A public servant, when reacting angrily and abusively in a personal capacity, cannot claim protection under Section 197 of the Code of Criminal Procedure for actions that do not constitute the discharge of official duties.

1. The short point that arises for consideration in this Reference is as to the precise scope of S.197 of the Code of Criminal Procedure and whether in the circumstances of this case cognizance of the complaint under S.500, Indian Penal Code , could have been taken by the Magistrate in the absence of sanction by the State Government. The learned Magistrate held that he could. The II Addl. Sess. Judge, Thana, however, ruled otherwise and has made this Reference under S.438, CrPC.

2. The brief facts giving rise to the present Reference are as follows : The complainant claims to be an advocate and a member of the Kalyan Municipality and a social worker. On 3-1-1968 he filed the present complaint against the two accused alleging that they committed an offence under S.500, I.P.C., on 2-1-1968 at about 6-30 p.m., when accused No. 1 performed the opening ceremony of a centre of distributing milk, powder at Kalyan, at the instance of the local Rotary Club. Accused No. 1 is a Minister of the Maharashtra Cabinet while accused No. 2 is the President of the Zilla Parishad, Thana. According to the complaint, after accused No. 1 declared the Centre as opened and proceeded to make a speech, the complainant stood up and showed a sample of Mexican Punjab wheat mixed with D.D.T. powder, which according to the complainant was distributed to the ration - card - holders of Kalyan in the first fortnight of December, 1967. The complainant then asked if such wheat was fit for human consumption. On this question being asked, accused No. 1 got angry and called him a 'goonda'. So saying accused No. 1 asked the Dy. S.P. and the Inspector of Police to take his care. Accused No. 2 is also alleged to have called him 'badmash' and asked the Police officers to drive him out. The two police officers came and stood by his side. The complainant then asked as to when his question would be answered and on that accused No. 1 is alleged to have told him that he would answer the questions after the speech was over. It appears that passions had cooled down by the time the speech was over and there was some talk and it was agreed that the matter be pursued by contacting the Secretariat. Next day, however, the complainant filed this complaint and on that very day the learned Magistrate ordered the issue of process for offence under S.500, I.P.C. against both the accused.

3. In due course the accused appeared and on 27-2-1968 an objection was raised on behalf of accused No. 1 that he was a public servant within the meaning of S.197, CrPC and the Court cannot take cognizance of any complaint against him without the sanction of the State Government. After hearing the arguments, the learned Magistrate overruled the objection by his order dated 27-3-1967, holding that accused No. 1 was neither a public servant nor could he be said to have acted or purported to have acted in the discharge of his official duty when he became angry and called complainant a 'goonda'. Accused No. 1 then preferred a revision application to the Sessions Court, Thana, and the same was disposed of by the II Addl. Sess. Judge, Thana, who by his judgement dated 31-10-1968, taking a different view on both the points, has made this Reference.

4. Before the protection under S.197, CrPC claimed by any accused he shall have to satisfy three conditions : Firstly, that he is a public servant; secondly, that he is not removable from his office save by or with the sanction of a State Government or the Central Government, and, thirdly, that he is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. It is not disputed by Mr. Rajani Patel, the learned advocate appearing for the complainant before me, that accused No. 1 is a public servant. He, however, disputed the second claim of accused No. 1 that he was only removable by or with the sanction of the State Government. According to Mr. Patel, under Art.164(2) of the Constitution, the Co