Gopalakrishnan Potti v. State of Kerala — 1999 DIGILAW 371 (KER)

Judgment :- M.R. Hariharan Nair, J. The petitioner who was the Project Officer, D.R.D.A., Wynad, Kalpetta as on 2.5.1996 is prosecuted for his refusal to provide his official jeep bearing Registration No. KLW 1289 to the District Collector on requisition made for election purposes. His prayer herein is to quash the order of the CJ.M., Wynad passed in C.M.P. 3674/97 in S.T.C. 3525/96 whereby his objections against continuance of trial proceedings in the case were overruled and it was found that even without Government sanction under S.197(1) of the Cr.P.C. the charge against the petitioner for offence under Ss.160 and 167 of the Representation of the People Act, 1950 trial in the aforesaid case shall proceed. 2. The main question that arises for decision in the case is whether Government sanction under S.197 of the Cr.P.C. is required for prosecuting the petitioner for the aforesaid offence. 3. It will be useful to quote S.197(1) of the Cr.P.C. here: "When any person who is a public servant not removable from his office, save by or with the sanction of the Government, 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 of the appropriate Government/ authority." There is no dispute that the petitioner here in is an officer removable by Government only. The question, therefore, is whether the refusal to make available the vehicle to the Returning Officer as requisitioned was a decision taken while acting or purporting to act in the discharge of his official duty. 4. A survey of the case law on the subject will be useful. In Shamboo Nath Misra v. State of U.P. (AIR 1997 S.C. 2102) the question arose whether fabrication of records or misappropriation of public funds done by a public servant can be taken as acts justifying protection under S.197 Cr.P.C. It was held that it was not the official duty of the public servant to fabricate false records or to misappropriate public funds and that such acts cannot be taken as done in the course of discharge of official duties. The official capacity, no doubt enabled Mm to fabricate the records or to misappropriate the public funds; but that does not mean that it is integrally connected to or inseparably inter linked with the crime committed by him. The protective shield under S.197 was denied to the offender by the Supreme Court for the said reasons. 5. In Puthraj v. State of Rajasthan ((1973) 2 S.C.C. 701) the Supreme Court considered the question whether it is necessary, to claim protection under S.197 Cr.P.C. that the alleged act or omission should be done in good faith. It was found that the benefit of the Section need not be restricted only to cases where anything is purported to be done in good faith and that a person who ostensibly acts in execution of his duty still purports to act albeit he may have a dishonest intention. To apply the section the offence should have been committed when an act is purported to be done in execution of duty. 6. The test prescribed by the Supreme Court in this regard is to see whether there is a reasonable connection between the act and the official duty (see Matajog Dubey v. H.C. Bhari (AIR 1956 in S.C. 44) while the Privy Council's view was that the test may well be whether the public servant, if challenged, can reasonably claim that what he did is by virtue of his office (see HHB Gill v. King (AIR 1948 P.C.128)). 7. The purpose underlying S.197 quoted supra is to protect public servants who in the discharge of their official duties might commit certain acts or omissions which may subsequently be regarded as criminal acts. When the public servants are to discharge their duties without fear or favour, it is necessary to afford protection to them in the matter of their bonafide decisions and acts because that is a matter of public interest. However, that protection should not be used as a shield by officers for committing offences under the colour of office and not exactly in the discharge of duties or purported discharge of duties. 8. If the words "while acting or purporting to act in the discharge of his official duties" appearing in S.197(1) are considered too narrowly, the Section will become otiose because it is not a part of official duty of any person to commit any offence. 8. If the words "while acting or purporting to act in the discharge of his official duties" appearing in S.197(1) are considered too narrowly, the Section will become otiose because it is not a part of official duty of any person to commit any offence. At the same time, a very liberal interpretation of the aforesaid word would lead to the conclusion that every act constituting an offence committed in the course of a transaction in which official duties are also involved or purported to be performed will also be protected. That is not the intention behind S.197 Cr.P.C. 9. The general rule of 'golden mean' can best be applied to such cases. Every offence committed by a public servant while engaged in the performance of his official duties need not be afforded protection; but at the same time, acts constituting offence which are directly and reasonably connected with the official duties will have to be protected. To enable this, there must be a reasonable nexus between the alleged act and the official duty of the public officer. They must be closely inter-related so that one will be able to say that the act was done by the public servant in the discharge of official duties. 10. The proper test in the matter would be to pose the question whether the alleged offender did the act or made the omission'by virtue of his office'. The public servant must be able to say that he acted in the particular manner because his discretion allowed him to do so; but that must be a reasonable claim and not a fanciful or pretended one. It need not be that the act must be strictly necessary for the discharge of his official duty, and even if it is a little bit excessive when the needs and requirements of the situation are considered, or if it is done under a mistaken belief with regard to the existence of such a duty or even in dereliction of duty, the act must be protected. What is to be looked into is whether the act is so integrally connected with the duties attached to the office and whether it is so inseparable from them. If the answer is in the affirmative, the public servant should be protected. What is to be looked into is whether the act is so integrally connected with the duties attached to the office and whether it is so inseparable from them. If the answer is in the affirmative, the public servant should be protected. At the same time, if there is no nexus between the act or omissions and the expected performance of his duty, there should be no protection. The prevailing circumstances and the nature of act or omission involved have to be considered. If the act or omission falls totally outside the scope and range of the duty of the public servant, there will be no case for protection. At the same time, if the act or omission is exercised under the colour of his office and reasonably connected with the official duties, he should be protected. 11. One safe test that appears possible is to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable to a charge of dereliction of his official duties, While a negative answer to this question may not clinch the issue; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and that there was every connection between the act complained of and the official duty of the public servant. 12. The facts of the present case may now be considered. S.160 of the Representation of the People Act, 1950, enables Government to requisition vehicles needed for the purpose of transport of ballot boxes to or from Polling Stations and for the transport of the members of the police force for maintaining order during the conduct of elections. S.167 penalises contravention of compliance with the requirements in the matter and that is the section invoked against the petitioner herein. 13. There is no dispute that it was by virtue of his office that the petitioner was in the control and custody of the vehicle concerned. The vehicle was given to him by the Government to enable him to properly discharge his duties. Of course, the District Collector chose to requisition the vehicle for election purposes; but it was for the petitioner to decide whether the vehicle could be released accordingly and if so when. The vehicle was given to him by the Government to enable him to properly discharge his duties. Of course, the District Collector chose to requisition the vehicle for election purposes; but it was for the petitioner to decide whether the vehicle could be released accordingly and if so when. There may be exigencies connected with the office which might force an officer not to release the vehicle at the exact time at which demand is made by the Requisitioning Officer. 14. The release of the vehicle pursuant to the demand of the election authority thus involves a decision making by the person in whose possession and control the vehicle is available and the exercise of the decision making process is definitely a part of his official duties. This is not to say that after a requisition is obtained the officer in possession of the vehicle can, at his will and convenience, choose to release or not to release the vehicle. Election duties justify and require top most priority and such vehicles should be released by the officers who receive the requisition; but that does not mean that he will not have the discretion not to release the vehicle also even under compelling exigencies. It cannot, therefore, be said that the question of release of the vehicle is not one connected with the discharge of his official duties. In this view of the matter and in view of the position of law with regard to the extension of benefit under the said S.197 and considering the necessity to view the matter liberally, I am of the view that this is a case where sanction of Government under S.197 of the Cr.P.C. was essential. 15. In the instant case, in fact, everyone knew of the need for sanction. On motion made by the District Collector, the Chief Electoral Officer and Secretary to Government, Election Department moved the Government for the required sanction and it was declined on 17.2.97 as per order produced in the case as annexure- b. The District Collector also took up the matter with the Government directly and that was disposed of on 17.12.97 as per the order produced as annexure- b. The Government took the view that the request for sanction has to be turned down. The above two communications from the Government unmistakably show that the proper authority which was to grant sanction has applied its mind and found, on the facts and circumstances of the case, that there was no scope for granting sanction to prosecute the present petitioner. 16. It is not in dispute that if sanction was essential for prosecuting the petitioner, the present complaint cannot proceed any further. A perusal of the order of the learned C.J.M. shows that the question of law involved in the case was not properly approached from the correct perspective. 17. In view of my finding that this is a case where sanction was essential and that it was denied by the Government, no purpose will be served by the continuance of the trial. It will be a mere wastage of time of the Court and all concerned and the trial will result in abuse of power. In the circumstances, I find this to be a fit case where the inherent power available with this Court under S.482 of I.P.C. can be justly invoked. Accordingly, the trial proceedings in this case pending before the C.J.M. Court, Kalpetta are quashed. Crl.M.C. is allowed as above.