Public servants are protected from prosecution under Section 197 of the CrPC only if they are acting or purporting to act in the discharge of their official duty.

Judgment

DAS GUPTA, J. : This appeal raises question as regards the application of S. 197 of the Code of Criminal Procedure. The appellant, formerly a Ticket Collector in Northern Railway made a complaint on October 22, 1956 in the Court of First Class Magistrate, Delhi against the three respondents, who are in the employ of the Northern Railway. The allegations in the complaint were that on September 30, 1956 at about 8-30 p.m. these accused persons along with some police officials raided the complainant s house, unlawfully confided him in a room and removed Rs. 600/- in cash (silver coins) and gold jewellery worth Rs. 1600/- i.e., 16 Tolas from a trunk lying in the "Baithak" of the house, that they did not enter these in any recovery memo and misappropriated the same, that they also removed some shirts and other clothing from another trunk belonging to the complainant, that the accused Uppadhaya took complainant s Gita Diary containing Rs. 36/- currency notes and misappropriated the same and that the cash and jewellery were kept in a bag by all the accused and was given to accused Uppadhaya. It was further alleged that the accused Uppadhaya also searched the shop of complainant s father and misappropriated Rs. 18/- from his pocket and four packets of Capstan cigarettes and one match box.

2. According to the petition of complaint the accused persons had committed offences under S. 461 read with Ss. 379, 403, 342, 166 and 167 of the Indian Penal Code. The Magistrate issued process against the three accused persons for offences under Ss. 403, 379, 342 and 166 of the Indian Penal Code.

3. Three witnesses were examined before the Magistrate on behalf of the accused to establish their claim that sanction under S. 197 of the Cr. P. C. was necessary. On a consideration of their evidence and also a copy of a memorandum issued by the Government of India, Ministry of Home Affairs, the Magistrate came to the conclusion that S. 197 of the Code of Criminal Procedure applied and in that view dismissed the complaint because no sanction of the Central Government had been obtained.

4. The Additional Sessions Judge, Delhi, was moved against this order of dismissal but he too was of the same view and refused to interfere with the Magistrate s order.

5. The High Court of Punjab was then Moved. That Court was also of opinion that as regards some of the offences at least sanction under S. 197 Cr. P. C. was necessary, but as the other offences were inextricably mixed up with the offences for which sanction was required the learned Judge of the High Court refused to interfere with the order dismissing the complaint.

6. Thereafter the appellant applied for and obtained special leave to appeal from this Court. That is how the appeal has come up for hearing and final disposal before us.

7. Before the protection of S. 197 Cr. P. C. can be claimed by an accused person he has in the first instance to satisfy the Court that he is a public servant "not removable from his office save by or with the sanction of a State Government or the Central Government", and next that the acts complained of, if committed by him were committed "while acting or purporting to act in the discharge of his official duty." No dispute was raised in the courts below as regards the first question viz., whether these accused persons were public servants not removable except with the sanction of the Central Government and we have to proceed here on the basis that this requirement had been satisfied. The important question that still remains is whether the accused can reasonably claim that the acts complained of were committed by them in the discharge of their public duties or while purporting to act in discharge of their public duty.

8. The scope of S. 197 Cr. P. C. has been considered by the Privy Council and this Court in numerous cases. As was laid down by the Privy Council in H. H. B. Gill v. The King, 75 Ind App 41.

"A public servant can only be said to act or to purport to act in the dis