V V NAGARKAR Vs. M R DHAWAN

JUDGEMENT

(1.) On 4-6-80 Shri M. R. Dhawan one of the accused in R. C. 8/77 filed a criminal complaint against several persons including the petitioner herein, who is public servant for offences u/s 166/167/218/500/343 and 120 B J.P.C. read with Sections 166/167/218/500/343 Indian Penal Code A question arose before the learned Magistrate whether any sanction for the prosecution was or was not necessary under Section 197 Criminal Procedure Code . before the court could proceed. The learned Magistrate after discussing the evidence concluded by his order of September 9, 1980 that prima facie there are grounds for summoning the accused and it appears from his order that he did not consider that any sanction for the prosecution was necessary. He issued process against all the accused under different sections. The petitioner however was summoned u/s 120B, 166, 157, 218, 343 and 500 Indian Penal Code The petitioner challenged this order in the High Court. It was mainly contended that the prosecution was barred for want of requisite sanction u/s 197 and 196 Criminal Procedure Code .

(2.) Held that:- Just as a suit cannot be brought without a prior notice under Section 80 Civil Procedure Code against public officer "In respect of any act purporting to be done by him in his official capacity", no cognizance of an offence can be taken except with the previous sanction of the appropriate Government against a public servant not removable from his office save by or with the sanction of such Government if the offence alleged to have been committed, was so committed by the public servant "while acting or purporting to act in the discharge of his official duty". These words have been subjected to continual construction right from date they were enacted and have since eluded a. precise elucidation ; (1939 F.C. 43; 1948 P. C. 128 ; 1955 S. C. 287, 309, 1956 S. C. 44 : 1960 S. C. 266 and 745, 1969 S.C. 686 ; 1973 S, C. 2591 ; 1979 S.C. 1841 referred to). The section cannot be construed too widely to confer complete immunity on the public servants from any offences committed by them. On the other hand if it is construed too narrowly, it can never be applied for it can never be a part of an official's duty to commit an offence. It is not the duty, therefore, which have to be examined so much as the act. There must be something in the nature of the act that attaches it to the official character of the person doing it It must fall within the scope and range of his official duties. There are offences which are capable of being committed only by a public servant and by no one else, but that will be only one of the tests and not the sole test. It is also not intended to apply to acts done purely in a private capacity by a public servant. Nor can it be confined to only such acts as are done by a public servant negligently or in excess of the duty or situation or under a mistaken belief as to the existence of such duty. If the officer is acting in his official capacity, he need not resort to the defence that he bona fide, though erroneously, believed in the existence of such capacity. A person may act maliciously and yet act in the execution of his office. The significance of purporting to act is that the act must have been obstensibly done by him in his official capacity in execution of his duty or under the colour of his office. These words cannot that the public servant means or intends or purports to act us such, or that his action conveys to the mind of another that he is acting as such, (1918 Madras 62 referred to). It would not be so merely because it was done at a time when he held such office or was engaged in his official business, nor merely because the official status furnished an opportunity for commission of the offence. The test may well be whether the public servant, if challenged, can reasonably lay a claim, not a pretended or a fanciful one, that, what he did, he did in virtue of his office, irrespective of whether it is in fact a proper discharge of his duties or not. But official capacity will be involved in the very act complained of where that gravaman of the charge is that the public servant acted fraudulently, dishonestly or mala fide in the discharge of his official duty.

(3.) In short, sanction will be required for prosecution if (1) the public servant is acting in execution of his official function or duty or which the public servant believed in good faith to be his official function or duty (2), the act complained of is an integral part of such execution, that is, it is inseparably attached or co-related or connected with such execution, and (3) the act is an offence.