Supreme Court of India
AMAL KUMAR J HAversusSTATE OF CHHATISGARH & ANR.
- Citation
- 2016 INSC 340
- Decided
- 26 April 2016
- Disposal
- Appeal(s) allowed
- Bench
- V GOPALA GOWDA
Holding
The omission was intrinsically connected with the discharge of official duty, so Section 197 CrPC bars prosecution without prior sanction.
Summary
Amal Kumar Jha, the doctor-in-charge of a Primary Health Centre, was charged under IPC 304A for the death of a patient after he allegedly refused to provide a government jeep to transfer her to a district hospital. He sought discharge of the criminal proceedings under Section 197 of the CrPC, arguing that the omission was made in the discharge of his official duties and therefore required prior sanction. The trial court and the High Court rejected his application, holding that no sanction was needed. On appeal, the Supreme Court examined whether the refusal to provide the vehicle was intrinsically connected with his official duty and concluded that it was, making Section 197 protection applicable. Consequently, the Court held that prosecution without sanction is barred and set aside the lower courts' orders, allowing the appeal and quashing the criminal proceedings.
Issues considered
- The omission of providing a government vehicle by a public servant constitutes an act done in discharge of official duty for purposes of Section 197 CrPC.
- Whether sanction from the competent authority is required before prosecuting the accused under IPC 304A.
- Whether the criminal proceedings against the accused should be quashed in the absence of such sanction.
Legislation cited
- Code of Criminal Procedure, 1973s. 182, s. 197
- Indian Penal Code, 1860s. 304A
Subjects
Section 197 CrPCsanctionpublic servantofficial dutynegligenceIPC 304Aquashing of criminal proceedingsprimary health centregovernment vehicle
Judgment
[2016] 2 S.C.R. I 060
A AMAL KUMAR J HA
v.
STATE OF CHHATISGARH & ANR.
(Criminal Appeal No. 396 of2016)
B APRIL 26, 20 I 6
[V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
Code of Criminal Procedure, 1973 - ss. 17 3 and ./82 -
Protection from prosecution without sanction - Availability of -
Prosecution of doctor-in-charge of Primary Health Centre - u!s.
c 30./A !PC - Alleging him for not providing Government Vehicle for
shifting the patient from Primary Health Centre to Disrl'ict Hospital
- Application u!s . ./82 for quashing the criminal proceedings on
the ground that he could not have been prosecuted without sanction
uls. 197 - Dismissed - On appeal, held: The act of the accused was
D intrinsically concerned with discharge of his official duty - Hence
protection u!s. 197 from prosecution was ai,ailable to him -
Therefore, he can be prosecuted only when sanction is granted -
Criminal proceedings are liable to be quashed - Penal Code, 1860
- s. 304 A.
E Allowing the appeal, the Court
HELD: 1. In present case, the accused was acting iu
discharge of his official duty when he refused to provide the official
vehicle. Thus, the omission complained of, due to which offence
is stated to have been committed, was intrinsically connected
with discharge of official duty of the appellant, as such the
F
protection u/s. 197 Cr.PC from prosecution without sanction of
the competent authority, is available to the appellant. Thus, he
could not have been prosecuted without sanction. It would be for
the competent authority to consider the question of grant of
sanction in accordance with law. In case sanction is granted, only
G then the appellant can be prosecuted and not otherwise. [Paras 5
and 12] [1063-B; 1073-E-F]
Shreekantiah Ramayya Munipalli v. The State of Bombay·
1955 (1) SCR 1177; Matajog Dobey v. HC. Bhari 1955
(2) SCR 925; Bhappa Singh v. Ram Pal Singh & Ors.
H 1981 (Supp) SCC 12; State of Maharashtra v. Dr.
1060
AMAL KUMAR JHA v. STATE OF CHHATISGARH 1061
Budhikota Subbarao 1993 (3) SCC 339: 1993 (2) A
SCR 311; State of HP. v. MP. Gupta 2004 (2) SCC
349: 2003 (6) Suppl. SCR 541; State of Orissa & Ors.
v. Ganesh Chandra Jew 2004 (8) SCC 40: 2004 (3)
SCR 504; K. Kalimuthu 1: State by DSP 2005 (4) SCC
512: 2005 (3) SCR 1; Manorama Tiwari & Ors. v.
B
Surendra Nath Rai 2016 (1) SCC 594:2015 (9) SCR
436; State of Madhya Pradesh v. Sheet/a Sahai & Ors.
2009 (8) SCC 617:2009 (12) SCR 1048 ~relied on.
Case Law Reference
1955 (1) SCR 1177 relied on Paras
c
19~5. (2) SCR 925 relied on Para6
1981 (Supp) sec 12 relied on Para7
19~3. (2) SCR 311 relied on Para8
2003 (6) Suppl. SCR 541 relied on Para9
201)4 (3) SCR 504 relied on Para 10 D
2005 (3) SCR 1 relied on Para 11
2015 (9) SCR 436 relied on Para 12
2009 (12) SCR 1048 relied on Para 13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. E
396 of2016.
From the Judgment and Order dated 21.01.2011 of the High Court
ofChhatisgarh at Bilaspur in M. Cr. C. No. 2140 of2002.
Suresh C. Gupta, Birendra Kumar Mishra, Ms. Poonam A., Praneet
Ranjan,Advs. fortheAppellant. F
Aniruddha P. Mayee, Adv. for the Respondent.
The Judgment of the Court was delivered by
ARUN MISHRA, J. I. Leave granted.
2. The appeal arises out of the order dated 21.1.2011 passed by
G
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) Cr.P.C.
H
1062 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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
B
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 304-A !PC on 16. l 0.1996 in the court of
Judicial Magistrate First Class, Dharamjaigarh, as against appellantA.K.
Jha, Dr. A.M. Gupta and Aklu Ram. Charges under section 304-A were
c framed as against Dr. A.M. Gupta and the appellant. Both of them filed
an application for discharge under section 197 Cr.PC on the ground that
sanction to prosecute was required and they could not be prosecuted
without previous sanction. Vide order dated 27.6.2001 passed by the
Judicial Magistrate First Class, the application filed by Dr. A.M. Garg
had been allowed. However, the application filed by the appellant was
D
rejected on the ground that he was in-charge of the Primary Health
Centre and he failed to provide Government jeep for shifting the patient
Mrs. Runiabai to District Hospital, Raigad whereas the appellant himself
travelled in the jeep to attend an official monthly meeting at Raigad
which was District Headquarters. The Primary Health Centre did not
E have ambulance. Thus, negligence was attributed to the appellant for
not providing the said vehicle for shifting the patient to District Hospital,
Raigad. A revision was preferred against the rejection of prayer and
thereafter a petition was filed under section 482 Cr.P.C. before the High
Court, the same having been dismissed, the appellant is before us.
F 4. It was vehemently contended by learned counsel appearing on
behalf of the appellant that the allegations constituted failure to provide
official vehicle for shifting the patient to District Hospital, Raigad. As it
was an act in discharge of official duty, as such the sanction to prosecute
was necessary. Whereas the application filed by Dr. A.M. Gupta had
been allowed, the prayer made by the appellant has been illegally rejected.
G Learned counsel appearing on behalf of the State supported the order
and contended that it was negligence on behalf of the appellant in not
providing official vehicle to the patient due to which she could not be
shifted to District Hospital, Raigad and died. Thus, sanction was not
required in the instant case. -
H
AMAL.KUMAR JHA v. STATE OF CHHATISGARH 1063
[ARUN MISHRA, J.]
5. It is apparent from the facts of the instant case that the allegation A
against the appellant is of omission in discharge of official duty in not
providing Government vehicle for shifting the patient from Primary Health
Centre to District Hospital, Raigad; whereas he himself travelled in the
vehicle in question for attending the monthly official meeting at the District
Headquarters. In our considered opinion, it was an act or omission in
B
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 connectedwith his official duty, thus sanction is required
for prosecution as provided under section 197(1) Cr.PC. It is not disputed
that no ambulance was provided to the Primary Health Centre. The c
question arises whether omission to provide the official jeep which was
not meant for patients, wou Id 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
D
performance of his official duty. When such is the case, sanction is
required. This Court in Shreekantiah Ramayya Munipalli v. The State
ofBombay [ 195 5 (I) SCR 11 77] has observed thus :
"Now it is obvious that if section 197 of the Code of Criminal
Procedure is construed too narrowly it can never be applied, for
of course it is no part of an official's duty to commit an offence E
and never can be. But it is not the duty we have to examine so
much as the act, because an official act can be performed in the
discharge of official duty as well as in dereliction ofit The section
has content and its language must be given meaning. What it
says ts - F
"when any public servant ..... 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 ...... "
We have therefore first to concentrate on the word 'offence'.
G
Now an offence seldom consists of a single act. It is usually
composed of several elements and, as a rule, a whole series of
acts must be proved before it can be established. In the present
case, the elements alleged against the second accused are, first,
that there was an "entrustment" and/or "dominion"; second, that
H
1064 SUPREME COURT REPORTS [2016] 2 S.C.R.
A the entrustment and/or dominion was "in his capacity as a public
servant"; third, that there was a "disposal"; and fourth, that the
disposal was "dishonest". Now it is evident that the entrustment
and/or dominion here were in an official capacity, and it is equally
evident that there could in this case be no disposal, lawful or
otherwise, save by an act done or purporting to be done in an
B
official capacity. Therefore, the act complained of, namely the
disposal, could not have been done in any other way. If it was
innocent, it was an official act; if dishonest, it was the dishonest
doing of an official act, but in either event the act was official
because the second accused could not dispose of the goods save
c by the doing of an official act, namely officially permitting their
disposal; and that he did. He actually permitted their release and
purported to do it in an official capacity, and apart from the fact
that he did not pretend to act privately, there was no other way in
which he could have done it. Therefore, whatever the intention
or motive behind the act may have been, the physical part of it
D
remained unaltered, so if it was official in the one case it was
equally official in the other, and the only difference would lie in
the intention with which it was done: in the one event, it would be
done in the discharge of an official duty and in the other, in the
purported discharge of it.
E 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
F incomplete without proving the official act.
We therefore hold that section 197 of the Code of Criminal
Procedure applies and that sanctim1 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."
G
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 :
"ls the need for sanction to be considered as soon as the complaint
is lodged and on the allegations therein contained? At first sight,
H
AMAL KUMAR JHA v. STATE OF CHHATISGARH 1065
fARUN MISHRA, J.l
it seems as though there is some support for this view in Hori A
Rams 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 instance at the earliest stage of institution. Varadachariar, J.
also states that the question must be determined with reference
B
to the nature of the allegations made against the public servant in
the criminal proceeding. But a careful perusal of the later parts
of their judgments shows that they did not intent to lay down any
such proposition. Sulaiman, J. refers (at page 179) to the
prosecution case as disclosed by the complaint or the police report
and he winds up the discussion in these words: "Ofcourse, ifthe c
case-as put forward fails or the defence establishes that the act .
purported to be _done is in execution of duty, the proceedings will
have to be dropped and the complaint dismissed on that ground".
The other learned Judge also states at page 185, "At this stage
we have only to see whether the case alleged against the appellant
D
or sought to be proved against him relates to acts done or·
purporting to be done by him in the execution of his duty". It
must be so. The question may arise at any stage of the
proceedings. The complaint may not disclose that the act
constituting the offence was done or purported to be done in the
discharge of official duty; but facts subsequently coming to light E
on a police or. judicial inquiry or even in the course of the
prosecution evidence at the trial, may establish the necessity for
sanction. Whether sanction is necessary or not may have to be
determined from stage to stage. The necessity may reveal itself
in the course of the progress of the case."
F
In Bhappa Singh v. Ram Pal Singh & Ors. 1981 (Supp) SCC 12
this Court considered the grant of protection to an officer for official act
done in good faith thus :
"6. In view of the circumstances mentioned in the last paragraph,
there is little room for doubt that the Customs party was not out to G
commit dacoity either in the jewellery shop or the chaubara, that
they also committed no trespass into either of those places, but
that the purpose of the raid was to find out if any illegal activity
was being carried on therein. The presence of two licensed Gold-
smiths in the chaubara speaks volumes in that behalf. It may
H
. 1066 SUPREME COURT REPORTS [2016] 2 S.C.R.
A further be taken for granted that the Customs party was
manhandled before they themselves resorted to violence, because
there was no reason forthem to open fire unless they were resisted
in the carrying out of the raid peacefully.
7. Even though what we have just stated is a general prima facie
B 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
c not feel inclined to upset the impugned order, even ihough 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."
In State of Maharashtra v. Dr. Budhikota Subbarao 1993 (3)
D 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
E of his official duty', be understood? What does it mean? 'Official'
according to dictionary, means pertaining to an office. And official
act or official duty means an act or duty done by an officer in his
official capacity. Jn S.B. Saha v. MS. Kochar ( 1979) 4 SCC 177
it was held: (SCC pp. 184-85, para 17)
F "The words 'any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his
official duty' employed in Section 197(1) of the Code, are
capable of a narrow as well as a wide interpretation. If these
words are construed too narrowly, the section will be rendered
altogether sterile, for, 'it is no part of an official duty to commit
G an offence, and never can be'. In the wider sense, these words
will take under theirumbrella every act constituting an offence,
committed in the course of the same transaction in which the
official duty is performed or purports to be performed. The
right approach to the import of these words lies between these
H two extremes. While on the one hand, it is not every offence
AMAL KUMAR JHA v. STATE OF CHHATISGARH 1067
[ARUN MISHRA, J.]
committed by a public servant while engaged in the A
performance of his official duty, which is entitled to the
protection of Section 197(1), an act constituting an
offence, directly and reasonably connected with his
official duty will require sanction for prosecution under
the said provision."
B
Use of the expression, 'official duty' implies that the act or omission
must have been done by the public servant in course of his service
and that it should have been in discharge of his duty. The section
does not extend its protective cover to every act or omission done
by a public servant in service but restricts its scope of operation
to only those acts or omissions which are done by a public servant c
in discharge of official duty. In P. Arulsll'ami v. State of Madras
( 1967) 1 SCR 201 this Court after reviewing the authorities right
from the days of Federal Court and Privy Council held:
" ... It is not therefore every offence committed by a public
servant that requires sanction for prosecution under Section D
197(1) of the Criminal Procedure Code; nor even every act
done by him while he is actually engaged in the performance
of his official duties; but ifthe act complained of is 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. It is the quality of the act that is E
important and if it falls within the scope and range of his official
duties the protection contemplated by Section 197 of the
Criminal Procedure Code wi II 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 F
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
G
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 H
1068 SUPREME COURT REPORTS [2016] 2 S.C.R.
A 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 liberal aud wide construction so far its official natnre
is concerned. For instance a public servant is not entitled
B
to indulge in criminal activities. To that extent the section
has to be construed narrowly and in a restricted manner.
But once it is established 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
c of the section in favour of the public servant. Otherwise the entire
purpose of affording protection to a pub Iic servant without sanction
shall stand frustrated. For instance a police officer in discharge of
duty may have to use force which may be an offence for the
prosecution of which the sanction may be necessary. But if the
same officer commits an act in course of service but not in
D
discharge of his duty then the bar under Section 197 of the Code
is· not attracted. To what extent an act or omission performed by
a public servant in discharge of his duty can be deemed to be
official was explained by this Court in Matajog Dubey v. HC.
Bhari AIR 1956 SC 44 thus:
E "[T]he offence alleged to have been committed (by the
accused) must have something to do, or must be related in
some manner with the discharge of official duty ... there
must be a reasonable connection between the act and
the discharge of official duty; the act must bear sucft
F relation to the duty that tfte accused could lay a
reasonable (claim) but not a pretended or fanciful claim,
that fte did it in the course of the performance of his
duty."
(emphasis supplied)
G lfon facts, therefore, it is prima facie found thatthe act oromission
for which the accused was charged had reasonable connection
with discharge of his duty then it must be held to be official to
which applicability of Section 197 of the Code cannot be disputed."
In State of HP. v. MP. Gupta 2004 (2) SCC 349 this Court in
regard to official duty has laid down thus :
H
AMAL KUMAR JHA v. STATE OF CHHATJSGARH 1069
[ARUN MISHRA, J.]
"11. Such being the nature of the provision, the question is how A
shou Id 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 the dictionary, means pertaining to an office, and
official act or official duty means an act or duty done by an officer
B
in his official capacity."
8. In State of Orissa & Ors. '" 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: c
"7. The protection given under Section 197 is to protect responsible
public servants against the institution of possibly vexatious criminal
proceedings foroffences 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 D
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 E
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 connection between
the act and the performance of the official duty, the excess will
not be a sufficient ground to deprive the public servant of the F
protection. The question is not as to the nature of the offence
such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant,
but whether it was committed by a public servant acting or
purporting to act as such in the discharge of his official capacity. G
Before Section 197 can be invoked, it must be shown that the
official concerned was accused of an offence alleged to have
been committed by him while acting or purporting to act in the
discharge of his official duties. It is not the duty which requires
examination so much as the act, because the official act can be
H
1070 SUPREME COURT REPORTS [2016] 2 S.C.R.
A performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of
the official duties of the public servant concerned. It is the quality
of the act which is important and the protection of this section is
available ifthe act falls within the scope and range of his official
duty. There cannot be any universal rule to determine whether
B
there is a reasonable connection between the act done and the
official duty, nor is it possible to lay down any such rule. One safe
and sure test in this regard would be to consider ifthe omission or
neglect on the part of the public servant to commit the act
complained of could have made him answerable for a charge of
c dereliction of his official duty. If the answer to this question is in
the affirmative, it may be said that such act was committed by the
public servant while acting in the discharge of his official duty and
there was every connection with the act complained of and the
official duty of the public servant. This aspect makes it clear that
the concept of Section 197 does not get immediately attracted on
D
institution of the complaint case."
9. ln K. Kalimuthu v. State by DSP 2005 (4) SCC 512 this Court
has observed that official duty implies that an act or omission must have
been done by the public servant within the scope and range of his official
duty for protection. This Court has laid down thus:
E
"12. If on facts, therefore, it is prima facie found that the act or
omission for which the accused was charged had reasonable
connection with discharge of his duty then it must be held to be
official to which applicability of Section 197 of the Code cannot
be disputed.
F
xxxxx
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
G 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." ·
10. In Manoramu Tiwari & Ors. v. Surendra Nath Rai 2016 ( 1)
H SCC 594, it was held that the appellants were discharging public duties
AMAL KUMAR JHA v. STATE OF CHHATISGARH 1071
[ARUN MISHRA, J.]
while performing surgery in a Government hospital, hence prosecution A
was not maintainable without sanction from the State Government.
I I. Jn State of Madhya Pradesh v. Sheet/a Sahai & 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 B
act in their official capacity but even where public servants purport
to act intheir official capacity, the same would attract the provisions
of Section 197 of the Code of Criminal Procedure. It was so held
by this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC
584. The question came up for consideration before this Court in c
Matajog Dobey v. H C. Bhari AIR 1956 SC 44 wherein it was
held: (AIR pp. 48-49, para 17)
"17. Slightly differing tests have been laid down in the decided
cases to ascertain the scope and the meaning of the relevant
words occurring in Section 197 of the Code; 'any offence alleged D
to have been committed by him whHe acting or purporting to
act in the discharge of his official duty'. But the difference is
only in language and not in substance.
The offence alleged to have been committed must have something
to do, or must be related in some manner, with the discharge of E
official duty. No question of sanction can arise under Section 197,
unless the act complained of is an offence; the only point to
determine is whether it was committed in the discharge of official
duty. There must be a reasonable connection between the. act
and the official duty. It does not matter even if the act exceeds ·
. what is strictly necessary for the discharge of the duty, as this F
question will arise only ai a later stage when the trial proceeds on
the merits.
What we must find out is whether the act and the official duty are
so interrelated that one can postulate reasonably that it was done
by the accused in the performance of the official duty, though G
possibly in excess of the needs and requirements of the situation.
In Hori Ram Singh v. Crown 1939 FCR 159 Sulaiman, J. observes:
'The section cannot be confined to only such acts as are done
by a public servant directly in pursuance of his public office,
though in excess of the duty or under a mistaken belief as to H
1072 SUPREME COURT REPORTS [2016] 2 S.C.R.
A the existence of such duty. Nor is it necessary to go to the
length of saying thatthe act constituting the offence should be
so inseparably connected with the official duty as to form part
and parcel of the same transaction.'
The interpretation that found favour with Varadachariar, J. in the
B same case is stated by him in these terms at p. 56:
'There must be something in the nature of the act complained
o.fthat attaches it to the official character of the person doing
it.'
In affirming this view, the Judicial Committee of the Privy Council
c observed in Gill case : AIR 1948 PC 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
D that, what he does, he does in virtue of his office.'
Hori Ram case 1939 FCR I 59 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
E appears to us unduly to narrow down the scope of the protection
afforded by Section 197 of the Criminal Procedure Code 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."
F
60. The said principle has been reiterated by this Court in B.
Saha v. MS. Kochar (l 979) 4 SCC 177 in the following terms:
(SCC pp. 184-85, paras 17-18)
"17. The words 'any offence alleged to have been committed
G by him while acting or purporting to act in the discharge of his
official duty' employed in Section 197(1) of the Code, are
capable of a narrow as well as a wide interpretation. If these
words are construed too narrowly, the section will be rendered
altogether sterile, for, 'it is no part ofan official duty to commit
an offence, and never can be'. In the wider sense, these words
H
AMAL KUMAR JHA v. STATE OF CHHATISGARH 1073
[ARUN MISHRA, J.]
will take under their umbrella every act constituting an offence, A
committed in the course of the same transaction in which the
official duty is performed or purports to be performed. The
right approach to the import of these words lies between these
two extremes. While on the one hand, it is not every offence
committed by a public servant while engaged in the
B
perfor.mance of his official duty, which is entitled to the
protection of Section 197(1 ), an act constituting an offence,
directly and reasonably connected with his official duty will
require sanction for prosecution under the said provision. As
pointed out by Ramaswami, J. in Baijnath v. State of MP.
AIR 1966 SC 220 : (AIR p. 227, para 16) c
'I 6 . ... It is the quality of the act that is important, and if it
falls within the scope and range of his official duties the
protection contemplated by Section 197 of the Criminal
Procedure Code will be attracted'.
/8. ln sum, the sine qua non for the applicability of this section D
is that the offence charged, be it one of commission or omission,
must be one which has been committed by the public servant
either in his official capacity or under colour of the office held
by him." (emphasis in original)"
12. In view of the aforesaid discussion, it is clear that the omission E
complained of due to which offence is stated to have been committed,
was intrinsically connected with discharge of official cjuty of the appellant,
as such the protection under section 197 Cr.PC from prosecution without
sanction of the competent authority, is available to the appellant. Thus,
he could not have been prosecuted without sanction. It would be forthe F
competent authority to consider the question of grant of sanction in
accordance with law. In case sanction is granted only then the appellant
can be prosecuted and not otherwise. Resultantly, the impugned orders
are set aside, the appeal is allowed.
Kalpana K. Tripathy Appeal allowed. G
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