1. This petition is directed against the order of the Judicial Magistrate First Class (II Court), Civil Station, Bangalore, in C. C. 821 of 1972.
2. The facts that have given rise to this petition briefly stated are as follows : The complainant was a contractor under the Air Officer Commanding, Air Force Station, Jalahalli. The contract was to purchase the swill (garbage) from the canteen. One of the terms of the contract was that the swill should not be sold for human consumption. Accused 1 is the Minister for Municipal Administration and Housing in the Government of Mysore, while accused 2 is the Manager of the Press Trust of India Ltd. On 11-7-1972 the first accused visited Jalahalli West, in particular Kathan Jopadi village, in the company of the Corporation Commissioner and two Air Force Officers. During the course of his visit as a Minister he is alleged to have said that garbage from the Air Force mess meant for pigs was being sold to the villagers. The defamatory statement alleged to have been made by the first accused was published in the News Papers as follows:
Minister for Municipal Administration B. Basavalingappa has spoken of a 'shocking health hazard' in Jalahalli West area villages where, he alleged, garbage from the Air Force mess meant for pigs is being sold to the villagers. Mr. Basavalingappa who had visited the area last month, visited the Kathan Jopadi village yesterday in the company of the Corporation Commissioner and two Air Force Officers.
He told PTI he was awaiting a reply to a letter he had written to the Defence Minister on June 19 after corresponding with the Air Force Station Commander on the matter.
He said the whole village where the swill drums were kept was stinking and poor Scheduled Castes in the village were being 'treated like pigs'.
Mr. Basavalingappa said, in his letter to the Defence Minister, he had pointed out that the villagers, who had no means of livelihood, bought the garbage from the contractor to whom the mess authorities sold for use in piggeries.
He had requested the Defence Minister to take steps to stop the sale of the garbage to the villagers. The contractor had also been asked to ensure that his staff did not trade in the garbage.
Mr. Basavalingappa said during his visit he saw the villagers suffering from a variety of diseases 'probably' due to the consumption of the 'filth', from the Air Force mess.
3. The second accused appears to have passed on this statement as a news item, which was published in the newspapers The Hindu', 'The Indian Express', 'The Deccan Herald' and 'The Prajavani' on 12-7-1972. On 27-7-1972 the complainant filed a complaint against the, two accused alleging that they had committed an offence under Section 500, I.P.C. The learned Magistrate took cognizance of the complaint under Section 500, I.P.C. and passed the following order:
Considered the records and sworn statement of the complainant and satisfied that there is a prima facie case against A1 and A2. So register a case against A1 and A2 under Section 500, I.P.C. and issue summons by 16-9-1972.
Aggrieved by this order the accused have preferred this petition. On behalf of accused 1 it is contended that he is a public servant within the meaning of Section 197 of the Cr. P. C. and the Magistrate could not have taken cognizance of any complaint against him without the previous sanction of the State Government.
4. The short point that arises for consideration is as to the precise scope of Section 197 of the Cr. P. C. and whether in the circumstances of this case cognizance of the complaint under Section 500, I.P.C. could have been taken by the Magistrate in the absence of sanction by the State Government. To claim protection under Section 197, Cr. P. C. the accused shall have to satisfy three conditions namely, (1) that he is a public servant; (2) that he is not removable from his office save by or with the sanction of the State Government or the Central Government; and (3) that he 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. It is not disputed by Sri K. Subbannachar, the learned Counsel for the respondent. that the first accused is a public servant.
5. The real question that arises for decision in this case is whether accused 1 can be said to have uttered the impugned words and committed the offence while acting or purporting to act in the discharge of his official duty. Sri Subbannachar the learned Counsel for the complainant contends that the statement made by accused 1 was not while acting or purporting to act in discharge of his official duty as a Minister. He relied upon a decision in Namdeo Kashinath Aher v. H. G. Vartak : AIR1970Bom385 . The facts in that case were that the complainant was an Advocate and a member of the Kalyan Municipality and a social worker. On 3-1-1968 he filed a complaint against the accused, the first accused being a Minister of the State of Maharashtra, alleging that he made a defamatory statement, while performing the opening ceremony of a Centre for distributing milk powder at Kalyan at the instance of the local Rotary Club. After accused 1 declared the centre open and proceeded to make a speech, the complainant stood up and snowed a sample of Mexican Punjab Wheat mixed with DDT powder, which according to the complainant was distributed to the ration card holders of Kalyan. The complainant then asked if such wheat was fit for human consumption. On this question being asked, accused 1 got angry and called him a 'goonda'. The complainant afterwards filed a complaint in the Court alleging that accused 1 had committed an offence punishable under Section 500, I.P.C. Accused 1 claimed protection under Section 197, Cr. P. C. Dealing with the facts of that case, the High Court of Bombay observed as follows:
It was no part of the official duty of any public servant to call anybody a 'goonda'. Even assuming that the Minister merely exceeded the limits of official duty, the excess was so blatant as to lose the colour of office and also the protection available under Section 197, Cr. P. C.
The facts of this case are different from the facts in the above decision and therefore the decision is not helpful to the complainant.
6. The principle embodied in Section 197, Cr. P. C, has been pointed out by the Supreme Court in Bhagwan Prasad v. N. P. Mishra : 1970CriLJ1401 as follows:
The principle embodied in this section seems to be well understood; the difficulty normally lies in its application to the facts of a given case. The question whether a particular act is defamatory is to be determined on the circumstances of each case.
In another case namely, in Amrik Singh v. State of Pepsu : 1955CriLJ865 this is what the Supreme Court said:
It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) of the Cr. P. C.; nor even every act done by him while he is actually engaged in the performance of his official duties so that, ii questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
In Matajog Dobey v. H. C. Bhari : 28ITR941(SC) , the Supreme Court observed thus:
The result of the foregoing discussion is this; 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 but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
7. It is clear therefore that Section 197, Cr. P. C. cannot be so narrowly construed as to defeat the very object of the Legislature nor could it be construed very widely. The section seems to have been enacted with a view to afford protection to public servants against vexatious and frivolous prosecutions at the hands of those who may come to bear grudge and malice against them for what they had done in the course of the discharge of their official functions. Normally, what is done in good faith in execution of official duties is never an offence in view of the exception engrafted in Section 79, I.P.C. However, in practical life even honest public servants may commit mistakes while diligently discharging their official duties. Honestly also they may err and expose themselves to prosecution. This section seems to have been primarily and essentially enacted to protect such public servants. However, the protection also is extended to the facts of public servants where they may purport to act in the discharge of their duty to meet the administrative exigencies of the situation and may require such protection, even though departure from the normal course of official duties was deliberate.
8. The facts in this case clearly go to show that accused 1 visited the village concerned in discharge of his official duty, and while discharging his official duty he is purported to have made the impugned statement. On the facts and circumstances of this case, we have no doubt that the petitioner even assuming for the sake of argument that he made the impugned statement, is well protected under Section 197, Cr. P. C.
9. However, Sri Subbannachar contends that accused 1 is not a Minister for Health and he being the Minister for Municipal Administration and Housing, it was not the part of his duties to have said anything concerning the health hazard of those villages. We are unable to agree with Sri Subbannachar because, whether accused 1 was a Minister for Municipal Administration and Housing or a Minister for Health, he being a public servant, namely a Minister in the State Cabinet is primarily concerned with the welfare of the State and any statement made in that respect by him outside his portfolio also comes within the course of discharge of his official duty as a Minister of the State.
10. The result is that we allow this petition and quash the order passed by the Judicial Magistrate, First Class (II Court), Civil Station, Bangalore, in C. C. 821 of 1972, against the 1st accused.