minal Appeal No 101 of 1972
Appeal by special leave from the Judgment and order dated the 25th February 1972 of the Rajasthan High Court at Jodhpur in section B Criminal Revision No 52 of 1972
B D Sharma section K Bagga section Bagga Rani Arora and Yash Bagga for the appellant
section M Jain for respondent No 1
section N Prasad for respondent No 2
The Judgment of the Court was delivered by ALAGIRISWAMI J
The appellant filed a complaint against the 2nd respondent before the Add
Munsiff Magistrate of Jodhpur City under sections 323 and 504 IPC
The 2nd respondent was the Post Master General Rajasthan and the appellant a clerk in the Head Post Office 560 at Jodhpur
He was also the Divisional Secretary of National Union of Postal Employees
The relevant portion of the complaint is as follows 4 That the accused came on tour to Jodhpur on 25 10 1971
He arrived at the Head Post Office Jodhpur in connection with the inspection at 545 PM
The complainant reached to submit his representation to the accused for cancelling his transfer when
the accused just sat in his jeep and the complainant started narrating his story 
That the accused being enraged by this complaint kicked him in his abdomen and abused him by saying Sale Goonda Badmash on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer
That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance
That after kicking and abusing the complainant the accused ran away in his jeep
 The 2nd respondent filed an application under section 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged if at all done by the accused were done while discharging his duties as a public servant
The Munsiff Magistrate dismissed the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and set aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government had been obtained
This appeal is against that order
The law regarding the circumstances under which sanction under s197 of the Code of Criminal Procedure is necessary is by now well settled as result of the decisions from Hori Ram Singh s1 case to the latest decision of this Court in Bhagwan Prasad Srivastava vs N P Misra
2 While the law is well settled the difficulty really arises in applying the law to the facts of any particular case
The intention behind the section is to prevent public servants from being unnecessarily harassed
The section is not restricted only to cases of anything purported to be done in good faith for a person who ostensibly acts in execution of his duty still purports so to act although he may have a dishonest intention
Nor is it confined to cases where the act which constitutes the offence is the official duty of the official concerned
Such an interpretation would involve a contradiction in terms because an offence can never be an official duty
The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty
The test appears to be not that the offence is capable of being committed only by a 2 1971 1 section C R 317
1 561 public servant and not anyone else but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office though in excess of the duty or under a mistaken belief as to the existence of such duty
Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction
What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty
It does not apply to acts done purely in a private capacity by a public servant
Expressions such as the capacity in which the act is performed Cloak of office and professed exercise of office may not always be appropriate to describe or delimit the scope of the section
An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty
In Hori Ram Singh s case supra Sulaiman J observed  The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office though in excess of the duty or under a mistaken belief as to the existence of such duty
Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same trans action
 In the same case Varadachariar J observed there must be something in the nature of the act complained of that attaches it to the official character of the person doing it In affirming this view the Judicial Committee of the Privy Council observed in case A public servant can only be said to act or 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
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 In Matajog Dobey vs H C Bhari2 the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by section 197
After referring to the earlier cases the court summed up the results as follows  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
 Applying this test it is difficult to say that the acts complained of ie of kicking the complainant and of abusing him could be said to 1 1948 L R 75 1
A 41
2 19552 section C R 925
562 have been done in the course of performance of the 2nd respondent s duty
At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said  to be in purported exercise of his duty
Very clearly it is not
We must make it clear however that we express no opinion as to the truth or falsity of the allegations
We must also make it clear that this is not the end of the matter
As was pointed out in Sarjoo Prasad vs The King Emperor1 referring to the observations of Sulaiman J in Hori Ram Singh s case supra the mere fact that the accused proposes to raise a defence of the act having purported to be done in
execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction
At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty
But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction
Whether sanction is necessary or not may have for depend from stage to stage
The necessity may reveal itself in the court of the progress of the case see observations in Matajog Dobey vs H C Bhari supra In Bhagwan Prasad Srivastaval vs N P Misra supra also it was pointed out that it would be open
to the appellant the 2nd respondent in this case to place the material on record during the course of the trail for showing what his duty was and also that the acts complained of were so interrelated with his official duty so as to attract the protection afforded by s197 Cr
This appeal is therefore allowed and the order of the learned Judge of the High Court is set aside
SBW Appeal allowed


Summary:
The appellant filed a complaint against respondent No 2 his superior officer in the Postal Department under sections 323 and 502 of IPC alleging that when the appellant went with a certain complaint to the second respondent the second respondent kicked himin his abdomen and abused him by saying Sale gunde badmash
 The second respondent filed an application under section 197 of the Cr
PC praying that the Court should not take cognizance of the offence without the sanction of the Government as required by Section 197 of the Cr
PC it was further contended that the alleged acts if at ail done by the accused were done while discharging his duties as a public servant
The trial Magistrate dismissed the application
The High Court allowed the revision application of second respondent
Allowing the appeal HELD  1 At this stage the Court is concerned only with one point whether on facts alleged in the complaint it could be said that the acts were done in purported exercise of his duties
Applying the test laid down in the decisions of the Federal Court and Supreme Court to acts complained of viz licking the complainant and abusing cannot be said to have been done in the course of the performance of the duty by the second respondent
561H 2 The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction
It may be possible for the second respondent toplace the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter related with his official duty so as to attract the protection afforded by sec
197 of the Cr
Whether sanction is necessary or not may have to depend from stage to stage
562D Horiram Singh  Bhagwan Prasad Srivastava vs N P Mshra 1971 1 SCR 317 Matajog Dobey vs H C Bhari  and Sarjoo Prasad vs The King Emperor
relied upon