Mohendra Nath Saikia vs Nuruddin Ahmed, Additional Superintendent of Police

D.N. Baruah, J.—This revision is directed against the order dated 3.2.93, passed by the Magistrate 1st Class, morigaon in CR Case No. 976/92 refusing to take cognizance of offence and directing the Petitioner (complainant) to obtain sanction from the Government.

The facts of the case may briefly be stated as follows:

Petitioner is a drive of a public vehicle (bus) plying from Nagon to Dhing. On 24.7.92 he on reaching Nagaon parked his bus by the side of the road for convenience of the passengers. After parking the said vehicle there, the Petitioner went to take a glass of water in a nearby tea stall, Meanwhile, his handyman informed him that he was called by the police wailing in a police van near the bus. On being informed, he went to the bus where Officer-in-charge of Morigaon Police Station caught hold of his shiri and dragged him towards the bus where the opposite party an Additional Superintendent of Police was standing with a cane stick in his hand. As soon as the Petitioner reached the opposite party he caught hold of the Petitioner and began to beat him, with the cane stick and as a result the Petitioner sustained injury, the Opposite party had beaten him mercilessly compelled him to kneel down on the road by catching hold of his ears with his hand in front of people present there. The Petitioner was compelled to obey the punishment given by the opposite party. As a result the Petitioner received mental shock. The opposite party, thereafter took the complainant to the police station, seized the papers, asked the Petitioner to sign on some white papers and kept him in the police station for about two hours. The Petitioner, thereafter, filed Annexure-I complaint petition in Court, The case was registered u/s 323/384/500/506 I.P.C. on 24.7.72. Initial statement of the complainant was recorded by the Magistrate. In his initial statement he narrated the same story. He cited about 5 witnesses. The Magistrate, thereafter, recorded the statement of two more witnesses namely, Jogen Saikia and Rustam Ali. In their statements also they told similar story. The Petitioner was examined by a doctor viz. Dr, D.K. Borah of Nugaon who found lacerated Injuries and also swelling on the body of the Petitioner. However, learned Judicial Magistrate 1st Class, Nagaon by his order dated 3.2.93 refused to take cognizance of the offence on the ground that the offence alleged, had been committed at the time when complainant was on duty. According to him sanction was necessary u/s 197 Code of Criminal Procedure, before taking cognizance of the offence against the Opposite party.

I have gone through the order passed by the learned Magistrate which reads thus:

Complainant is present. Advocate for the complainant is also present. After hearing the deposition made by the complainant and his witnesses, after perusal of the wounded statement of doctor and after examining the records of the case, it is observed that materials are available against the accused person u/s 323/500/506 I.P.C. On the other hand, the accused person is a high ranking police officer and at the time of occurance he was on duty. Therefore on considering all aspects of the case sanction u/s 197 of the Code of Criminal Procedure is needed before registering a case against the accused person. Therefore the complainant will bring government sanction.

Being aggrieved, the Petitioner filed the present petition.

Heard Mr. A.M. Mazumdar, learned Counsel for the Petitioner. Also heard Mr. S. Medhi learned Counsel for the Opposite Party. Mr. Medhi submitted that if the fact narrated by the Petitioner was taken to be true then definitely the action of the opposite party can not be said to be in the discharge of his duties and therefore the sanction was not necessary. On the other hand, Mr. Mazumdar submitted that the offence alleged to have been committed by the Opposite party was definitely while the Opposite party was acting in me discharge of his official duty and the opposite party being a public servant not removable from his office save by or with the sanction of the government, no Court can take cognizance of such offence except with the previous sanction of the government. Therefore, according to Mr. Mazumdar the impugned order passed by the Magistrate Was just, proper and no interference was called for.

On the basis of the rival contention of the counsel for the parses it is to be seen whether the impugned order can sustain in law. Ordinarily any one may lodge a complaint against commission of any offence. u/s 2(c) of the Code of Criminal Procedure �complaint� means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the said Code, that some person, whether known or unknown, has committed an offence. However, provisions contained in Section 195 to 199 Code of Criminal Procedure are the exceptions to the general rule.

These sections are designed to prohibit prosecution for contempt of lawful authority of public servant, for offences against public justice or for offences relating to documents given in evidence as referred to u/s 195; prosecution for offence against State or for criminal conspiracy, u/s 196; prosecution against Judge, Magistrate and public servant accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty, u/s 197; prosecution for offences against marriage, u/s 198; prosecution for offence u/s 498A of I.P.C. as envisaged u/s 198A Code of Criminal Procedure and prosecution for defamation u/s 199 Code of Criminal Procedure.

u/s 197 Code of Criminal Procedure no Court shall take cognizance of an offence alleged to have been committed by any Judge, Magistrate or a public servant not removable from his office save by or with the sanction of the Government while acting or purporting to act in the discharge of his official duties. The object is to protect the Judges and other public servants against irresponsible, frivolous and vexatious proceedings for acts done in the discharge of their official duties and to see that no prosecution is started unless there is some foundation in the charge. Prosecution is permissible against them only when appropriate authority is satisfied that there is a prima facie case for starting a proceeding and this prima facie satisfaction has been imposed as a safeguard before the actual prosecution commences. However the intention is not to exonerate public servants for offence committed, but to enable them to perform their duties fearlessly by giving protection to them from such vexatious, malafide or false prosecution. In order, to attract the provisions of Section 197 two conditions must be fulfilled i.e. (1) the public servant is removable from office cither by the Union Government or by the State Government and not by any lesser authority and (2) he is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duties.

There has been conflict of decisions regarding the expression "while acting or purporting to act in the discharge of his official duty" as referred to in Section 197 Code of Criminal Procedure.

The Federal Court had the occasion to deal with this section in AIR 1939 43 (Federal Court) In the said decision their Lordships observed that Section 197 may roughly be classified as falling in three groups namely, (1) that there was some thing in the nature of the act complained of which was ejected with the official character of the person, doing it, (2) the, official character or status of the accused give him the opportunity to commit the offence and (3) the act was committed at the time when the accused was engaged in his official duty. According to the said decision the use of the expression "while acting or purporting to act in the discharge of his official duty" lends support to the above view. The Privy Council in a later decision in H.H.B. Gill v. King reported in 1948 PC 128 approved the decision of Hori Ram. The Privy Council also observed that a public servant can only be said 10 act or purported to act in the discharge of his official duty if, his act is such as to lie within the scope of his official duly. Their Lordships further, observed that a, Judge neither acts nor purports to act as a Judge in receiving bribe, though the Judgment which he delivers may be such an act : nor does a Government Officer act or purport to act as public servant in doing some act which has got no nexus with his official duty. The test may as well be whether the public servant, if challenged can reasonably claim that what he does, he does by virtue of his office. It is further held that a temporal meaning should not be held to the words "while acting etc." This decision was reaffirmed by the Privy Council in AIR 1949 117 (Privy Council) The Supreme Court in Amrik Singh Vs. The State of Pepsu, held that it is not every offence committed by public servant that requires sanction for prosecution u/s 197 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 only the sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties. In Matajog Dobey Vs. H.C. Bhari, the Supreme Court also held that 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 the said section unless the act complained of is an offence. The Supreme Court further held that the only point to determine is whether it was committed in the discharge of his official duly. It does not mailer even if the act exceeds what is strictly necessary for the discharge of his official duties as such questions would arise only at a later stage when the trial proceeds on merit.

in P. Arulswami Vs. The State of Madras, the Supreme Court held that it is not every offence committed by a public servant that requires protection u/s 197(1) of the Code of Criminal Procedure nor even every act done by him while he is actually engaged in performance of his official duties but if the act complained of is so directly concerned with his official duty so that if questioned it can be claimed to have been done by virtue of the office then sanction would be necessary, It was the quality of work that is important and if it falls within the scope and range of his official duty, the protection contemplated u/s 197 of the Code of Criminal Procedure will be available to that officer. An offence may be entirely unconnected with the official duty and in such case the officer is not entitled to get any protection. This view of the Supreme Court has been followed in the subsequent decision and it has been held that if the acts complained of are so integrally connected with the duties attached to the office as to be inseparable from them then the sanction would be necessary. To sum up the above authorities the safe test would be to determine whether the protection given u/s 197 Code of Criminal Procedure is available to the officer concerned is to see whether there was reasonable connection between the act complained of and the official duly of the public servant.

This Court also had the occasion lo deal with a similar matter regarding the necessity of sanction for prosecution for the offence committed by a public servant in a series of cases in Criminal Revision Nos. 49, 50 and 51 of 1980 reported in (1983) 1 GLR (NOC) 31. This Court held that it is true that public servants have to be protected from harassment in the discharge of their official duties, but such protection should not be granted merely on asking; the claim must have the backing of some materials to satisfy the mind of the Court that the alleged offence was committed in the discharge of their duties. It was further held that decisive test to find out whether an offence was committed by a public servant while acting or purporting to act in his official duty is to ascertain whether there is something in the nature of the act complained against that attaches it to the official character of the person doing so. Of course, the time factor, namely, that the act was committed at the time when the public servant was engaged in official duty is relevant but not decisive. It is no pan of the official duty to commit an offence and never can be. An official act can be performed in strict compliance of the official duties as well as in dereliction of it. The crucial question is whether acts constituting an offence were committed by the accused in his capacity as public servant. One should examine the acts or omission more than the duty. If the acts were done or purported to be done or omitted to be done in his capacity as public servant, the protection is available. If the act complained of is strictly connected with his official duty so that it could be claimed to have been done by virtue of his office, the sanction is necessary.

From the reading of the above decision also it is clear that the protection is available loan official if he acts in discharge of his duties or in dereliction. His acts must have close connection with his official duties. If that is absent, the protection is not available.

Turning to the present case it is to be seen whether the opposite party is entitled to protection u/s 197 Code of Criminal Procedure The allegation, if it is true, is that the Petitioner parked his bus on the road instead of in the bus stand. He might have committed some offence which could be determined only after taking evidence. But in the capacity of Addl. Superintendent of Police he may take action like prosecution for wrong parking or violation of any of the provisions of the Motor Vehicles Act. But it is no part of his duty to beat him and compel him to kneel down and to write down in blank papers as alleged. These acts in my view are absolutely not connected with his official duty. Therefore, I am of opinion that the opposite party is not entitled to any such protection. The learned Magistrate passed the impugned order without caring to consider all these aspects. He was very much swayed away by the fact that the opposite party is a high official in the Police Detriment. This is no ground for giving protection. He ought to have considered the relevant provisions of law before passing the impugned order, lie also did not decide whether the acts complained of against the opposite party were in the discharge of his official duly. As I have already stated, in my view, the acts complained of cannot be a part of his duty and, therefore, the protection is not available. I accordingly, set aside the order and direct the Magistrate to take up the case. However, at the time of trial and delivering Judgment the learned Magistrate shall not take into consideration any observation made herein above.

The petition is accordingly allowed.

No Cost.