Patna High Court
D.S. Bhoria And Anr. vs N. Singh on 12 February, 1969
Equivalent citations: 1970CRILJ642
ORDER G.N. Prasad, J.
1. There are two petitioners before me. The first petitioner, D.S. Bhoria, is an Assistant Traffic Superintendent of the Eastern Railway, posted at Dehri-on-Sone. The second petitioner, Jamuna Rai, is a Havildar of the Railway Protection Force of the Eastern Railwav. Both the petitioners are accused in a complaint case No. 382 of 1968, which has been instituted against them by N. Singh, a Ticket Collector of Gaya Railway Station of the Eastern Railway. This complaint was filed by the Ticket Collector on the 23rd May, 1968, by way of a protest petition against the police investigation in G. R. P. Case No. 26 (III) 68. The subject matter of the complaint is a certain incident which took place at the main gate of the Gaya Railway Station at about 10 A.M. on the 30th March, 1968.
2. According to the allegations made in the petition of complaint, while the complainant was on duty at the above time and place, he detected an unbooked child passenger in the company of a Third Class passenger going out of the wicket of the platform. The complainant challenged the said passenger and asked him to pay the requisite charge amounting to Rs. 1.10. The amount was paid. What happened thereafter has been stated in paragraphs 4, 5, and 6 of the complaint petition in the following terms.--
4. That while your petitioner was taking out the EFT Book from his pocket for issuing necessary receipt to the passenger, accused No. 1, who was in Sada dress, all on a sudden, came near the gate and caught hold of your petitioner's collar and began to abuse the petitioner filthily. The accused also assaulted the petitioner with slaps and fists.
5. That the accused No. 2, who was also in Sada dress, joined the accused No. 1 and gave blows on the back and chest of the petitioner.
6. That both the accused persons thereafter forcibly dragged the petitioner away from the main gate with the result that the petitioner's shirt was torn and his number plate 2816 was lost and the gate remained unattended.
It has then been stated that the complainant raised alarm whereupon the witnesses intervened and saved the complainant. Then it has been stated in paragraph 8:
That after release the petitioner issued the necessary EFT for the above unbooked child.
(It may be mentioned here that 'EFT' stands for 'Excess Fare Ticket').
3. The Munsif Magistrate, to whom the case was sent for disposal after the order of the learned Sub-divisional Magistrate dated the 7th June, 1968, whereby he took cognizance against the petitioners of offences under Sections 323, 500 and 504 of the Indian Penal Code, was called upon to decide as to whether the prosecution against the petitioners could be proceeded with without sanction of the requisite authority under Section 197 of the Code of Criminal Procedure so far as the first petitioner is concerned and in face of Section 20 of the Railway Protection Force Act (Act XXIII of 1957), so far as the second petitioner is concerned.
4. By the impugned order, passed by the learned Magistrate on the 17th December, 1968, the learned Magistrate has come to the conclusion that--
No sanction under Section 197, Cr. P. C. is required for prosecution of accused Nos. 1 and 2 for the acts as alleged in the complaint petition.
I wish to make it clear at this very stage that there was no third accused before the learned Magistrate apart from the two petitioners. The learned Magistrate has not referred to the Railway Protection Force Act, 1957, at all, and, therefore, he has not dealt with the case of the second petitioner in the light of the provisions of the said Act.
5. The occasion for the presence of the petitioners at the scene of the alleged occurrence is not in controversy before me, nor this was in controversy before the learned Magistrate, as indicated in paragraph 4 of the impugned order. It is also not in dispute that the first petitioner is a Class I Railway Officer of the Central Government and that he was at the relevant time on his official duty of making surprise checking by way of supervision of the works of the ticket collectors dealing with ticketless travellers or unhooked passengers. The second petitioner had been commanded by his superior officers to assist the Assistant Traffic Superintendent for checking duty against ticketless travelling. The question for consideration, therefore, is whether in this background, the provisions of Section 187 of the Code of Criminal Procedure were attracted in the case of the first petitioner, and, whether the provisions of Section 20 of the Railway Protection Force Act, 1957, became applicable so far as the second petitioner is concerned.
6. So far as the case of the second petitioner is concerned, it is enough to refer to the relevant provisions of the Act of 1957. Section 11 of that Act provides that--
It shall be the duty of every superior officer and member of the Force--
(a) promptly to execute all orders lawfully issued to him by his superior authority:
(b) to protect and safeguard railway property."
(c) ** ** **
(d) to do any other act conducive to the better protection and security of railway property.
Section 12 of the Act empowers a member of the Force to arrest without warrant or order of a Magistrate--
(a) any person who has been concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months, or against whom a reasonable suspicion exists of his having been so concerned; or,
(b) any person found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to, railway property." Section 15(1) of the Act provides:
(1) Every superior officer and member of the Force shall, for the purpose of this Act, be considered to be always on duty, and shall, at any time, be liable to be employed in any part of the railways throughout India.
Finally we come to Section 20, Sub-section (1) of which is in the following terms:-
In any suit or proceeding against any superior Officer or member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority.
Sub-section (3) of Section 20, which is directly relevant for the present purpose, reads--
Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any superior officer or member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.
7. As already stated the second petitioner had been commanded to assist the 'Assistant Traffic Superintendent in the work of checking ticketless travelling. By reason of Section 15, he must be deemed to have always been on duty. In view of Sub-section (3) of Section 20, the prosecution against the second petitioner could only have been commenced after a prior notice of one month in writing of of such proceeding and of the cause thereof to the petitioner himself as well as to his superior officer. This requirement of Section 20(3) of the Act had not been complied with and it must, therefore, follow that his prosecution as instituted is not valid.
8. I will now turn to the case of the first petitioner. Section 197 of the Code of Criminal Procedure, so far as it is relevant is in the following terms:-
(1)... When any public servant who is not removable from his office save by or with the sanction of... the Central Government, 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 a person employed in connection with the affairs of the Union, of the Central Government; and
(b) ** ** ** The substantial question for consideration, therefore, is whether, while the alleged offences are said to have been committed by the first petitioner, he was "acting or purporting to act in the discharge of his official duty."
9. The scope and ambit of Section 197 of the Code of Criminal Procedure have been the subject of a series of judicial decisions and the principles which must be borne in mind while dealing with the question as to whether the provisions of Section 197 of the Code are attracted in the circumstances of a particular case are no longer in dispute. It is well settled that to attract the provisions of Section 197(1) of the Code the offences alleged to have been committed by a public servant must have some relation to the discharge of his official duty. No question of sanction can arise unless the act complained of is an offence, but, where the act complained of constitutes an offence, the point to be determined is whether it was committed in the discharge of official duty. As pointed out by the Supreme Court in the case of Matajog Dobey v. H.C. Bhari :
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.
Their Lordships have further pointed out--"What we must find out is whether the act and the official duty are so inter-related 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.
A reference has been made therein to the observations of their Lordships of the Supreme Court in the case of Hori Ram Singh v. Emperor AIR 1939 FC 43. There, Sulaiman J. observed at page 51:
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 is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.
At page 56 of the report, Varadachariar, J. observed:
There must be something in the nature of the act complained of that attaches it to the official character of the person doing it.
A reference has also been made to Shree-Kantiah Ramayya Munipalli v. State of Bombay where Bose, J., made the following observations:
Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
Dealing with the same matter, in the case of Baijnath v. The State of Madhya Pradesh Ramaswami, J., made the following observations:-
It is not 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 the quality of the act which 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.
10. Before the learned Magistrate an argument was advanced on behalf of the complainant that it was no part of the official duty of the first petitioner to abuse and assault a man who was also on official duty. While it is true that such act can never form part of the official duty of a public servant, it is not right to suggest that the applicability of Section 197(1) of the Code is automatically excluded where an offence is alleged to have been committed by a public servant. The truth is, the section presupposes that some offence has been committed by a public servant. To put it differently, it is only where an offence is alleged to have been committed by a public servant that the Court is called upon to address itself to the question whether his act falls within the scope of the section or not. It must therefore, be assumed, for the limited purpose of deciding the question of sanction, that the first petitioner did commit the offence of abusing and assaulting the complainant at the relevant time and place. Starting with this assumption, the enquiry which has to be made is, whether his act was within the range of his official duty or wholly unconnected therewith.
If it was wholly unconnected with his official duty, then Section 197(1) is inapplicable. But the section must come into play if the criminal act was within the scope of his official duty even though it may have been done by him in excess or in dereliction of his official duty, which was the duty of supervising the, work of the complainant in dealing with unbooked passengers. The learned Magistrate seems to have been under the impression that unless resistance or obstruction had been offered by the complainant, the first petitioner cannot be said to have been acting in course of his official duty in committing the criminal act attributed to him. In my judgment, this is not a correct approach to the problem. Resistance or obstruction is not invariably essential to attract the provisions of Section 197 of the Code. Even where there has been no resistance or obstruction to a public servant in the discharge of his official duty the public servant may, when challenged, maintain that what he did was by virtue of his office, and his stand may be upheld even if it is found that he had overstepped the needs and requirements of the situation. The protection afforded by Section 197(1) would be available to him unless it appears that he took undue advantage of his official position and committed a crime which had no relation whatsoever to his official duty. Therefore, even though there was no obstruction or resistance in the performance of the duties of a public servant, the learned Magistrate ought to have applied his mind to all the attendant circumstances under which the first petitioner is alleged to have indulged in abuse and assault upon the complainant. I should also observe here that it is now well settled that for deciding the question as to whether an offence was committed in the course of official duty or not, the facts and circumstances of the decided cases can afford no solution. That is a question which must be decided upon the facts of each particular case.
11. Let us then visualise the circumstances leading to the present incident. The first petitioner had been deputed to supervise the work of the complainant with particular reference to unbooked passengers. As the allegations stand, ho had seen the complainant holding up one unbooked child passenger in the company of another passenger who held a third class ticket. The complainant had also recovered a sum of Rs. 1.10 from that passenger. This recovery necessitated the issue of a receipt from the Excess Fare Ticket Book. The alleged offence of abuse and assault took place before the necessary receipt was made out by the complainant, as required under the rules. It was possible, as alleged in the complaint petition, that the complainant was on the point of bringing out his E.F.T. Book from his pocket for the purpose of making out the necessary receipt for the passenger. But the fact remains that, even according to the complainant, he had not made out the receipt for the unbooked passenger from whom he had already recovered the unbooked or excess fare.
It was before that stage that the first petitioner is Supposed to have indulged in abuse and assault upon the complainant. In order to determine, whether the act falls within the ambit of Section 197(1) or not, a vital question, which the court must investigate is, what could possibly have been the reason for the first petitioner to have acted in such a manner. Was he actuated with any ill-will or malice towards the complainant so as to suggest that taking advantage of his official position he had sought to teach the complainant a lesson? If so, he could not be said to have been acting in discharge of his official duty. But, there is absolutely no allegation of any antecedent ill-will or grudge between the parties. Nor there is any suggestion that the act was committed by the first petitioner in order to derive any monetary or any other kind of advantage from the complainant.
It is difficult to imagine that the first, petitioner had thought of deriving any personal satisfaction by abusing and beating the complainant in the manner alleged. It would, in my opinion, be more reasonable to say that the first petitioner had somehow formed the impression that the complainant was not discharging his duties properly, and he thought it proper to intervene, may be with undue haste, so that the unbooked passenger from whom the fare was recovered might not, in the mean time, disappear from the scene, thus leaving no tangible evidence of the fact that a sum of Rs. 1.10 had been recovered from him by the complainant. It may be that the complainant would have ultimately made out the necessary receipt for the said unbooked passenger. But, if the petitioner acted in haste or under extra-ex.iberance in his anxiety to ensure that the complainant did his duty of accounting for the money which he had realised from the unbooked passenger, then it would not be reasonable to say that he had ceased to act in course of his official duty. His case would still fall within the ambit of having acted in course of his official duty, though in excess of such duty or in dereliction thereof. The act was undoubtedly done by the first petitioner as a result of his direct involvement flowing from his official position and performance of his duty of supervising the work of the ticket collector. Further, it can well be imagined that when the first petitioner had abused the complainant under the impression, though it may have been erroneous, that he had not duly accounted for the money realised from the passenger, then there was some altercation between the two.
It seems to me that at the initial stage of the occurrence the complainant was not aware of the official capacity of the first petitioner. I say so because in paragraph 4 of the complaint petition it has been stated that the first petitioner was then in plain clothes and in paragraph 9 it has been stated that it was only at a later stage that it was disclosed that the first petitioner was an Assistant Traffic Superintendent and this had not been disclosed earlier. If there was a retort on the side of the complainant, as one would naturally expect in the circumstances then the first petitioner, who had intervened in the work of the complainant in his official capacity, would reasonably be deemed to have been acting in virtue of his office even at the next stage when he is supposed to have indulged in physical violence towards the complainant. The act of assault alleged to have been committed by the first petitioner was obviously in close sequence of his official act of intervention with the work of the complainant under some impression that he had not accounted for the money as he should have done. Under these circumstances, the act of the first petitioner is easily traceable to his official duty though in excess or in dereliction of such official duty. Here, I should make it clear that on the face of the complaint petition it has not been stated that there was any altercation or retort from the complainant when the first petitioner had abused him. But, in considering the question as to whether a particular case falls within the ambit of Section 197 of the Code, the Court is not precluded from looking beyond the strict terms of the allegations made in the complaint, for, as pointed out in the case of Somchand Sanghvi v. Bibhuti Bhusan Chakravarty :
It is true that for considering whether Section 197, Cr. P. C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look be-vond the form in which the allegations have been made and is incompetent to ascertain for itself their substance.
In my opinion, the act of the first petitioner, even on the footing that it was in excess of his official duty, or committed in direliction of his duty, was an act committed by him in discharge of his duty as a public servant, since the act of criminal assault cannot, be explained upon any rational basis except that it was on account of undue anxiety on the part of the first petitioner to ensure that the money was properly accounted for without any loss of time, I should add that the learned Magistrate has taken the view that the present case is parallel to the facts of the case of Prabhakar V. Sinari v. Shankar Anant Verlekar AIR 1967 Goa 121. That, however, was a case of gross abuse of official position which was blatantly beside the scope of the duty of the public servant concerned. In the present case, it appears that, so far as the first petitioner is concerned, he had assaulted the complainant only with slap = and fists. I must make it clear that I am not here finding any iustification or defence for the act committed by the first petitioner. I am also not recording any finding that the allegations against him are true. I am merely examining the quality of the act which has been attributed to him and which, if proved, would constitute an offence. In my opinion, the learned Magistrate was in error in thinking that the present case tallies with the facts in the Goa case. In my view, this is not a case of total absence of nexus between the criminal act attributed to the first petitioner and his duty as a public servant. I, therefore, hold that the case of the first petitioner falls within the ambit of the provisions of Section 197(1) of the Code of Criminal Procedure.
12. Since the requisite sanction for the prosecution of the first petitioner has admittedly not been accorded, the question arises as to what order should be made in this case. In my opinion, as indicated in Nagraj v. State of Mysore , the prosecution which has been instituted against the petitioners must be dropped. In the result, I set aside the order of the learned Magistrate and make the rule absolute, as indicated above.