(1) Kartar Singh filed a complaint on July 11, 1966 under Sections 452, 427, 506, 392, 147 and 109 of the Indian Penal Code against K.L. Kapur, Superintending Engineer, Ram Avtar Goyal, Executive Engineer, Tarsern Lal Sharma, Sub-Divisional Engineer, Lal Chand, Road Inspector, and four other employees of the Public Works Department, Buildings and Roads, Dharamsala. The trial Magistrate, as per order dated July 21, 1966 directed that the accused other than K.L. Kapur be summoned. It was also observed that a prima fade case had been made out against the accused other than K.L. Kapur. A revision was filed by Ram Avtar and Tarsern Lal Sharma in the Court of Session and it was argued on their behalf that they were public servants nto removable from office save by or with the sanction of the State Government and that the trial Court could nto take cognizance of the offence without the previous sanction of the State Government. The learned Sessions Judge, Kangra, dismissed the revision. Ram Avtar has nto come up in revision to this Court.
(2) According to the allegations as made in the complaint, Kartar Singh complainant is the owner of the site in dispute and constructed a brick wall on the same in March, 1960. Tarsern Lal Sharma and Lal Chand accused thereafter set up pillars on that wall. On an application made by the complainant the Kanungo found that the site in dispute belonged to the complainant. The complainant thereafter served a notice under Section 80 of the Code of Civil Procedure upon the Government. On July 7, 1966, it is stated, the complainant collected material for putting a lintel on the wall mentioned above. Tarsern Lal Sharma and Lal Chand accused then came to the spto and asked him to desist. The complainant then represented to them that the site in dispute belonged to him. The case of the complainant further is that on July 10, 1966 the eight accused came there. Some of them carried spades. K.L. Kapur, Superintending Engineer, then gave an order to the remaining accused to demolish the wall. K.L. Kapur himself thereafter left the place in his car. Ram Avtar, Tarsern Lal Sharma and Lal Chand then crossed the wall and directed the labourers to demolish the wall and take away the material. The complainant remonstrated with Ram Avtar that the wall belonged to him. Ram Avtar, however, directed that the wall be removed, and left in his jeep. Lal Chand is stated thereafter to have given a push to the wife of the complainant as a result of which she became unconscious. damage was also caused to the material collected by the complainant at the place. The complainant consequently suffered a loss of Rs. 500.00. Ram Avtar thereafter again came to the spto accompanied by the police. Ram Avtar then broke the plank which had been put up there and caused damage to the lintel. The Assistant Sub-Inspector then asked Ram Avtar nto to intervene. The Assistant Sub-Inspector thereafter put the complainant and his brother under arrest. According to the complainant the accused had committed offences under the sections mentioned above, and should be proceeded against accordingly.
(3) The contention advanced on behalf of the petitioner in this Court is that the trial Magistrate could nto take cognizance of the offence against the petitioner without the previous sanction of the State Government as contemplated by Section 197 of the Code of Criminal Procedure. Sub-section (1) of that Section reads as under :-
'(1)When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is nto 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 offence 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.'
THE above provision has been enacted to protect public servants from frivolous complaints made against them for acts performed by them in the discharge of their official duties, and it is provided that where a public servant is accused of any offence alleged lo have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction of the Government in connection with whose affairs he is employed, The question as to whether a public servant can invoke the benefit of Section 197 of the Code of Criminal Procedure, has been the subject of a number of authorities. In the case of Hori Ram Singh v. Emperor (1) a Sub-Assistant Surgeon was charged with an offence under Section 409, Indian Penal Code, for having dishonestly removed certain medicines from a hospital which were under his charge, and for an offence under Section 477-A, Indian Penal Code, for having failed to enter the medicines in the stock book. The sanction of the Government for the prosecution of the accused had nto been obtained under Section 270 of the Government of India Act. 1935 which was similar to sub-section (1) of Section 197 of the Code of Criminal Procedure. Question. arose whether such a sanction was necessary. It was held by their Lordships of the Federal Court that the charge under Section 477A required sanction, as 'the official capacity is involved in the very act complained of as amounting to a crime'; but that no sanction was required for a charge under Section 409, because 'the official capacity is material only in connection with the entrustment and does nto necessarily enter into the later act of misappropriation or conversion'. In Gill v. The King(2) the accused was charged with an offence under section 161 for taking bribe, and under Section 120-B, Indian Penal Code, for conspiracy. Question arose whether it was necessary to obtain sanction under Section 197(1) of the Code of Criminal Procedure, Their Lordships of the Judicial Committee approved the statement of the law made by Varadachariar, J. in the case of Hori Rum Singh and observed :
'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 duly. 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. Applying such a test to the present case, it seems clear that Gill could nto justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held'.
THE above view expressed by the Judicial Committee was followed in the cases of Albert West Meads v. The King(3) Phanindra Chandra v. The King,(4) and R. W. Mathms v. State of West Bengal (5) In the case of Baij Nath Gupta v. State of Madhya Pradesh (6) it was held that the sanction of the State Government was nto necessary for the prosecution of the appellant under Section 409 of the Indian Penal Code because the act of criminal misappropriation was nto committed by him while acting or purporting to act in the discharge of his official duties. It was also held that the offence had no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence.
(4) The principle of law laid down in the above cases was followed by their Lordships in the case of P. Arulswami v. State of Maciras(l). The accused in that case, who was the President of a Panchayat Board, was tried for an offence under Section 409, Indian Penal Code. Question arose whether the accused could be prosecuted without the sanction under section 106 of Madras Village Panchayats Act, which corresponded to Section 197(1) of the Code of Criminal Procedure. It was held that sanction under Section 106 of the Madras Village Panchayat Act was nto necessary. Ramaswami, J., speaking for the Court, observed :
'It's nto thereforee 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 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. 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 of the Criminal Procedure Code will be attracted. An office may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty where 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'.
(5) In the case of Somchand Sanghavi v. Bibhuti Bhushan Chakravarty(8), Somchand appellant was arrested during the course of an investigation of a complaint and kept in the police lock-up. Sornchand was eventually produced before Chakravarty, Assistant Commissioner of Police. When an application for release on bail was made on behalf of Sornchand, Chakravarty refused to grant him bail unless he settled the matter with Manohar Lal who had lodged the complaint against Sornchand and paid him certain sum of money. Sornchand then filed a complaint against Chakravarty under Section 348, Indian Penal Code. The trial Magistrate issued a process against Chakravarty respondent. Upon a revision application preferred by Chakravarty, the High Court quashed the process on the ground that it was necessary to obtain the prior sanction of the State Government under Section 197 of the Code of Criminal Procedure. When the matter came up before their Lordships of the Supreme Court it was observed:
'It's true that for considering whether Section 197, Criminal Procedure Code would apply the Court must confine itself to the allegations made in the complaint. But that does nto mean that it need nto look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance.'
IT was further observed :
'IT cannto be disputed that whether a person charged with an offence should or should nto be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would nto be granted unless the appellant did some- thing which the appellant was nto bound to do, the respondent cannto be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondent's prosecution was necessary under Section 197, Criminal Procedure Code.'
(6) Keeping the principles enunciated in different authorities it would follow that if the impugned act of the public servant is connected directly with his duties and can be reasonably claimed, to have been done by him by virtue of his office, sanction would be necessary. If, however, the act complained of does nto fall within the scope of the duties of a public servant and is unconnected with the discharge of those duties, the section would afford no protection to the public servant. Likewise if the act complained of is nto related directly with the duties of a public servant and his official status only provides him with an occasion or an opportunity of doing that act, the public servant would have no protection and sanction under Section 197 would nto be necessary. In case, however, the act complained of is related to the office, the fact that the public servant acted in excess of his authority or under a wrong notion of the extent of his power would nto prevent him from invoking the protection afforded by Section 197.
(7) Applying the above rule to the facts of the present case, I am of the view that the petitioner can legitimately claim the protection of Section 197 of the Code of Criminal Procedure. It is no doubt true that we are at this stage concerned only with the allegations made in the complaint but that does nto mean, as observed in Somchand case (supra), that we cannto look beyond the form in which the allegations have been made and are incompetent to ascertain for ourselves their substance. The facts as they emerge in the present case are that there was a dispute whether the site in question belongs to the complainant or to the Government. When the complainant constructed wall, the authorities of the Public Works Department put up pillars there to show that the site belonged to the Government. The Kanungo gave a report in favor of the complainant but the authorities of the Public Works Department apparently did nto accept that report. The complainant thereafter served a notice under Section 80 of the Code of Civil Procedure. Instead of taking any legal action in pursuance of that notice, the complainant wanted to put up a roof on the site. The accused, who are all employees of Buildings and Road Section of the Public Works Department, prevented the construction of that roof because, according to them, it was an encroachment upon the site belonging to the Government. The accused in doing so were acting in obedience to the order of the Superintending Engineer. The accused had no personal interest in the matter and it is plain that they wanted to prevent, what they considered, was an encroachment on a public site. The police was also sent for by the accused presumably when they found the complainant to be adamant. In my opinion, the acts complained of were related to the duties of the accused and they can legitimately claim that what was done was done in virtue of the office.
(8) It has been argued on behalf of the complainant that the pro- per stage for holding the prosecution of the accused to be nto tenable without sanction under Section 197 of the Code of Criminal Procedure is after the conclusion of the evidence. The case, it is submitted, should be allowed to proceed and the accused might, if they so choose, raise a plea about want of sanction subsequently. The prosecution, according to the learned counsel for the complainant, should nto be quashed at this stage when only process has been issued for the appearance of the accused. Reference in this context is made to the case of Nagraj v. State of Mysore(9), where it was observed :
'It's clear that when a complaint is made to a criminal court against any police-officer and makes allegations indicating that the police-officer had acted or purported to act under Section 127 and 128 of the Code and in so doing committed some offence complained of, the Court will nto entertain the complaint unless it appears that the State Government had sanctioned the prosecution of that police- officer. If the allegations in the complaint do nto indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person.
(13)The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police-officer complained of appears to come within the provisions of Sections 127 and 128 of the Act.'
(9) I have given the matter my consideration and am of the opinion that the above contention advanced on behalf of the complainant is nto well-founded. The question as to what is the proper stage to decide as to whether the prosecution is tenable without a sanction under Section 197 of the Code of Criminal Procedure, would depend upon the facts of the case. In case the facts alleged in the complaint reveal that the act complained of was committed by the public servant in the discharge or purported discharge of his duties the prosecution can be quashed at the very initial stage. If, however, the facts given in the complaint do nto disclose that the act complained of was done by the public servant in the discharge or purported discharge of his official duties and the accused has to establish it by leading some evidence, the prosecution would nto be quashed at the preliminary stage but the case would have to proceed to evidence. This fact is clear from the opening lines of the quotation in Nagraj's case reproduced above. I may state that in the case of Sornchand Sanghvi (supra) the prosecution was quashed as soon as process was issued to the public servant in the complaint filed against him.
(10) I, thereforee, accept the revision and quash the criminal proceedings against the accused.