minal Appeal No 152 of 1967
Appeal by special leave from the judgment and order dated November 19 1966 of the Judicial Commissioner Court Goa Daman and Diu in Criminal Reference No 103 of 1966
RN Sachthey for the appellant
The respondent did not appear
The Judgment of the Court was delivered by Grover J
The sole point for decision in this appeal by special leave is whether a complaint which had been filed against the appellant and four other persons by the respondent for various alleged offences could be entertained without necessary sanction being obtained for the prosecution of the appellant who at the material time was the Deputy Superintendent of Police under section 197 of the Criminal Procedure Code
The original complaint is not before us as it has not been included in the appeal record but the allegations contained therein are given in the judgment of the learned Judicial Commissioner
The complainant alleged that on March 5 1966 at about 4 pm accused Nos 2 to 5 who were hawkers by profession and some other persons attempted to trespass on his land in Margao town with the intention of putting up stalls there
The complainant having been threatened by them sent his brother to the police station
The police came and asked the hawkers to keep their handcarts at the place where they were kept before
Later on at about 5 30 pm the appellant came to the spot and spoke to the complainant in a very arrogant tone
The appellant informed the complainant that he was Deputy Superintendent of Police and that he had in his possession documents which proved that the land belonged to one Alma Ram
The appellant asked the complainant to produce his documents of
title but the complainant replied that those documents had been produced by him in some litigation in the civil courts
The appellant is then alleged to have threatened the complainant that he would lock him up in case there was any interference with what the hawkers Wanted to do
The appellant also beckoned accused Nos 2 5 and other hawkers to enter upon the land
When the complainant protested he was warned by the appellant that if he talked he would be slapped
The appellant also assaulted him
Thereafter the possession of the land was taken over by the hawkers
The magistrate to whom the complaint was presented examined the complainant under section 200 Criminal Procedure Code 1015 and issued summons to answer the charges under sections 149 341 342 352 500 503 and 504 read with section 34 against the appellant and other accused persons requiring them to appear on April 19 1966
The appellant filed a petition for revision under section 435 of the Code before the learned Sessions Judge in which the main point taken was that the previous sanction under section 197 Cr
PC to prosecute the appellant was required which had not been obtained
The learned Sessions Judge made an order recommending that the magistrate be directed to require the complainant to obtain the requisite sanction before prosecuting the appellant
This matter was heard by a bench consisting of the Judicial Commissioner and the Additional Judicial Commissioner
The Judicial Commissioner was of the view that there was no material on the record to come to the conclusion that the acts complained of would be protected by the provisions of section 1971 of the Code
The learned Additional Judicial Commissioner took a contrary view and held that sanction was necessary
The order of the court was that there being no third Judge to resolve the difference of opinion the order of the learned magistrate issuing the summons be confirmed in terms of proviso to section 72 of the Goa Daman and Diu Judicial Commissioner s Court Regulation 1963
It may be mentioned that in the statement recorded under section 200 of the Criminal Procedure Code by the magistrate the complainant made more or less the same allegations as were made in the complaint
According to the learned Additional Judicial Commissioner in the statement made in court it was not affirmed that the complainant had been wrongly retrained or confined nor was it mentioned that he was actually assaulted in the sense that physical force was used against him
The worst that could be said according to the Additional Judicial Commissioner was that the appellant had warned the respondent that he would be arrested if he interfered with the entry of the hawkers on the disputed land and that the appellant
also made some gestures with the hand indicating threat of assault
In our opinion it is not necessary to go into the allegations in the original complaint
It would suffice to read the statement made by the complainant before the magistrate which is reproduced below I confirm the matter in my complaint
On 5th instant at about 400 pm the accused Nos 2 to 5 attempted to trespass upon my plot situated near the market of this city with a view of setting upon thereon their mobile shops
I therefore sent my brother to the Police who came to the spot and sent the vendors away
At about 530 pm on the same day Mr Sinari in civil dress turned up at that place
At that time I was sitting in the verandah of the shop of one Kharan 1016 gute situated at the same place
He called me near him
Thereafter he asked me whether I knew him to this I replied in the affirmative
After this he identified himself as Dy
Superintendent of Police and threatened me that if I interfered with vendors he would arrest me
Subsequently he directed the vendors to enter my plot and warned me that he should slap me on my face
In case I oppose to this
He told me further that he was dealing with the case when I brought to his notice that my documents were lying with the Municipality and with the Court
The same accused made some gestures of threats of assault with hands
I kept myself mum in view of this unusual attitude and the vendors  took possession of my pro The learned Judicial Commissioner as also the Additional Judicial Commissioner have discussed the case law on the subject exhaustively and have also summarised the principles deducible from the various pronouncements
It seems to us that there is no difficulty in finding the true rule which has been laid down by numerous decisions including those of the Privy Council Federal Court and this Court
It is only in the application of the settled rule that certain amount of difficulty may be experienced owing to the peculiar facts of a particular case
The language of section 197 Cr P Code clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the appellant when he 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
This Court observed in Ronald Wood Matham vs State of West Bengal1 that the question whether sanction under section 197 was necessary for instituting proceedings on charges of conspiracy and of bribery stood concluded by the decisions of the Judicial Committee in H H B Gill vs The King2 and Phanindra Chandra Neogy vs The King3 and must be answered in the negative
so far as the appellant in that case was concerned
After a full discussion of the case law the result was stated in Matajog Dubey vs
HC Bhari4 thus There must be a reasonable connection between the act and the discharge of official duty the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his   duty
 76 IA 10
4   934 1017 At an earlier stage it had been observed that it did not matter if the acts exceeded were strictly necessary for the discharge the duty
What had to be found out was whether the act and the official duty were so inter related that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation
In Amrik Singh vs State Pepsux Venkatarama lyer J speaking for the Court summed up the result of the various decisions on the subject and said that it was not every offence committed by a public servant which required sanction for prosecution under section 1971 of the Code of Criminal Procedure nor even every act done by him while he was actually engaged in the performance of his official duties
But if the act complained of was directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office then sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties or not
Reference may be made to Nagraj vs State of Mysore2 in which the appellant a Sub Inspector of Police was committed to Sessions Court for trial on a complaint that he and another person had severely beaten one T and when he was forcibly taking him away and was requested by K to excuse T he wantonly fired on two persons
Emphasis on the question of sanction has been laid on the rule that the jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence record We are unable to agree with the learned Additional judicial Commissioner that if the allegations of the complainant are taken to be correct it was established that the appellant held out threats to arrest the complainant or to give him a slap on his face in the discharge or purported discharge of his duties
There are many matters on which there is complete absence of any material or information
In the first place it is not clear in what capacity the appellant came to the spot
According to the complainant he sent his brother to the police station because the hawkers were attempting to trespass on his land
Normally it would be the officr 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 appellant who was a superior officer could come to prevent any ugly situation arising between the complainant and the hawkers
It is not established that the appellant came in the capacity of a police officer
On the contrary the necessary implication in the statement of the complain 19551 SCR1302
f2 11964138CR 671
1018 ant is that the appellant came in civil dress wanted the hawkers to be put in possession of the disputed plot and actually directed them to enter the plot and warned the complainant that if he
resisted he would be slapped in his face
Until some more material is placed on the record it cannot be held that it was any part of the duty of the appellant to ensure that the hawkers were put_in possession of the disputed land
It may be that the appellant was entitled to interfere and take proper steps if he apprehended any breach of peace but there is nothing whatsoever in the complainant s statement which would show that any such situation existed which could justify interference by the appellant
Ordinarily if a person is in possession of some property and other persons are threatening to dispossess him it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one party to give up possession to the other even if he was satisfied that the party seeking to take possession was lawfully entitled to do so
This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession
Whatever way the matter is looked at we are unable to hold on the basis of the allegations contained in the statement of the complainant that the acts alleged against the appellant were such as could be regarded to have been committed by him while acting or purporting to act in the discharge of his official duties
It will be open to the appellant to establish during the course of further proceedings that the requisite sanction under section 197 must be obtained but at this stage we concur in the view of the learned judicial Commissioner that no such sanction was necessary
The appeal fails and it is dismissed
GC Appeal
dismissed


Summary:
A private complaint was filed against the appellant who was a Deputy Superintendent of Police
According to the statement of the complainant there was a dispute between him and certain hawkers who wanted to trespass on his land and at his instance the police was informed
The appellant came to the spot threatened and assaulted him and suggested to the hawkers to enter upon the load whereupon the hawkers took possession of the land
The Magistrate after recording the statement of the complainant issued summons to the appellant and others for answering charges under sections 149 341 342
352 500 and 504 of the Indian Penal Code read with section 34 thereof
The appellant filed a petition for revision under section 435 Cr
PC before the Sessions Judge in which the main point taken was that the previous sanction under section 197 Cr
PC required for the prosecution of the appellant had not been obtained
The Sessions Judge ordered that the complainant be asked to obtain the required sanction before prosecuting the appellant
But the judicial Commissioner s Court ordered that the order of the Magistrate issuing the summons be confirmed
In appeal to this Court by special leave HELD The language of section 197 Cr
PC clearly is that no court can take cognizance of an offence alleged to have been committed by any person belonging to the categories mentioned in the section which would include the appellant when he 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
In the present case it was not clear in what capacity the appellant came to the spot
On the basis of the statement of the complainant it was not established that he came in the capacity of a police officer
Ordinarily if a person is in possession of some property and other persons are threatening to dispossess him it is no part of the duty of a police officer to take sides and decide the dispute in favour of one party or the other or to force one natty to give up possession to the other even if he was satisfied that the party seeking to take possession was lawfully entitled to do so
This the police officer could only do if there had been any direction by a competent court for rendering help in the matter of delivery of possession
In dismissing the appeal the Court observed that it would be open to the appellant to establish during the course of further proceedings that the requisite sanction under section 197 must be obtained Ronald Wood Mathams vs State of West Bengal  HB Gill vs The ICing 75 IA 41 Phanindra Chandra Neogv vs The King 76 IA 10 Matalog Dubey vs H C Bhari   1054 934 Amrik Singh vs State of Pepsu  and Nagraj vs State of Mysore   referred to