Public Servant Exceeding Powers While Performing Official Duties Would Be Protected U/S 197 CrPC: J&K High Court

Justice Sanjay Dhar, while quashing an order directing the registration of an FIR against two senior government officers, emphasized,

“Even if a public servant has exceeded his powers while discharging his official duties, Section 197 of CrPC would come into play.”

Expounding on the subject by borrowing an example from the instant case Justice Dhar explained,

“Thus, in a case where Deputy Superintendent of Police while escorting a prisoner to the Court, beats him up, while the prisoner tries to escape from the custody and in the process, uses excessive force, the Deputy Superintendent of Police would be entitled to protective umbrella of Section 197 of CrPC because preventing a prisoner from escaping the custody is connected with his official duties and in the process, if such police officer has exceeded his powers, he would be acting in purported exercise of his official duty”.

However, the court in the same breath clarified,

“.. if we take an another instance of a police orfficer thrashing a passerby without any rhyme or reason, in such a case, his act would neither be in the discharge of official duties, nor in the purported discharge of official duties. Thus, the police officer would not be entitled to the protective umbrella of Section 197 of CrPC in such a case”

Background Of The Case:

The case arose from an anti-encroachment drive conducted by the Jammu Development Authority (JDA) in 2018, at Channi Rama, Jammu. The private respondents claimed ownership of a land parcel, alleging that the JDA officials demolished their buildings and destroyed movable property.

After the SHO, Police Station Trikuta Nagar, refused to register an FIR, the respondents approached the Chief Judicial Magistrate (CJM), Jammu, under Section 156(3) CrPC. The CJM directed the SHO to register an FIR against the petitioners. However, this order was challenged and quashed by the Principal Sessions Judge, Jammu.

The High Court subsequently held that the CJM's order was interlocutory in nature and could not be revised. This led the petitioners to approach the High Court under Section 482 CrPC to challenge the legality of the CJM's order.

The petitioners, senior government officials, argued that their actions were part of an anti-encroachment drive conducted in compliance with court orders issued in multiple Public Interest Litigations (PILs). They asserted that their actions were performed in the discharge of official duties and were therefore protected under Section 197 CrPC and Section 46 of the Jammu and Kashmir Development Act.

The petitioners also pointed out procedural flaws in the CJM's order, particularly its failure to recognize the requirement for prior government sanction.

Per contra, the respondents contended that the petitioners unlawfully demolished structures on private land, making their actions unauthorized and unconnected to official duties. They further argued that Section 197 CrPC applies only at the stage of cognizance, not during FIR registration.

Court's Observations:

Providing a thorough analysis of the scope of Section 197 CrPC and addressing the rival contentio tnshe court held that the protection under Section 197 CrPC extends not only to acts performed by public servants in the discharge of their official duties but also to acts done in the purported discharge of such duties. The court emphasized that even where a public servant exceeds their powers, the protective umbrella of Section 197 CrPC applies, provided a reasonable nexus exists between the act and their official duty.

Examining the facts, the court found that the petitioners' actions were connected to their official duties and observed that the anti-encroachment drive was carried out pursuant to court orders in PILs. Even if the petitioners exceeded their authority or demolished structures on private land, the court held that these acts were done in the purported discharge of their official duties, qualifying for protection under Section 197 CrPC.

The court elaborated on the principle of nexus, stating that the protective umbrella of Section 197 CrPC applies when there is a reasonable connection between the public servant's duties and the alleged act. It noted that acts in the purported discharge of official duties, even if excessive, fall within the scope of the provision.

The court relied on the Supreme Court's judgment in Anil Kumar v. M.K. Aiyappa, which held that no investigation under Section 156(3) CrPC can be ordered against a public servant without prior sanction. Justice Dhar noted that the judgment remains binding until overturned by a larger bench, dismissing arguments based on Manju Surana v. Sunil Arora.

Ruling that the CJM's order directing registration of an FIR was legally unsustainable, as it was passed without prior sanction from the government the court stated that the CJM had acknowledged the need for sanction but proceeded to issue the direction in contravention of legal principles.

“So, it is not a case where the learned CJM was oblivious of the fact that the petitioners are public servants who cannot be prosecuted without previous sanction of the Government, but it is a case where despite knowing this fact, the learned CJM has ignored the same and passed the impugned order. The same is, therefore, not sustainable in law”, Justice Dhar remarked.

In alignment with these observations the court quashed the CJM's order directing registration of an FIR against the petitioners. However, it allowed the respondents to seek prior sanction from the competent authority and approach the CJM thereafter.

Case Title: Pawan Singh Rathore Vs Devinder Singh Katoch

Citation: 2024 LiveLaw (JKL) 334

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