Surjit Singh, Inspector, State House Officer vs R.S.Dass, I.A.S.(Retd.)

S.D. Bajaj, J.

Heard. Around 9.05 p.m. on 19.10.1987 Central Police Station, Chandigarh, was informed on telephone, allegedly received from the Control Room that certain undesirables resembling terrorists were present in House No. 35, Sector 10, Chandigarh Police party was immediately despatched thereto in search of them in terms of D.D.R. No. 57 recorded in Police Station aforesaid on 19.10.1987.

On arrival at House No. 35, Sector 10, Chandigarh the police found that the undesirables were concealing their presence on the first floor of the house and the only approach there it could be from around floor and first floor of adjoining House No. 35, Sector 10, Chandigarh, because the occupant of the ground floor of House No. 35, Sector 10, Chandigarh had blocked the passage from his side by placing the Holy Granth in the staircase and thereby converting it into a place of religious worship. Keeping in view urgency and to avoid controversy, the police are alleged to have approached the complainantrespondent R.S. Dass, a retired I.A.S. Officer, who is now practising as an advocate of this Court, (sic). The respondent indulged in legal niceties and wanted to engross the police in legal quibbles. The police in turn effected a forcible entry via his tenancy premises, apprehended the naughy boys, and took legal action against them which culminated in their conviction. After apprehending the naughty boys'' while taking them to the police station in their own van, the police also alleged to have taken respondent along thereto as well but did not in their wisdom proceed against him and set him at liberty around 11.00 p.m., i.e., nearly two hours after apprehension. D.D.R. No. 64 was recorded in Police Station Central, Chandigarh, to this effect around 12.25 a.m. on 20.10.1987. Respondent R.S. Dass filed against the three petitioners a complainant under Sections 342/352/448, all read with Section 34, Indian Penal Code, wherein the learned trial Court made the summoning order. The present petitioners moved therein an application for dropping the proceedings against them on the ground that sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 had not been obtained by the respondent before prosecuting them. Learned trial Court, however dismissed the application on 8.8.1988. While dismissing it, learned trial Court observed as follows :

"On which complaint the accused had raided the house of the complainant ? Whether on the basis of said complaint any D.D.R. or F.I.R. was also lodged ? Whether the accused persons had proceeded to raid the house after making entries in the roznamcha ? Record altogether is silent about these questions. In absence of this record the acts attributed to the accused can by no stretch of imagination be termed as having been done in discharge of their official duties. There is no nexus between the acts complained of and their official duties. Hence, to my mind, no sanction under Section 197, Criminal Procedure Code, in the present case is required. In view of this, the application under Section 197, Criminal Procedure Code, stands disposed of. Let case be fixed for production of precharge evidence of the complainant."

Copies of D.D.R. No. 57 dated 19.10.1987 and No. 64 dated 20.10.1987 have since been placed on record. Photostat copy of Notification No. 12291III(I)84/3157 dated 10.2.1984 issued by the Home Department of Union Territory of Chandigarh has also been placed on record. It would thus appear from the contents of these documents that the petitioners had gone to House No. 35, Sector 10, Chandigarh, in search of the naughty boys with reference to D.D.R. No. 57 dated 19.10.1987 and effected their entry to first floor of House No. 35, Sector 10 aforesaid from the house occupied by the respondent in the discharge of their official duties on account of difficult situation allegedly created by the respondent and ultimately did not take any action against the respondent for the obstruction admittedly made by him in the performance of their duties presumably on account of his high sounding I.A.S. retiree status and being a member of the Local High Court Bar Association.

Chandigarh is duly notified as "Disturbed Area" and, therefore, for apprehension of undesirables allegedly resembling terrorists (their description given out in D.D.R. No. 57 dated 19.10.1987), the petitioners could reasonably ask for ingress from respondent''s house and even effect a forcible entry through it on the respondent''s refusal to allow them an entry therefrom. The text and tenor of the complaint filed by the respondent also indicates that it has been filed basically protect the naughty boys; muchless for the protection of enforcement of any legal rights allegedly vested in the respondent himself.

While examining the applicability of Section 197 of the Code of Criminal Procedure to the facts and circumstances aforesaid, their Lordships of the Supreme Court observed in Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, as under :

"The 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 Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a 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 with 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. In Hori Ram Singh v. Emperor, AIR 1939 FC 43 at p. 51(B). Sulaiman J. observes :

`The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.

The interpretation that found favour with Varadachariar, J., in the same case is stated by him in these terms at page 56 : "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 affirming this view, the Judicial Committee of the Privy Council observe in Gill''s case (A)''.

`A public servant can only be said to act or purport to act in the discharge of his official duty, if this act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, in virtue of his office''.

AIR 1939 FC 43 (B) is referred to with approval in the latter case of H.T. Huntley v. Emperor, AIR 1944 FC 66 (C) but the test laid down that it must be established that the act complained of was an `official'' act appears to us unduly to narrow down the scope of the protection afforded by Section 197 Criminal P.C. as defined and understood in the earlier case. The decision in Albert West Meads v. The King, AIR 1948 PC 156 (D), does not carry us any further; it adopts the reasoning in `Gill''s case (A)''.

There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287 at pp. 292293 (E), Bose, J., observes as follows :

`Now 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''.

The question of previous sanction also arose in `Amrik Singh v. State of Pepsu, AIR 1955 SC 309 at p. 312 (F). A fairly lengthy discussion of the authorities is followed up with this summary :

`If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them then sanction under Section 197(1) would be necessary : but 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''.

The result of the foregoing discussion is this :

"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".

In the absence of sanction, learned trial Court could not proceed against the three petitioners. Its impugned order dated 8.8.1988 is accordingly quashed.

JUDGMENT accordingly.