TMI Blog2009 (5) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... rowly 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 then the bar u/s 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 [ 1955 (10) TMI 3 - SUPREME COURT] . If on facts, 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 the act must be held as official to which applicability of Section 197 of the Code cannot be disputed. The contention of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V Additional Sessions Judge, Sitapur, whereby the accused-respondent was directed to be acquitted of the charges relatable to Sections 409 and 468 of the Indian, Penal Code, 1860 (in short 'IPC'). The only factor which weighed with the High Court in refusing grant of leave to appeal was that the person who granted sanction for initiation of the criminal proceedings was not the authority to do so. It is to be noted that the trial in this case was held by learned Chief Judicial Magistrate, Sitapur. The accused faced trial for alleged commission of offence punishable under Sections 409, 420, 461 and 468 IPC. The trial court held that the accused was guilty of offence punishable under Sections 409 and 468 IPC. In appeal, learned V Additional Sessions Judge, Sitapur, allowed the appeal primarily on three grounds. Firstly, it was held that the person who accorded sanction was not authorised to do so. Secondly, it was observed that in view of the provisions contained under Sections 218, 219 and 220 of the Code of Criminal Procedure, 1973 (in short 'Code') charges could not have been framed in respect of the transaction for more than one year and, therefore, because of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 as 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, & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 emission 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. 7. 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 mission 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in S.R. Munnipalli v. Bombay 1955CriLJ857 and in Amrik Singh v. State Pepsu 1955 RD SC 9 that it is not every offence committed by a public servant, which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, etc. v. State of Bihar 1972CriLJ707 as follows: As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar. 11. Above views are reiterated in State of Kerala v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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