SHRI S.K. ZUTSHI AND ANR.versusSHRI BIMAL DEBNATH AND ANR.

A                      SHRI S.K. ZUTSHI AND ANR.
                                       v.
                    SHRI BIMAL DEBNATH AND ANR.

                              AUGUST 10, 2004

B               [S.N. VARIAVA AND ARIJIT PASAYAT, JJ.]

         Code of Criminal Procedure, 19 73 :

        S. 197-Prosecution of public servants-Claim for protection-
C Complaint against personnel ofSecurity Force that they demanded illegal
  gratification and on refusal committed offences u!ss. 395, 447and 506
  !PC-Stand of the officials that they acted in the course of their official
  duty as they suspected the complainant to have stored goods for purposes
  ofsmuggling-Held, s.197 does not get immediately attracted on institution
  of complaint-It must be shown that official concerned was accused of an
D offence alleged to have been committed by him while acting or purporting
  to act in discharge of his office duty-On facts, no case for interference
  made out-Principles underlying s.197-Explained.

         Words and Phrases:
E
         'Official duty' as occurring in s.197, Cr.P.C.-Connotation of

        A complaint was filed by ri!spondent No. 1 that appellants and
  some other personnel of Border Security Force came to his shop and
  demanded Rs. I 0,000 as illegal gratification and, on his refusal, they
F ransacked the shop, took away some shop articles and documents and
  threatened him with dire consequences, and thus committed offences
  punishable under ss. 395, 447 and 506 IPC. The appellants were issued
  process. They filed an application under s.397 of Code of Criminal
  Procedure, 1973 before the Additional Sessions Judge questioning the
G order taking cognizance and the consequential proceedings, contend-
  ing that they acted in the course of their official duty under the
  provisions of the Customs Act, 1962 as they suspected that the
  complainant had stored in his shop some articles for the purpose of
  smuggling and, therefore, they were entitled to protection under s.197
H of the Code. The Additional Sessions Judge held thats. 197 of the Code
                                      400
                  S.K. ZUTSHI v. BIMAL DEBNATH                       401

was not applicable to the facts of the case. Aggrieved, the officials filed A
the present appeal.                                           ·

     Dismissing the appeal, the Court

     HELD : 1. The protection under s.197 of the Code of Criminal B
Procedure, 1973 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. [405-A-B)

     Bakshish Singh Brar v. Smt. Gurmej Kaur & Anr., AIR (1988) SC         C
257, relied on.

      2. 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 D
of his official duties. 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 E
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. [405-C-G)                                                 p
     P. Arulswami v. State of Madras, AIR (1967) SC 776, relied on.

      5. 'Official duty' 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 G
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 b) a public servant in discharge of his H
    402                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A duty then it must be given liberal and wide construction se far as its
    official nature is concerned, 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. (408-G-H; 409-A-B]
B       B. Saha and Ors. v. MS. Kochar, {1979} 4 SCC 177 and Matajog
    Dobey '" HC. Bhari, AIR (1956) SC 44, relied on.

         R. Balakrishna Pillai v. State of Kera/a, AIR (1996) SC 901, State
    of MP. v. MP. Gupta, (2004] 2 SCC 349 and State of Orissa through
C   Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew, JT (2004) 4
    52, cited.

         6. In the instant case, the complaint is that illegal gratification of
    Rs. 10.000 was demanded and, because of refusal to pay, the shop was
    ransacked and goods taken away. When this factual background is
D   considered on the anvil oflegal principles underlying s.197 of the Code,
    the inevitable conclusion is that the appellants have not made out any
    case for interference. [410-B]

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E   30 of 1999.

          From the Judgment and Order dated 7.4.98 of the Court of Additional
    District and Sessions Judge, Belonia, South Tripura, in Cr!. Revision No.
    29(4) of 1997.

F         Ashok Bhan, Vishnu Sharma, D.S. Mehra and P. Parmeswaran (NP)
    for the Appellants.

          Gopal Singh and Ms. Madhu Moolchandani for the Respondents.

          The Judgment of the Court was delivered by
G
          ARIJIT PASAYAT, J.: Appellants call in question legality of the
    judgment rendered by learned Additional Sessions Judge, Belonia, South
    Tripura in Criminal Revision No. 29(4) of 1997. Appellants had challenged     ...
    legality of the cognizance taken and issuance of process on the basis of
H   a complaint filed by respondent no. I. The complaint was filed by
         S.K. ZUTSHI v. BIMAL DEBNATH [PASAYAT, J.)                  403

respondent no.I alleging that on 21.3.1997 the present appellants along A
with some other personnel of Border Security Force (in short 'BSF') came
to his crockery-cum-cloth shop and demanded Rs. I 0,000 as illegal grati-
fication which the complainant refused to pay. They entered into his shop
without any authority, ransacked the shop and illegally took away some
commodities which were stored for business purposes. Certain documents B
were also taken away. It was further alleged that they threatened him to
take away his life and with dire consequences on the point of revolver.
They illegally took away the articles on the basis of a purported seizure
memo taking signature of some persons forcibly. Allegations were also
made about the illegal activities ofBSF personnel and as to how the people C
in the locality were subjected to reign of terror by them. It was in essence
alleged that the accused persons committed offences punishable under
Sections 395, 44 7 and 506 of the Indian Penal Code, 1860 (in short the
'IPC'). Learned Additional Sessions Judge, Belonia, took cognizance of
the offences and issued process to the present appellants. The order taking
cognizance and the continuance of the proceedings were questioned by the D
appellants before the learned Additional Sessions Judge, Belonia by filing
an application under Section 397 of the Code of Criminal Procedure, 1973
(in short the 'Code'). The only point which was urged was that the
appellants were, on the basis of a notification issued in June, 1986,
authorized to function under Sections 100-104, 106, 107, 109 and 110 of E
the Customs Act, 1962 (in short the 'Customs Act'). As the appellants
suspected that the complainant had stored articles in his shop for the
purpose of smuggling to Bangladesh, seizure was made. There was no
demand of gratification as alleged. The acts done were clearly within the
permissible area of statutory duties and they were entitled to get the F
protection under Section 197 of the Code.

      The stand was resisted by the respondent-complainant on the ground
that the acts complained of had not even any remote link with any official
acts and duties and, therefore, Section 197 of the Code has no application.
Learned Additional Sessions Judge, Belonia, accepted the stand of the G
complainant and held that Section 197 of the Code had no application to
the facts of the case.

     In support of the appeal learned counsel submitted that the factual
scenario clearly shows that the acts done by the appellants were sanctioned H
    404                SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.
A by law. Under the belief that articles were stored with the object of
    smuggling, the search and seizure were made. There is no evidence except
    the vague assertion of the complainant about the alleged demand of any
    illegal gratification and/or other acts. Taking into account the objective
    for which Section 197 of the Code has been enacted it is a fit case where
B   the protection provided by the said provision should be extended. Learned
    counsel for the respondent no. I-complainant, however, submitted that the
    acts alleged do not have any link whatsoever with the officials acts and,
    therefore, the order taking cognizance and/or directing issuance of process
    cannot be faulted. The judgment of learned Additional Sessions Judge,
    Belonia, does not suffer from any infirmity to warrant interference.
c
          The pivotal issue i.e. applicability of Section 197 of t'ie Code needs
    careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and
    Anr., AIR (1988) SC 257, this Court while emphasizing on the balance
    between protection to the officers and the protection to the citizens
D   observed as follows:-

                  "It is necessary to protect the public servants in the discharge
             of their duties. In the facts and circumstances of each case
             protection of public officers and public servants functioning in
             discharge of official duties and protection of private citizens have
E
             to be balanced by finding out as to what extent and how far is
             a public servant working in discharge of his duties or purported
             discharge of his duties, and whether the public servant has
             exceeded his limit. It is true that Section 196 states that no
             cognizance can be taken and even after cognizance having been
F            taken if facts come to light that the acts complained of were done
             in the discharge of the official duties then the trial may have to
             be stayed unless sanction is obtained. But at the same time it has
             to be emphasised that criminal trials should not be stayed in all
             cases at the preliminary stage because that will cause great
G            damage to the evidence."

         The protection given under Section 197 is to protect re3ponsible
    public servants against the institution of possibly vexatious criminal
    proceedings for offences alleged to have been committed by them while
H   they are acting or purpo1iing to act as public servants. The policy of the
          S.K. ZUTSHI v. BIMAL DEBNATH [PASAYAT, J.]                   405

legislature is to afford adequate protection to public servants to ensure that A
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 B
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 C
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 D
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 ofit. 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 E
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 F
act complained of could have made him answerable for a charge of
dereliction of his official duty, if the answer to his questioP. 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 G
public servant. This aspect makes it clear that the concept of Section 197
does not get immediately attracted on institution of the complaint case.

    At this juncture, we may refer to P. Arulswami v. State of Madras,
AIR (1967) SC 776, wherein this Court held as under:                         H
    406                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A            " ... 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
B
             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
c            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."

D         Section 197( I) and (2) of the Code reads as under :

             "197. (1) When any person who is or was a Judge or Magistrate
             or a public servant not removable 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
E            in the discharge of his official duty, no Court shall take cogni-
             zance of such offence except with the previous sanction -

             (a) in the case of person who is employed or, as the case may be,
             was at the time of commission of the alleged offence employed,
F            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
G            Government.

             •               *                     *
             (2) No Court shall take cognizance of any offence alleged to have
H            been committed by any member of the Armed Forces of the Union
              S.K. ZUTSHI v. BIMAL DEBNATH [PASA YAT, J.]                  407

            while acting or purporting to act in the discharge of his official A
            duty, except with the previous sanction of the Central Govern-
            ment."


    The section falls in the chapter dealing with conditions requisite for
    initiation of proceedings. That is if the conditions mentioned are not made B
    out or are absent then no prosecution can be set in motion. For instance
    no prosecution can be initiated in a Court of Sessi<'>ns under Section 193,
    as it cannot take cognizance, as a court of original jurisdiction, of any
    offence unless the case has been committed to it by a Magistrate or the
    Code expressly provides for it. And the jurisdiction of a Magistrate to take C
    cognizance of any offence is provided by Section 190 of the Code, either
    on receipt of a complaint, or upon a police report or upon information
    received from any person other than police officer, or upon his knowledge
    that such offence has been committed. So far public servants are concerned
    the cognizance of any offence, by any court, is barred by Section 197 of
    the Code unless sanction is obtained from the appropriate authority, ifthe D
    offence, alleged to have been committed, was in discharge of the official
    duty. The section not only specifies the persons to whom the protection
    is afforded but it also specifies the conditions and circumstances in which
    it shall be available and the effect in law ifthe conditions are satisfied. The
    mandatory character of the protection afforded to a public servant is E
    brought out by the expression, 'no court shall take cognizance of such
    offence except with the previous sanction'. Use of the words, 'no' and
    'shall' make it abundantly clear that the bar on the exercise of power by
    the court to take cognizance of any offence is absolute and complete. Very
    cognizance is barred. That is the complaint, cannot be taken notice of. F
    According to Black's Law Dictionary the word 'cognizance' means
    'jurisdiction' or 'the exercise of jurisdiction' or 'powert0 try and determine
    causes'. In common parlance it means 'taking notice of. A court, therefore,
    is precluded from entertaining a complaint or taking notice of it or
    exercising jurisdiction if it is in respect of a public servant who is accused
    of an offence alleged to have committed during discharge of his official G
    duty.



-        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 H
    408                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A   understood? What does it mean? 'Official' according to dictionary, means
    pertaining to an office, and official act or ofpcial duty means an act or duty
    done by an officer in his official capacity. In B. Saha and Ors. v. M S.
    Kochar, [1979] 4 SCC 177, it was held: (SCC pp. 184-85, para 17)

             "The words 'any offence alleged to have been committed by him
B            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,
c            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 two extremes. While on
D            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 and the said
             provision."
E
    Use of the expression, 'official duty' implies that the act or omission must
    have been done by the public in the course of his service and that it should
    have been in discharge of his duty. The Section does not extend its
    protective cover to eve1y act or omission done by a public servant in service
F   but restricts its scope of operation to only those acts or omissions which
    are done by a public servant in discharge of official duty.

          It has bP<'l1 wid1>n" ~ wrther by extending protection to even those acts
    (Jr omis>1ons which are done in purported exercise of official duty. That
G   ;, u: Jer the colour of office. Official duty therefore implies that the act
    01 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



H
    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
                                                                                      --
          S.K. ZUTSHI v. BIMAL DEBNATH [PASAYAT, J.]                    409

which are discharged in course of duty. But once any act or omission has A
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 B
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 C
to use force which may be an offence for the prosecution of which the
sanction may be necessary. But ifthe same officer commits an act in course
of service but not in discharge of his duty and without any justification
therefor 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 D
Matajog Dobey 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 E
         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 it in the course of the performance of his duty."

     If on facts, therefore, it is prima facie found that the act or omission
                                                                                F
for which the accused was charged had reasonable connection with
discharge of his duty then it must be held to official to which applicability
of Section 197 of the Code cannot be disputed.

     The correct legal position, therefore, is that an accused facing G
prosecution for offences under the Old Act or New Act cannot claim any
immunity on the ground of want of sanction, if he ceased to be a public
servant on the date when the court took cognizance of the said offences.
But the position is different in cases where Section 197 of the Code has
application.                                                             H
    410                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A        Above position was highlighted in R. Balakrishna Pillai v. State of
    Kera/a, AIR (1996) SC 901, State of MP. v. MP. Gupta, [2004] 2 SCC
    349 and in State of Orissa through Kumar Raghvendra Singh & Ors. v.
    Ganesh Chandra Jew, JT (2004) 4 SC 52.

B         In this case the complaint is that illegal gratification ofRs.10,000 was
    demanded and because of refusal to pay the shop was ransacked and goods
    taken away. When this factual background is considered on the anvil of
    legal principles delineated above, the inevitable conclusion is that the
    appellants have not made out any case for interference. The appeal fails
    and is dismissed.
c
          Before we part in the case, it has to be 11oted that learned counsel for
    the appellants submitted that there was prayer ma~e for transfer of the
    proceedings in terms of Section 4 75 of the Code which has not been
    considered. To a pointed query whether such a stand was taken before
D   learned Additional Sessions Judge, no definite reply could be given. In
    addition, we find that after disposal of the matter by learned Additional
    Sessions Judge, a petition was filed before learned SDJM with reference
    to Section 475 of the Code. The same has been dealt with and orders have
    been passed on 18th June, 1998 which have become final. That being so,
E   the plea in that regard presently raised has no leg to stand.

           The appeal fails and is dismissed.

    R.P.                                                      Appeal dismissed.