M.Murtaza Husain - (1.) THROUGH his order dated 25-7-74, passed in Criminal Revision No. 110 of 1973, the 1st Addl. District Judge, Faizabad has made this reference with the recommendation that the order dated 23-8- 73 passed by Sri A. U. Khan, Magistrate 1st class, Faizabad in complaint Case No. 387 of 1971, Mohammad Hashim Ansari v. Kazi Jalil Abbasi, summoning the revisionist to stand his trial under Section 500 IPC be quashed.
(2.) THE facts of the case, giving rise to this reference, are that on 22-10- 1971 Mohd. Hashim Ansari, opposite party filed a complaint before the ADM (J), Faizabad against Kazi Jalil Abbasi revisionist and six others alleging that an offence under Section 500 was committed by them. It was mentioned in the complaint that on 2-1-71 a public meeting was held in the city of Gorakhpur under the auspices of All India Bangla Desh National Integration Convention That meeting was addressed by the revisionist and several others. THE revisionist was then a Minister of State in the U. P. Government. During his speech he had allegedly remarked that the Indian Muslims were traitors and that they used to look at Indian problems through Pakistani spectacles. That speech was published in an Urdu weekly of Varanasi named Tanveer. THE complainant, who was a resident of Ajodhya in the district of Faizabed, read with that news item on 18-10-71 and considered it to be defamatory for himself and other Muslims. He then filed a complaint before the ADM (J) against the revisionist and six others. Evidence under Section 200 and Section 202 CrPC was recorded by the learned ADM (J) and then the case was transferred to the tile of the learned Judicial Magistrate, Akbarpur at Faizabad who passed the impugned order. Through that order he summoned only the revisionist to stand his trial under Section 500 IPC and discharged others named in the complaint. THE revisionist then filed Griminal Revision No 110 of 1973 before the District & Sessions Judge, Faizabad. It was heard by the learned 1st Addl. Sessions Judge, Faizabad who has made this reference. In his view the impugned speech was made by the revisionist while discharging his duty as a public servant and, therefore, cognizance of the alleged offence could not be taken without local Governments' sanction under Section 197 (1) CrPC. It has also been held by the learned Ist Addl. District & Sessions Judge that the Magisterial Court at Faizabad could not take cognizance of the complaint because the alleged defamatory utterances were made at Gorakhpur. Lastly he held that the learned ADM (J) was legally not justified in transferring the case to the file of any other Magistrate after recording evidence under Section 200 and Section 202 CrPC. THE Magistrate concerned has submitted a lengthy explanation dated 25-7-74 justifying the impugned order passed by him. No body turned up on behalf of the complainant when 1 heard this reference case, though the revisionist was duly represented. I have heard the learned counsel for the revisionist and have gone through the material on record through his assistance as well as the assistance of the Government Advocate. The first ground on which the learned 1st Addl. Sessions Judge has recommended quashing of the impugned order passed by the Magistrate concerned is that the revisionist being a Minister of State in the U. P. Cabinet, at the time when he made the impugned speech, cognizance of the alleged offence could not be taken against him without Government's sanction as contemplated by Sec. 197(1) CrPC. The object of that section is to guard against vexatious prosecution of public servants. Though it cannot be disputed that in his capacity as a Minister the revisionist was a public servant when he is said to have made the impugned utterances, but in order to claim the protection afforded by Section 197 (1) CrPC the accused has not only to show that he was a public servant as contemplated by that section but it has also to be shown that the offence complained of was committed by him while acting or purporting to act in the discharge of his official duty. The allegations of the complaint, as well as the evidence recorded by the ADM (J) u/Sec. 200 and Sec. 202 CrPC do not indicate that the alleged meeting was attended by the revisionist in his capacity as a Minister of U. P. Government, or that he had called the Muslims of India to be traitors as they looked at Indian problems with Pakistani spectacles while acting or purporting to act in the discharge of his official duty. The Convention wherein the impugned speech was made by the revisionist was a public function organised by the citizens of Gorakhpur. Members of Parliament and State legislature, other prominent citizens, and, politicians had participated in the meeting of that convention. There is nothing on record to show that it was a convention held by the Government, or that the revisionist attended it only by virtue of his office as a Minister of the State and not in his individual capacity. Nor there is anything on record to show that revisionist's visit to Gorakhpur when he made the impugned utterances was his official visit. It can, therefore, not be said at present that the alleged utterances were made by the revisionist at a time when he was acting or purporting to act in the discharge of his official duty.
(3.) IT has been held in Matajog Dubey v. H. C. Bhari, AIR 1958 SC 44 that: "IT is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purpoted to be done in the discharge of official duty : but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction Is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case." IT is quite possible that at subsequent stages of the present case also it may come to the notice of the Court that whatever the revisionist said or did, was said or done by him while acting or purporting to act in the discharge of his official duty. The complaint may then be thrown away for want of the required sanction. At present there is nothing on record to show that the revisionist committed the alleged offence while acting or purporting to act in the discharge of his official duty, so as to entail summary dismissal of the complaint for want of required sanction. Learned counsel for revisionist relied upon the case of B. Basaval Lingappa v. V. Naratimhan, 1974 CrLJ 66 wherein during the course of his official visit to a village the Minister for Municipal Administration had spoken of a shocking health hazard in Jalahalli west area villages. He stated about garbage from the Air Force mess, meant for pigs, being sold to the villagers and asserted that they were suffering from various diseases due to its consumption. A complaint was filed against him under Section 500 IPC alleging that the aforesaid utterance made by him were defamatory. It was held on the fact of that case that though the statement allegedly made by the Minister fell outside his protfolio yet it was made by him only while acting in the discharge of his official duty. On that account it was laid down that the complaint was barred by Section 197 CrPC.;