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PETITIONER: BHAGWAN PRASAD SRIVASTAVA

       Vs.

RESPONDENT: N. P. MISRA

DATE OF JUDGMENT: 20/04/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. RAY, A.N.

CITATION:  1970 AIR 1661            1971 SCR  (1) 317  1969 SCC  (2)  56  CITATOR INFO :  R          1973 SC2591  (2,3)  R          1983 SC 610  (3)  RF         1986 SC 345  (6)

ACT: Code of Criminal Procedure, (5 of 1898) s. 197-Scope of.

HEADNOTE: The respondent filed a complaint stating that the appellant, a  civil surgeon used defamatory and abusive words  and  got the  respondent pushed out by the cook of the hospital.   On the  question  whether the case was covered by  s.  197  Cr. P.C.  and  previous sanction of the superior  authority  was necessary  before the trial Court could take  cognizance  of the complaint,  HELD  : The case was not covered by s, 197 Cr.   P.C..  The object  and purpose underlying section 197 Cr.  P.C.  is  to afford  protection  to public  servants  against  frivolous, vexatious or false prosecution for offences alleged- to have been committed by them while acting or- purporting to act in the  discharge of their official duty.  The larger  interest of  efficiency of State administration demands  that  public servants should  be free to perform  their  official  duty ’fearlessly   and  undeterred  by  apprehension   of   their ,possible prosecution at the instance. of private parties to whom  annoyance  ,or injury may have been  caused  by  their legitimate  acts  done in the discharge  of  their  official duty.  This section is designed to facilitate effective  and unhampered  performance  of their official  duty  by  public servants  by providing for scrutiny into the allegations  of commission of offence by them by their superior  authorities and  prior sanction ’for the-..- prosecution as a  condition precedent  to the cognizance of the cases against  them,  by the courts.  It is neither to be too narrowly construed  nor too widely.  Too narrow and pedantic construction may render it  otiose for it is no part of an official duty, and  never can  be-to  commit an offence.  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.   One  must also  guard against too wide a construction because  in  our

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constitutional  set  up  the idea of legal  equality  or  of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost  limits by  enshrining  equality before the law in  our  fundamental principles.   The question whether a particular act is  done ’by  a public servant in the discharge of his official  duty is  substantially  one  of  fact to  be  determined  on  the circumstances of each case. [320 D--H; 321 G] In the present case the alleged offence consists of the  use of   defamatory  and  abusive  words  and  of  getting   the complainant-respondent forcibly turned out of the  operation theatre  by  the Cook.  There was nothing on the  record  to show  that  this  was a part of the  official  duty  of  the appellant  as  Civil  Surgeon or that  it  was  so  directly connected  with  the performance of his official  duty  that without so acting he could not have properly discharged, it. [321 G-H] Matajog  Dobey  v. H. C. Bhari, [1955] 2  S.C.R.  925  Amrik Singh  v. The State of PEPSU, [1955] 1 S.C.R. 1302  at  1307 Baijnath  Gupta  v.  State of M. P., [1966]  1  S.C.R.  210; Prabhakar  V.  Sinari  v. Shanker Anant  verlekar  [1969]  2 S.C.R. 1013, referred to. 318

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 139 of 1967. Appeal  by special leave from the judgment and  order  dated February  21,  1967  of the Patna  High  Court  in  Criminal Revision No. 546 of 1965. Sarjoo  Prasad,  S.  S.  Jauhar and K.  K.  Sinha,  for  the appellant. U. P. Singh, for the respondent. The Judgment of the Court was delivered  by Dua,  J.  In this appeal by special leave arising out  of  a complaint filed ’by the respondent Shri N. P. Mishra against the  appellant  Shri  Bhagwan Prasad  Srivastava,  the  only question  requiring  determination is if cognizance  of  the case  by the Magistrate required previous sanction under  s. 197, Cr.  P.C. The Sub-bivisional Magistrate, in whose court the   complaint  was  instituted,  upheld  the   preliminary objection based, on the absence of previous sanction and the Second  Additional Sessions Judge, on revision, agreed  with this  view.   On  further  revision  the  Patna  High  Court disagreed  with the view taken by the two courts  below  and holding  s.  197, Cr.  P.C. to be inapplicable to  the  case directed  the  sub-Divisional  Magistrate  to  make  further enquiry into the petition of complaint.  Before us the  view taken by the High Court is assailed. The complaint was filed by the respondent Shri N. P. Mishra, Civil Assistant Surgeon, Sadar Hospital, Chapra (hereinafter called   the  complainant)  against  Shri   Bhagwan   Prasad Srivastava, Civil Surgeon, Chapra (appellant in this  Court) and Shri Ramjash Pandey.  Cook, Sadar Hospital, Chapra.   It was  alleged  in  the  complaint that on  the  6th  and  7th January,  1964  the appellant had used  defamatory  language towards  the  complainant, and the two accused  persons  had insulted and humiliated him in the eyes of the public.  As a result,  the  complainant was put to great mental  pain  and agony, his reputation was harmed and his professional career prejudicially  affected.   The  relevant  averments  in  the complaint may now be stated with the requisite detail.   The complainant  claiming  to  be  a Master  of  Surgery  and  a

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specialist in Ophthalmology had joined Chapra Sadar Hospital as  Civil Assistant Surgeon (C.A.S.) in January, 1962.   The appellant joined the said hospital as Civil Surgeon  towards the  end  of 1962.  The appellant bore  illwill  and  malice towards  the complainant and was always on the look out  for an  opportunity  to  harm  him  in  his  profession  and  to humiliate and disgrace him in the eyes of the public.   Some cataract operations were to be performed on January 7,  1964 in the Blind Relief Camp to be organised for that 319 purpose.   On  January 6, when the  complainant  was  making final’ selection of the patients for the cataract operations to be performed on the following day, the appellant informed the  complainant  that he had not been able to  arrange  for cataract knives and that the complainant should arrange  for them   from  somewhere.   The  complainant   requested   the appellant to place order for the knives with some local firm and  give him the necessary letter of authority so that  the same could be purchased on credit.  The appellant apparently did  not  like this suggestion . He got enraged  and  in  an insulting tone and language told the complainant that it was his job to arrange for the knives and that as a last  resort he might bring his own knife.  The complainant repeated  his suggestion  adding that in the alternative a man be sent  to Patna to make local purchases.  On this the appellant  again addressed  the complainant in highly defamatory language  in the presence of the hospital staff and the attendants.   On January  7, 1964 at about 9 a.m. the complainant was in  the operation  theatre.  Some members of the hospital staff  and some attendants of the patients who were waiting outside the operation  theatre  were also present.  The  appellant  came there and again asked the complainant if he had brought  two more cataract knives from somewhere, The complainant replied that in the absence of the appellant’s final orders the  two knives  could  not be arranged from the local  market.   The appellant again got annoyed and addressed the complainant in insulting tone and defamatory language.  Not satisfied  with the  use  of  such language the  appellant  ordered  Ramjesh Pandey,  Cook of the Hospital, to turn out the  complainant, the purport of the actual words used being "Pandey turn  out this  badmash (one who follows evil courses).  To his  utter humiliation the complainant was then actually pushed out  by the  Cook.  The actual words used in Hindi by the  appellant have been reproduced in the judgment of the High Court.   We have,  therefore, not considered it necessary  to  reproduce them  again, except the word ’badmash’ of which the  literal meaning  in  English  as stated by  us  is  generally  well- understood. The  question  which  falls for decision by  this  Court  is whether the complainant’s case is covered by S. 197, Cr-P.C. and previous sanction of the superior authority is necessary before the trial court can take cognizance of the complaint. Section 197, Cr-P.C. provides as under :               "(1) When any person who is a Judge within the               meaning  of  section 19 of  the  Indian  Penal               Code,  or  when  any Magistrate  or  when  any               public  servant who is not removable from  his               office save by or with the sanction of a State               Government  or  the  Central  Government,   is               ,accused  of any offence alleged to have  been               committed by him while acting or purporting to               act in the discharge               320               of  his  official duty, no  Court  shall  take               cognizance  of  such offence except  with  the

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             previous sanction-               (a)   in  the  case of a  person  employed  in               connection  with the affairs of the Union,  of               the Central Government; and               (b)   in  the  case of a  person  employed  in               connection with the affairs of a State of  the               State Government.               Power  of  Central or State Government  as  to               prosecution.-               (2)   The  Central  Government  or  the  State               Government, as the case may be, may  determine               the person ’by whom, the manner in which,  the               offence or offences for which, the prosecution               of such Judge, Magistrate or public servant is               to be conducted, and may specify the Court be-               fore which the trial is to be held." The  object and purpose underlying section 197 Cr.  P.C.  to afford  protection  to public  servants  against  frivolous, vexatious or false prosecution for offences alleged to  have been committed by them while acting or purporting to act  in the  discharge of their official duty.  The larger  interest of  efficiency of State administration demands  that  public servants  should  be  free to perform  their  official  duty fearlessly and undeterred by apprehension of their  possible prosecution  at  the  instance of private  parties  to  whom annoyance or injury may have been caused by their legitimate acts  done  in the discharge of their official  duty.   This section  is designed to facilitate effective and  unhampered performance  of their official duty ’by public  servants  by providing for scrutiny into the allegations of commission of offence  by  them by their superior  authorities  and  prior sanction  for their prosecution as a condition precedent  to the cognizance of the cases against them by the courts.  If, is neither to be too narrowly construed nor too widely.  Too narrow and pedantic construction may render it otiose for it is no part of an official duty-and never can be-to commit an offence.   In our view, 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.   One  must  also  guard against   too   wide   a   construction   because   in   our constitutional  set  up  the idea of legal  equality  or  of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost  limits by  enshrining  equality before the law in  our  fundamental principles.  Broadly speaking, with us no man, whatever  his rank  or condition is above the law and every official  from the highest down to the lowest is under the 321 same  responsibility  for  every  act  done  without   legal justification as,, any other citizen.  In construing S. 197, CrP.C., therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside  the scope of official duties.  According to the decision of this Court  in  Matajor  Dobey v. H. C. Bhari(1)  cited  by  Shri Sarjoo  Prasad  on behalf of the appellant there must  be  a reasonable  connection between the act and the discharge  of official  duty; the act must-bear such relation to the  duty that  theaccused  could lay a reasonable claim,  but  not  a pretended or fanciful claim, that he did it in the course of the performance of his duty.  In Amrik Singh v. The State of PEPSU(2) this Court said :               "It is not every offence committed by a public               servant that requires sanction for prosecution               under section 197 (1) of the Code of  Criminal

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             procedure;  nor  even every act  done  by  him               while   he   is  actually   engaged   in   the               performance of his official duties; but if the               act  complained of is directly concerned  with               his official duties so that, if questioned, it               could ’be claimed to have been done by  virtue               of   the  office,  then  sanction   would   be               necessary; and that would be so,  irrespective               of whether it was, in fact, a proper discharge               of his duties, because that would really be  a               matter  of defence on the merits, which  would               have  to  be investigated at  the  trial,  and               could  not arise at the stage of the grant  of               sanction,  which must precede the  institution               of the prosecution.,." Recently  in Baijnath Gupta v. State of M.P.(3)  this  Court further explained that it is the quality of the act that  is important and if it falls within the scope and range of  the official   duties  of  the  public  servant  concerned   the protection contemplated by s. 1 97 of the Criminal Procedure Code will be attracted. The  principle  embodied in this section seems to  be  well- understood;   the  difficulty  normally  lies  is   in   its application  to  the facts of a given  case.   The  question whether a particular act is, done by a public servant in the discharge of his official duty is substantially one of  fact to be determined on the circumstances of each case.  In  the present  case  the alleged offence consists of  the  use  of defamatory and abusive words and of getting the complainant forcibly  turned out of the operation theatre by  the  Cook. There is nothing on the record to show that this was a  part of  the official duty of the appellant as Civil  Surgeon  or that  it was so directly connected with the  performance  of his  official duty that without so acting he could not  have property discharged it. (1) [1955] 2 S.C.R. 925. (2) [1955] 1 S.C.R. 1302 at 1307.- (3)  [1966] 1 S.C.R.210. 322 As suggested by this Court in Prabhakar V. Sinari v. Shanker Anant Vertekar(1) it would be open to the appellant to place material  on the record during, the course of the trial  for showing what his duty as Civil Surgeon was and also that the impugned  acts were inter-related with his official duty  so as to attract the protection afforded by s. 197, cr.  p.c.we do  not find any material on the existing record  suggesting that  the impugned  acts were done by the  appellant in  the discharge  of  his official duty or that they  are  directly connected with it.  This appeal accordingly must fail and is dismissed. Y.P.                         Appeal dismissed. (1) [1969] 2S.C.R.1013 323