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Natubhai Manilal Desai Vs. FakruddIn Kalumiya Syed and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR473
AppellantNatubhai Manilal Desai
RespondentFakruddIn Kalumiya Syed and anr.
Cases ReferredP. Arulswami v. State of Madras
Excerpt:
.....of were within the scope of their official duty. 220, it was observed that 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 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 office, then sanction would be necessary. 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. from the aforesaid discusssion, the legal position appears to be..........held that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one committed while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. the above quoted observations from the case of matajog dobey were also affirmed and approved. in dhananjay ram shartna v. m.s. uppadaya and ors. a.i.r. 1950 s.c. 745, the accused while witnessing a search as a panch was charged for committing offences of theft and misappropriation of property belonging to the complainant and also offence of wrongful.....
Judgment:

D.A. Desai, J.

1. Natubhai Manilal Desai applicant in this revision application is the original complainant, He filed a complaint against opponents Nos. 1, and four others on 25th April 1968 alleging that opponent No. 1 and four others committed criminal trespass in his house on 11th February 1968 and present opponent No. 1 who was original accused No, 5 assaulted him or used criminal force against him. The applicant was at the relevant time the Chairman of Karmabad Nutan Vasahat Co-operative Society Limited. Opponent No. 1 was the District Registrar of Cooperative Societies in charge of Banaskantha District at Palanpur. He made an order under Section 83 of the Gujarat Co-operative Societies Act authorising the auditor who was original accused No. 2 to seize the books of accounts of the said society from the complainant. Pursuant to this order, original accused No. 1 the auditor, original accused No. 2 Mahendr-kumar Joshi and two peons of the department along with the present opponent No. 1 went to the house of the complainant, committed criminal trespass into it and it is alleged that the present opponent No. 1 assaulted the complainant. In respect of this incident the complainant filed a complaint. In para 13 of the complaint it was stated that the present opponent No. 1 had not entered into the house of the complainant in discharge of his duty by virtue of the office he held and the act alleged to have been done was not done in discharge of his duty and that it was not a bona fide act and therefore, it is not necessary to obtain sanction before frling a complaint against him. It was stated that as the present opponent No. 1 is a gazetted officer of the Government of Gujarat and therefore, no process should be issued against him at this stage till the sanction to prosecute him is obtained. The learned Magistrate recorded the statement of the complainant on oath and issued process against original accused Nos. 1 to 4 for having committed offences under Sections 448 and 352 of the Indian Penal Code. Subsequently on 2-11-68, the complaisant gave an application Exh. 11 requesting the Teamed Magistrate toissue process against the present opponent No. 1 as the opponent No. 1 in a cognate case admitted that he had not entered the house of the complainant by virtue of his office or in discharge of his official duty and therefoce, it is not necessary to obtain sanction to prosecute him as required by Section 197 of the Criminal Procedure Code. This application was rejected by the teamed Magistrate observing that the act alleged to have been committed by opponent No. 1 appears to have been committed by him while acting or purporting to act in discharge of his official duty and therefore, the Court cannot take cognizance of such offence without this previous sanction of the State Government. The complainant preferred 1 Criminal Revision Application No. 1 of 1969 in the Court of Sessions, Banas Kantha at Palanpur. The learned Additional Sessions Judge was of the opinion that looking to the facts and circumstances emerging from the complaint and circumstances attendant upon the incident a sanction to prosecute opponent No. 1 as envisaged by Section 197 is necessary. He accordingly dismissed the Revision Application. The complainant has challenged this order in this Revision Application.

2. The narrow question that falls to be determined in this Revision Application is whether on the facts and circumstances as disclosed in the complaint filed by the complainant and his statement on oath, could it be said that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty? If it appears that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty, the Court cannot take cognizance of such offences except with the previous sanction of the State Government as required by Section 197 because opponent No. 1 is an officer who is not removable from his office save by or with the sanction of the State Government. At one stage, Mr. Zaveri attempted to urge that there is nothing to show that opponent No. 1 who is the District Registrar is an officer removable from his office save by or with the sanction of the State Government and therefore, Section 197 will Have no application to the case in which opponent No. 1 is prosecuted for having committed offences. Mr. J.U. Mehta, learned Assistant Government Pleader pointed out to me a notification of the Government of Gujarat General Administration Department dated 4th September 1964 which shows that the opponent No. 1 who was then officiating Lecturer in Gram Sevak Training Centre was promoted and appointed to officiate as District Registrar, Co-operative Societies, Bhuj. This order appears to have been issued under the signature, of one G. N. Dike, Deputy Secretary to the Government of Gujarat, by order and in the name of the Governor of Gujarat. Prima facie it appears to be an appointment made by the Government of Gujarat and if opponent No. 1 is appointed by the Government of Gujarat, necessarily, he could not be removed by any authority lower than the appointing authority. Therefore, on the materials placed it would prima facie appear that he is an officer who is not removable from his office save by or with the sanction of the State Gevernment. However, it would be open to the complainant to establish by leading evidence that the case is otherwise.

3. Sanction of the State Government as envisaged by Section 197 would be necessary if such officer 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. The protection of Section 197 will be available to the officer if and only if the offence alleged to have been committed by him was committed while acting or purporting to act in the discharge of his official duty. The words 'acting or purporting to act in the discharge of his official duty' came up for consideration by the Supreme Court in Matajog Dobey v. H.C. Bhari : [1955]28ITR941(SC) . After referring to the earlier decisions of the Federal Court and Privy Council, the Supreme Court interpreted the words 'acting or purporting to act is the discharge of his official duty' as under:

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 Section 197 unless the act complained of is an offence; 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 we must find out is whether the act and the official duty are so interrelated 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.

At other stage it was observed:

The result of the foregoing discussion is this. There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

In K. Satwant Singh v. State of Punjab : [1960]2SCR89 , it was held that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Penal Code is one of them and the offence of cheating or abetment thereof is another. It was held that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one committed while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. The above quoted observations from the case of Matajog Dobey were also affirmed and approved. In Dhananjay Ram Shartna v. M.S. Uppadaya and Ors. A.I.R. 1950 S.C. 745, the accused while witnessing a search as a Panch was charged for committing offences of theft and misappropriation of property belonging to the complainant and also offence of wrongful confinement. In prosecution for the aforementioned offences it was contended that the accused being a railway servant, the Court cannot take cognizance of the offence against him unless sanction of the Central Government was obtained. Repelling this contention it was held that the presence of the accused in the house of the complainant had nothing to do with the performance of his official duties. He was neither performing any official duty in going to that house nor doing anything there nor was he purporting to do so. It was held that the mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty as to justify even remotely the view that the acts complained of were within the scope of their official duty. In Rajeshwar Rao v. Bansidhar Rao A.I.R. 1952 Hydrabad 135, an employee of the Forest Department was charged for criminal trespass, insult, theft of Kadvi and also for assaulting the complainant. In prosecution of the aforementioned offences the accused claimed protection of Section 197. Negativing the contention that the Court cannot take cognizance of the offence without sanction of the State Government it was observed that the test in such cases is that the act should not be in derogation of official duties, and it must lie within the scope of his duty and then alone could it be said that the act had been done when he was purporting to discharge his official duties. While discharging his official duties if he exceeds the authority vested in him, then also the provisions of Section 197 would come into operation because he would be deemed to be discharging his official duties and while so doing the overstepped the exact boundaries of his duty. Approaching the case from this angle, it was observed that in respect of the charge relating to insult with intent to intimidate and charge as regards theft of Kadvi and the charge for the offence of assault, the Court can take cognizance and no sanction is necessary. In Nagraj v. State of Mysore : 1964CriLJ161 a Sub-Inspector of Police was committed to the Court of Sessions for having committed offences under Sections 307 and 326 of the Indian Penal Code. The learned Sessions Judge made a reference to the High Court under Section 438 of the Criminal Procedure Code for quashing the commitment on the ground that there was no sanction to prosecute the accused. It was observed that the Court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Sections 127 and 128 of the Criminal Procedure Code. The question as to at what stage the question of sanction should be considered, it must be remembered that if the question is raised before the trial proceeds, the Court must look at the allegations made in the complaint because the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. In Baijnath v. State of Madhya Pradesh A.I.R. S.C. 220, it was observed that 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 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 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 offence 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.

4. Mr. Mehta learned Assistant Government Pleader invited my attention to Ramdutt v. State of Rajasthan A.I.R. 1966 Rajasthan 125. The Court in that case in terms has followed the decision of the Supreme Court in Ramayya v. State of Bombay : 1955CriLJ857 which was not followed in Baijnath's case and the decision in Ramayya's case has been watered down to a considerable extent by the Supreme Court. I may also refer to one more decision of the Supreme Court in P. Arulswami v. State of Madras : 1967CriLJ665 That was a case in which the President of the Panchayat Board was prosecuted for having committed an offence under Section 409 of the Indian Penal Code. It was contended on behalf of the accused that the prosecution was not maintainable for want of sanction of the State Government under Section 106 of the Madras Village Panchayats Act, 1950. Repelling this contention it was observed as under:

It is not therefore 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 offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty or in excess of it that the protection is claimed.

From the aforesaid discusssion, the legal position appears to be well-settled. In order to claim protection of Section 197, it must be shown that there is reasonable connection between the act and the official duty. It is immaterial that while performing the duty the officer exceeds what is strictly necessary for the discharge of the duty. If the act and official duty are so interrelated that one can say with reasonable certainty that the act was done in performance of the official duty, may be in excess of the needs and requirements of the situation, still the protection of Section 197 will be available. But if the act complained of is wholly unconnected with the performance of duty and the commission of the act is per se an offence, obviously, for the prosecution of such an offence no sanction would be necessary. By the very nature of things there are some offences such as cheating, taking of a bribe or even causing hurt except uwder certain circumstances which could not by any stretch of imagination be said to be done in performance of the duty.

5. Turning to the facts of this case, the offences complained of are house tress pass and assault punishable under Section 448 and 352 I.P.C. Opponent No. 1 is a District Registrar. It appears that in exercise of the powers conferred upon him under Section 83 of the Gujarat Co-operative Societies Act he directed the auditor-original accused No. 2 to seize the books of accounts of the society of which the complainant is the Chairman. The auditor, one other official and two peons along with opponent No. 1 went to the house of the complainant for seizure of books. According to the complainant, the books were already taken possession of by the auditor. Further, according to the complainant the office of the society where the books would ordinarily be kept is at a different place and deliberately and intentionally with a view to harass the complainant all the accused committed house trespass into his residential house. Even on the allegation made in the complaint it does appear that the accused went to the house of the complainant who is the Chairman of the society for seizure of the books. The entry in such circumstances would be not with intent to insult, intimidate or annoy the complainant or to commit any offence but the entry was avowedly with the intention or for the purpose of seizing the books of accounts. If the accused reasonably believed that the books were at the house of the complainant, it is immaterial that the house is not used as office of the society. But Mr. Zaveri urged that admittedly, the books were with the auditor accused No. 1 and they came to the house of the complainant so as to make a show of return of books and then seize them. If the auditor came into possession of books of account for certain purpose and if these books were required to be seized under Section 83 of the Gujarat Co-operative Societies Act, obviously the auditor would return the books of accounts to the complainant who is the Chairman and immediately thereafter the books would be seized. Therefore, it is crystal clear that the accused went to the house of the complainant for the purpose of seizing the books.

6. If the accused went to the house of the complainant to seize the books that was certainly in discharge of the official duty. But urged Mr. Zaveri that once opponent No. 1 who is original accused No. 5 as District Registrar passed an order under Section 83 of the Gujarat Cooperative Societies Act authorising the auditor to seize the books he himself had no authority, power or jurisdiction to seize the books and his entry could not be in discharge of any official duty. On the materials placed on record, it is not possible to accept this contention. If accused No. 5 as District Registrar could authorise someone to seize the books, prima facie, he himself can seize the books. Merely because he authorised someone to seize the books, his powers to seize the books does not get exhaused. Therefore, if accused No. 5 accompanied the auditor who was authorised to seize the books, in my opinion, it cannot be said that the entry of the accused No. 5 would not be in discharge of his official duty. At any rate, therefore, on the materials placed on record and keeping in view the allegations made in the complaint, the offence under Section 448 appears to have been committed, if at all, in discharge of his official duty and sanction of the State Government for the prosecution of opponent No. 1 for the said offence would be necessary.

6.1 The complainant has further alleged that accused No. 5 assaulted him and pulled out his spects. The offence complained of is an offence of assault punishable under Section 352 of the Indian Penal Code. The question is whether this offence of assault was committed in discharge of his official duty or could it be said that accused No. 5 assaulted complainant while acting or purporting to act in the discharge of his official duty. We are here concerned with the official duty of the District Registrar functioning under the Gujarat Co-operative Societies Act. Even if all the duties conferred on the District Registrar are taken into consideration, in my opinion, no such duty is cast on the District Registrar in performance of which he can assault anyone. There must be some reasonable connection between the act complained of and the performance of official duties. The performance of any duty cast upon the District Registrar would not necessitate assaulting anyone. The offence of assault would be entirely unconnected with the discharge or performance of official duty. If it is wholly unconnected with the official duty, there can be no protection under Section 197. The Court must look at the act complained of and also examine the duties of the person against whom prosecution is launched. If the act complained of is such which he claims to have committed in discharge of his official duty, then sanction would be necessary. But it passes comprehension as to whether the performance of any particular duty cast on the District Registrar would, while performing the duly, necessitate assaulting anyone. The offence of assault is wholly unconnected with the performance of official duty unless it could be shown that the assault had to be committed in performance of some duty. As at present advised there is no material for saying that offence of assault was committed in performance of the duty, therefore, on the materials placed on record, it cannot be said that the Court could not take cognizance of the offence under Section 352 without sanction of the State Government. To that extent this revision application will have to be allowed. It would be however open to the opponent No. 1 to show during the course of trial that he committed assault in discharge or performance of his official duty or while performing his official duty or he overstepped or exceeded the limit.

8. In view of the aforesaid discussion, this Revision Application is allowed and the order of the learned Magistrate on Exh. 11 is set aside and case is remanded to the trial Court to proceed further with the matter in the light of the observations made in this judgment. Rule made absolute to the extent indicated above.


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