A.R. Navkar, J.
1. This is an application Under Section 482 of the Criminal P. C. against the order dated 28-8-1979, passed by the Third Additional Sessions Judge, Gwalior, in Criminal Revision No, 49 of 1979, by which an order dated 22-2-1971, passed by the Judicial Magistrate First Class, Gwalior, in Criminal Case No. 401 of 1978 has been confirmed, in which the complaint of the petitioner was dismissed for want of necessary sanction Under Section 197, Cr. P. C.
2. The complaint of the petitioner against the non-petitioner was that the non-petitioner has committed an offence of giving false evidence, fabricating false evidence, cheating, mischief and defamation which is punishable under Sees. 193, 418, 427 and 500 of the Penal Code. The offence was committed by the non-petitioner at the time when he was posted at Gwalior on the post of the Deputy Commissioner of Sales Tax and the petitioner was posted under him when he was suspended from the service. The petitioner was occupying the post of the Sales Tax Inspector.
3. On 11-9-1975, the non-petitioner fabricated a false report which contains a false statement by the non-petitioner that the petitioner has left his headquarters without the permission of the non-petitioner. On 15-9-1975, the nonr petitioner used this fabricated false report against the petitioner by sending it to the Commissioner of Sales Tax on the basis of which, he instituted a departmental enquiry against the petitioner and appointed an Enquiry Officer under the M, P. Civil Services (Classification, Control and Appeal) Rules, 1966 to investigate the charges made against the petitioner that he has left his headquarters without permission. In the aforesaid departmental enquiry, the alleged fabricated false report was produced in evidence. The departmental enquiry officer also summoned the non-petitioner to give his own evidence on 1-5-1976. In obedience to that summons, the non-petitioner gave, it is alleged, a fabricated false statement and, therefore, the Enquiry Officer, believing the statement given on oath by the non-petitioner to the effect that on 11-9-1975, the petitioner has not attended his office since 8-9-1975; that on the basis of the aforesaid statement, the Enquiry Officer formed an opinion against the petitioner that he had left his headquarters on 8-9-1975 without permission. The result was that the petitioner was removed from Government service. Therefore, the petitioner filed a complaint alleging that the statement given by the non-petitioner was false to his knowledge and he has fabricated that evidence. Further, he has alleged that on 8-9-1975, the petitioner submitted an application dated 8-9-1975 to the non-petitioner, asking him his permission to leave the headquarters. The non-petitioner put his signature and date of receipt of the application and that application is in the office record of the non-petitioner. Further, he has submitted that on 9-9-1975, the office was closed due. to general holiday on account of Ganesh Chaturthi. Again on 11-9-1975, the petitioner submitted an application and on that application also, there is a date and signature mentioning the receipt of the application. Therefore, if these facts are taken into account, the statement given by the non-petitioner that from 8-9-1975 to 11-9-1975, the petitioner was absent without permission is false and as such, he filed a complaint before the competent Court to take action.
4. The learned trial Court, dismissed the complaint saying that for filing such a complaint against the non-petitioner who is a Government servant, sanction Under Section 197, Cr. P. C. is necessary. Further before proceeding ahead in the ; matter, I may mention certain more facts which, though I do not find in the application Under Section 482, Cr. P. C, but which the learned Additional Sessions Judge has mentioned in his Judgment. The learned Additional Sessions Judge, in Para 3 of his judgment, has stated that the non-petitioner, on 27-2-1979, submitted an application that the non-petitioner is a Government servant and unless sanction Under Section 197, Cr. P. C. is obtained, the Court cannot take. cognizance of the complaint. Further, on the same allegations, the petitioner had filed a complaint earlier, which was dismissed for want of permission as contemplated Under Section 197, Cr. P. C. Against that order, a revision was filed before the Sessions Court. The number of Revision is 102 of 1977. The revision was dismissed on 10-12-1977. Against that order, the petitioner came before this Court and the number of that case is Cr. Revision No. 25 of 1978 and it was dismissed on 17-2-1978 by this Court and, therefore, the second complaint filed by the petitioner is not maintainable.
5. If Section 197, Cr. P. C. and the above-mentioned facts are taken into consideration, I am of the opinion that the present application has no force and it was rightly dismissed by the learned trial Court and the dismissal was correctly upheld by the learned Additional Sessions Judge. Section 197, Cr. P. C. is as under:-
197. Prosecution of Judges and public servants. - (1) 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.
(2) No court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. ***
6. I will consider the objection raised by the learned Counsel for the respondent as to whether a second complaint can be entertained when the first one is dismissed. I may refer to Ramada Nath v. Saroj Rani an : AIR1962SC876 in which, it was held as under (Para 48):
An order of dismissal Under Section 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e. g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.
To this, it was submitted by the petitioner that before the trial Court, he has filed certain additional documents and those documents were not considered by the trial Court and, therefore, second complaint is maintainable even though the first complaint filed by him was dismissed by the trial court. The trial Court, in the beginning, dismissed the complaint for want of sanction Under Section 197, Cr. P. C. The order was upheld by the Sessions Court and this Court agreed with the order passed by the Sessions Court. Therefore in my opinion, the finding given by this Court that unless there is a permission taken under Sec, 197, Cr. P. C, no complaint could be filed (sic). Therefore, on this short ground, I could have dismissed the petition filed by the present petitioner. But, as he has submitted some other grounds, I do not think that I should dismiss his petition only on this ground. Therefore, even assuming for a moment that a second complaint is not barred, I would like to see whether sanction Under Section 197, Cr. P. C. is necessary in the present case or not, It is disputed by the petitioner that Section 197, Cr. P. C. is applicable to the present case, Therefore, I have to decide as to under what circumstances, Section 197, Cr. P. C. will be applicable. I may refer to B. P. Srivastava v. N. P. Mishra : 1970CriLJ1401 in which the Section has been considered and it is held therein as under:-
Section 197 is neither to be too narrowly construed nor too widely. It is not the 'duty' which requires examination so much as the 'act' because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned.
It is open to the accused to place material on the record during the course of the trial for showing what his duty as a public servant was and also that the impugned acts were interrelated with his official duty so as to attract the protection afforded by Section 197, Criminal P. C.
Where a Civil Assistant Surgeon had filed a complaint against the Civil Surgeon, that while in operation theatre the Civil Surgeon abused the complainant before patients and hospital staff and ordered the hospital cook to 'turn out this badmash,' meaning the complainant and the cook actually pushed out the complainant;-
Held, that there was nothing to show that this act was a part of the official duty of the Civil Surgeon and that no sanction was required Under Section 197 for prosecution of the Civil Surgeon.
This judgment was strenuously pressed into service by the petitioner, saying that it is for the accused to show that whatever he has done was an act or duty which he had to do in the discharge of his official duty. Further, it was stated before me that giving false evidence or making a false document cannot be said to be an official duty of the respondent, For this proposition, he has referred to H. H. B. Gill v. The King AIR 1948 PC 128 : (1948-49) Cri LJ 503, in which this section has been considered and it is held therein as under:-
A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act, 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, A public servant charged with an offence Under Section 120B read with Section 161, Penal Code cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held. No sanction Under Section 197 is therefore necessary for the institution of proceedings against a public servant for an offence Under Section 120B read with Section 101, Penal Code.
The point whether the said permission was necessary or not was further made clear in S. B. Sana v. M. S. Kochar : 1979CriLJ1367 . It has also stated as to at what stage, the objection regarding the permission can be raised or can be considered. It is laid down in that judgment as under:
The question of sanction Under Section 197 can be raised and considered at any stage of the proceedings. In considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account ' all the materials on the record at the time when the question is raised and falls for consideration.
In the instant case, the material brought on the record up to the stage when the Question of want of sanction was raised by the accused, contained a clear allegation against the accused about the commission of an offence Under Section 409 IPC. It was substantially alleged that the accused had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not to be gone into at this stage, in considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.
The sine qua non for the applicability of Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public sefttent either in his official capacity or urpife colour of the office held by him.
The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, arid never can be.' In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a. public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted.
The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office.
I may refer to Baijnath v. State of M. P. : 1966CriLJ179 also in which per Majority, it was held as under (Para 16):
It is not 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 where 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. What is important is the quality of the act and the protection contemplated by Section 197 of the Criminal P. C. will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely unconnected with the official duty as such as it may be committed within the scope of the official duty or in excess of it. that the protection is claimable.
7. The same is the view taken in re-Puritipati Jagga Reddy : AIR1979AP146 .
8. Therefore, relying on these rulings, I have to consider whether the sanction Under Section 197, Cr. P. C. is necessary in this case or not. In this case, the fact that the petitioner was under suspension is not in dispute. Similarly, it is not disputed that the respondent was responsible for the smooth working of the office. He is the local highest authority of the Department and his official duty is to see that proper discipline including punctual attendance by the staff is maintained. Therefore, to see whether Satya Narayan Omar, the petitioner was present or not squarely falls in his official duty. On the basis of the evidence given by the non-petitioner, the Enquiry Officer has held the charges to be proved against the petitioner. The fact that the non-petitioner was called to give his evidence before the Enquiry Officer clearly establishes that whatever has been done by the miry petitioner was covered by the words 'acting or purporting to act in- the discharge of his official duty'. It is not the case that the non-petitioner has assaulted the petitioner, nor it is a case in which it is alleged that the non-petitioner has committed any offence Under Section 409 IPC. On the contrary, from the complaint, it is clear that while he was discharging his official duty, he has done the acts about which a complaint is made by the petitioner. Therefore, the order of the trial Court, which is confirmed by the learned Additional Sessions Judge, I am of the opinion, is correct and requires no interference.
9. Somewhat similar view was taken in Hari Mohan v. R.K. Mehta and Anr. (Criminal Misc. Case No. 10 of 1977, decided on 5-4-1977), in which it was held as under ;
Shri Rajeev Gupta, counsel for the petitioner.
The only point for decision in this revision is whether the lower courts were right in holding that the offence in question had been committed by the non- petitioners in discharge of their duties as Sales Tax Officer and therefore no complaint could lie without complying with the provisions of Section 197 Cr. P. C Admittedly, both the non-petitioners are Sates Tax Officers and had gone to the shop of the complainant petitioner for search of account books etc., and in the course of discharge of their duty, they went upstairs for search and are sa4d to have committed the offence in question by physically removing the ladies of the house, from interfering with their duties. In ray opinion, the lower courts were right in holding that the offence, if any, was committed in the discharge of the official duty by the petitioner and therefore, it was necessary to obtain sanction for prosecuting them Under Section 197 Cr. P. C. In this view of the matter, this application has no force and is hereby dismissed summarily.
Therefore, in my opinion, taking the facts of the case into considerate on and also the judgment given by this Court in Hari Mohan's case (supra), sanction Under Section 197 Cr. P. C. was necessary for filing the complaint by the petitioner against the non-petitioner and as he has not obtained that sanction, his complaint was correctly dismissed by the trial Court and affirmed by the Revi-signal Court, I see no reason to interfere in the orders passed by the Courts below.
10. The result, therefore, is that the petition is without any force and it is dismissed.