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2006(1) Crimes 88 (SC)
Supreme Court of India
(From Patna High Court)
Arijit Pasayat & G.P. Mathur, JJ.
Rakesh Kumar Mishra —Appellant
versus
The State of Bihar & Ors. —Respondents
Criminal Appeal No. 12 of 2006
(Arising out of SLP (Crl.) No. 17/2005)
Decided on 3-1-2006
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 6)
Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. 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. 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 and without any justification therefor then the bar under Section 197 of the Code is not attracted. (Para 10)
When the factual position is considered in the background of legal principles elaborated above the inevitable conclusion is that the High Court was not justified in holding that the Section 197 was not applicable to the facts of the case. In the instant case, therefore Section 197 of the Code had clear application. High Court only focused on the absence of the search warrant and totally ignored other relevant aspects. Though the allegations about alleged offences had their matrix on the absence of search warrant, the other circumstances noted above had a determinative role in the issue. The events, if any, which allegedly took place after 11.7.1996 on which emphasis was laid by the respondent No. 2 have really no relevance for the issue under consideration. Their effect, if any, can be considered at the appropriate stage. We make it clear that the view expressed by us is only in respect of applicability of Section 197 of the Code. (Para 19)
Result : Appeal allowed.
Judgment
Arijit Pasayat, J.—Leave granted.
2. Appellant calls in question legality of the judgment rendered by a learned Single judge of the Patna High Court dismissing the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) seeking the order of cognizance taken by learned Judicial Magistrate, Patna, on a complaint filed by Ramesh Kumar Dubey (Respondent No.2 in this Appeal). By order dated 11.1.2000 learned Judicial Magistrate took cognizance of offences punishable under Sections 342, 389, 469, 471 and 120(B) of the Indian Penal Code, 1860 (in short the ‘IPC’). Learned Chief Judicial Magistrate, Patna had transferred the case on 18.1.1997 to the learned Magistrate for enquiry and disposal and that is how the matter was placed before learned Judicial Magistrate, First Class. Primary stand taken by the appellant before the High Court was that in the absence of sanction as contemplated under Section 197 of the Code, the proceeding cannot be continued. The High Court by the impugned judgment rejected the prayer holding that since the requirement of Section 100(4) of the Code were not followed, which search was conducted in the respondent No. 2’s premises the provisions of Section 197 of the Code were not applicable.
3. Learned counsel for the appellant submitted that without noticing relevant factual background the High Court has held that the protection under Section 197 of the Code were not available. According to him a report about the commission of dacoity on 8/9-7-1996 was received and Jasidih PS Case No. 103 of 1997 was registered in respect of commission of offence punishable under Section 395 of the IPC. The Special Report in respect of the case was 250 of 1996. Supervision of the case was being done by the appellant. Source information was received about the involvement of certain persons, one of whom was Ratnesh Kumar Dubey- alias Chhotu, son of respondent No. 2. On the basis of such information the appellant gave spot instruction to arrest the suspects and conduct search. Search was to be conducted in the house of respondent No. 2. Three Sub-Inspectors were deputed for the purpose and the investigating officer of the case was directed to continue investigation on other lines. On 11.7.1996 the team constituted for the purpose of search requested the police officials of Shastri Nagar Police Station in Patna for cooperation. A requisition slip for the purpose was given. The team of three sub-inspectors and local police officials visited the house of respondent No. 2 on 11.7.1992 for the purpose of search and to arrest Ratnesh, if necessary. Elder son of Respondent No. 2 told the police officials that Ratnesh had gone to Delhi and was not present. Though search was conducted no material of any substance was seized. Alleging that the search was motivated and was for the purpose of humiliating and harassing, as the concerned officials did not have a search warrant, the respondent No. 2 and his son Chhotu, complaint was filed on 26.11.1996 in the Court of Chief Judicial Magistrate, Patna. Subsequently, as noted above, the appellant filed the application under Section 482 of the Code which came to be dismissed by the impugned judgment. It was submitted by learned counsel for the appellant that the factual scenario clearly proves the bonafides and in view of the fact that all possible procedure were taken to follow the mandate of law, Section 197 of the Code is clearly applicable. It is submitted that the High Court made reference only to the Section 100 of the Code, overlooking the powers available to be exercised under Sections 41, 165 and 166 of the Code and Rule 165 of the Bihar Police Manual. It was, therefore, submitted that the judgment of the High Court is indefensible. Learned counsel for the State of Bihar and Jharkhand supported the stand taken by the appellant.
4. Respondent No. 2 who appeared in person submitted that no material has been brought on record
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