Yogesh Acharya @APPELLANT@Hash State of Rajasthan & Ors.

Petitioner has preferred this misc. petition under Section 482 Cr.P.C. for quashment of entire proceedings of Criminal Case No.854/2014, pending

before Chief Judicial Magistrate, Barmer (for short, ‘learned trial Court’).

Succinctly stated, the brief facts of the case are that a report was submitted by Sub Divisional Officer, Barmer against petitioner and three others

alleging inter-alia that forged pattas were issued to fourteen persons by the officers of Municipal Board in collusion with their subordinates despite the

fact that they have no authority to issue such pattas and have also caused revenue loss in other cases. On the basis of that report, FIR No.297/2007

was registered at Police Station Kotwali, District Barmer for offence under Section 420, 467, 468, 471, 409 and 120-B IPC.  After completion

of investigation police filed chargesheet against petitioner and others for the aforesaid offences.   Â

Learned counsel for the petitioner submits that at the relevant time, petitioner was holding the post of Clerk and allegation against him related to

maintaining files of said pattas. Learned counsel for the petitioner has contended that as a public servant he was maintaining files and has not played

any role in issuing pattas.   Learned counsel further submits that before initiating criminal proceedings, no prosecution sanction was obtained

from concerned authority and as such the proceedings initiated against him are liable to be dropped. In support of his contentions, learned counsel

has placed reliance on a decision rendered by coordinate Bench of this Court in Devi Dan Vs. State of Rajasthan (Criminal Misc. Petition

No.2177/2013, decided on 10.10.2014).Â

Learned Public Prosecutor has opposed the petition of the petitioner.

I have heard learned counsel for the parties, perused the impugned order and scanned the materials available on record.

At the outset, it is made clear that status of the petitioner as public servant when alleged offences were committed is not in dispute. In such a

situation, Court is required to see the acts/omissions attributed to the public servant done by him while acting or purportedly to act in discharge of his

official duty. Being pre-requisite to attract protection under Section 197 Cr.P.C., I have made endeavour to examine the charge-sheet and other

material available on record.

Upon scanning the charge-sheet and other documents, it is crystal clear that petitioner on the crucial day was working as Clerk in Municipal Board,

Barmer.   This being the situation, in my view, protection available under Section 197 Cr.P.C. is clearly attracted and petitioner’s grievance

in this behalf is legitimate which ought to have been considered by learned trial Court before taking cognizance.

Supreme Court, in State of Maharashtra Vs. Dr. Budhikota Subbarao [(1993) 3 SCC 339, considered the meaning of the “official actâ€​ and held:

“6. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while

acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary means pertaining

to an office. And official act or official duty means an act or duty done by an officer in his official capacity. In S.B. Saha v. M.S. Kochar, (1979) 4

SSC 177 it was held,

The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in

Section 197(1) of the Code, 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, Nit is no part of an official 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

purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, 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.â€​

Use of the expression, 'official duty' implies that act or omission must have been done by the public servant in course of his service and that it should

have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but

restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. In P. Arulswami v.

State of Madras, (1967) 1 SCR 201 this Court after reviewing the authorities right from the days of Federal Court any Privy Council held:

“. . It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the 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. 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 Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be

committed within the scope of the official duty. Where it is unconnected-with the official duty there can be no protection. It is only when it is either

within the scope of the official duty or in excess of it that the protection is claimable.â€​

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is

under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service

and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be

construed, strictly while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are

discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it

must be given liberal and wide construction, so far its official nature is concerned: For instance a public servant is not entitled to indulge in criminal

activities. To that extent the section has to be construed narrowly and in restricted manner. But once it is established that act or omission was done by

the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in

favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For

instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be

necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is

not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by

this Court in Matajob Dubey v. H.C. Bhhari, AIR 1956 SC 44 thus:

“The offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of

official duty...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 claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.â€

     (emphasis supplied)

If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of

his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.â€​

Similar controversy arose before the coordinate Bench of this Court in Devi Dan Vs. State of Rajasthan (Cr. Misc. Petition No.2177/13, decided on

10.10.2014), and the Court while relying on its earlier decision of Ramswaroop Sharma Vs. State of Rajasthan [2007 (5) WLC (Raj.) 796], held:

“The S.H.O. of a police station discharges his official duties while registering or failing to register a first information report. Non registration of the

F.I.Rs. after receiving the complaint under Section 156(3) Cr.P.C. from the Court was definitely an act/omission done by the S.H.O. concerned while

discharging his official duties. Thus, the petitioner having been posted as the S.H.O. of P.S. Swaroopganj at the relevant time would be entitled to the

protective umbrella of Section 197 Cr.P.C. Cognizance could not have been taken against him for offences under Sections 166, 176, 186 & 188 IPC

committed by him during the discharge of official duties, without obtaining prosecution sanction. Admittedly, in the case at hand, no prior prosecution

sanction was taken before taking cognizance against the petitioner for the above offences vide order dated 25.10.2012.

Resultantly, the misc. petition deserves to be and is hereby allowed. The impugned order dated 25.10.2012 whereby the learned C.J.M., Sirohi took

cognizance against the petitioner for the offences under Sections 166, 176, 186 and 187 I.P.C. is quashed.â€​

As observed hereinabove, while maintaining files by the petitioner he was acting or purporting to act in discharge of his official duty, sanction for

prosecution under Section 197 Cr.P.C. was essential.  There is nothing on record to show that competent authority has granted sanction for

prosecution of the petitioner under Section 197 Cr.P.C. Thus, allowing proceedings to continue in Sessions Case No.854/2014 pending before

learned trial Court would be a sheer abuse of the process of the Court and result in miscarriage of justice.

Consequently, this misc. petition is allowed and the entire criminal proceedings qua the petitioner in Sessions Case No.854/2014, pending before

learned trial Court, are quashed and set aside.