State vs P.C. Sharma

Chet Ram Thakur, J.—This is a criminal reference made by the Sessions Judge, Simla, recommending that the order, dated 5th January, 1973, passed by the learned S.D.M. Rampur, discharging Shri P. C. Sharma Respondent be quashed and he be directed to proceed with the case in accordance with law.

Shri P. C. Sharma was posted as a Divisional Forest Officer, Kotgarh, in the year 1972 and Shri Thakur Singh was posted under him as a Deputy Ranger. On 27th March, 1972, the Respondent had called Shri Thakur Singh Deputy Ranger to his Divisional Office at Kotgarh, where Shri Thakur Singh reached at about 4.00 P.M. Since the Respondent was busy in his office Shri Thakur Singh waited outside. At about 6.00 P.M. the Respondent came out of his office and enquired from him (Shri Thakur Singh) where he had been for the last three or four days. He explained that he had gone in the interior to disburse wages to the labourers which had to be disbursed by 31st of March and that he had gone there under the orders of the Forest Ranger. On that the Respondent lost his temper and started abusing the Deputy Ranger Shri Thakur Singh who asked the Respondent not to abuse him and to take against him such departmental action as was permissible under the rules. The Respondent dragged Shri Thakur Singh to a room and then directed his peon to shut that room. The Respondent gave a push to Shri Thakur Singh as a result of which the latter fell down and a cane which he was carrying in his hand also fell on the ground. The Respondent then hit Shri Thakur Singh with that cane on his left ear as a result of which Shri Thakur Singh started bleeding from his injury. Shri Thakur Singh became unconscious for some-time as a result of bleeding. He got himself medically examined at Snowdon Hospital Simla and obtained a medical certificate. Thereafter he reported the matter to the Superintendent of Police on 4th April, 1972, for purposes of investigation.

On the challan being put up the learned Magistrate discharged the Respondent. It was observed that no sanction of the competent authority as required u/s 197 of the Code of Criminal Procedure had been obtained by the prosecution to prosecute the Respondent who was a public servant. Further that the medical certificate when originally issued by the Medical Officer on 3rd April, 1972, did not mention if the complainant had suffered any grievous injury. It was only on 28th April, 1972, on a request made by the S.H.O. Kumarsain that the Medical Officer opined that one of the injuries found on the person of the complainant was grievous. The learned Magistrate found that it was a concoction and in case there had been any grievous injury, the doctor must have recorded the same in the very first instance when he issued the medical certificate. Further the learned Magistrate took exception to the conduct of the complainant in getting himself examined at Simla when there were so many hospitals between Kotgarh and Simla where he could be examined. It was on these grounds that he discharged the accused.

The learned Sessions Judge on a revision filed by the State u/s 435 of the Code of Criminal Procedure of 1898 held that it was none of the official duties or official business of the Respondent to assault and for that matter even to abuse the complainant who was his subordinate. In case the complainant had remained absent from the office or was otherwise guilty of any misconduct, the only course open to the Respondent was to proceed against him in accordance with the rules and take disciplinary action. He was not authorised by virtue of his office to abuse the complainant much less to beat him and cause simple and grievous injuries to him. Such act of the Respondent would not attract Section 197 of the Code of Criminal Procedure and no sanction would be required to prosecute the Respondent for the offences established by his such acts. The learned Magistrate was certainly in error in holding that the Respondent could not be prosecuted for want of sanction u/s 197 of the Code of Criminal Procedure.

As regards the medical certificate he held that it contains details of the injuries found on the person of the complainant at the time of his examination. The doctor of course omitted to describe the nature of the injuries by mentioning if the same were grievous or simple. The Investigating Officer had to obtain this clarification from the doctor and accordingly he wrote back to the doctor for clarification on the point whether the injuries found by him were simple or grievous. The doctor then gave his opinion on 28th April, 1972, on the basis of the results of his previous examination of the complainant. This opinion given by the doctor would not suggest that there was any improper conduct either on the part of the Investigating Officer or on the part of the Medical Officer so as to justify the observations of the Court below that the whole thing was concocted and doubtful.

The learned Sessions Judge after perusing the police file found that a prima facie case against the Respondent under Sections 325 and 341, Indian Penal Code . was made out and that by passing the impugned order discharging the Respondent the learned Magistrate had acted illegally in the exercise of the jurisdiction vested in him.

Shri K. D. Sud, learned Counsel for the Respondent, in opposing this reference has argued that the act of Shri P. C. Sharma was in the exercise of his official duty because the Respondent had enquired from the Deputy Ranger as to where he had been during all those three or four days. It was because he was the officer and he had to enquire the cause of his absence and if he had in any way acted in a manner which was not proper yet his act which was purported to have been done in the exercise of his official duty cannot be challenged except after the sanction as contemplated u/s 197 of the Code of Criminal Procedure is obtained. He has also cited a number of authorities to convince the Court that such an act which was done by Shri P. C, Sharma was in the purported discharge of his official duty because Shri P. C. Sharma did not bear any personal grudge or animosity against Shri Thakur Singh, Deputy Ranger, and it was one of the parts of his duty to enquire from his subordinate as to where he had been for all along this period and if he got annoyed and gave that beating when he was there in the office or was about to go no action could be taken against him without the sanction as required u/s 197 of the Code of Criminal Procedure. The first authority is Ramachandra Rao, Municipal Health Officer, Vaniyambadi v. Chinnayya Goundan AIR 1942 Mad 664. In this case the complainant had alleged that the Municipal Health Officer came to him after the complainant had tied a cow to a tree, gave him a smack on the neck and told him that he had no business to tie his cow there. He said to the Health Officer that if he had been told that he should not tie his cow there, he would not have done so. The Health Officer thereupon lost his temper and gave him some further blows on the cheeks and on the head. It was held that the Health Officer was undoubtedly acting as a public servant when he interferred with the complainant and struck him. It was of course no part of the duty of the Health Officer to strike the complainant on his neck and face but it was because the complainant had done something which the Health Officer thought he ought not to have done, that the Health Officer interferred; although if the complainant''s story was true, he exceeded his duty.

The next authority is AIR 1949 117 (Privy Council) . In this authority it had been stated that the meaning while acting or purporting to act in the discharge of his official duty is that the act done must lie within scope of official duty of public servant. Here in this instant case it was the duty of the officer to enquire from his subordinate as to where he had been for all this period i.e. three or four days, and it was during the purported exercise of his duties to ask the complainant for his absence from the duty, that he lost his temper on his reply and then he dragged him and gave a cane blow.

In Ram Singh v. S. A. Rizwi AIR 1935 Pat 52 a Deputy Magistrate was engaged in realizing the taxes. He had threatened the defaulters and at the next moment he turned round and engaged himself with the complainant and took him to task for being near him in a particular manner. In those circumstances it was held that the alleged offence was so connected with the performance of his official duty that it was impossible to say that it was an independent act in no way connected with the realization of taxes, and that it did not matter even though the Deputy Magistrate had absolutely no jurisdiction over the complainant. In such circumstances it was further held that sanction was a pre-requisite for his prosecution.

In Madan Lal Lamba Vs. Inderjit Mehta, where it was the official duty of the Petitioner in his capacity as Sub-Divisional Officer of P.W.D. to maintain the Officer''s Note Book and to make correct entries representing the actual supplies of material made by the Respondent in execution of his contract work, and if the former while making entries therein made an incorrect entry, he had nonetheless so done while acting or purporting to act in the discharge of his official duty. If he after having prepared certain page of the Officer''s Note Book containing the entry pertaining to certain supply replaced the leaf bearing that page by another leaf and made all the entries on that page except the entry pertaining to the Respondent, he has while acting in his official capacity omitted to make the entry, which he in that very capacity was under obligation to make. Omission to make entry by substitution of one folio for another is nothing but preparation of incorrect record. It was held that the Petitioner having prepared the incorrect record while acting or purporting to act in the discharge of his official duty as Sub-Divisional Officer, could not be proceeded against u/s 218, Penal Code, unless sanction for his prosecution has been obtained u/s 197, Code of Criminal Procedure.

The other authority is R.A Goel v. Kartar Singh 1970 D.L.T. 25. In this case the complainant had constructed a brick wall on a piece of land belonging to him but the P.W.D. officials set up pillars on that wall which obstructed the road side. The complainant made an application to the Kanungo for demarcation and he found the site in dispute that of the complainant. The complainant served a notice u/s 80 of the CPC upon the Government. Thereafter the complainant collected material for putting a lintel on the wall in question. Tarsem Lal Sharma and Lal Chand, who were the two accused, then went to the spot and asked him to desist saying that the site belonged to the Government. Therafter Tarsem Lal and Lal Chand on the order of the Superintending Engineer went to demolish the wall. The complainant Ram Avtar, Tarsem Lal Sharma and Lal Chand then crossed the wall and directed the labourers to demolish the wall and take away the material. The complainant remonstrated with Ram Avtar that the wall belonged to him. There after Lal Chand gave a push to the wife of the complainant as a result of which she became unconscious. Damage was also caused to the material collected by the complainant at the place. Ram Avtar one of the accused persons again came to the spot along with the police and he broke the plank which had been put up there and caused damage to the lintel. Thereafter the complainant filed a complaint against the P.W.D. officials and the Magistrate ordered the issue of summons. The Petitioner approached the Sessions Judge but the revision was rejected. Thereafter they approached the High Court which held that it follows that if the impugned act of the public servant is connected directly with his duties and can be reasonably claimed to have been done by him by virtue of his office, sanction would be necessary. If, however, the act complained of does not fall within the scope of the duties of a public servant and is unconnected with the discharge of those duties, the section would afford no protection to the public servant. Likewise if the act complained of is not related directly with the duties of a public servant and his official status only provides him with an occasion or an opportunity of doing that act, the public servant would have no protection and sanction u/s 197 would not be necessary. In case, however, the act complained of is related to the office, the fact that the public servant acted in excess of his authority or under a wrong notion of the extent of his power would not prevent him from invoking the protection afforded by Section 197.

Therefore, from the above what follows is that in the instant case also it was the duty of the D.F.O. to make an enquiry from his subordinate as to where he had been for about three or four days and he did actually make the enquiry and he lost his temper when the subordinate gave a reply and he in a fit of anger dragged him and gave a cane blow which of course was not proper. He exceeded the limits of his authority. But the action was done in the purported exercise of his official duties and, therefore, even if he exceeded his authority under a wrong notion of the extent of his power it would not prevent him from invoking the protection afforded by Section 197 of the Code of Criminal Procedure.

Mr. H. K. Paul appearing on behalf of the State contends that it was no part of the official duties of Shri P. C. Sharma to abuse, drag and cane him (Shri Thakur Singh). This action of his was totally unwarranted and not in the discharge of his official duty as such no sanction was necessary for a prosecution and he has relied on Prabhakar V. Sinari Vs. Shanker Anant Verlekar, This authority will not assist the learned Counsel for the State because in that case as is apparent from the facts the police officer who threatened the complainant saying that he would arrest him if he interferred with the hawkers and asking hawkers to enter upon the land and threatened the complainant that he would be slapped. The complainant kept mum and the vendors took possession of the plots. In a complaint against the accused and some others, the question arose whether for the prosecution of the accused, the Deputy Superintendent of Police, sanction u/s 197 Code of Criminal Procedure, was required. It was held that normally it would be the officer-in-charge of the police station who would go to the spot to prevent any breach of peace or apprehended breach of peace. Even if the accused who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers, it was not established that the accused came in the capacity as a police officer. He had gone there in civil dress and, therefore, it was held that it was not clear in what capacity the Appellant had gone there at the spot. So in these circumstances his act was held not to have been done in the discharge of his official duty.

The second authority relied upon is Bhagwan Prasad Srivastava Vs. N.P. Mishra, . In this case a Civil Assistant Surgeon had filed a complaint against the Civil Surgeon, that while in operation theatre the Civil Surgeon abused the complainant before patients and hospital staff and ordered the hospital cook to turn out this badmash, meaning the complainant and the cook actually pushed out the complainant. It had been held that there was nothing to show that this act was a part of the official duty of the Civil Surgeon and that no sanction was required u/s 197 for prosecution of the Civil Surgeon. The allegations in the complaint were that the complainant was a Master of Surgery and a Specialist in Opthalmology and had joined Chappa Sadar Hospital as Civil Assistant Surgeon in January, 1962 and .the Appellant joined the said hospital as Civil Surgeon towards the end of 1962. The Appellant bore ill-will 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 that purpose. 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 orders 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 the next day the complainant was in the operation threatre. Some members of the hospital staff and some attendants of the patients who were waiting outside the operation threatre 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, saying him as badmash. He was actually pushed out by the cook. So in view of these circumstances it was held that it was no part of the official duties of the Civil Surgeon and no sanction was required. But in the instant case there is no allegation of any ill-will or of any enmity between the Divisional Forest Officer and the Deputy Ranger. But it was in the purported discharge of his official duties that he made an enquiry about his absence from the office for the last three or four days. If he in that process on a retort received from the subordinate exceeded the limit of his authority then certainly he is protected and no prosecution can be launched against the Respondent unless sanction as required u/s 197 of the Code of Criminal Procedure is obtained from the State Government.

In these circumstances I am unable to accept the recommendation of the learned Sessions Judge for quashing the order of the learned S.D.M. Rampur. However, on merits I have nothing to say because he cannot be prosecuted unless the permission is obtained. Therefore, this Reference petition is dismissed and the order of the trial Court is up-held.