TaxTMI 
TaxTMI 
2016 (4) TMI 1421
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....ached. He sent one Aklu Ram to administer some treatment. However on 2.2.1995 she was brought to the Primary Health Centre, Patthalgaon where she was admitted and died at 2 p.m. Her post mortem was conducted. After 25 days, First Information Report was lodged and ultimately Police filed chargesheet Under Section 304A Indian Penal Code on 16.10.1996 in the court of Judicial Magistrate First Class, Dharamjaigarh, as against Appellant A.K. Jha, Dr. A.M. Gupta and Aklu Ram. Charges Under Section 304A were framed as against Dr. A.M. Gupta and the Appellant. Both of them filed an application for discharge Under Section 197 Code of Criminal Procedure on the ground that sanction to prosecute was required and they could not be prosecuted without previous sanction. Vide order dated 27.6.2001 passed by the Judicial Magistrate First Class, the application filed by Dr. A.M. Garg had been allowed. However, the application filed by the Appellant was rejected on the ground that he was in-charge of the Primary Health Centre and he failed to provide Government jeep for shifting the patient Mrs. Runiabai to District Hospital, Raigad whereas the Appellant himself travelled in the jeep to attend an off....
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....d relation to discharge of official duty of the accused. It was clearly connected to the performance of his official duty. When such is the case, sanction is required. This Court in Shreekantiah Ramayya Munipalli v. The State of Bombay 1955 (1) SCR 1177 has observed thus: Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning. What it says is - when any public servant ..... 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...... We have therefore first to concentrate on the word 'offence'. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the....
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....d as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram's case and also in Sarjoo Prasad v. The King-Emperor (1945) F.C.R. 227. Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intent to lay down any such proposition. Sulaiman, J. refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the....
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.... 'official act' thus: 6. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office. And official act or official duty means an act or duty done by an officer in his official capacity. In S.B. Saha v. M.S. Kochar (1979) 4 SCC 177 it was held: (SCC pp. 184-85, para 17) 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 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 r....
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.... of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in....
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....is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act ca....
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....ry in a Government hospital, hence prosecution was not maintainable without sanction from the State Government. 13. In State of Madhya Pradesh v. Sheetla Sahai and Ors. 2009 (8) SCC 617, this Court has laid down thus: 59. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 wherein it was held: (AIR pp. 48-49, para 17) 17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. But the difference is only in language and not in substance. The offence alleged to have been ....
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....riminal Procedure as defined and understood in the earlier case. The decision in Albert West Meads v. R. AIR 1948 PC 156 does not carry us any further; it adopts the reasoning in Gill case AIR 1948 PC 128. 60. The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar (1979) 4 SCC 177 in the following terms: (SCC pp. 184-85, paras 17-18) 17. 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 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 these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the per....