1. In this case the only question involved is as regards the necessity of sanction under Section 197, Cr. P. Code, before the accused could be prosecuted. The charges me under Sections 500 and 504, I. P. C., and the accused is a judicial officer. The circumstances alleged are that on 24-12-1953 the complainant was being examined as a witness in a civil case, which was going on before the said judicial officer. At that time he, in temper used the expression 'Nalayak' (unfit) in relation to the complainant twice and on the third occasion, he said 'Nalayak, you will be turned out of Court-room after beating with shoes'.
2. A complaint was filed on these allegations. An objection to the entertainability of this complaint was taken on the ground that it cannot proceed in the absence of sanction as required under Section 197, Cr. P. C., as the act complained of could not have been done except in the purported exercise of his official duty or in other words it lay within the scope of his official duty.
The objection was upheld and the accused was discharged.
3. A revision-petition was filed against this decision and that too was rejected. Both the Courts relied upon the decision in H. H. B. Gill v. The King, AIR 1948 PC 128 (A); Hori Ram Singh v. Emperor, AIR 1939 FC 43 (B); Amrik Singh v. State of Pepsu, AIR 1955 SC 309 (C); and decision of Madhya Bharat High Court, reported in Ramchandra v. Premchand, 1953 Madh B LJ 1054 (D). The last-mentioned case contained facts somewhat akin to the present case.
4. In order to determine whether the view taken by the two Courts below is correct or not, it will be necessary to refer to the principle established by authoritative pronouncements on the subject, both by their Lordships of the Privy Council in H. H. B. Gill v. The King (A); Phamndra Chan-dra v. The King, AIR 1949 PC 117 (E); of the Federal Court in AIR 1939 FC 43 (B); and lastly of the Supreme Court, in Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR 1955 SC 287 (F); AIR 1955 SC 309(C); and Malatog Dobey v. H. C. Bhari, (S) AIR 1956 SC 44 (G). It is not necessary to deal with all these cases here as in AIR 1955 SC 309 (C), their Lordships of the Supreme Court themselves have summed up the result of the foregoing authorities in the following terms:--
'The result of the authorities may thus be summed up. It is not every offence committed by a public servant that requites sanction for prosecution under Section 197 (1), Cr. P. C.; 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; 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 a recent decision of the Supreme Court, (S) AIR 195G SC 44 (G), the position is further made clear thus:--
'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. Mo question of sanction can nri.se under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the 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 we 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.
Further it was observed:--
'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 cf the performance of his duty.'
5. In the present ease the complainant was being examined as a witness in a case. While he was being examined the learned Civil Judge is said to have used the expression 'Nalayak' (unfit) and ultimately to have expressed that the witness would be turned out after being given shoe-beating. These expressions had a reasonable relation with the performance of the official duty of a Judge. It is not suggested that the expressions were used while the accused was not taking down his statement. The relation of the act and the official duty was not fanciful. What was said to have been done was an offence in relation to the official act of a Judge. It was therefore bound to be in excess of what is strictly necessary for the discharge of his duty by the accused. Whether in so acting the Judge was justified or not, will only arise when the trial proceeds on merits.
6. Although nobody can justify such acts on the part of a public servant, it is difficult to say that the acts complained of are not within the scope of the official duty of the officer concerned and are not done by him by virtue of his office.
7. It therefore follows that sanction under Section 197, Cr. P. C., was rightly held to be necessary in this case.
8. The petition therefore is dismissed.