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2007 Supreme(J&K) 3
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
J.P. Singh, J.
Santosh Arora - Appellant
Versus
State & Ors. - Respondent
561-A Cr.P.C. No. 60/2004
Decided On : 17 January, 2007
Advocate For Appellant: K.S. Johal
Advocate For Respondent: B.S. Salathia
Headnote:Criminal Procedure Code-Section 197-Protection to Public Servant-Protection given under section 197 of the Code of Criminal Procedure is to protect responsible public servants against possible vexations criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. The protection available to the public servants cannot, however, be claimed as a cloak for doing any objectionable act in the garb of the official duty. There may be cases where while doing the official duty, the public servant, may exceed his duty which may fan within the definition of an offence. Such excess, will not, as such, be sufficient ground to deprive the public servant from the protection provided by Section 197 of the- Code of Criminal Procedure. At the same time, if the act complained of, had nothing to do with the official duty, but was done, while on duty, and was an act falling within the definition of an offence, the public servant would not entitled to protection under section 197 of Code of Criminal Procedure. During the process of examining the question as to whether or not the act of the public servant had been committed by him while acting or purporting to act in discharge of his official duties, it is not the duty which may require examination so much, as the act, because the official act may be performed both in the discharge of, or in dereliction of, the official duty. It is the quality of the act which is important and the protection of section 197 of Code of Criminal Procedure will be available, if the act falls within the scope and range of the official duty of the public servant.
In nut-shell, therefore, WHEREAS AN ACT FALLING WITHIN THE DEFINITION OF AN OFFENCE CONNECTED DIRECTLY AND REASONABLE WITH HIS OFFICIAL DUTY, WILL CERTAINLY REQUIRE SANCTION FOR PROSECUTION OF THE GOVERNMENT SERVANT, BUT- THE PROTECTIVE UMBREALLA OF SECION 197 OF CODE OF CRIMINAL PROCEDURE WILL NOT COVER EVERY ACT OR OMMISSION OF THE PUBLIC SERVANT IN SERVICE. Performance of the act, in the discharge of official duty, thus plays an important role in determining the availability or otherwise of protection to the public servant.
2. The petition arises in the back-drop of few write-ups, published by an English daily STATE TIMES in its publications of 21st, 24th & 27th of November, 1999 under the caption "CAN ANYONE NURSE THIS SICK SYSTEM BACK TO HEALTH? WHY DO MINISTERS, BUREAUCRATS, WIPS LOOBY FOR STALLING PROBE INTO SEXUAL EXPLOITATION OF NURSES? AND "GOVERNMENT ATTEMPTS TO DEFEND AMT PRINCIPAL, KEEPS SILENT ON STUDENTS INTERESTS" which resulted in an attack at about 11.30a.rn on 29th of April, 1999 by about 40/50 students undergoing training in A.M.T. School, Jammu, at the office premises of the english daily, `STATE TIMES. This procession of students had been reportedly taken out at the instigation of Professor Vikram Singh and Mrs. Santosh Arora, the Principal of A.M.T. School, Jammu. The processionists had been raising slogans that whosoever spoke against their teachers and Principal would not be spared. This procession was being led by eleven persons which included Amit Khajuria, Romesh Chander, besides others. SHO Police Station, Pacca Danga, Jammu reached the spot and noticed the processionists entering the office of STATE TIMES and damaging its furniture, computers etc. Finding the processionists to have committed cognizable offences, he sent a request to Incharge Police Station, Pacca Danga, Jammu to register a case against the processionists and others under sections 120-B/ 452/341/147/148/336/427 RPC. A Case F.I.R No. 178/99 was, accordingly, registered on this report. The case was investigated and Final Police Report was filed with the Chief Judicial Magistrate, Jammu indicating commission of offences under sections 452/147/148/336/341/427/120-B RPC. On this challan, coming up for consideration, the petitioner and one Professor Vikram Singh appear to have raised an objection that they were protected by Section 197 of the Code of Criminal Procedure and in the absence of sanction of the Government, they could not be proceeded against. Learned Chief Judicial Magistrate, Jammu dismissed the plea of the petitioners and directed the file to come up for framing charge against the accused.
3. Petitioner, Santosh Arora has filed this petition to seek quashing of the F.I.R, and Order dated 03-06-04 of learned Chief Judicial Magistrate, Jammu.
4. I have heard learned counsel for the parties and perused the records.
5. Learned Counsel for the petitioner, referred to various judgments to support his contention that section 197 of the Code of Criminal Procedure was attracted and the petitioner could not be prosecuted in the absence of sanction of the Government. He submitted that there was no evidence on the basis whereof the petitioner could be charged for having instigated the students to take out the procession and commit offences in the premises of STATE TIMES.
6. Mr. B.S. Salathia, Learned Additional Advocate General appearing for the State, on the other hand, submitted that enough evidence had been collected during the investigation of the case which proved that the petitioner had instigated the students to commit cognizable offences with a view to deter the weekly from publishing write-ups against the School and its functionaries.
7. The first question which falls for consideration is as to whether or not the petitioners alleged act of committing the offence, in instigating the students to take out the procession, trespassing the office of STATE TIMES and damaging its property could be said to be an act done by her while acting or purporting to act in the discharge of her official duties.
8. To deal with the questions raised by learned counsel for the petitioner, law relating to section 197 of the Code of Criminal Procedure, needs to be understood.
9. Having gone through the judgments cited at the Bar by learned counsel
