Dhannjay Ram Sharma vs M.S. Uppadaya And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 11 March, 1960

Coram: K.C. Das Gupta, J.C. Shah

The judgment relates to the matter titled Dhannjay Ram Sharma versus M.S. Uppadaya and others, which was decided on 11 March 1960 by the Supreme Court of India. The opinion was written by Justice K.C. Das Gupta, who sat with Justice J.C. Shah. The appeal before this Court concerned the correct operation of Section 197 of the Code of Criminal Procedure. The appellant, who had previously been employed as a ticket collector with the Northern Railway, lodged a criminal complaint on 22 October 1956 before the Court of First Class Magistrate in Delhi. In that complaint he alleged that on the evening of 30 September 1956, at approximately 8 minutes 30 seconds p.m., three respondents who were also employees of the Northern Railway, together with certain police officials, forcibly entered his residence, detained him in a room, and removed cash and jewellery. Specifically, the complainant claimed that the accused took Rs 600 in cash in the form of silver coins and gold jewellery valued at Rs 1,600, representing sixteen tolas, from a trunk that was kept in the sitting‑room of his house. He further alleged that the seized items were not entered in any recovery memo and that the accused misappropriated them. Additional items taken, according to the complaint, included several shirts and other garments from another trunk belonging to the complainant, a diary titled “Gita Diary” containing Rs 36 in currency notes that was taken by the respondent Uppadaya, and that the cash and jewellery were placed in a bag by the accused and handed over to Uppadaya. The complaint also asserted that Uppadaya searched the shop of the complainant’s father, appropriated Rs 18 from his pocket, and removed four packets of Capstan cigarettes together with a match‑box. The petitioner’s petition asserted that the accused had committed offences under Section 461 read with Sections 379, 403, 342, 166 and 167 of the Indian Penal Code. Accordingly, the magistrate issued process against the three accused for offences under Sections 403, 379, 342 and 166 of the Indian Penal Code. Three witnesses were examined before the magistrate on behalf of the accused to establish their contention that sanction under Section 197 of the Code of Criminal Procedure was required. After considering the testimony of those witnesses and a copy of a memorandum issued by the Government of India, Ministry of Home Affairs, the magistrate concluded that Section 197 applied and, because no sanction from the Central Government had been obtained, dismissed the complaint. The appellant challenged that dismissal before the Additional Sessions Judge, Delhi, who upheld the magistrate’s order and declined to interfere. The matter was then taken to the High Court of Punjab. The High Court likewise held that for at least some of the offences the sanction under Section 197 was requisite; however, it observed that the remaining offences were so intermingled with those requiring sanction that it would not disturb the dismissal of the complaint. Consequently, the High Court also refused to set aside the magistrate’s dismissal, leaving the appellant to seek special leave to appeal before this Court.

The appellant sought and was granted special leave to appeal from this Court, and consequently the present appeal has reached this stage for hearing and final determination. In order for an accused person to invoke the protection afforded by Section 197 of the Code of Criminal Procedure, the accused must first demonstrate two essential conditions. The first condition requires the accused to be a public servant whose position can be removed only by, or with the sanction of, a State Government or the Central Government. The second condition requires that the acts alleged to have been committed by the accused were done while he was acting, or purporting to act, in the discharge of his official duties. The lower courts did not dispute the first condition; they accepted that the accused persons were indeed public servants whose removal required governmental sanction. Accordingly, the present proceeding must address the remaining and crucial question: whether the accused can reasonably contend that the acts for which they are charged were performed in the course of, or while purporting to perform, their public duties.

The interpretation of Section 197 has been examined repeatedly by the Privy Council and by this Court. The Privy Council, in H. H. B. Gill v. The King, held that a public servant may be said to act, or to purport to act, in the discharge of his official duty only when his conduct falls within the scope of his official responsibilities. The Council further explained that the appropriate test is whether, if the public servant were challenged, he could reasonably claim that the act was performed in virtue of his office. This Court later adopted a somewhat broader approach in Amrik Singh v. State of Pepsu, stating that the relevant test is whether the acts with which the appellant is charged bear directly on the duties he is required to perform as a public servant. Applying even this broader test to the present facts, it is clear that the accused persons, although public servants assigned to duties on the Railway, did not have primary responsibilities related to witnessing searches or assisting police officers in search operations. It is argued that a Home Office memorandum imposed an additional duty upon them to act as witnesses at the request of police officers. However, the memorandum merely provides for the possibility that a request may be made to various ministries; it does not automatically convert such a request into a core component of the employees’ official duties. Consequently, even under the expansive interpretation of Section 197, the acts alleged against the accused do not fall within the protection of that provision.

The memorandum issued by the Home Office contemplated that a request might be made by the Special Police Establishment to any Government ministry, including, as assumed, the Ministry of Transport, to deputise one or more of its officers to witness a trap case, and that the concerned ministry might extend its co‑operation in such a matter. Accordingly, if the Special Police Establishment had formally addressed a request to the ministry responsible for administering the Northern Railway, and if that ministry had then directed its competent officers to attend and witness a trap case, an argument could be advanced that the officers, in attending such a case, would be acting within the scope of their official duties. In the present proceedings, however, there was no evidence of any such request having been made by the Special Police Establishment to any authority within the Ministry of Transport that administers the railway. What the evidence showed was that the Deputy Superintendent of the Police Establishment, Shri Roshan Lal Khanna, approached the accused directly, without involving or referring to the senior officers of the accused parties. Consequently, when the accused proceeded to witness the search, they did so not under the authority of the Home Office memorandum and therefore could not be said to be performing, or even purporting to perform, any official duty. It is also significant that the memorandum expressly deals only with the deputation of officers “to witness a trap case”. The search and seizure that took place in the complainant’s house was not a trap case; thus the presence of the accused in the complainant’s residence on 30 September 1956 cannot be linked to the performance of any official duty. The accused were neither carrying out nor pretending to carry out any official function when they entered the house or while they were present there.

Even assuming, for the sake of argument, that witnessing the search could be characterized as part of the accused’s official duties, the Court found no reasonable basis to assert that the main offences charged— namely theft or misappropriation of the complainant’s property and wrongful confinement— bore any direct connection to the act of witnessing the search. Their attendance as witnesses merely created an opportunity for them to commit the alleged offences; however, the mere provision of an opportunity by virtue of an official duty does not transform the criminal acts into acts performed within the scope of that duty. Accordingly, the Court concluded that the lower courts were in error when they held that sanction under Section 197 of the Code of Criminal Procedure was required in this case. The Court therefore allowed the appeal.

The Court allowed the appeal, rescinded the dismissal order previously issued by the learned Magistrate, and directed that the magistrate proceed to dispose of the matter in a manner consistent with the applicable law, ensuring that the case be concluded according to the legal requirements governing such proceedings.