Kanwar Singh vs Sat Parkash Sharma and anr.

Ajit Singh Bains, J.

The petitioner filed a complaint against the respondents in the Court of Judicial Magistrate Ist Class, Rohtak under sections 500, 504, 506 and 323 of the Indian Penal Code on the allegation that on 12th March, 1981, he in his capacity as Cashier along with Samant Singh Secretary of the Kharkhara Janata Cooperative Labour and Construction Society Ltd. approached Sat Parkash Sharma. Assistant Registrar, Cooperative Societies, Rohtak (respondent No. 1) for getting the credit limit of the society raised from Rs. 13000/ to Rs. 25000/. His request was not acceded to and respondent No. 1 also demanded illegal gratification and told the petitioner that the work cannot be done because no "Sewa Pani" (bribe) had been made. The petitioner told the respondent that he was against giving such bribe. On this, respondent No. 1 became furious and gave filthy abuses to the petitioner. He also asked the petitioner to get out from the office. On protest by the petitioner against such misbehaviour. Virender Kumar Sharma, Clerk (respondent No. 2) was called by respondent No. 1 and then both the respondents gave slaps and pushes to the petitioner. It is alleged that the occurrence was witnesses by Rajib. The petitioner was also threatened that he would be killed in case he comes to the office again.

The Judicial Magistrate, after going through the preliminary evidence, summoned the respondents and vide his order dated 4the December, 1981, he dismissed the application of the respondents for rejecting the complaint of the petitioner on the ground of noncompliance of the provisions of section 197, Criminal Procedure Code.

On revision filed by the respondents, the learned Additional Sessions Judge, Rohtak vide his order dated 5th July, 1982, set aside the order of the learned Magistrate and allowed the application of the respondents and dismissed the complaint of the petitioner for noncompliance of the provisions of section 197, Criminal Procedure Code. It is in these circumstances that the present petition has been filed by the complainant.

In my view, no sanction under section 197, Criminal Procedure Code, was required before filing the present complaint. No doubt, the respondents are public servants and a public servant cannot be prosecuted if anything is done in the discharge of his official duties. Sanction is necessary only in those cases where a public servant does certain act honestly and faithfully in the discharge of his official duties, but a public servant who demands bribe during the course of his official duties and gives abuses as is alleged in the complaint cannot be said to have acted in the discharge of his official duties. There is no quarrel about the principle of law as laid down in the rulings relied upon by the learned Additional Sessions Judge but the facts of the present case are distinguishable. There must be a reasonable connection between the act complained of and the discharge of official duty and the act must fall within the scope and range of official duties of the public servant concerned. In Bhagwan Prasad Srivastava v. N.P. Mishra, A.I.R. 1970 S.C. 1661, it who observed by their Lordships of the Supreme Court as under :

"Section 197 is neither to be narrowly construed nor too widely. 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. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned. ... ....

It is open to the accused to place material on the record during the course of the trial for showing what his duty as a public servant was and also that the impugned acts were interrelated with his official duty so as to attract the protection afforded by Section 197, Criminal Procedure Code".

As observed earlier, in the present case., the factum of the demanding illegal gratification and then abusing and assaulting the petitioner does not form part of official duties of the respondents. At present there is no other mterial except the allegations in the complaint and the preliminary evidence which was to be considered by Magistrate. If at any later stage, some material is brought on the record by the respondents, then at that stage the question of sanction under section 197, Criminal Procedure Code can be raised and the Magistrate will consider whether the sanction was required or not. In S.B. Saha and others v. M.S. Kochar, A.I.R. 1979 S.C. 1841, it was held by their Lordships of the Supreme Court as follows :

"In the instant case, the material brought on the record up to the stage when the question of want of sanction was raised by the accused, contained a clear allegation against the accused about the commission of an offence under Section 409, I.P.C. It was substantially alleged that the accused had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged".

It was urged by the counsel for the respondents that the allegations in the complaint are false. Whether these allegations are true or false, is not to be gone into at this stage. The Court is only concerned whether the sanction under section 197, Criminal Procedure Code, was required or not. Merits are to be gone into by the trial Court and if the trial Court finds that there is no substance in the allegations in the complaint, the respondents can be discharged at the time of consideration of framing the charge or they can be acquitted at a later stage.

For the reasons recorded this petition is allowed and the order of the learned Additional Sessions Judge is set aside. The parties through their counsel are directed to appear before the trial Court on 20th February, 1984.