# PUKHRAJ v. STATE OF RAJASTHAN & ANR

- **Citation:** [1974] 1 S.C.R. 559
- **Court:** Supreme Court of India
- **Decided:** 1973-08-29
- **Case number:** Criminal Appeal No. 101 of 1972
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pukhraj-v-state-of-rajasthan-anr-6004
- **Pages:** 4

## Headnote

A
B
c
D
E
F
0
H
559
PUKHRAJ
v.
STATE OF RAJASTHAN & ANR.
August 29, 1973
lR R. KHA~NA AND A. _ALAGIRISWAMI, JJ.J
Sectio11 197 Cr. P.C;-Sa11etlon-A criminal complaint fil6d l1y o &11bordlnate
cnip/oyee ogait1.rt his superior alleging 11Se of abusive language and giving kicb.
The appellant filed a complaint &pilnt respondent No. 2, his superior officer,
in the Postal Department, under sections 323 and 502 of I.P.C. alleging that
when 1he appellant went with a certain complaint to the second responden~ the
second resoondent kicked him in his abdomen and abused him by eaying "Sale,
gunde, badmaoh ... " The second respondent filed an application under oection
197 of the Cr.P.C. praying that the Court should not take cognizance of the
offence without the sanction of the Government, as required by Section 197
of the Cr.P.C. It was further contended that the alleged acts, if at all done by
the accused were done while discharging his duties as a public 5ervant. The trial
~tagistra.te dismissed the application. The High Court allowed
tho
revision
;1 pplkation of second respor:.::lent.
Allowing the appeal,
HELD : ( i) At. this stage, the Court ls concerned only with one point, viz.,
whether on facts alleged in the complaint, it could ·be said that the acts were
done in purported exercise of his duties.
Applying the test laid down in the
decisions of the Federal Court and Supreme Court to acts complained of, viz;.,
kitting the complainant and abusing, cannot be . said to have been done in the
cpnrse of the performance of the duty by the second respondent.
(561H]
(2) The facts subsequently coming to light during the course of the judicial
enquiry or during the course of the prosecution evidence at the trial may esta~
blisb the necessity for sanction. It may be possible for the second 1espondent
to place the material on record during the course of the trial for showing what
his duty was and also that ·the acts complained of were so inter·related with his
ofticial duty, so as to attract the protection afforded by Sec. 197 of the Cr. P.C.
Whether sanction is necessary or not may have to depend from stage to stage.
[56201
Horirarn Singh, [1939] F.C.R. 159,
Bhagwau Prasad Sriv4flava v. N.' P.
Mishra, [1971] 1 S.C.R. 317, Mataiog Dobey v. H. C. Bharl [19551 2 S.C.R. 925
and Sarioo Prasad v. The King Emperor, (1945] F.C.R. 227, relied npon.
CR1MiNAL APPELLATE JURISDICTION : Criminal Appeal No. 101 of
1972.
Appeal by special leave from the Judgment and order dated the
25th February, 1972 of the Rajasthan High Court at Jodhour in S. B.
Criminal Revision No. 52 of 1972.
B. D. Sharma, S. K .. Bagga, S. Bagga, Rani Arora and Yash Bagga,
for the a.PPellant.
S. M. Jain, for respondent No. 1.
S. N. Prasad, for respondent No. 2.

## Text

A
B
c
D
E
F
0
H
559
PUKHRAJ
v.
STATE OF RAJASTHAN & ANR.
August 29, 1973
lR R. KHA~NA AND A. _ALAGIRISWAMI, JJ.J
Sectio11 197 Cr. P.C;-Sa11etlon-A criminal complaint fil6d l1y o &11bordlnate
cnip/oyee ogait1.rt his superior alleging 11Se of abusive language and giving kicb.
The appellant filed a complaint &pilnt respondent No. 2, his superior officer,
in the Postal Department, under sections 323 and 502 of I.P.C. alleging that
when 1he appellant went with a certain complaint to the second responden~ the
second resoondent kicked him in his abdomen and abused him by eaying "Sale,
gunde, badmaoh ... " The second respondent filed an application under oection
197 of the Cr.P.C. praying that the Court should not take cognizance of the
offence without the sanction of the Government, as required by Section 197
of the Cr.P.C. It was further contended that the alleged acts, if at all done by
the accused were done while discharging his duties as a public 5ervant. The trial
~tagistra.te dismissed the application. The High Court allowed
tho
revision
;1 pplkation of second respor:.::lent.
Allowing the appeal,
HELD : ( i) At. this stage, the Court ls concerned only with one point, viz.,
whether on facts alleged in the complaint, it could ·be said that the acts were
done in purported exercise of his duties.
Applying the test laid down in the
decisions of the Federal Court and Supreme Court to acts complained of, viz;.,
kitting the complainant and abusing, cannot be . said to have been done in the
cpnrse of the performance of the duty by the second respondent.
(561H]
(2) The facts subsequently coming to light during the course of the judicial
enquiry or during the course of the prosecution evidence at the trial may esta~
blisb the necessity for sanction. It may be possible for the second 1espondent
to place the material on record during the course of the trial for showing what
his duty was and also that ·the acts complained of were so inter·related with his
ofticial duty, so as to attract the protection afforded by Sec. 197 of the Cr. P.C.
Whether sanction is necessary or not may have to depend from stage to stage.
[56201
Horirarn Singh, [1939] F.C.R. 159,
Bhagwau Prasad Sriv4flava v. N.' P.
Mishra, [1971] 1 S.C.R. 317, Mataiog Dobey v. H. C. Bharl [19551 2 S.C.R. 925
and Sarioo Prasad v. The King Emperor, (1945] F.C.R. 227, relied npon.
CR1MiNAL APPELLATE JURISDICTION : Criminal Appeal No. 101 of
1972.
Appeal by special leave from the Judgment and order dated the
25th February, 1972 of the Rajasthan High Court at Jodhour in S. B.
Criminal Revision No. 52 of 1972.
B. D. Sharma, S. K .. Bagga, S. Bagga, Rani Arora and Yash Bagga,
for the a.PPellant.
S. M. Jain, for respondent No. 1.
S. N. Prasad, for respondent No. 2.
The Judgment of the Court was delivered by
ALAGill.ISWAMI, J.
The appellant filed a complaint against the
2nd respondent before the Addi. Munsiff Magistrate of J.odhpur City
under ss. 3Z3 and 504 l.P.C. The 2nd respondent was the Post Master
General. Rajasthan and the appellant a clerk in the Head Post Office
560
SUPREME COURT REPORTS
[ 1974 J 1 s.c.R.
at Jodhpur. He was also the Divisional Secretary 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-HJ..1971. He arrived at the Head Post Office Jodhpur, in
connection with the inspection at 5.45 P.M. The com!>'
lainant reached to submit his representation to the accused
for cancelling his transfer, when the accnsed 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 · yOll · are OOJ!IPJaining ·and ·
on the other hand you are requesting for the.,.Cimcellation of
transfer.
·
"6. That the complainant became v&y much enraged
over this incident but he suppressed .his anger because. of
being responsible citizen and to avoid any further disturbance.
"1·. That after kicking and abusing the complainant the
accused ran away in his jeep."
The 2nd respondent filed . an application under s. 197 of
the
Code of Criminal Procedure praying that the court should not take
oognizance of the offence without the sanction of the Government as
the acts alleged, if at .all done by the accused, were done while discharging his duties as a. public servant. The Munsiff Magistrate dis·
misScd the application but Justice Mehta of the Rajasthan High Court
allowed the revision petition filed by the 2nd respondent and s.:t aside
the order of the lower court holding that the 2nd respondent could
oot be prosecuted unless prior sanction of the Central Government
had been obtained. This appeal is against that ord&.
The law regarding the circllllllltances under which sanction \ll]der
s.197 of the Code of Criminal Procedure is necessary is by now well
settled as result of the decisions from Hori Ram Singh's(1 ) ·case to the
latest decision of this Court in Bhagwan Prasad Srivastava v. N. P.
Miara. (2) While the law is well settled the difficulty really arisee in
applying the law to the facts of any particular case. The intention
behind the section is to prevent public servants from being un!ltt#-
sarily harassed. The section is not restricted only to cases of anyd!log
purported to be done in good faith, for a person who ostensibly acts
In execution of his duty still.P~ so to act. although .he may have
a dishonest. intention. Nor is It coDfined to cases where. the act, which
constitutes the offenee, is the officiiil duty of the official concemcd.
Such an int&pretation would involve a contradiction. in terms, because
an offence can. never lie 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
(1) [1939] F. C. R.159.
(2) [1971] (I) S. C. R. 317.
A
B
c
D
F
G
H
PUKHI\AJ v. RAJASTiiAN (A/agiriswami, J.)
561
A.
public servant and not by anyone else, but that it is committed by a
public servant in an act done or purportiμg to be done in the executfon of his duty. The section cannot be· confined 1IO OQly such acts
as are done by a public servant directly in pursuance of his pllblic
office, though in excess of the duty or under a mistaken belief as
to the existence of such duty.
Nor need the act constituting
the
B
offence be so ir.separably connected with the official duty as to form
part and parcel of the same transaction. What is necessary is that
the offence must be in respect of an act done or purported to be done
in the discharge of an official duty. It does not apply to acts done
purely in a private capacity by a public servant.
Expressions such
as the "capacity in which the act is performed", "cloak of office" and
"professed exercise of office" may not always be appropriate to des·
C
cribe or delimit the scope of the section.
An act merely because it
was done negligently does not. cease to be one done or purporting to
be done in execution of a duty. In Hori Ram Singh's case (supra)
Swaim an, J. observed :
D
E
F
G
H
"The section cannot be confined to only such acts as are
done by a j>ublic servant
directly in
pursuance of his
public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.
Nor is it
necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with
the official duty as to form part and parcel of the samt> trans•
action."
In th;> .same case V aradachariar, J. observed "there must be something in the nature of the act complained of that attaches it to the
official character of the person doing it." In affirtning this view,· the
Judicial Committee -of the Privy Council observed· in Gill'&(I) ·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(•) the Court was of the mw 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 the
court summed up the results as follows :
"There must be a reasonable connection between the
act and the diSGl!arge of official duty; the act must bear such
relation to the duty that the accused could lay a reasonable
but not a pretended or fanciful claim, that he did it in th~
course of the performance of his duty."
.
Applying this test it is difficult to say that the acts complained of
1.e .. of kicking the complainant and of abusing him. could be said to
(1) 1948 L .R. 75 I. A. 41.
(2) [1955] (2) S; C. R. 925,
562
SuPREME COUllT REPORTS
[ 1974 J 1 s.c.R.
have been dbne in the course of performance of the· 2nd responden\'s
duty, At this stage all that we are concerned with is whether on the
f&c1a alleged. in the complaint it could be said that what the 2nd respondellt is alleged to have done could be said to be in purported
exercise of his duty. Very clearly it is not. We must make it clear,
however, that we express no opinion as to the truth or falsity of the
allegations.
We must also make it clear that this is not the end of the matter.
As was pointed out in Sarjoo Prasad v. The King Emperor( 1) referring to .. the observations of Sulaiman, J. in Hori Ram Singh's caae
(t111pra) the mere fact that the accused proposes to raise a defence
of th~ act having purported to be done in execution of duty would not
in imelf be sufficient to justify the case being thrown out for want of
sanction.
At this stage we have only to see whether the acts alleged
against the 2nd respondent can be said to be in purported execution
of his du!r.
But facts subsequently coming to light during the course
of the jlldicial inquiry or during the cowse of the prosecution evidence
at the trial may establish the tleCC8Bity for sanction.
Whether sanction
is neoessary or not may have to depend from stage to stage.
The
necessity may reveal itself in the course of the progress of the case (see
observations in Matajog Dobey v .. H. C: Bhari (supra). In BhagwaR
Prasad Srivastava v. N. P. Misra (supra) also it was pointed out that
it would be open to the appellant (the 2nd respondent in this caae)
to place the material on record during the course of the trial for show·
iug what his duty was and also that the acts complained of were SQ
inter-related with his official duty so as to. attract.the protection affom·
ed by s.197, Cr.P.C.
This appeal.'is, therefore, allowed and the order of the learned Judge
of tbr Hjp C\lllrt.is .set aside.
S.B.W.
Appeal allowed.
(1) [19451 P.C.R. 227.
A
B
c
D
E