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According to Mr. Sibal simply because an accused is government servant and is clothed with duties to enforce law and order, he cannot claim sanction under Section 197 Cr.P.C. as a matter of course. The acts alleged against him must prima facie appear to be in the purported exercise of official duties and functions. In support of such contention, reference has been made to the decision of this Court in Pukhraj Vs. State of Rajasthan (1973 (2) SCC 701). In the said decision the purpose and import of Section 173 Cr.P.C. have been taken into consideration. It has been held that intention behind Section 197 Cr.P.C. is to prevent public servants from being unnecessarily harassed. The Section is not restricted 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 constitute the offence, is the official duty of the concerned office. The test appears to be that the offence is capable being committed only by a public servant and not by any body 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. Section 197 is not 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. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of official duty. It does not apply to acts done purely in private capacity by a public servant. In Pukhraj's case, the Post Master General had kicked a clerk when such clerk requested to cancel his transfer order. Such act had no semblance of discharging any public duty by the Post Master General. hence, it was held that no sanction under Section 197 Cr.P.C., was necessary.

Mr. Sibal has contended that in the instant case, the Municipal Officials had been discharging their duties in removing unauthorised obstruction on public road. For executing such act, the local executive and police authorities were required to give necessary assistance by preventing. persons opposing execution. by the municipal staff. But unfortunately, the respondents despite holding reasonable positions in the Government Service, obstructed municipal staff from carrying on their duties and function. When the complainant being the Chairman of the Municipality protested against such improper act on the part of the accused, he and other persons were assaulted, abused and manhandled. Such acts prima facie cannot be held to have been done on purporting to be done in discharge of official duties. Hence, on the face of the allegations, no sanction was warranted. If, however at a later stage when the accused within the scheme of trial under the Criminal Procedure Code, will have occasions to lead evidence in defence they may do so. If on defence evidence, or on materials produced in support of defence case, it transpires that a case of sanction under Section 197 Cr.P.C. has been made out, the court will be justified to stop further proceedings for want of sanction. But it will be illegal if the defence evidence is allowed to be introduced dehors the scheme of trial at a stage when defence evidence could not have been introduced. Mr. Sibal has submitted that the High Court failed to appreciate the legal import of Section 200 Cr.P.C. and not only allowed the accused to introduce evidences and materials in defence but relying on such materials passed the impugned judgment holding inter alia that a case of sanction under Section 197 Cr.P.C. has been made out. Since such order is wholly unjustified, the same should be aside by allowing this appeal.

Mr Ashok Desai learned Attorney General appearing for the respondents has submitted that question of sanction as a bar of a criminal trial and defence against the merit of the prosecution case stand on different footing. The question of sanction goes at the root because without the sanction even if a complaint discloses a case for criminal trial such trial cannot be commenced or proceeded with where such sanction is necessary. The learned Attorney General has submitted that writ petitions were filed before the High Court by the complainant and other persons for various reliefs. The facts disclosed in such writ petitions were relevant for the consideration as to the requirement of sanction under Section 197 Criminal Procedure Code in view of the fact that the accused had been acting or purporting to act in discharge of their official duties and a s such they were entitled to claim protection by way of requisite sanction under Section 197 of the Code of Criminal Procedure. Therefore, it was not improper on the part of the High Court to consider the averments in the writ petition for the purpose of deciding whether a case for sanction exists or not.

After giving our careful consideration to the facts and circumstances of the case and the respective submission of the learned counsel for the parties it appears to us that the question of requirement of sanction under Section 197 Criminal Procedure Code should not be confused with the scheme of trial under the Code of Criminal Procedure and the stage at which an accused against whom the cognisance of offence has been taken by the learned Magistrate can lead evidence in support of his defence. The question for consideration is when a Magistrate on the basis of a complaint issued process for appearance of the accused on being satisfied that there is sufficient ground for proceeding and the accused appears before the Magistrate and takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the court has no power to take cognisance except with the previous sanction of the Government as required under sub- section (1) of Section 197 of the Code of Criminal Procedure than the Magistrate would be required to decide the plea on the materials on record then existed or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197(1) of the Code? According to Mr. Sibal, the Magistrate can examined the plea only with reference to the materials available on record and at that stage accused cannot have any right to produce any evidence to support his plea. According to the learned Attorney General, if the accused is debarred from producing the relevant materials to indicate that the acts complained of were in fact committed by the accused in discharge of his official duty and he can only produce the materials when the criminal proceeding reaches the stage under sub-section (4) of Section 246 in any warrant case instituted otherwise than on police report, then the very object and purpose of the provisions of Section 197 will get frustrated and the public servants will have to face irresponsible or vexatious proceeding even in respect of acts done by him in discharge of official duty. According to the learned Attorney General, therefore, though at that stage it may not be permissible for an accused to lead any oral evidence but there cannot be any bar for him to produce necessary documents including official records for the limited purpose of consideration as to whether Section 197 can be said to attracted and whether there exists a valid sanction.