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T.S. Thomas and ors. Vs. K.A. Musthafa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1892
AppellantT.S. Thomas and ors.
RespondentK.A. Musthafa and anr.
Cases Referred(See Baijnath v. State of M.P.
Excerpt:
.....of section 197 of the code of 1898. 11. the object of these sections is not to give immunity to public servants from prosecution for criminal offences committed by them but it is to ensure fearless performance of their duties by protecting them from vexatious and false proceedings by securing the well-considered opinion of the superior authority before prosecution is launched against them. the act complained of must be an offence. what is dealt with by a public servant in good faith in execution of his official duties cannot be treated as an offence in view of ses. polurowthu hamana dara :1963-lmys lj 306. it is not the duty which has to be examined so much as the act, because an official act may be performed both in the discharge of the official duty as well as in dereliction of it..........in section 197(1) of the code reads;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) x x x x (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.the relevant and the material words and phraseology in these two sections are the same. on a reading of the provisions in these sections, it is clear that it is only in a case.....
Judgment:
ORDER

S.K. Kader, J.

1. The only question that arises for determination in this criminal miscellaneous case filed by the accused persons in C. C No. 620/80 on the file of the Judicial Magistrate of I Class, Perumbavoor, a private complaint, filed by the first respondent herein, is whether the said complaint is competent and the proceedings therein are liable to be quashed, for want of previous sanction of the appropriate authority under Section 197 of Criminal P. C. 1973. hereinafter called the Code, and under Section 397 of the Kerala Municipalities Act, 1960 (Act 14 of 1961), hereinafter referred to as the Act.

2. The first respondent filed a complaint before the Judicial Magistrate of I Class, perumbavoor. against the petitioners herein who are respectively accused 1 to 4 in the complaint, alleging that they committed offences punishable under Sections '447. 427 and 109' I.P.C. The material allegations in the complaint can be stated as under:

3. The father of the first respondent (the complainant) had given permission to the Irrigation Department for constructing an irrigation canal from north to south along the middle of the property now belonging to the complainant and comprised in Sy. No. 319/3 having an extent of 2 acres and 51 cents and Sy. No. 316/11 having an extent of l acre and 71 cents. An aqueduct has been constructed over some portion of this canal. The Irrigation Department wanted to cover up the aqueduct with slabs with the intention that public could use it as a pathway. The complainant on coming to know about this, filed a suit before this Court against the Irrigation Department and obtained an interim injunction against the Department and the suit has now been sent back to the Munsiff's Court, Perumbavoor, where it has been numbered as O. S. No. 136/80. As the accused persons could not execute their desire as a result o this injunction, they with the intention to cause loss to the complainant, at about 8-30 a.m. on 30-10-1980. with the help of three police constables, entered the complainant's property, removed the fencing put up on the northern and southern sides, cut branches of a nutmeg tree which was standing on the western boundary of the canal and also dug a trench along one of the bunds of the canal for a distance of 500 feet. The complainant has sustained a loss of Rs. 200/- as a result of this. Although the first accused was not present at toe place of occurrence, all these acts were done at his instance and in pursuance of his instigation.

4. The learned Magistrate took cognizance of the offences and issued processes to the accused

5. On receipt of the process, accused No. l filed 'Cri. M. P. No. 3301/80' and accused Nos. 2 to 4 'Cri. M- P. No. 3152/ 80', stating that they being Commissioner and Municipal Councillors are protected under Section 397 of the Act and also under Section 197 of the Code and their prosecution is incompetent for want of previous sanction from appropriate authorities.

6. The learned Magistrate after hearing both sides, mainly on the ground that the Question whether the accused are protected by Section 179 of the Act was a matter which has to be proved in the case and that even if their act will come under the official duty, they cannot claim the protection as they have failed to comply with the conditions laid down in Section 179 of the Act. dismissed the petitions by a common order.

7. Assailing this order, the learned advocate appearing for the petitioners submitted that on the basis of the allegations made in the complaint and the admitted facts, it is clear that it was for the purpose of laying pipes for supply-in? drinking water to the public by internking water distribution lines of Ward No. 18 and Ward No. 1 of the Municipality that a trench was dug up along one of the bunds of the canal constructed by the Minor Irrigation Department; that it was in pursuance of a decision taken by the Municipality in consultation with the Public Health Department that the trench was constructed along the canal bund with the aid of the local police; that it was in the course of constructing the trench, the fencing had to be removed and one or two small branches of a nutmeg tree had to be cut; that all these acts were done in the discharge of official duty of the petitioners and that even if it is assumed that notice as contemplated under Section 179 of the Act was not given, it will not in any way take away the protection given to the petitioners under Section 397 of the Act and S- 197 of the Code. It was also argued on behalf of the petitioners that powers have been conferred by virtue of the provisions in Sections 6, 152, 153, 157 and 179 of the Act on the petitioners for providing supply of drinking water to the public within the Municipality and to establish Or maintain water supply and that this complaint was filed only to harass the petitioners out of the disappointment caused to the complainant who was defeated in the last election to the Municipal Council where he has been the Vice Chairman for a long period.

8. Countering these arguments, the learned Advocate appearing for the first respondent submitted that the order of the learned Magistrate is perfectly right, that inasmuch as to notice as contemplated under Section 179 of the Act was given to the first respondent, the petitioners have no jurisdiction to act thereunder that therefore they are not entitled to the protection claimed; that the consent letter said to have been issued by the Irrigation Department has not been properly proved in the case; that regarding putting no of slabs over the aqueduct there is dispute between the first respondent and the Irrigation Department, that injunction was obtained against the Irrigation Department in a suit which is now pending before the local Munsiff's Court; that in these circumstances unless some more materials are brought in during the course of the trial, it cannot be said that the petitioners are protected by the provisions in Section 397 of the Act and Section 197 of the Code and that the Commissioner is not authorised to delegate the powers vested in him under Section 179 to the Councillors. The counsel also raised a preliminary objection that the order under attack is not an interlocutory order but a final order and therefore the proper remedy was to file a revision.

9. The preliminary objection raised that the order under attack is a final order and not an interlocutory order does not appear to have any merit. It is not disputed that the question of sanction under Section 397 of the Act or Section 197 of the Code can be raised from stage to stage depending upon the materials available during trial and that in spite of the order in question, the petitioners can file another application seeking protection of these sections on the basis of the materials brought out during trial. This only shows that the order in question is only an interlocutory order and not a final order.

10. Now the vital point for decision is whether on the basis of the averments and allegations made in the complaint and the admitted facts, the petitioners are entitled to claim the protection given under Sections 397 of the Act and 197 of the Code. Section 397 of the Act reads:

When the Chairman, any Councillor or the Commissioner 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 of the Government;

The relevant provision in Section 197(1) of the Code reads;

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) x x x x (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.

The relevant and the material words and phraseology in these two sections are the same. On a reading of the provisions in these sections, it is clear that it is only in a case where the public servant concerned is accused of an offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, he can claim the limited protection given to him under these sections. Section 197 of the Code is one of the exceptions to the general rule regarding taking cognizance of offences by Magistrates. In this connection, it may be noted that there has been legislative changes made in the section from time to time. An amendment was made to Section 197 of the Code of 1898 in the year 1923 whereby its scope was widened. The scope was still widened in 1973 by adding Sub-sections (2) and (3) and making certain slight changes in Sub-section (1) of Section 197 of the Code of 1898.

11. The object of these sections is not to give immunity to public servants from prosecution for criminal offences committed by them but it is to ensure fearless performance of their duties by protecting them from vexatious and false proceedings by securing the well-considered opinion of the superior authority before prosecution is launched against them. The words 'acting or purporting to act in the discharge of official duty' are not to be construed or interpreted in a narrow sense. If the relevant provisions in Section 307 of the Act and Section 197 of the Code are construed too narrowly, it may lead to a result that these sections may never apply to any case, because it is not part of the duty of a public servant to commit an offence. These sections are not to be construed too narrowly Or too widely. The expression or phrase 'purporting to act' connotes that the public servant means or intends or purports to act as a public servant. The words 'official duty' also cannot be construed in a limited or narrow sense as referring only to duty properly attached to the office from which only the- Stale Government or some higher authority Den remove the officer. There may be occasions when a public servant may be called upon to perform duties which do not fall strictly and literally within the scope of his appointment. In order to invoke the protection under Section 397 of the Act and Section 197 of the Code, the offences alleged to have been committed must be so connected with the official act as to form part of the same transaction. The act complained of must be an offence. What is dealt with by a public servant in good faith in execution of his official duties cannot be treated as an offence in view of Ses. 79 of the I.P.C. Making a practical and pragmatic approach to the question. it cannot be forgotten that even honest officers may commit mistakes or wrongs while diligently discharging their official duties, thereby exposing themselves to prosecution. The principle underlying these provisions is primarily and essentially to protect such public servants and this protection has been extended to the acts of the public servant where he purports to act in the discharge of his duties to meet the administrative exigencies of the situation even though there was a deliberate departure from the normal course of official duties. (See H. G. Vartak v. State 71 Bom LR 758 : 1970 Cr LJ 1427 and public Prosecutor of A.P. v. Polurowthu Hamana Dara : 1963-lMys LJ 306. It is not the duty which has to be examined so much as the act, because an official act may be performed both in the discharge of the official duty as well as in dereliction of it (See Shreekantiah Ramayya Muni-palli v. State of Bombay : 1955CriLJ857 and Behari Lai v. Moola 1962 (1) Cri LJ 192) (Raj). The acts complained of must have a reasonable connection or nexus with the discharge of official duties and the claim of the discharge of the official duty should not be fanciful Or pretended. But if the acts complained of are directly concerned with the official duty although the acts done may be in excess of the discharge of such duty, the claim for protection under these sections cannot be denied. (See Shiv Dutt Bali v. Manoharlai Saini (1971) 73 Puni LH 236). So also whether the act is done rightly or wrongly, correctly or incorrectly, if the act is done in the discharge of official duties, it would certainly be covered by these provisions in. the section (See Madan Lai Lamba v. Inderjit Metha 71 Pun LR 1065 : 1970 Cri LJ 726). There must be something in the nature of the act complained of that attaches it to the official character of the Officer doing it. There must be a perceptible connection between the Act and the discharge of the official duty of the public servant even if it may be a case of the public servant wrongfully and negligently discharging his official duty or a case of exceeding his authority. The phrase 'purporting to Act' indicates that the strict scope and authority of public office might be exceeded but it should not be no far exceeded as to be without the colour of the office exercised in good faith. If the act complained of, though not itself sanctioned by statute or enjoined by his official duty is. however, so intimately and integrally connected with his official or statutory duty that it can be said to have been done in furtherance of the duty prescribed by statute or for achieving the object enjoined by his duty the section protects him. (See Jaferuklah Jaferi v. Abdul Aziz : AIR1970AP13 . Similarly a public servant can also claim protection in a case where the act complained of is the very act which he is expected or authorised to do under the statute or the law but which becomes reprehensible as it is alleged to be done fraudulently or dishonestly, that is, where the machinery of the Act is employed to do an authorised act in an unauthorised manner Or for an unauthorised purpose the section protects him. (See the same decision) and also Abdulla Mohammad v. N. parameswaran Nair 1963 Ker LT 942.

12. The real test to find out whether in a particular case the accused is entitled to the benefit of protection under these two sections is whether the act complained of is directly concerned or reasonably connected with his official duties so that, if questioned, the accused could lay a reasonable, not a pretended or fanciful, claim that he did it by virtue of the office or in the course of performance of his duty. In other words, what the court has to see is whether the act complained of was done by the accused while acting Or purporting to act in the discharge of his official duty and not whether the act complained of was done with or without jurisdiction. This is essentially and substantially a question of fact to be decided on the material available 6n record.

13. The leading case on the point in issue is that of the Federal Court in Hori Ram Singh v. Emperor AIR 1939 FC 43 (56) : 40 Cri LJ 468. The correct test, according to Varadachariar J. in Hori Ram Singh's case is that there must be something in the nature of the act complained of against that attaches to it the official character of the person doing it- It was also observed that an act is not less than one done or purporting to be done in execution of a duty because the officer concerned does it negligently. The decision in Hori Ram Singh's case was approved by the Privy Council in H. H. B. Gill v. The King AIR 1948 PC 128 : 49 Cri LJ 503. It was held in that case that 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.

14. The dictum in this case was reaffirmed in Phanindra Chandra v. The King AIR 1949 PC 117 : 50 Cri LJ 395,

15. The first leading case on the point decided by the Supreme Court was Amrit Singh v. State of Pepsu : 1955CriLJ865 . There, Venkatarama Ayyar J. observed that 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 granting sanction, which must precede the institution of the prosecution.

16. In Matajog Dubey v. H. C. Bhari : [1955]28ITR941(SC) all the previous authorities were discussed by the Supreme Court and it was observed that the offence alleged to have been committed must have something to do with or must be related in some manner with the discharge of the official duty and that 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. Even if the act attributed to the public servant was not strictly necessary for the discharge of his duty and it was done possibly in excess of the needs and requirements of the situation, if it was found that the act and the official duty were so con-nected or interrelated that one could postulate reasonably that it was done by the accused while acting or purporting to act in the discharge of the official duty, he is entitled to the benefit of protection. It is only when an offence is committed either within the scope of the official duty or in excess of it, that the protection is claimable. (See Baijnath v. State of M.P. : 1966CriLJ179 .

17. On a careful examination of the various allegations made in the complaint and the admitted facts, bearing in mind the principles of law discussed above, it cannot be said that the petitioners are not entitled to the protection under Section 397 of the Act and Section 197 of the Code. Under Section 6 of the Act, a Council, a Commissioner, etc, are charged with carrying out the provisions of the Act. Chapter VII of the Act deals with water supply, lighting and drainage and the powers of the Council and the Commissioner. Under Section 179. a Com missioner is empowered to carry any cable, wire, pipe, drain or channel of any kind to establish or maintain any system of drainage, water supply or lighting through, across, under, or over and road, street or place laid out for road or street and after giving reasonable notice to the owner Or occupier, though, across, under, over or up the side of, and land or building in the Municipality, and may place and maintain posts, poles, standards, etc, in the Municipality not owned by the State Government or the Central Government and to do all acts necessary or expedient for repairing or maintaining any such cable, wire, pipet drain, channel, etc., etc. in an effective state for the purpose of which it is intended to be used Or for removing the same. Under the proviso to this section, such work shall be done so as to cause the least practicable nuisance or inconvenience to any person and also the Commissioner shall, with the sanction of the Council, pay compensation to any person who sustains damage by the exercise of such power. The main and strong argument of the counsel for the first respondent is that although the Commissioner is empowered to act under this section for the purposes enumerated therein, he gets jurisdiction to act thereunder only on compliance of the conditions and requirements mentioned therein. The power of the Commissioner to act under Section 179 of the Act does not necessarily depend upon the issue of notice and giving of compensation. The real question is whether the Commissioner is, in the official discharge of his duty, empowered to take action under this section. If he did not comply with one or more of the conditions therein, that may at the worst make his action irregular or illegal and not one without jurisdiction. The test, as pointed out earlier, to find out whether a public servant is entitled to the protection under these two sections is whether the act complained of was done while acting or purporting to act in the discharge of hi3 official duty and not whether the act done was with or without jurisdiction. In this regard, the counsel relied on a decision of the Supreme Court in Sub-bayya v. State of Karnataka reported in : 1979CriLJ651 . This decision has no application to the facts of the instant case. The question of paying compensation etc. arises only after the act. as is clear from the wording of the proviso; as the payment of compensation has to be done with the sanction of the Council. For obtaining sanction of the Council it may require time. There is clear admission in the complaint that the father of the complainant had given permission to the Irrigation Department to construct an irrigation canal along the middle of the property which is the subject-matter of the complaint and admittedly a canal has been so constructed with bunds on either side. The dispute between the Irrigation Department and the first respondent, is said to be one with regard to the laying of slabs over the aqueduct. The first respondent has no case that the Irrigation Department is not in possession of the irrigation canal which constitutes the water channel with bunds on either side. It was on one of the bunds that a trench was said to have been dug up by the petitioners. The allegation in the complaint is that this was done with the aid of the police. This is an indication that it was in the discharge of official duty that these acts were done. It is also significant to note that it is by the official designation that the first petitioner is impleaded in the complaint as the first accused. The first accused in the complaint is the Commissioner of the Municipality. It is therefore clear that it is in his official capacity and not in his private capacity that he has been impleaded as an accused. According to the petitioners, sanction has been given by the Irrigation Department for the work done by them. Reasonable notice can be given either to the owner or occupier of the land. The section contemplates notice either to the owner or occupier. The Irrigation Department is admittedly the occupier of the canal. Even if it is assumed for the sake of argument that the acts of removal of fencing and cutting branches of the nutmeg tree were not strictly necessary for the purpose of laying out a trench, in the circumstances of the case, it cannot be said that they were not acts purported to have been done in the discharge of official duty. That the first petitioner. Commissioner, is a public servant coming within the purview of Section 197 Cr.P.C. is not disputed The other petitioners are Councillors. All the petitioners are entitled to the protection under Section 397 of the Act and the first petitioner is also entitled to the protection under Section 197. The specific allegation is that all the acts were done by the other petitioners at the instigation of the first petitioner. Admittedly no previous sanction as contemplated under the above sections has open obtained.

For the aforesaid reasons, this petition is allowed, the order of the court below is set aside and the entire proceeding against the petitioners in C. C No. 620/80 on the file of the Judicial Magistrate of I Class, Perumbavoor, is hereby set aside.


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