RAKESH KUMAR MISHRA versus THE STATE OF BIHAR AND ORS.

Citation: [2006] 1 S.C.R. 124 · Decided: 03-01-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
RAKESH KUMAR MISHRA 
v. 
THE STATE OF BIHAR AND ORS. 
JANUARY 3,2006 
B 
[ARIJIT PASAYAT AND G.P. MATHUR, JJ.] 
Code of Criminal Procedure, 1973-Sectiun 197: 
Prosecution of public servant-Need for prior sanction---Scope and ambit 
C of protection under S.197 Cr PC-Held: If it is prim a facie found that the act 
or omission for which the public servant was charged had reasonable 
connection with discharxe of his official duty, then it must be held to be 
official to which applicubi/ity of S.197 cannot be disputed-But no universal 
rule to determine whether there is u reasonable connection between the act 
D done and the official duty. 
Protection under S.197 C'rPC - Is available even in cases where a retired 
public servant is sought to be prosecuted. 
Commission of dacoity -Residence of accused searched on directions of 
E appellant police officer·-Search conducted without warrant-Complaint against 
appellant under various provisions of !PC alleging that the search was 
motivated-Magistrate took cogni::ance, though sanction under S. 197 not 
obtained-Sustainabilit:~-Held, not sustainab/e---High Court erred in holding 
S.197 to be inapp/icahle and in declining to quash the order of Magistrate 
under S. 482 Cr PC It erroneously focussed only on absence of search warrant 
F and totally ignored other relevant aspects which had a determinative rule in 
the issue -··Penal Code, 1860-Sections 1208, 342, 389, 469 & 471. 
G 
H 
Words and Phrases: 
"Cognizance "-Meaning of 
"Official" and "Official dwy "_Meaning of-In context tu S.197 of 
Code of Criminal Procedure, 197 3. 
Appellant police officer was supervising a case of dacoity. On receipt 
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RAKESH KUMAR MISHRA v.THE STATE OF BIHAR 
125 
of certain source information, he gave spot instruction to arrest the A 
suspects and conduct search. Son of Respondent No.2 was amongst the 
accused. A team of police officials visited the house of Respondent no.2 
for conducting search, and arrest his son, if necessary. There was no 
seizure. Alleging that the search was motivated and was for the purpose 
of humiliating and harassing Respondent no.2 and his son, as the B 
concerned police officials did not have a search warrant, a complaint was 
· filed by Respondent No.2: Consequently the Judicial Magistrate took 
cognizance of offences under Ss. 342, 389, 469, 471 and 1208, IPC against 
the Appellant. Appellant filed petition under S.482 CrPC seeking quashing 
of the order of Magistrate on ground that in absence of sanction as 
contemplated under S.197 CrPC, the proceedings could not be continue.d. C 
High Court however dismissed the petition holding that since the 
requirement of S.100(4) CrPC were not followed while search was 
conducted in Respondent no.2's premises, the provisions of S.197 CrPC 
were inapplicable. Hence the present appeal. 
Allowing the appeal, the Court 
HELD: I.I. So far public servants are concerned, the cognizance of 
any offence, by any Court, is barred by Section 197, CrPC unless sanction 
is obtained from the appropriate authority, if the offence, alleged to have 
been committed, was in discharge of the official duty. I 130-G-H ! 
1.2. The protection given under Section 197, CrPC i~ to protect 
responsible public servants against the institution of possili>ly vexatious 
criminal proceedings for offences alleged to have been committed by them 
while they are acting or purporting to act as public servants. The policy 
D 
E 
of the legislature is to afford adequate protection to public servants to F 
ensure that they are not prosecuted for anything done by them in the 
discharge of their official duties without reasonable cause, and if sanction 
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 G 
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 conne1ction between 
the act and the performance of the official duty, the excess will not be a 
sufficient ground to deprive the public servant from the protection. The 
question is not as to the nature of the offence such as whether the alleged H 
126 
SUPREME COURT REPORTS 
[2006] 1 S.C.R. 
A offence contained an element necessarily dependent upon the offe

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