S. S BYAS, J. -
(1.)ACCUSED Mansingh Deora has filed this revision for quashing an order of the learned Judicial Magistrate (3), Jodhpur dated November, 19, 1982, by which cognizance for offences under sections 323 and 504,i. P. C. was taken against him and he was summoned to take trial thereunder. The contention of the accused is that he being a public servant, cognizance of offence could not be taken against him in the absence of the requisite sanction under section 197, Cr. P. C.
(2.)IT would be proper to briefly recapitulate the facts giving rise to this revision. On October 12, 1982 the complainant Daulat Rathi submitted a complaint in writing in the Court below stating therein that the accused was the Chairman of Urban Improvement Trust, Jodhpur. On October 10, 1982 the Trust invited the bidders to make bids in the auction of a site for the Cinema House. This site is known as Manji ka Hattha situate on Mandore Road, Jodhpur. A number of families reside on this site by raising Kattcha structures. The auction of the site was to result in the up-rooting of these persons. These dwellers approached the Janta Party. The complainant was a member of that party. A delegation was led of these dwellers by the complainant to prevail over the accused not to make the auction of the site. Many other office bearers of Janta Party were there in the delegation. When the complainant alongwith delegation approached the accused and requested him not to auction the site, the accused got infuriated and started abusing the former. The complainant raised protest against the behaviour of the accused. The accused got more annoyed and slapped the complainant. The accused also illegally detained the complainant in the tent raised at the site. Thereafter the other employees of the Trust dragged down the complainant and gave him kicks. The members of the delegation and the dwellers tried to intervene and rescue the complainant Slogans against the accused were raised by the mob. Meantime the City Magistrate and the Additional District Magistrate came there and they reduced the complainant. The learned Magistrate, after conducting an enquiry under Section 202, Cr. P. C. summoned the accused to take trial for offences under Sections 323 and 504, I. P. C. Agrrieved against this order of taking cognizance, the accused has come up in revision.
I have heard the learned counsel for the parties and gone through the case file carefully. It may be noticed that the accused had initialy filed the writ petition against the impugned order which was later on treated as the revision.
It was vehemently contended by Mr. Purohit that the accused was and is the Chairman of the Urban Improvement Trust, Jodhpur. He being a trustee of the said Trust, is a public servant as per provisions of section 93 of the Rajasthan Urban Improvement Act, 1959. The allegation of the offence made against him show that the offences, if at all were committed, were committed while acting or purporting to act in the discharge of his official duties. It was argued that the accused was conducting an auction of the site for a cinema house in the capacity of the Chairman of the Trust. The complainant came with a mob, disturbed the conduct of auction and obstructed him (accused) in carrying out his functions as the Chairman of the Trust. The mob became violent and tention mounted there at the site. The City Magistrate, the Additional District Magistrate and the Additional Superintendent of Police, who were already there from the beginning, disbended the mob and controlled the situation. A report of the incident was lodged by an Inspector of the Trust against the complainant and others at Police Station, Mahamandir, Jodhpur within an hour of the occurrence. A case under sections 147, 332, 452 etc. of the Penal Code was registered against the complainant and his companions. It was urged by Mr. Pupohit that in view of these circumstances, what the accused did, even if the allegations of the complainant are taken as true on the face, was done by him while he was acting or purporting to act in the discharge of his official duty. As a Chairman, he was removable from the office only by the State Government and by no other authority. As such he could not be prosecuted until and unless a proper sanction for his prosecution was obtained from the State Government. Reliance in support of the contention was placed on Mata Jog Dobey Versus H. C. Bhari (1) and Hari Ram Versus B. P. Sood (2 ).
Mr. Mathur, learned counsel appearing for the complainant contended on the other hand that the acts committed by the accused had no connection with the discharge of his official duty. The acts committed by him had no connection with his duties. As such no sanction was necessary under section 197, Cr. P. C. before launching the complaint against the accused. Reliance in support of the contention was placed on Pukhraj Versus State of Rajasthan (3), and D. P. Sambhu Versus T. S. Krishnaswami (4 ). I have taken the respective submissions into consideration
There is no difficulty to hold that the accused is a public servant and continues to be even now. He was and is the Chairman of the Urban Improvement Trust, Jodhpur. "trustee" as defined in the Rajasthan Urban Improvement Act, 1959 includes the Chairman of the Trust. Section 93 of this Act lays down that every trustee shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. The accused, thus was and is a public servant.
(3.)THE real base of contention between the parties is whether the accused can or cannot be prosecuted in absence of sanction under section 197, Cr. P. C. THE avowed object of section 197, Cr. P. C, is to guard the public servants against vexatious and frivolous criminal proceedings and thus to save them from harassment and humiliation which one faces in the trial of a criminal case. Now, in order to extend the protection under section 197, Cr. P. C. two conditions should be satisfied :- (1) the accused must be a public servant not removable his office save by or with the sanction of the State or Central Government and, (2) the offence was committed by him while acting or purporting to act in the discharge of his official duty.
If these two conditions are there in a given case, the safeguard guaranteed under section 197, Cr. P. C. will at once spring up. In other words, these two conditions are sine qua non for the applicability of the safeguard guaranteed by section 197, Cr. P. C. If these two conditions are satisfied, the criminal court will not then take cognizance of the offence and if cognizance has been taken, it should be quashed and the criminal proceedings should be dropped.
The words "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" in section 197, Cr. P. C. afford a key for its application. Though a good heap of case-law has grown up around these words, the difficulty in actually applying them in a given case still persists. The difficulty is not so much about the principle underlying these words. It is there in applying it in a particular case.