IMPORTANT POINT
If an officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Criminal Procedure Code is not attracted.

Headnote:Criminal Procedure Code, 1973-Section 197-Indian Penal Code, 1860-Sections 395, 447 and 506-Sanction for prosecution-Complaint was filed alleging that appellants along with some other personnel of Border Security Force came to respondent s shop and demanded Rs. 10,000/- as illegal gratification and on refusal to pay, they entered into the shop, ransacked the shop and illegally took away some commodities which were stored for business purposes-Sessions Judge took cognizance of offences punishable u/ss 395, 447 and 506 IPC-Order taking cognizance and continuance of proceedings questioned-Appellants case that on basis of a notification they were authorized to function u/ss 100-104, 106, 107, 109 and 110 of the Customs Act and as they suspected that complainant had stored articles in his shop for purpose of smuggling, seizure was made-Whether appellants were entitled to get the protection u/s 197 of the Code-(No).
       Held : The mandatory character of the protection afforded to a public servant is brought out by the expression, no court shall take cognizance of such offence except with the previous sanction . Use of the words, no and shall make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black s Law Dictionary the word cognizance means jurisdiction or the exercise of jurisdiction or power to try the determine causes . In common parlance it means taking notice of . A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. (Para 7)
       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 his 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. (Para 9)
       If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed. (Para 10)
       The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application. (Para 11)
       In this case the complaint is that illegal gratification of Rs. 10,000/- was demanded and because of refusal to pay the shop was ransacked and goods taken away. When this factual background is considered on the anvil of legal principles delineated above, the inevitable conclusion is that the appellants have not made out any case for interference. The appeal fails and is dismissed. (Para 13)

JUDGMENT

Arijit Pasayat, J.-Appellants call in question legality of the judgment rendered by learned Additional Sessions Judge, Belonia, South Tripura in Criminal Revision No. 29(4) of 1997. Appellants had challenged legality of the cognizance taken and issuance of process on the basis of a complaint filed by respondent No. 1. The complaint was filed by respondent No. 1 alleging that on 21.3.1997 the present appellants along with some other personnel of Border Security Force (in short BSF ) came to his crockery-cum-cloth shop and demanded Rs. 10,000/- as illegal gratification which the complainant refused to pay. They entered into his shop without any authority, ransacked the shop and illegally took away some commodities which were stored for business purposes. Certain documents were also taken away. It was further alleged that they threatened him to take away his life and with dire consequences on the point of revolver. They illegally took away the articles on the basis of a purported seizure memo taking signature of some persons forcibly. Allegations were also made about the illegal activities of BSF personnel and as to how the people in the locality were subjected to reign of terror by them. It was in essence alleged that the accused persons committed offences punishable under Sections 395, 447 and 506 of the Indian Penal Code, 1860 (in short the IPC ). Learned Additional Sessions Judge, Belonia, took cognizance of the offences and issued process to the present appellants. The order taking cognizance and the continuance of the proceedings were questioned by the appellants before the learned Additional Sessions Judge, Belonia by filing an application under Section 397 of the Code of Criminal Procedure, 1973 (in short the Code ). The only point which was urged was that the appellants were, on the basis of a notification issued in June, 1986, authorized to function under Sections 100-104, 106, 107, 109 and 110 of the Customs Act, 1962 (in short the Customs Act ). As the appellants suspected that the complainant had stored articles in his shop for the purpose of smuggling to Bangladesh, seizure was made. There was no demand of gratification as alleged. The acts done were clearly within the permissible area of statutory duties and they were entitled to get the protection under Section 197 of the Code.

2. The stand was resisted by the respondent-complainant on the ground that the acts complained of had not even any remote link with any official acts and duties and, therefore, Section 197 of the Code has no application. Learned Additional Sessions Judge, Belonia, accepted the stand of the complainant and held that Section 197 of the Code has no application to the facts of the case.

3. In support of the appeal learned counsel submitted that the factual scenario clearly shows that the acts done by the appellants were sanctioned by law. Under the belief that articles were stored with the object of smuggling, the search and seizure were made. There is no evidence except the vague assertion of the complainant about the alleged demand of any illegal gratification and/or other acts. Taking into account the objective for which Section 197 of the Code has been enacted it is a fit case where the protection provided by the said provision should be extended. Learned counsel for the respondent No.1-complainant, however, submitted that the acts alleged do not have any link whatsoever with the officials acts and, therefore, the order taking cognizance and/or directing issuance of process cannot be faulted. The judgment of learned Additional Sessions Judge, Belonia, does not suffer from any infirmity to warrant interference.

4. The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-

"It is necessary to prot

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2004 Supreme(SC) 833

IMPORTANT POINTIf an officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Criminal Procedure Code is not attracted.

Cases Referred (7)

IMPORTANT POINT
If an officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Criminal Procedure Code is not attracted.