@JUDGMENTTAG-ORDER
S.A. Naqvi, J.
This revision petition is preferred against order dated 18-1-1999 in Cr. Revision No. 65 of 1998 whereby, quashing order passed in Cr. Case No. 80 of 1997 pending before JMFC, Distt. Shivpuri.
Non-applicant P. Vijaykumar filed a private complaint against applicant Dr. Dinesh Sharma under sections 500, 166, 167, 186, 189, 192, 193, 197, 198, 199, 504 and 506 of Indian Penal Code. After preliminary enquiry, learned trial Court registered private complaint under sections 166, 167, 189, 199 and 506 of Indian Penal Code. This private complaint was pertaining to a letter written by applicant to non-applicant which he feels defamatory and has filed private complaint. After service of summons, applicant Dr. Dinesh Sharma appeared before learned trial Court. He filed an application u/s 197 of Criminal Procedure Code that without sanction for prosecution, Court cannot take cognizance. Learned trial Court allowed this application and discharged applicant from abovesaid charges.
Against the order of trial Court, non-applicant P. Vijaykumar filed a criminal case bearing No. 65 of 1998 and by the impugned order, learned Revisional Court allowed revision petition and set aside trial Court''s order and directed trial Court to proceed as per law in private complaint. Against the impugned order, this revision petition has been filed.
It has been argued by learned counsel for the applicant that applicant Dr. Dinesh Kumar was working as a Senior Medical Officer in XIIIth Bn. ITBP, Shivpuri. Non-applicant P. Vijaykumar was Commandant in ITBP Telecom Bn. Shivpuri. On receiving complaint regarding behaviour of non-applicant, he wrote disputed letter and it was forwarded to higher authorities. It is also argued by learned counsel for the applicant that he is a public servant. In discharging his official duties, he wrote a letter to non-applicant so he is protected against prosecution u/s 197 of Criminal Procedure Code and without sanction of competent authority, he cannot be prosecuted. He prayed that impugned order be set aside and order of learned trial Court be restored and he be discharged frorrt charges.
Contrary to that, learned counsel for the non-applicant supported impugned judgment. He argued that letter dated 15th March, 1997 written by applicant Dr. Dinesh Kumar is defamatory and he did not write this letter in discharge of his official duties so provision of section 197 of Criminal Procedure Code does not attract and he cannot get benefit of this provision. No sanction for prosecution is necessary, he prays for dismissal of revision petition and confirming impugned order.
It has been argued by learned counsel for the applicant that he was Medical Officer, Incharge of Unit Hospital, Telecom Bn. ITBP, Shivpuri M.P. and he was duty bound to look after the health of employees and officers of the Bn. including complainant P. Vijakumar. He wrote a confidential letter to complainant P. Vijaykumar concerning his health, which is part of performance of his official duty, hence, sanction u/s 197 of Criminal Procedure Code for prosecution is prerequisite for taking cognizance against applicant by trial Court.
Contrary to that, it has been argued by learned counsel for non-applicant that out of enmity, applicant intentionally wrote a defamatory letter to him and forwarded copy of letter to his senior officer. His act does not come within the purview of performance of official duty, so no sanction is required to prosecute applicant in Court of law. He relied on
The protection given u/s 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of legislature is to afford adequate protection to public 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 it chooses to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the 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 from the 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. 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 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 if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether 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 if the 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 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 institution of the complaint case.
The section all in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Session u/s 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate to take cognizance of any offence is provided by section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any Court, is barred by section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the prosecution is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression "no Court shall take cognizance of such offence except with the previous sanction". Use of the words "no" and "shall" make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black''s Law Dictionary the word "cognizance" means "jurisdiction" or "the exercise of jurisdiction" or "power to try and determine cause". In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty". 13. 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.
Applicant also placed reliance on
23. Mr. Sibal''s contention is based upon the observations made by this Court in Mathew case wherein this Court had observed that even after issuance of process u/s 204 of the Code if the accused appears before the Magistrate and establishes that the allegations in the complaint petition do not make out any offence for which process has been issued then the Magistrate, will be fully within his powers to drop the proceeding or rescind the process and it is in that connection the Court had observed "if the complaint on the very face of it does not disclose any offence against the accused". The aforesaid observation made in the context of a case made out by the accused either for recall of process already issued or for quashing of the proceedings may not apply fully to a case where the sanction u/s 197(1) of the Criminal Procedure Code is pleaded as a bar for taking cognizance. The legislative mandate engrafted in sub-section (1) of section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duties and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.
In
The protection given u/s 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences 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 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 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 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. 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 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 if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether 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 if the 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 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 institution of the complaint case.
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 of his official duty", be understood? What does it mean? "Official", according to the dictionary, means pertaining to any office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha vs. M. S. Kochar it was held ; SCC PP. 184-85, para 17 :
The word 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 any official duty to commit an offence, and never can be. In the wider sense, these words will take 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 two 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, while 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", (emphasis in original). "Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the 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 in discharge of official duty.
9A. In
If the provisions of section 197, Criminal Procedure Code are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be. The object of the section is to provide guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. If on the date of the complaint itself it is incumbent upon the Court to take cognizance of such offence only when there is a previous sanction then unless the sanction to prosecute is produced the Court cannot take cognizance of the offence, naturally at that stage, the Court taking cognizance has to examine the acts complained of and see whether the provisions of section 197, Criminal Procedure Code are attracted. If the above two conditions are satisfied then the further enquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. If this requirement also is satisfied then no Court shall take cognizance of such offences except with the previous sanction. For this purpose, the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly concerned or reasonably connected with official duties so that if questioned the public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonably connection between the act and the discharge of official duties. It is in this context that the words "purporting to act in discharge of official duties" assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties. In There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Approving these principles this Court in the intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, while constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty, the offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed by public servant in an act done or purporting to be done in the execution of duty. 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 the existence of such duty. Nor need the act constituting the offence, be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of the office" may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.
In So far public servants are concerned, the cognizance of any offence, by any Court, is barred by section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which, it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression no Court shall take cognizance of such offence except with the previous sanction. Use of the words, ''no'' and ''shall'' make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. These principles are laid down in many cases and it may not be necessary to refer to all of them. Applying the abovesaid principles to the facts of this case, we find that the counter affidavit was filed only as a defence to the allegations made in the writ petition particularly in connection with the transfer of the respondent and on what grounds it was made. The paragraphs as extracted in the complaint would also show that averments therein were made only in respect of the action taken in transferring the respondent. Therefore, the said reference with respect to the character any integrity, which according to the complainant-respondent amounted defamation, cannot in any manner be said to be unconnected or not reasonably connected with the official duties. These statements in the counter-affidavit were made by the appellants definitely while acting or at least purporting to act in discharge of the official duties namely filing the same in their defence to the allegations made in the writ petition which they had to do. 9B. In the background of legal principles elaborated above, applicability or non-applicability of provision u/s 197 of Criminal Procedure Code, I am considering facts and legal position of case in hand. It is not disputed that applicant is public servant and was working as Medical Officer Incharge of the Unit hospital Telecome Bn. ITBP, Shivpuri at the relevant time and non-applicant was working as Commandant in the same Bn. as per certificate Annexure P/8 "It is certified that the duties and responsibility of Medical Officer Incharge of unit Hospital in a Bn. of Indo Tibetan Border Police Force is to look after the health, hygene and sanitation of all unit personnel". It is clear that Medical Officer Incharge of the Hospital is responsible to look after the health, hygene and sanitation of all unit personnel, which includes Commandant also being part of ITBP Bn. Similarly, office memorandum dated 21-7-1987 has been issued by P. P. Malhotra Sr. Administrative Officer (e) for treatment and reference for treatment of force personnel to Military Hospital and refusal by personnel to go to Military Hospital shall be deemed to be an offence u/s 10(n) of the CRPF Act and action will be taken under CRPC Act/Rules. Every Medical Officer is bound to work as per norms laid down by department and every personnel is bound to comply memorandum dated 21-7-1987. Medical Officer is authorized to lookafter the health hygene and sanitation of all Unit personnel. It is clear that Medical Officer is bonafidely authorized to give advise to any unit personnel pertaining to his health and can caution him for future improvement of behaviour and health. If Medical officer while discharging his public duty or official duty is protected u/s 197 of Criminal Procedure Code from prosecution, even if he acted in excess in discharging official duties and if there is legal connection with official duty excess will not deprive him of the protection. Medical Officer applicant received written complaints from subordinate staff regarding misbehaviour of non-applicant P. Vijaykumar, which he thought abnormal behaviour. In response to complaints made by Pramod Singh SLR. G. D. Pradumn Singh NK/RU and Pushpendra Rathi GD Sepoy of Bn Dr. Dinesh Sharma wrote an advisory letter dated 15-3-1997 to P. Vijaykumar and warned him for future to improve his behaviour pertaining to his health. There is no circumstance that abovesaid letters were written on the instigation of Dr. Dinesh Sharma and he motivated complainants of letters, to write these letters. All the complaints made before said defamatory letter. As per routine he forwarded this letter dated 15-3-1997 to his higher official for information, which does not show any mala fide of applicant towards P. Vijaykumar. There appears no mala fide on the part of Dr. Dinesh Sharma towards P. Vijaykumar in writing advisory letter in which he cautioned him for future. Looking to facts and circumstances, this argument has no force that P. Vijaykumar conducted enquiry against Dr. Dinesh Sharma and gave findings against applicant and due to vengeance he wrote letter in question to non-applicant intentionally to defame or insult him. Learned Revisional Court wrongly appreciated facts and circumstances of the case and committed irregularity and jurisdictional error in passing impugned order and setting aside trial Court''s order. It is clear from the records and above discussion that applicant Dr. Dinesh Sharma issued disputed letter to non-applicant P. Vijaykumar in course of his official duty and his act has reasonable connection with discharge of his official duty. He has protection u/s 197 of Criminal Procedure Code against any prosecution pertaining to offence alleged. Without sanction, no cognizance can be taken of offences complained. In view of above discussion, I am of the opinion that impugned order is not sustainable and liable to be set aside and revision petition deserves to be allowed. Consequently, revision petition is allowed and impugned order passed by Revisional Court is set aside and order of trial Court dated 13-5-1998 is restored.
