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TMI Blog2004 (3) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable under Sections 341, 323, 325, 506 and 386 read with Section 34 of the Indian Penal Code, 1860 (in short 'the IPC'). They also publicly humiliated him. The appellants questioned legality of the proceedings instituted by the complainant in ICC case No. 45/91 in the Court of Sub-Divisional Judicial Magistrate, Baripada (in short 'the S.D.J.M.'). Their primary stand was that the complaint was lodged as a counterblast and retaliatory measure because large quantity of ivory was seized from the complainant and he could not produce any material to justify the possession thereof. 2. According to the complainant he is a reputed Pharmacist, and also a man of means and the owner of a cinema hall and producer of films. While on 27.2.1991 he was engaged in the professional work, the present appellants along with some police personnel entered into his clinic and arrested him alleging that some elephant tusks were recovered from his possession. He is a man having good reputation and standing in the society. There was absolutely no reason for appellants to apprehend that he would flee away from custody. Nevertheless he was made to walk on the bazar roads with hand-cuff. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally asked the respondent as to whether there was any ill-treatment. As the order of the learned SDJM clearly shows, the accused did not make any grievance of any ill-treatment and on the contrary admitted that there was no ill-treatment. Interestingly, the respondent got himself examined after three days by a private and the complaint was lodged after 13 days. These clearly establish the mala fides. In the complaint petition also there was no specific allegation against many of the appellants and vague statements were made about alleged assaults. To divert attention, respondent has filed several cases and the complaint in question is one of them. Acts done were in accordance with law and as part of official duty and the High Court was not justified in holding that Section 197 of the Code is not applicable. 5. In response, learned counsel for the respondent-complainant submitted that the assaults made by the appellants cannot be construed to be in pursuance of official duty. Seriousness of the injuries can be gauged from the materials brought on record. It is not correct to say that any mala fides are involved. A citizen's liberties were seriously trampled by these officials w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be exposed to vexatious prosecutions. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 G. Saha and Ors. v. M.S. Kochar 1979CriLJ1367 , 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, '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 reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Matajog Dobey v. H.C. Bhari [1955]28ITR941(SC) 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." 12. 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. 13. In S.A. Venkataraman v. The State 1958CriLJ254 and in C.R. Bansi v. The State of Maharashtra 1971CriLJ662 this Court has held that: "There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with Section 197, as it then stood, observed "it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance of this observation that the expression 'was' come to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted. 19. Above position was highlighted in R. Balakrishna Pillai v. State of Kerala AIR1996SC901 and in State of M.P. v. M.P. Gupta (2004)2SCC349 . 20. When the background facts of the case are considered the question regarding applicability of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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