Monoj Kumar Mukherjee J.
1. This Rule is directed against an order passed by the Sub-divisional Judicial Magistrate, Tamluk dismissing the complaint of the petitioner for want of sanction required under Section 197 of the Cr. P.C. (hereinafter referred to as the Code).
2. The petitioner filed the complaint under Section 500 of the I.P.C. against the opposite party, who at the material time was the Block Development Officer, Mahisadal-I. In his complaint the petitioner stated that the opposite party married the cousin of one Kalpataru Das, the then Veterinary Surgeon of Mahisadal-I who had his office and quarter in the village Nandakumar, wherein also the petitioner resides. Case and counter case are pending between Kalpataru Das and the petitioner and his sons over some alleged incidents of assault on April 23, 1976. On May 17, 1976 the accused sent a report to the Sub-divisional Magistrate, Tamluk for taking action against the petitioner and his sons under Section 107 of the Code. According to the petitioner, the allegations made in that report were false and malicious and the report was made by the opposite party with the intention to harm and injure the reputation of the petitioner. On receipt of such report the Sub-divisional Judicial Magistrate drew up a proceeding and issued non-bailable warrant of arrest against the petitioner and his sons and the petitioner was put in custody for some days. Ultimately, the said proceeding under Section 107 of the Code was dropped pursuant to an order of the learned Sessions Judge, Midnapore. The petitioner alleged that the opposite party, in order to harass and humiliate the petitioner, who was litigating with the said Kalpataru Das, made a false report containing highly defamatory imputations with intent to harm the reputation of the petitioner in the estimation of his friends, relations and others and thereby committed an offence punishable under Section 500 of the I.P.C. In his complaint the petitioner specifically averred that the act complained of and the offence committed by the accused were not connected with the official duty of the accused as a Block Development Officer and as such no sanction was necessary to prosecute him.
3. The learned Magistrate perused the complaint and observed that before taking cognizance it was necessary to see whether previous sanction of the State Government was necessary under Section 197 of the Code. He heard the learned Advocate for the petitioner on this point and allowed the prayer made on behalf of the petitioner to adduce evidence as per provision of Section 200 of the Cr. P.C. He examined the petitioner and the two witnesses produced on his behalf and on consideration of the materials placed before him and the law in this respect, as interpreted by the Supreme Court in its different decisions, held that the case was not maintainable in absence of sanction. Accordingly, he dismissed the complaint under Section 203 of the Code.
4. At the outset I may point out that the procedure that was adopted by the learned Magistrate before dismissing the complaint is opposed to the mandatory provisions of law. The learned Magistrate before taking cognisance decided to ascertain whether sanction was necessary and to that extent he was fully justified. But then, so long he did not take cognizance he was not empowered to examine the complainant or his witnesses. The law is now well settled that cognizance is taken upon the complaint and the object of examination of the complainant and his witnesses under Section 200 of the Code is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint. It is of course true that whether a sanction is necessary or not has to be decided with reference to the point of taking cognizance, but such decision may be at any stage of the trial. In that view of the matter, I must hold that the learned Magistrate erred in examining the complainant and his witnesses before taking cognizance.
5. It has next to be seen whether the learned Magistrate was justified on the basis of the complaint alone to hold that the sanction was necessary.
6. There is no controversy that the accused is a public servant who is not removable from his office except with the sanction of the State Government and as such if the alleged offence was committed by him while acting or purporting to act in the discharge of his official duty sanction will be necessary under Section 197 of the Code. The words 'while acting or purporting to act in the discharge of his official duty' appearing in the said section came up for interpretation before the Supreme Court in a number of cases and the learned Magistrate has also referred to some of those decisions in the impugned order. As those decisions have also been cited at the Bar it will be appropriate to refer to the same for understanding the principles embodied under Section 197 of the Code.
7. In the case of Shreekantiah Ramayya Munipalli v. State of Bombay reported in : 1955CriLJ857 the Court indicated how the provision of Section 197 of the Cr. P.C. 1898 (old Code), which is pari materia with Section 197 of the Code was to be construed, with these words (at pp. 862, 863 of Cri LJ):
Now it is obvious that if Section 197 Cr. P.C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
8. In Amik Singh v. State of Pepsu, reported in : 1955CriLJ865 the Court discussed some of its earlier decisions and those of the Privy Council and Federal Court and summed up the guiding principle for ascertaining whether sanction is required under Section 197(1) as follows (at p. 867 of Cri U):
It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) Cr. P.C.; 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 it 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.
The Court further observed (at p. 868 of Cri LJ):
In our judgment, even when the charge is one of misappropriation by a public servant, whether the sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
9. In Matajog Dubey v. H.C. Bhari reported in : 28ITR941(SC) the earlier decisions of the Privy Council, Federal Court and of the Court in the cases of Ramayya and Amrik Singh (Supra) were discussed and the result of the discussion was at p. 145 of Cri LJ:
There must be a reasonable connection between 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.
10. As to the question whether the need for sanction was to be considered as soon as the complaint was lodged and on the allegations therein contained, the Court observed as follows at p. 146 of Cri LJ:
The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of the official duty; but facts subsequently coming to light on a police or judicial enquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in course of the progress of the case.
11. In Baijnath v. State of Madhya Pradesh, reported in : 1966CriLJ179 , the majority view regarding the requirement of sanction was expressed in the following words at p. 186 of Cri LJ:
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 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 Cr. P.C. 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.
12 In B.P. Srivastava v. N.P. Mishra, reported in : 1970CriLJ1401 it was stated as follows at pp. 1403, 1404 of Cri LJ:
This section is designed to facilitate effective and unhampered performance of their official duty by public servant by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognisance of the cases against them by the Courts. It is neither to be too narrowly construed nor too widely. The narrow and pedantic construction may render it otiose for it is no part of an official duty - and never can be - to commit an offence. In our view, 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. One must also guard against too wide a construction because in our constitutional set-up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition, is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen'. The Court thereafter approved of the principles laid down in the case of Matajog Dube 1956 Cri LJ 140 (SC), Amrik Singh 1955 Cri LJ 865 (SC) and Baijnath Gupta 1966 Cri LJ 179 (SC) (Supra) and observed at p. 1404 of 1970 Cri LJ :
The principle embodied in this section (S. 197) seems to be well understood; the difficulty normally lies in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantial one of fact to be determined on circumstances of each case.
13. On a conspectus of the above decisions, the following principles emerge:
(i) Section 197 should not be construed too narrowly nor too widely. A narrow construction would render the provision nugatory for it is no part of an official duty to commit an offence. A too wide construction will militate against the fundamental principle of equality before the law enshrined in the Constitution.
(ii) It is not the 'duty' which requires examination so much as the 'act' because an official act can be performed both in the discharge of official duty as well as in dereliction of it.
(iii) If there is a reasonable nexus between the act complained of and the discharge of official duty, sanction becomes necessary even if the act complained of is in excess of the duty of the public servant; in other words, the act must bear such relation to the duty, that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of his official duty. If there was no necessary connection between the act and the performance of the duty, the official status only furnishing the occasion or opportunity for the act then no sanction will be required.
(iv) The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined in the circumstances of each case.
(v) Though the need for sanction is for institution of the case and the prohibition is against taking cognizance, the question may arise at any stage of the proceeding. The complaint or the 'police report' may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light may establish the necessity for sanction. Whether sanction is necessary or not may therefore have to be determined from stage to stage with the progress of the case.
14. In the present case, the complaint is based on the allegation that due to previous enmity and pending litigation between the petitioner and Kalpataru Das, the opposite party, being his brother in law, submitted the false and cooked up report, out of malice containing highly defamatory imputations to harass and humiliate the petitioner. It is of course true that as a Block Development Officer the opposite party was competent and entitled to submit a report for instituting a proceeding under Section 107 of the Code against any wrongdoer, as a part of his official duty. But if the allegations made in the complaint are true then the claim of the accused that the act was a part of his duty would be unreasonable and pretended claim because his official status gave him the occasion and opportunity to wreak vengeance against the petitioner by submitting a false and concocted report. On the ultimate analysis therefore the question which may have to answered in the instant case would be whether the claim of the accused would be a reasonable or an unreasonable one. Needless to say that will be a question of fact, which will have to be determined during the enquiry or trial that may follow; but the complaint prima facie discloses that the claim cannot be a reasonable one. Consequently, at this stage it cannot be said that sanction is necessary.
15. In view of the discussions as above, this application must succeed. The impugned order is hereby set aside and the learned Magistrate is directed to proceed with the complaint in accordance with law in the light of the observations made hereinbefore.