Shri S.K. Zutshi & Anr Vs.
Shri Bimal Debnath & Anr [2004] Insc 440 (10 August 2004)
S.N. Variava & Arijit
Pasayat Arijit Pasayat, J
Appellants call in question legality of the judgment
rendered by learned Additional Sessions Judge, Belonia, South Tripura in
Criminal Revision No.29(4) of 1997. Appellants had challenged legality of the
cognizance taken and issuance of process on the basis of a complaint filed by
respondent no.1. The complaint was filed by respondent no.1 alleging that on
21.3.1997 the present appellants along with some other personnel of Border
Security Force (in short 'BSF') came to his crockery-cum-cloth shop and
demanded Rs.10,000/- as illegal gratification which the complainant refused to
pay. They entered into his shop without any authority, ransacked the shop and
illegally took away some commodities which were stored for business purposes.
Certain documents were also taken away. It was further alleged that they
threatened him to take away his life and with dire consequences on the point of
revolver. They illegally took away the articles on the basis of a purported
seizure memo taking signature of some persons forcibly. Allegations were also
made about the illegal activities of BSF personnel and as to how the people in
the locality were subjected to reign of terror by them. It was in essence
alleged that the accused persons committed offences punishable under Sections
395, 447 and 506 of the Indian Penal Code, 1860 (in short the 'IPC'). Learned
Additional Sessions Judge, Belonia, took cognizance of the offences and issued
process to the present appellants. The order taking cognizance and the
continuance of the proceedings were questioned by the appellants before the
learned Additional Sessions Judge, Belonia by filing an application under Section
397 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The only
point which was urged was that the appellants were, on the basis of a
notification issued in June, 1986, authorized to function under Sections
100-104, 106, 107, 109 and 110 of the Customs Act, 1962 (in short the 'Customs Act').
As the appellants suspected that the complainant had stored articles in his
shop for the purpose of smuggling to Bangladesh, seizure was made. There was no
demand of gratification as alleged. The acts done were clearly within the
permissible area of statutory duties and they were entitled to get the
protection under Section 197 of the Code.
The stand was resisted by the respondent-complainant on the ground that the
acts complained of had not even any remote link with any official acts and
duties and, therefore, Section 197 of the Code has no application.
Learned Additional Sessions Judge, Belonia, accepted the stand of the
complainant and held that Section 197 of the Code had no application to the
facts of the case.
In support of the appeal learned counsel submitted that the factual scenario
clearly shows that the acts done by the appellants were sanctioned by law.
Under the belief that articles were stored with the object of smuggling, the
search and seizure were made. There is no evidence except the vague assertion
of the complainant about the alleged demand of any illegal gratification and/or
other acts. Taking into account the objective for which Section 197 of the Code
has been enacted it is a fit case where the protection provided by the said
provision should be extended. Learned counsel for the respondent
no.1-complainant, however, submitted that the acts alleged do not have any link
whatsoever with the officials acts and, therefore, the order taking cognizance
and/or directing issuance of process cannot be faulted. The judgment of learned
Additional Sessions Judge, Belonia, does not suffer from any infirmity to
warrant interference.
The pivotal issue i.e. applicability of Section 197 of the Code needs
careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr.
(AIR 1988 SC 257), this Court while emphasizing on the balance between
protection to the officers and the protection to the citizens observed as
follows:- "It is necessary to protect the public servants in the discharge
of their duties. In the facts and circumstances of each case protection of
public officers and public servants functioning in discharge of official duties
and protection of private citizens have to be balanced by finding out as to
what extent and how far is a public servant working in discharge of his duties
or purported discharge of his duties, and whether the public servant has
exceeded his limit. It is true that Section 196 states that no cognizance can
be taken and even after cognizance having been taken if facts come to light
that the acts complained of were done in the discharge of the official duties
then the trial may have to be stayed unless sanction is obtained. But at the
same time it has to be emphasised that criminal trials should not be stayed in
all cases at the preliminary stage because that will cause great damage to the
evidence." The protection given under Section 197 is to protect
responsible public servants against the institution of possibly vexatious
criminal proceedings for offences alleged to have been committed by them while
they are acting or purporting to act as public servants. The policy of the
legislature is to afford adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in the discharge of their
official duties without reasonable cause, and if sanction is granted, to confer
on the Government, if they choose to exercise it, complete control of the
prosecution. This protection has certain limits and is available only when the
alleged act done by the public servant is reasonably connected with the
discharge of his official duty and is not merely a cloak for doing the objectionable
act. If in doing his official duty, he acted in excess of his duty, but there
is a reasonable connection between the act and the performance of the official
duty, the excess will not be a sufficient ground to deprive the public servant
from the protection. The question is not as to the nature of the offence such
as whether the alleged offence contained an element necessarily dependent upon
the offender being a public servant, but whether it was committed by a public
servant acting or purporting to act as such in the discharge of his official
capacity. Before Section 197 can be invoked, it must be shown that the official
concerned was accused of an offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duties. It is not
the duty which requires examination so much as the act, because the official
act can be performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of the official
duties of the public servant concerned. It is the quality of the act which is
important and the protection of this section is available if the act falls
within the scope and range of his official duty. There cannot be any universal
rule to determine whether there is a reasonable connection between the act done
and the official duty, nor is it possible to lay down any such rule. One safe
and sure test in this regard would be to consider if the omission or neglect on
the part of the public servant to commit the act complained of could have made
him answerable for a charge of dereliction of his official duty, if the answer
to his question is in the affirmative, it may be said that such act was
committed by the public servant while acting in the discharge of his official
duty and there was every connection with the act complained of and the official
duty of the public servant. This aspect makes it clear that the concept of
Section 197 does not get immediately attracted on institution of the complaint
case.
At this juncture, we may refer to P. Arulswami v. State of Madras (AIR 1967
SC 776), wherein this Court held as under:
"... 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 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."
Section 197(1) and (2) of the Code reads as under :
"197. (1) When any person who is or was a Judge or Magistrate or a
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) in the case of 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 the Union, of the Central Government;
(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.
* * * (2) No Court shall take cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the Union while acting or
purporting to act in the discharge of his official duty, except with the
previous sanction of the Central Government." The section falls in the
chapter dealing with conditions requisite for initiation of proceedings. That
is if the conditions mentioned are not made out or are absent then no
prosecution can be set in motion. For instance no prosecution can be initiated
in a Court of Sessions under Section 193, as it cannot take cognizance, as a
court of original jurisdiction, of any offence unless the case has been
committed to it by a Magistrate or the Code expressly provides for it. And the
jurisdiction of a Magistrate to take cognizance of any offence is provided by
Section 190 of the Code, either on receipt of a complaint, or upon a police
report or upon information received from any person other than police officer,
or upon his knowledge that such offence has been committed. So far public
servants are concerned the cognizance of any offence, by any court, is barred
by Section 197 of the Code unless sanction is obtained from the appropriate
authority, if the offence, alleged to have been committed, was in discharge of
the official duty. The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and circumstances
in which it shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to a public
servant is brought out by the expression, 'no court shall take cognizance of
such offence except with the previous sanction'. Use of the words, 'no' and
'shall' make it abundantly clear that the bar on the exercise of power by the
court to take cognizance of any offence is absolute and complete. Very
cognizance is barred. That is the complaint, cannot be taken notice of.
According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction'
or 'the exercise of jurisdiction' or 'power to try and determine causes'. In
common parlance it means 'taking notice of'. A court, therefore, is precluded
from entertaining a complaint or taking notice of it or exercising jurisdiction
if it is in respect of a public servant who is accused of an offence alleged to
have committed during discharge of his official duty.
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 B. Saha and Ors. v. M. S. Kochar (1979 (4)
SCC 177), it was held : (SCC pp. 184-85, para 17) "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, 'it 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 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 and the said
provision." Use of the expression, 'official duty' implies that the act or
omission must have been done by the public in the 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.
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 a 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 and
without any justification therefor 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 Matajog Dobey v. H. C.
Bhari (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." 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 official to which applicability of Section 197 of the Code
cannot be disputed.
The correct legal position, therefore, is that an accused facing prosecution
for offences under the Old Act or New Act cannot claim any immunity on the
ground of want of sanction, if he ceased to be a public servant on the date
when the court took cognizance of the said offences. But the position is
different in cases where Section 197 of the Code has application.
Above position was highlighted in R. Balakrishna Pillai v. State of Kerala
(AIR 1996 SC 901), State of M.P. v. M.P. Gupta (2004 (2) SCC 349) and in State
of Orissa through Kumar Raghvendra Singh & Ors. v.
Ganesh Chandra Jew (JT 2004 (4) SC 52).
In this case the complaint is that illegal gratification of Rs.10,000/- was
demanded and because of refusal to pay the shop was ransacked and goods taken
away. When this factual background is considered on the anvil of legal
principles delineated above, the inevitable conclusion is that the appellants
have not made out any case for interference. The appeal fails and is dismissed.
Before we part in the case, it has to be noted that learned counsel for the
appellants submitted that there was prayer made for transfer of the proceedings
in terms of Section 475 of the Code which has not been considered. To a pointed
query whether such a stand was taken before learned Additional Sessions Judge,
no definite reply could be given. In addition, we find that after disposal of
the matter by learned Additional Sessions Judge, a petition was filed before
learned SDJM with reference to Section 475 of the Code. The same has been dealt
with and orders have been passed on 18th June, 1998 which have become final.
That being so, the plea in that regard presently raised has no leg to stand.
The appeal fails and is dismissed.
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