCC8Bity for sanction. Whether sanction is neoessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in Matajog Dobey v .. H. C: Bhari (supra). In BhagwaR Prasad Srivastava v. N. P. Misra (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this caae) to place the material on record during the course of the trial for show· iug what his duty was and also that the acts complained of were SQ inter-related with his official duty so as to. attract.the protection affom· ed by s.197, Cr.P.C.

This appeal.'is, therefore, allowed and the order of the learned Judge of tbr Hjp C\lllrt.is .set aside.

Appeal allowed.