Holding

The seizure of the scooter was a bona‑fide act in purported exercise of powers under the Madhya Pradesh Land Revenue Code and therefore attracted immunity under CrPC s.197, rendering the complaint non‑maintainable without prior sanction.

Summary

The appellant, a Tehsildar, was ordered by the District Collector to recover lease money from the respondent and, after issuing a demand notice, seized the respondent's scooter when the latter objected to the demand. The scooter was auctioned and the respondent filed a complaint under IPC s.379 alleging theft. The Tehsildar claimed immunity under CrPC s.197, arguing the seizure was done in the discharge of official duty. The trial magistrate rejected the claim, the Sessions Court upheld it, but the High Court set aside the Sessions order, holding the seizure was not connected with the Tehsildar's duties and that the invalid attachment order negated s.197 protection. The Supreme Court held that the seizure was a bona‑fide act exercised under the Madhya Pradesh Land Revenue Code, thus falling within s.197, and that no court can take cognizance without prior sanction, which was absent. Consequently, the appeal was allowed, the High Court order set aside and the Sessions Court order affirmed.

Issues considered

Whether the seizure and auction of the respondent's scooter by the Tehsildar was done in discharge of official duty attracting immunity under CrPC s.197.
Whether the legality of the attachment order under the Madhya Pradesh Land Revenue Act affects the applicability of s.197.
Whether a criminal complaint under IPC s.379 can be entertained without prior sanction of the competent authority.

Legislation cited

Subjects

Section 197 CrPCofficial dutypublic servant immunityseizure of propertylease money recoveryMadhya Pradesh Land Revenue ActIPC 379criminal complaintjurisdictionsanction requirement

Judgment

N.K. OGLE A
v.
SANWALDAS @ SANWALMAL AHUJA

MARCH 18, 1999

B
[G.B. PATIANAIK AND M.B. SHAH, iJ.)

Criminal Procedure Code, 1973-Section 197-lmmunity contemplated
under-Applicability of-District Collector ordered the Tehsildar to recover
certain sum of lease money from R-Telisildar registering the matter and ·
issued a DemQlld Letter to R-R did not pay, instead he visited the Tehsildar C
by visiting his office on his scooter and objected to the issue of Demand
letter-Tehsildar seized the scooter Qlld sold the same in auctiort-R filing a
complaint under Section 379 lPC Qlld getting the process issued from the
Magistrate-Held Such an act on the part of Tehsildar was a bona fide act
in purported exercise of power under M.P. Land Revenue Code-Hence, in D
the absence of SQ/lction under Section 197 CrPC, compliant filed by R against
( the Tehsildar was not maintainabl~urther, High Court erred ill examining
the legality of the order of attachment of the Collector Qlld in holding otherwise
on that ground-f'enal Code, 1860, Section 379-Complaint against Tehsildar
without Sanction under Section 197 CrPC-Maintainability-M.P. Land E
Revenue Code, 1959.

The appellant, a Tehsildar received an order from collector to collect
certain lease money from the respondent. The Tehsildar issued a demand
letter to respondent. The respondent later came in his scooter to the office
.....f
of Tehsildar and objected to the legality of the order of issuing the demand p
letter. The Tehsildar seized the scooter and immediately reported to the
Collector. The respondent, thereafter, filed a complaint under Section 379
IPC against the Tehsildar alleging that the Tehsildar had forcibly kept his
scooter while he had gone to his office. After the seizure of the scoter, the
same was auctioned by the Tehsildar. The Judicial Magistrate on the basis
of the complaint of the respondent took cognizance of the same and issued G
process against Tehsildar. The process was challenged by the Tehsildar on
the ground that the act complained of were in discharge of his official duty
and therefore, in the absence of sanction under Section 197 CrPC, the
Court had no jurisdiction to entertain the complaint. It was rejected by
the Magistrate on the ground that the acts complained of had no rational H
1233
:::r
,, __ _

..'
1234 SUPREME COURT REPORTS [1999) 1 S.C.R.
A nexus with the discharge of official duty of Tehsildar. On Revision, the
Sessions Court reversed the finding of the Magistrate holding that the acts
complained of were directly connected with the performance of his official
duties. The respondent thereafter challenged the order of the Sessions
Judge in Revision before the High Court under Section 482 CrPC. The
B High Court set aside the order of the Sessions Court on the ground that
the acts complained of did not .appear to relate with the responsibility of
..
the post of Tehsildar, and hence, the immunity of Section 197 CrPC was
refused. However, in coming to the above conclusion ~he High Court
examined the provisions of the M.P. Land Revenue Code and held that the
order of attachment of the Collector was not in accordance with law and
C therefore, any purported action taken by Tehsildar on the basis of such
invalid order would not give him protection of Section 197 CrPC. Hence
this appeal.

Allowing the appeal, this Court

D HELD : 1. Before coming to a conclusion whether the provisions of
Section 197 CrPC will apply, Court must come to a conclusion that there
is a reasonable connection between the act complained of and the discharge ,,
of official duty; the act bear such relation to the duty that the accused could
lay a reasonable claim that he did it in the course of the performance of his
E duty. Therefore, in the present case the conclusion is inescapable that the
act of the Tehsildar in seizing the scooter of the respondent was in dis-
charge of his official dutywhich he was required to do in purported exercise
of the power under the M.P. Land Revenue Code on the basis of the order
issued by the Collector for collecting the lease money from the respondent
and' the said act cannot be said to be a pretended or fanciful claim on the
F part of the Tehsildar. The High Court committed error at that stage in
examining the flaw or legality of the order of attachment issued by the
Tehsildar. Therefore, the acts compfained of by the respondent in his
complaint under Section 379 IPC against the Tehsildar has been com-
mitted in discharge of the official duty of such Tehsildar and no cognizance
G can be taken by any court without prior sanction of the Competent
Authority. Admittedly, there has been no such sanction of the Competent
Authority. [1239-H; 1240-A-F]

Matajog Dobey v. H.C. Bhari, [1955) 2 SCR 925 and Suresh Kumar
Bhaikamchand Jain v. Pandey Ajay Bhushan & Ors., [1998) 1 SCC 205,
H followed.

-.
~--

N.K OGLE v. SANWALDAS @ SANWALMAL AHUJA [PATIANAIK, J.] 1235

B. Saha and Ors. v. M.S. Kochar, (1974] 4 SCC 177; B.S. Sambhu v. A
T.S. Krishnaswamy, (1983] 1 SCC 11 and Pukhraj v. State of Rajasthan &
Anr., [1973] 2 SCC 701, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Api:eal No.
288 of 1993.
B
From the JiJdgrnent and Order dated 3.12.91 of the Madhya Pradesh
High Court in M.Crl.C. No. 2128 of 1990.

U.N. Bachawat, Kamakshi Singh Mehelwal, Naveen Kumar Singh
and Uma Nath Singh for the Appellant. C

Ms. S.B. Upadhyay, for the Respondent.

The Judgment of the Court was delivered by

PAITANAIK, J. The appellant was Tehsildar in Damoh. The District D
Collector had ordered by sending a Revenue Collection Certificate to
collect lease money amounting to Rs.4,653 from Sanwaldas, respondent
herein. The Tehsildar on receipt of the information from the office of the
Collector registered the matter and passed an order for issuance of
Demand Letter. Under the said Demand Letter the initial date had been
fixed as 14.11.1989 which was, however, changed later on to 28.11.89. The E
Tehsildar in his order-sheet Exhibit D mentioned that the Demand Letter
has been received back after being duly served on the respondent Sanwal-
das. On 4.12.89 an order of attachment warrant was passed. On 21.12.89
respondent Sanwaldas came to the office of Tehsildar and objected to the
legality of the order of issuing the Demand ·Letter. This fact was immedi- p
ately intimated by the Tehsildar to the District Magistrate on the same day.
Respondent Sanwaldas then filed a complaint alleging that while he had
gone to the Tehsil Office on his scooter the Tehsildar forcibly kept the
Scooter, and as such, has committed an offence under Section 379 of the
Indian Penal Code. It may be stated that after the seizure of the scooter
the Tehsildar directed for auctioning of the same and the scooter was G
ultimately auctioned on 22.1.90. On the basis of the complaint filed by \
respondent Sanwaldas the learned Judicial Magistrate First Class, Damoh,
took cognizance of the offence and directed issuance of process against
Tehsildar. Tehsildar appeared before the Magistrate op. 2.3.90 and filed an
application raising objection to the order taking cogniz~e of the offence H
1236 SUPREME COURT REPORTS [1999] 1 S.C.R.
A ·on the ground that the acts complained of was in discharge of the official ,..
duty of the Tehsildar and, therefore, in the absence of sanction under
Section 197 of the Code of Criminal Procedure the Court will have no
jurisdictioi:i to entertain the complaint. The learned Magistrate, however,
rejected the said application filed by the Tehsildar by its order dated 7th
B March, 1990 on a finding that the acts complained of have no rational nexus
with the discharge of official duty of the Tehsildar and, therefore, immunity
under Section 197 Cr.P.C will not be attracted. This order of the Magistrate
was assailed in Revision by the Tehsildar in the Court of Sessions Judge,
Damoh which was registered as Criminal Revision No. 17/90. By judgment
dated 24.4.90 the learned Sessions Judge came to the conclusion that the
C alleged act of the Tehsildar is directly connected with the performance of
his official duties and, therefore, the claim of the applicant regarding
immunity under Section 197 Cr.P.C. can neither be said to be pretended
nor fanciful. The Sessions Judge came to the conclusion that the Tehsildar
cannot be prosecuted for the acts complained of without prior sanction of
D the Government as required under Section 197 of the Code of Criminal
Procedure. Accordingly, the order of the Magistrate was set aside and the
complaint was held to be not maintainable. Against the aforesaid order of
the learned Sessions Judge the complainant moved the High Court invok-
ing the jurisdiction of the Court under Section 482 of the Code of Criminal
Procedure. The High Court by the impugned judgment dated 3.12.91 being
E of the opinion that the acts complained of in fact do not appear to relate
with the responsibility of the post of Tehsildar and Tehsildar has mis- used
his powers, interfered with the order of Sessions Judge and held that the
provisions of Section 197 of the Criminal Procedure has no application to
the case in hand. In coming· to the aforesaid conclusion the High Court
F examined the provisions of the M.P. Land Revenue Act and came to hold
that the order of attachment of the Collector was not in accordance with
law, and therefore, any purported action taken by Tehsildar on the basis
of such invalid order will not give him protection of Section 197 of the Code
of Criminal Procedure. According to the High Court the Tehsildar must
be held to have mis-used his post or the rights associated with the post
G and, therefore, question of taking sanction from the Government before
initiating any criminal proceeding does not arise. It is this order of the High
Court which is being assailed in the present appeal.

Mr. Bachawat, learned senior counsel appearing for the appellant
H contended that the Court while examining the question of applicability of
N.K.OGLEv. SANWALDAS@SANWALMALAHUJA [PATIANAIK,J.] 1237

Section 197 Cr.P.C. in a given case is required to find out whether the acts A
complained of constituting the alleged offence can be said to have been
done in exercise of the powers of the public officer or in purported exercise
of the power of the said officer and if the answer is in .the affirmative then
the provisions of Section 197 Cr. P.C. would get attracted. According to
Mr. Bachawat, if it is found that the concerned public officer has acted B
bona fide in exercise of or in purported exercise of power conferred upon
him and not on the basis of a pretended plea, then the provisions of
Sub-section (1) of Section 197 of the Code of Criminal Procedure would
apply, even if such officer has done something in excess than what is
provided for. According to Mr. Bachawat on the findings of the High Court
the acts complained of having been done .in exercise of the powers under C
the provisions of M.P.Land Revenue Act which order of the Tehsildai in
turn was issued pursuant to the order of the District Magistrate, Damoh
for recovering the lease money from the respondent, the High Court
committed error in examining the legality of such. order and then coming
to a conclusion on the question about the applicability of Section 197 D
Cr.P.C. In support of this contention reliance was placed on the Constitu-
tion Bench decision of this Court in the case of Matajog Dobey v. H.C.
( Bhari, 1955 (2) SCR 925 and a recent decision of this Court in the case of
Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Others,
(1998) 1 sec 205.
E
Mr. Upadhyay, learned counsel appearing for the respondent on the
other hand contended, that the acts of the Tehsildar which was the subject
matter of the complaint filed by the respondent cannot be said to have
reasonable nexus with the duties of the Tehsildar, and therefore, for such
illegal acts the protection provided under Section 197 Cr.P.C. will not p
apply. According to Mr. Upadhyay, the plea of the Tehsildar that he
>
forcibly retained the scooter in exercise of his power under the provisions
of M.P. Land Revenue Act is nothing but a pretended and fanciful plea
and consequently the High Court was fully justified in recording the
findings that the provisions of Section 197 will have no application to the
case in hand. In support of this contention reliance was placed on the G
decision of this Court in the case of B. Saha and Others v. M.S. Kochar,
[1979) 4 SCC 177 and in the case of B.S. Sambhu v. T.S. Krishnaswamy,
(1983) 1 SCC 11 and in the case of Pukhraj v. State of Rajasthan and
Another, (1973) 2 SCC 701. According to Mr. Upadhyay the legislative
intent engrafted behind Section 197 of the Code of Criminal Procedure is H
1238 SUPREME COURT REPORTS [1999) 1 S.C.R.
A to prevent a public servant from being unnecessarily harassed. But if an
authority misuses his power as found by the High Court in the present case
and such protection is given then the very purpose for which Section 197
was engrafted on the Statute Book would get frustrated.

Bearing in mind the rival submissions at the bar and examining the
B allegations made in the complaint petition we are pefS'Jaded to agree with
the submissions made by Mr. Bachawat, learned senior counsel appearing
for the appellant. Undisputedly the appellant at the relevant time was the
Tehsildar and the District Collector had passed an order for collecting the
lease money of Rs.4,653 from the respondent Sanwaldas. On the basis of
C the aforesaid order of the District Collector the Tehsildar, the present
appellant, appears to have registered the matter in his Court and ordered
for issuance of the Demand Letter and infact such a Demand Letter had
been issued and had been duly served on the respondent and yet the
respondent had not made the payment. It further appears that as no steps
D had been taken by the respondent to pay the money an order of attachment
warrant was issued on 4.12.89 and it is then on 21.12.89 when the respon-
dent was available with the scooter in the Tehsil office the said scooter was
seized and it is such seizure and retention of the scooter of the respondent
which is the gravamen of the allegation of offence under Section 379 in the
complaint case. Such action of the Tehsildar in our considered opinion
E cannot but be a bona fide act on the part of the Tehsildar in purported
exercise of the power under the M.P. Land Revenue Act.

In Saha's case (supra) what this Court had held is that there must
be direct and reasonable nexus between the offence committed and the
F discharge of the official duty. Charge of dishonest misappropriation or
conversion of goods by customs authority which they had seized was held
not to be in discharge of official duty and as such Section 197 has no
application as misappropriation cannot be said to be in discharge of official
duty. We see no reasons how the aforesaid decision is of any application
in the present case. It is nobody's case that the Tehsildar forcibly retained
G the scooter and used it for his own purpose. On the other hand the scooter
after being seized was put to public auction for recovery of the legal dues
of the government as against the respondent.

In Sambhu's case (supra) the Court was examining as to whether a
H defamatory language used by a judge to an advocate can be said to be in
l N.K. OGLE v. SANWALDAS@ SANWALMALAHUJA [PAITANAIK, J.] 1239
~ discharge of the official duty. Obviously this Court held that use of such A
defamatory language by no s<retch of imagination can be held to be in
discharge of official duty and consequently the provisions of Section 197
will have no application. The aforesaid decision has no application to the
present case.

4. The third decision relied upon by Mr. Upadhyay is the Pukhraj's case B
:] "" (supra). In the said case the question for consideration was that when a
government servant on orders of transfer had requested his employer for
cancellation of the transfer and the employer started abusing and giving
kicks to the said government servant whether it can be said to be in
purported exercise of his duty. This Court in no uncertain terms came to c
the conclusion that the act of abusing and giving kicks cannot be said to
be an act done in the execution of duty or in purported exercise of the
execution of the duty. In our considered opinion the ratio of the aforesaid
case also will have no application.

D
The Constitution Bench decision of this Court in Matajog Dobey's
case (supra) clearly enunciates where a power is conferred or a duty is
•' imposed by statute or otherwise and there is nothing said expre·ssly inhibit-
ing the exercise of the power or the performance of the duty by any
limitations or restrictions, it is reasonable to hold that it carries with it the
power of doing all such acts or employing such means as are reasonably E
necessary for such execution, because it is a rule that when the law
commands a' things to be done, it authorises the performance of whatever
may be necessary for executing its command. The Court was considering
in the said case the allegation that the official authorised in pursuance to
a warrant issued by the Income Tax Investigation Commission in connec- F
) tion with certain pending proceedings before it, forcibly broke open the
entrance door and when some resistance was put the said officer not only
entered forcibly but tied the person offering resistance with a rope and
assaulted him mercilessly causing injuries and for such act a complaint had
been filed against the concerned public officers. This Court, however, came
to hold that such a complaint cannot be entertained without a sanction of G
the Competent Authority as provided under Section 197 Cr.P.C. This Court
j
had observed that before coming to a conclusion whether the provisions of
Section 197 of the Code of Criminal Procedure will apply the Court must
come to a conclusion that there is a reasonable connection between the act
I,
complained of and the discharge of official duty; the act must bear such H
'

1240 SUPREME COURT REPORTS [1999) 1 S.C.R.
r
A relation to the duty that the accused could lay a reasonable claim that he
did it in the course of the performance of his duty. Applying the aforesaid
ratio to the case in hand the conclusion is inescapable that the act of the
Tehsildar in seizing the scooter of the respondent was in discharge of his ·
official duty which he was required to do on the basis of the order issued
by the Collector for g<.tting the lease money from the respondent and the
B said act cannot be said to be a pretended or fanciful claim on the part of
the Tehsildar. The High Court, in our view committed error at that stage
in examining the flaw or legality of the order of attachment issued by the
Tehsildar.

c (supra)Inand
Suresh Kumar's case (supra) relying upon Matajog Dobey's case
bearing in mind the legislative mandate engrafted in Sub-sec-
tion (1) of Sectibn 197 debarring a court froni taking cognizance of an
offence except with a previous sanction of the Government concerned this
Court has held that the said provis~rt is a prohibition imposed by the
statute from taking cognizance and as such the jurisdiction of the Court in
D the matter of taking cognizance and, therefore a Court will not be justified
in taking cognizance of the offence without such sanction on a finding that
the acts complained of are in excess of the discharge of the official duty of
the concerned government servant.

In the aforesaid circumstances and in view of our earlier conclusions
E
a5 to the circumstances under which the order of attachment was issued
and the scooter was seized we have no hesitation to hold tpat the acts
complained of by the respondent against the Tebsildar had been committed
in discharge of the official duty of the such Tehsildar and, therefore, no
cognizance can be taken by any court without prior sanction of the Com-
F petent Authority. Admittedly there has been no. such sanction of the
Competent Authority. <

We accordingly allow this appeal and set aside the impugned order
of the High Court. The order passed by the learned ·Sessions Judge is
affirmed
G
R.K.S. Appeal allowed.