Judgment :- 1. In these two criminal references under S.438 Cr. P. C., by the Sessions Judge, Tellicherry, the question that falls to be decided is as to the limitation to be imposed on sanction under S.197 Cr. P. C., when a public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Since a common question of law is involved, they are disposed of by this common judgment. 2. One Balakrishnan, a taxi driver and one Raghavan, an auto rikshaw driver, filed C. C. 15/68 and C. C. 16/68 respectively in the Additional First Class Magistrate's Court, Tellicherry on 28 2 68 against the 1st accused, Inspector of Police and the 2nd accused, Head Constable, attached to the Tellicherry Police Station making the following allegations against them. While Balakrishnan and Raghavan, who hereinafter will be referred to as the complainants were standing at the Bus Stand at about 10 p.m. on 212 68, the 2nd accused carried them away in a Police van after causing voluntary hurt to them. But, when they were produced before the 1st accused at the Police Station, the 1st accused also caused hurt to them by fisting on their head, back and stomach and threatened them also with death if they refused to sign some papers. The 2nd accused was also alleged to have caused voluntary hurt to them by kicking them on their back with legs. Thereafter, both the complainants were kept in the lock up and on the next day at 8 p. m. they were produced before the Executive First Class Magistrate and later they were released on bail. But, afterwards, they filed petitions to the Executive First Class Magistrate and others. But, no action was taken. Hence they filed the above complaints against accused 1 and 2.' 3. The Additional First Class Magistrate on taking cognizance of the offence under S.200 Cr. R. C., summoned the accused 1 and 2 to answer the charges. Thereafter, on behalf of the complainants, 4 witnesses were examined as Pws.1 to 4 including the complainants on the basis of the allegations made and relying upon that evidence, accused 1 and 2 were questioned under S.342 Cr. P. C., in each of the aforesaid cases. But, the learned First Class Magistrate held on hearing both sides that S.197 Cr. Thereafter, on behalf of the complainants, 4 witnesses were examined as Pws.1 to 4 including the complainants on the basis of the allegations made and relying upon that evidence, accused 1 and 2 were questioned under S.342 Cr. P. C., in each of the aforesaid cases. But, the learned First Class Magistrate held on hearing both sides that S.197 Cr. P. C., is a bar to the prosecution against the 1st accused and in the absence of the sanction by the State, the complaint against the 1st accused could not be proceeded against. Accordingly, the prosecution against the 1st accused was dropped while the court ordered the prosecution against the 2nd accused to be proceeded with. 4. Both the complainants filed criminal revision petitions before the Sessions Judge, Tellicherry, challenging the order passed by the Magistrate dropping the prosecution against the 1st accused. The learned Sessions Judge found in the absence of any evidence that the 1st accused is a public servant who is not removable from his office except by or with the sanction of the State Government and having failed to raise the same as a specific point in the revision petitions, the 1st accused was found to be a public servant who is not liable to be removed from office by the State Government. The learned Sessions Judge also found that the act complained of against the 1st accused was not committed by him while acting or purporting to act in the discharge of his official duty and as such the complainants are not deprived of their right to proceed against the 1st accused in accordance with law. Therefore, the learned Sessions judge reported the matter to this court under S.438 Cr.P.C. with the recommendation that the order of the Magistrate dropping the proceedings against the 1st accused be set aside and the prosecution to be proceeded against him in accordance with law. 5. It is clear that though S.197 Cr. P.C. is meant to protect the public servants on vexatious complaints with regard to acts committed by them in the discharge of their official duties it cannot be extended to afford immunity to them in respect of the acts which had no relationship whatsoever in the discharge of their official duties. It is a question of fact to be determined on the facts of each case. It is a question of fact to be determined on the facts of each case. In order therefore to protect the ban imposed by the Section, a reasonable nexus between the acts complained of and the official duty must be shown. The provision would also apply to acts which constitute offences punishable under S.323 and 506 (2) IPC., provided that those acts were done by the public servant while acting or purporting to act in the discharge of their official duties and were reasonably necessary for the execution of the official duty. In the instant complaints the charges levelled against accused 1 and 2 are under S.323 and 506(2) IPC. The question of necessity of sanction to a case has to be decided when materials are available on record to determine that question whatever the stage of the case may be. The mere fact that the party against whom complaint was lodged was public servant would not by itself be sufficient to bring a case within the inhibition of S.197. Whether a particular act could be said to be done in the exercise of his official duty or in the purported exercise of such duty is essentially and substantially a question to be determined on the facts and circumstances of each case. 6. It is pointed out in Dhannjav v. M.S Uppadaya (AIR. 1960 Supreme Court 745) that before protection of S.197 Cr. P.C. can be claimed by an accused person, he has in the first instance to satisfy the court that he is a public servant not removable from his office save by or with the sanction of a State Government or the Central Government and next that the acts complained of if committed by him were committed while acting or purporting to act in the discharge of his official duty. Unless these two ingredients of S.197 are not complied with, the public servant will not be entitled to the protection conferred upon him under S.197 Cr. P.C. The courts below did not go into the question as to whether the 1st accused. Inspector of Police, was a public servant as required by S.197 Cr. P.C., at the relevant time. I think there could be no dispute as regards his position as a public servant. P.C. The courts below did not go into the question as to whether the 1st accused. Inspector of Police, was a public servant as required by S.197 Cr. P.C., at the relevant time. I think there could be no dispute as regards his position as a public servant. In a case reported in Gnanamanickam v. State of Kerala and others (ILR.1966 (2) Kerala 573) the Inspector of Police was considered as a public servant within the meaning of S.197. Even otherwise, the 1st accused was appointed as a Sub Inspector to start with by the State of Travancore-Cochin Government. If that be so, he would be entitled to the protection afforded to him under Art.311 of the Constitution of India which states that no person who is a member of a civil service of the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Various decisions cited in the Bar also showed that it was only up to the cadre of Sub Inspector of Police that the Inspector General of Police was the appointing authority and as such the cadre of the Sub Inspector was alone sought to be excluded from the ambit of S.197 Cr. P.C. It follows, therefore, that the 1st accused can be regarded as a public servant within the meaning of S.197 Cr. P.C. who cannot be removed from service except with the sanction of the State. 7. The next question, which is the important question, that still remains to be considered is whether the 1st accused can reasonably claim that the acts complained of were committed by him in the discharge of his public duty or while purporting to act in the discharge of his public duty. 8. The scope of S.197 Cr. P.C. has been considered by the Privy Council and the Supreme Court in numerous cases. It is sufficient that I mention two cases reported in H. H. B. Gill v. The King (AIR. (35) 1948 Privy Council 128) and Albert West Meads v. The King (AIR. (35) 1948 Privy Council 156). 8. The scope of S.197 Cr. P.C. has been considered by the Privy Council and the Supreme Court in numerous cases. It is sufficient that I mention two cases reported in H. H. B. Gill v. The King (AIR. (35) 1948 Privy Council 128) and Albert West Meads v. The King (AIR. (35) 1948 Privy Council 156). In the former decision, the limitation as to the discharge of the official duty by the public servant is put forth in the following passage: "A public servant can only be said to act or to 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. Thus a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. 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. A public servant charged with an offence under S.120B read with S.161, Penal Code cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held. No sanction under S.197 is therefore necessary for the institution of proceedings against a public servant for an offence under S.120B read with S.161, Penal Code." 9. The same view has also been affirmed in the latter decision of the Privy Council. However, a wider scope of the Section has been applied in a decision of the Supreme Court which is reported in Amrik Singh v. State of Pepsu (AIR. 1955 Supreme Court 309) where it was stated that the test to apply is whether acts with which the public servant is charged strictly bear on the duties which he has got to discharge as a public servant. 10. In the instant case, the complainants had already been proceeded against by the 1st accused for being members of an unlawful assembly. 10. In the instant case, the complainants had already been proceeded against by the 1st accused for being members of an unlawful assembly. It is revealed from the 342 statement of the 1st accused before the trial court that both the complainants were found to be in possession of some dangerous weapons while they were members of an unlawful assembly. On that account, the complainants were arrested by the 2nd accused and they were detained in the Police Station. Later they were produced before the Executive First Class Magistrate. But, the accused 1 and 2 denied the torture of the complainants while they were in lock up. The fact that some proceedings had been taken against the complainants was more or less admitted so much so the accused then acted in their official capacity. But, the question was whether after the complainants being arrested and taken to the Police Station it was open to the 1st accused to have caused any torture on the complainants. In these two references, we are concerned only as to what the 1st accused would have committed against the complainants after they were brought to the Police Station on their being arrested by the 2nd accused. On this aspect of the question, a Full Bench of the Travancore-Cochin High Court reported in Appran v. Mohd. Kunju (AIR. 1953 Travancore-Cochin 183) rendered a decision on facts parallel to the case on hand. In that case, the complainant was arrested, but before he was taken to the Police Station, he was made to get into a motor vehicle which took the complainant and the police party to the police station. All the accused including the Inspector beat the complainant on the public road and violence was used against him even while the vehicle was moving. It was further found that after the complainant was taken to the police station on the evening of that day, some Police officers inflicted injuries on him and that during the night that followed again, he was subjected to severe torture. On these allegations, the Full Bench made the following observation at page 185 of the decision wherein the 1st accused was the police officer concerned in that case. On these allegations, the Full Bench made the following observation at page 185 of the decision wherein the 1st accused was the police officer concerned in that case. "The Public Prosecutor contended that in case the original assault on the road by accused 1 could not be taken cognizance of by a court unless Government sanctioned the initiation of proceeding as required by S.197(1), the privilege of immunity from prosecution without sanction will extend also to the acts accused I did against the complainant during the night. We are afraid there is absolutely no warrant for the contention. Assuming that the incident complained of as having taken place on the road after arrest could not be taken cognizance of by a criminal court without sanction it is impossible to bring the last chapter of the incident viz., what is alleged to have taken place during the night within the inhibition of the section. As the sequel will deal with or refer to decided cases directly dealing with that question without more ado I straightaway hold that accused 1 is liable to be proceeded against in respect of that part of the complaint without any sanction under S.197, Criminal P.C." 11. In Mukund Singh v. Vishnu Prasad (AIR. 1956 Allahabad 396) one Deputy Supdt. of Police, when the complainant was in the Police station under lock up had beat and kicked him on account of which he received grievous hurt and as a result thereof he was treated in the hospital for several days. It was pointed out in that case that the complainant was arrested in connection with some other charges levelled against him. On a consideration of the entire question involved in the case, the Allahabad High Court in the above decision observed as follows: "In the case before me the allegation against the accused was that they humiliated the complainant, maltreated him and beat him causing a number of injuries, while he was at the police station. I do not think that it was any part of the duty of the accused to assault the complainant while he was in their custody. I do not think that it was any part of the duty of the accused to assault the complainant while he was in their custody. In my opinion if the complainant is is able to establish the allegation that the accused who as a Deputy Superintendent of Police assaulted and beat him while he was detained at the police station, it will not be any defence on the part of the accused that they did so in the exercise of their official duty. It is only in those cases in case the allegations are proved, the accused could plead that he committed the acts in the discharge of his official duty that S.197 would apply. In the circumstances, I am of opinion that the acts complained of by the complainant could not be said to have been committed by the accused in the discharge of their official duty and, as such, S.197, Criminal P.C is not applicable to the case." 12. In Giani Singh v. Ranjit Singh (AIR. 1965 Punjab 192) one Police officer damaged public property and also set fire to property after an unruly crowd was dispersed from the locality. The crowd was collected in procession as a protest against the irregularities committed in the counting of votes at a particular constituency. The Police officer used tear-gas to disperse the crowd and he successfully dispersed them by us3 of the tear-gas. But, to justify the use of tear-gas he set fire to other properties. It was held in that case, on a consideration of the case law on the point, that the Police officer had exceeded his right in his duty as a public servant and that he was liable to be proceeded against. In allowing the prosecution to be proceeded against the Police officer, the following observation was made: 'It is, however, not every offence committed by a public servant which requires sanction under S.197, nor even every act done by him while he is actually engaged in the performance of the official duty. In allowing the prosecution to be proceeded against the Police officer, the following observation was made: 'It is, however, not every offence committed by a public servant which requires sanction under S.197, nor even every act done by him while he is actually engaged in the performance of the official duty. It is only when the act complained of is directly concerned with his official duty so that if questioned, it could be claimed to have been done by virtue of the office that sanction may be considered necessary, and this would be so irrespective of whether or not it was a proper discharge of his duty, because that question can only arise at the trial and not at the initial stage when the Court considers the necessity of sanction. Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of the official duty: offences like acceptance of bribe or cheating, being some of them. To fall within the purview of the protection afforded by S.197, the act must bear such reasonable connection with the discharge of the official duty that the public servant charged could by a reasonable but not a pretended or fanciful justification, claim that he did the act in the course of the performance of his duty." 13. In Nand Ram Agarwala v. H C Bhan and others (AIR 1956 Supreme Court 44) the Supreme Court was considering the meaning of the words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" occurring in S.197 Cr P.C. It was observed that in order that an act of a public servant may fall within the ambit of his official duty, it must be shown, that it was committed in the discharge of his 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 his duty as this question will arise only at a later stage when the trial proceeds on the merits. In such cases there was no difficulty in coming to a conclusion as to whether the prosecution was to be proceeded against the 1st accused or not. In such cases there was no difficulty in coming to a conclusion as to whether the prosecution was to be proceeded against the 1st accused or not. But all the facts and circumstances had been brought to trial in the instant case. The 1st accused had no case in reply to the charge that his act if any was committed in self defence of his person. It was possible for the courts below to consider the case on merits against the 1st accused as it is to be held that, prima facie, it is seen that the 1st accused when the act complained of was not doing any work in relation to his official duty as a Police officer. It is no part of a duty as a Police officer to assault an accused while he was brought at the Police Station. There was complaint of torture as well as intimidation in this case. None of these acts could be said to have been done in any connection with the official duty of the Police Officer. In Somchand v. Bibhuti Bhusan (AIR. 1965 Supreme Court 588) the facts relating to the accused were clearly such as to bring the acts alleged within the scope of the official duty of the police officer. In the instant case the allegation against the police officer was not that he had no authority to take the complainants to the Police station or interrogate them. On the other hand, it was alleged that the complainants were taken to the Police station at which they were tortured and intimidated. The case reported in AIR. 1965 Supreme Court 588 is, in my opinion, clearly distinguishable and has no application to the facts of the present case. It is true that the observation in AIR. 1956 Supreme Court 44 was that sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Their Lordships pointed out that the complainants may not disclose the act complained or purported to be done in discharge of his official duty. But, facts may come in the course of the prosecution evidence at the trial or otherwise may establish the necessity for sanction. The necessity may reveal itself in the course of the progress of the case. Their Lordships pointed out that the complainants may not disclose the act complained or purported to be done in discharge of his official duty. But, facts may come in the course of the prosecution evidence at the trial or otherwise may establish the necessity for sanction. In that event the court shall dismiss the complaint on the ground that the accused should not be prosecuted without the sanction of the State Government under S.197 Cr. PC. But, none of those considerations need be taken into account in the present case. The facts have been placed before us for a final determination as to whether sanction was necessary or not. In my view, the complaint being one of torture by the 1st accused and subordinates after the complainants were taken to the Police station the question does not arise that the police officer was doing the act in the discharge of his official duty. There was no reasonable connection between the act and the official duty in the present case. In this regard, the following passage appearing in Chaturbhuj v. Bhojamal (AIR. 1953 Vindhya Pradesh 7) is important. It runs as follows: "If the words 'duties as such public servant" to S.197 are narrowly interpreted, every act for which a public servant is charged in a criminal case would naturally be outside the strict scope of his authority; that is why S.197 adds "purporting to act", in other words, the strict scope and authority of public office might be exceeded, but it might not be so far exceeded as to be without the colour of the office exercised in good faith. The line has to be drawn somewhere between the very narrow inner circle of official duties strictly so called, and the very large number of acts altogether outside the scope of official duties which no reasonable man would deem to be committed under the colour of that office Where exactly that line is to be drawn is a problem not of principle but of prudence and reasonableness varying with circumstances of each case." 14. In view of the above pronouncements on the question of law involved in this case, I am of the opinion that the 1st accused, Inspector of Police, did not act in the discharge of his official duty when the torture complained of against him was committed. In view of that conclusion, it is absolutely necessary for the trial Magistrate to proceed with the complaints against him in the proceedings referred to above. 15. In the result, the references are accepted and the Additional First Class Magistrate, Tellicherry, is directed to proceed with the complaints against the 1st accused on merits and dispose of the same in accordance with law untrammelled by any opinion expressed in this order.