Reasonable Connection Between Concerned Act & Performance Of Official Duty Necessary For Public Servant To Avail Benefit Of S.197 CrPC: Gujarat HC

The Applicants primarily contested that the sanction for prosecution had not been granted by the State as under Section 132 of CrPC. Reliance was placed on Section 129 and 130 to contest that the State can use civil force or armed force for dispersal of assembly and maintenance of law and order and under Section 132, there cannot be any prosecution against any person for any act committed under Sections 129, 130 and 131 of CrPC. The terms 'no prosecution' and 'any act' were emphasised by the Applicant in pursuance of the contention.

The Applicants also submitted that the sanction for prosecution as far as under Section 132 of CrPC is concerned operates as a bar at the stage of institution of the proceedings itself. It was even suggested that the complaint was filed with a malafide intention and ought to be quashed as per the Apex Court's judgement.

The Public Prosecutor submitted that the complaint against the Applicants-Accused were serious in nature and required to be tested at the stage of trial to find out whether the offence committed by the public servant was in discharge of public duty or not.

Findings

The Court's foremost observation was the variation in the narratives of the parties and the dissimilar facts which would have a bearing on the outcome of the case itself. The Court opined that if the version of the Complainants were to be accepted, it would disentitle the Applicants from the protection of Section 197.

Significantly, to address the contentions of the Applicant regarding Sections 132 and 197, the Bench relied on Nagaraj Vs. State of Mysore, AIR 1964 SC 269 where the Apex Court had provided four parameters to gain the benefit of Section 132:

"To get such a benefit and to put off a clear decision on the question whether his conduct amounts to an offence or not, the appellant has to show (i) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace ; (ii) that such an assembly was commanded to disperse ; (iii) that either the assembly did not disperse on such command or, if no command had been given; its conduct had shown a determination not to disperse ; and (iv) that in the circumstances he had used force against the members of such assembly."

Further, regarding Section 197, the Court relied on Indra Devi vs State of Rajasthan and Anr (2021) 8 SCC 768:

"Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance."

The High Court concluded that for Section 197, the Petitioners will have to establish that the act/offence concerned was in discharge of public duty. The High Court also relied on State of Haryana and others Vs. Bhajan Lal and others to reiterate that complaints cannot be quashed unless in an exceptional situation where non-interference would result in miscarriage of justice. Considering these precedents, the High Court refused to quash the complaint filed by the Complainants.

The High Court also stayed the operation of this judgement for a period of 12 weeks, so as to allow the applicant to approach the higher forum, challenging the same.

Citation: 2022 LiveLaw (Guj) 194

Case Title: PRAVINSINH JHALA v/s STATE OF GUJARAT & 3 other(s)

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