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State by PSI, Mahalakshmi Layout, Police Station...Appellant

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State by PSI, Mahalakshmi Layout, Police Station...Appellant : 1 : IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 05 TH DAY OF SEPTEMBER 2012 BEFORE THE HON’BLE MR. JUSTICE K.N.KESHAVANARAYANA CRIMINAL APPEAL No.1900/2005 (A) BETWEEN: State by P.S.I., Mahalakshmi Layout, Police Station. ...Appellant (By Shri Rajesh Rai K., Government Pleader) AND: D.P.Kumar, 36 years, S/o. Puttaswamygowda, R/at 3 rd Main, 3 rd Block, Bangalore. …Respondent (By Shri R.Srinivas, Advocate) This Criminal Appeal is filed under Section 378 (1) and (3) of the Code of Criminal Procedure by the State Public Prosecutor for the State praying that this Hon’ble Court may be pleased to grant leave to file an appeal against the judgment and order of acquittal dated 18.02.2005 passed by the VII Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.16500/1996 acquitting the respondents – accused for the offences punishable under Sections 332, 355 and 506 of I.P.C. and etc. : 2 : This Criminal Appeal coming for hearing on this day, the Court delivered the following: - JUDGMENT This appeal by the State filed under Section 378 (1) and (3) of the Code of Criminal Procedure is directed against the judgment and order dated 18.02.2005 passed by the VII Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.16500/1996, acquitting the respondent – accused for the offences punishable under Sections 332, 355 and 506 of the Indian Penal Code (for short I.P.C.), for want of sanction under Section 197 of the Code of Criminal Procedure. 2. The Police Sub-Inspector, Mahalakshmi Layout Police Station, filed charge sheet against the respondent – accused for the aforesaid offences, interalia alleging that the respondent – accused working as a Bill Distributor in Bangalore Water Supply and Sanitary Sub-Division, annoyed by the order transferring him from the post of Bill Distributor as : 3 : Telephone Operator at the instance of P.W.1 – Basavarajaiah, working as Junior Assistant, abused P.W.1 in filthy language at about 04.00 p.m. on 10.04.1996 and threatened him with injury to his life by holding a knife and after about five minutes, the accused came back to the Office and assaulted P.W.1 with chappals on the head, cheek, shoulder and other parts of the body and thereby caused simple injuries to P.W.1 and thus, deterred P.W.1, a public servant from discharging his duty. 3. The respondent – accused pleaded not guilty for the charges levelled against him. The prosecution in order to bring home the guilt of the accused for the charges, examined P.Ws.1 to 7 and relied on documentary evidence, marked as Ex.P-1 to Ex.P-5 and also M.O.1. The accused did not choose to lead any defence evidence. His defence was one of the total denial and that of false implication. The learned Magistrate on assessment of oral and documentary evidence, though held that the oral and documentary : 4 : evidence produced by the prosecution beyond all reasonable doubt established that the accused has committed the offences punishable under Sections 332 and 355 of I.P.C., acquitted the accused on the ground that the sanction for prosecuting the respondent – accused, a public servant, as required by Section 197 of the Code of Criminal Procedure was necessary and since no such sanction had been obtained, the prosecution launched is without jurisdiction. Consequently, the learned Magistrate ordered acquittal of the accused. Aggrieved by the said judgment and order, the State is in appeal. 4. I have heard both sides and perused the judgment under appeal. 5. The short questions for consideration is: - “1. Whether having regard to the facts and circumstances of the case, the sanction for prosecution as required by Section 197 of the Code of Criminal Procedure was necessary? : 5 : 2. Whether the learned Magistrate is justified in acquitting the respondent – accused?” 6. As per Section 197(1) of the Code of Criminal Procedure, a public servant who cannot be removed from his Office, except by 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 of the Central Government or the State Government, as the case may be. It is well settled by catena of decisions that the protection given under Section 197 of the Code of Criminal Procedure, is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for the offences alleged to have committed by them, whether acting or purporting to act as public servants. However, before Section 197 of the Code of Criminal Procedure can be invoked, the alleged acts by the public : 6 : servant must have reasonable connection with the discharge of his official duties. 7. The Apex Court in the case of Center for Public Interest Litigation and Another vs. Union of India and Another reported in AIR 2005 Supreme Court 4413 , has held thus, in paragraphs 9 and 10 “9. The protection given under Section 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 : 7 : 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 : 8 : 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. 10. Use of 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 : 9 : 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”. (underlining is by me) 8. It is further observed in paragraph 11 that if 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. 9. The aforesaid view has been reiterated by Apex Court in the case of Rakesh Kumar Mishra vs. State of Bihar and Others reported in (2006) 1 Supreme Court Cases 557 . 10. In the light of the above principles, let me consider as to whether the act committed by the respondent – accused has any reasonable connection with the discharge of his duty, so as to invoke the : 10 : provisions of Section 197 of the Code of Criminal Procedure. As noticed supra, according to the case of the prosecution, the accused while working as a Bill Distributor under P.W.1 in Bangalore Water Supply and Sanitary Sub-Division, was transferred and posted as Telephone Operator on the complaint made against him by P.W.1 to his higher Superior Officers.
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