# BHAGWAN PRASAD SRIVASTAVA v. N. P. MISRA 4pril 20, 1970

- **Citation:** [1971] 1 S.C.R. 317
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-prasad-srivastava-v-n-p-misra-4pril-20-1970-5032
- **Pages:** 6

## Headnote

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 pushed 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 perform 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 discharge of their official duty.
This section is designed to facilitate 'effective 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 defamatory 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 performance of his official dutv that without so acting he could not have properly 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 comu:aint tiled by the respondent Shri N. P. Mishra against the appellant Sh ri Bhagwan Prasad Srivastava. the only question requiring
determination is if cognizance of the case by the Magistrate required previous sanction under s. 197, Cr. P.C.
The Sub-Divisional '.'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,
ag

## Text

18
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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 pushed 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 perform 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 discharge of their official duty.
This section is designed to facilitate 'effective 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 defamatory 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 performance of his official dutv that without so acting he could not have properly 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 comu:aint tiled by the respondent Shri N. P. Mishra against the appellant Sh ri Bhagwan Prasad Srivastava. the only question requiring
determination is if cognizance of the case by the Magistrate required previous sanction under s. 197, Cr. P.C.
The Sub-Divisional '.'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 SubDivisional Magistrate to make further er.quiry into the petition of
complaint.
Before us the view taken by the High Court is
assailed.
The complaint was filed by the respondent Shri N. P. Mishra.
Civil Assistant Surgeon,
Sadar Hospital, Chapra
(hereinafter
called the complainant) agai·nst Shri Bhagwan Prasad Srivastava.
Civil Surgeon, Chapra (appellant in this Court) and Shri Ramjash
Pandey. Cook, Sadar Hospital, Chapra.
It was alleged in the
complaint that on the 6th and 7th January, 1964 the appellant
had used defamatory language towards the complainant, and the
two accused persons had i·nsulted and humiliated him in the eyes
,Jf the public.
As a result, the complainant was put to great
mental pain and agony, his repuration was harmed and his professional career prejudicially affected.
The relevant averments in
the complaint may now be stated with· the requisite detail.
The
complainant claiming to be a Master cf Surgery and a specialist
in Ophthalmology had joined Chapra Sadar Hospital as
Civil
Assistant Surgeon (C.A.S.) in January, 1962.
The appellant
joined the said hospital as Civil Surgeon towards the end of 1962.
The appellant bore illwi1l and malice towards the complainant and
was always c;u the look out for an opportunity to harm him in his
profession and to humiliate and disgrace him in the eyes of the
public.
Some cataract operations were to be performed on January 7, 1964 i: the Blind Relief Camp to be organised for that
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B. P. SRIVASTAVA v. N. P. MISRA (Dua, J.)
319'
purpose.
On January 6, when the complainant was making final'
selection of the patients for the cataract operations to be performed on the following day, the appellant informed the complainant
that he had not been able to arrange for cataract knives and that
the complainant should arrange for them from somewhere.
The
complainant requested the appellant to place order for the kni~es
with some local firm and give him the necessary letter of autp.onty
so that the same could be purchased on credit.
The appellant
apparently did not like this suggestion.
He got enraged and in an
insulting tone and linguage told the complainant that it was his
job to arrange for the knives and that as a last resort he might
bring his own knife.
The complainant repeated his suggestion
adding that in the alternative a man be sent to' Patna to make local
purchases.
On this the appellant again addressed the complainant in highly defamatory language in the presence of the hospital
staff and the attendants. On January 7, 1964 at about 9 a.m. the
complainant was in the operation theatre.
Some members of the
hospitnl staff and some attendants o-' the patients who were waiting outside the operation theatre were also present. The appellant
came there and again asked the complainant if he had brought two
more cataract knives froPl somewhere.
The complainant replieJ
that in the absence of the appellant"s final orders the two knives
C1)ltld not be arranged from the local market.
The appellant
again got annoyed and addressed the complainant
in insulting
tone and defamatory language.
Not satisfied with the use of such
language the ''appellant ordered Ramjesh Pandey, Cook of the
Hospital. to turn out the complainant, the purport of the actual
words used being "Pandey turn out this badmash (one who follows
evil courses.).
To his utter humiliatfon the complainant was then
~1ctually pushed out by the Cook.
The actual words used in Hindi
hy the appellant have been reproduced in the judgment of the High
Court.
We have. therefore, not considered it necessary to reproduce them al!ain, except the word 'badmash' c.f which the literal
111eaning in English as· stated by us is generally well-understood.
The question which falls for decision by this Court is whether
the complai·nant's case is covered. by s. 197, Cr.P.C. and previous
sanction of the superior authority is necessary before the
trial
court can take cognizance of the complaint.
Section 197, Cr.P.C. provides as under:
"(1) When any person who is a Judge within the
meaning of section 19 of the Tndian Penal Code, or when
any Magistrate or when any public servant who is not
1;
removable from his office save by or with the sanction
of a State Government or the Central Government, is
accused of any offence alleged to have been committed
by him while acting er purporting to ~ct in the discharge
320
SUPREME COURT REPORTS
[1971] 1 S.C.R.
Gf his official duty, no Court shall take cognizance o~
such offence except with the previous sanction-
'
( a) in the case of a person employed in connection
with the affairs of the Union, of the Central
Government; and
( b) in the case of a person employed in connection
with the affairs of a State of the State Government.
Power of Central or State Government as to prosecution.-
(2) The Central Governme•nt or the State Government, as the case may be. may detem1ine the person by
whom, the manner in which, the offence or offences for
which, the prosecution of such Judge, Magistrate or
public servant is to be conducted, and may specify the
Court before which the trial is to be held."
·The object and purpose underlying section 197 Cr. P.C. to afford
protection to public servants against frivolous, vexatious or false
prosecution for offences allege:! 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 State administration demands that public servants should be free to perform their official
duty fearlessly and undeterred by apprehension of their possible
prosecution at the instance of private parties to whom annoyance
·or injury may have been caused by their legitimate acts done in the
discharge c.' their official duty. This section is designed to facilitate effective and unhampered performance of their official duty
by public servants by providing for scrutiny into the allegations of
·commission of offence by them by their superior authorities anti
prior sanction for their prosecution as a condition precedent to
the cognizance of the cases against them by the courts. It is
neither to be too narrowly construed nor too widely.
Too narrow
·and pedantic co1nstruction may render it otiose for it is no part of
an official duty-and never can be-to commit an offence.
Jn
· our view, it is not the "duty" which requires exan1ination 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 o.f it.
One
must also guard against too wide a construction because in our
constitutional set up the idea of legal equality or of universal sub-
. jection of all citi~ens 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.
Broadly speaking,
·with ... s 1no man, whatever his rank or condition is above the law
cand every official from the highest down to the Jowest is under the
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B. P. SRIVASTAV;; v. N. P. MISRA ( Dl1a, F.)l
321'
same responsibility for every act done without Je~al.justification. as.
any other citizen. In construing s. 197. CrP.C.; therefore, a !me:
has to be drawn between the narrow inner circle of strict official
duties and acts outside the scope of official duties. According to
the decision of this Court in Matajor Debey v. H. C. Bhari(') cited'
by Shri Sarjoo Prasad on behalf of thC"llPpeliant there prnst be·
a reasonable connection between the act and the discharge of official duty; the act must bear such reiution to the duty that the·
. accused .could fay a reasonable claim, but not a P,retended or
fanciful claim, that he did it in the course of the pe'rformance of
his duty.
l1n Amrik Singh -v. The State of PEPSU(') this Court
said : ,
•
"It is not every offence committed by a public
·servant that requires sanction for prosecution under
section 197 (I ) of the Code C·~ Criminal Procedure; nor·
even every act done by him while he is actually engagr,d
in the performance of his official duties; but if the act
complained of is directly concerned with his official
duties so that, if questicned, it c.ould he clailued to have
been done by virtue of the office, then sanction wou!d
be necessary; and that would be so, irrespective of whe-
. ther it was, in fact, a proper dischurge of his duties,
because that would really be u mutter of defence on th,e · ,• ,
merits, which would have to be investigated at the trial~
and could not arise at the stage of the grant of sanction,
which must precede the institution of the prosecution·."·
Recently in Baljnath Gupta v. State of M.P.(") t~is Court further·
explained that it is the quality of the act thnt is important and if it
falls within the scope and range of the oflki11! duties of the public ·
·servant concerned the protection contempluted by s. 197 ·of the
Crimim1! Procedure Code will be attracted.
H
The principle embodied i·n this section seems to be well-understood; the difficulty normally lies is in its application to the facts
of a given case.
The. question whether ·a particular act is done
by a public servant in the discharge of his official duty is substantially one of fact Jo be determined on the circumstances of each
case.
In the present case the alleged offence consists of the use
of defamatory arn'd abusive words and of getting the complainant
forcibly turned out of the operation theatre by the Cook.
There
is 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 performance of his c fficial duty that without so
acting he could not have pro~rly ·discharged it.
'-...
(I) (1955) 2 S.C.R. 925.
. . (21 (1955) I S.C.R. 130201. iJ07 ..
(3) (1966) I S.C.R. 2JO.
I
SUPREME COURT REPORTS
[1971] 1 S.C.R.
As suggested by this Court in Prabhakar V .. Sinari v. Shanker
,Anant Ver/ekar(') it would be open to the appeJla,nt to place material on the record during the course of the trial for showing what
A
his duty as Cjvil Surgeon was and also that the impugned acts were
inter-related with his official duty so as to attract the protecti0n
afforded bys. 197, Cr.P.C.
We do not find any material on the
·existing record suggesting that the impugned ac:s were 'do;oo by the
B
appellant in the discharge of his official duty or that they are
directly connected with it.
This appeal accordingly must fail
,11nd is dismissed.
Y.P.
Appeal dismissed.
•
(I) [1969] 2 S.C.R.1013
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