Mithu Singh vs State Of Rajasthan (2025:Rj-Jd:19638)
2025 Latest Caselaw 12114 Raj

Rajasthan High Court - Jodhpur

Mithu Singh vs State Of Rajasthan (2025:Rj-Jd:19638) on 23 April, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

         [2025:RJ-JD:19638]

             HIGH COURT OF JUDICATURE FOR RAJASTHAN
                           AT JODHPUR
                    S.B. Criminal Revision Petition No. 95/2025

             Mithu Singh S/o Karan Singh Chouhan, Aged About
             53 Years,       R/o Chouhano Ka Kantaria, Ghosunda,
             P.s.    Chanderiya,        Dist.       Chittorgarh           (Presently
             Working As Sub Inspector In The Rajasthan Police)
                                                                    ----Petitioner
                                           Versus
             1.      State Of Rajasthan, Through Pp
             2.      Ratni Bai W/o Chunni Lal Berwa, Aged About
                     37 Years,           R/o Hadmala Kachchi Basti,
                     Bhoikheda, Dist. Chittorgarh
                                                               ----Respondents


             For Petitioner(s)        : Mr. Rajak Khan
             For                      : Mr. Kuldeep Singh Kumpawat,
             Respondent(s)              PP



               HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

23/04/2025 REPORTABLE

Instant revision petition has been filed by the

petitioner against the order dated 05.12.2024,

passed by the learned Special Judge, SC/ST

(Prevention of Atrocities Cases), Chittorgarh in

Sessions Case No.21/2020 whereby the learned

Judge dismissed the application under Section 197(2)

Cr.P.C. filed by the petitioner.

Counsel for the petitioner asserts that at the

time of the incident in question, the petitioner was

not present at the scene and has been implicated

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solely based on call records linking him to the

accused, Shankar Singh. At the pertinent time, the

petitioner was serving as a Police Sub-Inspector in

Ajmer District and was attending court in Dungla,

District Chittorgarh, to provide evidence in a separate

matter, while the incident occurred in Chittorgarh.

Furthermore, counsel argues that pursuant to the

provisions of Section 197 of the Code of Criminal

Procedure (Cr.P.C.), no prosecution can be initiated

against the petitioner for actions taken in the course

of performing his official duties without prior sanction

from the competent authority. In this instance, it is

contended that no such sanction was obtained from

the appropriate authority as mandated by law.

Consequently, the continuation of the criminal

proceedings against the petitioner, absent the

requisite sanction, would constitute a violation of the

provisions of Section 197 of the Cr.P.C. Counsel

further contends that the learned trial court erred in

not considering these critical aspects of the matter

and subsequently rejected the application under

Section 197(2) of the Cr.P.C. The impugned order,

therefore, is fraught with serious legal deficiencies

and merits quashing and setting aside.

Learned Public Prosecutor has vehemently

opposed the prayer made by the counsel for the

petitioner and supported the impugned order passed

by the trial court.

[2025:RJ-JD:19638] (3 of 18) [CRLR-95/2025]

Heard learned counsel for the parties and

perused the impugned order as well as gone through

the material available on record.

In order to appreciate the controversy, it would

be apt to refer to Section 197 of Cr.P.C which reads as

under:

197. Prosecution of Judges and public servants-- (1)When any person who is or was a Judge or Magistrate or a public servant not removable from his officer 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 (save as otherwise provided in the Lokpal and Lokayukts Act, 2013--

(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

[2025:RJ-JD:19638] (4 of 18) [CRLR-95/2025]

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. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members(of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-

section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.

(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

[2025:RJ-JD:19638] (5 of 18) [CRLR-95/2025]

(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

The protection of this provision is available only

if three conditions are fulfilled; the accused is (a) a

public servant, (b) has allegedly committed an

offence, (c) while acting or purporting or in

connection to act in the discharge of his official duty.

In case, these three conditions are fulfilled, then the

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Court is prevented from taking cognizance of the

offence unless the appropriate government grants a

sanction against the alleged accused. The protection

given under this Section 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, 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

[2025:RJ-JD:19638] (7 of 18) [CRLR-95/2025]

act as such in the discharge of his official capacity.

Before Section 197 Cr.P.C. 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 his 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

[2025:RJ-JD:19638] (8 of 18) [CRLR-95/2025]

does not get immediately attracted on institution of

the complaint case.

At this juncture, we may refer the case of P.

Arulswami v. State of Madras reported in AIR

1967 SC 776, wherein the Hon'ble Apex Court held

as under:

"...It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is 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. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."

In the case of S.B. Saha v. M.S. Kochar Reported in (1979) 4 SCC 177 the Hon'ble Supreme Court has 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 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 an official duty to commit an offence, and never can be'. In the wider sense, these

[2025:RJ-JD:19638] (9 of 18) [CRLR-95/2025]

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, 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."

The complainant, Ratni Bai, has made specific

allegations in her complaint, asserting that while she

was in judicial custody in a false case, the petitioner,

in collaboration with co-accused Shankar Singh and

several other individuals, unlawfully entered her

home and forcibly took possession of the premises. It

is further alleged that they assaulted her minor child

and employed derogatory and caste-based language.

Upon her release on bail and return to her residence,

the complainant claims that the accused assaulted

her, accompanied by further caste-based abuse. The

complainant asserts that she incurred a loss of ₹5

lakhs due to these incidents. In response to her

complaint, police registered a case and initiated an

investigation, during which additional witnesses

corroborated her version. Following the investigation,

the police filed a charge sheet against the accused

individuals, including the petitioner, and the matter

was subsequently committed to the court of the

[2025:RJ-JD:19638] (10 of 18) [CRLR-95/2025]

Special Judge, SC/ST (Prevention of Atrocities Act),

Chittorgarh, where charges were framed. The

petitioner later filed an application under Section

197(2) of the Code of Criminal Procedure (Cr.P.C.),

which was dismissed by the trial court by the

impugned order.

A Bench of three Hon'ble Judges of the Hon'ble

Apex Court in the case of P.K. Pradhan v. State of

Sikkim reported in (2001) 6 SCC 704, in

paragraphs 5 and 15 held thus:

"5. The legislative mandate engrafted in sub- section (1) of Section 197 debarring a court from taking cognizance of an offence except with the 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 duty and such public servant is not removable from 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. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code:

"any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial

[2025:RJ-JD:19638] (11 of 18) [CRLR-95/2025]

proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation."

"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."

(emphasis added)

[2025:RJ-JD:19638] (12 of 18) [CRLR-95/2025]

In the case of State of H.P. v. M.P. Gupta

reported in (2004) 2 SCC 349, the Hon'ble Supreme

Court had an occasion to discuss the scope and ambit

of Section 197 of the Code. The Apex Court held as

under:

"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."

The Hon'ble Supreme Court in the case of

Om Prakash & others Vs. State of Jharkhand

reported in (2012) 12 SCC 72, which reads as

under :-

"36.........The protection given under Section 197 of the Code 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 Hon'ble Supreme Court in the case Amal Kumar Jha Vs. State of Chhatisgarh & Anr. Reported in 2016 3 Supreme (SC) 226 has observed:

[2025:RJ-JD:19638] (13 of 18) [CRLR-95/2025]

11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.

The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dubey v. H.C. Bhari AIR 1956 SC 44 thus:

"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... 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 (claim) but not a pretended or fanciful claim, that he did

[2025:RJ-JD:19638] (14 of 18) [CRLR-95/2025]

it in the course of the performance of his duty." (emphasis supplied)

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."

12. In State of H.P. v. M.P. Gupta 2004 (2) SCC 349 this Court in regard to official duty has laid down thus :

"11. 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 an office, and official act or official duty means an act or duty done by an officer in his official capacity."

13. In State of Orissa & Ors. v. Ganesh Chandra Jew 2004 (8) SCC 40 this Court has laid down that protection under section 197 would be available only when the act done by the public servant is reasonably connected with the discharge of his official duty. This Court has laid down thus :

"7. 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 duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in

[2025:RJ-JD:19638] (15 of 18) [CRLR-95/2025]

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." 14. In K. Kalimuthu v. State by DSP 2005 (4) SCC 512 this Court has observed that official duty implies that an act or omission must have been done by the public servant within the scope and range of his official duty for protection. This Court has laid down thus :

[2025:RJ-JD:19638] (16 of 18) [CRLR-95/2025]

"12. 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.

xxxxx

15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding.

The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted."

This Court, looking into the statutory requirement

as laid down in Section 197 Cr.P.C. and the precedent

laws of the Hon'ble Apex Court, is clear that any action

taken in good faith by the government employee in

discharging of duties or performing their duties in good

faith and intended to be done in pursuance of the law

then no suit, prosecution or any other legal proceeding

shall lie against the State Government or any officer of

the Government or any other person exercising any

powers of discharging such functions without prior

prosecution sanction. However, in the present case, the

trial court while dismissing the application under

Section 197 (2) Cr.P.C. observed that, according to

applicable law, prosecution sanction is not necessary

for offences committed by a government employee

while not discharging their official responsibilities. The

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petitioner, in this instance, was not acting in the course

of his official duties at the time of the alleged incident.

Consequently, there is no requirement to seek

prosecution sanction to proceed against the petitioner

in relation to these alleged offences. The petitioner

cannot invoke the protections of Section 197 of the

Cr.P.C. solely by virtue of being a government

employee, as the allegations made by the complainant

are unrelated to the performance of his official duties.

Furthermore, this Court observes that the

incident in question occurred in Chittorgarh while the

petitioner was posted in the Ajmer District Police

Department, thereby rendering the invocation of

Section 197 of Cr.P.C. inappropriate at this stage. In

this context, the application filed by the petitioner

under Section 197(2) of the Cr.P.C. is devoid of merit,

and the learned trial court has rightly dismissed the

same. This court deems justified as it aligns with the

judicial interpretation of the statute, underscoring that

accountability for actions outside the purview of official

duty must be upheld to ensure the protection of

individuals from unlawful acts, irrespective of the

alleged offender's status as a public servant.

In view of above, the impugned order does not

suffer from any illegality and perversity. The learned

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trial court has passed a reasoned order, which requires

no interference from this Court.

The revision petition, being bereft of any merit,

is hereby dismissed.

Stay application also dismissed.

(MANOJ KUMAR GARG),J 47-MS/-

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