IMPORTANT POINT
Protection u/s 197 Cr.P.C. is available only when the alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing the objectionable act.

Headnote:Criminal Procedure Code, 1973-Section 197-Certain illegalities and irregularities in purchase of barbed wire-Petitioner-accused was then the Chief Conservator of Forests-Proceedings initiated for alleged commission of offences punishable u/s 120 B, 420 r/w 511 IPC, u/s 5(2) (1)(d) of Prevention of Corruption Act-Objection by accused that absence of sanction u/s 197 Cr.P.C. and u/s 19 of Prevention of Corruption Act, 1988 proceedings were nonest-Trial Court framed charges rejecting objection-High Court set aside charges for offences u/s 467, 468, 471 IPC and prosecution u/s 420, 120 B IPC and under Prevention of Corruption Act was permitted to continue-Appeal-Scope and ambit of Section 197 Cr.P.C.-Protection is to protect responsible public servant against possible vexatious criminal proceedings-Protection is available only when alleged act done was reasonably connected with discharge of official duty and was not merely a cloak for doing an objectionable act-It was not the duty which required examination so much as the act-It is no part of duty of public -servant while discharging his official duty to commit forgery-Want of sanction u/s 197 Cr.P.C. was no bar and High Court s view could not be maintained.
       Held : The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. 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. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. (Para 8)
       The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of is duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. (Para 12)

JUDGMENT

Arijit Pasayat, J.-These two appeals are interlinked as the point involved revolves round the scope and ambit of Section 197 of the Code of Criminal Procedure, 1973 (for short the Code ). The Himachal Pradesh High Court by the impugned judgment held that in the absence of requisite sanction in terms of Section 197 of the Code proceedings initiated against the respondent (hereinafter referred to as the Accused ) cannot proceed. Two proceedings were initiated against the accused, one was for alleged commission of offences punishable under Section 120-B, Section 420 read with Section 511 of the Indian Penal Code, 1860 (for short the IPC ), Section 5(2) (1) (d) of the Prevention of Corruption Act, 1947 (for short the Old Act ) corresponding to Section 13 (1)(d) of the Prevention of Corruption Act, 1988 (for short the New Act ). The Special Judge (Forests), Shimla, directed the accused to be charged accordingly by his order dated 5.8.1995. In the other case charges were framed against the accused on 5.11.1995 for the offence punishable under Section 467, 468, 471, 420, 120-B IPC and Section 5(2)(1) (d) of the Old Act corresponding to Section 13 (1)(d) of the New Act.

2. Sheaving out unnecessary details, the accusations leading to the framing of charges are as under:-

The Controller of Stores, Himachal Pradesh had approved a rate contract for the purchase of galvanized steel barbed wires for fencing at the ex factory rate of Rs. 8400/- per M.T. This rate contract was valid up to the period ending 30.9.1985. No rate contract was approved in respect of this item for the period beginning 1.10.1985. On 20.10.1985, the Chief Sales Officer and the Executive Officer of H.P. Agro Industries Corporation wrote two identical letters to the Chief Conservator of Forests (T), Himachal Pradesh offering to supply barbed wire/GI wire and U staples to the forest department. The rates quoted were Rs. 10,500/- per M.T. for barbed wire (Hot dip) and Rs. 10,000/- per M.T. for electroplated barbed wire. A request was made to the Chief Conservator of Forests to direct all the field officers working under his control to buy their requirements of the above-mentioned items by placing their supply orders with the H.P. Agro Industries Corporation. The petitioner, who was then the Chief Conservator of Forests, on 30.10.1985 issued a circular letter to all the Conservator of Forests working under him advising them to work out their requirements of GI and barbed wires and in the absence of a rate contract to place orders for the supply thereof with the H.P. Agro Industries Corporation, who had offered to make the necessary supply of both these items immediately. Consequent upon such instructions having been issued by the petitioner, various forests circles placed the supply orders to the extent of about 1200 M.T. of barbed wire with the H.P. Agro Industries Corporation within a period of less than one month. All these orders were booked through M/s. Gupta Pipes, Industrial Area, Dharampur, District Solan, who had been appointed as the booking agent by the H.P. Agro Industries Corporation on 25.10.1985 for the purpose of procuring the supply orders from various indenting officers. The H.P. Agro Industries Corporation, vide its letter dated 6.11.1985 had intimated to all Conservators of Forest in Himachal Pradesh about the firm M/s. Gupta Pipes having been appointed as their authorized booking agent. They were also intimated that a representative of the said firm would be visiting their offices for collecting the necessary supply orders for and on behalf of the H.P. Agro Industries Corporation.

3. In the meanwhile, some of the local units manufacturing barbed wires submitted a complaint to the Minister of State for Forests complaining against the procurement of barbed wire by the forest department from the H.P. Agro Industries Corporation in violation of the normal procedure and without obtaining the requisite non-availability certificate from the Controll

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2003 Supreme(SC) 1230

IMPORTANT POINTProtection u/s 197 Cr.P.C. is available only when the alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing the objectionable act.

Cases Referred (13)

IMPORTANT POINT
Protection u/s 197 Cr.P.C. is available only when the alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing the objectionable act.