Holding

If the acts of a public servant are alleged to have been committed in the discharge of official duty and have a reasonable nexus with that duty, they are protected by Section 197 CrPC and cannot be taken cognizance of without prior sanction.

Summary

Gauri Shankar Prasad, a Sub‑Divisional Magistrate, entered a complainant's clinic to enforce a court‑ordered removal of encroachments on government land, used abusive language and dragged the complainant out. The complainant filed a criminal complaint alleging offences under Sections 323, 504 and 452 IPC, and the Additional Chief Judicial Magistrate took cognizance. The magistrate sought to quash the cognizance order on the ground that Section 197 of the Criminal Procedure Code required prior sanction because the acts were performed in the discharge of official duty. The Patna High Court rejected the petition, holding that the alleged conduct was not directly connected with the magistrate’s official duties. The Supreme Court allowed the appeal, holding that the magistrate’s actions had a reasonable and rational nexus with his duty to remove encroachments, and therefore Section 197 applies, requiring sanction before any criminal proceeding. Consequently, the High Court’s order was set aside and the cognizance order was quashed, though the authority may still obtain the necessary sanction.

Issues considered

Whether the acts alleged against the Sub‑Divisional Magistrate fall within the protection of Section 197 CrPC.
Whether there is a reasonable and rational nexus between the alleged acts and the official duty of removing encroachments.

Legislation cited

Code of Criminal Procedure, 1973s. 197
Indian Penal Code, 1860s. 323, s. 452, s. 504

Subjects

Section 197 CrPCImmunity of public servantsReasonable nexus testCriminal proceedingsSub‑Divisional MagistrateEncroachment removal

Judgment

);-

GAURISHANKARPRASAD A
v.
STATE OF BIHAR AND ANR.

- -. APRIL 19, 2000

[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B

Criminal Procedure Code, 1973-Section 197-Sanction for prosecu-
tion of Judges and Public Servants-No court shall take congnizance of any
offence alleged to have been committed by public servant acting or purporting
to act in the discharge of his official duty-Previous sanction of the Central c
Government or Stqte Government required-Offence committed to have rea-
sonable and rational nexus with the official duties required to be discharged-
Appellant, a Sub-Divisional Magistrate, for the purpose of removal of en-
l' croachment from government land allegedly entered the chamber of the
complainant, used filthy language and dragged him out-Held, the act alleged
has a reasonable nexus with the official duty of the appellant and hence is D
entitled to the immunity from criminal proceedings without sanction.

Appellant was a Sub-Divisional-Officer at place 'N'.For the purpose
.._ of removal of the encroachments from the government land carried out by
respondent, the appellant is alleged to have entered the chamber of the
E
respondent, used filthy language and dragged him out of the chamber in

-- )-:-
discharge of his official duty. Aggrieved, respondent ftled a romplaint. The
Additional Chief JudiciaLMagistrate took cognizance of the offence against
the appellant under the penal code. The appellant filed a petition seeking
quashing of the congnizance order on the ground of want of sanction of the
competent authority under section 197 of the Code of Criminal Procedure. F
The High Court dismissed the petition holding that the allegations consti-
toting the offence against the appellant are not directly or reasonably
connected with bis official duty. Hence this appeal.

Allowing the appeal, this Court
G

- + HELD : 1.1. Section 197 of Criminal Procedure Code affords protec-
tion to a judge or magistrate or a public servant. The protection is provided
in the form that no Court shall take cognizance of such offence except with
the previous sanction of the Central Government or State Government as
the case may be against any offence alleged to have been committed by him H
159
160 SUPREME COURT REPORTS [2000] 3 S.C.R.
A while acting or purporting to act in the discharge of his official duty. The
offence said to have been committed should have reasonable and rational
nexus with the official duties required to be discharged by such public
servant. [163-F; 164-C]
r"
1.2. The object to the section is to save judges, magistrates and public
B servants from vexatious proceedings but it is no part of the policy to set
such officials above the common law. H he commits an offence not con-
nected with his official duty he has no privilege. [163-G]

1.3. The appellant in discharge of his official capacity as a Sub-
c Divisional Magistrate who for the purpose of removal of encroachment
from government land allegedly entered the chamber of the complaint,
used filthy language and dragged him out of the chamber. The act alleged
has a reasonable nexus with the official duty of the appellant and hence is
entitled to the immunity from crhninal proceedings without sanction under "'f
section 197 of Code of Criminal Procedure. [166-D-F]
D
Matajog Dobey v. H.C. Bhari, Am (1956) SC 44; Suresh Kumar
Bhikamchand Jain v. Pandey Ajay Bhushan & Ors., [1998] 1 SCC 205; State
through the CBI v. B.L Venna & Another, [1997] 10 SCC 772 andN.K. Ogle v.
Sanwaldas alias Sanwalmal Ahuja, [1999] 2 SCC 284, relied on.
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 379
of 2000.

From the Judgment and Order dated 19.5.99 of the Patna High Court
in Crl. M. No. 23755 of 1998.
F -1.
Sunil Kumar, Dr. Sumant Bhardwaj, Y.R. Mishra, Ms. Mridula Ray
Bharadwaj, B.B. Singh and S.V. Deshpande for the appearing parties.

The Judgment of the Court was delivered by
G
D.P. MOHAPATRA, J. Leave granted.
_,.
The short question that arises for determination in this case is whether .,....
on the allegations made in the complaint and the materials available on record,
Section 197 of the Code of Criminal Procedure is applicable to the case? The
H High Court of Patna having answered the question in the negative the accused
G.S. PRASAD v. STATE [D.P. MOHAPATRA, I.] 161
has filed this appeal challenging the order. A
Tue factual Matrix given rise to the proceeding may be stated thus:

Tue appellant Gauri Shankar Prasad was the Sub-Divisional Officer at
Naugachia on 12.8.1996. In pursuance of an order of the Patna High Court
in a public interest litigation that encroachments from road and roadside lands B
and unauthorised structures should be removed, the national highway division
of the Public Works Department under the supervision of the appellant carried
out operations for removal of encroachments according to the programme
decided in a meeting of the officers of the departments concerned. In course
of the drive undertaken for removal of encroachments on roadside lands the
respondent was asked to remove a portion of the boundary wall which
c
according to the measurements made by the officials of the PWD had
encroached upon roadside land. When· the appelJ,ant and the other officials
tried to remove the encroachments on 12.8.1996, the respondent objected/
protested against such action and filed a complaint in the Court of the Addi.
Chief Judicial Magistrate, Naugachia which was registered as compliant No. D
129 of 1996.

Tue averments made in the complaint which are material for the present
purpose are as follows :

"That the residential-cum-clinic of the complainant and his wife is E

...
situated over cadestral Plot No. 207 4 and 2072 constructed in or about
the year 1973 to 1975 surrounding with boundary walls and the public
road possesses through just in the side of the boundary wall of
aforesaid residence of the complaint.

That it is also fit to be submitted that previously the accused F
maliciously took steps for cancellation of Arms Dealer's License in
the name of the son of the complainant but the accused could not
succeed in his nefarious game.

That recently the accused became active against the complainant in
G
the garb and pretence of removal of public land encroachment
movement and on false measurement knowingly and intentionally got
a red mark fixed on the boundary wall of the complainant in the name
of alleged encroachment of the road.

That the complainant in a bona fide way sent a notice u/s 80 C.P.C. H
162 SUPREME COURT REPORTS [2000) 3 S.C.R.
A to the collector Bhagalpur complaining against the so called alleged
encroachment.

That on the completion of the period in the notice the complainant
filed a suit in the court of Munsif Naugachia, bearing suit No. 68/96 --
for issue of permanent injunction against the State of Bihar through
B collector and S.D.M. Naugachia and there is also petition for issue of
ad-interim injunction which is to put up for hearing.
~·

That on the date and time of above mentioned occurrence and accused
Gauri Shankar Prasad along with large number of labourers and
constables came to the premises of the complainant and started the
c works of demolition whereupon the family members of the complain-
ant requested the accused first to see the complainant who was at that
time treating the patients in his clinic along with his.wife Dr. Bimla
Roy.

D That thereupon the accused Sri Gauri Shankar Prasad along with 10-
11 constables rushed into the clinic and started abusing the filthy
language thereupon the complainant protested and the accuse took
away the licency gun of the complainant which was therein a room
in the side of clinic and accused Gauri Shankar Prasad further ordered
.Jt
to drag out the complainant from the clinic and the constable obeyed
E the order and the constables dragged the complainant out who is a
man of one leg and automatically he fell down.

That subsequently the complainant has been informed that the pucca
gate boundary walls Isolation ward, Gairaz and cow-shed, all have
F
been demolished illegally without any reason.
.,..
That it is humbly submitted that there is no encroachment. The total
episode was maneuvered by the accused due to the political reason.

That it is submitted that accused Gauri Shankar Prasad has committed
an offence of house trespass with preparation to assault the complaint
G
and also commit theft of his gun valued at Rs. 10,000 (fen thousand)
and has also committed mischief by demolishing boundary walls and ~
part of the building putting the complaint in loss of Rs. 50,000." ,,._

The learned ACJM by the order dated 22.5.98 took cognizance of the
H offence under sections 323, 504 and 452 of the IPC against the appellant.
G.S. PRASAD v. STATE [D.P. MOHAPATRA, J.] 163
Thereafter the appellant filed the petition before the High Court seeking A
quashing of the cognizance order dated 22.5.98 on tlie ground of want of
sanction of the competent authority as required under section 197 Cr.P.C.,
which was registered as Cr. Misc No. 23755/98. The High Court in the
impugned Judgment dismissed the petition holding, inter alia, that the
allegations constituting the offence against the appellant are not directly or
B
reasonably connected with his official duty. The High Court observed:

..J "Even assuming for the sake agreement that the petitioner had gone
to discharge his official duty of removing encroachment but in
performance of such duty he did not face any resistance from either
of the farnil y members of the complainant or the complainant himself. C
In these circumstances in my view, there was no reason for the
petitioner to enter the chamber of the complainant and to use filthy
languages and order for dragging out the complainant out of his
chamber. Moreover, what led him to take the complainant and his wife
to the police station and detain them there for the whole day is not D
clear from the records."

From the afore-quoted observations, it appears that the High Court was
of the view that though the appellant had gone to the place of occurrence to
discharge his official duty, there was no justification for him to enter the
chambers of the complainant, abuse him and take him and his wife to the E
police station.

Section 197 Cr.P.C. affords protection to a judge or magistrate or a
public servant not removable from his office save by or with the sanction of
the Government against any offence which is alleged to have been committ~
F
by him while acting or purporting to act in the discharge of his official duty.
The protection is provided in the form that no Court shall take cognizance of
such offence except with the previous sanction of the Central Government or
State Government as the case may be. The object of the section is to save
officials from vexatious proceedings against judges, magistrates and public
servants but it is no part of the policy to set an official above the common law. G
If he commits an offence not connected with his official duty he has no
privilege. But if one of his official acts is alleged to be an offence, the State
will not allow him to be prosecuted without its sanction. Section 197 embodies
one of the exceptions to the general rules laid down in section 190 Cr.P.C.,
that any offence may be taken cognizance of by the Magistrates enumerated H
164 SUPREME COURT REPORTS [2000] 3 S.C.R.
A therein. Before this section can be invoked in the case of a public servant two
conditions must be sati~fied i.e., (1) that the accused was a public servant who
was removable from his office only with the sanction of the State Government
or the Central Government; and (2) he must be accused of an offence alleged
to have been committed by him while acting or purporting to act in the
discharge of his official duty.
B
What offences can be held to have been committed by a public servant
while acting or purporting to act in the discharge of his official duties is a
vexed question which has often troubled various courts including this Court.
Broadly speaking, it has been indicated in various decisions of this Court that
c the alleged action constitution the offence said to have been committed by the
public servant must have· a reasonable and rational nexus with the official
duties required to be discharged by such public servant.

More than four decades ago, this Court speaking through Chandrasekhara
Aiyar, J. in Matajog Dobey v. HC. Bhari, AIR 1956 SC 44 succinctly stated
D the principle of law in these words:

"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 S. 197, unless the act
E complained of is an offence, the only point to determine is whether
it was committed in the discharge of official duty. There must be a
reasonable connection between the act and the offici~ 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 'proceeds on the merits.
F
What we must find out is whether the act and the official duty are
so inter-related that one can postulated reasonably that it was done
by the accused in the performance of the official duty, though possibly
in excess of the needs and requirements of the situation."
G This Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan
and others, [1998] 1 sec 205 dealing with the question, the stage at which
the plea against taking cognizance without a sanction from the competent
authority can be raised observed thus:-

H "The legislative mandate engrafted in sub-section (1) of Section 197
G.S. PRASAD v. STATE [D.P. MOHAPATRA, J.] 165
debarring a court from talcing cognizance of an offence except with A
a 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 his office save by or with the sanction of the government touches
B
the jurisdiction of the court itself. It is a prohibition imposed by the
statute from taking cognizance, the accused after appearing before the
court on process being issued, by an application indicating that
Section 197(1) is attracted merely assists the court to rectify its error
where jurisdiction has been exercised which it does not possess. In
such a case there should not be any bar for the accused producing the c
relevant documents and materials which will be ipso facto admissible,
for adjudication of the question as to whether in fact Section 197 has
any application in the case in hand. It is no longer in dispute and has
been indicated by this Court in several cases that the question of
sanction can be considered at any stage of the proceedings."
D
In that case, this Court referred to the decision inMatajog Dobey v. H.C.
Bhari (supra).

In the case of State through the CBI v. B.L. Venna and Another, [ 1997]
10 SCC 772, this Court held that since it is not disputed that actions alleged E
against the public servant lay within the scope of his official duties or at any
event were allegedly committed in the purported discharge of his duties as
Director of Enforcement though it is canvassed that he had abused his official
position while discharging his official duties that would not oust the necessity
of sanction under Section 197 Cr. P.C. to take cognizance of the offence. This
Court observed that expressed "no Court shall take cognizance of such offence F
except with the previous sanction" occuning in Section 197 Cr.P.C. unmistak-
ably shows that the bar on exercise of powers by the Court to take cognizance
is mandatory and the previous sanction from the competent authority for
prosecution of the public servant, who is accused of having committed an
offence either in the execution of his duties or in the purported execution of G
his duties is essential to take cognizance. This Court confirmed the or~er of
the High Court directing the dropping of proceedings against the public
servant, in the absence of such a sanction.

In the case of NK. Ogle v. Sanwaldas Alias Sanwalmal Ahuja, [1999]
3 sec 284, in which the appellant at the relevant time was the Tehsildar and H
166 SUPREME COURT REPORTS [2000] 3 S.C.R.
A the District Collector had passed an order for collecting the lease money of
Rs. 4653 from the respondent and on the basis of such order of the District
Collector, the appellant registered the matter in his Court and ordered for
issuance of the demand letter and a demand letter had been served on the
respondent and yet the respondent had not made the payment and, therefore,
an attachment warrant was issued and a few days thereafter when the
B
respondent was available with the Scooter in the Tehsil Office, the said Scooter
was seized and such seizure and retention of the Scooter of the respondent was
the gravamen of the allegation of offence under Section 379 in the complaint
case, this Court took the view that such action of the Tehsildar cannot but be
a bona fide act on the part of the appellant in purported exercise of the power
C under the M.P. Land Revenue Code. On the aforesaid finding, this Court held
that the acts complained of by the respondent against the appellant had been
committed in discharge of the official duty of the Tehsildar and, therefore, no
cognizance could be taken by any Court without prior sanction of the
competent authority.
D Coming to the facts of the case in hand, it is manifest that the appellant
was present at the place of occurrence in his official capacity as Sub-
Divisional Magistrate for the purpose of removal of encroachment from
government land and in exercise of such duty, he is alleged to have committed
the acts which form the gravamen of the allegations contained in the complaint
E lodged by the respondent. In such circumstances, it cannot but be held that the
acts complained of by the respondent against the appellant have a reasonable
nexus with the official duty of the appellant. It follows, therefore, that the
appellant is entitled to the immunity from criminal proceedi.-igs without
sanction provided under Section 197 Cr.P.C. Therefore, the High Court erred
in holding that Section 197 Cr.P.C. is not applicable in the case.
F
Accordingly, the appeal is allowed. The order dated 9th May, 1999
passed by the High Court of Patna in Criminal Misc No. 23755 of 1998 is set
aside and the cognizance order passed by the learned Magistrate is quashed.
It is made clear that this order will not prevent the authority concerned from
G taking necessary steps to obtain sanction from the competent authority as
required under Section 197 Cr.P.C. and, thereafter proceed in the matter in
accordance with law.

NJ. Appeal allowed.