Supreme Court of IndiaBhagwan Prasad Srivastava vs N. P. Misra on 20 April, 1970Equivalent citations: 1970 AIR 1661, 1971 SCR (1) 317, AIR 1970 SUPREME COURT 1661, 1970 CURLJ 511 1970 SCD 581, 1970 SCD 581Author:I.D. DuaBench:I.D. Dua,A.N. RayPETITIONER:
BHAGWAN PRASAD SRIVASTAVA

	Vs.

RESPONDENT:
N. P. MISRA

DATE OF JUDGMENT:
20/04/1970

BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
RAY, A.N.

CITATION:
 1970 AIR 1661		  1971 SCR  (1) 317
 1969 SCC  (2)	56
 CITATOR INFO :
 R	    1973 SC2591	 (2,3)
 R	    1983 SC 610	 (3)
 RF	    1986 SC 345	 (6)


ACT:Code of Criminal Procedure, (5 of 1898) s. 197-Scope of.



HEADNOTE:
The respondent filed a complaint stating that the appellant,
a  civil surgeon used defamatory and abusive words  and	 got
the  respondent pushed out by the cook of the hospital.	  On
the  question  whether the case was covered bys.  197Cr.
P.C.  and  previous sanction of the superior  authority	 was
necessary  before the trial Court could take  cognizance  of
the complaint,
 HELD  : The case was not covered by s, 197 Cr.	  P.C..	 The
object	and purpose underlyingsection 197Cr.	P.C.  is  to
afford	protection  to public  servants	 against  frivolous,
vexatious or false prosecution for offences alleged- to have
been committed by them while acting or- purporting to act in
the  discharge of their official duty.	The larger  interest
of  efficiency of State administration demands	that  public
servants should	 be free to perform  their  official  duty
'fearlessly   and  undeterred  by  apprehension	  of   their
,possible prosecution at the instance. of private parties to
whom  annoyance	 ,or injury may have been  caused  by  their
legitimate  acts  done in the discharge	 of  their  official
duty.  This section is designed to facilitate effective	 and
unhampered  performance	 of their official  duty  by  public
servants  by providing for scrutiny into the allegations  of
commission of offence by them by their superior	 authorities
and  prior sanction 'for the-..- prosecution as a  condition
precedent  to the cognizance of the cases against  them,  by
the courts.  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.   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. [320 D--H; 321 G]
In the present case the alleged offence consists of the	 use
of   defamatory	 and  abusive  words  and  of  getting	 the
complainant-respondent forcibly turned out of the  operation
theatre	 by  the Cook.	There was nothing on the  record  to
show  that  this  was a part of the  official  duty  of	 the
appellant  as  Civil  Surgeon or that  it  was	so  directly
connected  with	 the performance of his official  duty	that
without so acting he could not have properly discharged, it.
[321 G-H]
Matajog	 Dobey	v. H. C. Bhari, [1955] 2  S.C.R.  925  Amrik
Singh  v. The State of PEPSU, [1955] 1 S.C.R. 1302  at	1307
Baijnath  Gupta	 v.  State of M. P., [1966]  1	S.C.R.	210;
Prabhakar  V.  Sinari  v. Shanker Anant	 verlekar  [1969]  2
S.C.R. 1013, referred to.
318



JUDGMENT:CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 139 of
1967.Appeal	by special leave from the judgment and	order  dated
February  21,  1967  of the Patna  High	 Court	in  Criminal
Revision No. 546 of 1965.Sarjoo	Prasad,	 S.  S.	 Jauhar and K.	K.  Sinha,  for	 the
appellant.U. P. Singh, for the respondent.The Judgment of the Court was delivered	 by
Dua,  J.  In this appeal by special leave arising out  of  a
complaint filed 'by the respondent Shri N. P. Mishra against
the  appellant	Shri  Bhagwan Prasad  Srivastava,  the	only
question  requiring  determination is if cognizance  of	 the
case  by the Magistrate required previous sanction under  s.
197, Cr.  P.C. The Sub-bivisional Magistrate, in whose court
the   complaint	 was  instituted,  upheld  the	 preliminary
objection based, on the absence of previous sanction and the
Second	Additional Sessions Judge, on revision, agreed	with
this  view.   On  further  revision  the  Patna	 High  Court
disagreed  with the view taken by the two courts  below	 and
holding	 s.  197, Cr.  P.C. to be inapplicable to  the	case
directed  the  sub-Divisional  Magistrate  to  make  further
enquiry into the petition of complaint.	 Before us the	view
taken by the High Court is assailed.The complaint was filed by the respondent Shri N. P. Mishra,
Civil Assistant Surgeon, Sadar Hospital, Chapra (hereinafter
called	 the  complainant)  against  Shri   Bhagwan   Prasad
Srivastava, Civil Surgeon, Chapra (appellant in this  Court)
and Shri Ramjash Pandey.  Cook, Sadar Hospital, Chapra.	  It
was  alleged  in  the  complaint that on  the  6th  and	 7th
January,  1964	the appellant had used	defamatory  language
towards	 the  complainant, and the two accused	persons	 had
insulted and humiliated him in the eyes of the public.	As a
result,	 the  complainant was put to great mental  pain	 and
agony, his reputation was harmed and his professional career
prejudicially  affected.   The	relevant  averments  in	 the
complaint may now be stated with the requisite detail.	 The
complainant  claiming  to  be  a Master	 of  Surgery  and  a
specialist in Ophthalmology had joined Chapra Sadar Hospital
as  Civil Assistant Surgeon (C.A.S.) in January, 1962.	 The
appellant joined the said hospital as Civil Surgeon  towards
the  end  of 1962.  The appellant bore	illwill	 and  malice
towards	 the complainant and was always on the look out	 for
an  opportunity	 to  harm  him	in  his	 profession  and  to
humiliate and disgrace him in the eyes of the public.	Some
cataract operations were to be performed on January 7,	1964
in the Blind Relief Camp to be organised for that319purpose.   On  January 6, when the  complainant	 was  making
final' selection of the patients for the cataract operations
to be performed on the following day, the appellant informed
the  complainant  that he had not been able to	arrange	 for
cataract knives and that the complainant should arrange	 for
them   from  somewhere.	  The  complainant   requested	 the
appellant to place order for the knives with some local firm
and  give him the necessary letter of authority so that	 the
same could be purchased on credit.  The appellant apparently
did  not  like this suggestion . He got enraged	 and  in  an
insulting tone and language told the complainant that it was
his job to arrange for the knives and that as a last  resort
he might bring his own knife.  The complainant repeated	 his
suggestion  adding that in the alternative a man be sent  to
Patna to make local purchases.	On this the appellant  again
addressed  the complainant in highly defamatory language  in
the presence of the hospital staff and the attendants.	 On
January	 7, 1964 at about 9 a.m. the complainant was in	 the
operation  theatre.  Some members of the hospital staff	 and
some attendants of the patients who were waiting outside the
operation  theatre  were also present.	The  appellant	came
there and again asked the complainant if he had brought	 two
more cataract knives from somewhere, The complainant replied
that in the absence of the appellant's final orders the	 two
knives	could  not be arranged from the local  market.	 The
appellant again got annoyed and addressed the complainant in
insulting tone and defamatory language.	 Not satisfied	with
the  use  of  such language the	 appellant  ordered  Ramjesh
Pandey,	 Cook of the Hospital, to turn out the	complainant,
the purport of the actual words used being "Pandey turn	 out
this  badmash (one who follows evil courses).  To his  utter
humiliation the complainant was then actually pushed out  by
the  Cook.  The actual words used in Hindi by the  appellant
have been reproduced in the judgment of the High Court.	  We
have,  therefore, not considered it necessary  to  reproduce
them  again, except the word 'badmash' of which the  literal
meaning	 in  English  as stated by  us	is  generally  well-
understood.The  question  which  falls for decision by  this  Court  is
whether the complainant's case is covered byS. 197, Cr-P.C.
and previous sanction of the superior authority is necessary
before the trial court can take cognizance of the complaint.Section 197, Cr-P.C. provides as under :"(1) When any person who is a Judge within the
	      meaning  ofsection 19of  the  Indian  Penal
	      Code,  or	 when  any Magistrate  or  when	 any
	      public  servant who is not removable from	 his
	      office save by or with the sanction of a State
	      Government  or  the  Central  Government,	  is
	      ,accused	of any offence alleged to have	been
	      committed by him while acting or purporting to
	      act in the discharge320of  his  official duty, no  Court	 shall	take
	      cognizance  of  such offence except  with	 the
	      previous sanction-(a)   in	the  case of a	person	employed  in
	      connection  with the affairs of the Union,  of
	      the Central Government; and(b)   in	the  case of a	person	employed  in
	      connection with the affairs of a State of	 the
	      State Government.Power  of	 Central or State Government  as  to
	      prosecution.-(2)   The	 Central  Government  or  the  State
	      Government, as the case may be, may  determine
	      the person 'by whom, the manner in which,	 the
	      offence or offences for which, the prosecution
	      of such Judge, Magistrate or public servant is
	      to be conducted, and may specify the Court be-
	      fore which the trial is to be held."The  object and purpose underlyingsection 197Cr.  P.C.  to
afford	protection  to public  servants	 against  frivolous,
vexatious or false prosecution for offences alleged to	have
been committed by them while acting or purporting to act  in
the  discharge of their official duty.	The larger  interest
of  efficiency of State administration demands	that  public
servants  should  be  free to perform  their  official	duty
fearlessly and undeterred by apprehension of their  possible
prosecution  at	 the  instance of private  parties  to	whom
annoyance or injury may have been caused by their legitimate
acts  done  in the discharge of their official	duty.	This
section	 is designed to facilitate effective and  unhampered
performance  of their official duty 'by public	servants  by
providing for scrutiny into the allegations of commission of
offence	 by  them by their superior  authorities  and  prior
sanction  for their prosecution as a condition precedent  to
the cognizance of the cases against them by the courts.	 If,
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.   In our view, 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 the321same  responsibility  for  every  act  done  without   legal
justification as,, any other citizen.  In construingS. 197,
CrP.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.  According to the decision of this
Court  inMatajor  Dobey v. H. C. Bhari(1)  cited  by	Shri
Sarjoo	Prasad	on behalf of the appellant 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  theaccused  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.InAmrik Singh v. The State of
PEPSU(2) this Court said :"It is not every offence committed by a public
	      servant that requires sanction for prosecution
	      undersection 197 (1)of the Code of  Criminal
	      procedure;  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 by  virtue
	      of   the	office,	 then  sanction	  would	  be
	      necessary; and that would be so,	irrespective
	      of whether it was, in fact, a proper discharge
	      of his duties, because that would really be  a
	      matter  of defence on the merits, which  would
	      have  to	be investigated at  the	 trial,	 and
	      could  not arise at the stage of the grant  of
	      sanction,	 which must precede the	 institution
	      of the prosecution.,."Recently  inBaijnath Gupta v. State of M.P.(3)	 this  Court
further explained that it is the quality of the act that  is
important and if it falls within the scope and range of	 the
official   duties  of  the  public  servant  concerned	 the
protection contemplated bys. 197of the Criminal Procedure
Code will be attracted.The  principle	embodied in this section seems to  be  well-
understood;   the  difficulty  normally	 lies  is   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.  In	 the
present	 case  the alleged offence consists of	the  use  of
defamatory and abusive words and of getting the complainant
forcibly  turned out of the operation theatre by  the  Cook.
There is nothing on the record to show that this was a	part
of  the official duty of the appellant as Civil	 Surgeon  or
that  it was so directly connected with the  performance  of
his  official duty that without so acting he could not	have
property discharged it.(1) [1955] 2 S.C.R. 925. (2) [1955] 1 S.C.R. 1302 at 1307.-
(3)  [1966] 1 S.C.R.210.322As suggested by this Court in Prabhakar V. Sinari v. Shanker
Anant Vertekar(1) it would be open to the appellant to place
material  on the record during, the course of the trial	 for
showing what his duty as Civil Surgeon was and also that the
impugned  acts were inter-related with his official duty  so
as to attract the protection afforded bys. 197, cr.  p.c.we
do  not find any material on the existing record  suggesting
that  the impugned  acts were done by the  appellant in	 the
discharge  of  his official duty or that they  are  directly
connected with it.  This appeal accordingly must fail and is
dismissed.Y.P.			     Appeal dismissed.
(1) [1969] 2S.C.R.1013323