Sm. Mini Sardarin vs P.B. Banerjee

Niyogi, J.—This is a reference by the Deputy Commissioner of Purulia u/s 438, Code of Criminal Procedure The facts of the case will sufficiently appear from the letter of reference of the learned Deputy Commissioner. A petition of complaint under Sections 323/ 500, I.P.C., was filed before the Sub divisional Magistrate, Purulia, by the complainant Sm. Mini Sardarin alleging that the accused opposite party Sri. P.B. Banerjee, who is a Deputy Superintendent of Police at Purulia. while examining the said Sardarin in connection with a criminal case, became excited and assaulted her and her son using at the same time abusive language towards her. I should only shortly state here the nature of the allegation as made by the complainant opposite party. She has stated that the Deputy Superintendent of Police was investigating a case instituted against the police and that while examining the complainant he lost his temper and the accused opposite party lifted up her son by hair and began to abuse him. Thereafter the accused became further excited, for nothing and started abusing the complainant in filthy language and began to kick her on the right arm as well as on the right side of the chest with shoes of his feet and as a result the complainant fell down unconscious due to physical pain and agony. The learned Sub divisional Magistrate After examining the complainant, sent the matter for judicial enquiry at first to Sri. S.P. Sen Gupta and the said learned Magistrate informed the Sub divisional Magistrate that he felt "embarrassed to hold the enquiry in view of previous acquaintance with the accused.

The Subdivisional Magistrate recalled the matter and made-it over to Sri. A.K. Basu, Magistrate, 1st class, for judicial enquiry. Eventually, the Sub-divisional Magistrate sent the matter for judicial enquiry to Sri. S.N. Maitra, Magistrate, 1st class, on February 2, 1959. The said enquiring Magistrate reported that he was satisfied that a prima facie case u/s 323, I.P.C., had been established against the accused. On April 18, 1959, the Subdivisional Magistrate passed the following order, "complainant absent by petition. Seen the report of the enquiring Magistrate. Petition is filed on behalf of the accused that sanction of State Government was not taken u/s 197, Code of Criminal Procedure" Then on May 6, 1959, the Subdivisional Magistrate passed a lengthy order, the purport of which is that in his opinion the alleged offence was committed by the accused, who is the Deputy Superintendent of Police, while acting in the discharge of his official duty and as such previous sanction of the State Government as-required u/s 197, Code of Criminal Procedure, would be necessary before summoning the accused u/s 323, I.P.C., and he gave direction for necessary steps to be taken in this behalf.

Against the said order of the learned Subdivisional Magistrate, the learned Deputy Commissioner, Purulia, has made this; reference. In his opinion there is no necessary connection between the offence complained of and the performance of the duties of the said Deputy Superintendent of Police and accordingly he has referred this matter to this Court for setting aside the said order passed by the learned Subdivisional Magistrate. The learned Deputy Commissioner, Purulia, has, in this connection, relied on a decision of the Supreme Court in Amrik Singh v. The State of Pepsu (1955) S.C.A. 368. Section 197(1), Code of Criminal Procedure, runs thus:

When any person who is a Judge within the meaning of Section 19, I.P.C., 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 of the Government concerned.

Several authorities have been cited before me on either side; It is not necessary to go into details. In the case of AIR 1939 43 (Federal Court) , where all the previous cases were reviewed by the Federal Court, Varadachariar, J., observed at p. 56-

It does not seem to me necessary to review in detail the decisions given u/s 197, Code of Criminal Procedure, which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. In another group more stress has been laid on the circumstances that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed.

We may next refer to the Privy Council decision in AIR 1948 128 (Privy Council) , wherein it was held by the Privy Council that a public servant could only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of official duty. The test might well be whether the public servant, if challenged, could reasonably claim that what he did, he did in virtue of his office. In the case of Amrik Singh (supra). quoted by the learned Deputy Commissioner, the Supreme Court after reviewing the various authorities, summed oup the same in the following language:

It is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1), Code of Criminal Procedure, nor even every act done by him while he is actually engaged in the performance of his official duty; but if the act complained of is directly concerned with his official duty 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 duty 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 stage of the grant of sanction which must precede the institution of the prosecution.

Later on it has been further observed, that if the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction u/s 197(1), Code of Criminal Procedure, would be necessary. But if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required. Again at p. 375 it has been observed-

The result then is whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do then sanction is requisite, but if they are unconnected with such duties no sanction is necessary.

In the case of Matojog Dobey v. H.C. Bhari (1956) S.C.A., it has been observed by the Supreme Court that there must be reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation. Their Lordships in that case quoted an earlier case, the case of Sree Kantiah Ramayya Munipalli v. The State of Bombay (1955) S.C.A. 283, in which Bose, J. had; observed as follows:

Now it is obvious that if Section 197, 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.

Their Lordships summed up the result of the foregoing discussion in this language. There must be a reasonable connection between the act and the discharge of official duty, the act 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 course of the performance of his duty.

The latest decision on this point by the Supreme Court is the case of K. Satwant Singh Vs. The State of Punjab, . In that case all the previous decisions have been discussed and approved.

Now, the question of applicability of Section 197, Code of Criminal Procedure, in this case will depend on the allegations in the petition of complaint. A Magistrate, exercising 1st class power, after judicial enquiry in the matter, has reported that a prima facie case has been made out. It is a different matter whether the complainant ultimately succeeds in proving her case or not but on the allegations as they are, it cannot certainly be said that in committing the alleged offence, namely, assaulting the complainant, the Deputy Superintendent of Police was acting or purporting to act in the discharge of his official duty.

Mr. Talukdar appearing on behalf of the accused opposite party, has argued that at the worst it was a case of dereliction off duties and it was not such a dereliction of duties as no sanction would be required in this case. It is urged that the Deputy Superintendent of Police was at the moment actually engaged in investigating a criminal case and certain excesses might have been committed by him due to the impertinent attitude taken up by the complainant. So, the alleged acts by the Deputy Superintendent of Police are not so disconnected with his duties as a public servant as to place this matter outside the ambit of Section 197. I am unable to accept the said contention of Mr. Talukdar. I am, therefore, of opinion that it is not a case in which previous sanction of the Government concerned u/s 197(1) would be required. The reference by the Deputy Commissioner is accordingly accepted. The order of the learned Subdivisional Magistrate be accordingly set aside and he be directed to proceed with the case according to law. Let the records be sent down as early an possible.