JUDGMENT
Manju Goel, J.
1. This petition under Section 482 Code of Criminal Procedure (in short `Cr.P.C.’) challenges the order dated 11.8.2003 whereby the learned Additional Sessions Judge (in short `ASJ’) set aside the order dated 19.1.2001 whereby a complaint against the petitioner was dismissed on account of want of sanction under Section 197 Cr.P.C. The learned ASJ while setting aside the order of Metropolitan Magistrate held that the question whether the sanction was required be left open and be decided after the conclusion of trial.
2. The facts leading to the present petition under Section 482 Cr.P.C. can be narrated briefly as under:
The respondent, Bal Kishan Kapoor, is the father of Rekha who died of burn injuries on 12.6.1993. On 13.6.1993, the respondent approached police station Hauz Khas for lodging an FIR. On 14.6.1993, the respondent moved an application for recording his statement and registering the FIR. The statement of the respondent was recorded by the petitioner being the concerned SDM. The respondent incriminated the father-in-law of the deceased along with some others. The FIR thereafter was registered on the basis of this statement. The respondent in his complaint under Section 218 IPC and under Section 466 IPC read with Section 201 of IPC and Section 498A/304B IPC alleged that in the FIR the name of the father-in-law of the deceased, whom he had incriminated in his statement, was not there and that the name of the father-in-law had been deliberately omitted in the FIR at the instance of the petitioner. He alleged in the complaint that the father-in-law and the petitioner had colluded with each other so that the father-in-law could be saved from the prosecution for the offences under Sections 498-A/304-B IPC. The respondent demanded prosecution of the petitioner under Sections 201, 218 & 466 IPC.
3. The petitioner raised the question of bar under Section 197 Cr.P.C. on the plea that the act constituting the offence was done by him in discharge of his official duties and, therefore, he could not have been prosecuted without the sanction from the Government. This plea was upheld by the Metropolitan Magistrate by an order dated 19.1.2001. On revision the order was set aside, as mentioned earlier, by the learned ASJ. It is submitted herein that the question of sanction under Section 197 Cr.P.C. cannot be kept in abeyance and that the question has to be decided at the earliest because the bar does not relate to conviction but relates to the very cognizance of the offence. Section 197 is extracted below for ready reference. Section 197 reads as under:
“197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting 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 who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of `cle 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”
4. As can be seen from the plain reading of the section the bar of Section 197 Cr.P.C. relates to the cognizance of an offence allegedly committed by a public servant. Therefore, the matter has to be examined at the very initial stage except in a case where the very question as to whether the act complained of was done in discharge of his official duty, was a subject matter of trial which can be governed by the rule given by the Hon’ble Supreme Court in the case of K. Kalimuthu v. State by DSP 2005 II AD (Cr.) SC 167 which inter alia held that the question whether sanction is necessary or not may have to be determined from stage to stage.
5. In the present case, however, the facts are totally unambiguous and the point can be examined without waiting for evidence to be led on this subject. The statement of the respondent was recorded by the petitioner in his capacity as the SDM of the concerned area. The SDM recorded the statement in the inquest proceedings under Sections 174 and 176 Cr.P.C. Recording was done in the hand of his Reader. Immediately on the statement being written, copy was given to the respondent. When, however, the statement was presented to the petitioner for his signature he found the mistake as the Reader had recorded SAAS and SASUR although the deponent had only talked about the mother-in-law (SAAS). Accordingly he scored out the words `Sasur’ and initialed the cutting. It is clear that the petitioner had recorded the statement in discharge of his official duties and also scored out the word `Sasur’ in his official capacity and in discharge of his official duty. Even if the act complained of is a mala fide act, the same will remain an act done in discharge of his official duty. Therefore, the bar under Section 197 Cr.P.C. will be attracted.
6. It was held by the Supreme Court in the case of State of H.P. v. M.P.Gupta reported as (2004) 2 SCC 349 that even if the public servant acted in excess of his duty and if there was any nexus between the act complained of and its official duty, he will be protected by Section 197 Cr.P.C. In Abdul Wahab Ansari v. State of Bihar and Anr. AIR 2000 SC 3187, a Circle Inspector under orders to use police force to remove encroachment directed opening of fire when some miscreants hurled stones and situation became out of control. The Supreme Court found that the act of opening fire was in exercise of official duty and that cognizance of the offences should not be taken without prior sanction of the competent authority. In the case of Gauri Shankar Prasad v. State of Bihar and Anr., AIR 2000 SC 3517, a Sub-Divisional Officer while carrying out the operation of removing of public encroachment was alleged to have entered the chamber of the complainant, abused him and taken him and his wife to police station was held to have acted with reasonable nexus with official duty necessitating sanction to prosecute.
7. The test for determining whether the provisions of Section 197 of the Code would come to the aid of an accused in a given case has been amply explained by the Supreme Court in the case of P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation, 2001 II AD (Cr.) SC 581. After examining a number of decisions on this aspect the conclusion arrived at was as under:
“Thus from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required.”
8. The protection given under Section 197 is to protect responsible public servant against institution of possible vexatious criminal proceedings for offences allegedly committed by them while they were acting or purporting to act as public servants. Hence use and interpretation of Section 197 has to be made to advance such objective of the section. The Supreme Court in State of H.P. v. M.P.Gupta (Supra) said “But once it is established that that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favor of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated.”
9. In the present case there is no scope for any doubt that the act complained of was done by the petitioner in discharge of his official duty. Accordingly, he is entitled to protection under Section 197 Cr.P.C. The impugned order of the learned ASJ is incorrect and needs to be set aside. I, therefore, find that it is a fit case in which the order of the Additional Sessions Judge impugned in this petition be set aside and the petitioner be discharged. The petition is accordingly allowed and the petitioner is discharged.