Sardar Karanalsingh Gill and Another vs State of Gujarat and Another

I.C. Bhatt, J.—This Application has been filed by the petitioners for dismissing the complaint on the ground that there is no sanction u/s 197

of the Code of Criminal Procedure. The petitioners were the public servants as defined in the Rajasthan Sales Tax Act, 1954 and therefore, no

prosecution can be initiated against the petitioners without the sanction of the Government of Rajasthan.

The case of the prosecution is that petitioner Nos. 1 and 2 are working as Sales Tax Officers in the Anti-Evasion Branch in the Sales Tax

Department of State of Rajasthan, It was alleged that there was large-scale evasion of sales-tax at the Maukhampura Checkpost situate near

Sachor, in Rajasthan, on Sachor-Tharad Road and that the checkpost staff had joined hands with the transporters and merchants of Rajasthan and

the trucks were entering in Gujarat State illegally from the aforesaid checkpost. By communication dated 19-11-1982 of the Commercial Tax

Department, the petitioners were given instructions to proceed to Jaipur immediately and to organise anti-evasion activities in that area and also

check up Maukhampura Aburoad Checkpost from Gujarat side and particularly to see that the trucks entering Gujarat from these checkposts are

checked. In view of this state of affairs, on 25th November 1982 the petitioners had gone to the said place for the aforesaid purpose. It is alleged

that the petitioners found that one Truck having No. GTX 8317 coming from Maukhampura driven by one Dabyabhai Bhil containing 80 bags of

''Matira'' seeds and 15 bags of ''Jeera'' and it was found that no taxes were paid and it was not accompanied with proper and necessary

documents. The driver was questioned and his statement was recorded by one member of the petitioners'' party. It is stated by the petitioner that

the R. T. O. papers were taken away from the driver and it is stated that the petitioner No. 2 went to Maukhampura Checkpost to verify the

contents of the statement of the driver and it was found that the driver bad not deposited the papers at that checkpost and it was further alleged

that the staff of Maukhampura checkpost was conniving with the drivers of the trucks in evasion of taxes and making down wrong entries showing

that no goods were carried in the vehicle. They all returned in the jeep placing a guard on the truck. Thereafter, when they returned to the site of

checking, they found that the truck had gone away with the driver. Ultimately, Sales-tax notice was served to the owner of the truck and necessary

Report was submitted to the Commissioner, Commercial Taxes Anti-evasion, Rajasthan.

It is submitted by the petitioners that a false complaint has been filed against them by Ramlal to whom Sales Tax Notice was served, as a

counter-blast for the action taken by the petitioners and an attempt has been made to bring the case within the jurisdiction of State of Gujarat. It

has been further submitted that on the same day i.e. 25-11-1982, at about 2-00 a. m. the report regarding this checking was made. It has been

further submitted that though the complaint has been shown as dated 26-11-1982, it had in fact gone to the Court after about four days i.e. on 29-

11-1982 and it was only a counter blast of the action taken by the petitioners against the complainant. The Criminal case was registered on 29-11-

1982. The petitioners filed Application Ex. 49 in Criminal Case No, 437 of 1982 for dismissing the complaint, before the Judicial Magistrate, F.C.,

Tharad, u/s 197 Cr.P.C., which came to be rejected. Against the said order of the Judicial Magistrate, F.C., Criminal Revision Application No. 55

of 19851 came to be preferred before the Sessions Court, Banaskantha, and the learned Sessions Judge has also rejected the Revision

Application. The petitioners have, therefore, filed this Special Criminal Application before this Court.

Learned Counsel for the petitioners has raised the following contentions in this Application:

(1) Without sanction u/s 197 of the Code of Criminal Procedure, no complaint can be lodged against the petitioners, as they were the public

servants and were acting in the discharge of their duties and hence the complaint should be dismissed.

(2) Even though it has been alleged that the complainant was beaten, no medical evidence is forthcoming to corroborate the say of the complainant.

Now, so far as the question of sanction u/s 197 of the Code of Criminal Procedure is concerned, it reads as under:

Prosecution of Judges and Public Servants:

(1) When any person who is or was a Judge or Magistrate or public servant not removable from his office save by or with the sanction of the

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) .... .... .... ....

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection

with the affairs of a State, of the State Government.

It is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for, of course it is no part

of an official''s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act

can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. It

says ""when any public servant...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...."" These words employed in Section 197(1) of the Code of Criminal Procedure are capable of a narrow as well as a wide

interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official''s duty to

commit an offence and never can be. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in

the course of the same transaction in which the official duty is performed or purported to be performed. The right approach to the import to these

words lies between these two extremes. While on the one band, it is not every offence committed by a public servant while engaged in the

performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence directly and reasonably

connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important, and if it

falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Code of Criminal Procedure will be

attracted. If the act complained of is directly concerned or reasonably connected with the official duties and if the act complained of is so integrally

connected with the duties attaching to the office as to be inseparable from them, then sanction u/s 197(1) would be necessary. It is not every

offence committed by a public servant that requires sanction for prosecution u/s 197(1) Criminal Procedure Code; 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 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 stages of the grant of sanction, which must precede the institution of the prosecution. For my

above observation I am fortified by decisions of the Supreme Court in the cases of Shreekantiah Ramayya Munipalli Vs. The State of Bombay, ,

Amrik Singh Vs. The State of Pepsu, and B. Saha and Others Vs. M.S. Kochar, .

In the instant case, as per the directions given by communication dated 19-11-1982, the petitioners were required to go on the Maukhampura

checkpost, as stated earlier, for organising anti-evasion activities and to check up the trucks entering Gujarat from these checkposts. It appears

from the record that they had gone there and had taken possession of the R.T.O. papers with regard to the Truck No. GTX 8317 and they had

also made Report on 25-11-1982 regarding this checking, which produced on record of this case, from which it clearly transpires that the

petitioners were discharging duties as Sales-tax Officers and thus as public servants.

6.1 From the complaint on record it appears that the complainant also filed the complaint in regard to the incident of 25-11-1982. It has been

alleged that the said Truck GTX 8317 was stopped and the complainant was abused and was given some slaps by the petitioner No. 1 and the

petitioner No. 2 also gave fist blows to the driver of the. truck and took away the papers of the truck. Thus, the alleged incident with regard to

which the complaint has been filed by the complainant is in regard to the same incident of organising anti-evasion activities on 25-11-1982 carried

out by the petitioners. The alleged offence would not have been committed if the petitioners were not preseni at the place of incident i.e.

Maukhampura checkpost. They were there in the discharge of their duties as per the instructions of the higher authorities and thus the truck in

question was checked by them in the course of their official duties. The incident is alleged to have takken place at the same place and spot while

the petitioners were discharging their duties of checking the truck in question. Thus, the act complained of is directly concerned or reasonably

connected with the official duties of the petitioners. The act complained of is so integrally connected with the duties of the petitioners as to be

inseparable from them. Thus, the action was in discharge of their official duties or at least in the purported discharge of their official duties and

consequently the petitioners will be entitled to get the protection of Section 197 of the Code of Criminal Procedure. Learned Counsel for the

respondent-State has not been able to argue anything contrary. Considering the facts and circumstances of this case, I hold that Section 197 Cri.

P.C. applies and that sanction was necessary, and as there was none the proceedings are vitiated hence absence of sanction u/s 197 Cri. P.C. was

fatal to the maintainability of the prosecution.

So far as the second contention raised by the learned Counsel for the petitioners is concerned, it appears that there is no sufficient evidence to

support the say of the complainant and from the facts on record it appears that the complaint has been filed as a counter-blast against the action

taken by the petitioners. The petitioners had made the report with regard to the checking on 25-11-1982 itself and though the complaint is made to

appear as dated 26-11-1982, it was in fact filed on 29-11-1982 i.e. after four days and the criminal complaint was registered on 29-11-1982.

This raises suspicion with regard to the bona-fides of the complainant. It may be stated that on 26-11-1982 notices were served on Ramanlal -

owner of the truck and the staff personnel at Maukhampura were suspended. Therefore, in all probabilities, the complaint filed by the complainant

appears to be a counterblast to the action taken by the petitioners, as stated above. However, need not go in details, so far as this second

contention raised by the learned Counsel for the petitioners is concerned, as the petitioners are entitled to succeed on the first contention, as

observed earlier.

In the result, the order passed by the learned Judicial Magistrate, F.C., Tharad, below Application Ex. 49, in Criminal Case No. 437 of 1982

and the order passed by the learned Sessions Judge in Criminal Revision Application No. 55 of 1985 are quashed and set aside and the complaint

filed against the petitioners is dismissed. Rule is made absolute accordingly.