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TMI Blog2023 (6) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. The object of sanction of prosecution as provided under Section 197 is to protect the public servants discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. The Apex Court in the case of D. Devraja [ 2020 (6) TMI 802 - SUPREME COURT ], discussed the settled law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by public servant and held that the High Court clearly erred in law in refusing to exercise its jurisdiction Under Section 482 of the Code of Criminal Procedure to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. In light of the settled law propounded by the Apex Court and applying the same to the facts of present case, this court is of the considered opinion that, before the learned trial Court sufficient ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Respondent No. 2 : Mr RC Jani For RC Jani Associate (6436) CAV JUDGMENT 1. Rule. With the consent of learned counsel for the parties, rule is fixed forthwith. The question that has come for consideration in this case is whether sanction under Section 197 is necessary from the Central Government before prosecuting the applicants for the offence punishable under Section 504 of the Indian Penal Code. 2. The second respondent Manishbhai was working as an Assistant Dying Master with Vishnu Dying and Printing Mills Pvt. Ltd., Kadodara at Surat. In the year 1998, the applicant no.1 was posted as Assistant Commissioner of Central Excise Division-II, Surat-1, whereas the applicant no.2-B.P. Meena and applicant no.3-K.C. Meena were posted and working as Inspector with the Excise Department, Surat. On the basis of intelligence with respect to large scale evasion of Central Excise Duty by M/ s.Vishnu Dying Mill, the applicant no.1-U.G. Goel, being Assistant Commissioner, raided the premises for preventing checks. The applicant no.1 along with applicant nos.2 and 3 visited the place at about 18:00 hours on 24.04.1998 and carried out extensive search in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted an act of intentional insult with intent to provoke breach of peace , allegedly punishable under Section 504 of the Indian Penal Code is made out and accordingly, chargesheet for the offence punishable under Section 504 of the Indian Penal Code, came to be filed. The learned Magistrate Court at Palsana, Surat, after hearing the second respondent, accepted the report submitted by the Investigating Agency and took cognizance of the offence under Section 504 of the Indian Penal Code and issued process against the applicants herein. (iii) Aggrieved with the order of issuing process, the applicants had preferred an application under Section 197 of the Indian Penal Code inter alia stating that, the act complained in the FIR had a reasonable nexus with the official duties of the applicants and therefore, no criminal proceedings could be initiated against the applicants without obtaining sanction of the Government. The learned Trial Court rejected the application, holding that the applicants failed to establish the facts that they are public servants not removable from their office save by or with the sanction of the Government. The order of the Trial Court challenged before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 of the Indian Penal Code is made out against the accused and act complained cannot be alleged to have committed by them while acting or purporting to act in their discharge of their official duty and therefore, bar as provided under Section 197 is not applicable. 3. Being aggrieved and dissatisfied with the aforesaid orders passed by the courts below i.e. 30.04.2012 and 12.07.2014, the applicants original accused have preferred this application under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C., to quash the impugned orders as well as the proceedings of Criminal Case No. 371 of 2010 for the offence punishable under Section 504 of the IPC. 4. This Court has heard learned counsel Mr. Bhadrish S. Raju, Mr. R.C. Jani and Mr. L.B. Dabhi, for the respective parties. 5. Mr. Bhadrish Raju, the learned counsel appearing for and on behalf of the applicants, raised the following contentions : (i) That pursuant to the order passed by the co-ordinate Bench of this Court, the applicants herein placed on record the necessary documents, to establish primafacie the fact that, the applicants are public servants, serving with the Revenue D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable when the act complained is reasonably connected with the discharge of his/their official duties and in that view of the matter, considering the peculiar facts and circumstances of the present case, the sanction is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty. 6. In the aforesaid contentions, learned counsel Mr. Raju submitted that, the decisions are grossly erroneous and judicial discretion having not been properly exercised by the courts below and therefore, case is made out warranting interference by this Court in exercise of inherent powers. 7. In support of the contentions, he cited the following case laws: (i) Matajog Dubey Vs. H.C. Bihari, AIR 1956 SC 44; (ii) Krishnakumar Vs. Divisional Asst, 1979 (4) SCC 289; (iii) Bhappa Singh Vs. Ram Pal Singh Ors., 1981 (Supp) SCC 12; (iv) Deepak Kumar Vs. UOI, 1996 SCC Online Raj 357; (v) Gaurishankar Prasad Vs. State of Bihar, 2000(5) SCC 15; (vi) Abdul Wahab Ansari Vs. State of Bihar, 2000(8) SCC 500; (vii) Prakash Singh Badal Ors Vs State of Punjab Ors, 2007(1) SCC 1; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat Anr., Laws (GJH) 2017 5 165; (iii) Chandan Kumar Basu Vs. State of Bihar, Laws (SC) 2014 7 30; (iv) D. Devaraja Vs. Owais Sabeer Hussain, Laws (SC) 2020 6 22; (v) P.K. Pradhan Vs. State of Sikkim Represented By the Central Bureau of Investigation, Laws (SC) 2001 7 52; 10. With the aforesaid contentions, it was prayed that when judicial discretion having been properly exercised by the courts below, no exceptional case is made out warranting interference by this Court and therefore, the application is misconceived and is liable to be dismissed. 11. Having heard the learned counsels for the respective parties and on perusal of the findings recorded by the courts below and material placed on record, the issue falls for my consideration is whether on allegations made in the FIR and material available of record, Section 197 of the Cr.P.C, is applicable to the facts of the case? 12. It is not in dispute that on 24.04.1998, the applicants being a High Ranking Officials of the Excise and Customs Department, Surat, conducted a raid at the mill premises for preventive checks. During the search proceedings, they recovered and seized incriminating mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission of the alleged offence employed, in connection with the affairs of a State, of the State Government: (2) XXX (3) XXX (4) XXX 14. A bare reading of the Section lays down that, no court can take cognizance of any offence alleged to have been committed by a person who is or was a Judge, or Magistrate or a Public Servant not removable of his office save by or with the sanction of the government, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the appropriate Union or the State Government. 15. In order to avail the benefit of Section 197, it is required to be established that the offence mentioned therein must be committed by public servant and the public servant employed in connection with the affairs of the Union or State is not removable from his office, save by and sanction of the appropriate government. The protection 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 clock for doing the objectionable act. 16. The object of sanction of prosecution as provided under Section 197 is to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of office is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon Vice, and the Office is as a shadow to it. But 'by reason of the office' and 'by virtue of the office are taken always in the best part. 42. After referring to the Law Lexicons referred to above, this Court held ( Virupaxappa Veerappa Kadampur Case, AIR p.852, para-10): It appears to us that the words under colour of duty have been used in s.161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false Panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in stroud's Dictionary as a veil to his falsehood. The acts thus done in dereliction of his duty must be held to have been done under colour of the duty . 43. In Om Prakash v. State of Jharkhand , this Court, after referring to various decisions, pertaining to the police excess, explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government. 67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was also drawn regarding the applicable service Rules namely - Central Civil Services (Classification, Control and Appeal) Rules, 1965 to submit that they were appointed and promoted by the orders of President of India and can only be removed from their office with the sanction of the Central Government. The learned trial Court as well as Revisional Court failed to consider the constitutional provision with respect to executive powers of Union as provided under Article 53 of Constitution of India. Article 53 provides that, the Executive Power of the Union shall be vested in the President and shall be exercised by him directly or through Officers Sub-ordinate to him in accordance with the constitution. Article 77 is pertaining to conduct of Government business, which says that, all the Executive Action of Government of India, shall be expressed in the name of President and President shall make the Rules of the business of the Government of India and for the allocation amongst the ministries. The applicants herein recruited by Department of Revenue, Union of India, Ministry of Finance. The documents referred by the trial Court, indicates that the Executives of the Departments li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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