Bombay High Court
A.G. Pol And Anr. vs State Of Maharashtra And Anr. on 17 October, 1985
Equivalent citations: 1986(1)BOMCR613
JUDGMENT M.S. Jamdar, J.
1. The petitioners have filed this petition for quashing process issued against them by the Judicial Magistrate (AC) Pune, in Criminal Case No. 1041 of 1985 filed by the second respondent Shri S.S. Gadhoke, a builder and contractor, for offence under section 500 read with section 34 IPC, on the ground that some of the statement in the letter dated 20th May, 1978, addressed by the first petitioner to the second petitioner, are defamatory.
2. At the material time, i.e. in May 1978, petitioner No. 1, who is now Chief Engineer of P.W.D., Bombay Zone, was working as Superintending Engineer in Pune National Highway Circle, while petitioner No. 2, who retired from the Government service as Secretary to the Government of Maharashtra in the month of March 1985, was Chief Engineer of P.W. Region, Pune.
3. The second respondent is a civil engineer and is a partner of S.S. Gadhoke & Sons, a firm of civil engineers and contractors. He is also a partner of another firm M/s. Ranjeet Construction, Pune, which is also a firm of civil engineers and contractors. Neither the second respondent, nor any of the partners of these two firms, nor the firms themselves are registered as contractors with the P.W.D. of the Government of Maharashtra. However, several construction works, big and small, were admittedly entrusted to the two firms, obviously, because no registered contractors came forward to undertake those works. It is not disputed that the firms, of which second respondent is a partner, are being entrusted with construction, works since 1972, that some of the works are completed, while some are pending.
4. It appears that after completing some construction works entrusted to the firms, the second respondent Shri S.S. Gadhoke applied to the Government for registration as an approved contractor with the P.W.D. of the Government of Maharashtra in A.I. Category. This application was submitted on 26th May, 1976 and it was pending consideration, when the first respondent addressed the letter in question to the second respondent. As nothing was done in the matter of registration by the second respondent for a long time the firm M/s. S.S. Gadhoke and Sons filed Writ Petition No. 536 of 1983 in this Court. However, this writ petition was withdrawn on or about 2nd March, 1983 in order to give to the concerned authorities an opportunity to take a decision in the matter. Fresh representation was also made on 30th May, 1983 to the Tender Committee of the P.W.D., but as there was no favourable response, the firm of M/s. S.S. Gadhoke & Sons and the second respondent filed Writ Petition No. 3197 of 1983 on 21st September 1983, but the said writ petition was withdrawn as the Government made a statement that the matter will be decided within two months. Before that, M/s. Ranjeet Constructions, whose registration as B + Class expired on 21st July, 1982 and whose application for renewal of the registration was refused on the ground that the registration of the said firms was cancelled by the Chief Engineer, filed Writ Petition No. 1011 of 1982 against the State of Maharashtra, Chief Engineer, P.W.D., Bombay Region; Executive Engineer, Thane P.W.D. Region and Executive Engineer, Pune for a Writ of Mandamus directing the respondents to consider the case of the said firm for issue of the registration certificate and for direction to disclose reasons, if any, for refusing the registration and for including the firm in the list of approved contractors. This writ petition is pending.
5. Before that, the firm of M/s. S.S. Gadhoke & Sons and the second respondent filed Special Civil Suit No. 255 of 1981 claiming Rs. 50,000/- for damages for harm to the reputation of the plaintiff firm, its goodwill and to its business as a result of certain acts of the first petitioner and the Executive Engineer Shri Gawde, defendant Nos. 2 and 3, respectively in the suit. It is in this that the impugned letter was produced by the end of March 1985. These facts are admitted.
6. A copy of the letter in question, which is the basis of the complaint, was annexed thereto. A copy thereof is filed as annexure to this petition. It was addressed by the first petitioner in his capacity as Superintending Engineer, National Highway Circle, Pune-1, to petitioner No. 2, who was the Chief Engineer, P.W. Region, Pune-1. The subject to which the letter pertains was "Registration as approved contractors to A Class. M/s. S.S. Gadhoke & Sons", and formed part of the correspondence relating to that subject. As it is the case of the second respondent that not only some of the averments in the letter are per se defamatory, but also the cumulative effect of the said letter was to damage his reputation as contractors, it will be worth while to reproduce the entire letter in order to appreciate the rival contentions in respect of the necessity of the sanction contemplated by section 197(1) Cri.P.C.:-
"CONFIDENTIAL National Highway Circle, Pune 411001 No. CB/SAC 198 of 1978 Dated May 11th/20th 1978 To, The Chief Engineer P.W. Region, Pune-
Sub.:---Registration as approved contractors to 'A' Class. M/s. S.S. Gadhoke &Sons.
Ref.:---Correspondence resting with your office letter No. G.117 (203)/Desk-4/263 of 1978, dated 11-4-1978.
In continuation of letter No. CB/SAC/TC/474 Dt. 13-12-1977, I am submitting a copy of report made by Executive Engineer, Q.C. In., Pune & referred to by me.
I invite your attention to para 2 along with the statement given by Shri Kanere on 26-7-77 in Appendix II and statement by Shri N.N. Patil Dy. Engineer in Appendix V of the report. It will be clear from the report that the contractors have no scruple and are capable of going to any extent for claiming money on the basis of false/claims even by fabricating Government records.
Letter No. Con. 13, dated 10-5-77, from the Dy. Engineer, N.H. Sub. Dn. 66, Satara, addressed to Ext. Engineer, a copy of which is attached as appendix 6.2 to 6.6 of the report and a copy of letter Dt. 2-1-1978 from Shri Ramtake A.Z. Lab. Asstt. is an example of the ready behaviour of the partners of the firm.
Regarding unauthorised conveyance of asphalt of which secured advance was paid from sub-section VII and VIII to sub-section X, copy of the contractors letter enclosed herewith itself is self-explanatory wherein he admits that against authorisation shifting of 200 M. Tons. M/s. S.S. Gadhoke admits that they have shifted 343 M. tons of asphalt which was detected by Ex. Engineer N.H. Dn. No. V. Pune, and he has to intimate Ex. Engineer N.H. Dn. VII, Kolhapur about this unauthorised shifting and request to effect recoveries of secured advance paid.
It is also learnt from Shri A.B. Pawar, Ex. Engineer; who was previously in charge of this work also confirms about the high-handed and pressurising behaviour of this contractor. In my opinion, persons indulging in unfair practices should not be allowed to take any work with the Government apart from denying registration to the firm. It would be desirable to move the Government for blacklisting the firm as well as its partners and ensuring that any firm with which the partners are connected, is not entertained in the Department."
7. According to the second respondent, the first petitioner addressed the said letter to the second petitioner on account of personal animosity, hostility, express malice and in pursuance to the conspiracy to take vengeance on him and his wholesale ruination. In para 22 of the complaint, the second respondent has averred that the cumulative effect of the aforesaid letter was to put a complete ban on the business callings and the contractual work carried on by him. He also made a grievance that the aforesaid letter was given very wide publicity not only in the B & C department, but also in other departments, which were not co-related to the department to which both the petitioners belonged. He further averred as follows in para 24 of the complaint:-
"The complainant had been held in great estimation not in his community but in his calling and business. The result of the wide publicity deliberately made with collusion with each other and the disparaging statements made directly against the complainant, resulted in lowering the credit of the complainant who has been looked upon as 'cheat' and the person of doubtful and shapy character. Both the accused were fully aware that the reports called for by them from other Superintending Engineers and also from Executive Engineers were satisfactory and beyond reproach."
He also asserted in para 26 of the complaint that the aforesaid letter Dt. 11/20th May, 1978 was addressed ruthlessly and without a justifying cause with the sole malicious intention to tarnish his good name and to defame him. The second respondent also quoted in the complaint the specific allegations in the letter, which according to him are defamatory. For the purpose of avoiding repetition of those contents of the letter, I have under lined those allegation.
8. On the verification of the aforesaid complaint, the Judicial Magistrate FC (AC), Pune, issued process against the petitioners for offence under section 500 read with section 34 IPC. In pursuance to the summonses issued to the petitioners, they appeared in the trial Court and submitted an application raising some preliminary objections about the maintainability of the complaint. But, before, the application could be decided, the petitioners have filed this petition for quashing the process. They seek this relief mainly on four grounds :
(i) The complaint is time barred;
(ii) There was no 'publication' on the part of the petitioners within the meaning of section 499 IPC;
(iii) The complaint does not disclose an offence against the second petitioner; and
(iv) The trial Magistrate was not competent to take cognizance of the complaint for want of sanction under section 197 Cri.P.C.
9. The offence under section 500 is punishable with simple imprisonment of term which may extent to two years or with fine, or with both. The period of limitation for offence under section 500 IPC by virtue of Clause (c) of sub-section (2) of section 468 Cri.P.C. would, therefore, be three years from the date of the offence. The letter in question is dated 20th May, 1978, while the complaint was filed on 27th May, 1985, more than three years after the letter was sent by the first petitioner to the second petitioner. Relying on averments in the complaint that the aforesaid letter was given by wide publicity, not only in B & C department, but to other departments, which were not co-related to the department to which the petitioner belonged, it was sought to be urged by Shri Sonawane, learned Advocate for the petitioners that the cause of action for the complaint arose long before the letter was produced in Court and hence the complaint is barred by limitation. It is, however, pertinent to note that there is nothing in the complaint to show exactly when the so called wide publication was given to the letter in question and by whom. It is now averred in the complaint that either petitioner No. 1 or petitioner No. 2 gave publicity to the letter before it was produced in the Court some time in March 1985. No particulars of the so called wide publicity was given in the complaint and the averments in the complaint in this behalf are too vague to pin point the starting point of limitation. Moreover as mentioned above, it is not even the case of the second respondent that the petitioners were in any way responsible for the alleged wide publicity. On the contrary, the second respondent is very specific about the starting point of limitation against the petitioners. This is what the second respondent has stated in para 29 of the complaint:
"The production of the said letter in the Civil Suit mentioned hereinabove and now pending before the Court is sufficient publication to third person. The accused, thus, have committed an offence punishable under section 500 read with section 34 IPC. The contents of the said letter came to the notice of the complainant when the said letter together with the other letters were caused to be produced in the said Civil Suit."
Still more specific are averments in para 32 of the complaint :
"Filing of the letter dated 20-5-1978 by the accused No. 1 on record of Special Civil Suit No. 255 of 1981 by the end of March 1985 containing defamatory remarks qua the complainant amounted to due 'publication'. Hence the present complaint is being filed within limitation."
These specific averments leave no doubt that the petitioners are sought to be held responsible for publishing the confidential letter, by producting it in the Civil Suit and in no other manner. As the letter was produced in Court at the end of March 1985, the complaint filed on 27th May, 1985 is perfectly within limitation. If, however, the first petitioner is to be prosecuted for making the libel, the prosecution would be barred by limitation, apart from the question of privilege.
10. This brings me to the second ground on which the process is sought to be quashed, viz. petitioners were in no way responsible for publishing the confidential letter and hence they cannot be held guilty of defamation, assuming that some of the averments in the letter are per-se defamatory. According to the petitioners, it was the second respondent himself who was responsible for the publication because the letter was produced in Court in pursuance to the Courts' order passed at the instance of the second respondent. The second respondent is conveniently vague on this aspect of the matter and has only averred in para 29 of the complaint that the said letter together with other letters was caused to be produced in Court. The second respondent has not stated that the letter was voluntarily produced by the first petitioner.
11. It cannot be a matter of debate that the publication of defamatory matter is one of the essential ingredients of the offence of defamation. Any act which is intentionally done, which has the quality of communicating to the third person or persons generally, the alleged libel, amounts to publication. But, no person can be held responsible for defamation unless by words either spoken or intended to be read or by signs or by visible representations, he makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. No doubt, the first petitioner wrote the letter, but it was confidential communication and even on second respondent's own showing, it was not published by either of the petitioners before its production in Court. The publicity contemplated must be given voluntarily by the person who is sought to be made responsible for the publication. A publication of a defamatory matter is insufficient to support an action for defamation if it is invited or procured by the plaintiff or by a person acting for him in the matter. Therefore, a defendant who is compelled by an order of the Court, passed at the instance of the plaintiff to produce a writing alleged to be defamatory, can never be held responsible for publishing it within the meaning of section 499 IPC.
12. Admittedly, the second respondent filed an application on 19th November, 1983 in Special Civil Suit No. 255 of 1981 (copy whereof is produced at page 55 and 56 of the compilation) requesting the Court to direct the first petitioner and other defendants in the suit to produce certain documents mentioned in the said application. As can be seen from the say given to this application by defendants (copy at page 28), this application was opposed on various grounds. It was contended that all documents necessary and relevant as per the demand made by the second respondent were already filed, that the documents demanded by application dated 19-11-1983 were not relevant; the said documents were in the nature of inter-departmental correspondence and hence privileged documents and that they were not traceable, and that even the existence of some of the documents was doubtful. All these objections were overruled and by an order dated 9th February, 1984 (copy produced at Pg. 32) the first petitioner and other defendants, including the State of Maharashtra, were directed to produce the documents in the application dated 19th November, 1983, which was Ex. 48 in the said suit. It is pursuant to this order that the letter in question was produced in Court.
Shri Bhonsale, learned Counsel for the second respondent tried to urge that the letter in question was not specifically mentioned in the aforesaid application for production of documents and hence there was no justification for production of the said letter. Shri Bhonsale further urged that the second respondent was not even aware of the existence of such a letter and hence he was not expected to call upon the defendants in the suit to produce the said letter. True it is that this letter was not specifically mentioned in the aforesaid application as this one which the second respondent wanted the defendants in the said suit to produce. It may also be that the second respondent might not be aware of the existence of such a letter. But, in view of the details given in the application about the documents which the second respondent wanted the defendants in the said suit to produce, it is difficult to accept the submission that the first petitioners and other defendants were not expected to produce the letter in question. It will be seen from the application dated 19th November, 1983 that the second respondent was not satisfied that the defendants in the said suit produced all the documents required by him and it was his grievance that the documents mentioned in the application at Sr. Nos. I to VI were not produced. He specifically mentioned at Sr. No. V that confidential correspondence for registration during the period from April 1978 to October, 1978 between the Dy. Engineer, Executive Engineer and Superintending Engineer was not produced. As mentioned above, the letter in question was dated 20th May, 1978 and its subject was registration as approved contractor to A Class of the firm of M/s. S.S. Gadhoke & Sons.' It was written with reference to the correspondence resting with letter No. G. 117 (203)/Desk 4/263 of 1978 dated 11th April, 1978 from the office of the Chief Engineer and in continuation to the first petitioner's letter No. CB/SAC/TC/474 dated 13th December, 1977. A plain reading of the letter will also that it completely related to the second respondent's application for registration. Hence when the first petitioner and other defendants, including the State of Maharashtra were called upon by the second respondent, and directed by the Court, to produce the confidential correspondence for registration of the second respondent during the period from April 1978 to October 1978, the defendants in the said suit could not have with-held the letter in question. In view of the order of the Court, they were bound to produce the entire correspondence that ensued during that period pertaining to the registration of the second respondent and his firms and hence the petitioners cannot be held responsible for the consequence flowing from production of the letter in Court. This production does not amount to 'publication' on the part of the petitioners and hence they cannot be held responsible for damage, allegedly caused to the reputation of the second respondent by the recitals in the said letter. There was no 'publication' on the part of the petitioners and hence they cannot be proceeded against for the offence under section 500 IPC on the footing that they published a defamatory matter. The process issued against the petitioners, therefore, deserves to be quashed on this ground alone.
Further, as mentioned above, the only mode of publication of the allegedly defamatory statement attributed to the petitioners is production of the letter in Court in Special Civil Suit No. 253 of 1981. But, the second petitioner is not a party to the suit. Hence, he cannot be held responsible for the publication. Moreover, he was not the author of the letter. Clearly, therefore, the complaint does not disclose any offence on the part of the second petitioner.
. This brings me to the last and equally strong challenge to the impugned order, viz. want of sanction. This question was very elaborately argued by the learned Advocates for the parties and hence, it would be appropriate to decide that question also, even though, as mentioned above, the process deserves to be quashed on the second ground, viz. want of 'publication'.
It is an admitted position that at the material time both the petitioners were public servants and petitioner No. 1 continues to be so even now. It was, therefore, contended, relying on the provisions of section 197 Cri.P.C., that in the absence of any sanction from the State Government, as contemplated by section 197 Cri.P.C., the trial Magistrate was not competent to take cognizance of the offence complained of. Sub-section (1) of section 197 Cri.P.C. lays down that when any person who is or was a Judge or Magistrate or a public servant, not removable from his service, save by or with the sanction of the Government, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence, expect with the previous sanction of the concerned Government. As both the petitioners were not removable from their office, save by or with the sanction of the State Government, the State Government, was the competent authority to sanction the prosecution against them. Admittedly, no such sanction was obtained before the complaint was filed and before the trial Magistrate took cognizance of the offence. This position is not in dispute. The controversy is restricted to, and very elaborate arguments were advanced to the question as to whether the opinion expressed, the recommendations made and the epithets given to the second respondent by the first petitioner while submitting his report to the second petitioner, fall within the scope of 'acting or purporting to act in the discharge of his official duty'.
By the letter in question, the first petitioner drew attention of the second petitioner to certain documents, including the report of the Dy. Engineer Shri N.M. Patil, and observed :
will be clear from the report that the contractors have no scruple and are capable of going to any extent for claiming money on the basis of false claims even by fabricating Government records."
Further, while expressing his opinion about the second respondent's application for registration as approved contractor in Class A-1, the petitioner No. 1 observed that in his opinion the persons indulging in unfair practices should not be allowed to take any work with the Government apart from denying registration to the firm. He also observed that it will be desirable to move the Government for blacklisting the firm as well as its partners and ensuring that any firm with which the partners are concerned is not entertained in the department.
It was urged by Shri Bhonsale that these observations made by the first petitioner are not only not supported by any material on record of the department, but are completely contrary to the reports and certificates given from time to time by various officers of the P.W. Department; and were made maliciously by the first petitioner who had adopted vindictive attitude towards the second respondent, and hence these observations were completely outside the scope of acts contemplated by section 197(1) Cri.P.C. No sanction was, therefore, required for prosecuting the petitioners. It was also contended that the action of blacklisting the second respondent was taken without following the prescribed procedure and hence the action was illegal and could not be said to be taken in the actual or purported discharge of the official duty. Shri Bhonsale further urged that the question whether a public servant acted or purported to act in the discharge of his official duty is a mixed question of fact and law, requiring evidence to be adduced and hence the complaint cannot be barred at threshold on the question of sanction without giving an opportunity to the complainant to lead evidence to show that the public servants concerned did not act or purported to act in the discharge of their official duty.
The vaxed question about the exact scope and ambit of the phrase acting or purporting to act in the discharge of official duty is considered by Federal Court, Privy Council and Supreme Court in cantena of decision. In Dr. Hori Ram Singh v. Emperor . Their Lordships of the Federal Court, while interpreting the phrase 'act done or purporting to be done in execution of duty as servant of Crown' appearing in section 270(1) of the Government of India Act of 1935, laid down the test for determining the question whether particular act is done or purported to be done in the execution of official duty. Analysing sub-section (1) of section 270 and the phrase an act done or purporting to be done in the execution of his duty as servant of the crown". Their Lordships observed :
far as sub-section (1) is concerned, the question of good faith or bad faith cannot strictly arise, for the words used are not only 'any act done in the execution of his duty' 'but also' any act purporting to be done in the execution of his duty'. When an act is not done in the execution of his duty, but purports to have been done in the execution of his duty, it may very well be done in bad faith and even an act which cannot at all be done in good faith, may purport to be done in execution of duty if another is made to believe wrongly that it was being done in execution of duty. It is, therefore, not possible to restrict the applicability of the section to only such cases where an act could possibly have been done in good and bad faith. Of course, the question of good or bad faith cannot be gone into at the early stage at which objection may be taken."
Their Lordships went on to observe :
"Having regard to the ordinary and natural meaning of the words 'purporting to be done' it is difficult to say that it necessarily implies 'purporting 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."
As regards the test applicable in such a case. Their Lordships held thus :
"The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant is 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 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. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting."
It is, thus, clear that absence of good faith, absence of care and caution, negligence or malice do not take away an act outside the scope of action or purporting to act in the discharge of official duty'. Malice in purposely giving a damaging opinion contrary to the record is not relevant for determining that question. What is relevant is whether the act falls within the scope of the official duty and can be said to be done in the purported exercise of official duty.
20. The decision in Hori Ram Singh's case was approved by the Federal Court in Lt. Hector Thomas Huntley v. Emperor . However, as observed by Their Lordships of the Supreme Court in the case of Matajog Dobey v. H.C. Bhari, the test laid down in Huntely's case that it must established that the act complained of was an official act appears unduly to narrow down the scope of the protection afforded by section 197 Cri.P.C. as defined and understood in Hori Ram Singh's case.
21. Approving the decision in Dr. Hori Ram Singh's case in the case of H.H.B. Gill v. The King . Their Lordships of the Privy Council observed :-
"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."
22. The view taken in H.H.B. Gill's case (citation supra) was adopted by Supreme Court in R.W. Mathams v. State of West Bengal A.I.R. 1954 S.C. 455. Analysing the last mentioned decision and decisions in Hori Ram Singh's case and in the case of H.H.B. Gill and in other cases in which the Privy Council followed the view taken in Gill's case. Their Lordship of the Supreme Court summarised the result of those authorities in the case of Amrik Singh v. State of Pepsu "It is not every offence committed by a public servant that required sanction for prosecution under section 197(1) Cri.P.C., 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 question, 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 prosecution."
23. In Matajog Deboy's case (citation Supra) the Supreme Court considered the decision in Dr. Hori Ram Singh's case, A.K. Gill's case and Amrik Singh's case and then observed that even though slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in section 197 Cri.P.C. 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', the difference is only in the language and not in substance. As mentioned above, Their Lordships found that the test laid down in Huntley's case (citation supra) unduly narrowed down the scope of section 197 Cri.P.C. and laid down the test in the following words :
"The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. 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 latter stage when the trial proceeds on the merits 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 their performance of the official duty, though possibly in excess of the needs and requirements of the situation."
24. In the case of K. Satwant Singh v. The State of Punjab , the question for consideration of Their Lordships was whether offence of cheating can be regulated as having been committed by a public servant while acting or purporting to act in the discharge of his official duty. Holding that it does not, Their Lordships following the decisions in Amrik Singh's case (citation supra) and in the case of Matajog Dobey, reiterated the position 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. In Baijnath v. The State of Madhya Pradesh , Their Lordships laid down that what is important is the quality of the act and the protection contemplated by section 197 Cri.P.C. will be attracted where the act falls within the scope and range of his official duty. Their Lordships further held that:
"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."
In Bhagwan Prasad Srivastava v. M.P. Mishra , relying on the decisions in the cases of Baijnath, Amrik Singh and Matajog Dobey (citations supra), it was held :
"In our view, it is not the 'duty' which requires examination so much as to the 'act' because the official act can be performed both in the discharge of the official duty as well as in dereliction of it."...
25. Applying these tests to the facts of the present case, it is clear to me that when the first petitioner expressed his opinion about the second respondent and made recommendation for blacklisting not only the 2nd respondent, but also other partners of the firm and all other firms with which the partners of the firms were concerned, was acting in discharge of his official duty as Superintending Engineer.
26. As mentioned above, the second respondent had applied to the Government for registering the firm of M/s. S.S. Gadhoke & Sons as approved contractors. It is an admitted position that the second respondent and his sons are also the partners of another firm known as Ranjeet Constructions, Pune. The application made by the firm M/s. S.S. Gadhoke was pending consideration. Both these firms were dealing with the Government and were entrusted with several construction work, even though they were not registered as approved contractors.
27. The scope of the administrative & executive functions of the officers of the Building & Communications Department of the Government of Maharashtra is defined in the Maharashtra Public Works Manual issued under the authority of the Government of Maharashtra Building & Communication Department. Chapter III of the Manual deals with 'works' and Rule 197 of Chapter III, lays down that subject to the provisions of paragraph 190, no tender form maybe issued or contract given to any person, whose name is not borne on the register of approved contractors referred to in Appendix 9, without the orders of the government. The proviso to this rule provides that if on invitation of tenders, no registered contractor tenders; and the work cannot conveniently be undertaken departmentally, it would be permissible for the Competent Authority to give it to a unregistered contractor or a contractor registered in the lower category after re-inviting tenders opening and without restriction. Appendix (9) provides for rules for registration of contractors. Rule 1 of the said Appendix provides for classification of the contractors according to their financial status, and technical capability. As shown in the table given in this rule, the Chief Engineer, Building & Communications Department is the competent authority to sanction registration of contractors in A-1 Class. Rule 2 lays down the factors which are to be taken into consideration by the concerned authority before sanctioning the registration. The said rule reads as follows :---
"No contractor may be registered without full inquiry as to his suitability in regard to :
(a) financial status supported by a certificate of solvency obtained from the Collector of the district or bankers' certificate;
(b) professional capacity and reliability supported by certificates or recommendations of officers who have had personal knowledge of the applicant and his work."
28. Rule 3 lays down that for registration, the contractor shall make an application in the form given in Annexure A, to the authority competent to sanction it and that the application shall be accompanied by necessary documents referred to in Rule 2(a) and (b). Note (1) to this rule prescribes the procedure when the registration is to be effected at the level of Superintending Engineer or Chief Engineer. When the registration is to be effected at the Superintending engineer's level or Chief Engineer's level, applications for registration should be routed through the Executive Engineer. As provided by Rule 11, a register of approved contractors is to be maintained in the circle and divisional office in the form prescribed in Annexure B. This register is required to be examined by the registering authority on first day of July every year and at other times, if found necessary, on report of specific failure or default by a contractor and if he considers that the financial circumstances or technical capacity of a contractor have so deteriorated that he ought to be removed from the register or placed in a lower class, he may do so after calling on the contractor to state within a stated time as to why the action as proposed should not be taken against him. As mentioned in the note to this Rule, the Superintending Engineer and Executive Engineer shall report confidentially in the form prescribed in Annexure C to the registering authority on first July each year cases of contractors who are habitual bad workers and create obstructions in the working of the project to enable that authority to take this into consideration at the time of review or renewal of their registration. As provided in Annexure C to Appendix 9, the confidential report in respect of the contractor is expected to contain following terms :
"Confidential report on Contractor :
1. Does he pay the security deposit in prescribed time?
2. Does he start the work promptly after the issue of work order?
3. Does he maintain the progress of work as per agreement/as per the programme mutually agreed?
4. Does he pay proper attention to maintain the quality of work and materials?
5. Does he work in co-operation with departmental staff? Does he carry out instructions of site officers promptly and properly?
6. Are there any complaints from the labourers or petty suppliers regarding non-payment of their wages of bills? Does he pay fair wages?
7. Does he show any tendency to create extra items and claims which are non-acceptable or imaginary?
8. Does he use materials issued as per Schedule 'A' properly or is there a tendency of pilferage or improper storing?
9. Tendency to quote unbalanced or unworkable rates in the tender (i.e. very high rates for some items and low rates for others).
10. His capacity-General organisation of work and resources?"
29. As mentioned above, an application for enrolment as contractor must be in the form prescribed in Annexure A to Appendix 9. Amongst others, the applicant contractor is expected to mention in his application whether he himself or his partners or shareholders were black-listed in the past by any Government department. It is, therefore, clear that the concerned officer, who is expected by the rules or who is called upon to express opinion about the contractor, who has applied for registration, is entitled to express his opinion about the financial status, professional capacity and reliability of the contractor.
30. It is true that it is not specifically mentioned in the Manual that even at the stage of the first registration, the report in the form prescribed in Annexure C is expected to be made by the concerned Superintending Engineer and the Executive Engineer, but that does not mean that the considerations which are relevant for the purpose of de-registration of a contractor or black-listing him are not relevant at the time of registration of the contractor. The reporting officer is competent to express his opinion about the matters mentioned in Rule 2 on the basis of his personal knowledge and experience about the contractor's working and methods. He is also entitled to collect information on these matters from other Government departments with which the contractor had dealt with in the past. Hence, when the first petitioner, in his capacity as Superintending Engineer, was called upon by the Chief Engineer to express his opinion about the application for registration as approved contractor for Class A-1 made by the firm of respondent No. 2, the first petitioner was perfectly competent to express his opinion about, the financial status, professional capacity and reliability of the firm. He was competent to express his opinion about the honesty and integrity of the contractor and about the methods and dealings of the contractor. If in his opinion the contractor has no scruples and is capable of going to any extent for claiming money on the basis of false claims even by fabricating Government records, and that the contractor indulges in unfair practices and should not be allowed to take any work with the Government, the first petitioner in his capacity as the Superintending Engineer, was perfectly within the scope of his official duty when he mentioned his opinion about the second respondent while making his own recommendation about the registration of the second respondent's firm as approved contractor. He was also perfectly with his limits to recommend that not only the applicant-contractor should not be registered but he should be black-listed in the sense that the government should not deal with him and also with the firms of which he is a partner, because while doing so, he would be purporting to protect the interests of the Government. The question whether there was sufficient basis for his opinion or whether it was baseless and mischievously false, is not relevant for the purpose of ascertaining whether while expressing his opinion in respect of the matters covered by Rule 2 of Appendix 9 he was acting or purporting to act within the scope of his official duty. In my opinion, there is complete nexus between the official duty of the first petitioner and the act complained of. The nexus is not snapped by the fact that the first petitioner was actuated by malice or that the opinion is contrary to the recommendations of other officers with whom the second respondent has occasion to deal with in connection with the construction work entrusted to him and his firm by the Government.
31. Shri Bhonsale, learned Counsel for the second respondent, strenuously urged that the question whether the concerned officer had acted or purported to act in the discharge of his official duty is a mixed question of fact and law which cannot be determined at the threshold unless opportunity is given to both the parties to adduce oral and documentary evidence about the facts and circumstances of the case relevant for the determination of the question. In support of this contention, Shri Bhonsale, placed reliance on some of the observations of Their Lordships of the Supreme Court in the cases of Matajog Dobey, Satwant Singh, and Bhagwan Prasad (citation supra). He also placed reliance on the decision of the Madras High Court in the case of Shankuntala Bai v. Venkatakrishna .
32. In the Madras case the question that fell for consideration of the learned Single Judge (Ramaswami, J.) was whether a customs inspector who asked a respectable lady to remove her gold bangles and gold golusu and on her refusal to do so, abused and assaulted her by slapping her on face as well as by giving blows on her back with his leather belt, and then forcibly removed the bangles and golusu and detained her in chowkey for some hours until she paid a fine of Rs. 100/-, on suspicion that the lady was smuggling gold, was acting or purporting to act in the discharge of his official duty. According to the learned Judge, two points were involved in the case, viz. first of all whether the customs Inspector did assault Shankuntalabai, as alleged by her, which was prepared to prove by means of medical certificate, and secondly, whether the accused assaulted her for one of the purposes which would have made out that it was a case of use of reasonable force for discharging an official duty. In view of these disputed questions, the learned Judge held that the contention of the accused that even if the is assumed to have assaulted the complainant, he would be protected under section 197 Cri.P.C., was not a pure question of law, but a mixed question of facts and law and has to be decided after investigation and cannot be short circuited by summarily throwing away the complaint. However, the proposition laid down by the learned Judge that the investigation would be necessary before deciding the question whether a public servant gets protection under section 197 Cri.P.C. of having acted or purported to have acted in the discharge of his official duty, cannot be of universal application and is not attracted in every case, because in some cases, as in the present case, the question can be resolved on the basis of admitted facts and the material on record. As a matter of fact, ordinarily the question of sanction has to be determined at the threshold before taking cognizance of the case. It cannot be deferred to later stage, if on the basis of the facts and circumstances of the case it is possible to resolve the question at the threshold as to whether the act complained to falls within the scope of the official duty of the accused.
33. Following the observations of Their Lordships of the Supreme Court in Matajog's case (citation supra) appearing in page 20 of the judgement are sought to be pressed into service in support of the proposition that the question about the sanction is a mixed question of law which cannot and should not be decided at the threshold :---
"The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported 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 or 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."
These observations, however, do not support the view that even if the necessity for sanction reveals itself at the stage of taking cognizance and even if there is material to resolve that question in favour of the accused, the complaint should not be thrown away at the threshold. What Their Lordships wanted to lay down was that in a given case the necessity for sanction may become apparent at a subsequent stage of the proceedings or resolution of that question may require oral and documentary evidence to be recorded. In that sense, Their Lordships stated that the question may arise at any stage of the proceeding and that the question may have to be determined from stage to stage. It cannot be canvassed on the basis of these observations that it cannot be decided at the time of taking cognizance of the complaint. As a matter of fact, ordinarily, the question of sanction must be considered at the stage of taking cognizance of the complaint. It can be differed only when it is not possible to resolve that question at that stage.
34. In Satwant Singh's case by majority it was held that no sanction was necessary for prosecuting the accused charged for cheating. However, while concurring with this conclusion, Kapur, J., held that in that case there was no evidence to support either of the rival contentions. According to His Lordship, the question whether act complained or against Major Henderson (accused in that case) i.e. verifying the claim of the appellant, which was the basis for the allegation of abetment of the offence of cheating, was directly concerned with his official duties or it was done in the discharge of his official duties and was so integrally connected with and attached to his office as to be inseparable from them, will have to be decided on the evidence which was absent. Their Lordships took that view on the facts and circumstances of that case. In the present case, there is enough data before me to decide that question.
35. In Bhagwan Prasad's case (citation supra). Their Lordships of the Supreme Court observed :---
"The principle embodied in this section seems to be well understood the difficulty normally lies in its application to the facts of a given case. The question whether a particular act done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case."
36. Their Lordships relying on the decision of Supreme Court in Prabhakar V. Sinari v. Shankar Anant Verlekar held that it would be open to the appellant to place material on the record during the course of the trail for showing what his duty was and also that the impugned acts were inter-related with his official duty so as to attract the protection afforded by section 197 Cri.P.C.
37. The position, therefore, that emerges from these decisions, cited by Shri Bhonsale, is that the question whether an act falls within the scope of the official duty so as to attract section 197(1) Cri.P.C. is a mixed question of fact and law, that the question about the sanction can be raised at any stage of the proceedings and that it will be open for the parties to place on record oral and documentary evidence to resolve the question as and when it is raised. There is, however, no warrant for the proposition that it cannot be raised at the threshold and that in each and every case it must be determined after recording evidence.
38. It was urged by Shri Bhonsale, learned Counsel for the second respondent, that as no opportunity was given to the second respondent, as contemplated by Rule 11 of Appendix 9 of the Maharashtra Public Works Manual, to show cause why his name should not be removed from the register of the approved contractors, the action of the first petitioner in recommending to the Government that the second respondent and the firms in which he is a partner along with other partners of the said firms should be black-listed, being contrary to his duty, was illegal and hence cannot be said to be done while acting or purporting to act in the discharge of his official duty. No sanction, therefore, would be necessary for prosecuting the first petitioner for defamation cause by the opinion expressed by him while making his recommendations on the application of the second respondent. In support of the proposition than an Act contrary to the duty cannot be said to have been done in the discharge of official duty, Shri Bhonsale placed reliance on the decision of Division Bench of Patna High Court in the case of Afzalur Rahman and others v. Emperor, A.I.R. (30)1943 Patna 229. Reliance was also placed by Shri Bhonsale on two decisions of this Court (1) in the case of the Union of India v. A.K. Mathiborwala, 76 Bom.L.R. 659 and, (2) in the case of State Bank of India v. Kalpaka Transport Co. Pvt. Ltd. and others . In the first case it was held that the black-listing order passed by the Government under Clause 3(iii) of the Standard Code entails serious civil consequences to the party black-listed and when passed without giving an a opportunity to the party to be heard, violates principles of natural justice to and is null and void. Following this decision, the Division Bench of this Court (consisting of B.N. Deshmukh, C.J., & S.C. Pratap, J.) in the case of Kalpaka Transport Co. Pvt. Ltd. held as violative of the action of the appellant-State Bank of India, in black-listing the respondent Transport Co. without giving a reasonable opportunity of being heard and observation thus:- (para 33).
"It seems to have been now firmly established at least so far as where lists are kept by Government for dealing with the citizens in respect of certain businesses and trade that a blacklisting order leads to civil consequences, and should not be passed without a reasonable opportunity of being heard. The principles of natural justice are thus attracted in case a party has any right as such to enter a contract, or the party has a reasonable expectation of making a gainful contract with the Government and the Government even while trading is under a constitutional obligation not to discriminate and treat citizens unfairly."
39. The ratio laid down in these two decisions, however, is not attracted in the present case for the simple reason that the first petitioner was neither a competent authority to take, nor was taking any action of black-listing, against the second respondent. The first petitioner, in his capacity as Superintending Engineer, had no authority to black list any of the contractors. Moreover, he did not pass any order blacklisting the second respondent or the firm in which he is a partner. By the letter in question, while expressing his strong opposition to the registration of the firm of the 2nd respondent, the first petitioner expressed his opinion that the government should not deal with the second respondent. It was just expression of his opinion. It was not necessary at the stage of expressing opinion to give notice to the second respondent or any of the partners of the firm. It was for the authority competent to blacklist the contractors to issue such a notice contemplated by Rule 11 of Appendix 9. The stage of giving show cause notice had not arisen. However, as the second petitioner was neither competent to pass an order blacklisting the second respondent, nor did he seek to do so, there was no question of his giving any notice to the second respondent or other concerned parties. He made his recommendations when called upon to do so by the Chief Engineer in respect of the application for registration made by the second respondent. It cannot, therefore, be said that before expressing his opinion about the working and methods of the second respondent and making his own recommendations to the Government as to future dealings with him and his partners, the first petitioner was expected to give notice to the second respondent and as he failed to do so, his action was illegal, being contrary to his duty and, therefore, fell outside the scope of section 197 Cri.P.C.
40. Strong reliance was also placed by Shri Bhonsale on the decision of the Supreme Court in the case B.S. Sambhu v. Krishnaswami , the facts of which, according to Shri Bhonsale, are analogous to the facts of the present case. In that case the respondent, an Advocate representing the defendant, filed an application for transfer of the suit to some other Court. The District Judge called for remarks of the appellant who at the material time worked as Additional Munsiff and was hearing the suit in question. The appellant submitted his remarks wherein he made the following statements :---
"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 Shri T.S. Krishnaswamy is a big gambler in the 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 learned District Judge in open Court and thereafter Advocate Shri Krishnaswami filed criminal complaint under section 500 IPC against the Additional Munsiff on the ground that the aforesaid contents of the letter defamed him. It was contended on behalf of the Additional Munsiff that cognizance of offence could not be taken without obtaining sanction under section 197 Cri.P.C. This contention was negative by the trial Magistrate and the High Court upheld the Magistrate's view. In appeal to the Supreme Court, it was contended that the D.O. Letter sent by the appellant Munsiff to the District Judge was written in discharge of his duty because the District Judge had called upon the appellant to submit his remarks and as such ingredients of section 197 Cri.P.C. were attracted. Their Lordships observed that it was not possible to accept this contention, because, in their view, there was no reasonable nexus between the act complained of and the discharge of the duty by the appellant. According to Their Lordships, 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 the transfer petition.
41. It was contended on behalf of the second respondent in the present petition that the words the contractors have not scruple and are capable of going to any extent of claiming money on the basis of false claims even by fabrication Government records, and are persons indulging in unfair practices, "cannot be said to be connected with the discharge of official duty of the first petitioner". It is difficult to accept this submission. I have already rejected this contention by elaborate reasoning demonstrating how all these allegations pertain to the conduct of the second respondent and his firm as contractors entrusting with the government works and who wanted to be registered as approved contractors with the government.
42. The three epithets which the Additional Munsiff gave to the Advocate while offering his remarks about the transfer application made by the defendant in Sambhu's case (citation supra) had absolutely nothing to do with the conduct of the Advocate in the Court in the matter in which transfer application was made. Whether the Advocate was a big gambler, a rowdy and a mischievous element in the town, had absolutely no nexus to his working as Advocate in the Court and, therefore, the Additional Munsiff was not justified in describing the Advocate; in the manner in which he did while offering his remarks. It is significant to note that the Supreme Court did not find fault with, nor was it contended on behalf of the Advocate that, the observations made by the Additional Munsiff that the conduct and character of Shri T.S. Krishnaswami are not good and that he misbehaved in open Court making all nonsense allegations, were outside the scope of the duty of the Addl. Munsiff. Obviously, these remarks pertained to the work of the Advocate in the Court and, hence, while making these observations the Additional Munsiff was perfectly within the ambit of his official duty. The observations which were found fault with had absolutely nothing to do with the conduct of the Advocate in Court and the grounds on which the transfer was sought. It was because of this, it was held that no protection under section 197 Cri.P.C. was available to the Additional Munsiff against the prosecution for making uncalled observations about the personal character of the Advocate.
43. The observations made by the first petitioner were completely concerned with the professional conduct of the contractor who had applied for his registration as approved contractor and hence fell within the scope of section 197 Cri.P.C. requiring sanction for prosecuting the petitioner for defamation allegedly cause by the contents of the letter addressed by the first petitioner to the second petitioner in their respective official capacity. The complaint, therefore, must be dismissed at the threshold for want of sanction under section 197 Cri.P.C. also.
44. The result, therefore, is that the petition is allowed. Process issued against the petitioners is quashed and the complaint filed by the second respondent against the petitioner is dismissed. Rule made absolute.