JUDGEMENT
D.A.DESAI -
(1.)Natubhai Manilal Desai applicant in this revision application is the original complainant He filed a complaint against opponents Nos. 1 and four others on 25th April 1968 alleging that opponent No. 1 and four others committed criminal trespass in his house on 11 February 1968 and present opponent No. 1 who was original accused No. 1 assaulted him or used criminal force against him. The applicant was at the relevant time the Chairman of Karmabad Nutan Vasahat Co-operative Society Limited Opponent No. 1 was the District Registrar of Co-operative Societies in charge of Banaskantha District at Palanpur. He made an order under sec. 83 of the Gujarat Co-operative Societies Act authorising the auditor who was original accused No. 2 to seize the books of accounts of the said society from the complainant. Pursuant to this order original accused No. 1 the auditor original accused No. 2 Mahendrakumar Joshi and two peons of the department along with the present opponent No. 1 went to the house of the complainant committed criminal trespass into it and it is alleged that the present opponent No. 1 assaulted the complainant. In respect of this incident the complainant filed a complaint. In para 13 of the complaint it was stated that the present opponent No. 1 had not entered into the house of the complainant in discharge of his duty by virtue of the office he held and the act alleged to have been done was not done in discharge of his duty and that it was not a bona fide act and therefore it is not necessary to obtain sanction before filing a complaint against him. It was stated that as the present opponent No. 1 is a gazetted officer of the Government of Gujarat and therefore no process should be issued against him at this stage till the sanction to prosecute him is obtained. The learned Magistrate recorded the statement of the complainant on oath and issued process against original accused Nos. 1 to 4 for having committed offences under secs. 448 and 352 of the Indian Penal Code. Subsequently on 2-11-1968 the complainant gave an application Exh. 11 requesting the learned Magistrate to issue process against the present opponent No. 1 as the opponent No. 1 in a cognate case admitted that he had not entered the house of the complainant by virtue of his office or in discharge of his official duty and therefore it is not necessary to obtain sanction to prosecute him as required by sec. 197 of the Criminal Procedure Code. This application was rejected by the learned Magistrate observing that the act alleged to have been committed by opponent No. 1 appears to have been committed by him while acting or purporting to act in discharge of his official duty and therefore the Court cannot take cognizance of such offence without the previous sanction of the State Government. The complainant preferred Criminal Revision Application No. 1 of 1969 in the Court of Sessions Banaskantha at Palanpur. The learned Additional Sessions Judge was of the opinion that looking to the facts and circumstances emerging from the complaint and circumstances attendant upon the incident a sanction to prosecute opponent No. 1 as envisaged by sec. 197 is necessary. He accordingly dismissed the revision Application The complaisant has challenged this order in this Revision Application.
(2.)The narrow question that falls to be determined in this Revision Application is whether on the facts and circumstances as disclosed in the complaint filed by the complainant and his statement on oath could it be said that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty ? If it appears that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty the Court cannot take cognizance of such offences except with the previous sanction of the State Government as required by sec. 197 because opponent No. 1 is an officer who is not removable from his office save by or with the sanction of the State Government. At one stage Mr. Zaveri attempted to urge that there is nothing to show that opponent No. 1 who is the District Registrar is an officer removable from his office save by or with the sanction of the State Government and therefore sec. 197 will have no application to the case in which opponent No. 1 is prosecuted for having committed offences. Mr. J. U. Mehta learned Assistant Government Pleader pointed out to me a notification of the Government of Gujarat General Administration Department dated 4th September 1964 which shows that the opponent No. 1 who was then officiating Lecturer in Gram Sevak Training Centre was promoted and appointed to officiate as District Registrar Co-operative Societies Bhuj. This order appears to have been issued under the signature of one G. N. Dike Deputy Secretary to the Government of Gujarat by order and in the name of the Governor of Gujarat. Prima facie it appears to be an appointment made by the Government of Gujarat and if opponent No. 1 is appointed by the Government of Gujarat necessarily he could not be removed by any authority lower than the appointing authority. Therefore on the materials placed it would prima facie appear that he is an officer who is not removable from his office save by or with the sanction of the State Government. However it would be open to the complainant to establish by leading evidence that the case is otherwise.
(3.)Sanction of the State Government as envisaged by sec. 197 would be necessary if such officer 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. The protection of sec. 197 will be available to the officer if and only if the offence alleged to have been committed by him was committed while acting or purporting to act in the discharge of his official duty. The words; acting or purporting to act in the discharge of his official duty came up for consideration by the Supreme Court in Matajog Dobey v. H. C. Bhari A.I.R. 1956 S.C. 44. After referring to the earlier decisions of the Federal Court and Privy Council the Supreme Court interpreted the words acting or purporting to act is the discharge of his official duty as under:-
The offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. No question of sanction can arise under sec. 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation.
At other stage it was observed:-
The result of the foregoing discussion is this. 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 but not a pretended or fanciful claim that he did it in the course of the performance of his duty. In K Satwant Singh v. State of Punjab A.I.R. 1960 S.C 266 it was held that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance acceptance of a bribe an offence punishable under sec. 161 of the Indian Penal Code is one of them and the offence of cheating or abetment thereof is another. It was held that where a public servant commits the offence of cheating or abets another so to cheat the offence committed by him is not one committed while he is acting or purporting to act in the discharge of his official duty as such offences have no necessary connection between them and the performance of the duties of a public servant the official status furnishing only the occasion or opportunity for the commission of the offences. The above quoted observations from the case of Matajog Dobey were also affirmed and approved. In Dhananjay Ram Sharma v. M. S. Uppatlaya and others A.I.R. 1950 S.C. 745 the accused while witnessing a search as a Panch was charged for committing offences of theft and misappropriation of property belonging to the complainant and also offence of wrongful confinement. In prosecution for the aforementioned offences it was contended that the accused being a railway servant the Court cannot take cognizance of the offence against him unless sanction of the Central Government was obtained. Repelling this contention it was held that the presence of the accused in the house of the complainant had nothing to do with the performance of his official duties. He was neither performing any official duty in going to that house nor doing anything there nor was he purporting to do so. It was held that the mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty as to justify even remotely the view that the acts complained of were within the scope of their official duty. In Rajeshwar Ran v. Bansidhar Rao A.I.R. 1952 Hyderabad 135 an employee of the Forest Department was charged for criminal trespass insult theft of Kadvi and also for assaulting the complainant. In prosecution of the aforementioned offences the accused claimed protection of sec. 197. Negativing the contention that the Court cannot take cognizance of the offence without sanction of the State Government it was observed that the test in such cases is that the act should not be in derogation of official duties and it must lie within the scope of his duty and then alone could it be said that the act had been done when he was purporting to discharge his official duties. While discharging his official duties if he exceeds the authority vested in him then also the provisions of sec. 197 would come into operation because he would be deemed to be discharging his official duties and while so doing the overstepped the exact boundaries of his duty. Approaching the case from this angle it was observed that in respect of the charge relating to insult with intent to intimidate and charge as regards theft of Kadvi and the charge for the offence of assault the Court can take cognizance and no sanction is necessary. In Nagraj v. State of Mysore A.I.R. 1964 S.C. 269 a Sub-Inspector of Police was committed to the Court of Sessions for having committed offences under secs. 307 and 326 of the Indian Penal Code. The learned Sessions Judge made a reference to the High Court under sec. 438 of the Criminal Procedure Code for quashing the commitment on the ground that there was no sanction to prosecute the accused. It was observed that the Court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under secs. 127 and i28 of the Criminal Procedure Code. The question as to at what stage the question of sanction should be considered it must be remembered that if the question is raised before the trial proceeds the Court must look at the allegations made in the complaint because the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. In Baijnath v. State of Madhya Pradesh A.I.R. S.C. 220 it was observed that it is not every offence committed by a public servant that requires sanction for prosecution under sec. 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 office then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by sec. 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 climbable.
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