Madhusudan Rao, J.
1. This is a petition under Section 482 Cr.P.C, for quashing the proceedings including the committal order in P.R.C. No. 2 of 1980 on the file of the Judicial First Class Magistrate's Court, Narasannapeta. The petitioner is the 4th accused in the case.
2. The facts, which led up to this petition, are as follows: Hanumanthu Annapurnamma, the first respondent herein, gave a report to the Village Munsif alleging that on 3-3-1979 her husband, Surya Prakasarao, was done to death that morning by Metta Dela-rao. Metta Kamesam and Chintada Sreeramulu. The Village Munsif in turn sent the report of Annarjuxnarnma along with his report to the concerned Police Station at Kotabommali. The S.I. of Police, Kotabommali registered a case and investigated into the same. During investigation he held inquest over the dead body of the deceased on 4-3-1979. After the inquest he sent the dead body of Suryaprakasa Rao to the Taluk Hospital. Tekkali for post-mortem examination. The petitioner, who is the Civil Assistant Surgeon in charge of the Taluk Hospital, conducted post-mortem examination and issued a certificate. After completion of the investigation the police served a notice on Annapurnamma informing her that they did not find any valid ground for charge-sheeting the accused against whom she gave the report.
3. After receiving the referred notice on 1-5-1979 Annapurnamma filed e complaint under Sections 302, 447, 191 and 201 of the Indian Penal Code in the Court of the Judicial First Class Magistrate, Narasannapeta. Metta Dalarao. Metta Kameswam and Chin-tada Sreeramulu were impleaded as accused 1 to 3 and the petitioner was impleaded as the 4th accused. It was alleged in the complaint that while the accused 1 to 3 committed criminal trespass and murder, the 4th accused colluded with the accused 1 to 3 and deliberately omitted to mention in he post-mortem certificate an iniury on the head of the deceased and further expressed an opinion that the death of Suryaprakasa Rao was due to coronary thrombosis. On receipt o the complaint the Magistrate recorded the sworn statement of the complainant and held a preliminary enquiry under Section 202 Cr.p.C. After completing the preliminary enquiry he directed the issuance of summonses to all the four accused in the case.
4. After appearing before the Migistrate the petitioner filed an application under M.P. No. 585 of 1980 in P.R.C. No. 2 of 1980 requesting the Court to drop the proceedings against him as the complainant did not obtain any sanction from the Government for his prosecution. It was urged that the petitioner is a public servant of the State Goysrnment and is entitled to the protection under Section 197 Cr.P.C. arid Is not removable from his office except by the Government and that the offences alleged against him are committed in the discharge of his official duties. The learned Magistrate dismissed the application on the ground that the petitioner is not entitled to the protection under Section 197 Cr.P.C, and further being of the opinion that he had no powers to drop the proceedings in a preliminary register case involving offences exclusively triable Jw a Court of Session. The petitioner thereupon came tip to this Court with this application for quashing the proceedings asainst him.
5. It may be pointed out even at the outset that the view of the Magistrate that insofar as he took, cognizance of the offences exclusively triable by a Court of Session, it was not open to him to drop the proceedings but to cownirwit the case to the Court of Session, is wholly erroneous and mi-sustainable. If the petitioner is realty entitled to the protection under Section 197 Cr.P.C, it would not be open to the Court to proceed against the petitioner in the face of the express prohibition contained is the Section. The provision prohibits cognizance and the Court has no jurisdiction at all to take cognizance of the offences mentioned in the Section except when there is a previous sanction of the Government.
If the petitioner in the instant case is entitled to the protection under Section 197 Cr.P.C. and the Magistrate took cognizance of the offences complained against the petitioner without the required previous sanction of the Government the initial cognizance is without jurisdiction and when the fact is brought to the notice of the Court the Court is not only empowered but it is the bounden duty of the Court to decline coffnizance and drop all further proceedings against the accused. Where a Court takes cognizance of an offence without jurisdiction by mistake and the mistake is brought to the notice of the Court, it would not be open to the Court to say that the mistake having already been committed it will continue to assume jurisdiction.
6. The only question for decision in this petition is whether in the light of the allegations made by the first respondent in the complaint petition the petitioner is entitled to the protection under Section 197 Cr.P.C.
7. Section 197(1) Cr.P.C, reads as follows:-
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 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 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.
8. The Section embodies an exception to the general rule that any offence may be taken cognizance of by the Magistrates mentioned in Section 190 Cr.P.C, The provision prohibits cognizance except when the prosecution is previously sanctioned by the Government. The object of the Section is to guard public servants against vexatious or improper or reckless prosecutions, The Courts are prohibited from taking cognizance of offences complained against public servants if such offences are alleged to have been committed by them in the discharge of their duties or while purporting to discharge their duties as public servants straightway. The Courts can take cognizance of such offences only when there is a previous sanction of the Central Government or of the State Government according as the public servant is an officer of the Central Government or of the State Government. The provision is primarily intended to enable public servants to perform their duties fearlessly.
Under this provision an offence complained against a public servant can be taken cognizance of by the Court if the accusation against the officer has been duly considered by a superior authority of the Government and the authority sanctioned the prosecution after being satisfied that there is a proper case to put a public servant on trial. The protection under the Section is not a complete exemption from prosecutions. The Law Commission of India observed in its forty-first report that '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 prosecutions.
It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant. The qualified protection by way of a previous sanction is limited only to Judges, Magistrates and public servants not removable from their office save by or with the sanction of the appropriate Government and further only to those offences committted while acting or purporting to act in the discharge of official duties. The requirements of the Section are - (1) the accused must be a public servant of the kind mentioned in the Section and (2) the offence alleged must have been committed by the accused while acting or purporting to act in the discharge of his official duties.
9. There is no dispute that the petitioner satisfies the first requirement. He is a public servant not removable from his office save by or with the sanction of the State Government.
10. With regard to the second requirement, the allegations in the complaint against the accused have to be examined. Every public servant mentioned in Section 197(1) Cr.P.C, is not entitled to the protection under the Section in regard to any offence committed by him. The public servant mentioned in Section 197(1) is entitled to the protection only whew the act complained against him as an offence is committed by him in the discharge of his duty or while purporting to discharge his duty. The Section, however, does not mean that the very act which constitutes the offence must be the official duty of the public servant concerned. In Ramayya v. State of Bombay : 1955CriLJ857 their Lordships of the Supreme Court pointed out as follows (at p, 862 of Cri LJ):
Now it is obvious that if Section 197 Cr.P.C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
Again in Arulswami v. State of Madras : 1967CriLJ665 their Lordships of the Supreme Court have observed (at p. 667 of Cri. LJ) :-
It is not therefore every offence 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; but if the act complained of is directly concerned with 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. It is the quality of the act that is important end if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where 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.
The accusation against the petitioner is that he gave a false and dishonest post-mortem certificate. If the petitioner gave a true and honest certificate, no question of any offence arises. If a Medical Officer in the service of the Government gives a post-mortem certificate while discharging his duties and if he is accused of having committed an offence or offences while issuing the post-mortem certificate, there can be little doubt that he committed the offence or offences while discharging his duties as a public servant. Maybe his action in giving a post-mortem certificate, which is not true, is not strictly in accordance with his duties and may. therefore, not amount to an offence committed by him, while acting in the discharge of his official duty, but it would be an offence committed by him, while purporting to act in the discharge of his official duty. The public servant Is entitled to the protection under Section 197 Cr.P.C, not only in regard to an offence alleged to have been committed by him while acting as a public servant but also an offence alleged to have been committed by him while purporting to act in the discharge of his official duty.
11. For the reasons recorded, the petitioner is entitled to the protection under Section 197(1) Cr.P.C, and the Court ought not to have taken cognizance of the offence complained against the petitioner except with the previous sanction of Government. Admittedly no sanction of the Government has been obtained. The cognizance taken by the Court being illegal and the cognizance taken by the Sessions Court on the basis of the illegal committal order, all the subsequent proceedings against the petitioner including the committal by the Magistrate and the cognizance by the Sessions Court are also illegal. All the proceedings against the petitioner are, therefore, quashed and this petition is allowed.