Rajasthan High Court – Jodhpur
Mithu Singh vs State Of Rajasthan (2025:Rj-Jd:19638) on 23 April, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:19638]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Revision Petition No. 95/2025
Mithu Singh S/o Karan Singh Chouhan, Aged About
53 Years, R/o Chouhano Ka Kantaria, Ghosunda,
P.s. Chanderiya, Dist. Chittorgarh (Presently
Working As Sub Inspector In The Rajasthan Police)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Ratni Bai W/o Chunni Lal Berwa, Aged About
37 Years, R/o Hadmala Kachchi Basti,
Bhoikheda, Dist. Chittorgarh
----Respondents
For Petitioner(s) : Mr. Rajak Khan
For : Mr. Kuldeep Singh Kumpawat,
Respondent(s) PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
23/04/2025
REPORTABLE
Instant revision petition has been filed by the
petitioner against the order dated 05.12.2024,
passed by the learned Special Judge, SC/ST
(Prevention of Atrocities Cases), Chittorgarh in
Sessions Case No.21/2020 whereby the learned
Judge dismissed the application under Section 197(2)
Cr.P.C. filed by the petitioner.
Counsel for the petitioner asserts that at the
time of the incident in question, the petitioner was
not present at the scene and has been implicated
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[2025:RJ-JD:19638] (2 of 18) [CRLR-95/2025]
solely based on call records linking him to the
accused, Shankar Singh. At the pertinent time, the
petitioner was serving as a Police Sub-Inspector in
Ajmer District and was attending court in Dungla,
District Chittorgarh, to provide evidence in a separate
matter, while the incident occurred in Chittorgarh.
Furthermore, counsel argues that pursuant to the
provisions of Section 197 of the Code of Criminal
Procedure (Cr.P.C.), no prosecution can be initiated
against the petitioner for actions taken in the course
of performing his official duties without prior sanction
from the competent authority. In this instance, it is
contended that no such sanction was obtained from
the appropriate authority as mandated by law.
Consequently, the continuation of the criminal
proceedings against the petitioner, absent the
requisite sanction, would constitute a violation of the
provisions of Section 197 of the Cr.P.C. Counsel
further contends that the learned trial court erred in
not considering these critical aspects of the matter
and subsequently rejected the application under
Section 197(2) of the Cr.P.C. The impugned order,
therefore, is fraught with serious legal deficiencies
and merits quashing and setting aside.
Learned Public Prosecutor has vehemently
opposed the prayer made by the counsel for the
petitioner and supported the impugned order passed
by the trial court.
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[2025:RJ-JD:19638] (3 of 18) [CRLR-95/2025]
Heard learned counsel for the parties and
perused the impugned order as well as gone through
the material available on record.
In order to appreciate the controversy, it would
be apt to refer to Section 197 of Cr.P.C which reads as
under:
197. Prosecution of Judges and public
servants– (1)When any person who is or
was a Judge or Magistrate or a public servant
not removable from his officer save by or with
the sanction of the Government, is accused of
any offence alleged to have been committed
by him while acting or purporting to act in the
discharge of his official duty, no Court shall
take cognizance of such offence except with
the previous sanction (save as otherwise
provided in the Lokpal and Lokayukts Act,
2013—
(a) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence
employed, in connection with the affairs
of the Union, of the Central Government;
(b) in the case of a person who is employed
or, as the case may be, was at the time of
commission of the alleged offence
employed, in connection with the affairs
of a State of the State Government :
Provided that where the alleged offence
was committed by a person referred to in
clause (b) during the period while a
Proclamation issued under clause (1) of(Downloaded on 24/04/2025 at 10:00:45 PM)
[2025:RJ-JD:19638] (4 of 18) [CRLR-95/2025]Article 356 of the Constitution was in
force in a State, clause (b) will apply as if
for the expression “State Government”
occurring therein, the expression “Central
Government” were substituted.
(2) No Court shall take cognizance of any
offence alleged to have been committed
by any member of the Armed Forces of
the Union while acting or purporting to act
in the discharge of his official duty, except
with the previous sanction of the Central
Government.
(3) The State Government may, by
notification, direct that the provisions of
sub-section (2) shall apply to such class
or category of the members(of the Forces
charged with the maintenance of public
order as may be specified therein,
wherever they may be serving, and
thereupon the provisions of that sub-
section will apply as if for the expression
“Central Government” occurring therein
the expression “State Government” were
substituted.
(3-A) Notwithstanding anything contained in
sub-section (3), no court shall take
cognizance of any offence, alleged to have
been committed by any member of the
Forces charged with the maintenance of
public order in a State while acting or
purporting to act in the discharge of his
official duty during the period while a
Proclamation issued under clause (1) of
Article 356 of the Constitution was in
force therein, except with the previous
sanction of the Central Government.
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[2025:RJ-JD:19638] (5 of 18) [CRLR-95/2025]
(3-B) Notwithstanding anything to the
contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State
Government or any cognizance taken by a
Court upon such sanction, during the
period commencing on the 20th day of
August, 1991 and ending with the date
immediately preceding the date on which
the Code of Criminal Procedure
(Amendment) Act, 1991, receives the
assent of the President, with respect to an
offence alleged to have been committed
during the period while a Proclamation
issued under clause (1) of Article 356 of
the Constitution was in force in the State,
shall be invalid and it shall be competent
for the Central Government in such
matter to accord sanction and for the
court to take cognizance thereon.
(4) The Central Government or the State
Government, as the case may be, may
determine the person by whom, the
manner in which, and 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 protection of this provision is available only
if three conditions are fulfilled; the accused is (a) a
public servant, (b) has allegedly committed an
offence, (c) while acting or purporting or in
connection to act in the discharge of his official duty.
In case, these three conditions are fulfilled, then the
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[2025:RJ-JD:19638] (6 of 18) [CRLR-95/2025]
Court is prevented from taking cognizance of the
offence unless the appropriate government grants a
sanction against the alleged accused. The protection
given under this Section is to protect responsible
public servants against the institution of possibly
vexatious criminal proceedings for offences alleged to
have been committed by them while they are acting
or purporting to act as public servants. The policy of
the legislature is to afford adequate protection to
public servants to ensure that they are not
prosecuted for anything done by them in the
discharge of their official duties without reasonable
cause, and if sanction is granted, to confer on the
Government, if they choose to exercise it, complete
control of the prosecution. This protection has certain
limits and is available only when the alleged act done
by the public servant is reasonably connected with
the discharge of his official duty and is not merely a
cloak for doing the objectionable act if in doing his
official duty, he acted in excess of his duty, but there
is a reasonable connection between the act and the
performance of the official duty, the excess will not be
a sufficient ground to deprive the public servant, from
the protection. The question is not as to the nature
of the offence such as whether the alleged offence
contained an element necessarily dependent upon the
offender being a public servant, but whether it was
committed by a public servant acting or purporting to
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[2025:RJ-JD:19638] (7 of 18) [CRLR-95/2025]
act as such in the discharge of his official capacity.
Before Section 197 Cr.P.C. can be invoked, it must be
shown that the official concerned was accused of an
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his
official duties. 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. The act
must fall within the scope and range of the official
duties of the public servant concerned. It is the
quality of the act which is important and the
protection of this Section is available if the act falls
within the scope and range of his official duty. There
cannot be any universal rule to determine whether
there is a reasonable connection between the act
done and the official duty, nor is it possible to lay
down any such rule. One safe and sure test in this
regard would be to consider if the omission or neglect
on the part of the public servant to commit the act
complained of could have made him answerable for a
charge of dereliction of his official duty, if the answer
to his question is in the affirmative, it may be said
that such act was committed by the public servant
while acting in the discharge of his official duty and
there was every connection with the act complained
of and the official duty of the public servant. This
aspect makes it clear that the concept of Section 197
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[2025:RJ-JD:19638] (8 of 18) [CRLR-95/2025]
does not get immediately attracted on institution of
the complaint case.
At this juncture, we may refer the case of P.
Arulswami v. State of Madras reported in AIR
1967 SC 776, wherein the Hon’ble Apex Court held
as under:
“…It is not therefore every offence
committed by a public servant that requires
sanction for prosecution
under Section 197(1) of the Criminal
Procedure Code; nor even every act done by
him while he is actually engaged in the
performance of his official duties; but if the
act complained of is directly concerned with
his official duties so that, if questioned, it
could be claimed to have been done by
virtue of the office, then sanction would be
necessary. It is quality of the act that is
important and if it falls within the scope and
range of his official duties the protection
contemplated by Section 197 of the Criminal
Procedure Code will be attracted. An offence
may be entirely unconnected with the official
duty as such or it may be committed within
the scope of the official duty. Where it is
unconnected with the official duty there can
be no protection. It is only when it is either
within the scope of the official duty or in
excess of it that the protection is claimable.”
In the case of S.B. Saha v. M.S. Kochar
Reported in (1979) 4 SCC 177 the Hon’ble
Supreme Court has held that:
“The words ‘any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official duty’ employed in Section 197(1) of
the Code, are capable of a narrow as well as
a wide interpretation. If these words are
construed too narrowly, the section will be
rendered altogether sterile, for, ‘it is no part
of an official duty to commit an offence, and
never can be’. In the wider sense, these(Downloaded on 24/04/2025 at 10:00:45 PM)
[2025:RJ-JD:19638] (9 of 18) [CRLR-95/2025]words will take under their umbrella every
act constituting an offence, committed in the
course of the same transaction in which the
official duty is performed or purports to be
performed. The right approach to the import
of these words lies between these two
extremes. While on the one hand, it is not
every offence committed by a public servant
while engaged in the performance of his
official duty, which is entitled to the
protection of Section 197(1), an act
constituting an offence, directly and
reasonably connected with his official duty
will require sanction for prosecution under
the said provision.”
The complainant, Ratni Bai, has made specific
allegations in her complaint, asserting that while she
was in judicial custody in a false case, the petitioner,
in collaboration with co-accused Shankar Singh and
several other individuals, unlawfully entered her
home and forcibly took possession of the premises. It
is further alleged that they assaulted her minor child
and employed derogatory and caste-based language.
Upon her release on bail and return to her residence,
the complainant claims that the accused assaulted
her, accompanied by further caste-based abuse. The
complainant asserts that she incurred a loss of ₹5
lakhs due to these incidents. In response to her
complaint, police registered a case and initiated an
investigation, during which additional witnesses
corroborated her version. Following the investigation,
the police filed a charge sheet against the accused
individuals, including the petitioner, and the matter
was subsequently committed to the court of the
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[2025:RJ-JD:19638] (10 of 18) [CRLR-95/2025]
Special Judge, SC/ST (Prevention of Atrocities Act),
Chittorgarh, where charges were framed. The
petitioner later filed an application under Section
197(2) of the Code of Criminal Procedure (Cr.P.C.),
which was dismissed by the trial court by the
impugned order.
A Bench of three Hon’ble Judges of the Hon’ble
Apex Court in the case of P.K. Pradhan v. State of
Sikkim reported in (2001) 6 SCC 704, in
paragraphs 5 and 15 held thus:
“5. The legislative mandate engrafted in sub-
section (1) of Section 197 debarring a court
from taking cognizance of an offence except
with the previous sanction of the
Government concerned in a case where the
acts complained of are alleged to have been
committed by a public servant in discharge
of his official duty or purporting to be in the
discharge of his official duty and such public
servant is not removable from office save by
or with the sanction of the Government,
touches the jurisdiction of the court itself. It
is a prohibition imposed by the statute from
taking cognizance. Different tests have been
laid down in decided cases to ascertain the
scope and meaning of the relevant words
occurring in Section 197 of the Code:
“any offence alleged to have been committed
by him while acting or purporting to act in
the discharge of his official duty. The offence
alleged to have been committed must have
something to do, or must be related in some
manner, with the discharge of official duty.
No question of sanction can arise under
Section 197, unless the act complained of is
an offence; the only point for determination
is whether it was committed in the discharge
of official duty. There must be a reasonable
connection between the act and the official
duty. It does not matter even if the act
exceeds what is strictly necessary for the
discharge of the duty, as this question will
arise only at a later stage when the trial(Downloaded on 24/04/2025 at 10:00:45 PM)
[2025:RJ-JD:19638] (11 of 18) [CRLR-95/2025]proceeds on the merits. What a court has to
find out is whether the act and the official
duty are so interrelated that one can
postulate reasonably that it was done by the
accused in the performance of official duty,
though, possibly in excess of the needs and
requirements of the situation.”
“15. Thus, from a conspectus of the
aforesaid decisions, it will be clear that for
claiming protection under Section 197 of the
Code, it has to be shown by the accused that
there is reasonable connection between the
act complained of and the discharge of
official duty. An official act can be performed
in the discharge of official duty as well as in
dereliction of it. For invoking protection
under Section 197 of the Code, the acts of
the accused complained of must be such that
the same cannot be separated from the
discharge of official duty, but if there was no
reasonable connection between them and
the performance of those duties, the official
status furnishes only the occasion or
opportunity for the acts, then no sanction
would be required. If the case as put forward
by the prosecution fails or the defence
establishes that the act purported to be done
is in discharge of duty, the proceedings will
have to be dropped. It is well settled that
question of sanction under Section 197 of
the Code can be raised any time after the
cognizance; maybe immediately after
cognizance or framing of charge or even at
the time of conclusion of trial and after
conviction as well. But there may be certain
cases where it may not be possible to decide
the question effectively without giving
opportunity to the defence to establish that
what he did was in discharge of official duty.
In order to come to the conclusion whether
claim of the accused that the act that he did
was in course of the performance of his duty
was a reasonable one and neither pretended
nor fanciful, can be examined during the
course of trial by giving opportunity to the
defence to establish it. In such an
eventuality, the question of sanction should
be left open to be decided in the main
judgment which may be delivered upon
conclusion of the trial.”
(emphasis added)
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[2025:RJ-JD:19638] (12 of 18) [CRLR-95/2025]
In the case of State of H.P. v. M.P. Gupta
reported in (2004) 2 SCC 349, the Hon’ble Supreme
Court had an occasion to discuss the scope and ambit
of Section 197 of the Code. The Apex Court held as
under:
“The protection given under Section 197 is
to protect responsible public servants
against the institution of possibly vexatious
criminal proceedings for offences alleged to
have been committed by them while they
are acting or purporting to act as public
servants. The policy of the legislature is to
afford adequate protection to public servants
to ensure that they are not prosecuted for
anything done by them in the discharge of
their official duties without reasonable cause,
and if sanction is granted, to confer on the
Government, if they choose to exercise it,
complete control of the prosecution.”
The Hon’ble Supreme Court in the case of
Om Prakash & others Vs. State of Jharkhand
reported in (2012) 12 SCC 72, which reads as
under :-
“36………The protection given under Section
197 of the Code has certain limits and is
available only when the alleged act done by
the public servant is reasonably connected
with the discharge of his official duty and is
not merely a cloak for doing the
objectionable act. If in doing his official duty,
he acted in excess of his duty, but there is a
reasonable connection between the act and
the performance of the official duty, the
excess will not be a sufficient ground to
deprive the public servant of the
protection……”
The Hon’ble Supreme Court in the case Amal
Kumar Jha Vs. State of Chhatisgarh & Anr.
Reported in 2016 3 Supreme (SC) 226 has
observed:
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[2025:RJ-JD:19638] (13 of 18) [CRLR-95/2025]
11. It has been widened further by
extending protection to even those acts or
omissions which are done in purported
exercise of official duty. That is under the
colour of office. Official duty therefore
implies that the act or omission must have
been done by the public servant in course of
his service and such act or omission must
have been performed as part of duty which
further must have been official in nature.
The section has, thus, to be construed
strictly, while determining its applicability to
any act or omission in course of service. Its
operation has to be limited to those duties
which are discharged in course of duty. But
once any act or omission has been found to
have been committed by a public servant in
discharge of his duty then it must be given
liberal and wide construction so far its official
nature is concerned. For instance a public
servant is not entitled to indulge in criminal
activities. To that extent the section has to
be construed narrowly and in a restricted
manner. But once it is established that act or
omission was done by the public servant
while discharging his duty then the scope of
its being official should be construed so as to
advance the objective of the section in
favour of the public servant. Otherwise the
entire purpose of affording protection to a
public servant without sanction shall stand
frustrated. For instance a police officer in
discharge of duty may have to use force
which may be an offence for the prosecution
of which the sanction may be necessary. But
if the same officer commits an act in course
of service but not in discharge of his duty
then the bar under Section 197 of the Code
is not attracted. To what extent an act or
omission performed by a public servant in
discharge of his duty can be deemed to be
official was explained by this Court in
Matajog Dubey v. H.C. Bhari AIR 1956 SC 44
thus:
“The offence alleged to have been committed
(by the accused) must have something to
do, or must be related in some manner with
the discharge of official duty … there must
be a reasonable connection between the act
and the discharge of official duty; the act
must bear such relation to the duty that the
accused could lay a reasonable (claim) but
not a pretended or fanciful claim, that he did(Downloaded on 24/04/2025 at 10:00:46 PM)
[2025:RJ-JD:19638] (14 of 18) [CRLR-95/2025]it in the course of the performance of his
duty.” (emphasis supplied)If on facts, therefore, it is prima facie found
that the act or omission for which the
accused was charged had reasonable
connection with discharge of his duty then it
must be held to be official to which
applicability of Section 197 of the Code
cannot be disputed.”
12. In State of H.P. v. M.P. Gupta 2004 (2)
SCC 349 this Court in regard to official duty
has laid down thus :
“11. Such being the nature of the provision,
the question is how should the expression,
“any offence alleged to have been committed
by him while acting or purporting to act in
the discharge of his official duty”, be
understood? What does it mean? “Official”
according to the dictionary, means pertaining
to an office, and official act or official duty
means an act or duty done by an officer in
his official capacity.”
13. In State of Orissa & Ors. v. Ganesh
Chandra Jew 2004 (8) SCC 40 this Court has
laid down that protection under section 197
would be available only when the act done
by the public servant is reasonably
connected with the discharge of his official
duty. This Court has laid down thus :
“7. The protection given under Section 197
is to protect responsible public servants
against the institution of possibly vexatious
criminal proceedings for offences alleged to
have been committed by them while they
are acting or purporting to act as public
servants. The policy of the legislature is to
afford adequate protection to public servants
to ensure that they are not prosecuted for
anything done by them in the discharge of
their official duties without reasonable cause,
and if sanction is granted, to confer on the
Government, if they choose to exercise it,
complete control of the prosecution. This
protection has certain limits and is available
only when the alleged act done by the public
servant is reasonably connected with the
discharge of his official duty and is not
merely a cloak for doing the objectionable
act. If in doing his official duty, he acted in(Downloaded on 24/04/2025 at 10:00:46 PM)
[2025:RJ-JD:19638] (15 of 18) [CRLR-95/2025]excess of his duty, but there is a reasonable
connection between the act and the
performance of the official duty, the excess
will not be a sufficient ground to deprive the
public servant of the protection. The
question is not as to the nature of the
offence such as whether the alleged offence
contained an element necessarily dependent
upon the offender being a public servant, but
whether it was committed by a public
servant acting or purporting to act as such in
the discharge of his official capacity. Before
Section 197 can be invoked, it must be
shown that the official concerned was
accused of an offence alleged to have been
committed by him while acting or purporting
to act in the discharge of his official duties.
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.
The act must fall within the scope and range
of the official duties of the public servant
concerned. It is the quality of the act which
is important and the protection of this
section is available if the act falls within the
scope and range of his official duty. There
cannot be any universal rule to determine
whether there is a reasonable connection
between the act done and the official duty,
nor is it possible to lay down any such rule.
One safe and sure test in this regard would
be to consider if the omission or neglect on
the part of the public servant to commit the
act complained of could have made him
answerable for a charge of dereliction of his
official duty. If the answer to this question is
in the affirmative, it may be said that such
act was committed by the public servant
while acting in the discharge of his official
duty and there was every connection with
the act complained of and the official duty of
the public servant. This aspect makes it clear
that the concept of Section 197 does not get
immediately attracted on institution of the
complaint case.” 14. In K. Kalimuthu v. State
by DSP 2005 (4) SCC 512 this Court has
observed that official duty implies that an act
or omission must have been done by the
public servant within the scope and range of
his official duty for protection. This Court has
laid down thus :
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[2025:RJ-JD:19638] (16 of 18) [CRLR-95/2025]
“12. If on facts, therefore, it is prima facie
found that the act or omission for which the
accused was charged had reasonable
connection with discharge of his duty then it
must be held to be official to which
applicability of Section 197 of the Code
cannot be disputed.
xxxxx
15. The question relating to the need of
sanction under Section 197 of the Code is
not necessarily to be considered as soon as
the complaint is lodged and on the
allegations contained therein. This question
may arise at any stage of the proceeding.
The question whether sanction is necessary
or not may have to be determined from
stage to stage. Further, in cases where
offences under the Act are concerned, the
effect of Section 197, dealing with the
question of prejudice has also to be noted.”
This Court, looking into the statutory requirement
as laid down in Section 197 Cr.P.C. and the precedent
laws of the Hon’ble Apex Court, is clear that any action
taken in good faith by the government employee in
discharging of duties or performing their duties in good
faith and intended to be done in pursuance of the law
then no suit, prosecution or any other legal proceeding
shall lie against the State Government or any officer of
the Government or any other person exercising any
powers of discharging such functions without prior
prosecution sanction. However, in the present case, the
trial court while dismissing the application under
Section 197 (2) Cr.P.C. observed that, according to
applicable law, prosecution sanction is not necessary
for offences committed by a government employee
while not discharging their official responsibilities. The
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[2025:RJ-JD:19638] (17 of 18) [CRLR-95/2025]
petitioner, in this instance, was not acting in the course
of his official duties at the time of the alleged incident.
Consequently, there is no requirement to seek
prosecution sanction to proceed against the petitioner
in relation to these alleged offences. The petitioner
cannot invoke the protections of Section 197 of the
Cr.P.C. solely by virtue of being a government
employee, as the allegations made by the complainant
are unrelated to the performance of his official duties.
Furthermore, this Court observes that the
incident in question occurred in Chittorgarh while the
petitioner was posted in the Ajmer District Police
Department, thereby rendering the invocation of
Section 197 of Cr.P.C. inappropriate at this stage. In
this context, the application filed by the petitioner
under Section 197(2) of the Cr.P.C. is devoid of merit,
and the learned trial court has rightly dismissed the
same. This court deems justified as it aligns with the
judicial interpretation of the statute, underscoring that
accountability for actions outside the purview of official
duty must be upheld to ensure the protection of
individuals from unlawful acts, irrespective of the
alleged offender’s status as a public servant.
In view of above, the impugned order does not
suffer from any illegality and perversity. The learned
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[2025:RJ-JD:19638] (18 of 18) [CRLR-95/2025]
trial court has passed a reasoned order, which requires
no interference from this Court.
The revision petition, being bereft of any merit,
is hereby dismissed.
Stay application also dismissed.
(MANOJ KUMAR GARG),J
47-MS/-
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