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Desiraju Subba Rao Vs. M.V. Venkata Reddi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1124
AppellantDesiraju Subba Rao
RespondentM.V. Venkata Reddi and anr.
Excerpt:
.....the acts committed by the respondent would be taken to have been done by him in discharge of his official duties and hence the prosecution without sanction of government under section 197, criminal procedure code is bad. 6. the learned counsel for the petitioner contends that the bag contained the money and promissory note of the petitioner and taking away the said bag by the respondent with its contents, even without passing a receipt, assaulting the petitioner, cannot be regarded as part of official duties of the respondent and while doing the said acts, the respondent cannot be said to be acting either in discharge of or purported to discharge his official duties and hence the respondent cannot seek protection under section 197, criminal procedure code and the prosecution cannot be..........by the petitioner in his complaint and contended that he visited the school in discharge of his official duties as he received information that the petitioner was collecting fees from the pupils and caught the petitioner red-handed with account book of collections, which was on the table.4. the principal judicial second class magistrate, guntur allowed the petition holding that the prosecution against the respondent without obtaining sanction from government is bad.5. as against this decision, the petitioner filed crl. r. p. no. 10 of 1972 in the court of the 1st additional sessions judge, guntur. the learned sessions judge dismissed the revision petition, holding that the respondent, in his official capacity as district educational officer, visited the petitioner's school to check.....
Judgment:
ORDER

Punnayya, J.

1. In this revision petition, the petitioner asserts that sanction of prosecution under Section 197, Criminal Procedure Code is not necessary.

2. The petitioner is the manager and correspondent of an aided elementary school in Lalpet Guntur, He filed a complaint against the respondent, who is D. E. O. alleging that the respondent snatched his bag containing the promissory note executed in his favour by one Seetaramayya and some books containing personal papers end also a sum of Rs. 50/- which was paid by Seetharamayya towards part payment and the respondent took away the bag with all the contents even without passing receipt and when the petitioner attempted to resist the respondent's act of snatching, the respondent pulled him violently causing him to fall and as a result of the fall, the petitioner sustained injuries and thus the respondent committed offences punishable under Sections 379 and 350 Indian Penal Code.

3. On receipt of the summons issued by the Magistrate, the respondent appeared and filed a petition, Crl. M. P. No. 120 of 1972, contending that the complaint, is not maintainable without the sanction of the State Government under Section 197, Criminal Procedure Code. He denied the allegations made by the petitioner in his complaint and contended that he visited the school in discharge of his official duties as he received information that the petitioner was collecting fees from the pupils and caught the petitioner red-handed with account book of collections, which was on the table.

4. The Principal Judicial Second Class Magistrate, Guntur allowed the petition holding that the prosecution against the respondent without obtaining sanction from Government is bad.

5. As against this decision, the petitioner filed Crl. R. P. No. 10 of 1972 in the Court of the 1st Additional Sessions Judge, Guntur. The learned Sessions Judge dismissed the revision petition, holding that the respondent, in his official capacity as District Educational Officer, visited the petitioner's school to check the violation of rules committed by the petitioner and the acts committed by the respondent would be taken to have been done by him in discharge of his official duties and hence the prosecution without sanction of Government under Section 197, Criminal Procedure Code is bad.

6. The learned Counsel for the petitioner contends that the bag contained the money and promissory note of the petitioner and taking away the said bag by the respondent with its contents, even without passing a receipt, assaulting the petitioner, cannot be regarded as part of official duties of the respondent and while doing the said acts, the respondent cannot be said to be acting either in discharge of or purported to discharge his official duties and hence the respondent cannot seek protection under Section 197, Criminal Procedure Code and the prosecution cannot be said to be bad, as no sanction of the State Government is required for such acts.

7. It is true that it is not every offence committed by a public servant that requires sanction under Section 197(1), Criminal Procedure Code. But such a sanction is necessary in respect of such acts that are directly and inseparably connected with the duties attached to his office. The object of Section 197, Criminal Procedure Code is to give some protection to public servant from being unnecessarily harassed by criminal prosecutions at the instance of private complaints and sufficient protection is afforded by the insistence on the previous consent of the government. The question whether an act complained of is one purporting to be done in execution of his duty is substantially one of fact to be determined with reference to the act complained and the attending circumstances, The test is whether the public servant, if questioned, can reasonably claim that the act complained of has been done by virtue of the office that he holds.

8. The Federal Court in Hori Ram Singh v. Emperor AIR 1939 FC 43 : (1939) 40 Cri LJ 468 explained the scope and ambit of Section 270 of Government of India Act. 1935 which is analogous to Section 197, Criminal Procedure Code and held that having regard to the ordinary and natural meaning of the words 'purporting to be done', it is difficult to say that it necessarily implies 'purporting to be done in good faith' for A person who ostensibly acts in execution of his duties still purports so to act although he may have a dishonest intention. The test is not that the offence is capable of being committed only by a public servant and not by anyone else but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty, The sanction cannot be confined to only such acts as are done by Public servants directly in pursuance of his public office though in excess of his duty or under a mistaken belief as to the existence of such duty. The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time. Moreover, an act is not less one done or purporting to be done in execution of his duty because the officer concerned does it negligently.

9. This statement of law received the approval of the Privy Council in Gill v. The King AIR 1948 PC 128 : (1948) 49 Cri LJ 503 and Phanindra Chandra v. The King AIR 1949 PC 117 : (1949) 50 Cri LJ 395. These decisions deal with the scope of Section 197, Criminal Procedure Code. Their Lordships held that according to its plain words, it deals with the offences alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties. A public servant can only be said to act or purport to Act in the discharge of his official duties if his act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office. The same view was reiterated by the Supreme Court in Srikantiah Ramaiah v. State of Bombay : 1955CriLJ857 , Amriksingh v. State of Pepsu : 1955CriLJ865 , Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) , Satwant Singh v. State of Punjab : [1960]2SCR89 , Prabhakar v. Shankar : 1969CriLJ1057 and Kshetragogoi v. State of Assam : 1970CriLJ1401 . In all these decisions it was held that the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the court must find out is whether the act and the official duty are so inter related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

10. Judged from the proposition of law as enunciated above, I have no hesitation to hold that the respondent is entitled to invoke the benefit given under Section 197. Criminal Procedure Code.

11. The respondent is a District Educational Officer, The purpose for which he visited the petitioner's school is. to verify whether the petitioner was collecting monies from the pupils since he received information that the petitioner was collecting fees from the school boys in violation of the rules. These facts are evident from the very complaint filed by the complainant. Hence the visit of the respondent to the petitioner's school comes undoubtedly under official duty. As the bag of the petitioner contained money and also the account book, the respondent felt that the information he received was true and hence he felt it necessary to seize the bag with its contents and accordingly be seized it. Under these circumstances the seizure of bag with its contents cannot be said to be unconnected with his official duties. It is true that the respondent should have passed receipt for the articles seized by him. But his failure to pass a receipt cannot make the seizure illegal, much less an offence. The allegation that the respondent threw down the petitioner when he resisted the seizure, even if accepted to be true, will only show that the respondent acted in excess while discharging his official duties. Merely because the respondent acted in excess of his duties, it cannot be said that the act of the respondent falls outside the purview of his official duties, as the act complained of was done while seizing the articles which he felt necessary for proving that the petitioner collected fees from the pupils.

12. Thus, the acts of the respondent satisfy the tests laid down by the Privy Council as well as the Supreme Court as postulated above. As the acts with which the respondent was charged fell within the purview of his official duties, and could be justified by him as were done by virtue of his office, sanction of prosecution under Section 197, Criminal Procedure Code is absolutely necessary. As the petitioner did not obtain sanction of prosecution, the proceedings initiated by him are vitiated. The decision of the court below is, therefore, proper and is not erronous.

13. The learned Counsel for the petitioner cited the decisions in : [1955]28ITR941(SC) , Nagraj v. State of Mysore : 1964CriLJ161 , Baijnath v. State of M.P. : 1966CriLJ179 : 1969CriLJ1057 and : 1970CriLJ1401 in support of his contention. But they do not lay down any proposition of law contrary to those stated above and hence they need not be referred once again. Even the decisions reported in N. K. Aher v. H.C. Vartak 0065/1970 : AIR1970Bom385 and Subhashchandra Bose v. Venkataranga Reddy (1973) 1 Andh. WR 190 do not help the petitioner. In 0065/1970 : AIR1970Bom385 the minister called the complainant as goonda. But no such allegation was made by the petitioner against the respondent and hence it does not apply to the case on hand. In (1973) 1 Andh WR 190, the police party searched the complainant's house without any search warrant suspecting that the complainant gave shelter in his house to some of the accused in Kothapalli murder case and took the complainant in their jeep by force and got down from the jeep along with the complainant on road leading to Timmanayanipalem and from there, they took him to the said village by walk and again from there they took the complainant to Anantapur in a police van and after they reached the police station, the police abused the complainant in filthy and vulgar language and insulted him and A-1 in that case threatened the complainant and asked him to confess that the absconding accused were harboured by him and to give a statement to that effect to which the complainant refused and thereupon A-1 beat the complainant with stick on his face and the blow fell on his left cheek causing a bleeding injury and the complainant's clothes were bloodstained. A-1 asked the complainant to remove his shirt and towel which were bloodstained and asked one of the constables to wash them causing the disappearance of evidence. Once again A-1 compelled the complainant to sign a false statement to the effect that three of the accused involved in Kothapalli murder case were being harboured by him. The complainant refused to do so. But on being threatened by the accused and having received beatings at the hands of A-1 he had no other alternative but to sign the statement. Thus A-1 extracted a false confession from the complainant by causing hurt to him. My learned brother Muktadar, J. has therefore held that the sanction for prosecution was not necessary as it is not possible to hold on the basis of the allegations contained in the complaint that the acts alleged against the petitioner are such as to be regarded to have been committed by the petitioner while acting or purporting to act in the discharge of his official duties. Hence this decision also does not help the petitioner.

14. Having regard to my above discussions and findings, I am not able to find any force in the contentions raised by the petitioner's counsel. In the result the revision petition is dismissed.


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