Judgment

ALAGIRISWAMI, J:- The appellant filed a complaint against the 2nd respondent before the Addl. Munsiff Magistrate of Jodhpur City under Sections 323 and 504 Indian Penal Code. The 2nd respondent was the Post Master General, Rajasthan and the appellant a clerk in the Head Post Office at Jodhpur. He was also the Divisional Secretary of National Union of Postal Employees. The relevant portion of the complaint is as follows:

"4. That the accused came on tour to Jodhpur on 25-10-1971. He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5. 45 p.m. The complainant reached to submit his representation to the accused for cancelling his transfer, when the accused just sat in his jeep and the complainant started narrating his story.

5. That the accused being enraged by this complaint, kicked him in his abdomen and abused him by saying "Sale, Goonda, Badmash, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer.

"6. That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance.

"7. That after kicking and abusing the complainant the accused ran away in his jeep."

The 2nd respondent filed an application under Section 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Govt. as the acts alleged, if at all done by the accused, were done while discharging his duties as a public servant. The Munsiff Magistrate dismissed the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and set aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government had been obtained. This appeal is against that order.

2. The law regarding the circumstances under which sanction under Section 197 of the Code of Criminal Procedure is necessary is by now well settled as a result of the decisions from Hori Ram Singh s 1939 FCR 159 case to the latest decision of this Court in Bhagwan Prasad Srivastava v. N. P. Misra (1971) 1 SCR 317. While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropr