Bombay High Court
G.P. Pedke vs Syed Javed Ali on 16 January, 1991
Equivalent citations: 1991CRILJ1481
ORDER
1. The present application has been filed by the applicant, who is the Police Sub-Inspector, on the ground that he cannot be prosecuted by the non-applicant unless the sanction under S. 197 of the Code of Criminal Procedure is obtained. It has been argued by Mr. Chouby, the learned A.P.P. appearing on behalf of the P.W. I applicant that the offences alleged to have been committed by the applicant have been committed in discharge of his official duties and, therefore, the learned trial Judge was not right in directing issuance of process against him. He has also invited my attention to the notification dated 2nd June 1979 in this behalf.
2. The facts, in brief, which gave rise to the present application are as under : The non-applicant Syed Javed Ali is an advocate. He filed a complaint on 28-8-1990 against the applicant and two others under Sections 294, 506 Part I & II, 336, 427, 341, 342, 500 read with Section 34 of the I.P.C. and under Section 110 read with Section 117 of the Bombay Police Act. According to the complainant/non-applicant, the police asked him and his two brothers, viz., Syed Ashar Ali and Kumar Ali, to accompany him to Tahsil Police Station. Accordingly, the complainant and his brothers went to the police station, where the applicant was present. The complainant introduced himself to the applicant by showing his identity card and wanted to sit on the bench. The applicant is alleged to have said "Khada Rahe Sale Tere Bap Ka Ghar Nahin Hai". The complaint further shows that the complainant then wanted to telephone to his relations from the police station, but the applicant abused him saying "Bhosdi Ke Yeh Tere Bap Ka Phone Nahin Hat, Yhe Sarkari Phone Hai". According to the complaint, on 11-8-1990 at about 6-30 to 7-00 a.m. the applicant ordered his men to take the complainant and his brothers to the Mayo Hospital, Nagpur in handcuffed conditions, notwithstanding that the complainant pointed out legally he could not be handcuffed. The applicant was enraged and alleged to have said "Sale Chup Rahe, Jyada Bolega to Ek Jhapad Dunga, Aur Apna Supreme Court Apne Jeb Main Rakh". The applicant continued saying "Bhosdi Ke Vakilon Ne Bahot Ane Main Laliya Nain, In Ki Masti Jirana Hai".
3. According to the complainant/non-applicant, the filthy abuses (quoted supra) given by the applicant could not be said to have been given in the discharge of his official duty and, therefore, the protection under Section 197 of the Code of Criminal Procedure was not available to the applicant. Mr. Nawab appearing on behalf of the non-applicant relying on the decision of the Supreme Court , Puthraj v. State of Rajasthan submitted that the trial Court was perfectly justified in issuing the process against the applicant, notwithstanding the absence of sanction. In this decision, a complaint was filed by the clerk of the divisional secretary of National Union of Postal Employees against the Post Master General, Rajasthan, alleging that the Post Master General came on test to Jodhpur on 23-10-1971 and thereafter arrived at the Head Post Office Jodhpur in connection with inspection. The complainant submitted his representation to the Post Master General for cancelling his transfer. The Post Master was enraged by the complainant and kicked the complainant in his abdomen and abused him by saying "Sale, Goonda, Badmasa, on one hand you are complaining and on the other hand you are requesting for cancellation of transfer." Objection was taken by the Post Master General that the complaint was not tenable in the absence of sanction u/S. 197 of the Code of Criminal Procedure. Though the Munsiff Magistrate dismissed the application, the High Court allowed the revision petition filed by the Post Master General and set aside the order of the lower court. In appeal, the Supreme Court while reversing the order of the High Court has observed as under :
"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 done in the execution of the duty. The test appears to be not that the offence is capable being committed wholly 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".
4. Mr. Nawab also relied on the decision . S. Sambhu v. T. S. Krishnaswamy. In this case an application for transfer of the suit from the court of the Additional Munsiff and Judicial Magistrate, First Class, Madhugiri, was filed before the District Judge. The District Judge called for the remarks from the Additional Munsiff and J.M.P.C. regarding certain allegations which were made in the transfer application. The Additional Munsiff submitted his remarks in the form of D.O. letter, wherein he made the following statement :
"In this connection I may also bring to your Honour's kind notice that the conduct and character of Shri T. S. Krishnaswamy are not good and that he misbehaves in the open Court making all nonsense allegations. Further it is brought to my notice that Sri T. S. Krishnaswamy is a big gambler in this town and is a rowdy also and on account of that he exhibits all sorts of rowdyism in the open court. The District Judge is requested to safeguard him from the hands of such mischievous elements."
This letter was read out by the District Judge in open Court and, therefore a criminal complaint was filed against the Additional Munsiff, alleging that the aforesaid contents of the D.O. Letter amounted to defamation of the respondent u/S. 499 of the I.P.C. without obtaining sanction u/S. 197 of the Code of Criminal Procedure. The Supreme Court negativing the contention that the sanction as necessary, made the following observations :
"Calling the respondent as 'Rowdy', a big gambler' and 'a mischievous element' cannot even remotely be said to be connected with the discharge of official duty which was to offer his remarks regarding the allegations made in transfer petition."
5. In both the aforesaid decisions of the Supreme Court it has been made clear that 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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Applying this test to the facts of our case, it is impossible to come to the conclusion that the act complained of has any connection with the discharge of the official duty of the applicant. The filthy abuses alleged to have been given by the applicant, if proved, would amount to an offence, which can never be an official duty. Having regard to these facts, the trial Court was perfectly right in issuing process against the applicant. The application is devoid of substance and is accordingly dismissed.
6. Petition dismissed.