PUKHRAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) J:- The appellant filed a complaint against the 2nd respondent before the Addl. Munsiff Magistrate of Jodhpur City under Sections 323 and 504 Indian Penal Code. The 2nd respondent was the Post Master General, Rajasthan and the appellant a clerk in the Head Post Office at Jodhpur. He was also the Divisional Secretary of National Union of Postal Employees. The relevant portion of the complaint is as follows:

(2.) The law regarding the circumstances under which sanction under Section 197 of the Code of Criminal Procedure is necessary is by now well settled as a result of the decisions from Hori Ram Singh's 1939 FCR 159 = (AIR 1969 FC 43) case to the latest decision of this Court in Bhagwan Prasad Srivastava v. N. P. Misra (1971) 1 SCR 317 = (AIR 1970 SC 1661). While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be 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 a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably 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 a private capacity by a 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 describe 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 a duty. In Hori Ram Singh's case (supra) Sulaiman, J. observed:

(3.) We must also make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad v. King Emperor, 1945 FCR 227 = (AIR 1946 FC 25) referring to the observations of Sulaiman, J. in Hori Ram Singh's case (supra) the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself 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 duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary 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 (1955) 2 SCR 925 = (AIR 1956 SC 44) (supra).) In (1971) 1 SCR 317 = (AIR 1970 SC 1661) (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) 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 official duty so as to attract the protection afforded by Section 197 Cr. P. C.