1973 (8) TMI 175

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....retary 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 5.45 P.M. 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. 5. 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. 6. That the complainant became very much enraged over this incident bu....

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....l 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 public servant and not by 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 ....

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....he person doing it." In affirming this view, the Judicial Committee of the Privy Council observed in Gill's 1948 L.R. 75 IndAp 41. 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 v. H.C. Bhari [1955] 28 ITR 941 (SC). 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 th....