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TMI Blog1973 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Union of Postal Employees. The relevant portion of the complaint is as follows : 4. That the accused came on tour to Jodhpur on 25-10-1971. He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5.45 P.M. The complainant reached to submit his representation to the accused for cancelling his transfer, when the accused just sat in his jeep and the complainant started narrating his story. 5. That the accused being enraged by this complaint, kicked him in his abdomen and abused him by saying Sale, Goonda, Badmash, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer. 6. That the complainant became very much enraged over this incident but he suppresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports so to act although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this view, the Judicial Committee of the Privy Council observed in Gill's 1948 L.R. 75 IndAp 41. case : A public servant can only be said to act or 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. In Matajog Dobey v. H.C. Bhari [1955] 28 ITR 941 (SC). the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by Section 197. After referring to the earlier cases the court summed up the results as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in Matajog Dobey v. H.C. Bhari (supra). In Bhagwan Prasad Srivastava v. N.P. Misra (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197, Cr.P.C. 5. This appeal is, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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