Delhi High Court
Smt Mohini Sharma vs State & Anr. on 16 July, 2015
Author: Sunil Gaur
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 16, 2015
+ CRL.M.C.2586/2014 & CRL.M.A.8699/2014
SMT MOHINI SHARMA .....Petitioner
Through: Mr. L.S.Solanki, Advocate
versus
STATE & ANR. .... Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
Mr. Yogesh Chhabra, Advocate for
Respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In petitioner's complaint for defamation against respondent No.2,
who happens to be an Assistant Sub Inspector of Delhi Police, he was
summoned as an accused vide order 29th September, 2012. The
summoning order of 29th September, 2012 was assailed by respondent-
accused by way of a criminal revision petition, which stands allowed vide
impugned order of 23rd April, 2014.
The challenge to the impugned order by learned counsel for
petitioner-complainant is on the ground that a clear cut case of
Crl.M.C.No.2586/2014 Page 1
defamation is made out and so no sanction is required for prosecution of
respondent-accused.
At the hearing, learned counsel for petitioner had relied upon Apex
Court decision in Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr.
(2012) 5 SCC 424 to submit that summoning order needs not to be a
reasoned one and on merits, trial court ought to be permitted to proceed
with the case as per law.
Learned counsel for respondent No.2 supports the impugned order
and submits that respondent-accused had simply recorded the statement
in a criminal case and so he cannot be hauled up for the offence of
defamation and since the alleged offence was committed during the
course of his official duties, therefore, sanction under Section 140 of
Delhi Police Act, 1978 is mandatory.
The pivotal issue of protection under Section 197 of Cr.P.C. has
been considered by Apex Court in Anjani Kumar v. State of Bihar 2008
5 SCC 248 in these words: -
"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
Crl.M.C.No.2586/2014 Page 2
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
Crl.M.C.No.2586/2014 Page 3
complained of and the official duty of the public servant."
Apex Court in Anil Kumar v. M.K.Aiyappa (2013) 10 SCC 705has
reiterated the legal position governing the issue of sanction in these
words: -
"Thus, in view of the above, the law on the issue of
sanction can be summarized to the effect that the question of
sanction is of paramount importance for protecting a public
servant who has acted in good faith while performing his
duty. In order that the public servant may not be
unnecessarily harassed on a complaint of an unscrupulous
person, it is obligatory on the part of the executive authority
to protect him.....If the law requires sanction, and the court
proceeds against a public servant without sanction, the
public servant has a right to raise the issue of jurisdiction as
the entire action may be rendered void ab initio."
Applying the dictum of Apex Court in Anjani Kumar (supra) and
Anil Kumar (supra) to the facts of the instant case, which are quite similar
to that of Omveer Singh & Anr. v. State & Ors. 2014 SCC Online Del.714
wherein this Court had quashed the summoning order and so, trial court
in the instant case has to examine the sanction aspect prior to passing of
the summoning order.
Upon hearing and on perusal of summoning order, impugned order
and decisions cited, I find that summoning order need not be reasoned
one but the question of sanction goes to the root of the matter and so
Revisional Court has rightly come to the conclusion that question of
sanction ought to be considered at the summoning stage. The question of
sanction was not the subject matter in Bhushan Kumar (supra) and so this
Crl.M.C.No.2586/2014 Page 4
decision is of no avail to the case of petitioner. A coordinate bench of
this Court in Crl.M.C.1449/2004 Ravi Gulati v. Hari Parkash decided on
16th May, 2011 has considered the question of sanction and has reiterated
that the purpose of obtaining sanction is to insulate public servants
against frivolous litigation. Since, it is apparent from the complaint in
question that respondent-accused is a public-servant, therefore, the
question of sanction needs to be considered by the trial court at the
summoning stage.
Finding no palpable error in the impugned order, this petition is
dismissed with direction to trial court to consider the sanction aspect and
then decide as to whether respondent No.2 has to be proceeded against or
not, with or without sanction under Section 140 of Delhi Police Act,
1978.
With aforesaid directions, this petition and application are disposed
of.
(SUNIL GAUR)
JUDGE
JULY 16, 2015
vn
Crl.M.C.No.2586/2014 Page 5
