Judgment:
V.S. Aggarwal, J.
1. Sub-section (1) to Section 197 of the Code of Criminal Procedure which deals with the short question in controversy reads as under:-
'197...(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.'
It is apparent that before sub-section (1) to Section 197 of the Code of Criminal Procedure, can be invoked two conditions must be satisfied i.e. (a) the accused must be a public servant i.e., he must be a Judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the State Government or the Central Government (b) the offence must be committed by the accused by acting or purporting to act in the discharge of his official duty.
2. The object of the section is well known to guard against vexatious-proceedings against a public servant and to secure the well considered opinion of a superior authority before a prosecution is launched against such a public servant. In other words, it is to afford adequate protection to ensure that public servants mentioned above are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause.
3. The petitioner alleges that he could not be prosecuted before sanction contemplated under Section 197 of the Code of Criminal Procedure, therefore, brief resume of the facts would be advantageous.
4. Rakesh Kumar is a resident of village Ucha Pind Sanghol. Along with his father, he was running a Dhaba at the bus stand situated in the village which abuts on the Grant Trunk Road. Rakesh Kumar used to help his father in running of the business. On 10th of March, 1991, at about 1.45 p.m. when Rakesh Kumar was present with his father, petitioner Hardev Singh ASI was on patrol duty there since morning. The petitioner was not allowing the buses plying between Chandigarh and Ludhiana to stop at the place of business of Rakesh Kumar and his father. Father of Rakesh Kumar requested the petitioner to allow the buses to stop. On this, the petitioner lost his temper and there was a scuffle between him and Rakesh Kumar. Thereafter, the petitioner took out his service revolver and fired three shots at the father of Rakesh Kumar. Father of Rakesh Kumar namely Sh. Sat Paul was hit on his right thigh and in the abdomen.
5. The injuries were declared to be dangerous to life. After the investigation was completed, the petitioner was challaned with respect to offences punishable under Section 307 of the Indian Penal Code and the Arms Act. He was committed to the Court of Session. In the Court of Session, the petitioner filed an application praying that he may be discharged because necessary sanction to prosecute him under Section 197 of the Code of Criminal Procedure has not been obtained from the competent authority. The application was dismissed. Hence, the present petition.
6. The learned counsel for the petitioner has vehemently urged that this was an act done by the petitioner in the discharge of his official duty and consequently, permission contemplated under Section 197 of the Act, must be obtained before he can be prosecuted. He further urged that the injured had a scuffle with him and during scuffle the injured tried to snatch the service revolver of the petitioner and also removed his turban, with the result that the petitioner had to use the service revolver.
7. The first question thus that comes up for consideration is as to whether at this stage, the defence of the petitioner can be looked into or not. The answer is not for to fetch in face of all catena of judicial pronouncements which goes without saying that one has, at the initial stage, to see the allegations made only. This Court in the case of Jodh Singh v. Chandi Ram, 1988 Chand Cri. C 73, was concerned with some what a similar situation. It was concluded, that one has to see the allegations made and not to go into the detailed scrutiny at the initial stage. The allegations to be seen are what has been stated in the complaint. As such, the relevant findings are being reproduced below for the sake of facility:-
'It has repeatedly been laid down that at the initial stage of the case to settle the controversy as to whether the sanction under Section 197 of the Code of Criminal Procedure is required in a particular case, all that has to be seen is to examine the assertions made in the complaint and not to weight or evaluate them in order to find out their veracity. Equally not in dispute is the proposition that the Court is entitled to come to such a conclusion if any stage of the trial it finds material justifying that. Admittedly, no material or evidence has yet been recorded in the case'.
(Emphasis added).
No different is the view of the Orissa High Court in the case of Dhulamani Behra v. State of Orissa reported as, 1988 Cri LJ 1027. It was held that if initiation of the criminal proceedings is challenged, then necessity of a sanction has to be determined on the basis of the allegations made without any investigation as to whether such allegations are true or false.
8. In fact, the controversy would be set at rest by the decision of the Supreme Court in the case of S. B. Saha v. M. S. Kochar, : 1979CriLJ1367 . The conclusions were the same that the allegations made have to be taken as alleged. In paragraph 15, Justice Sarkaria speaking for the Bench concluded:-
'Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.'
Therefore, one has to see that allegations that are being made, which as pointed out, are that the petitioner lost his temper when Sat Paul requested him to allow the buses to stop. He (the petitioner) scuffled with Sat Paul and, thereafter, took out his service revolver and fired three shots. If one looks at the defence of the petitioner, then it would tentamount to judging the veracity and correctness of the allegations that have been made. One is conscious of the finding of the Supreme Court in the case of S. B. Saha, (1979 Cri LJ 1367), (supra), that the Court has to consider itself to the allegations in the complaint and can take into account all the material on the record at the time when the conclusion is arrived. In paragraph 14, the Supreme Court observed thus:--
'We have no quarrel with the proposition that the question of sanction under Section 197, Cr.P.C. can be raised and considered at any stage of the proceedings. We will further concede that in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration'.
However, the petitioner, indeed, cannot take the benefit of the aforesaid observations at this stage and this can be looked only at the proper stage when such a material comes on the record. Thus, for the purposes of the present, the plea of the petitioner in this regard cannot be accepted.
9. Confronted with that position, it was urged that in any case, it was an act done by the petitioner in the discharge of his official duty and sanction to prosecute him in any event would be necessary. This question has always been considered and re-considered as to when a pubic servant can be said to act or purport to act in discharge of his official duties. This question came up before the Supreme Court in the case of Baijnath v. State of Madhya Pradesh, reported as, : 1966CriLJ179 . The vexed question was answered in paragraph 16 in the following words:-
'A public servant can 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. 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; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office'.
(Emphasis added).
The Supreme Court held that the acid test is that as to whether the public servant can reasonably be inferred to have acted by virtue of his office.
10. The same question came up for consideration before the Division Bench of the Delhi High Court in the case of State v. Sube Singh, reported as (1985) 2 Recent Cri R 524 : 1985 Cri LJ 1190. In this case, a police officer was on duty. It was alleged that he was not. in a fit mental |tate and showed unruly conduct and he was under the influence of liquor. It was held that no sanction under Section 197 of the Code of Criminal Procedure, was required because his act was not remotely connected with his official duty.
11. Adverting to the decision in the case of S. B. Saha, (1979 Cri LJ 1367) (supra), would not be inappropriate. The same view was expressed in paragraph 18 and the Supreme Court concluded thus:-
'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 for 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 an offence, and never can be'. In the wider sense, these words will pay under their umbrella 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 to extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the 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. As pointed out by Ramaswami, J. in Baijnath v. State of Madhya Pradesh, : 1966CriLJ179 , it is the quality of the act that is important, and if it falls within the scope and range of his official duty, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted'.
The decision in the case of S.B. Saha, (1979 Cri LJ 1367), was again followed in the subsequent decision of the Supreme Court in the case of State of Maharashtra v. Dr. Budhikota Subharao, reported as 1993 (2) Recent C. R. 482, it was concluded that if the offence is committed in the course of service but in the discharge of his official duty, then sanction under Section 197 of the Act is not required. In face of the aforesaid, the conclusions are clear that firstly at the initial stage, only the allegations made have to be taken into account, the detailed scrutiny will not be admissible and secondly, the alleged act should be connected with the discharge of the duty of the government servant. It should not be an act which is not remotely connected with the duty of the said public servant.
12. Examining the facts of the present case on the touch-stone of the aforesaid, it is felt that act of firing at Sat Paul injured was not as per the allegations made remotely connected with his official duty, which does not fall within the scope and range of his official duty that the petitioner would fire at the third person. In the absence of there being an act done during the course of his official duty and what actually had been done, I am of the considered view that the petitioner is not entitled to the protection envisaged under Section 197 of the Code of Criminal Procedure on the basis of the material presently available. Therefore, the learned trial Court has rightly rejected the application filed by the petitioner.
13. For these reasons, the revision petition being without merit fails and is dismissed.