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1980 DIGILAW 304 (KER)

SANJEEVE v. LUIS

1980-11-17

U.L.BHAT

body1980
Judgment :- 1. This is a petition filed under S.482 of the Code of Criminal Procedure by the 11th accused in C. C. No. 423 of 1978 on the file of the Chief Judicial Magistrate's Court, Ernakulam to quash the complaint against him. 2. The petitioner is an officer belonging to the Indian Administrative Service who worked in 1978 at Cochin as Sub Collector (Revenue Divisional Officer) and Sub Divisional Magistrate (Executive). There were disputes between the first respondent-complainant and the second respondent-1st accused regarding a pathway, the first accused claiming it to be a public pathway in which he and his institution have a right of way. There appears to have been some other litigation between the parties also. On 6-10-1978 the first accused filed a complaint before the petitioner herein alleging obstruction by the first respondent on the public pathway and sought his assistance in the matter. The petition was filed before the Revenue Divisional Officer in his capacity as Executive Sub Divisional Magistrate. After perusing the petition, he passed an order as follows: "Forwarded to the Asst. Commissioner L & 0 Ernakulam City, who will arrange to provide police protection to the petitioner to dismantle the unauthorised construction on the public pathway over which the petitioner has specific rights." The petition and the order were forwarded by the Assistant Commissioner of Police, Law and Order, Ernakulam to the Circle Inspector of Police, Kalamasserry. It appears that in the presence of police officers the so-called construction or obstruction was removed and the matter was reported to the present petitioner. 3. On 16-10-1978 the first respondent filed a complaint before the Chief Judicial Magistrate, Ernakulam against 11 persons alleging offences under S.143, 148, 352, 457, 382, 441 and 503 IPC. The present petitioner has been shown as the 11th accused in the case. The learned Magistrate appears to have taken cognizance of the case and issued summons to the parties. The 2nd respondent herein filed Crl. M. P. 1241 of 1978 in this Court to quash the proceedings. Its was ultimately dismissed in February 1980 on the ground that there was no justification for interference at that stage. Meanwhile on 23-12-1978 the present petitioner (11th accused) filed a petition before the learned Magistrate contending that the prosecution is not maintainable for want of sanction under S.197 of the Code. No order has been passed on the petition till now. Meanwhile on 23-12-1978 the present petitioner (11th accused) filed a petition before the learned Magistrate contending that the prosecution is not maintainable for want of sanction under S.197 of the Code. No order has been passed on the petition till now. On the disposal of Crl. M.P. No. 1241 of 1978 by this Court, the learned Magistrate appears to have issued summons to all the accused once again. Thereupon the 11th accused has come up with this petition under S.482 of the Code of Criminal Procedure (for short the 'Code'). 4. Since the petitioner moved a specific application before the learned Magistrate raising the question of want of sanction the learned Magistrate ought to have disposed of the petition expeditiously. Instead he has kept the same pending without passing any orders at all. Under these circumstances it is open to this court to consider the question raised in the case. 5. It is argued by the learned counsel for the petitioner that the first respondent filed a petition on 610 1978 before the 11th accused only in the latter's capacity as Sub Divisional Magistrate (Executive) exercising powers under the Code of Criminal Procedure and the order passed by him for police protection is one passed under S.133 of the Code, however, unsupportable the order may be on merits. Learned counsel for the first respondent would contend that the order passed by the 11th accused could not have been in pursuance of the powers vested under the Code of Criminal Procedure. The allegation in the complaint filed before the learned Magistrate . against the 11th accused is that he abetted the commission of all the offences by passing the order referred to above. 6. The law on the question as to under what circumstances sanction under S.197 of the Code is necessary to prosecute a magistrate or public servant is well settled. This provision has been intended to prevent public servants from being unnecessarily harassed and to afford them protection against frivolous, vexatious or false prosecution. To ensure efficiency of administration it is necessary that public servant should be free to perform their official duties without fear of apprehension of possible prosecution at the hands of private parties. Such a restriction on prosecution is necessary to enable effective performance of official duties by public servants. 7. To ensure efficiency of administration it is necessary that public servant should be free to perform their official duties without fear of apprehension of possible prosecution at the hands of private parties. Such a restriction on prosecution is necessary to enable effective performance of official duties by public servants. 7. S.197 of the Code requires sanction before cognizance is taken in regard to any offence alleged to have been committed by a public servant "while acting or purporting to act" in the discharge of his official duty. Normally it cannot be expected that the performance of official duty involves the commission of an offence. Hence a strict interpretation of S.197 of the Code would be self-defeating as it would amount to negation of the very basis of the provision. There could be another view which would support protection to any act done by a public servant. This is the other extreme and will affect the fabric of our democratic structure. What is necessary is an avoidance of both these extremes by striking the middle path and attributing to the words of S.197 of the Code their natural meaning in their natural setting. The protection is afforded not merely to an act done by a public servant while acting in the discharge of his official duty. Protection is also afforded to an act done by him while purporting to act in the discharge of his duties. 8. There must be a reasonable nexus between the act and the official duty. The act and duty must be so inter-related that one can reasonably say that the act was done by him in the performance of his official duty. There must be something in the nature or character of the act that attaches to it official character of the person doing it. The usual test is, can the public servant when challenged, reasonably claim that what he did, he did in virtue of his office. The nexus must be such that he could, by a reasonable claim and not by a fanciful and pretended claim say that he did the act in the course of performance of his official duty. The usual test is, can the public servant when challenged, reasonably claim that what he did, he did in virtue of his office. The nexus must be such that he could, by a reasonable claim and not by a fanciful and pretended claim say that he did the act in the course of performance of his official duty. It does not matter if the act exceeds what is strictly necessary for the discharge of his duty or if it is in excess of the needs and requirements of the situation or even if it is done in a mistaken belief as to the existence of such a duty. It does not matter even if it is done in excess of his authority or scope of his power; but this authority or scope might not be so far exceeded as to be without colour of his office. As to where the line has to be drawn would depend on the test of reasonableness depending on the facts and circumstances of each case. These principles are clear from the decision in Sanwat Khan v. State of Rajasthan (AIR. 1956 SC. 54), B. P. Srivastava v. N. P. Mishra (1970 (2) SCC. 56), Pukhraj v. State of Rajasthan (1973 (2) SCC. 701), Lakshmana v. Sulochana (1977 KLT. 858) and State v. Kailash Chand (1980 Crl. L. J. 393). 9. The impugned act of the petitioner has to be tested in the light of these principles. He received a petition from the first accused addressed to him in his capacity as Sub Divisional Magistrate (Executive). He passed an order in his capacity as Sub Divisional Magistrate directing the concerned police officer to give police protection in the dismantling of the unauthorised construction. 10. The order shows that he was prima facie satisfied about the truth of the allegations contained in the petition. There can be no doubt that under S.133 of the Code, in his capacity as Executive Magistrate, he had power to take necessary action, such as passing of a preliminary order for removal of obstruction. S.135 of the Code lays down that a person to whom the order is addressed has a duty to obey or show cause. What the learned Magistrate did was to short circuit the entire procedure and come to a decision that the obstruction complained of has to be removed with police protection. S.135 of the Code lays down that a person to whom the order is addressed has a duty to obey or show cause. What the learned Magistrate did was to short circuit the entire procedure and come to a decision that the obstruction complained of has to be removed with police protection. There can be no doubt that while passing this order he was purporting to act as Executive Magistrate under the terms of S.133 of the Code. It is clear that the order passed by him was wrong. But it cannot be said that there is no reasonable nexus between his act or order and his official duty. From the terms of the order passed by him it is clear that be purported to exercise his function or duty as Executive Magistrate however wrong he might have been in passing that order or whatever be the degree of lack of care he exercised in doing so. I therefore hold that in passing the impugned order which is the act of abetment alleged against him, he was only purporting to act in the discharge of his official duty as Executive Magistrate and to prosecute him, sanction of the proper authority is necessary. Admittedly no sanction has been obtained. The criminal complaint has to be quashed as against him. In the result, Crl. complaint in C.C. 423 of 1978 is quashed as against the 11th accused.The petition is allowed. Allowed.