Full Judgment Text
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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.