1. This is a reference by the Sessions Judge, Ganganagar and arises under the following circumstances :
2. The case of the petitioner Hariram is that on the 24-7-1951 Shri B. P. Sood, who was Sub-divisional Magistrate, Raisinghnagar at the time, abused one Ajitsingh during court hours. Ajitsingh lodged a report against Shri Sood at Police Station, Raisinghnagar and cited the petitioner as a witness.
Shri Sood was annoyed at this and it is said that consequently, he managed to have a proceeding under Section 107 of the Criminal P. C. instituted by the police in his court against the petitioner. Shri Sood issued a non-bailable warrant against the petitioner, as a result of which he way arrested and produced in his court on the 26-7-1954.
The petitioner applied for bail, but Shri Sood, without deciding the application for bail, transferred the case to the court of the Extra First Class Magistrate, Raisinghnagar, who eventually released the petitioner on bail. The petitioner's case further is that on the 1-8-.1954, the Commissioner Bikaner Division and the Collector Ganganagar happened to visit Raisinghnagar and were staying at the Rest House.
The petitioner, with the help of certain respectable citizens, took a deputation to the Commissioner and was reporting his chapter of grievances against Shri Sood. While this was being done, it is alleged that Shri Sood angrily said that the petitioner was a'goonda' and that he would set him right. The matter did not proceed further as the Commissioner intervened and asked Shri Sood to be quiet. On these allegations the petitioner eventually filed a complaint under Section 504 of the I. P. C. against Shri Sood in the court of the Additional District Magistrate, Ganganagar on the 11-8-1954.
The said Magistrate examined the petitioner and thereafter dismissed the complaint on the ground that the alleged objectionable words were spoken by Shri Sood to the Commissioner while he was acting or purporting to act in the discharge of his official duties and, therefore, under Section 197 of the Criminal P. C., the Magistrate was barred from taking cognizance of the complaint as no previous sanction of the Government had been obtained in the matter.
3. The petitioner then went in revision to the learned Sessions Judge, Ganganagar. The learned Sessions Judge, disagreeing with the opinion of the court below, came to the conclusion that it was no part of the official duties of Shri Sood to have used abusive words with respect to the petitioner which he did. Consequently, the learned Sessions Judge has made this reference.
4. The sole point for determination in this reference is whether Shri Sood was acting or purporting to act in the discharge of his official duties within the meaning of Section 197 of the Criminal P. C. when he uttered the alleged objectionable words against the petitioner, namely that he was a 'goonda' and that Shri Sood would set him (the petitioner) right.
5. Now, the interpretation of the words 'accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' occurring in Section 197 is not free from difficulty. There have been a number of decisions on this point and it is not easy to reconcile all of them.
I may further point out at the very outset that the difficulty is felt more in the actual application of the principle underlying Section 197, than the enunciation of the principle itself. I now propose to refer to a few important decisions on the point. The leading case is Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43 (A), Verdachariar J. broadly classified cases on the application of Section 197 into three groups.
According to the first group, the correct test whether a public servant was acting or purporting to act in the discharge of his official duty was that there must be something in the nature of the act complained against that attaches it to the official character of the person doing it.
The second group lays stress on the official character or status of the accused which gives him the opportunity to commit the offence. In the third group of cases, stress is laid almost exclusively on the fact that the offence was committed at a time when the accused was engaged in his official duties.
The learned Judge was of the opinion that the test laid down in the first group of cases was the correct test. Earlier in his judgment, the learned Judge also observed that the question was substantially one of fact and required to be determined with reference to the act complained of and the attendant circumstances; and that it was neither useful nor desirable to paraphrase the language of the section or attempt to lay down any hard and fast test
This case was approved by their Lordships of the Privy Council in H. H. B. Gill v. The King, AIR 1948 PC 128 (B). At page 133 of the judgment, their Lordships observed that in the consideration of Section 197 much assistance was to be derived from the judgment of the Federal Court in Dr. Hori Ram Singh's case (A) and in particular from the careful analysis of previous authorities which was to be found in the opinion of Vardachariar J.
Their Lordships, while accepting that in the circumstances prevailing in India, a large measure of protection from harassing proceedings was necessary for public officials, proceeded to point out that a public servant could only be said to act or purport to act in the discharge of his official duty, if his aet is such as to lie within the scope of such duty. It was, therefore, pointed out that a judge could not be said to act or purport to act in the discharge of his official duty in receiving a bribe in connection with the judgment delivered by him though his judgment was an official act.
Similarly, a Government medical officer could not be said to have acted or purported to act as a public servant in picking the pocket of a patient whom he was examining, though the examination itself was an official act. Their Lordships then proceeded to observe 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.' This case was followed in Albert West Meads v. The King, AIR 1948 PC 156 (C).
6. The next important case is Amrik Singh v. State of Pepsu, (S) AIR 1935 SC 309 (D). The law on the subject was thus summed up by Venkatarama Ayyar J.
'it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), 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 aet 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 the grant of sanction, which must precede the institution of the prosecution,'
7. In Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR 1955 SC 287 (E) Bose J. observed that if Section 197 was construed too narrowly it could never bo applied, because it was no part of the duty of a public servant to commit an offence and never could be. The learned Judge proceeded to point out further that it was not the duty which had to be examined so much as the act, because an official aet could be performed both in the discharge of the oflicial duty as well as in dereliction of it.
8. All the above authorities came for examination in yet another case before their Lordships o the Supreme Court in Matajog Dobey v. H. C. Bhari, (S) AIR 1956 SC 44 (F). In this case, Chan-drasekhara Aiyar J., who delivered the judgment, laid down that the result of the authorities was that there must be a reasonable connection between the act and the official duty and that the act must bearsuch 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 official duly.
This case arose in connection with the search of certain premises in connection with certain proceedings before the Income-tax Investigation Commission. The Commission issued a seared warrant to certain officials who were resisted iu the search. It appears that during such resistance, a scuttle ensued between the officials and the complainants, as a result of which the latter were injured. The complainants eventually tiled a complaint under Sections 323, 342 and 504 of the Indian Penal Code. The proceedings were quashed by the High Court on the ground of want of sanction under Section 197 of the Criminal Procedure Code.
Their Lordships dismissed the appeal and held that the acts of the public servants engaged in the search were not so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated and that they could reasonably claim that what they did was in virtue of their official duty whether the claim was ultimately to be well founded or not and that the belief of die accused that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but they were definitely related to the performance of their official duties. Their Lordships consequently held that that was a case for sanction before the accused could be validly prosecuted.
9. The result of the above discussion appears to me clearly to lead to the following conclusion. In the first place, the policy of the legislature is to afford reasonable protection to public servants acting or purporting to act in the discharge of their duties. In the second place, this protection has certain limits and can only be claimed in the circumstances where the acts complained against and alleged to have been done by the public servants arc reasonably connected with the discharge of their official duties and are not merely a cloak for doing the objectionable act.
The circumstance that while so acting, the public servants acted in excess of their duty will not be a sufficient ground for deprivation of such protection so long as there is a reasonable connection between the impugned act and the performance of the official duties. Lastly, whether a particular act can be said to be done in the exercise of official duty or in the purported exercise of such duty is essentially and substantially a question which will have to be determined on the facts and circumstances of each case and it is neither easy nor possible to lay down any hard and fast formula lor the ascertainment of this question.
10. The question then is how do the principles deduced in the foregoing paragraph work out in relation to the case before me. Certain facts stand out in this connection. The petitioner led a deputation consisting of himself and some of his friends to the Commissioner with the object of making a formal, though oral complaint against Shri Sood. The complaint was being made in the presence of Mr. Sood himself.
It appears that when this was being done, Shri Sood felt (for it is not clear whether the Commis-sioner had made any enquiries from him at that particular stage) that it was his duty to defend himself and expose the character of the petitioner. It will also be remembered in this connection that a case under Section 107 had been initiated just a week before against the petitioner and was pending triall in the court of the Magistrate.
Shri Sood, in these circumstances, said that the petitioner was a 'goonda' and required to be set right. He uttered these words to his official superior, namely the Commissioner to whom a complaint was being made at the time. Now, the word 'goonda' according to the dictionary called Raj-kaj Shabd Kosh by Somdev Upadhyaya means a hooligan, a rogue, a 'badmash'. It is impossible to say that while Shri Sood uttered these words, he did not have the proceeding under Section 107, Cr. P. C. in his mind. Most probably, he had.
An interim order under S, 117, Cr. P, C. had also been made against the petitioner. Having regard to all these circumstances, it cannot be postulated that what Shri Sood said to the Commissioner with regard to the petitioner was to use the words of their Lordships of the Supreme Court 'entirely divorced from or unconnected with the discharge of his duty or that he could not reasonably claim that what he did was in virtue of his official duty, namely to explain his conduct by his official superior and to expose the true character of the complainant, and it is another matter that Shri Sood possibly acted in excess of his duty and perhaps it should have been better if he had exercised greater discretion in the choice of his words.
Be that as it may, I am unable to hold that what Shri Sood stated about the petitioner had no reasonable connection whatever with the purported discharge of his official duty though it may be that he overshot the mark. In this view of the matter my conclusion is that Section 197 presents a bar to the prosecution of Shri Sood in the absence of previous sanction. The learned Sessions Judge has referred in support of the view taken by him to my decision in Ratansingh v. Mokhamsingh, Cri Ref No. 73 of 1954, D/- 11-11-1954 (Raj) (G).
The complaint there was against the Tehsildar who wanted to purchase a buffalo for himself when it was being put to auction and the Tehsildar became angry and abused the complainant and further asked a constable who was present to give him a few slaps which he did and it was alleged that thereafter the Tehsildar and the constable detained the complainant in the Tehsildar's room, The Magistrate dismissed the complaint for want of sanction, and on revision I held that no sanction was necessary as the acts done by the Tehsildar and the constable did not fall within the scope of authority of their official duty and I have no doubt that that decision was and is correct in the circumstances of that case. The facts of the present case are entirely distinguishable and afford no parallel to the case discussed above.
11. For the reasons stated above, I find myselfunable to accept the recommendation of the learnedSessions Judge in the circumstances of the case andhold that there is no reason to interfere with theorder of the Additional District Magistrate and consequently I reject this reference.