Mohan Parkash Dubey & Ors. vs State
2001 Latest Caselaw 745 Del

ORDER

S.K. Agarwal, J.

1. This revision petition under Article 227 of the Constitution of India read with Section 482 Code of Criminal Procedure is directed against the order dated 13th July, 2000 passed by Metropolitan magistrate dismissing the application of the petitioners seeking discharge in case FIR No. 419/96 u/s 353/34 IPC, PS Malviya Nagar, New Delhi.

2. Prosecution allegations in brief are : that on 8th June, 1996 Shri Ram Assistant Engineer, CPWD lodged a report stating that at about 11.30 A.M. he was in his office when petitioners who are working as Junior Engineers came there and asked him as to why he had written letter regarding the handing over of the charge of 'mappusthikaye'. On being told that the letter had to be written, they felt annoyed and Satish Kumar Sood slapped the complaint; Mahesh Narayan Gupta and Mohan Prakash Dubey abused him and gave him beating. The complainant ran out of the room and went to the Divisional Office where also the complainant was manhandled and abused in the presence of the employees. On the basis of the report abovenoted cases was registered. After investigations challan was filed. Petitioners moved an application for discharge. Learned trial court, vide corders dated 13th July, 2000, held that no prior sanction was required under section 197 Cr. C.P. and that prima facie a case under section 353/34 IPC was made out against the petitioners.

3. I have learned counsel for the parties and have been taken through the record.

4. Learned counsel for the petitioners argued that no cognizance of the offence against petitioner could be taken in the absence of sanction under section 197 Cr.P.C. as the petitioners are public servants. Reliance was placed on the Supreme Court decision reported in Gauri Shankar Prasad vs. State of Bihar . Learned counsel for the State argued to the contrary.

5. In order to appreciate the rival contentions reference to section 197 of Code of Criminal Procedure is necessary, which reads :-

"Prosecution of Judges and public servants-(I) When any person who is or was a Judge or Magistrate or a public servant not removal 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 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 office employed, in connection with the affairs of a State, of the State Government."

(2) xxxx

(3) xxxx

(3A) xxxx

(3B) xxxx

(4) xxxx

6. Law regarding grant of sanction u/s 197 Cr.PC is well settled by several authoritative pronouncements. The Supreme Court in SB Saha vs. M S Kochar, after examining several earlier decisions held that 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 off narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, no part of an official duty can be to commit an offence. It can never be so. In the wider sense, these words would 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. It was held:

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 not part of an 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 had, 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 Vs. State of Madhya Pradesh "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".

7. The question whether the offence was committed in the course of official duties or under colour of official duties, would depend on the facts of each case. If the allegations are taken at their face value the act of slapping or beating complainant cannot be said to have been performed while acting or purporting to act in discharge of official duties.

8. In this case, there is another difficulty. Admittedly, petitioners were Junior Engineers in CPWD. Section 197, Cr.P.C. does not provide protection to each and every public servant. It applies only when such public servant is not removable except with the sanction of the Government. Nothing has been placed on record to show that the Petitioners were not removable from their office without sanction of the Government. This is a question of fact which can be examined only during the trial.

9. In Gauri Shankar's case (supra) the facts were entirely different. In that case, petitioner while working as SDM was supervising the removal of encroachment on the public land, demolitation work was in progress, when it was alleged that 10/11 constables rushed inside the clinic of the complainant, abused him and dragged him out of clinic. In the circumstances it was held that the offence was committed in the course of same transaction in which the official duties were being performed or purported to be performed, which is not the case here.

10. Next it was argued that no offence under Section 353 IPC is made out as the letter in questing was already written by the complainant and there was no questing of preventing or deterring him from discharging his duties as public servant. this contention also has no merit. Section 353 IPC covers these cases where assault or criminal force is used on public servant, in consequence of anything done or attempted to have been done by him in the lawful discharge of his duty as such public servant. the expression 'in consequence of anything' done used in this Section 353 IPC would include the motive which actuates the accused persons to commit assault on the public servant.

11. In view of the above, I find no merit in the petition. The same is dismissed. Trial court record be sent back.