JUDGMENT
Dua, J.
1. The petitioner Giani Ajmer Singh Secretary, Shiromani Akali Dal, Amritsar has approached this Court under sections 435 and 439 Code of Criminal Procedure praying for setting aside the order of the Additional Sessions Judge dated 16-5-1962 affirming on revision the order of the Additional Sessions Judge of the District Magistrate, dated 9-4-1962. The two impugned order held the petitioner’s complaint against S. Ranjit Singh Grewal Senior Superintendent of Police, under Section 427, 435, 193 and 195 of the Indian Penal Code not to be entertainable without the previous sanction as contemplated by section 197 Criminal Procedure Code. This revision was admitted by a learned Single Judge of this Court after perusing the records which had been sent for by him. Notice was issued as far back as 5th the revision has not so far been disposed of. In cases of this nature, I need hardly emphasise that and undue delay might well defeat the cause of justice.
(2) Before me the learned counsel for the petitioner has readout the complaint and has submitted that the real gravamen of ht allegations in the complaint is that on 22nd of October 1962 after the procession taken out in Taru Taran as a protect against the irregularities committed in the counting of the votes of Sarhali constituency where from Sardar Partap Singh Kairon the present Chief Minister has been declared elected defeating the rival Akali candidate Mohan Singh Tur had been teargases and dispersed the respondent in order o justify the wrongful improper and undulated for use of the tear-gas on the crowd and use of violence caused efferent doors, window-panes etc. of the Tehsil building to be smashed with the help of the police party under his control ; similarly some wooden khokhas situated outside the Tehsil which were used as temporary office of lawyers and petition-writers were also set at fire by the police party at the instance of the respondent. This action of the respondent according amount to offences under section 427 and 435 Indian Penal Code and since these acts were committed with the intention of creating circumstances which may appear in evidence in judicial proceedings or in other proceedings taken by law before a public servant to induce an erroneous opinion touching points material to the result of such proceedings they also fell within the purview of sections 193 and 195, Indian Penal Code. Emphases has been laid on the submission that these allegations do not attract the provisions of section 197 of the Code.
(3) Here I think it would be desirable to reproduce section 197:
197. Prosecution of Judges and Public servants–(1) When any person who is a Judge within the meaning of section 19 of 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 section of a State Government or the Central Government is accused of any offence alleged to have been committed by him while acting or proper ting to act in the discharge of his official duty no Court shall take cognizance of such offence except with the 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.
(2) Power of Central or State Governments as to prosecution-The Central Government or the State Government as the case may be, determine the person by whom the manner in which the offence or offences for which the prosecution of such Judge or public servants is to be conducted and may specify the
Court before which the trial is to be held.”
The petitioner’s contention is that the offence alleged in the complaint to have been committed by the respondent was not committed by the respondent while acting or purporting to act in the discharge of this official duty for the duty of a police officer does not lid in damaging public property and setting fire to property after the procession had successfully been dispersed. Reference has been made on behalf of the petitioner to the following reported case. H. H. B. Gill v. The King AIR 1948 PC 128 has to begin with been relied upon and the following passage at p. 133 has particularly been referred to:
“A public servant can only been said to act or to purport to act in the discharge of his official duty if his act is such as to lei within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he delivers may be such an act: not does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient who he is examining though the examination itself may be such an act. The test may will be whether the public servant if challenged can reasonably claim that what he does, he does in virtue of his office. Matajog Dobey v. H. C. bhari (S) AIR 1956 SC 44 has next been referred to. Certain passages at pp. 48 and 49 have been specifically referred an it has been argued that according to this decision it is necessary to find out whether the act and the official duty are so inter-related that one cannot postulate reasonably that it was done by the accused in performance of the official duty though possibly in excess of the needs and requirements of the situations. The contention is hat though while dispersing the crowd the excesses committed might be held to fall within section 197 to the acts committed after successful dispersal of the crowd, particularly when prima facie they are offences wholly unconnected with such dispersal of the crowd, section 197 would be inappropriate and irrelevant. Amrik Singh v. State of Pepsu (s) AIR 1955 Sc. 309 is a decision on which both sides before me placed reliance the petitioner’s where the result of the authorities considered there was summed up. Om Parkash Gupta v. State of U. P., (S) AIR SC 458 was the next decision referred to, Finally support was sought from Satwant Singh V. State of Punjab, AIR 1960 SC 266 in which most of he earlier case have been digested and commented upon. The counsel has referred me to the observations at p. 271 and the following passage has been specifically relied upon:
It appears to me to be clear that some offences cannot be their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance acceptance of a bribe an offence punishable under section 161 of the Indian Penal Code is one of them and the and the offence of cheating abatement thereof is another. We have no hesitation in saying that where a public servant commits the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty as such offences have no necessary connection between them and the performance of the duties of a public servants the official status furnishing only the occasion or opportunity for the commission of the offences (vide (s) AIR 1955 SC 309. The act of cheating or abatement thereof has no reasonable concern with the discharge of official duty. The act must bear could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty: vide (S) AIR 1956 SC 44.”
Relying on this passage the counsel has submitted that in the case in hand the public servant could not lay a reasonable claim that he caused damaged to the property in question in the course of performance of his duty and that if at all he chose to do so this would be a pretend or fanciful claim.
(4) The construction of section 197, Criminal Procedure Code, also came up before the Supreme court in Dhananjay Ram Sharma v. M. S. Uppadaya, AIR 1960 Sc. 745 the head note of which reads thus:
“The accused persons who were in the employ of Northern Railway on the request of the Deputy Superintendent of Police Establishment but without any reference to their superior officers went to witness a search in the house of the complainant another Railway employee and were alleged to have committed offences of theft misappropriation of properties belonging to the complainant and wrongful confinement. Search and seizure of property in the complainant’s house was not in a trap case a required by the Home Office Memorandum.
Held that the duties of the accused as public servants had prima facie nothing to so with witnessing any search or helping any place officer in the matter of searchers. When the accused went to witness the search they did so noting pursuance of the Home Office Memorandum and so could not possibly be said to be performing their official duty or purporting to act in the performance of their official duty.
Further assuming that witnessing the search in the complainants house was in performance of their official duty the offences alleged to have been committed by the accused could have no direct connection with the act of witnessing the search. The mere fact that an opportunity to commit an offence is furnished by the official duty is not such a connection of the offence with the performance of such duty as to justify even remotely the view that the acts complained of are within the scope of their official duty. Hence sanction under section 197 was not necessary.”
(5) As against these submissions the learned Deputy Advocate-General has drawn my attention to Krishna Pillai Madhavan Pillai v. P. Sadasivan Pillai, AIR 1963 Kerala 7 a decision by a learned single Judge of that Court. The head-note of this case is in the following words:
“The complaint against the accused, Deputy Superintendent of Police, Sub-Inspector of Police Head Constable and a constable was that the complainants were several beaten by the accused. The accused alleged that they had acted in the exercise of their powers under sections 127 and 128 Cr. P. c. in dispersing an unlawful assembly and that the complaint was therefore barred by section 132, Cr. P. C. for want of sanction of the State Government. A further contention was also raised that accused 1 and 2 were public servants removable form office only the State Government and that to prosecute them for the offence alleged to have been committed by them while acting purporting to act in the discharge of their official duties sanction will have to be obtained under section 197, Cr. P.C. and the Court could not take cognizance against them except with the previous sanction of the State Government.
Held that the accused could not be asked to prove that they were acting in the discharge of their duties in dispersing an unlawful assembly. What is contemplated under section 132 is that the accused in such a case cannot be put on trial at all. The protection conferred by the section would be rendered nugatory if the onus was thrown on the police officers to prove in the trial that they acted under Chapter 9 Cr. P. C.. It would mean that the Police Officers must prove themselves to be innocent of the offence alleged against them in order to show that the complaint was invalid for want of sanction. It was not correct to say that only the complaint and the sworn statement should be looked into and not any other circumstance or documents for the purpose of deciding whether the prosecution was barred under section 132. The accused were acing under Chapter 9 and were entitled to protection under section 132, Cr. P. C.” The counsel also quoted V. D. Yesudasan V. Gurusamy, AIR 1957 Mad 555 which was relied upon by the Karen High Court but his decision does not seem to carry the matter any further.
(6) The learned Deputy Advocate-General has lastly attempted to make a reference to an F. I. R. which according to him was made against the petitioner. This F. I. R. according to the counsel was not produced before the Courts below. It has been argued that this F. I. R. would show that the allegations contained in the complaint in question are really related to the performance of their unlawful assembly. I am not quite sure if this Court while considering the question of the competency of he complaint in the absence of sanction on revision would be justified in permitting evidence by the respondent when the petitioner has led no evidence and that too without permitted rebuttal thereof.
(7) The question raised appears to me to be of considerable importance and should in my opinion be decided by a larger Bench. I would accordingly direct that papers be laid before my Lord the Chief Justice for placing this case before a larger Bench. Since the revision is pending for nearly a year it is desirable that its disposal by a larger Bench is expedited.
[The case was placed before the Division Bench consisting of Inder Dev Dua and Jindra Lal JJ., who delivered the final order on 24-8-64]
JUDGMENT OF DIVISION BENCH
(8) The circumstances in which this case has been placed before this Bench are given the
referring order and therefore need not be restated. The referring order may accordingly be considered to be a part of the present order.
(9) On behalf of the petitioner all the authorities mentioned in the referring order have been again cities in support of his contention and in addition our attention has been drawn to Aswini Kumar v. Kameshwar Deo 1963(2) Cri LJ 573 (Pat) a judgment by learned Single Judge of the Patna High Court and to Nagraj v. State of Mysore AIR 1964 SC 269. In the Patna decision the case law has been reviewed at length and the position has thus stated in the head-note:
“The question whether or not the act complained of in one purporting to be done in execution of his duty as a public servant is substantially one of fact to be determined with reference t the act complained of and the attendant circumstances. It is not every offence committed by a public servant that requirement sanction for prosecution under section 197(1), nor even every act done by his while he is actually engaged in the performance of his official duties; but if the act complained of his 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 infact a proper discharge of his duties because that would relay be a latter of defence on the merits which would have to be investigated at the trial and could not arise at the stage of he grant of sanction, which must precedes the institution of the prosecution. It is not always necessary hat the need for sanction under S. 197 is to be considered as soon as the complaint is logged with the allegations therein contained. The complaint may not disclose that he act constitution the offence was done or purported to be done in the discharge of official duty but facts subsequently coming to light on a police or judicial inquiry of trial may establish the necessity or not may have to be determined form stage to stage. The necessity may reveal itself in the course of the prosecution of the case.”
For this view of the law, reliance on the reported case was placed on the decision of the Federal Court Privy Counsel and the Supreme Court mentioned in the referring order and also on some other decision of the Patna and Calcutta High Courts. What had happened in the reported case would be sufficiently clear from the following portion of the head-note:
“It was complained that at certain election booth the Sub-Divisional Officer caught hold of the collar of the complaint and assaulted him with baton on his right elbow and then the Deputy Superintendent of Police also struck him on the left had with baton that thereafter the S. D. O. gave him another blow on the right side of the chest above the abdomen and abused him and snatched away the identity slips, the S. D. O. abused him and that thereafter the complainant was arrested and carried by the officers to the than tied with tight rope on a truck. The District Magistrate to whom the complaint was made instead of sending the case for inquiry to anybody, himself inquired format the accused officers certain facts in private without giving any opportunity to the complainant to explain the matter.
Held (i) that the arrest of ht complainant and carrying him to than may in certain circumstances be said to be acts connected with the official duties of two officers. But the other acts (assault and abuse) could have no reasonable connection with the official duties of these officers when there was no obstruction or resistance by the complainant.
(iii) that after the District Magistrate has examined the complainant on solemn affirmation under S. 200 and fixed a date for inquiry under S. 202 there was no justification for his making a private inquiry format the accused officers for the purpose of a decision regarding sanction. In the circumstances the sanction under S. 197 was not required in respect of the allegations of assault and abuse which constituted offences under Ss. 323, 500 and 504, Penal Code. The acts constituting offences under Ss. 342 and 129 might however be reasonably connected with the discharge of the official duties of the accused officers and action in respect of these offences could be taken only after sanction was obtained.
In Nagraj’s case. AIR 1964 Sc. 269 one Kenchappa has complained that the Sub-Inspector and another person had severely beaten one Thimma and that the Sub-Inspector when forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he had misbehaved wantonly fired form his revolver at Hanumanthappa and Shivlinagappa. After the preliminary enquiry into this complaint the Magistrate committed Nagraj to the Court of Session for trial. The case of Nagraj was that he was a Sub-Inspector of Police in the state of Mysore posted at Yagati, Kadur Taluk in September 1959. On 7-9-1959 he arrested on Gidda manufacturing illicit liquor and sent him with a constable to the police station. Thereafter he arrested Thimma who was supposed to be in league with Gidda in manufacturing liquor. When Thimma was being taken to the police station by the Sub-Inspector and a constable a crowd of about 20 or 30 persons rushed at them, surrounded them and the police officials attacked them and reused Thimma. Nagraj asked those people not to resort to violence but to remain calm. The people however did not pay heed to the advice there till one Kenchapa came. Upon this the Sub-Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Kenchappa. The people threatened him and the constable with dire consequences, if they left the place. Just then Kenchappa came and then these persons encircles the Sub-Inspector and the constable and the Sub-Inspector and the constable and the Sub-Inspector apprehending danger to his life and to that of the constable first fired his revolver in the air, and when the people pelted stones at him and grappled with him two shots went off from the revolver and injured two person. Hanumanthappa and Shvialinagappa. Kenchappa snatched the revolver leather bad with the ammunition pouch and the two mahazars prepared by the Sub-Inspector regarding the prohibition case. The people beat the Sub-Inspect and carried him to a pond saying that they would throw him into it. They were however released at there monstrance of one Basappa.
The person attacking Nagraj were also committed to the Court of Sessions for trial. The learned Session Judge made the reference for quashing the commitment of Nagraj as it appeared that the two cases arose out of one incident and the Sub-Inspector was at the time discharging him duties and while so doing he had to disperse and unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that therefore previous sanction of the Government under S. 197 of the Code was necessary Sanction under S. 132 of the Code was also considered necessary. The High Court observed that the Sessions Judge was wrong in practically accepting the version of the appellant that he was surrounded by a number of person who constituted an unlawful assembly and that they rescued Thimma and that therefore he was entitled to disperse the unlawful assembly by force. The Sub-Inspector of Police being removable from service by the Deputy Inspector General Police no question of sanction under S. 197 was considered to arise. The High court further observed that it was for the Sessions Judge to decide on facts established in the case whether S.132 was applicable. On appeal to the Supreme Court the question of sanction under S. 197 was not gone into because the appellant was not shown satisfactorily to be liable to be dismissed by the State Government alone. While dealing with the scope and effect of S. 132 Criminal Procedure Code, it was observed that to get the benefit of this section and to put off a clear decision on the question whether the officer’s conduct amounts to an offence or not the accused has to show(i)that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace; (ii)that such a assembly was commanded to disperse; (iii) that either the assembly did not disperse on such command or if no command had not to disperse ; and (iv) that in the circumstances he had used force against the members of such assembly.
The accused-officer has to establish these facts just in the same manner as any other accused has to establish any other exception he pleads in defence of his conduct in a criminal case. This decision is also authority for the view that if the allegations in the complaint do no indicate that the police officer had acted or purported to act under Ss. 127 and 128, Criminal Procedure Code and is so doing committed the offence complained of the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with the complaints against any the person. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Ss. 127 and 128. This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstance prima facie show it. A mere suggestion of the accused will not however be sufficient for the Court to hold that sanction was necessary.
If the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could not be prosecuted for the alleged offence without the sanction of the Government under S. 132, there may be some harassment of the accused by a frivolous complaint but the Court has not means to hold in those circumstances that the prosecution of the accused was in connection with such action because the complainant did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted for holding otherwise. The proceedings of the Court to proceed with the complaint as observed in this judgment emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. A contention was raised in the reported case that some of the persons alleged to have been prosecuted by the State and also committed by the Magistrate to the Sessions Court for trial and that this would prima facie establish that the contention of the accused-officer about the necessity for sanction under S. 132 was on the basis of evidence in that case and could not be legally taken into consideration for deciding the question raised in the case against the accused officer.
(10) After citing these authorities, the petitioner’s learned counsel has read out the complaint presented by his client and has submitted that on 26-2-1962, the respondent along with a huge armed police party consisting of several police officers and constabulary was present outside the Tehsil premises at Tarn Taran, when the counting of votes of Tarn Taran constituency, from which Shri Gurdial Singh Dhillon, the then speaker of the Punjab Vidhansabha, was also a candidate, was going on. The respondent being a close relation of Shri Partap Singh Kairon, had also been present on 25-2-1962 at the time of counting of votes of Sarhali constituency and had been watching the whole situation with anxiety ; he felt very much upset on seeing on 26-2-1962 a procession protesting against the wrongful declaration of Sarhali constituency election result in favour of Shri Kairon the then Punjab Chief Minister. Fearing the adverse effect of such a huge audience on the mind of the Election Commissioner, the respondent resolved to disperse the peaceful crowd near Tarn Taran Tahsil before the Election Commissioner’s arrival. A heavy volume of tear-gas shells were thrown by the police under the respondent’s direction and criminal force was also used in dispersing the crowd, and indeed the whole crowd dispersed in consequence of the use of tear-gas shells and criminal force. Master Tara Singh was also carried away under the instructions of the respondent from the gate of Tarn Taran Tehsil. In order to justify the wrongful, improper and uncalled for use of the tear-gas and violence on the crowd and indeed the whole crowd shells and criminal force. Master Tar Singh was also carried away under the instructions of the respondent from the gate of Tar Taran Tehsil. In order to justify the wrongful improper and uncalled for use of the tear-gas and violence on the crowd the respondent caused different doors window panes etc., of the Tehsil building to be smashed with the help of the police party under his control; and some wooden khokhas situated outside the Tehsil which were used as temporary offices by lawyers and petition-writers were also set on fire by the police at the instance of the respondent.
Shri Gurdial Singh Dhillon, are then Speaker of the Punjab Vidhansabha S. Prem Singh Lalpura, M. L. C. Shri Jagjt Singh Lyallpuri member of the Communist Party, Shri Harbhaajan Singh President Praja Socialist Party and Shri Harbans Singh Gujral Advocate along with some others according to the complaint witnessed this incident immediate information of the commission of the above mentioned offence by the respondent and this party was sent by Shri Gurdial Singh Dhillon to the Inspector General of Police and to the Governor of Punjab. According to complaint the respondent had committed offences under Ss. 427/ 435, Indian Penal Code, by setting fire to the wooden khokhas of lawyers and petition-writers and by having caused damage to the Tehsil building by getting broken window-panes and doors in support of his justification. In addition it is alleged acts mentioned therein with the object of fabricating evidence to be used injudicial or other proceeding before a public officer as evidence thereby committing offence under Ss. 193 and 195, Indian Penal Code. IT is vehemently contended before us the respondent disclosed in the complaint were not committed by him while acting or purporting to act in the discharge of his official duty and therefore no sanction wither under S. 197 or under S. 132 Criminal Procedure Code is required. The orders of the learned District Magistrate and the learned Additional Sessions Judge are described to be wrong in law and perverse.
(11) The respondent has on the contrary argued with equal vehemence and zeal that Ss. 197 and 132, Cr. P. c. are both were widely worded and they must be liberally construe so as to make the public servants ‘ protection effective. He has taken us through the decision of the Federal Court in Dr. Hori Ram Singh v. Emperor AIR 1939 FC. 43, which according to him is the basic authority and has also sought support from the ratio of the decision in Shreekanatiah Ramayya Munipally v. State of Bombay, (S) AIR 1955 SC 287, (S) AIR 1955 SC 308 and AIR 1948 PC 128 (S) AIR 1955 SC 309 and AIR 1948 PC 128. In addition he has cited Hariram v B. P. Sood, AIR 1957 Raj 230 and R. C. Pollard v. Satya Gopal Mazumdar AIR 1943 Cal 594 (SB). Besides he has attempted to seek aid from two first information reports Nos. 32 and 33 which according to him suggest a counter version of the alleged happening on 26-2-1962 and afford ample justification of the impugned order passed by the learned District Magistrate and the learned Additional Sessions Judge.
(13) On behalf of the petitioner it has however been pointed out that the copies of two first information reports had no been produced before the District Magistrate but were irregularity placed on the recorded of the learned Additional Sessions Judge in May 1962 and they purport to be attested by someone on behalf of the senior Superintendent of Police the post held by he respondent. It has also been suggested on behalf of the petitioner that the petitioner that the production of the first information reports by the respondent in these circumstances shows that he has adopted the aversion contained therein and therefore it is not case that the offence alleged against him had been committed by him while acting or purporting to act in the discharge of his official duty. It is emphasised that if the respondent establishes the version given in the two first information reports then that may be a defence not merits but it cannot serve as a bar to the initiation of the proceedings for his prosecution. It has however been pointed out that though the first information reports purport to have been lodged in February 1962 no action thereon has so far been taken suggesting thereby that these reports were presumably inspired by interested parties solely or mainly for the purpose of creating defence to be urged on behalf of the respondent.
(13) We have considered the arguments at the bar in the light of the allegations contained in complaint.
The principle applicable to the necessity of sanction under Ss. 132 and 197, Cr. P. c. is fairly settled and is scarcely open to any serious doubt ; the difficulty is sometimes confronted only in its application to individual cases. S. 197 has already been set out in the referring order. S. 132 may now be reproduced:
“132 No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court except with the sanction of the State Government and
(a) no Magistrate or police officer acting under this Chapter in good faith,
(b) no officer acting under S.131 in good faith compliance with a requisition under S. 128 or S. 130 and
(d) no inferior officer or soldier sailor or arraign in the armed forces doing any act in obedience to any order which he was bound to obey shall be deemed to have thereby committed an offence.
Provided that no such prosecution shall be instituted in any Criminal Court against any officer or soldier, sailor or airman in the armed forces except with the sanction of the Central Government.”
This section as is clear is confined to acts purporting to be done under Chapter IX of the Code which means under Ss. 127 to 131. Both these Ss. (132 and 197) are however couched in quite wide terms and broadly put their purpose obviously is to protect responsible public servants against the institution of possible vexations and mala fide criminal proceedings for offences alleged to have been committed by them while they were to have been committed by them while they were acting or purporting to act as such in the discharge of their official duty. IT is however not ever offence committed by a public servant which requires sanction under S. 197 nor even every act done by him while he is actually engaged in the performance of the official duty. It is however not every offence committed by a public servant which requires sanction under S. 197 nor even every act done by him while he is actually engaged in the performance of the official duty. It is only when the act complains of is directly concerned with his official duty so that if questioned it could be claimed to have been done by virtue of the office that sanction may be considered necessary and this would be so irrespective of whether or not it was a proper discharge of his duty because that question can only arise at the trial and not at the initial stage when the Court considers the necessity of sanction.
Some offences cannot by their very nature be regard as having been committed by public servant while acting or purporting to act in discharge of the official duty: offences like acceptance of bribe or cheating being some of them. To fall within the purview of he protection afforded by S. 197 the act must bear such reasonable connection with the discharge of the official duty that the public servant charged could by a reasonable but not a pretended or fanciful justification claim that he did the act in the course of the performance of his duty. Since the question of the necessity of sanction has to be decided judicially by the Court it has to proceed on the material properly and lawfully placed before it by applying it s judicial mind. If the allegations made in the complaint do not attract the protection of S. 197 or S. 132, r. P. C. then the Court cannot throw out the complaint for want of sanction merely because the accused-public servant might possibly successfully establish that the had done the act. complained of in the discharge or purported discharge of his official duty.
Of course it and when the court finds before it material justifying the necessity of sanction it would be its duty to stay its hands and look for the requisite sanction. In anticipation of the bare possibility of such material being placed before it by the accused, the Court cannot legitimately decline to entertain and proceed to deal with the complaint in accordance with law on the ground that absence of prior sanction under S. 197 prohibit sit from doing so vide AIR 1960 SC 268, where entire case law is reviewed: AIR 1960 Sc. 745 and Amrik Singh’s case (S) AIR 1955 SC 309.
Similarly if the allegations in the complaint do not attract the provisions of S. 132 the Court can have no ground for looking for the sanction and in its absence for refusing to entertain the complaint. The ration of Nagraj’s case AIR 1964 SC 269, would apply both to S. 143 and S. 197 which are sister provisions having identical object in view.
(14) Here it may appropriately be observed that ours is a legal State where rule of law reigns supreme. In criminal law, the rule of law implies a combination of the notion of equality before the law with the notion that the limits of the police power should be defined with reasonable rigidness. In our Republic every man whatever his rank condition or official status is subject to the law of the land. The police officials however high entrusted with the duty of enforcing law and order are authorised and bound not only to enforce it against the other delinquent members of the society but are under an equally solemn duty and obligation to enforce it against themselves as well inter words their duty to enforce law does not be nugatory and indeed destructive of the rule of law itself. Of course the rule of law must and does protect them form frivolous vexations and mala fide prosecutions for their honest and bona fide discharge of lawful duty and this is precisely what Ss. 132 and 197 are designed to achieve.
(15) Coming to the complaint in the case in hand the purport of which has been stated earlier the allegations contained therein plainly and reasonable read as a whole do not show or even suggest that the offence alleged to have been committed by the respondent was committed while he was acting or purporting to act in the discharge of his official duty; not do they show or suggest that the respondent committed the act alleged against him when he was purporting to act under Chapter IX, Cr. P. C. Indeed when pressed even the learned Assistant Advocate General had merely to fall back on the contention that if it can be visualised that the respondent may be able at the trial to urge in defence when called upon to do so that he had committed that act alleged while performing his duty then the Court should look for the requisite sanction. With this extreme contention we are unable to agree and needless to say that the various authoritative precedents do not support it.
(16) When the tow first information reports were relied upon by Shri Kwartra the learned Assistant Advocate General we asked him if the version contained therein was his client’s case. The question then naturally arose if the learned counsel was appearing for the State or for the State or for the respondent and on enquiry he stated from the bar that he had no direct instructions from the respondent but from his brief it appeared that the Government had decided to defend the respondent at State expense. He could not state from the bar that he had no direct instructions from the respondent but from his brief it appeared that the Government had decided to defend the respondent at State expense. He could not state if the contents of the first information reports represented the respondents plea; the counsel was apparently arguing on the basis of abstract legal principles. I may here be pointed out that the first information report no. 32 purporting to by one Shirr Surjit Singh, District Inspector appears to have been lodged at 5.25 p. m. on 26-2-1962, the time of the occurrence being 11/12 day time; and the first information report No. 33 purports to have been made the same day at 5:30 p.m. by Shri Principal Singh Grewal Magistrate, Ist Class Tarn. The learned Assistant Advocate General it may also be pointed out was not in a position to inform the Court as to what steps if any had so far been taken on these reports and what was the present position in regard to them.
(17) The order of the learned District Magistrate, shri Sunder Singh dated 9-4-1962 consists of 8/9 lines and it merely expresses his conclusion that the acts alleged were done when the respondent was acting or purporting to act in the discharge of his official duty, without giving any judicial reasons for the decision for the decision. There is absolutely no discussion either of the averments in the complaint or of various decisions of the Federal Court Privy Council and Supreme Court containing illuminating exposition of the law on this important subject. The injudicious brevity of the order unsupported by reasons for the conclusions gives it the complexion of a purely executive in contra-distinction with a judicial decision reflecting a high degree of probability of undue subservience of judicial mind to administrative expediency or convenience. This is another instance which also prominently brings out the emergent importance of separating the judiciary from the executive in this State an aspect to which I will advert later.
(18) The order dated the 16th Amy 1962 of the learned Second Additional Sessions Judge Shri Banwari All on revision is undoubtedly more detailed before whom the Public Prosecutor appearing for the State opposed the revision. The learned Judge appears to have initially stated the principle of law correctly but he seems have completely ignored the averments in the complaints before him and has contrary to those allegations observed that the acts complained of were directly connected with the official duties of the respondent. It may be pointed out that the learned Judge on revision has relied both on S. 132 and S.197 for ousting the Court’s jurisdiction. At one stage however he has in his judgment observed that when it is reasonably open to the accused public servant to urge in his defence the plea that he had committed the acts alleged while acting or purporting to act in the discharge of this official duties then the Court is required to stay its hand. This view may not in the face of ht authorities discussed earlier be completely supported for at the initial stage the Court cannot imagine the possible defence of he accused which it would be open to him to substantiate. Besides the acts on month existing material hardly be judicially found to fall within the respondent’s official duties an aspect completely ignored by the Court below referred to S. 195, Criminal Procedure Code as a bar in respect of the part of the allegations in the complaint but before us the respondent’s counsel has not relied on this section. The impugned order of the learned Additional Sessions Judge thus appears to us to be based on a complete misreading–if not in utter disregard or ignorance–of the allegations in the complaint and is therefore liable to be set aside. Cases like the present call for a judicious and conscientious approach by the Courts of law and justice which have to strike a proper balance between the protection of the public servants against frivolous and vexations prosecution and the protection of the public against high-handed mala fide and unlawful acts on the part of these entrusted with power which can only be exercise within the limits provided by the law conferring it. Needless to state that this test would also seem to govern the administrative approach to cases like the present if the citizens are not to lose faith in the sense of justice in our set-up.
(19) Before finally closing this judgment we cannot help observing that if we are to survive as a democratic nation governed by the Rule of Law our judicial tribunals must be independent and free from undue subservience to unjudicial administrative expediency and executive convenience and this independence must also be manifestly seen to be so. This aspect is at our present stage of progress of vital importance particularly in view of our past heritage and background and the fast expanding administrative activities as a welfare State which vest the executive officers in the discharge of their duties having direct impact on citizens rights must not be completely oblivious of the provisions of law and the Constitution and of the citizens rights thereunder. We have adverted to this aspect because when the District Magistrate felt that the case in had required prior sanction under S. 197 then he being also the executive head of the district a Deputy Commissioner might well have brought these facts to the notice of the Government for the purpose of considering the disability or otherwise of granting the requisite sanction. State it must never be forgotten according our Constitution is a legal State functioning whiting the bounds of law and as a welfare democratic State is weeded to the basic policy of protecting the citizens even against high-handed and arbitrary or mala fide acts of its own officials. The scheme of S. 197 postulates a complete governmental control of the enquiry into the conduct of public servant ant it would promote the cause of justice and healthy growth of our democratic set-up if in such cases the Government conscientiously and impartially uninfluenced by collateral considerations applies its mind to the question of desirability of proceeding against officers charged with serious allegations.
(20) In view of the foregoing discussion this revision succeeds and allowing the same we set aside the impugned orders of the learned District Magistrate and of the learned Additional Sessions Judge and remit the case back for further proceedings in accordance with law and in the light of the observations made above. It is desirable that a very senior Magistrate of judicial experience is deputed to dispose of the complaint. If at any stage it appears that sanction is necessary the court will of course stay its hands and the Government will consider the questions of granting or withholding sanction according to law. As enquiry into this complaint has already been unduly delayed it is fit and proper that now the proceedings are held expeditiously for delay may tend inter alia to cause evidence to disappear and memory to fade. The parties are directed to appear before the learned District Magistrate on 7-9-1964. The records may be sent to the trial Court with due dispatch.
(21) Revision allowed.