LexBHAGWAN PRASAD SRIVASTAVA versus N. P. MISRA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
18 c 0 E f' G BHAGWAN PRASAD SRIVASTAVA v. N. P. MISRA 4pril 20, 1970 [A. N. RAY AND I. D. DUA, JJ.] Code of Cr'mi11al P•ocedure, (5 of 1898) s. 191-Scope of. 317 The respondent filed a complaint stating that the appellant, a civil surgeon used defamatory and abusive words and got the respondent push- ed out by the cook of the hospital. On the question whether tlie case was covered by s. 197 Cr. P.C. and previous sanction of the superior authority was necessary before the trial Court could take cognizance Cit the complaint, HELD : The case was not coveced by s. 197 Cr. P.C. The object and purpose underlying section 197 Cr. P.C. is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge_ of their official duty. The larger interest of efficiency of Stale administration demands that public servants should be free to per- form their official duty 'fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoypn•c or injury may have been caused by 'their legitimate acts done in the dis- charge of their official duty. This section is designed to facilitate 'effec- tive and unhampered performan~e of their official duty by· public servants hy providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction 'for their prosecution as a condition precedent to the cognizance of the cases against th'!m, by the courts. It is nelther to be too narrowly construed nor too widely. Too narrow anc! pedantic construction may render it otiose fo·r it is no part of an official duty, and never can be-to commit an offence. It is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea o'f legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. The question wh"ther a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. [320 D-H;' 321 G] In the present case the alleged offence consists of the use df defama- tory and abusive wo·rds and of gettin~ the complainant-respondont forcibly turned out of the operation theatre, by the Cook. There was nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the perfor- mance of his official dutv that without so acting he could not have pro- perly dischargecl it. [321 G-H] H Matajog Dobey v. H. C. Bhari, [1955] 2 S.C.R. 925 Amrik Singh v. The State of PEPSU. [1955] I S.C.R. 1302 at 1307 /Jaijn(lth Gupta v. S1<1te of M. P., [1966] 1 S.C.R. 210; Prabhakar V. Sinari v. Shanker Anunt Verlekar [1969] 2 S.C.R. 1013, referred to. 318 SUPREME COURT REPORTS [1971] l S.C.R. CRl\!INAL APPELLATE JURISDICTION: Criminal Appeal No. 139 ot 1967. Appeal by special leave from the judgment and order dated Februan 21, 19&7 of the Patna High Court in Criminal Revision No. 546 of 1965. ' Sar/oo Prasad, S. S. Jauhar and K. K. Sinha,. for the appellant. U. P. Singh, for the respondent. Th.e Judgment of the Court was delivered by Oua, J. Jn this appeal by special leave arising out of a com- u:aint tiled by the respondent Shri N. P. Mishra against the appel- lant Sh ri Bhagwan Prasad Srivastava. the only question requiring determination is if cognizance of the case by the Magistrate re- quired previous sanction under s. 197, Cr. P.C. The Sub-Divi- sional '.'vlagistrate, in whose court the complaint was instituted. upheld the preliminary objection based on the absence of previous sanction and the Second Additional Sessions Judge, on revision, agreed with this view. On further revision the Patna High Court disagreed with the yiew taken by the two courts below and holding s. 197. Cr. P.C. to be inapplicable to the case directed the Sub- Divisional Magistrate to make further er.quiry into the petition of complaint. Before us the vi
Excerpt shown. Read the full judgment & AI analysis in Lexace.