1. A case under S. 7 of the Essential Commodities Act 1955 was registered against one S. Kartar Singh and the Sate Orphanage Advisory Board on 18th August 1959, at Police Station Sadar Karnal. Its investigation was entrusted to Ch. Daryao Singh Deputy Superintendent of Police in the records from the office of the State Orphanage Madhuban, Karnal. Subsequently on 28th January 1960 another case (F. I. R. No. 26 of 1960) was registered at Sadar Police Station Karnal at the instance of the said Shri Daryao Singh alleging that funds belonging to the State Orphanage Madhuban Karnal had been embezzled by Shri M. R. Raizada Pt. Jiwan Shankar and Shri R. P. Kapur former Commissioner Ambala Decision and Vice Chairman of the State Orphanage Advisory Board leading to the offences under Ss. 408/409/120B of the Indian Penal Code. On the bases of this report the said Shri R. P. Akpur was arrested on 16th March 1960 by Shri Tarlok Singh Assistant Inspector General of Police who was entrusted with investigation of the case.
(2) After due investigation this later case was put in the Court of a Magistrate at Karnal. Before its trial could proceed it was transferred to the Court of the Additional District Magistrate (Judicial) Saharanpur by an order of the Supreme Court on the application of Shri R. P. Karpur. The out against any of the accused under Ss. 409 and 120B Indian Penal Code and accordingly he discharged all of them by his order dated 15th July 1961.
(3) Thereafter on the 25th August 1961, Shri R. P. Kapur instituted the present complaint in the Court of Magistrate at Karnal against the two accused, Ch. Daryao Singh Deputy Superintendent of Police and Shri Tarlok Singh A. I. G. alleging that these two police officers to whom the investigation of the two above-mentioned case (F. I. R. 138 of 1959 and 26 of 1960) was entrusted had committed offences under Ss. 193 211. and 500 Indian Penal Code. since both the accused are public servants and there was nothing in the complaint to disclose that any sanction for their prosecution had been obtained from the competent authority under S. 197 of the Criminal Procedure Code, the learned Magistrate by his order dated 15th September 1961 called upon the complainant to satisfy him that he was competent to take cognizance of the case without sanction for their prosecution having been accorded by competent authority under S. 197, Cr. P. C. For that purpose the proceedings were adjourned to 29th September 1961. Before that date the complainant Shri R. P. Akpur however applied to the Supreme Court under S. 527 Criminal Procedure Code for transfer of the case to a Court outside the State for Punjab. An ex parte order staying the proceedings was passed by their Lordships of the Supreme Court on 25th September 1961. Subsequently on 30th November 1961 when the matter came up before their Lordships after notice to the accused and the State of Punjab the stay order was vacated and the petition for transfer was disposed of with the following observations:
'The learned Advocate-General of Punjab has suggested that in case Mr. Kapur applies for transfer of his case to the High Court he would not object to the transfer. His argument is that the point to consider at this stage is merely a point of law and the best thing to do is to obtain decision of the High Court. In case the application is made to the High Court the learned Advocated-General states that he will support the same and Mr. Kapur agrees to this. We have therefore allowed Mr. Kapur to withdraw this application to that he may make an appropriate application to the High Court.'
As a result of this order Shri R. P. Kapur approached this Court for the transfer of the case from the Court of the Magistrate 1st Class Karnal to its own file inter alia on the plea that the difficult question of law regarding the necessity of sanction for prosecution of the accused had arisen. His prayer was partly accepted by my learned brother Mehar Singh J. on 28th February 1962 when his Lordship directed that the complaint field by Shri R. P. Kapur against the two police officer Ch. Daryao Singh and Shri Tarlok Singh be transferred to this Court for the limited purpose of dealing with the question whether cognizance of the complaint could not be taken in absence of sanction for prosecution under S. 197, Cr. P. C. The operative part of this order runs as follows:
'I think a question of law does arise once it is pressed on behalf of the respondents that the Magistrate cannot take cognizance of the complaint without sanction of the State Government under S. 197 of the Code of Criminal Procedure for prosecution of the respondents. It seems to me that this was how the position of the Punjab State was represented in the Supreme Court and this is the basis on which their Lordships proceeded to make the order which has been reproduced above. So that a question of law does arise and as I read the copy of the petition of the petitioner in the Supreme Court and his petitioner at present in this Court. So that there is difficulty in regard to the question that has arisen and in this circumstances for the hearing and disposal of this question only the case is transferred to this Court. I make it clear that it does not mean that the complaint is being transferred to this Court for trial as a complaint or on any other question than a question whether respondent s can or cannot be prosecuted in the complaint case without sanction of the State Government under S. 197 of the Code of Criminal Procedure.'
It is in pursuance of this order that this complaint is now before mw. Besides reiterating the objection that the Court could not take cognizance of the case without requisite sanction under S. 197, Criminal Procedure Code Shirr C. D. Dean appearing for the accused relies upon the provision of S. 195, Criminal Procedure Code a further bar to the trial of the case so far as offences under S. 193 and 211 are concerned contending that a complaint for these offences courts only be launched by the Court in which the proceedings arising out of F. I. R. Nos. 138 of 1959 and 26 of 1960 were instituted. Shri R. P. Kapur who has personally argued his case objects to this latter objection under S. 195 of the Criminal Procedure Code being considered or dealt with by this Court not the plea that the transfer of the case to this Court was for the limited purpose of deciding the objection based upon the provisions of S. 197 of the Criminal Procedure Code alone. Though there is force in the contention of Shri C. D. Dewan that the decision of the objection relating to S. 195 of the Criminal Procedure Code at this stage will tend to the convenience of the parties and expeditious disposal of the case yet in view of the explicit terms of the order of transfer passed by Mehar Singh J., I find that the objection of the complainant, Shri R. P. Kapur, is technically correct and must prevail. In the order by which the case was transferred to this Court, relevant portion of which has been reproduced earlier, it is specifically stated that the transfer is for the limited purpose of deciding the objection based upon S. 197 of the Criminal Procedure Code, and for no other purpose. Since the complainant insists that this direction of Mehar Singh, J. must be literally observed, I decline to go into the objection raised by the accused regarding the applicability of S. 195 of the Criminal Procedure Code.
(4) Thus sole question arising for decision of this Court is whether the provision of S. 197 of the Court is whether the provisions of S. 197 of the Criminal Procedure Code apply to this case and the cognizance of the offences of which the complaint relates is barred. The relevant portion of section 197 of the Criminal Procedure Code runs as follows:
'(1) When any person who is a Judge within the meaning of S. 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 offense except with the previous sanction-
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and
(b) in the case of a person employed in connection with the affairs of a State, of the State Government.'
(5) It is not disputed that the two accused, Ch. Daryao Singh and S. Tarlok Singh, who are employed in the police force as Deputy Superintendent and Assistant Inspector General, respectively, are public servants not removable from their office save by or with the sanction of the State Government. Admittedly, no sanction for their prosecution for offences under Ss. 193, 211 and 500 of the Indian Penal Code, to which this complaint relates, has been obtained from the prescribed authority. What has to be considered is whether the offences complained of were committed by them 'while acting or purporting to act in the discharge of their official duty.'
(6) Prior to 1923 when this section was amended there was a good deal of conflict of opinion regarding the scope of the protection afforded under S 197 of the Criminal Procedure Code. The expression 'as such judge or public servant ' occurring in S. 197 of the Criminal Procedure Code as it stood before 1923 was replaced by the words ' is accused of any offense alleged to have been committed by them while acting or purporting to act in the discharge of official duty.' This was clearly an tempt to widen the scope of protection afforded to public servants. Sanction became necessary not only if the public servant concerned has committed the act complaint of while discharging his duty as a public servant but also if he purported to act in the discharge of such duties. Difficulty has however sometimes arisen about the actual application of the principles underlining this section but by this time the law is fairly well-settled. The leasing case on the point is that of settled. The leading case on the point is that of Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43, where it was observed:
'The test is not that the offence is capable of being committed only by a public servant and not by any one else but that it is committed by public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by public servant directly in pursuance of his public office though in excess of the 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 down 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.'
(7) Varadachariar, J in a separate judgment while noticing that the reported decisions on the applicability of S. 197 of the Criminal Procedure Code were not uniform observed that there must be something in the nature of the act complained of that attached it to the official character and that the question was substantially one of fact to be determined with reference to the act complained of the attendant circumstances. Sulaiman, J cautioned:
'Obviously the section does not mean that the very act which is the grave men of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms because an offence can never be an official duty. The words as used in the respect of any act done or purporting to be done in the execution of his duty.' The two expressions are obviously not identical.'
(8) The decisions I Dr. Hori Ram Singh's case AIR 1939 FC 43 was approved by their Lordships of the Privy Council while dealing with the case of H. H. B. Gill v. The King AIR 1948 PC 128 where they observed:
'The test may well be whether the public servant if challenged can reasonably claim that what he does in virtue of his office.'
(9) All these decisions were considered by their Lordships of the Supreme Court in Amrik Singh v. State of Pepsu. 1955 (1) SCR 1302: (S) AIR 1955 SC 309. The facts of that case were that Amrik Singh who was employed as a Sub Divisional Officer in the Public Works Departments, Pepsu and was in charge of certain works with duties to disburse wages to the worked men employed under him misappropriated a sum of Rs. 51/- by showing the same in the acquaintance roll as having been paid to one Param Khalais, though no powers of that name existed. He was prosecuted for an offence under section 409 of the Indian Penal Code and convicted. His appeal was also dismissed by the High Court. It further appeal to the Supreme Court it was contended that in absence of the requisite sanction under section 197(1) of the Criminal Procedure Code the conviction of Amrik Singh was illegal. In dealing with this contention and after examining various authorities including 1939 FCR 159: (AIR 1939 FC 43) and AIR 1948 PC 128 their Lordships laid down the law in the following words:
'The result of the authorities may thus be summed up: It is not every offence committed by a public servants that requires sanction for prosecution under section 197 (1) of the Code of Criminal Procedure nor even every act done by his 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 of question it could be claimed to have been done necessary and that would 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.'
(10) The matter again came up for consideration before the Supreme Court in Matajog Dobey v. H. C. Bhari, (S) AIR 1956 SC 44. After noticing the previous decisions, including Amrik Singh's case, (S) AIR 1955 SC 309 and Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR 1955 SC 287 their Lordships observed;
'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 situation.'
(11) Here it is necessary to turn to the complaint to examine the nature of the allegations made against the accused who are stated to have committed offences under sections 500, 193 and 211 of the Indian Penal Code, According to the complainant, the facts disclosing an offence under section 500 of the Indian Penal Code are contained in paragraphs 4, 6, 7, 9, 10, 13 and 14, which are in the following words:
'4. That as a result thereof, accused No. 1 conducted a series of highly defamatory and demonstrative investigations which lowered the complainant in public esteem and led to considerable publicity in the press and otherwise.
6. That as a result, the complainant was arrested and had to face great humiliation; the arrest was effected by accused No. II.
7. That accused No. II affected in a mala fide manner the arrest of the complainant on 16th March 1960, without taking the elementary precaution of recording before arrest the statement of the complainant with a view to ascertain the facts.
9. That malicious publicity was done in the press and elsewhere which tried to make out that the complainant had been arrested for embezzlement etc., and in conducting such publicity true facts even of the complaint made by accused No. 1 were not disclosed.
10. That the case was first tried at Karnal and the complainant had to fact the humiliation of standing trial in the Courts of his erstwhile subordinates and at every stage of the trial there was publicity which led to scandalous defamation of the complainant.
13. That similarly accused No. 1 put up anther first information report at Annexure VII, which was subsequently investigated by him and accused No. II in a highly mala fide and defamatory manner.
14. That immediately on the registration of the above first information report the accused proceeded to indulge in defamatory publicity as disclose by Annexure VIII.'
(12) Annexure VIII to which reference is made in para 14 is a news-item published in the daily 'Tribune ' of Ambala dated 29th May 1960 saying that another case had been registered at Karnal against Shri R. P. Kapur under the Prevention of Corruption Act for the alleged misuses of his official position as Commissioner of Ambala Division.
(13) From the allegations referred to above it is amply clear that according to the complainant himself the accused had defamed him not only by effecting his arrest resulting in his humiliation but also by resorting to publicity relating to the cases registered against him and conduction the investigation in 'highly defamatory and demonstrative' manner lowering him in public esteem. Thus it is obvious that the defamatory acts attributed to the accuses were committed by them while they were investigation and prosecuting the cases against him. They are intimately connected with the discharge of their duties as police officer who were lawfully seized of the investigation. According to the complainant's own allegations especially those he feels aggrieved by the manner in which the accused performed their duties as investigating officers. It is thus evident that these acts complained of had been committed by the accused while acting in discharge of their duties.
(14) The allegations regarding the offence under section 193 of the Indian Penal Code are contained in paragraphs 8, 12, 15, 16. Again I find that the accused are stated to have procured and fabricated false evidence while dealing with the cases that had been entrusted to them for investigation. In other words what is alleged against them is that they had performed their duties in a dishonest manner. Same is the case regarding the allegations on which the accusation under section 211 of the Indian Penal Code is made. In paragraph 11 of the compliant, Shri R. P. Kapur alleges that the criminal proceedings instituted against him as a result of the investigation carried on by the accused were so worthless that the additional District Magistrate (Judicial), Saharanpur to whom the case was entrusted for trial did not even from of the investigation carried on by the accused that the criminal proceedings which are alleged to be false were instituted against Shri. R. P. Kapur.
(15) the complainant, Shri R. P. Kapur has however argued that the accused cannot avail of their official position as a cloak for the commission of various offences that it was no part other duty to commit announce and that they would not be entitle d to protection under section 197 of the Criminal Procedure Code simply because their official status had afforded them and opportunity for the commission of the offences complained of. Reliance in this connection has been placed upon Dhananjay Ram Sharma v. M. S, Uppadaya, AIR 1960 SC 745 and Lieutenant Hector Thomas Huntley v. Emperor, AIR 1944 NFC 66. In the latter case their Lordships of the Lordships of the Federal Court while dealing with the case of a Station Master who was alleged to have received illegal gratification and was prosecuted under section 161 of the Indian Penal Code observed:
'It must be established that the act complained of was an official act. In this act the act complained of was the act of receiving illegal gratification. That surely could not bean act done or purporting to be done in execution of duly.'
(16) This case came up for consideration before their Lordships of the Supreme Court in Matajog Dobey's case. (S) AIR 1956 SC 44 where Chandrasekhara Aiyar J. who delivered the judgment of the Court observed that the test laid down in H. T. Huntley's case, Air 1944 FC 66 that it must be established that the act complained of was official act appeared to unduly narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code.
(17) A warning against such narrow construction had been earlier held out by the Supreme Court in Shreekantiab Ramayya Munipalli's case (S) SIR 1955 SC 287 where in dealing with he contention that commission of an offence can never be a part of an official duty, Bose J. observed:
'Now it is obvious that if section 197 of the Criminal Procedure Code is construed too narrowly, it can never be applied for of course it is not part of an officials duty to commit an offence and never can be. But it is not the duty were have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in direction of it. The section has content and its language must be given meaning.'
(18) In Amrik Singh's case 1955 (1) SCR 1302: ((S) AIR 1955 SC 309) a similar argument was raised that misappropriation of funds by a Government servant could under no circumstance be said to the within the scope of the duty of a public servant. The learned Judges held that it was too brad a proposition and even when a public servant was charged with misappropriation it would depend upon the facts of each case whether sanction under section 197 of the Criminal Procedure Code was necessary for his prosecution. The test which has to be applied in such cases was laid down by their Lordships in the following words:
'If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable form them then sanction under section 197(1) would be necessary ; but if there was no necessary connection between them and the performance of those duties the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.'
(18a) In (S) AIR 1956 SC 44, it was held:
'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.'
(19) In AIR 1960 SC 745, the accused who were being prosecuted were railway servants alleged to have committed their the misappropriation of the complainant's property when they had gone to the latter's house to conduct the search the learned Judges held the duties of the accused as public servants had prima facie nothing to do with witnessing any search and the offences alleged against them had no direct connection with the act of witnessing the search. It was on these findings that the Court ruled that sanction of their prosecution under section 197 of the Criminal Procedure Code was not required. This case is thus of no assistance to the complainant.
(20) In view of the above discussion, I find that sanction under section 197(1) of the Criminal Procedure Code was necessary before the accused could be prosecuted for the various offences alleged against them by the complainant. The Court being not competent even to take cognizance of the case in absence of such sanction the complaint is dismissed.
(21) Order accordingly.