A Bench of Supreme Court in State of Orissa through Kumar Raghvendra Singh and others vs. Ganesh Chandra Jew [(2004) 8 SCC 40], wherein an allegation was made against six officers of the Orissa Forest Department that they had falsely implicated the complainant for offences punishable under the Orissa Forest Act and the Wild Life (Protection) Act, 1972, and being not content with the said illegal acts, they seriously assaulted him and thereby committed offences punishable under Sections 341, 323, 325, 506 and 386 read with Section 34, IPC, was of the opinion :
“Use of the expression “official duty” implies that the act or omission must have been done by the public servant 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 every act or omission done by a public servant in service 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 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 the 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 the course of service. Its operation has to be limited to those duties which are discharged in the 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 as 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 the 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 the 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 Matajog Dobey vs. H.C. Bhari thus (AIR 1956 SC 44, paras 17 and 19)
“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 it in the course of the performance of his duty.”
The said decision was relied upon by another Bench in S. K. Zutshi and another vs. Bimal Debnath and another [(2004) 8 SCC 31], holding that when the complaint was that illegal gratification was demanded and accepted, the shop was ransacked and goods were taken away, no sanction would be required. ;
However, a somewhat different view was taken in K. Kalimuthu vs. State by DSP [(2005) 4 SCC 512] wherein the allegation made against the Appellant was that he was guilty of various offences punishable under the Indian Penal Code as also under the 1988 Act. It was held :
“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.”
It was further observed :
“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.”
Matajog Dobey vs. H.C. Bhari [(1955) 2 SCR 925] is a decision rendered by a Constitution Bench of Apex Court. In that case search of the premises was made by the officers of the Income Tax Department. They were authorized to make the search and they had with them a warrant issued by the Commissioner for the said purpose. Allegedly, they broke open the door, went inside, interfered with some books and drawers of tables, tied the complainant with a rope and assaulted, causing injuries. Chandra-sekhara Aiyar J., speaking for the Constitution Bench was of the opinion :
“The objection based on entry into the wrong premises is of no substance; it is quite probable that the warrant specified 17 instead of P-17 by a bona fide mistake or error; or it may be that the party made an honest mistake. As a matter of fact, the account books, etc. were found in P-17, the premises raided.
Slightly differing tests have been laid down in the decided cases to ascertain the scope and the 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”. But the difference is only in language and not in substance. 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 to determine 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 proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate 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.”
In B. S. Sambhau vs. T. S. Krishna-swamy [(1983) 1 SCC 11], relying on Matajog Dobey (supra), apex Court held that defamatory language used by a judge to an advocate does not attract the requirement of Section 197 Cr. P.C.
In Om Prakash Gupta vs. State of U.P., [(1957) SCR 423], another Constitution Bench of apex Court distinguished offences punishable under the 1988 Act and the Criminal Breach Trust, stating :
“…These two offences can co-exist and the one will not be considered as overlapping the other. A course of conduct can be proved when a person is arraigned under Ss.5(1)(a) and 5(1)(b), but such a course is impossible to be let in evidence when an offence under Ss. 161 and 162 is being enquired into or tried. Similarly there are a number of elements which can be proved in an inquiry or trial under S. 5(1)(c) that cannot be let in by the prosecution when a person is charged for an offence under S. 405 of the Indian Penal Code. In S. 405 of the Indian Penal Code the offender must wilfully suffer another person to misappropriate the property entrusted, but in S. 5(1)(c) if he allows another person to dishonestly or fraudulently misappropriate or otherwise convert for his own use any property so entrusted, then it is an offence. There is a vast difference between wilfully suffering another and allowing a person to do a particular thing and in our view the word “allows” is much wider in its import. Wilfully pre-supposes a conscious action, while even by negligence one can allow another to do a thing.
It seems to us, therefore, that the two offences are distinct and separate…”
In Manohar Nath Kaul vs. State of Jammu and Kashmir, [(1983) 3 SCC 429], apex Court was of the opinion that cheating by drawing T.A. does not answer the test of connection between the act in the discharge of official duty and the performance of the official duty and, thus, sanction for prosecution under Section 420, I.P.C. was not required.
In B. Saha and others vs. M.S. Kochar [(1979) 4 SCC 177] the accused had tampered with, broke the seal of the consignment seized by them and removed some of the goods and, thus, abused their position, this Court applying the test laid down by the Federal Court in Dr. Hori Ram vs. Emperor 1939 FCR 159 that the official capacity is material only in connection with the ‘entrustment’ and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of, opined :
“This, however, should not be understood as an invariable proposition of law. The question, as already explained, depends on the facts of each case. Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty of the accused and therefore, sanction under Section 197(1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409, Indian Penal Code was necessary.”
It was further held :
“In the light of all that has been said above, we are of opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 409/120-B, Indian Penal Code, because the, alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act.”
We may furthermore notice that in some cases, for example, State of Maha-rashtra vs. Atma Ram and others [AIR 1966 SC 1786]; Baijnath Gupta and others vs. The State of Madhya Pradesh [(1966) 1 SCR 210] and Harihar Prasad, etc. vs. State of Bihar [(1972) 3 SCC 89], having regard to the fact situation obtaining therein, Supreme Court opined that the order of sanction for prosecution of the Government Servant was not necessary.
In Om Prakash Gupta (supra), the Constitution Bench observed :
“The last argument of Mr. Isaacs is that despite the fact that the prosecution is under S. 409 of the Indian Penal Code, still sanction to prosecute is necessary. Quite a large body of case law in all the High Courts has held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant, see
(a) The State vs. Panduran Baburao (supra) (b) Bhup Narain Saxena vs. State (supra)
(c) State vs. Gulab Singh, AIR (1954) Raj. 211.
We are in agreement with the view expressed by Hari Shankar and Randhir Singh, JJ. that no sanction is necessary and the view expressed by Mull, J. to the contrary is not correct.,”
Abdul Wahab Ansari vs. State of Bihar and another [(2000) 8 SCC 500] is another decision wherein in regard to a dispute between two sets of Mohammedan residents, allegation of encroachment of the property belonging to a mosque was made by one group against the other and while removing the encroachment several miscreants armed with weapons started hurling stones and as the situation became out of control, the appellant therein gave order for opening fire and on that basis said to have committed offences punishable under Sections 302, 307, 380, 427, 504, 147, 148 and 149 of the Indian Penal Code; this Court framed the following question :
“Whether in the facts and circumstances of the present case, is it possible for the Court to come to a conclusion that the appellant was discharging his official duty and in course of such discharge of duty, ordered for opening of fire to control the mob in consequence of which a person died and two persons were injured and in which event, the provisions of Section 197 of the Code of Criminal Procedure can be held to be attracted ?”
The said question was answered in the following terms :
“Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey vs. H.C. Bhari that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure 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. In other words, 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 it in the course of the performance of his duty. In the said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command…”
The said decision, therefore, has no application in the facts and circumstances of this case.
In Harihar Prasad case, it was held :
“The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct…”