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A.D. Parthasarathy Vs. J.S. Khurdukar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1290
AppellantA.D. Parthasarathy
RespondentJ.S. Khurdukar and ors.
Excerpt:
.....failed to release the petitioner until 8-30 p. is not to provide a blanket protection to public servants for every one of their offensive acts. the purpose of a sanction is to secure a well-considered opinion of a superior authority before the public servant is actually prosecuted before a court. the test is whether the act complained of is so integrally connected with the duties attached to the office as to be inseparable from them or there being no necessary connection between the alleged act and the performance of the duties the official status merely furnishes only an occasion or opportunity for the act. if there is a coherent nexus between the act complained of as an offence and the duty of the public servant sanction becomes necessary even if the act complained of is in..........the revision petitioner strenuously contends that section 197, criminal p. c. applies only where a public servant 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' and not when the public servant is accused of any offence alleged to have been committed by him while omitting or failing to discharge his official duty. it is further contended that section 197, criminal p. c. does not contemplate a sanction in respect of the action of a public servant which is not in the discharge of his duty but which is in clear violation of his duty.4. so far as the first contention is concerned, it is directly answered by section 4 sub-section (2), criminal p. c. which reads:the words which refer to acts done extend.....
Judgment:
ORDER

Madhusudan Rao, J.

1. This revision is directed against the order of the learned Chief City Magistrate-cum-Additional Sessions Judge, Hyderabad in Crl. R. P. No. 54/73 on the file of his court. The petitioner is the complainant in C. C. No. 1936 of 1972 on the file of the 2nd City Magistrate, Secunderabad.

2. The facts of the case are:

The petitioner was convicted and sentenced to imprisonment in a criminal case by the Special Judge, Secunderabad. In pursuance to the order of conviction and the sentence he was kept in the District Jail, Musheerabad of which the 1st respondent is the superintendent. He filed W. P. 1375/ 70 before the High Court praying for the issue of a writ of Habeas Corpus. The Writ was heard by the High Court and was allowed at 11 a. m. on 24-4-1970. The High Court directed that the petitioner should be set at liberty forthwith. The Deputy Registrar of the High Court sent advance order to the District Jail, Musheerabad. The Jailor received the order and acknowledged the receipt at 7-15 P. M. on 24-4-1970. The petitioner was not however released immediately. He was released only at 8-30 p. m. on 25-4-1970. On a petition filed by the petitioner under Contempt Case No. 14/70 the High Court convicted the 1st and 2nd respondents and sentenced them each to pay a fine of Rs. 50/- for having disobeyed the orders of the High Court in W. P. 1375 of 1970. The petitioner filed a complaint against the respondents 1 to 3 for offences punishable under Sections 342 and 345 read with 109, I. P. C. The 1st respondent is the Superintendent of the District Jail, Musheerabad. The 2nd and 3rd respondents are the Jailor and Deputy Jailor respectively of the District Jail Musheerabad. It has been alleged by the complainant-revision petitioner that in spite of the orders of the High Court in W. P. 1375/ 70 dated 24-4-1970 directing release of the petitioner forthwith, the respondents, failed to release the petitioner until 8-30 p. m. on 25-4-1970 and that therefore they are guilty of offences punishable under Sections 342 and 345, I. P. C. The 1st respondent filed a petition stating that he is a Gazetted Officer, that he cannot be removed except by the State Government and. that he cannot be prosecuted without the necessary sanction under Section 197, Criminal P. C. The learned City Magistrate upheld the objection of the 1st respondent and discharged him with a direction that the petitioner may file a fresh complaint after obtaining the necessary sanction so far as the 1st respondent is concerned. As against this order of the City Magistrate, the petitioner preferred Crl. R. P. 54/73 before the Chief City Magistrate-cum-Additional Sessions Judge contending that the petitioner's complaint against the 1st respondent does not require any sanction under Section 197, Cri. P. C. The learned Chief City Magistrate agreed with the City Magistrate and dismissed the petitioner's revision petition holding that the 1st respondent cannot be prosecuted under the circumstances of the case without a sanction from the Government under Section 197, Criminal P.C.

3. Sri T. V. Sarma, the learned Counsel for the revision petitioner strenuously contends that Section 197, Criminal P. C. applies only where a public servant 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' and not when the public servant is accused of any offence alleged to have been committed by him while omitting or failing to discharge his official duty. It is further contended that Section 197, Criminal P. C. does not contemplate a sanction in respect of the action of a Public Servant which is not in the discharge of his duty but which is in clear violation of his duty.

4. So far as the first contention is concerned, it is directly answered by Section 4 Sub-section (2), Criminal P. C. which reads:

The words which refer to acts done extend also to illegal omissions:All words and expressions used herein and defined in the Indian Penal Code and not herein before defined, shall be deemed to have the meanings respectively attributed to them by that Code.

Section 32, I. P. C. provides that 'except when the contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.' There is therefore no substance in the contention that the words 'acting or purporting to act' in Section 197 (1), Cri. P. C. do not apply to omissions.

5. The second contention is equally unsubstantial. No doubt the object of Section 197, Criminal P. C. is not to provide a blanket protection to public servants for every one of their offensive acts. The object of the section is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they act or purport to act as public servants. The purpose of a sanction is to secure a well-considered opinion of a superior authority before the public servant is actually prosecuted before a Court. The terms of the section are wide enough so as not to confine the cases where the alleged offence is committed by a public servant while he is actually discharging his duty but extend to cases where he merely purports to discharge such duty. The contention that a public servant can claim protection under Section 197, Criminal P. C. only if his act is strictly in the discharge of his duty postulates the duties of public servants Being such as to involve the commission of offences in their discharge. This certainly is not the spirit or the purport of the section and there cannot be such duties for any public servant. The test is whether the act complained of is so integrally connected with the duties attached to the office as to be inseparable from them or there being no necessary connection between the alleged act and the performance of the duties the official status merely furnishes only an occasion or opportunity for the act. A sanction would be necessary in the former case while sanction will not be necessary in the latter case. If there is a coherent nexus between the act complained of as an offence and the duty of the public servant sanction becomes necessary even if the act complained of is in excess of the exact duty of the public servant. In the instant case the 1st respondent kept the complainant in the District Jail in continuation of an earlier order of detention and did not release him though bound to, soon after the receipt of the High Court's order. His failure to release is only in his capacity as the Superintendent of District Jail. It is the case of the 1st respondent that he could not release the petitioner immediately as according to the Jail Rules he had to examine certain records and satisfy himself before actually releasing the petitioner. Whether the action of the 1st respondent is justified or whether it is an offence, there can be little doubt that in detaining the petitioner in the jail despite the orders of the High Court, the 1st respondent was purporting to act in the discharge of his duties as the Superintendent of District Jail. Under the circumstances a sanction under Section 197, Criminal P. C. is necessary for the prosecution of the 1st respondent. The petitioner not having obtained the sanction, both the courts below have rightly rejected the petitioner's request to proceed against the 1st respondent. This revision is therefore dismissed.


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