N.P. Sahni and another vs Suman Singh

D.S. Tewatia, J.—The short question of law that fails for consideration in this revision petition is as to whether the offences alleged to have been committed by the petitioners as mentioned in the complaint, were committed in the performance or put ported performance of their official duties so as to render their prosecution under those offences contingent on the grant of sanction by the competent authority u/s 197, Criminal Procedure Code.

Whether certain acts or omissions constituting the alleged offences in a given case were committed in the performance or purported performance of the official duty have to be judged in the light of given facts of each case. So, at this stage a brief resume of relevant facts becomes necessary.

The petitioner No. 1 Mr. N.P. Sahni holds the rank of a first-class gazetted officer in the Enforcement Directorate, Government of India, at Jullundur City; and the other petitioner Bhagat Ram is his peon holding the rank of Sepoy. On 15th September, 1973, one Shri R.C. Bhalla, an official of the said department, had raided the premises of the respondent Sumand Singh, and took into possession passbook of the Co-operative Bank belonging to the complainant and another similar pass book of the Co-operative Agriculture Service Society belonging to his daughter-in-law. On 17th September, 1973, in pursuance of the official summons from the Enforcement Directorate, the complainant Sumand Singh attended the office of the petitioner No. 1. Bhagat Ram, accused-petitioner No. 2, had ushered him into his office where petitioner No. 1 is said to have demanded Rs. 1,000/- as illegal gratification. On the refusal of the complainant-respondent to accede to that demand, petitioner No. 1, N.P. Sahni, is said to have showered filthy abuses on him. The complainant''s protest against the said petitioner''s misbehaviour towards him only further enraged the latter and drew from him still filthier abuses that the petitioner No. 1 did not stop at that, and he directed accused-petitioner No. 2 to tear off the turban of the complainant and hold him by his long hair. The said occurrence was witnessed by one Kishan Singh, retired Deputy Superintendent of Police and Sarpanch of village Athola ; Lehna Singh, retired D.S.P. as also Puran Singh, Sarpanch of village Wadala Kalan. When P.Ws. asked petitioner No. 1 not to insult the complainant in the manner he was doing, they were turned out of his office. Thereafter, he got the complainant illegally detained in an adjoining room where he was tortured and made to apologies to the said petitioner in writing. Thereafter, the complainant was got arrested u/s 19(1) of the Foreign Exchange Regulation Act, 1947 (Act VII of 1947) and was produced before Shri Amjad Ali Khan, Chief Judicial Magistrate, who released him on bail.

An objection was raised before the trial Magistrate that the Criminal Proceedings against the petitioners, could not be proceeded unless sanction u/s 197, Criminal Procedure Code, and section 26 of the Foreign Exchange Regulation Act, 1947, is accorded by the competent authority. The trial Magistrate dismissed the objection holding that no such prior sanction was required Hence the present petition at their instance.

The relevant part of section 197, Criminal Procedure Code, is in the following terms :--

197 (1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction--

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government, and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government

(2.) * * * *

Section 26 of the Foreign Exchange Regulation Act reads as under :

No suit, prosecution or other legal proceedings shall lie against any person for anything in good faith done or intended to be done under this Act or any rule, direction or order made thereunder.

A plethora of case law has arisen around the provisions of section 197, Criminal Procedure Code, and it is both unnecessary as also impracticable to refer to all but the ones having a direct bearing on the point. Suffice it to take notice of the conclusion drawn therefrom by their Lordships of the Supreme Court in Matajog Dubey v. H.C. Bhari (1956) 2 SCR 925 after discussing earlier decisions rendered by their Lordships of the Privy Council and the Federal Court, which, to quote their Lordships'' words, is :--

The result of the foregoing discussion is thus : 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.

The facts involved in the above case were that in pursuance of a search warrant issued by the income tax Investigation Commission, officials of the Department carried out the search of certain premises named therein. The complainant, it is said, tried to stop them from breaking into the premises in question, but the officials conducting search paid no heed to his request. They tied the complainant with a rope and assaulted him thereby causing injuries to him. On these facts, a complaint under sections 323, 341, 342 and 109, Indian Penal Code, was put in the Court against the said officials. Their Lordships applying the test already reproduced above held that on reading the complaints alone, even without the details of facts, as narrated by the witnesses at the judicial inquiries, it was fairly clear that the assault and use of criminal force etc. alleged against the accused were definitely related to the performance of their official duties It was further held that the injuries a couple of abrasions and a swelling on Nandram Agarwala and two ecchymosis on Mataog-indicated nothing more than a scuffle which was likely to have ensured when there were angry protons against the search and a pushing aside of the protestors so that the search might go on unimpeded.

In a case reported as Amir Singh v. Emperor through Labhu Ram 1950 2 Cri LJ 119, a Division Bench decision of the Chief Court of the Punjab at Lahore, the facts were almost pari materia, in some respects, with the ones involved in the present case. In that case, the Munsif hearing the complainant''s case had asked him as to why he had not brought his witnesses. On being told that his witnesses were to attend that day another Munsifs Court, the accused Munsif broke out in the most foul abuse of his female relatives. The complainant came out of the Court after getting a date fixed in the case and told people present in the Court premises that they must have heard as to how he had been insulted by the Munsif and that he would take steps to get himself righted at the sadar and saying thus he proceeded toward the city. When he had gone only a little distance, Naib Sheriff and three other persons after seizing him took him back to the Court-room where Munsif again showered abuses on him and made him sit in his Court-room for four hours and let him off only after he secured a petition from him asking for his forgiveness Chatterjee, J. who spoke for the Court, after approvingly quoting the following observations from a Madras case reported in re Ghulam Mohammed Sorifub Daulah

If defamatory language were used by a Judge to a person out of Court, when not sitting or actually officiating as a Judge, if seem quite clear that no sanction u/s 197 of the Code of Criminal Procedure would be required ; but the case, as it seems to me, would be different if the same words were used by the Judge in the course of the trial of a suit. He is then acting in his official capacity and it seems impossible that the words used by him in the course of the trial can be uttered in his private capacity. The words uttered are then uttered as Judge and not as a private individual, and if any criminal offence has been committed in the uttering of them the offence has been committed as a Judge.

held that the above reasoning appeared to be cogent and that the case was such in which the Mansif could not have been prosecuted without the prior sanction of the competent authority.

Mr. R.L. Sharma appearing for the respondent State placing reliance on two Supreme Court decisions one reported as Bhagwan Prasad Srivastava v. N.P. Mishra AIR 1979 SC 1661 and other as Pukhraj v. State of Rajasthan AIR 1973 SC 2951 urged that the abusing and the illegal confinement of the complainant by petitioner No. 1 and petitions No. 2 at his instance, formed no part of their duty and thus the offences in question could not be considered to have been committed by them in performance or purported performance of their official duly.

I am afraid the facts of the abovesaid two decisions of their Lordships of the Supreme Court relied on by the respondent''s counsel are different and the ratio arrived at on the basis thereof is clearly distinguishable.

In Bhagwan prasad Srivastava''s case the facts involved were that the accused, a Civil Surgeon, had abused the complainant, an Assistant Civil Surgeon, in the operation theatre and got him turned out from there with the help of a cook. It was held that the accused in that case was not discharging any official duty in relation to the complainant and thus the protection of section 197, Criminal Procedure Code, was not available to him.

In Pukhraj''s case, the facts were that the accused was inspecting the Head Post Office, Jodhpur, where the complainant made a representation to him for cancelling his transfer. Despite the accused having boarded his jeep, the complainant started narrating his story, whereupon the accused got enraged and kicked him in his abdomen, abused him and thereafter ran away in his jeep. Their Lordships after approving their earlier conclusion in Matajog Dube''s case (supra) held that on applying the test laid down in that case it was difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him could be said to have been done in the course of the performance of the accused''s official duty. In both the above cases i.e. Bhagwan Prasad Srivastava''s case and Pukhraj''s case there is no question of there being any nexus between the acts constituting the offence and the discharge of the official duty of the accused in question. The acts therein were not even remotely connected with the performance or purported performance of their official duty. Hence the ratio of both the cases, as already observed, on facts is clearly distinguishable.

For the reasons stated I hold that in the present case the alleged offences had been committed by the petitioners while purporting to act in the discharge of their official duty. That being so the prior sanction from the competent authority was the sine qua non for their criminal prosecution. I therefore accept this petition, set aside the order of the trial Court dismissing the objection of the petitioners and quash the criminal proceedings as being premature.