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1981 Supreme(Ker) 162
Judges : S.K.KADER
T.S.Thomas And Others - Appellant
Versus
K.A.Musthafa And Another - Respondent
Case No : Criminal Misc. Case No. 100 of 1981
Decided On : 07/30/1981
Advocates Appeared :
For the Petitioner: M. M. Abdul Aziz, Advocate. For the Respondent: P. V. Aiyappan; N. P. Samuel; A. R. Prakasan; T. Chinnan and K. Mathews Mathew, for Respondent No. 1.
The protection under Sections 397 of the Act and 197 of the Code applies when the act complained of is directly concerned or reasonably connected with the official duties of the accused, even if the act may have been irregular or illegal.
Headnote:
Sanction - Criminal Complaint - Sections 397 of the Kerala Municipalities Act, 1960 and 197 of the Criminal Procedure Code - 397 of the Act, 197 of the Code
Fact of the Case:
The accused were charged with offenses under Sections 447, 427, and 109 of the Indian Penal Code for their actions in relation to a property dispute. They filed a criminal miscellaneous case seeking to quash the proceedings, arguing that they were protected under Section 397 of the Kerala Municipalities Act, 1960 and Section 197 of the Criminal Procedure Code due to the official nature of their actions.
Finding of the Court:
The court found that the accused were entitled to the protection under Sections 397 of the Act and 197 of the Code as their actions were connected with their official duties, even if they may have been irregular or illegal.
Issues: The main issue was whether the accused were protected under Sections 397 of the Act and 197 of the Code for their actions in the property dispute.
Ratio Decidendi: The court held that the protection under these sections applies when the act complained of is directly concerned or reasonably connected with the official duties of the accused, even if the act may have been irregular or illegal.
Final Decision: The petition was allowed, the order of the court below was set aside, and the entire proceeding against the petitioners was set aside.
Key Points: - Protection under Sections 397 and 197 applies when the act is directly concerned or reasonably connected with official duties, even if irregular or illegal (!) (!) (!) (!) (!) . - The test focuses on whether the act complained of is so connected with the official duty that the accused could reasonably claim to act by virtue of their office (!) (!) . - The protection is intended to ensure fearless performance of duties and applies even if the act exceeds strict authority, provided it relates to the official function (!) (!) . - The court must decide based on the material on record whether the acts were genuinely connected to official duties (!) . - Previous sanction is not required at the pendency of proceedings if the connection to official duty is established during trial (!) .
What is the scope of protection under Sections 397 of the Kerala Municipalities Act and 197 of the Criminal Procedure Code?
What are the conditions for obtaining protection against prosecution for public servants acting in their official capacity?
What is the test for determining whether an act is connected with official duties of a public servant?
The only question that arises for determination in this criminal miscellaneous case filed by the accused persons in C.C. No. 620/80 on the file of the Judicial Magistrate of I Class, Perumbavoor, a private complaint, filed by the first respondent herein, is whether the said complaint is competent and the proceedings therein are liable to be quashed, for want of previous sanction of the appropriate authority under Section 197 of Criminal P.C. 1973, hereinafter called the Code, and under Section 397 of the Kerala Municipalities Act, 1960 (Act 14 of 1961), hereinafter referred to as the Act.
2. The first respondent filed a complaint before the Judicial Magistrate of I Class, Perumbavoor, against the petitioners herein who are respectively accused 1 to 4 in the complaint, alleging that they committed offences punishable under Sections "447, 427 and 109" I.P.C. The material allegations in the complaint can be stated as under:
3. The father of the first respondent (the complainant) had given permission to the Irrigation Department for constructing an irrigation canal from north to south along the middle of the property now belonging to the complainant and comprised in Sy. No. 319/3 having an extent of 2 acres and 51 cents and Sy. No. 316/11 having an extent of 1 acre and 71 cents. An aqueduct has been constructed over some portion of this canal. The Irrigation Department wanted to cover up the aqueduct with slabs with the intention the public could use it as a pathway. The complainant on coming to know about this, filed a suit before this Court against the Irrigation Department and obtained an interim injunction against the Department and the suit has now been sent back to the Munsiff's Court, Perumbavoor, where it has been numbered as O.S. No. 136/80. As the accused persons could not execute their desire as a result of this injunction, they with the intention to cause loss to the complainant, at about 8-30 a.m. on 30-10-1980, with the help of three police constables, entered the complainant's property, removed the fencing put up on the northern and southern sides, cut branches of a nutmeg tree which was standing on the western boundary of the canal and also dug a trench along one of the bunds of the canal for a distance of 500 feet. The complainant has sustained a loss of Rs. 200/- as a result of this. Although the first accused was not present at the place of occurrence, all these acts were done at his instance and in pursuance of his instigation.
4. The learned Magistrate took cognizance of the offences and issued processes to the accused.
5. On receipt of the process, accused No. 1 filed "Crl.M.P. No. 3301/80" and accused Nos. 2 to 4 "Crl.M.P. No. 3152/80", stating that they being Commissioner and Municipal Councilors are protected under Section 397 of the Act and also under Section 197 of the Code and their prosecution is incompetent for want of previous sanction from appropriate authorities.
6. The learned Magistrate after hearing both sides, mainly on the ground that the question whether the accused are protected by S. 179 of the Act was a matter which has to be proved in the case and that even if their act will come under the official duty, they cannot claim the protection as they have failed to comply with the conditions laid down in S. 179 of Act, dismissed the petitions by a common order.
7. Assailing this order, the learned advocate appearing for the petitioners submitted that on the basis of the allegations made in the complaint and the admitted facts, it is clear that it was for the purpose of laying pipes for supplying drinking water to the public by inter-linking water distribution lines of Ward No. 18 and Ward No. 1 of the Municipality that a trench was dug up along one of the bunds of the canal constructed by the Minor Irrigation Department; that it was in pursuance of a decision taken by the Municipality in consultation with the Public Health Department that the trench was constructed along the canal b
