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TMI Blog2004 (3) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... n common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. Applicability of Section 197 - The factual scenario as indicated above goes to show that on 28.2.1991 respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that no complaint of any ill-treatment was made. This itself strikes at the credibility of the complaint. Additionally, the doctor who has examined him stated that for the first time on 2.3.1991 he treated the complainant. Though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant's case and the patent mala fides involved. It is no doubt true that the threshold interference by exercise of jurisdiction u/s 482 of the Code has to be in very rare cases, and this case appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to apprehend that he would flee away from custody. Nevertheless he was made to walk on the bazar roads with hand-cuff. He was taken to the range office and was made to sit under a tree with the intention to give an impression to the general public that he was an illicit trader in elephant tusks. An advocate requested the officials to allow the complainant to take insulin since he was a diabetic patient, but the request was not heeded to. Complainant was treated as a criminal. On the next day he was produced before the SDJM. Before doing that, some elephant tusks were put on his shoulders and photographs were taken. Appellants 5 and 6 assaulted him severely causing serious injuries. When he was produced before the SDJM before evening, he was not in a proper state of mind. Subsequently, after being released on bail he got himself medically examined and complaint was lodged after consulting lawyers. Appellants questioned legality of the proceedings. According to them, they were officials to whom protection under Section 197 of the Code was applicable. In any event, the complaint was lodged with oblique motive and intention to get out of the illegalities committed and as a retaliat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not correct to say that any mala fides are involved. A citizen's liberties were seriously trampled by these officials who committed series of illegal acts. Merely because respondent who was in a dazed stage on account of the ignominies brought upon by the acts of the appellants and both mentally and physically battered, could not take steps instantly, that is of no consequence; more particularly when the bail application indicated the illegalities committed. Section 197 of the Code has, therefore, rightly been held to be inapplicable. 6. The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. 1988CriLJ419 , this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:- It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 8. At this juncture, we may refer to P. Arulswami v. State of Madras 1967CriLJ665 , wherein this Court held as under: ... It is not therefore every offence committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he previous sanction of the Central Government. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision. Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. 14. The above position was illuminatingly highlighted in State of Maharashtra v. Dr. Budhikota Subbarao [1993]2SCR311 . 15. when the newly-worded section appeared in the Code (Section 197) with the words when any person who is or was a public servant (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa 1998CriLJ4003 that the legal position must be treated as changed even in regard to offences under the Old Act and New Act also. The said contention was, however, repelled by this Court wherein a two-Judge Bench has held thus: A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 197 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se are considered the question regarding applicability of Section 197 of the Code takes a temporary back seat. The factual scenario as indicated above goes to show that on 28.2.1991 respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that no complaint of any ill-treatment was made. This itself strikes at the credibility of the complaint. Additionally, the doctor who has examined him stated that for the first time on 2.3.1991 he treated the complainant. Though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant's case and the patent mala fides involved. It is no doubt true that the threshold interference by exercise of jurisdiction under Section 482 of the Code has to be in very rare cases, and this case appears to be of that nature. It fits in with the category No. 7 of broad categories indicated in State of Haryana v. Bhajan Lal 1992CriLJ527 . It is to be noted that though plea regarding non-complaint befor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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