1. This revision petition is directed against the order dt. 6-2-1984 passed , by the Ist Additional Sessions Judge, Ujjain in Criminal Revision No. 114 of 1983 whereby allowing the revision filed by the non-applicant it has been held that cognizance of the offence under Section 323 of the I.P.C. against the non-applicant cannot be taken without prior sanction as required under Section 197(1) of the Cr. P.C. 1973 (for short 'the Code').

2. Circumstances giving rise to the revision petition are these. During the 'Simhashtha' of 1980 at 'Ujjain the non-applicant who belongs to Indian Police Service (I.P.S.) was Addl. Superintendent of Police, Ujjain. He was officer-in-charge of the Simhashtha fair. Under the All India Services (Discipline and Appeal) Rules 1969 a member of I.P.S. is removable from service with the sanction of the Central Govt.

3. According to the petitioner, when on 26-4-80 at about 10.30 p.m. he was returning on his motor-cycle through the fair area on way to his residence, the non-applicant stopped him and questioned him as to why he had come on the prohibited route. The petitioner had a pass issued by the Superintendent of Police. He showed it to the non-applicant and told him that if he had to be stopped, he could have been stopped at Mullapura post so that he could go by the ring road Upon this the non-applicant slapped him.

4. In relation to the occurrence aforesaid, the petitioner on 28-4-80 filed a criminal complaint only Under Section 323 of the I.P.C. against the non-applicant (vide Cr. Case No. 246/80 of the Court of Smt. Sharmishtha Dave, J.M.F.C. Ujjain).

5. The petitioner has stated in his complaint that after slapping him, the non-applicant had falsely stated that the former had caused an accident and would be prosecuted for the same and that he was later prosecuted by the Ujjain Police for rash and negligent driving but in the absence of any evidence, the prosecution terminated in his favour. His motor-cycle had been seized and he had been detained.

6. On the petitioner's complaint aforesaid, the learned Magistrate took cognizance of the offence under Section 323 of the I.P.C. against the non-applicant and process was issued.

7. After the lapse of considerable period since the service of process on him, the non-applicant on 2-2-83 applied to the learned Magistrate stating that in view of the provision embodied in Section 197(1) of the Code, cognizance of the offence against him could not be taken without previous sanction of the Government. In this connection the decision in S. S. Dhanoa's case may usefully be perused.

8. The learned Magistrate, by the order dt. 16-8-1983 negatived the aforesaid contention based on want of sanction on the ground that it has nowhere been stated in the application that at the relevant time the non-applicant was on duty or that what he did, he did in the course of his official duty.

9. The order passed by the learned Magistrate was subjected to revision wherein the learned Additional Sessions Judge has passed the impugned order rejecting the complaint on the ground that what the non-applicant did, he did in connection with his duty and, therefore, cognizance of the offence under Section 323 of the I.P.C. could not be taken without prior sanction as required under Section 197(1) of the Code. In the absence of sanction Under section 197 of the code court cannot pass any order of discharge or acquittal vide Nagraj's case .

10. The point for consideration is whether the impugned order deserves to be interfered with.

11. Section 197(1) of the Code is not in terms of section 96 of the ipc and it may be stated at the outset that the protection only of pre-condition of prior sanction for cognizance of offence against a public servant contemplated under Section 197(1) of the Code is designed neither for each and every category of public servant nor in respect of each and every offence committed by him. The protection is available only to a person who is or was Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the concerned government, and that too only where the accusation against him is of

""any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty""

. In a given case, the two sanctions may be by different averments.

12. The crucial question in the application of the provision in Section 197(1) of the Code regarding protection of precondition of prior sanction is as to the interpretation of the expression

""any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty""

as used therein.

13. As pointed in the decision in Bhagwan Prasad Srivastava v. N.P Mishra. the object and purpose underlying section 197 of the code is only to afford protection to certain categories of public servants against frivolous and vexatious or false prosecution in respect of offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty by providing for scrutiny into the allegation of commission of the offence by them. Therefore, it is in this context that the expression has to be construed. The following pertinent observations on the subject made in the decision may usefully be extracted:

It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty and never can be to commit an offence. 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. One must also guard against too wide a construction because in our constitutional set-up, the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. Broadly speaking, with us no man, whatever his rank or condition is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing Section 197, Cr.P.C, therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties.

The principle embodied in this section seems to be well understood; and difficulty normally lies in its application to the facts of a given case. The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case.

14. Reference in this very connection may. also be usefully made to the decisions in Kulwant Singh's case 1986 Cur Cri J (Note) 3 (Madh Pra), Kailash Chandra's case 1986 Cur Cri J (MP) 337 : 1987 Cri LJ 1423 and R. K. Charar's case 1987 MPLJ 56. In the decision in S. B. Saha v. M.S. Kochar several earlier decisions of the Supreme Court have been referred to and it has been observed thus:

The question of sanction under Section 197 can be raised and considered at any stage of the proceedings. In considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account all the materials on the record at the time when the question is raised and falls for consideration. The sine qua non for the applicability of Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.

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) 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 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 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. It is the quality of the act that is important, and if it falls within the scope arid range of his official duties, the protection contemplated by Section 197 will be attracted.

The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office.

It may be carefully noted that according to the decision the right approach to the import of the expression aforesaid lies between the two extremes of construing it too narrowly or too widely. Construed too widely the expression would attract 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.

15. In the decision in Satwant Singh v. State of Rajasthan it has been held that the expression "while acting or purporting to act in the discharge of the official duty" implies that the act must bear such relation to the duty that the public servant could lay a reasonable but not pretended or fanciful claim that he did it in the course of performance of his duty. It is pointed out that some offences cannot, by their very nature, be regarded as having been committed by the public servant while so acting. Where a public servant commits an offence of chearing or abets another to cheat, there is no requisite nexus between it and the performance of the duty of the public servant, the official status furnishing only the occasion or opportunity for the commission of the offence.

16. The decision in S. B. Sana's case (supra) relates to offences Under sections 409 and 120b of the i.p.c. and it has been held that sanction under section 197 of the code was not necessary. Therein it has been observed thus in para 23:

There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them was an act committed by them while acting in the discharge of their official duty. But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under Section 409, Indian Penal Code. Could it be said, that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants that they could genuinely claim that they committed it in the course of the performance of their official duty ? In the facts of the instant case, the answer cannot but be in the negative. There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it Nor could the alleged act of misappropriation or conversion be reasonably said to be imbued with the colour of the office held by the appellants.

In this very connection the decision in Omprakash Gupta's case is also pertinent. Reference may also be made to the decision in Ramayya v. State of Bombay which too relates to an offence under Section 409 of the I.P.C. Therein it has been observed as under:

Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention was which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.

17. As pointed out in Pukhraj v. State of Rajasthan whether sanction is necessary or not may depend from stage to stage and to attract the protection afforded by section 197 of the code all that is necessary is that the alleged offence though not inseparably connected with the official duty was in respect of an act done or purported to be done in the discharge of an official duty and not purely in a private capacity and a negligent act does not cease to be one done or purporting to be done in execution of a duty. In this very connection the decisions in Sombhai's case 1985 Cur Cri J (N) 87 and Somchand's case may also be usefully perused

18. In the decision in R. N. Mishra's case 1986 Cur Cri J (N) 131 the decision in Pukhraj's case (supra) has been distinguished on facts. In the decision in B. S. Sambhu's case wherein an Advocate in a letter by a Magistrate was called a rowdy, a big gambler and a mischievous element it was held that this could not be said to be in the discharge of official duties of the Magistrate.

19. The decision in Pancham Lal v. Dadan 1979 Cri LJ 1018 (Pat) relates to allegations of offences Under Sections 504 and 323/109 of the I.P.C. involving the petitioner who was I. A. S. and was posted as S.D.O. The following excerpt from para 8 of the decision is apposite:

There is no getting away from the situation, and it is obvious from the posture of the parties that the situation at village Sarathua over harvesting of Kola land crops was tense. In that situation, if the petitioner flung an abuse "Sale Tumhare Bap Ka Khet Hai" and "Maro Sale Ko", did he commit these acts while discharging his duty ? Law and order is quite a ticklish problem. What step will succeed at a particular point of time to ease out a particular situation has to be seen to be understood. It is quite different from sitting and calculating in a cool and serene atmosphere of a court room dissecting the acts and counter acts alleged by the parties. What posture and attitude will succeed in a given set of circumstances must be left to the discretion of the public servant who has to tackle an explosive situation. Often a slap to the gang leader demoralises his adherents and defuses the situation. The methods and demands of tackling a situation must keep on varying and yet all those acts are in discharge of duty may be in dereliction thereof. In the situation which existed on the facts of this case. I have no manner of doubt that the petitioner was acting in the discharge of his duties while he uttered those abuses. I am prepared to concede that to an extent he overstepped his bounds. But these niceties can only be gauged in this Court room. An amount of latitude must be conceded when public servants are in the field attending to explosive situation. In my view, in view of the law laid down in Shreekantiah Ramayya Munipalli v. State of Bombay and Matajog Dubey v. H. C. Bhari the prosecution of the petitioner was without jurisdiction in the absence of sanction to prosecute him.

The decision in State of M.P. v. Keshavanand 1966 MPLJ (SN) 15 and State of M.P. v. Keshavrao 1975 Jab LJ (SN) 59 are also pertinent.

20. Now I proceed to examine the act of the non-applicant of which complaint has been made by the petitioner, in the context of the principle underlying section 197 of the code and its application to the facts and circumstances of the decisions cited above.

21. In the instant case unlike the decision in B. P. Srivastava's case (supra) which relates to the complaint against the Civil Surgeon who bore malice against the Assistant Civil Surgeon, the petitioner's own version is that the act in question was done by the non-applicant not in any private capacity but while he was engaged in the performance of his official duty as officer-in-charge of the Simhashtha fair and, therefore, the question of sanction dearly crops up at the very initial stage of the case. The decision in Prabhakar's case is clearly distinguishable. It has to be conceded at the outset that on the allegations made by the petitioner, the act of the non-applicant clearly constituted an offence under Section 323 of the I.P.C. It has to be remembered that use of some force by police in the management of a fair which attracts large number of people cannot be entirely ruled out. But on the material on record the non-applicant can be said to have exceeded his powers in the management of the fair but the nature of his act clearly attaches to his official conduct. The decision in B. P. Srivastava case does not relate to a police officer. The offence in question is certainly not such as by its very nature could not be committed in the discharge of his official duty and the official status of the non-applicant merely furnished an occasion or opportunity for the commission thereof. The offence can by no means be characterised as foreign to the discharge of the official duty. On a proper consideration it has to be held that the act in question is directly concerned with the discharge of non-applicant's official duty and if questioned he can successfully urge that there is nexus between the act and the performance of the official duty and the two are interrelated Though the act may not be held as falling within the inner circle of strict official duty, but it cannot certainly be placed outside the scope of the official duty. As pointed out in Baijnath's case even where it is in excess of official duty, the protection under section 197 of the code is claimable. In this case, the correctness of the decision in Amrik Singh's case has been doubted.

22. As pointed out in the decision in B. P. Srivastava's case (supra) by too narrow a construction of the expression

""any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty""

the provision would be rendered sterile and it has to be held that the non-applicant is entitled to the protection under section 197 of the code. In the decision in State of M.P. v. Keshavanand 1966 MPLJ(N) 115 (supra) in relation to offences Under sections 353 and 325 of the ipc sanction was held necessary.

23. In its turn the Government concerned owes a duty both to the citizen as well as to the servant. It is for the Government to ; consider, in the context of the conflicting claims of its servant and its citizen whether or not sanction should be accorded for the prosecution. Proof of the act and the question of its exceeding what was strictly necessary for the discharge of duty certainly fall for consideration at a later stage as pointed out in Matajog's case . In this connection the decision in R. R. Chari's case is also pertinent.

24. It may be noted that it is only when the allegations made in the complaint constitute an offence that the question of sanction crops up. Therefore, saying that the non-applicant is entitled to the protection of prior sanction under section 197 of the code, before cognizance of the alleged offence against him is taken by the court, does not imply a finding that his act does not constitute an offence or that it was justified. All that it means is that before cognizance of the offence can be taken by the Court, scrutiny by the Govt. concerned and its sanction is necessary.

25. It is well settled that the revisional jurisdiction of this Court is not only limited in its scope but is also discretionary and in exercise of this jurisdiction the Court steps in to ensure that there is no miscarriage of justice. In the ultimate analysis I am of the view that on the facts and in the circumstances no case for interference in exercise of the revisional jurisdiction has been made out.

26. In the result, the revision petition fails and, for the foregoing reasons is dismissed.