(1) This is a reference made by the Sessions Judge, Shimoga under S. 438 Cr. P. C. to quash the order passed by the Special 1st Class Magistrate, Shimoga, in C. C. No.2477/1964 dropping further proceedings on the ground that the complaint was not maintainable without the sanction of the State Government under Section 197 Cr. P. C.
(2) Briefly, the facts of the case are these; The complainant B. Ramachandra Rao, District Auditor of Co-operative Societies, who was appointed to audit the accounts of Malnad Areca Marketing Cooperative Society, to be hereinafter referred to as the 'Society' filed a complaint alleging that the respondent who happened to be the Secretary of the said Society had made certain defamatory allegations against the complainant during the course of the Annual Report in respect of the Society submitted by him for the year 1963-64. A case was registered for an offense under S. 500 I. P. C. After service of summons, the accused appeared and filed an application under section 197 Cr. P. C. raising a preliminary objection that the complaint should be dismissed in limine for want of sanction under section 197 Cr. P. C. as the complainant had filed the complaint without obtaining the sanction of the State Government to prosecute the accused in respect of the acts said to have been committed by him as he was a public servant not removable without the sanction of the Government and that the acts alleged were committed in the course of discharge of his official duties. The learned Magistrate heard both the sides and came to the conclusion that the complaint was not maintainable without the sanction of the State Government. Accordingly he dropped further proceedings. The complainant being aggrieved by the said order filed a Revision before the learned Sessions Judge, Shimoga, challenging the legality and correctness of the decision of the trial Magistrate. The learned Sessions Judge came to the conclusion that the sanction of Government was not necessary as the accused could be removed from the office of the Secretary of the Society without the sanction of the Government. In this view of the matter, he made the present reference to quash the order passed by the learned Magistrate.
(3) The question for decision is whether the accused is a public servant who is not removable from his office save by or with the sanction of the State Government and whether he is accused of any offense alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.
(4) Mr. B. K. Ramachandra Rao, learned Advocate for the accused-respondent opposed the reference. Sri Mohandas N. Hegde, learned Advocate for the complainant-petitioner supported the reference while the Public Prosecutor admitting that the accused is a public servant did not support the reference.
(5) The accused was an Assistant Registrar of Co-operative Societies appointed by the Government of Mysore and his services were lent to the society for being appointed as the Secretary of the Society. The accused is a public servant under the employ of what is known as the foreign service. Now, the question is whether the provisions of section 197 Cr. P. C. contemplate cases wherein the accused is removable from his office as Assistant Registrar of Co-operative Societies or from his service as a Secretary of the Society. The learned Sessions Judge has opined that the Secretary of the Society cannot be a public servant as contemplated under section 21 of the Indian Penal Code. Further he has opined that the accused as the Secretary of the Society and not as the Assistant Registrar of Co-operative Societies was removable from his office. On both these points, the opinion of the learned Sessions Judge is wrong. The words 'removable from his office' occurring in section 197, Cr. P. C. refer not to the particular vacancy to which he has been posted but to the office to which he has been appointed as public servant. In other words, what is contemplated under section 197 Cr. P. C. is the removal of the accused from the office of the Assistant Registrar of Co-operative Societies and not his transfer from the office of the Secretary of the Society. The object of section 197 Cr. P. C. is to protect responsible public servants against the institution of possibly fictitious criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. The Doctrine of official protection extends to a public servant who is removable from his office with the sanction of the State Government or Central Government for any offense alleged to have been committed by him while acting or purporting to act in the discharge f his official duty wherever and in whatever capacity he may be working. Therefore, the learned Sessions Judge was wrong in accepting the contention that the services of the accused as Secretary of the Society could be dispensed with without the sanction of the State Government. This interpretation is a narrow and invalid interpretation of the words 'his office' occurring in sub-section (1) of Section 197 Cr. P. C.
(6) Mr. Ramcahdnra Rao, learned Advocate for the accused contended that the allegations in the complaint make it appear that the alleged offense has been committed in the discharge of his official duties. On the other hand, Sri Mohandas N. Hegde, learned Advocate for the complainant contended that the alleged defamation is not done in the discharge of his official duties by the accused, but he has done it under the colour of his office. He further urged that the accused has to prove that his act had a reasonable nexus to the act done by him. He relied upon a decision in Satwant Singh v. State of Punjab, : 2SCR89 , wherein (Per Majority) it is held as follows:
'The act must bear such relation tot he duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. Where a public servant commits the offense of cheating or abets another so to cheat, the offense committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offense has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offense.'
He nextly relied upon a decision in Bajinath v. State of Madhya Pradesh, : 1966CriLJ179 wherein (Per Majority) it is held as follows:
'It is not every offense 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 so that, if questioned it could be claimed to have been done by virtue of the office then sanction would be necessary. What is important is the quality of the act and the protection contemplated by section 197 of the Criminal P. C. will be attracted where the act falls within the scope and range of his official duties. An offense may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. If 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.'
(7) These two decisions relied upon by the learned counsel for the complainant on facts support the case for the accused. In the instant case, the allegations mentioned in the complaint have been extracted and quoted by the learned Magistrate in the course of his order and they read as under:
There is a Kannada passage which reads thus:
(translated by the reporter Sri. A. V. Albal).
'We regret that the General Body (meeting) could not be held before 30-9-64 for this year as one District Auditor who is auditing the accounts of the society since 16-1-64 did not furnish the report within time to the society. He has by his prejudice and in a vile way levelled baseless and imaginary accusations in the form of advice '
(passage appears in Kannada and the reporter has translated it)
(8) This writing was found in the printed annual report placed before the General Body Meeting held on 25-11-1964. The alleged adverse remarks passed by the accused relate to the audit report given by the complainant to be placed before the General Body Meeting. Therefore, there cannot be any doubt that these remarks were passed by the accused against an audit report while acting the discharge of his official duty as Secretary of the Society. Therefore, there is not merit in the contention of Sr Mohandas N. Hegde that the act alleged against the accused was not done in the discharge of his official duty.
(9) In the above view of the matter, sanction is necessary under section 197 Cr. P. C. to prosecute the accused in this case and the view taken by the trial Court in dropping the proceedings against the accused for want of sanction is in accordance with law. The reference therefore fails and the same is rejected.
(10) Reference rejected