CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 04, 2011 Dr. Amrit Pal Sodhi .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Abishek Sethi, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner is a doctor and has been charge sheeted for offences under Sections 420, 467, 468, 471, 120-B IPC. He has filed this revision petition to impugn the order framing charge. Application seeking condonation of delay of 68 days in filing the revision is also filed. The petitioner is an employee of Haryana Civil Medical Services. Having been appointed on adhoc basis, his services were regularised in the year 1984. Subsequently, in February 1997, the petitioner was promoted as Senior Medical Officer. The petitioner CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 2 }: alleges that he has been implicated in this false and frivolous FIR and no offence is made out against him. The allegation made against the petitioner is that he had issued a disability certificate to one Om Parkash showing 80% hearing impairment while he was posted as SMO, CHC, Kalka in the year 1998. It is further alleged that the petitioner had examined said Om Parkash alone whereas he was to be examined by a Board of doctors, which was the requirement. The petitioner had allegedly examined Om Parkash, though he belonged to a different district whereas the petitioner could issue disability certificate only to the residents of the District where he was posted. It is also alleged in the FIR that Om Parkash has got this certificate in collusion with the petitioner, once he was denied such a certificate by Civil Hospital, Rewari, and accordingly it is urged that offences under Sections noted above were made out. Learned counsel for the petitioner has urged that he has been falsely implicated in this frivolous case. As per the counsel he has not violated any instructions issued by the Department and the certificate issued by the petitioner was done in the normal course of his official duties and hence, he can be put to prosecution only after obtaining sanction, as per Section 197 Cr.P.C. Counsel for the petitioner has made me to go through the petition and has urged that no case is made out against the petitioner. He was, however, apprised that for the purpose of framing charge, it is only prima-facie evidence, which is to be seen and evidence at this stage is not to be evaluated. The counsel then CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 3 }: accordingly urged that the petitioner can not be prosecuted without obtaining sanction, as required under Section 197 Cr.P.C. Section 197 Cr.P.C. Provides that when any person, who is or has or was a judge or magistrate or a public servant, not removable from his office save by or with sanction of the Government is accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, then no Court is to take cognizance of the offence, except with previous sanction, in case of person who is employed except with the previous sanction of the State Government if he is employed in connection with the affairs of the State at the time of commission of alleged offence. The counsel has also placed reliance on Parkash Singh Badal Vs. State of Punjab, 2007(1) RCR (Criminal) 1 and Raj Kishor Ray Vs. Kamleshwar Pandey and another, 2002 (3) RCR (Criminal) 873. The counsel has further referred to some judgments to say that the accused is not to wait till the charge is framed and the Court is to consider the question of sanction before framing charge. Reference is made to Surjit Singh and others Vs. State of Punjab, 1983 (2) RCR (Criminal) 52, where order framing charge was set- aside on the ground that no sanction under Section 197 Cr.P.C. was obtained. Plea further is that Section 197 Cr.P.C. should be liberally construed in favour of public servant, as otherwise the entire purpose of affording protection to public servant shall stand frustrated. To be fair to the counsel, he has referred to number of judgements like Abdul Wahab Ansari Vs. State of Bihar and another, 2000(4) RCR (Criminal) 572, K.Kalimuthu Vs. State by CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 4 }: D.S.P., 2005(2) RCR (Criminal) 463, Center for Public Interest Litigation and another Vs. Union of India, 2005(4) RCR (Criminal) 707, S.K.Zutshi and another Vs. Shri Bimal Debnath and another, 2004(3) RCR (Criminal) 813, Rizwan Ahmed Javed Shaikh Vs. Jammal Patel, 2001(2) RCR (Criminal) 681, Amrik Singh Vs. State of PEPSU, AIR 1955 Supreme Court 309 and Goondal Venkateswarlu Vs. State of A.P., 2008(4) RCR (Criminal) 678 in support of his submissions. All these propositions of law as canvassed by the counsel on the basis of these judgements will not be a matter of dispute in any manner but what is required to be seen is whether the immunity given under Section 197 Cr.P.C would protect the act of the petitioner while issuing this certificate. This aspect has been considered in detail in the case of Parkash Singh Badal (supra). The principle of immunity protects all acts, which the public servant has to perform in exercise of functions of the Government. Where, however, a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit, then such acts shall not be protected under the doctrine of state immunity. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own pleasure, then the requirement of sanction can not come in. The applicability of Section 197 of the Code was discussed in detail in Parkash Singh Badal's case (supra) and after making reference to number of precedents, it is observed that the Courts have to draw a balance between protection to the officer and CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 5 }: protection to the citizens. In this regard, reference is made to Bakshish Singh Brar Vs. Smt.Gurmej Kaur and another, JT 1987 (4) SC 190. It is noticed that protection under Section 197 is to protect responsible public servant against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purported to act as public servant. This protection has certain limits and is available only when the alleged act done by public servant is reasonably connected with discharge of his official duty and it is not merely a cloak for doing the objectionable act. If a public servant in doing his official duty acts in excess of his duty but there is a reasonable connection between the act and performance of official duty, the excess will not be sufficient ground to deprive the public servant from the protection. It is noticed that the question is not as to the nature of offence such as whether the alleged offence contained an element necessarily depended upon the offender being public servant but whether it was committed by a public servant acting or purporting to act as such in discharge of his official capacity. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of the Section is available if the act falls within the scope and range of the official duty. The Hon'ble Supreme Court has also observed that there can not be any universal rule to determine whether there is any reasonable connection between the act done and the official duty nor is it possible to lay down any such rule. In P.Arulswami Vs. State of Madras, 1967 (1) SCR 201, CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 6 }: the Court has observed that it is not every offence committed by public servant that require sanction for prosecution under Section 197(1) of Cr.P.C. Even every act done by a public servant while he is actually engaged in performance of his public duty, which would call of sanction but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of office than only sanction would be necessary. In this case, it is further observed that it is the quality of act that is important and if it falls within the scope and range of the official duties, the protection contemplated by Section 197 Cr.P.C. will be attracted. Reference can be made to Matajog Dubey Vs. H.C.Bhari, AIR 1956 SC 44, where it is observed as under:- “The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty... 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 (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed.” CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 7 }: As can be noticed from the case of Parkash Singh Badal (supra) and the other cases referred to therein, the court has emphasized the need of balance between protection to the officers and that of the citizens. In P.Arulswami's case (supra), it has been observed that an offence may be entirely unconnected with the official duty as such or it may be connected with the scope of official duty. Where it is unconnected with the official duty, there can be no protection. It is only when it is either within the scope of official duty or in excess of it that the protection can be claimed. In Matajog Dubey's case (supra), it is observed that the offence as committed must have something to do or must be related in some manner with discharge of official duty. It is further observed that 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 claim but not a pretended or fanciful claim that it did it in the course of performance of his duty. Reference in this regard can also be made to the case of B.Saha and others Vs. M.S.Kochar, 1979(4) SCC 177 to understand the difference between the expression, `any offence alleged to have committed by him while acting or purporting to act in discharge of his official duty', where it is held as under:- “the words `any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in section 197(1) of the code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 8 }: be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.” It is in the background of this law, as noticed above, the question of requirement of sanction or otherwise is to be considered in the present case. The case set up by the petitioner is that he had issued a disability certificate in discharge of his official duty while he was working as a SMO. The allegation by the prosecution is that it was no part of his duties to issue this certificate while being a Government employee to a person who was yet to enter the job and on that basis was able to get the job by showing himself to be suffering from disability. The petitioner could not have issued this certificate as he could do so only in respect of the residents of the District where he was posted. Such certificate had been denied by a doctor in other District and that would explain the reason for the CRL.MISC. NO.58463 OF 2011 CRIMINAL REVISION NO.2655 OF 2011 (O&M) :{ 9 }: issuance of the certificate on approach being made to the petitioner. It would, thus, appear that the alleged offence committed by the petitioner does not strictly relate to or is connected with the discharge of his official duty. There does not appear to be a reasonable connection between the act and the official duty. The act of issuance of certificate does not bear such relation to the duty to enable the petitioner to claim protection but this is only a pretended or fanciful claim that this certificate was issued in performance of his official duty. This word has been well interpreted in B.Saha's case (supra) examining the wording of the section from two extremes, i.e., from narrow as well as wide angles. It has been rightly observed that it is not every offence committed by a public servant while engaging in performance of official duty which is entitled to protection under Section 197(1). The Act constituting an offence directly and reasonably connected with official duty only would require sanction for prosecution under the said provision. The manner in which the petitioner has issued certificate would show that it is not directly and reasonably connected with the official duties for which the requirement of sanction under Section 197(1) Cr.P.C. can be insisted upon. There is prima-facie material available on record to justify framing of charge against the petitioner and no case for quashing the same on the ground of lack of sanction is made out. There is no merit in the revision petition and the same is accordingly dismissed. November 04, 2011 (RANJIT SINGH ) khurmi JUDGE