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TMI Blog2016 (4) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Suresh C. Gupta, Birendra Kumar Mishra, Poonam A. and Praneet Ranjan, Advs. For the Respondent : Aniruddha P. Mayee, Adv. JUDGMENT Arun Mishra, J. 1. Leave granted. 2. The appeal arises out of the order dated 21.1.2011 passed by the High Court of Chhatisgarh at Bilaspur, thereby affirming the order dated 29.6.2002 passed by the Sessions Judge and Judicial Magistrate First Class, Dharamjaigarh, rejecting the application filed by the accused Appellant for discharge on the ground of requirement of sanction to prosecute Under Section 197(1) Code of Criminal Procedure. 3. As per the prosecution case, the Appellant was in-charge of Patthalgaon Hospital, District Raigad where on 1.1.1995 L.T.D. operation of Runiabai was conducted by Dr. A.M. Gupta. Thereafter she was sent home. As Runiabai vomited Dr. A.M. Gupta was approached. He sent one Aklu Ram to administer some treatment. However on 2.2.1995 she was brought to the Primary Health Centre, Patthalgaon where she was admitted and died at 2 p.m. Her post mortem was conducted. After 25 days, First Information Report was lodged and ultimately Police filed chargesheet Under Section 304A Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle in question for attending the monthly official meeting at the District Headquarters. In our considered opinion, it was an act or omission in discharge of the official duty. The sanction to prosecute was necessary. In this case, the accused was acting in discharge of his official duty when he refused to provide the official vehicle. The refusal is directly and reasonably connected with his official duty, thus sanction is required for prosecution as provided Under Section 197(1) Code of Criminal Procedure. It is not disputed that no ambulance was provided to the Primary Health Centre. The question arises whether omission to provide the official jeep which was not meant for patients, would constitute an omission in discharge of his duty. Though public servant is not entitled to indulge in criminal activities in the course of his duty but the act in question had relation to discharge of official duty of the accused. It was clearly connected to the performance of his official duty. When such is the case, sanction is required. This Court in Shreekantiah Ramayya Munipalli v. The State of Bombay 1955 (1) SCR 1177 has observed thus: Now it is obvious that if Section 197 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus willfully suffer another person to use them dishonestly: Section 405 of the Indian Penal Code. In both cases, the offence in his case would be incomplete without proving the official act. We therefore hold that Section 197 of the Code of Criminal Procedure applies and that sanction was necessary, and as there was none the trial is vitiated from the start. We therefore quash the proceedings against the second accused as also his conviction and sentence. 6. This Court in Matajog Dobey v. H.C. Bhari 1955 (2) SCR 925 has also considered when sanction is necessary. This Court has laid down thus: Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram's case and also in Sarjoo Prasad v. The King-Emperor (1945) F.C.R. 227. Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present, it may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of this type are allowed to be pursued to their logical conclusion, i.e., to that of conviction or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed. 8. In State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC 339, this Court has considered the meaning of the 'official act' thus: 6. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office. And official act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. 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 to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. v. Ganesh Chandra Jew 2004 (8) SCC 40 this Court has laid down that protection Under Section 197 would be available only when the act done by the public servant is reasonably connected with the discharge of his official duty. This Court has laid down thus: 7. The protection given Under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official to which applicability of Section 197 of the Code cannot be disputed. x x x x x 15. The question relating to the need of sanction Under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted. 12. In Manorama Tiwari and Ors. v. Surendra Nath Rai 2016(1) SCC 594, it was held that the Appellants were discharging public duties while performing surgery in a Government hospital, hence prosecution was not maintainable without sanction from the State Government. 13. In State of Madhya Pradesh v. Sheetla Sahai and Ors. 2009 (8) SCC 617, this Court has laid down thus: 59. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public servants purport to act in their officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 128 (IA pp. 59-60) A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. ... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Hori Ram case 1939 FCR 159 is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. King Emperor 1944 FCR 262 but the test laid down that it must be established that the act complained of was an 'official' act appears to us unduly to narrow down the scope of the protection afforded by Section 197 of the Code of Criminal Procedure as defined and understood in the earlier case. The decision in Albert West Meads v. R. AIR 1948 PC 156 does not carry us any further; it adopts the reasoning in Gill case AIR 1948 PC 128. 60. The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar (1979) 4 SCC 177 in the following terms: (SCC pp. 184-85, paras 17-18) 17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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