Allahabad High Court
Mahipal Singh (S.I.) And 3 Others vs State Of U.P. And Another on 17 May, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 48 Case :- APPLICATION U/S 482 No. - 15081 of 2017 Applicant :- Mahipal Singh (S.I.) And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shanti Dhar Dwivedi,Atul Pandey Counsel for Opposite Party :- G.A. Hon'ble Surya Prakash Kesarwani,J.
1. Heard learned counsel for the applicants and the learned A.G.A. for the State.
2. Submission of learned counsel for the applicants is that the summoning order dated 03.08.2016 in Case No. 4912 of 2015 (Anwaar Tyagi Vs. S.I. Mahipal Singh and others), under Sections 406, 506, 166, 167 IPC, P.S. Dhaulana, District Hapur, has been passed by the learned Chief Judicial Magistrate, Hapur without the sanction under Section 197 Cr.P.C. and therefore, the impugned summoning order as well as the entire proceedings of complaint case are liable to be quashed. He further submits that the complaint was belatedly filed on false allegations and therefore, the impugned summoning order deserves to be quashed being an abuse of process of court.
3. Learned A.G.A. supports the impugned summoning order.
4. I have carefully considered the submissions of learned counsels for the parties.
Facts"
5. Briefly stated facts of the present case are that according to the opposite party no. 2 (hereinafter referred to as 'complainant'), he is a farmer. He, and certain other persons of the village purchased 14 bullocks in a cattle fair of village Panchayat Narayana, District Jaipur out of which 4 bullocks were of the complainant which he had purchased for Rs. 60,000/- from one Sri Hasi Ram Ji and obtained a receipt. All the bullocks were being transported through Truck No. U.P. 15 R-9891. After getting the bullocks loaded in the truck, the opposite party no. 2 returned to his home. He was waiting for arrival of the truck. When it did not reach then he inquired and came to know that on 11.11.2014 the applicants herein (hereinafter referred to as the 'accused') intercepted the truck, took away the bullocks and registered case crime No. 304 of 2014 under Section 3/ 11 of Prevention of Cruelty to Animals Act, 1960 and Section 5-A/8 of The Uttar Pradesh Prevention of Cow Slaughter Act, 1955. The accused shown recovery of only 6 bullocks out of which one bullock was shown to be dead. Recovery of remaining 8 bullocks was not shown by the accuseds and instead these bullocks were dishonestly sold by them @ Rs. 5,000/- each to Naushad son of Sakir, Naushad son of Islam, Haneef son of Baseer, Rifakat son of Jan Mohammad and Neeju son of Sharafat and Khurshaid son of Baseer all resident of village Sikhaida, P.S. Pilkhuwa. It is further alleged that when these facts came to the knowledge of the complainant on 20.02.2015 then he went to the police station and requested for the return of his four bullocks. The accused denied to return the bullocks. It is further alleged that when the complainant contacted the persons to whom accused had sold the bullocks then those persons refused to return the bullocks to the complainant stating that they had purchased them @ Rs. 5,000/- each from the Police. It is also alleged that the complainant send an application in this regard to the Superintendent of Police, Hapur, Station House Officer, Dhaulana and Chairman, Human Rights Commission, New Delhi through registered post on 24.02.2015. Prior to this, a letter dated 07.01.2015 was also send by Sri Jahid whose bullocks were also included in the bullocks transported through the truck which was intercepted by the accused. Statement of the complainant under Section 200 Cr.P.C. was recorded which supports the complaint version. The statement of witnesses were also recorded under Section 202 Cr.P.C. which also supports the complaint version.
6. On the other hand, according to the accuseds, merely 6 bullocks were recovered from the truck intercepted on 11.11.2014 and an FIR being Case Crime No. 304 of 2014 as aforesaid was registered against unknown persons including the driver of the truck in question. It is also mentioned in the said FIR that no witness could be available.
7. The learned Chief Judicial Magistrate considered the complaint, the statement of the complainant and the statements of witnesses and prima-facie found commission of offences under Section 406, 506, 166, 167 IPC and consequently the accuseds have been summoned by the impugned summoning order dated 03.08.2016.
Scope of interference at the Summoning Stage:
8. Considering the facts and circumstances of the case, as briefly noted above, I do not find any substance in the submissions of learned counsel for the applicants in the light of the law laid down by Hon'ble Supreme Court in the case of R.P. Kapur Vs. State of Punjab1, State of Haryana Vs. Bhajan Lal2, State of Bihar Vs. P.P. Sharma3, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another4 (Para-10) and Amanullah and another Vs. State of Bihar & Others5, inasmuch as, at this stage it cannot be said that no offence is made out against the accuseds/ applicants. The submissions made by learned counsel for the applicants relating to disputed questions of fact cannot be adjudicated upon by this Court while exercising jurisdiction under Section 482 Cr.P.C. at the summoning stage.
Scope of Section 197 Cr.P.C.:
9. The submission of learned counsel for the accused/ applicants to quash the impugned summoning order in the absence of any sanction under Section 197(1) Cr.P.C., has no substance in the facts and circumstances of the case.
10. Section 197(1) Cr.P.C. reads as under:
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression "Central Government" were substituted.
Explanation.-- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public service accused of any offence alleged to have been committed under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of Indian Penal Code (45 of 1860)
11. The scope of Section 197 Cr.P.C. has been explained by Hon'ble Supreme Court in the case of Amrik Singh Vs. State of Pepsu6 (paras 7 & 8) as under:
"In - 'H. H. B. Gill Vs. The King'7, the question arose directly with reference to Section 197(1), Cr.P.C. There, the accused was charged under section 161 with taking bribes, and under section 120-B with conspiracy. On the question whether sanction was necessary under section 197(1) it was held by the Privy Council that there was no difference in scope between that section and section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in in Hori Ram Singh v. Emperor8 , Lord Simonds observed:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty ........ The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
It was accordingly held that as the acts with which the accused was charged could not be justified as done by virtue of his office, no sanction was necessary. The view taken in AIR 1948 PC 128 (B) was followed by the Privy Council in Albert West Meads v. The King'9, and reaffirmed in 'Phanindra Chandra v. The King10' and adopted by this Court in R. W. Mathams V. State of West Bengal11.
8. The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; 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; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
12. In the case of Ronald Wood Mathams and others Vs. State of West Bengal12 (para 11) a Constitution Bench of Hon'ble Supreme Court observed that the question whether sanction under Section 197 Cr.P.C. is not necessary for instituting proceedings against a public servant on charges of conspiracy and of bribery, is now concluded by the decisions of Judicial Committee in H.H.B. Gill Vs. The King' AIR 1948 PC 128 (B) and Phanindra Chandra Neogy Vs. The King' AIR 1949 PC 117 PC (C)
13. In the case of K. Satwant Singh Vs. State of Punjab13 (para 16) another Constitution Bench of Hon'ble Supreme Court considered the expanded meaning of the phrase "while acting or purporting to act in the discharge of their official duties" used in Section 197 Cr.P.C. and held that the act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. 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.
14. Para 16 of the aforesaid judgment of Hon'ble Supreme Court in the case of Satwant Singh (supra) is reproduced below:
"16. Under S. 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor General-in Council or a Provincial Government, save upon a sanction by one or the other as the case may be, when such offence is committed by him while acting or purporting to act in the discharge of his official duty. Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under S. 420 of the Indian Penal Code by falsely stating as a fact, in his reports that the appellant's claims were true and that statement had been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under S. 420/109, Indian Penal Code. It appears to us to be clear 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 S. 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one 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 (vide Amrik Singh Vs. State of Pepsu, 1955 1 SCR 1302 ((S) AIR 1954 SC 309)). The Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty (vide Matajog Dobey Vs. H.C. Bhari, 1955 2 SCR 925: ((S) AIR 1956 SC 44)). It was urged, however, that in the present case the act of Henderson in certifying the appellant's claims as true was an official act because it was his duty either to certify or not to certify a claim as true and that if he falsely certified the claim as true he was acting or purporting to act in the discharge of his official duty. It is, however, to be remembered that Henderson was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the appellant to cheat. We are firmly of the opinion that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty. Such being the position the provisions of S. 197 of the Code are inapplicable even if Henderson be regarded as a public servant who was removable from his office by the Governor General-in-Council or a Provincial Government."
(Emphasis supplied by me)
15. In the case of S.K. Zutshi and another Vs. Bimal Debnath and another14 (paras 5 to 9) Hon'ble Supreme Court considered the question of applicability of Section 197 Cr.P.C., on the facts that illegal gratification was demanded by the public servant from a shop keeper (complainant) and on refusal to pay the same, the public servant ransacked his shop, took away goods and threatened with dire consequences; and held as under:
"5. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
6. At this juncture, we may refer to P. Arulswami v. State of Madras15, wherein this Court held as under:
"... It is not therefore 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 quality of the act that 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."
Section 197(1) and (2) of the Code reads as under :
"197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction -
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means 'taking notice of'. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
8. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar16, it was held : (SCC pp. 184-85, para 17) "17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
9. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari17 (AIR 1956 SC 44) thus :
"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ...
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 (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
(Emphasis supplied by me)
16. In the case of Sankaran Moitra Vs. Sadhna Das and another18 (paras 12, 19, 20 & 21), Hon'ble Supreme Court has held as under:
"12. We may first try and understand the scope of Section 197 and the object of it. This Court in Shreekantiah Ramayya Munipalli Vs. The State of Bombay19 explained the scope of Section 197 thus:
"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. The section has content and its language must be given meaning. What it says is ----
'when any public servant . 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....."
We have therefore first to concentrate on the word "offence".
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
This Court therefore held in that case that Section 197 of the Code of Criminal Procedure applied and sanction was necessary and since there was none, the trial was vitiated from the start.
19. In the light of the above decision it does not appear to be necessary to multiply authorities. But we may notice some of them briefly. In Pukhraj Vs. State of Rajasthan & Another, this Court held: (SCC p. 703, pr 2) "While the law is well settled the difficulty really arises in applying the law to the fact to 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 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 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 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 and 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 the office" may not always be appropriate to described or delimit the scope of 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."
20. In B. Saha & Ors. Vs. M.S. Kochar, this Court held: (SCC p. 185, para 18) "18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
21. In Bakhshish Singh Brar Vs. Gurmej Kaur & Anr. [(1987) 4 SCC 663], this Court stated that it was necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, and that is the rationale behind Section 196 and Section 197 of the Code. But it is equally important to emphasize that rights of the citizens should be protected and no excesses should be permitted. Protection of public officers and public servants functioning in discharge of their official duties and protection of private citizens have to be balanced in each case by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. In the recent decision in Rakesh Kumar Mishra Vs. State of Bihar & Others [(2006) 1 SCC 557], this Court after referring to the earlier decisions on the question stated: (SCC p. 564, para 12) "The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned."
(Emphasis supplied by me)
17. In the case of Bholu Ram Vs. State of Punjab and another20 (paras 58, 59 & 60), Hon'ble Supreme Court referred to various judgments with reference to Section 197 and 204 Cr.P.C. and held as under:
"58. In our considered opinion, the Revisional Court was not justified in entering into correctness or otherwise of the evidence at the stage of issuance of summons to respondent No.2. Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law.
59. The leaned counsel for respondent No.2, however, submitted that the Revisional Court was right in any case in allowing the revision and in quashing proceedings against the said respondent on the ground of absence of sanction as required by Section 197 of the Code.
60. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while `acting or purporting to act in discharge of official duty' [vide Prakash Singh Badal v. State of Punjab21.
(Emphasis supplied by me)
18. In the case of Rakesh Kumar Mishra Vs. State of Bihar and others22 (paras 9 & 11), Hon'ble Supreme Court held as under:
9. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, `no court shall take cognizance of such offence except with the previous sanction'. Use of the words, `no' and `shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word `cognizance' means `jurisdiction' or `the exercise of jurisdiction' or `power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
11. Use of the expression, `official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
(Emphasis supplied by me)
19. In the case of Pukhraj Vs. State of Rajasthan23 Hon'ble Supreme Court held that no protection of Section 197 Cr.P.C. was available in the incident of abusing and beating the clerk.
20. In the case of B. Saha and others Vs. M.S. Kochar24 dishonest misappropriation on conversion of goods by customs authorities was held to be not a case for availability of protection under Section 197 Cr.P.C. to such officers. Similarly, in the case of Shambhoo Nath Mishra Vs. State of U.P. And others25, the act of public servant for misappropriation of public funds and fabrication of record was held to be not covered by Section 197 Cr.P.C. In the case of Chaudhary Parveen Sultana Vs. State of West Bengal and others26 the act of Investigating Officer to press for withdrawal of the complaint was held not to be covered by Section 197 Cr.P.C. In the case of Raj Kishor Roy Vs. Kamleshwar Pandey and another27 (para 9) Hon'ble Supreme Court held that false implication by a police officer by showing recovery of illegal weapons, cannot be said to be an act in performance of his official duty.
Conclusions:
21. Thus, the principle that flows from the provisions of Section 197 Cr.P.C. and the afore noted decisions of Hon'ble Supreme Court, can be summarized as under:
(a) if a public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the dishcarge of his official duty, no court shall take cognizance of such offence except with the previous sanction and save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.
(b) No sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of Indian Penal Code, in view of the explanation inserted in Section 197(1) Cr.P.C. by Section 18 of Act 13 of 2013 with retrospective effect from 03.02.2013
(c) The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause.
(d) This protection has certain limitations and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection.
(e) A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office, then sanction would be necessary.
(f) Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
(g) 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 claim but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. 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. It does not apply to acts done purely in a private capacity by a public servant.
(h) Offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while acting or purporting to act in discharge of official duty (vide Prakash Singh Badal Vs. State of Punjab (2007) 1 SCC 1).
(i) some other illustrations of non availability of protection of Section 197 Cr.P.C. to a public servant in incident of abusing and beating the office clerk, dishonest misappropriation on conversion of goods by Customs Authorities, misappropriation of public funds and fabrication of record, act of Investigating Officer to press for withdrawal of the complaint, false implication by a police officer by showing recovery of illegal weapons; have been authoritatively pronounced by Hon'ble Supreme Court in the case of Pukhraj Vs. State of Rajasthan (supra) B. Saha and others (supra), Shambhoo Nath Mishra (supra), Chaudhary Parveen Sultana (supra) and Raj Kishor Roy (supra) respectively.
(j) To sum up, if the act complained of has no nexus, reasonable connection or relevance to the official act or duty of such public servant done or purported to be done in discharge of an official duty and is otherwise illegal, unlawful or in the nature of offence, then, the public servant cannot get shelter of Section 197 Cr.P.C.
22. Facts of the present case shows that while issuing process by the impugned summoning order, the learned Magistrate has considered the complaint, the statement of the complainant and of witnesses, some documentary evidence i.e. purchase bill for purchase of bullocks, and disclosure of name of persons who allegedly purchased the four bullocks of the complainant from the accuseds and based on these evidences he prima-facie found commission of certain offences by the accuseds on account of their unlawful and illegal acts.
23. These facts prima-facie show that the act of the accused complained of by the complainant has no nexus or reasonable connection or relevance to their official act or duty, but is otherwise illegal, unlawful and in the nature of offence. Consequently, the protection of Section 197 Cr.P.C. cannot be extended to the accuseds on the facts of the present case.
24. In view of the above discussion, I do not find any merit in this application. Consequently, the application is dismissed.
25. After this order was dictated in open court, learned counsel for the applicants submits that the applicants shall appear and surrender before the court below and for that some protection for few days may be granted to them so that they may apply for bail.
26. Learned A.G.A. has no objection to the aforesaid request.
27. Considering the aforesaid last submission of learned counsel for the applicants, it is provided that if the applicants appear and surrender before the court below and apply for bail within 60 days from today, then their bail application shall be considered and decided in view of the settled law. For a period of 60 days from today, or till disposal of bail application, whichever is earlier, no coercive action shall be taken against the applicants in the aforesaid Case No. 4912 of 2015 (Anwaar Tyagi Vs. S.I. Mahipal Singh and others), under Sections 406, 506, 166, 167 IPC, P.S. Dhaulana, District Hapur, pending in the court of learned Chief Judicial Magistrate, Hapur.
Order Date :- 17.5.2017 IrfanUddin