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Judgment
K.B. Panda, J.—Petitioner No. 1 Sri M. Thomas Varghese is the Director of Postal Services. Bhubaneswar Circle and Petitioner No. 2 Sri A.N. Rao is now serving as Assistant Director of Postal Services, Sambalpur and the Opp. Party Sri Chandrasekhar Ratho is an Advocate of Cuttack and an ex-employee of the Post Office.
The opposite party on 2-1-1979 filed a complaint against Petitioner No. 1 alone alleging that while the opposite party-complainant on 24-12-1978 was sitting inside the counter of Cuttack G.P.O. at about 8.30 a.m. to witness the first release of a new postal stamp at Cuttack G.P.O. Petitioner No. 1 said before the public as well as the staff-
Why this fellow (pointing to complainant) is sitting inside the counter, he should be driven out immediately outside the counter of the Cut tack G.P.O.
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At this Petitioner No. 2 the then Post Master, Cuttack General Post Office asked the complainant to go outside the counter which he did. According to the opposite party-complainant, his prestige was lowered before the general public and he was intentionally defamed by Petitioner No. 1 and that he was intentionally provoked to cause a breach of the peace.
The day, the complaint (naming only one as witness) was filed, i.e. 2-1-1979, the Subdlvisional Judicial Magistrate passed an order directing the complainant to file a complaint in proper form. Initial statement was taken on the revised petition filed by the opposite party-complainant which also indicated that Petitioner No. 1 alone was the accused. In that initial deposition he stated
On 24-12-1978 at 8.30 a.m. I had been to Cuttack G.P.O. to witness the first release of Write Brothers Commemorative Stamps. 10 the counter there were several postal officers and public present. Some were sitting and others were standing. I was sitting there with permission of Sri Kanungo, D.P.M. No. I of G.P.O. Then. Vargis Thomas came and pointing towards me said to the Post Master A.N. Rao as to why this fellow was sitting inside the counter and no public should be allowed to sit inside the counter.
He also said to drive me out immediately from the counter. At his instance, Sri A.N. Rao asked me to vacate. I came out. I was humiliated in presence of the public and postal officials.
This day, i.e. 3-1-1979. the Subdivisional Judicial Magistrate passed orders stating:
Can on 5-1-1979 as prayed for by the complainant for further orders.
On 5-1-1979, an amendment petition to the complaint dated 4-1-1979 was placed. On that day, the complainant was absent. But yet the Magistrate took cognizance u/s 500 and 504, Indian Penal Code and directed issue of summons to both the Petitioners. Requisites were ordered to be filed by 9-1-1979. On 9-1-1979, complainant was also absent and had not filed the requisites. So the Magistrate passed orders to await till 15-1-1979. On 15-1-1979 also the complainant bad not taken any steps yet suo motu the Court granted time till 21-1-1979. Thereafter on 22-1-1979, requisites were filed and summones were issued to the Petitioners under Sections 500 and 504, Indian Penal Code.
On the first day of appearance of the accused-Petitioners on 2-3-1979, they filed a petition to drop the proceeding for want of sanction u/s 197, Code of Criminal Procedure. The S.D.J.M. did not dispose of the matter but transferred the case to a Magistrate, 1st. Class who rejected the petition holding on the basis of the decision reported in Pukhraj Vs. State of Rajasthan and Another, , that-
Mere fact that the accused proposes to raise a defence of the act having purported to be done in exercise of duty will not in itself be sufficient to justify the case being thrown out for want of sanction. Facts, subsequently coming to light during the course of the trial may establish the necessity for sanction. Whether or not sanction is necessary will depend from stage to stage.
It is against that order that the present revision has been filed by the two accused-Petitioners.
I may at once say that the application of the principle laid down by their Lordships of the Supreme Court relied on by the learned Magistrate is improper and that apart, the allegations even if assumed to be true do not disclose a case u/s 500, Indian Penal Code or 504, Indian Penal Code. To add to it the way in which the S.D.J.M. has given latitude to the opposite party-complainant in amending the complaint petition by adding Petitioner No. 2 as another accused subsequently is intriguing. Further without dismissing the case when the complainant had not taken any steps on two occasions and was absent shows that either he has no knowledge how a criminal case is to be dealt with, particularly a summons case, or if he knew it he was showing unnecessary favour to the complainant for reasons best known to him.
When the learned S.D.J.M. took initial statement on 3-1-1979, there was only one accused. After taking initial deposition he had only three courses open, vis,, firstly either to issue process forth with if a prima facie case was made out secondly to postpone issue of process and order for further enquiry u/s 202, Code of Criminal Procedure, or thirdly to dismiss the complaint if he distrusted the complainant or if no offence was made out u/s 202, Code of Criminal Procedure. There wail no scope for passing an order "Call on 5-1-1979 as prayed for by the complainant for further orders" and thereafter issued summons against two of the Petitioners on the basis of initial deposition recorded on 3-1-1979, in which the second Petitioner was not an accused. Again on 9-1-1979 and 15-1-1979 when the complainant was absent and had not taken any steps. I fail to understand why the S.D.J.M. granted time suo motu for the complainant to take steps when he was himself absent and there was no petition on his behalf ignoring the provisions of Section 204(4), Code of Criminal Procedure.
Coming to the facts evidently both the Petitioners are public servants in authority to see to the discipline and the smooth working in the Government Post Office under them. During office hours if every body gets inside the counter, there is every likelihood of disturbance and not unlikely mistakes in calculation in money matters involving great risk to the public and Government may arise. Even the complainant-opposite party himself admits that he took permission of some Post Master to get inside the counter. This shows that he was aware that public including himself had no right to get into the counter. Be that as it may, even the person at whose permission he is said to have got into the counter, has not been cited as a witness Even otherwise, it cannot be presumed that the two Petitioners knew that the complainant-opposite party was there with somebody''s permission and particularly mere so when that man did not protest. Even when some subordinate had permitted him, the higher officers cannot keep quiet over an irregular work or improper conduct of a subordinate. That was not the hour or place for entertaining friends. The Petitioner No. 1 was, therefore, within his rights and in performance of his incumbent''s duty asked any outsider to vacate the inner counter. Besides, what Petitioner No. 1 has said is nothing very objectionable much less it comes under the mischief of Section 500 or 504, Indian Penal Code. Again Petitioner No. 2 carried out Petitioner No. 1''s order and asked the opposite party-complainant to vacate and he vacated. Thus, I do not find any offence under defamation or intentional insult to cause a breach of the peace unless it is very fenciful.
It was contended that the Petitioners had taken law into their own hands. This is a queer argument for law does not postulate that any person in authority should behave as a silent spectator to all irregularities and/or illegalities committed by others, even by the subordinates and he would have run to Court, as suggested, remedy u/s 447, Indian Penal Code.
Coming to the application of the law, the facts of the case where their Lordships made that observation are quite different. In that case when the complainant approached the accused who was sitting in a jeep for cancelling his transfer order, he got enraged and kicked the complainant and abused him saying "SALE, GOONDA, BADMASH, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer". After kicking and abusing the complainant, the accused ran away in his jeep". I fail to understand how that case can be compared with the present case. The Petitioners have not abused the opposite party nor they have applied force. Again it was not outside the postal office precincts, but inside the counter whereto he had no right to go. In the same citation Pukhraj Vs. State of Rajasthan and Another, , it has been said that:
While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed.
Finally it is said-
A public servant can only be said to act or purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty "'''''''' The test may well be whether the public servant if challenged, can reasonably claim that, what he does, he does in virtue of his office.
In Matajog Dobey Vs. H.C. Bhari, the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by Section 197. After referring to the earlier cases the Court summed up the results as follows:
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, but not a pretended or fanciful claim, that he did it in the course of the, performance of his duty.
In applying the above test to the facts of that case, their Lordships said that-
Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to have been done in the course of performance of the second Respondent''s duty.
( Pukhraj Vs. State of Rajasthan and Another, )
I have no doubt in saying that applying the same principle to the facts of this case, I would hold that whatever the Petitioner No. 1 has done, namely, asking his subordinate to direct the opposite patty to quit the inner precincts of the counter is in performance of his duty and what the Petitioner No. 2 did was by way of carrying out the orders and none of them has done anything which would not be within their official duty or which can be said to be overdoing much less any criminal act such as kicking out the complainant-opposite party or necking him out of the counter or use any vulgar words justifying a criminal action against them. Further what the Petitioners have done is without any mens rea which is the very essence of a prosecution under the Indian Penal Code. As it appears, the opposite party-complainant taking advantage of his profession filed this frivolous complaint after a lapse of eight days, added another accused in a subsequent complaint petition, did not appear or take steps on the first two occasions, by circumventing the statutory protection given to public servants in lawful discharge of their duty from frivolous and vexatious criminal actions against them. Consequently, I would hold that the allegation, even if assumed to be true, ex facie shows that what the Petitioners did was in pursuance of their duty and there cannot be any prosecution against them without sanction u/s 197, Code of Criminal Procedure.
The revision succeeds and the lower Court''s order is set aside.