A public servant is protected from prosecution under Section 197(1) of the Code of Criminal Procedure even if he has acted in excess of his official duty or in dereliction thereof, provided that his act is traceable to his official duty.

1. "In any suit or proceeding against any superior Officer or member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority." Sub-Section (3) of Sec.20, which is directly relevant for the present purpose, reads -

"Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any superior officer or member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding."

2. As already stated the second petitioner had been commanded to assist the Assistant Traffic Superintendent in the work of checking ticketless travelling. By reason of Sec.15, he must be deemed to have always been on duty. In view of Sub-Section (3) of Sec.20, the prosecution against the second petitioner could only have been commenced after a prior notice of one month in writing of such proceeding and of the cause thereof to the petitioner himself as well as to his superior officer. This requirement of S.20(3) of the Act had not been complied with and it must, therefore, follow that his prosecution as instituted is not valid.

3. I will now turn to the case of the first petitioner. Sec.197 of the Code of Criminal Procedure, so far as it is relevant is in the following terms :-

"(1) .................. When any public servant who is not removable from his office save by or with the sanction of............... the Central Government, by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person employed in connection with the affairs of the Union of the Central Government; and

(b) ** ** **"

The substantial question for consideration, therefore, is whether, while the alleged offences are said to have been committed by the first petitioner, he was "acting or purporting to act in the discharge of his official duty."

4. The scope and ambit of Sec.197 of the Code of Criminal Procedure have been the subject of a series of judicial decisions and the principles which must be borne in mind while dealing with the question as to whether the provisions of Sec.197 of the Code are attracted in the circumstances of a particular case are no longer in dispute. It is well settled that to attract the provisions of S.197(1) of the Code the offences alleged to have been committed by a public servant must have some relation to the discharge of his official duty. No question of sanction can arise unless the act complained of is an offence, but, where the act complained of constitutes an offence, the point to be determined is whether it was committed in the discharge of official duty. As pointed out by the Supreme Court in the case of Matajog Dobey V/s. H.C. Bhari, AIR 1956 SC 44 :

"There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits". Their Lordships have further pointed out - "What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation".

A reference has been made therein to the observations of their Lordships of the Supreme Court