D.P. Mohapatra, J.
1. The principal question that arises for consideration in this application under Section 398, Criminal Procedure Code is whether on the materials on record the S.D.J.M., Malkangiri, was right in dismissing the complaint petition filed by the petitioner for want of sanction as required under Section 197. Criminal Procedure Code.
The petitioner, a member of Janata Party, filed a petition of complaint on 7.8.1981 before the Sub-Divisional Judicial Magistrate, Malkangiri, alleging inter alia that on 24.7.1981 the opposite party committed offences under Sections 294/506/342, Indian Penal Code and praying to Court to take cognizance against the accused for these offences. The gist of the allegations in the complaint petition was that on 24.7.1981 a demonstration against the enhancement of bus-fare was launched all over the State and so also at Malkangiri, On that date while the petitioner was announcing over the mike near the bus stand regarding programme for the day, the opposite party who was then the Sub-Divisional Police Officer, Malkangiri, came there and said to the petitioner 'Mr. Dora, you are arrested. What non-sense you are speaking. I will see your end' The petitioner alleged that the opposite party also abused him in Oriya taking the name of his mother and directed the petitioner to be taken to the police station. These abusive words and threat given by the opposite party caused the petitioner annoyance. He was taken to the police station and detained there from 12 noon to 8.30 p. m. without any reason and without any legal order for such detention. The petitioner further alleged the action of the opposite party was malicious and vindictive to wreck vengeance harming his reputation in the estimation of the public and defaming him thereby.
The learned Magistrate by his order, dated 7. 8. 1981 decided to hold an enquiry under Section 202, Criminal Procedure Code to ascertain the truth of the allegations made in the complaint petition. In course of the said enquiry, statements of two witnesses Gangadhar Buruda and Mehinga Singh were recorded. Thereafter, the learned Magistrate took up the question whether sanction for prosecution as required under Section 197 Criminal Procedure Code is necessary in the case. On considering the matter, the Court held that sanction was necessary before taking cognizance of offence alleged against the opposite party and passed the impugned order dismissing the complaint under Section 203, Criminal Procedure Code for want of sanction.
2. Before proceeding to consider the correctness of impugned order, it would be helpful to quote the provisions of Section 197, Criminal Procedure Code.
'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 without 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 Force 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.
(3) The State Government may, by notification, direct that the provisions of Sub- Section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression Central Government' occurring therein the expression 'State Government' were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.'
It is well known that the object of the section is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of a superior authority before a prosecution is launched against them. But this qualified protection does not apply to all public servants and to all offences. The section only applies to a limited class of public servants and to a limited class of offence. Before the section can be invoked, two conditions must satisfied.
(1) the accused must be a public servant of the kind mentioned in the section, i. e., he must be Judge or Magistrate of a public servant not removable from his office save by or with the sanction of the State Government or Central Government ; and
(2) the offence must be committed by the accused while acting or purporting to act in the discharge of his official duty.
In the present case, there is no controversy that the opposite party, a Deputy Superintendent of Police, who, on the relevant date, was the S. D. P G., Malkangiri, satisfied the first condition mentioned above. The only question is whether the impugned sanction of the opposite party can be said to have been taken by him while acting or purporting to act in the discharge of his official duties. This point has been the subject matter of consideration in a large number of decisions of several High Courts. The position is well, recognised that the question as to whether particular offence comes under the purview, of Section 197 depends not on the nature of the offence but on the circumstances under which it is committed. Some of the settled principles which hold field can be stated in the following manner :
(a) The section applies only if the act complained of is itself done by the public servant in pursuance of his public office, although it may be in excess of the duty or in the absence of such duty.
(b) The section refers to causes where the act constituting the offence is committed in the course of the case transaction in which the official duty is performed or purports to be performed.
4. Discussing the scope of Section 197, Criminal procedure Code, the Supreme Court in the case of Amrik Singh v. State of Pepsu reported in A. I. R. 1955 S. C. 309 observed as follows :
'It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) 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; 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.'
A similar view was taken by the Court in the case of Baijnath and others v. State of Madhya Pradesh reported in A. I. R. 1966 S.C. 220 wherein the observations of the Court were to the following effect :
'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 or it may be committed within the scope of the official duty. If 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.
In the case of Matajog Dobey v. H. C. Bhari reported in AIR 1956 S. C. 44, the Court considering the scope of the terms 'in the discharge of official duties' observed as follows :
'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. No question of sanction can arise under S. 197, unless the act complained of is an offences ; 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 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.'
The Kerala High Court in the case of Krishna Pillai Madhatan Pillai and another v. P. Sadasivan Pillai and others reported in A. I. R. 1963 Kerala 7 considering the question of applicability of Section 197, Cr. P. C, to allegations against police officers that they had severely beaten the complainants observed as follows :
'Accused 1 and 2 were removable from their office only by the State Government. S. 197 was equally a bar for the prosecution of the accused 1 and 2. Under S. 197 what the Court has to 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 duty though possibly in excess of the needs and requirements of the situation. The acts complained against the accused in this case were so integrally connected with the duties attached to their office as to be inseparable from them and sanction under S. 197 was necessary for their prosecution.'
The Patna High Court in the case of Pancham La1 v. Dadan Singh reported in 1979 Criminal Law Journal, 1018 considered the question of sanction in the back ground of allegations of public servant abusing and slapping gang leader while tackling explosive situation the observations of the Court are in the following terms :
'In the instant case the situation over harvesting of crop was tense as two groups were claiming the right to harvest the same crop. In that situation the accused, a public servant while deputed on the spot to control the situation flung an abuse towards the leader of on e group. Held that the accused was acting in discharge of his duties while he uttered abuses.
Law and order is quite a ticklish problem. What step will succeed at a particular point of time in case of a particular situation has to be seen, to be understood. It is quite different from sitting and calculating in a coo! and serene atmosphere of a Court room dissecting the acts and counter-acts alleged by parties. What posture and attitude will succeed in a given set of circumstances must be left to the discretion of the public servant who has to tackle an explosive situation. Often a slap to the gang leader demoralises his adherent and defuses the situation. The methods and demands of tackling a situation must keep on varying and yet all those acts are in discharge of duty, may be in dereliction thereof.
5. Now we may examine the present- case in the light of the principles discussed above. As already stated, the opposite party was the Deputy Superintendent of Police in charge of the Sub-Division of Malkangiri on1 the date of occurrence. Witness Gangadhar Buruda in his statement has said that on 24.7. 1981 there Vas a demonstration at Malkangiri bus stand against the enhancement of bus fare. There was a request to the public not to travel in any bus. Five to six buses were stopped. At about 12 to 12. 30. p. m. when the petitioner was announcing in the mike that there would be a public meeting at Malkangiri, the opposite party came in uniform and uttered the alleged offending words. To the same effect is also the statement of the other witness, Mehinga Singh. From the aforesaid materials, the learned S. D. J. M. has held that the opposite party was at the bus stand obviously in connection with the maintenance of law and order and the above mentioned acts of his were taken by him while discharging his official duties or at least while purporting to do so. As already noticed, for the applicability of Section 197, Criminal Procedure Code it is not necessary that the impugned action should strictly fall within the purviews of official duty of the person complained against. It is sufficient to show that the said action was taken in purported exercise of official duty though might have been in excess thereof. From the materials indicated above, it cannot be said that the action alleged to have been taken by the opposite party was taken in his private capacity.
6. In view of the aforesaid discussions, I am unable to persuade myself to hold that in the facts and circumstances of this case the trial Court erred in holding that sanction under Section 197, Cr. P. C. was necessary to take cognizance of the offences alleged against the opposite party.
In the result, the revision fails and the same is dismissed.