JAWAHAR KARUNASHANKER ADHARARYU v. STATE — 1995 DIGILAW 416 (GUJ)

D. G. KARIA, J. ( 1 ) IN this petition under Art. 227 of the Constitution of India, question relating to sanction for prosecuting the petitioner-officials of the Gujarat electricity Board under Sec. 197 of the Code of Criminal Procedure is involved, on the following facts and circumstances:- ( 2 ) CRIMINAL Case No. 703 of 1982 was filed by the second respondent, Parmar jayantibhai Tapubhai, in the Court of Judicial Magistrate, First Class at Rajula against the petitioners herein for the offences under Secs. 352, 504 and 114 of the Indian penal Code. The complainant alleged that the petitioners had come for meterchecking and its reading at his factory. The petitioners assaulted and used criminal force on the complainant otherwise than on grave and sudden provocation and thereby committed offence Sec. 352 of the Indian Penal Code. The respondent No. 2- complainant also alleged that the petitioners intentionally insulted and abused the complainant, as he requested to remove the electrical meter after drawing necessary panchnama. The petitioners-accused are also alleged to have aided or abetted in commission of the offences under Secs. 352 and 504 of the Indian Penal Code and thus committed offence under Sec. 114 of the Indian Penal Code. ( 3 ) BY application dated March 24, 1983 at Exh. 17, the learned Advocate for the petitioners-accused contended that the petitioners are alleged to have committed offence when they went for meter-reading at the factory of the complainant. The petitioners are the servants of the Gujarat Electricity Board and are, therefore, public servants within the meaning of Sec. 21 of the Indian Penal Code. They are also public servants within the meaning of Sec. 81 of the Electricity (Supply) Act, 1948. There was no sanction to prosecute the petitioners under Sec. 197 of the Cr. P. C. and therefore, the Court has no jurisdiction to take cognizance of the alleged offences. It was, therefore, requested that the Court should discharge the petitioners. ( 4 ) THE learned Judicial Magistrate, First Class, Rajula, by his order dated April 18, 1983, dismissed the said application Exh. 17, holding that the alleged act of assault and abusing cannot be within the scope of the official act or duty of the petitioners-accused and as such there was no necessity of sanction under Sec. 197 of the Cr. P. C. The learned Magistrate ordered to proceed with the proceedings further. 17, holding that the alleged act of assault and abusing cannot be within the scope of the official act or duty of the petitioners-accused and as such there was no necessity of sanction under Sec. 197 of the Cr. P. C. The learned Magistrate ordered to proceed with the proceedings further. ( 5 ) THE petitioners, being aggrieved with the said order rendered below the application Exh. 17, preferred Criminal Revision Application No. 27 of 1993 in the Sessions Court at Amreli. The learned Sessions Judge, Amreli, by his judgment and order dated December 20, 1983, rejected the Revision Application and confirned the order passed by the learned Judicial Magistrate, First Class, Rajula, holding that the petitioners, though they were public servants, there was no removal from the office by or with the sanction of the Government and as such the provisions relating to sanction under Sec. 197 (4) of the Code of Criminal Procedure, 1973 were not attracted. ( 6 ) IT is against these concurrent findings and conclusions reached by both the Courts below that the present petition is preferred. ( 7 ) MR. M. D. Pandya, learned Advocate appearing for the petitioners, is not present when the matter is called out and heard at length. Only Mr. J. A. Shelat, appearing for the respondent No. 1-State appeared. ( 8 ) SEC. 197 of the Code of Criminal Procedure, 1973 provides for prosecution of public servants not removable from office without the sanction of the government. Sec. 197 of the Code of Criminal Procedure contemplates that when any person who is or was a Judge or Magistrate, or a public servant not removable from his office save by or with the sanction of the Governement is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. It cannot be disputed that the petitioners are the "public servants" within the meaning of clause (b) of sub-sec. (12) of Sec. 21 of the Indian Penal Code and under Sec. 81 of the Electricity (Supply) Act, 1948. It cannot be disputed that the petitioners are the "public servants" within the meaning of clause (b) of sub-sec. (12) of Sec. 21 of the Indian Penal Code and under Sec. 81 of the Electricity (Supply) Act, 1948. Sec. 81 of the Electricity (Supply) Act provides that all members, officers and other employees of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of the Act to be public servants within the meaning of Sec. 21 of the Indian Penal Code. The learned Sessions Judge has rightly held that the petitioners were public servants. However, there is nothing on record to show that their services were removable only with the prior sanction or approval of the Government. The allegation against the petitioners that they assaulted and abused the complainant cannot be within the scope of their official duty or official act by any stretch of reasoning. In my opinion, the sanction to prosecute the public servant would be necessary, if the offence alleged has been committed while acting or purporting to act in the discharge of official duty or any act done during the official work. In the facts of the case, both the Courts below have rightly held that no sanction was necessary to prosecute the petitioners who are the officers of the Gujarat Electricity Board for the offences under Secs. 352, 504 and 114 of the Indian Penal Code. ( 9 ) IN the case of Bhagwan Prasad Srivastava v. N. P. Mishra, AIR 1970 SC 1661 , the Supreme Court interpreting Sec. 197 of the Indian Penal Code, held that S. 197 is neither to be too narrowly construed nor too widely. 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. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned. In the present case, it could have been open for the accused to place material on the record during the course of the trial for showing what were their duties as public servants and also the impugned acts were inter-related with their official duty so as to attract the protection afforded under Sec. 197 of the Code of Criminal Procedure. In the case before the Supreme Court, the Civil Assistant Surgeon had filed a complaint against the Civil Surgeon, that while in operation theatre the Civil Surgeon absued 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. The Supreme Court 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 under Sec. 197 for prosecution of the Civil Surgeon. ( 10 ) IN the instant case also, the acts alleged to have been committed by the petitioners cannot be within the official acts of the petitioners while discharging the duties as the officials of the Gujarat Electricity Board. ( 11 ) IN the result, there is no substance in the petition and no apparent error on the face of the record has been pointed out. Rule is, therefore, discharged. Interim relief stands vacated. .