A.P. Ravani, J.
1. If a subordinate employee is irregular or even of low character, can a superior officer, during duty hours and while on duty, abuse him and threaten to kill him and then claim the protection of Section 197 of the Criminal Procedure Code? The learned Magistrate says, in the facts and circumstances of the case, that the provisions of Section 197 of the Criminal Procedure Code are not attracted. Hence this application by the original-accused.
2. The petitioner is the original accused in Criminal Case No. 655 of 1984 of the Court of JMFC, Mangrol. The criminal case has been instituted on police report. One police constable Pravinchandra Govindbhai Patel, attached to Kosamba Outpost, filed a complaint against the petitioner-accused, who is Head Constable of Kosamba Outpost, for offence under Sections 504 and 506(2) of the Indian Penal Code and offences under Section 3 and 7 of the Protection of Civil Rights Act, 1955 ('the Act', for short).
3. It was alleged that the petitioner-accused had abused the complainant and had also threatened him to be killed. It appears that even according to the complainant, the incident took place, when both the petitioner-accused and the complainant were on duty and were at the place of their duty i.e., Police Station. It was alleged that the petitioner-accused had told the complainant that he was Dheda and a man of low character and was not performing duty as Policeman for all the twenty four hours and instead he was whiling away time with one Bai Nandu with whom be had illicit relations. According to the complainant, this Bai Nandu was also abused as Dheda and threatened to be killed by the petitioner-accused. On these and other allegations, the complaint was filed and after necessary investigation, the Police filed charge-sheet against the petitioner-accused for the offences stated hereinabove.
4. During the course of the trial, the accused filed an application Exh. 34 purporting to be under Section 197 of the Criminal Procedure Code, and prayed that the acts constituting the offences alleged against him were done during the course of discharge of the duties of the petitioner and at the time when the alleged incident took place, the petitioner-accused was on his duty and therefore, before filing the case against him and before taking cognizance of the offences alleged against him, sanction of the appropriate authority as required under Section 197 of the Criminal Procedure Code was necessary. The petitioner prayed that the cognizance of the case taken by the court was illegal and hence the proceedings of the case were required to be dropped. The learned Magistrate, after hearing the parties, came to the conclusion that the act complained of against the petitioner-accused had no relation with the official duties to be performed by the petitioner-accused as Head Constable. In support of his decision he relied upon the decisions of the Supreme Court in the case of:
(1) Bhagwan Prasad Srivastava v. N.P. Mishra reported in : 1970CriLJ1401 and
(2) Prabhakar v. Shanker reported in : 1969CriLJ1057 .
And rejected the application as per his order dated August 9, 1985. The petitioner has challenged the legality and validity of this order and has prayed that the proceedings of Criminal Case No. 655 of 1984 pending in the Court of JMFC, Mangrol, be quashed and set aside.
5. The provisions Section 179 would be attracted when 'an offence is alleged to have been committed by a public servant while acting or purporting to act the discharge of his official duty'. While construing this provision, emphasis is to be laid on the act and not duty. In Bhagwan Prasad's case (supra) the Supreme Court has observed that Section 197 of the Criminal Procedure Code is neither to be too narrowly construed nor too widely? It is not the 'duty' which requires examination so much as the 'act' because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned.
6. In Bhagwan Prasad's case (supra), a Civil Assistant Surgeon had filed a complaint against the Civil Surgeon that while in operation theatre, the Civil Surgeon abused the complainant before patients and hospital staff and ordered the hospital cook to 'turn out this badmash', meaning the complainant and the cook actually pushed out the complainant. The Supreme Court held that there was nothing to show that this act of abusing and turning out the complainant was a part of the official duty of the Civil Surgeon and therefore, no sanction was required under Section 197 of the Criminal Procedure Code for prosecution of the Civil Surgeon.
7. The counsel for the petitioner has also relied upon the decision of the Supreme Court in the case of Matajog Dubey v. H.G. Bharti reported in : 28ITR941(SC) . According to him in the aforesaid case, the Supreme Court held that sanction under Section 197 of the Criminal Procedure Code was necessary before launching prosecution against the accused and therefore, in the instant case also it should be held that sanction under Section 197 of the Code was necessary. I am afraid, the principle laid down by the Supreme Court in this case does not help the petitioner. It is not the ultimate order passed in the case by superior court which is binding. What is binding and must be scrupulously observed and followed by the lower courts is the principle and the ratio laid down in the case by the superior court. In this light, let us examine the decision of the Supreme Court in Matajog Dubey's case (supra).
8. In paragraphs 5 & 6 of the judgment, the Supreme Court has narrated the facts. It is very clear that in that case the complainant had tried to obstruct the raid being carried out by the officers of the Income-Tax Department and the members of the Police force. At that time, as alleged, the complainant was beaten and even detained in a room. Therefore, the complainant had filed case for offences under Sections 323, 341, 342 & 109 of the Indian Penal Code against the officers of the Income-Tax Department and Police. In the facts and circumstances of that case, the Supreme Court held that if the exercise of power or in the performance of the official duty, improper or unlawful obstruction resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. Therefore, it was held in the facts and circumstances of the case, that sanction to prosecute the accused under Section 197 of the Criminal Procedure Code was necessary. In para 19 of the judgment, after discussing the relevant case law on the point, the Supreme Court has stated the principle underlying the provisions of Section 197 of the Code, as follows:
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 pretended or fanciful claim, that he did it in the course of the performance of his duty.
If this principle is applied to the facts of the case on hand, it can never be said that there is any connection whatsoever with the acts of abuse and threatening to kill with the performance of duty as Police Head Constable.
9. Counsel for the petitioner has also relied upon a decision of the Supreme Court in the case of Somchand v. Bibhuti Bhusan reported in : 1965CriLJ499 in reply to that case the Assistant Commissioner of Police, Calcutta, refused to grant bail to an Seth and paid him a certain sum of money. The complainant had filed a case for offence under Section 348 (wrongful confinement accused who was rested for offence under Section 420 of the Indian Penal Code read with Section 120B of the Indian Penal Code. It was alleged that the Assistant Commissioner of Police had refused to grant bail unless the accused settled the matter with on Manoharlal to extort confession or compel restoration of property) of the Indian Penal Code and a process was issued against the accused, i.e., the Assistant Police Commissioner. In the facts and circumstances of that case, the Supreme Court held that, whether a person is charged with an offence should or should not be released on bail, was a matter within the discretion of the respondent (i.e. Assistant Police Commissioner), and if, while exercising discretion, he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. The facts of the case clearly show that there was reasonable connection between the act complained and the duty to be performed. Therefore, it is evident that the principle laid down by the Supreme Court in earlier decision of Matajog Dubey (supra) has not been in any way diluted or watered down. The principle remains the same.
10. Applying the aforesaid principles laid down by the Supreme Court, can it by any stretch of reasoning, be said that the act complained of against the petitioner-accused in the present case has any connection whatsoever with the discharge of his duties? It is difficult to agree with the contention of the learned Counsel for the petitioner accused that because the act complained of was done when the accused was actually on his duties and as he is alleged to have abused and/or threatened the complainant while on duty, the act has a reasonable nexus with the duty to be performed by the accused. 1 am afraid, this is not the principle laid down by the Supreme Court. The act alleged may have been committed when a person may be actually on duty. He may be occupying the chair while the act alleged against him was committed by him. It is not the place or the time of the alleged act which is important; the important thing is: reasonable connection between the act complained of and the duty to be performed by the accused.
In the instant case, the petitioner-accused is a Head Constable. As contended by the counsel for the petitioner, it may be that the new irregular in the Constable serving under the petitioner might be irregular in the performance of his duties; he might be even not obeying the orders of the accused; but on this basis, by no stretch of reasoning it can be said that the act of abusing and threatening to kill would form part of the duty of the accused. As laid down by the Supreme Court, the act must bear such relation to the duty that the accused can lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of the performance of his duty. By no stretch of reasoning it can be said that in the instant case the act complained of has any reasonable relation whatsoever With the performance of the duty of the accused.
11. I am in entire agreement with the reasonings given and conclusion arrived at by the learned Magistrate. There is no reason to interfere with the judgment and order passed by the learned Magistrate. Hence the application is rejected. Rule discharged. Interim relief granted earlier stands vacated.