Satish Kumar Mittal, J.

1. Petitioner Shri Vinod Krishna Kaul, who retired from the post of Director-General, Bureau of Police Research and Development, Ministry of Home Affairs, Government of India, New Delhi, has filed this petition under Section 482 Criminal Procedure Code for quashing of the summoning order dated 14.5.1992 passed by the Chief Judicial Magistrate, Hisar as well as the complaint (Annexure P-17) filed by the respondent against him under Section 500of the Indian Penal Code and all the consequential proceedings arising therefrom.

2. On 2.7.1990, the respondent filed a complaint against the petitioner alleging therein that when the respondent was posted as Deputy Director (Training), Bureau of Police Research and Development, New Delhi, the petitioner, who was his senior officer, made some personal adverse remarks against the respondent and his family members. When the respondent requested the petitioner not to make such remarks, he started having the grudge against him. It was further alleged that on 14.11.1987, the respondent travelled in his own car from Delhi to Chandigarh along with his wife and son and he submitted the TA bills in this regard. The petitioner instead of clearing those bills got some interpolation made in the TA bills to show that the respondent and his family members travelled actually by train and claimed false TA contrary to Rules. It was alleged that in this regard the petitioner addressed various communications to the Railways and other authorities and made the publicity that an enquiry was being held for a false claim of transfer TA by the respondent. Because of that false propaganda and communication, the image of the respondent degraded in the eyes of his friends, relatives and public. This was done by the petitioner on account of his personal vengeance with ill motive and the same was not done in discharge of his official duties in any manner.

3-4. In the aforesaid complaint, the petitioner was summoned by the Chief Judicial Magistrate, Hisar under Section 500Indian Penal Code vide order dated 14.5.1992. The said summoning order as well as the complaint have been challenged in this petition on the following grounds :-

Firstly that the petitioner was a public servant and whatsoever enquiry he had held and the communication made, he had done the same in discharge of his official duties being a superior officer of the respondent. Therefore, no action can be initiated or no cognizance can be taken against him on the complaint filed by the respondent for the alleged official act without obtaining the prior permission from the Central Government as provided under Section 197 Criminal Procedure Code and Rule 17 of the All India Services (Conduct) Rules, 1968. Section 197 Criminal Procedure Code disables the Court from taking cognizance on the complaint of the respondent and the aforesaid Rule 17 disables the complainant from taking recourse to the Court.

5. Secondly that the Court at Hisar lacks territorial jurisdiction in view of the averments made in the complaint. The commission of offence, if any, was alleged to have been committed at New Delhi. No part of the alleged cause of action insofar as the petitioner herein is concerned, at least arises or touches Hisar. The false TA claim of the respondent was tendered by him at New Delhi, the disciplinary authority and the inquiry authority (Central Vigilance Commission) are located at New Delhi. All the witnesses cited by the complainant as also the petitioners are from New Delhi. The complainants false TA claim pertains to the journey from Delhi to Chandigarh. Thus, from the perusal of the contents of the complaint, the Court at Hisar was having no territorial jurisdiction and in view of Section 177 Criminal Procedure Code, the alleged offence should be inquired into or tried by a Court in whose local jurisdiction the same was committed.

6. Thirdly, that a bare reading of the complaint does not disclose any offence of defamation against the petitioner. The ingredients of Section 499Indian Penal Code were not fulfilled. The complainant has not imputed the offence in respect of defamatory action. The actual words spoken or conveyed have not been mentioned in the complaint nor the names of relatives and family members to whom the defamatory words alleged to have been communicated have been mentioned. All the acts done by the petitioner were done in discharge of his official duties being a superior officer when the false claim of TA bills came to his notice.

7. Fourthly, the complaint, which was filed 15 years back, is an abuse of the process of the Court. The complaint was filed in the year 1990 in which the petitioner was summoned on 29.9.1992. The summons were served on the petitioner in September, 1992. The petitioner filed the instant petition in October, 1992 and the proceedings were stayed vide order dated 30.10.1992. Since then, the respondent has shown no disquiet nor sought any early hearing of the matter to vindicate himself. No reply has been filed by him to facilitate a just and speedy decision if the allegations made by him in the complaint are bonafide and correct. This petition is pending since 1992 and in spite of the service effected, the respondent has not appeared at all and contested this petition. Thus, continuation of such a complaint filed by the respondent is an abuse of the process of law.

8. When the respondent was not appearing in spite of the service effected, an actual date notice was issued to him on 13.9.2002 on the latest address of the respondent, for 18.10.2002. On October 29, 2002 also, the respondent did not appear in spite of service effected. Hence, the matter was heard ex parte.

9. Counsel for the petitioner submitted that the petitioner was the controlling officer of the respondent at the relevant time. When a false bill of transfer TA was submitted by the respondent to the petitioner, who was not only his immediate superior officer but was also his TA Controlling Officer, the petitioner asked the Joint Assistant Director, Bureau of Police Research and Development, New Delhi to verify the genuineness of the claim. On the said instructions, the said officer vide letter dated 28.1.1988 requested the respondent to supply the ticket numbers, the train number and the name of the train so that the amount claimed in the TA bill could be verified and disbursed. The respondent sent a reply to the said letter that his wife and son had travelled by his personal car contrary to what had been mentioned in the said TA bill. The petitioner being the Controlling Officer, in view of the fact that a false TA bill had been submitted, disallowed the claim and referred the matter to his immediate superior i.e. Director-General, Bureau of Police Research and Development (Head of the Department), who forwarded the same to the Ministry of Home Affairs for appropriate action in the matter. The petitioner received a letter from the Director, Ministry of Home Affairs, New Delhi, suggesting that payment to the respondent may be made in respect of the transfer TA bill in question. The Joint Assistant Director, Bureau of Police Research and Development with the approval of the petitioner, submitted a detailed reply bringing once again to the notice of the Director, Ministry of Home Affairs that the payment in respect of the transfer TA bill could not be made as the claim was false. Then the petitioner received a letter from the Director, Ministry of Home Affairs, New Delhi to supply information about the action taken on the TA bill prepared by the respondent. The petitioner in reply to the said letter addressed to the Director, Ministry of Home Affairs, detailed the facts regarding the false claim made by the respondent. The petitioner again received a letter from the Director, Ministry of Home Affairs, whereby the petitioner was asked to clarify as to whether the respondent in the TA bill for the journey from Delhi to Chandigarh had mentioned that his family travelled by car and whether the respondent had produced any document for the rail journey or not so that the matter could be processed. The petitioner then wrote a letter to the Director, Ministry of Home Affairs, informing him that the respondent had not produced any document for the rail journey. Thereafter, the petitioner received a letter from Joint Secretary, Ministry of Home Affairs, New Delhi, directing him to send a self- contained report in the matter so that the departmental enquiry could be initiated against the respondent. The petitioner then sent a self-contained report. The respondent submitted a representation dated 4.5.1988 addressed to the Director-General, Bureau of Police Research and Development, New Delhi as also the Additional Secretary, Ministry of Home Affairs, New Delhi, containing highly objectionable matter and aspersions by way of his defence in order to deter and pressurise the petitioner from not further proceeding in the matter against the false claim put in by the respondent. The Director-General, Bureau of Police Research and Development, called for a reply from the petitioner and after considering the same rejected the representation made by the respondent being false, motivated and mala fide. Thereafter, the petitioner received a letter from the Director, Ministry of Home Affairs, asking him to prepare a draft charge-sheet. Thereupon, the petitioner wrote a letter to the Director, Ministry of Home Affairs that disciplinary proceedings may be dealt with in the Ministry as he was himself a witness in the matter. Thereupon, the enquiry was ordered to be held against the respondent by the President of India under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, vide memorandum dated 31.10.1989. One Shri V.I. Velayudhan, Commissioner for Departmental Inquiry, Central Vigilance Commission, New Delhi was appointed as the Inquiry Officer. The respondent did not file or submit any written statement of the defence within the stipulated and further extended time and instead filed a suit for declaration on 2.7.1990 in the Court of Subordinate Judge Ist Class at Hisar in which Union of India and the petitioner were also impleaded as defendants. In the said suit, it was alleged that the transfer TA bill submitted by the respondent was in accordance with the rules and the defendants be ordered to make payment of the amount of TA bill. The Subordinate Judge, Hisar vide his order dated 2.7.1990 stayed the proceedings in the inquiry till further orders. The respondent in addition to the aforesaid suit, also filed a complaint dated 2.7.1990 under Section 499 read with Section 500Indian Penal Code against the petitioner in which he has been summoned.

10. The aforesaid facts have not been disputed by the respondent as no reply has been filed. In view of the aforesaid undisputed facts, it appears that whatsoever prima-facie the petitioner had done, that was done in discharge of his official duties. In these facts, if the respondent alleges that some offence was committed by the official during the course of his official duties, then prior sanction from the Government under Section 197 Criminal Procedure Code was required and the Court was debarred from taking cognizance of the alleged offence for want of sanction.

11. In the above facts and circumstances, prima facie, it appears to this Court that the alleged acts on the part of the petitioner were purported to have been done in exercise of his official duties. Therefore, taking cognizance of the alleged offence without prior sanction and continuation of such proceedings is without jurisdiction and abuse of the process of the law.

12. In State of Maharashtra v. Dr. Budhikota Subbarao, 1993(2) RCR(Crl.) 482 (SC) : 1993(3) SCC 339,the Honble Apex Court has held as under :-

"Two questions arose for consideration - one if the offence for which the accused was charged and of which cognizance was taken was committed by him during the period he was in Naval service and if it be so then whether the violations were in discharge of official duty or they were beyond it. As regards the first question, the facts disclose that the act or omission which furnished foundation for indicating the accused either under O.S. Act or A.E. Act were related to the period when he was in service. Moreover, Section 197 of the Code as it stands after 1973, extends the protection even to a retired public servant as is clear from use of the words, is or was provided the accusation is in respect of an act or omission done or purported to have been done when such public servant was in office. By legislative fiction the officer is deemed to be a public servant under Section 197 of the Code irrespective of his retirement if the accusations against him are for act or omission done by him when he was in service. The purpose is to avoid exposing a public servant to vexatious or frivolous prosecutions merely because he has demitted his office.

As regards the second question, evidence shows that the papers seized from the accused were written and the books published when the accused was attached with B.A.R.C. as a Second Officer-in-Command and, therefore, the material or documents which were found by him cannot be said to have been collected or procured by him by going out of way and beyond the discharge of his duties as an officer in the Naval Department. May be some of them were secret, confidential or unclassified items. But the accused came across them and obtained their copies in course of his duty as an officer attached to B.A.R.C. Taking out of information obtained in course of employment was thus squarely covered by Section 197. Whether it was for communication or not is not material. Retention of Identity Card issued during service may be dereliction of duty but it was committed when the accused was in service and it was issued to him while discharging his duties as a Naval Officer. The Identity Card was issued to the accused as a retired officer and consequently the claim of the prosecution that the accused acted in violation of the provisions of the was not justified. But assuming there was violation since it was done when the accused was in service he was entitled to protection under Section 197 of the Code. Likewise the alleged information which the accused was taking with him to United States having been obtained by him in course of employment and in discharge of his duty the High Court did not commit any error of law in recording the finding that no prosecution could be initiated unless sanction under Section 197 was obtained. Thus, even the second and the most important requirement of acting in discharge of official duty was satisfied. Therefore, it was necessary for the prosecution to have obtained sanction for prosecuting the accused.

Section 197 does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 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 is 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. 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, xx xx xx xx xx. So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The word cognizance means jurisdiction or the exercise of jurisdiction or power to try and determine causes. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. The mandatory character of the protection afforded to a public servant is brought out by the expression, no Court shall take cognizance of such offence except with the previous sanction. Use of the words no and shall makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of."

13. Even otherwise, the complaint filed by the respondent deserves to be quashed with a view not only to prevent the abuse of the process of the Court and/or for securing the ends of justice but also from preventing the harassment of the petitioner by the respondent by launching illegal prosecution which is pending for the last near about 15 years and is being not contested by the respondent. The complaint was filed on 2.7.1990. Summons were issued in September, 1992. The present petition for quashing of the complaint was filed in October, 1992 and the proceedings of the trial Court were stayed on 30.10.1992. Since then the respondent is not taking interest in the matter. He did not appear in spite of service. He did not file any written statement. He did not move any application for hearing of the aforesaid petition in spite of the actual date notice issued to him. It appears that he is not interested at all in these proceedings. Before the trial Court prior to the stay of the proceedings, the respondent generally did not appear and always sought exemption from personal appearance. All these facts clearly indicate that the respondent is not interested in this case and the petitioner, who is an old retired person is attending the proceedings and is being harassed for the last 15 years.

14. In view of the aforesaid facts and circumstances of the case, I am of the opinion that the continuation of the proceedings against the petitioner would be an abuse of the process of the Court. Hence, this petition is allowed and the complaint dated 2.7.1990 (Annexure P-17) and the summoning order dated 14.5.1992 (Annexure P-18) are quashed.

Petition allowed.