LexSHRI S.K. ZUTSHI AND ANR. versus SHRI BIMAL DEBNATH AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
SHRI S.K. ZUTSHI AND ANR.
v.
SHRI BIMAL DEBNATH AND ANR.
AUGUST 10, 2004
B
[S.N. VARIAVA AND ARIJIT PASAYAT, JJ.]
Code of Criminal Procedure, 19 7 3 :
S. 197-Prosecution of public servants-Claim for protection-
C Complaint against personnel of Security Force that they demanded illegal
gratification and on refusal committed offences u!ss. 395, 447and 506
!PC-Stand of the officials that they acted in the course of their official
duty as they suspected the complainant to have stored goods for purposes
of smuggling-Held, s.197 does not get immediately attracted on institution
of complaint-It must be shown that official concerned was accused of an
D offence alleged to have been committed by him while acting or purporting
to act in discharge of his office duty-On facts, no case for interference
made out-Principles underlying s.197-Explained.
E
F
Words and Phrases:
'Official duty' as occurring in s.197, Cr.P.C.-Connotation of
A complaint was filed by ri!spondent No. 1 that appellants and
some other personnel of Border Security Force came to his shop and
demanded Rs. I 0,000 as illegal gratification and, on his refusal, they
ransacked the shop, took away some shop articles and documents and
threatened him with dire consequences, and thus committed offences
punishable under ss. 395, 447 and 506 IPC. The appellants were issued
process. They filed an application under s.397 of Code of Criminal
Procedure, 1973 before the Additional Sessions Judge questioning the
G order taking cognizance and the consequential proceedings, contend-
ing that they acted in the course of their official duty under the
provisions of the Customs Act, 1962 as they suspected that the
complainant had stored in his shop some articles for the purpose of
smuggling and, therefore, they were entitled to protection under s.197
H of the Code. The Additional Sessions Judge held thats. 197 of the Code
400
S.K. ZUTSHI v. BIMAL DEBNATH
401
was not applicable to the facts of the case. Aggrieved, the officials filed A
the present appeal.
·
Dismissing the appeal, the Court
HELD : 1. The protection under s.197 of the Code of Criminal B
Procedure, 1973 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. [405-A-B)
Bakshish Singh Brar v. Smt. Gurmej Kaur & Anr., AIR (1988) SC C
257, relied on.
2. 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 D
of his official duties. One safe and sure test in this regard would be to
consider if the omission or neglect on the part of the public servant to
commit the act complained of could have made him answerable for a
charge of dereliction of his official duty; if the answer to his question
is in the affirmative, it may be said that such act was committed by E
the public servant while acting in the discharge of his official duty and
there was every connection with the act complained of and the official
duty of the public servant. This aspect makes it clear that the concept
of Section 197 does not get immediately attracted on institution of the
complaint case. [405-C-G)
p
P. Arulswami v. State of Madras, AIR (1967) SC 776, relied on.
5. 'Official duty' implies that the act or omission must have been
done by the public servant in course of his service and such act or
omission must have been performed as part of duty which further must G
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 b) a public servant in discharge of his H
402
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A duty then it must be given liberal and wide construction se far as its
official nature is concerned, 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. (408-G-H; 409-A-B]
B
B. Saha and Ors. v. MS. Kochar, {1979} 4 SCC 177 and Matajog
Dobey '" HC. Bhari, AIR (1956) SC 44, relied on.
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