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TMI Blog2001 (7) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... 947 (hereinafter referred to as the 1947 Act) which correspond to Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 1988 Act) and the prosecution case, in short, was that during the year 1983-84, the State Cabinet of Sikkim decided to implement 36 Rural Water Supply Schemes in the State of Sikkim under minimum needs programme for a total cost of ₹ 1,62,31,630/- and while approving the above proposal the Cabinet specifically decided that the works worth more than ₹ 1,00,000/- shall be put to open tender while works below ₹ 1,00,000/- shall be executed through Panchayat nominees. The approval of the State Cabinet was communicated to the Rural Development Department for necessary follow up action for implementation of these schemes. In order to implement 19 of the schemes, the Department issued tender notice on 19-12-1983 inviting sealed tenders from enlisted contractors having resources and experience in such government works. In response to this notice various tenders were received by the Department and the same were opened on 18th January, 1984 by a tender committee. Necessary action for acceptance/r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of another accused-Shri Nar Bahadur Bhandari, the then Chief Minister of Sikkim. The Special Judge by order dated 17th November, 1998 rejected the preliminary objection and held that no sanction was required. Challenging the aforesaid order, the appellant and the aforesaid Shri Nar Bahadur Bhandari moved Sikkim High Court by filing separate revision applications which having been dismissed by the impugned order holding that no sanction under Section 197 of the Code was required, the present appeal by Special Leave. Shri L.Nageswara Rao, learned Senior Counsel appearing on behalf of the appellant, submitted that act of the appellant complained of had reasonable connection with the discharge of official duty and both were so inter-woven that one could not be separated from the other, as such for prosecuting the appellant, sanction was required under Section 197 of the Code and the High Court was not justified in holding otherwise. Learned Counsel, however, did not challenge continuance of the prosecution of the appellant under Section 5(2) read with Section 5(1)(d) of the 1947 Act which corresponds to Section 13(2) read with Section 13(1)(d) of the 1988 Act as no sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 a court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation. In the case of Hori Ram Singh v. The Crown, 1939 Federal Court Reports 159, question was considered as to whether the protection under Section 197 of the Code can be confined only to such acts of the public servant which are 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. In that case, while laying down the law, Sulaiman, J., observed thus at page 178:- 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. It was further observed thus at page 179:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce as to be inseparable from them, then sanction under Section 197(1) 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. [Emphasis added] In the case of Matajog Dobey v. H.C.Bhari, 1955(2) SCR 925, a constitution bench of this court clearly laid down that where a power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance of a warrant issued by the Income Tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. In the case of K.Satwant Singh v. The State of Punjab, 1960(2) SCR 89, a Constitution Bench of this Court observed that some offences cannot by their vary nature be regarded as having been committed by public servant while acting or purporting to act in the discharge of their official duty. For instance, acceptance of bribe, an offence punishable under Section 161 of the Indian Penal Code is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Prakash Gupta v. State of U.P., 1957 SCR 423, observed that a public servant committing criminal breach of trust does not normally act in his public capacity as such no sanction is required for such an act. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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