CASE ANALYSIS OF B.S. SAMBHU vs. T.S.

KRISHNASWAMY

SNIGDHA AGARWAL
INTERN
1st YEAR

IMS LAW COLLEGE, NOIDA

Mob- 7523093860

Email- snigdha.agarwal27@gmail.com

26th APRIL, 2020

B.N. SHAMBHU CASE AND IT’S IMPACT ON
INDIAN SOCIETY

Background of the case

In this case, it has been earlier observed that the respondent, an Advocate was
representing a party in a suit which being heard by the appellant, who was working as
Additional Munsiff and Judicial Magistrate First Class at the material time. A transfer
application of the suit was moved by the Advocate before the District Judge. The District
Judge called for the remarks of the Additional Munsiff regarding certain allegations. The
Additional Munsiff submitted his remarks in the shape of a D.O. Letter in which he
called the advocate with defamatory words such as “Rowdy”, “a big gambler” and “a
mischievous element”. Apparently, this letter was read out by the learned District Judge
in open court. The Advocate filed a criminal complaint against the appellant alleging that
the usage of words in the D.O. Letter amounted to his defamation under Section 499 of
Indian Penal Code, 1860. A question was raised whether the Court could take
comprehension of the offence without the sanction contemplated in Section 197 of Code
of Criminal Procedure, 1973. The Magistrate negatived the contention of the Advocate
that the sanction was necessary. It was held by the High Court in the view of Magistrate.
When the appellant approached the Supreme Court and tried to link the act with the
discharge of official duty, it was held that calling such names cannot even remotely be
said to be connected with the discharge of a statutory duty and hence sanction under
Section 197 Cr.P.C., for prosecution of an offence of defamation under Section 499 of
Indian Penal Code was not necessary. In this case, the Court emphasized that there must
be a reasonable connection between the act and the discharge of sovereign function by
the accused. The Court held that defamatory language used by a Judge to an advocate
does not attract the requirement of Section 197 Cr.P.C. Hence, Section 197 Cr.P.C. was
not in any way attracted.
Facts in issue

A revision petition is filed by the applicant in the public interest according to Article 32
of the Constitution of Indian, seeking the scrutiny of the judgment of the High Court.
During the proceedings of the High Court, he contented that sanction contemplated
Section 197 Cr.P.C. is not necessary for the court to consider while taking cognizance of
the offence alleged by the respondent. It was held by the High Court in the view of
Magistrate and his contention was considered valid at that time. Now, the learned counsel
of the petitioner submits in the Supreme Court that even if given a face value and taken to
be correct in their entirely would not attract the mischief of Section 499 IPC in view of
several exceptions carved out therein as the appellant was acting or purporting to act in
the discharge of his official duty and as such the ingredients of Section 197 Cr.P.C. were
satisfied. According to him, from the judgment of High Court is does not appear that such
a question was raised therein.

Petitioner’s Arguments

a) The words were said during the act done while discharging the official duty.
b) Section 197 Cr.P.C. includes the protection of public servants if the act is done by
them while acting or purporting to act in the discharge of the official duty.

c) The accusation claimed under Section 499 IPC is not valid.

d) There are exceptions covered under the definition of defamation that can be used
to justify the accusation.

Respondent’s Arguments

a) Learned counsel for the respondent submitted that the applicant cannot get the
undue advantage of Section 197 of Cr. P.C.
b) The words used by the Magistrate in the letter, are considered to be inappropriate
and defamatory under Section 499 Cr.P.C.
 c) Such defamatory words cannot be even used while acting or purporting to act in
the discharge of the official duty.

Exception of Defamation Claimed by The Petitioner

By the usage of word ‘exceptions’, the petitioner meant to refer the fourth exception
covered under the definition of defamation under Section 499 IPC. The exception states
that if any proceedings of the court or the result of any case given by the court are
published then that will not amount to defamation. As all exceptions come with some
conditions associated with it, so does this one. The conditions pertaining to this are such
that publication must be true and appropriate. But neither the words used by the
Magistrate in the letter raise the question of being true or false nor the usage of those
words can be justified in any manner, with the defence that the words were said while
acting in the discharge of the official duty.

Protection To Public Servants Under CrPC

The respondent filed a criminal complaint against the Munsiff-Magistrate without the
sanction contemplated Section 197 Cr.P.C. In such circumstances even though the letter
was undoubtedly written by the Munsiff-Magistrate to the District Judge in the discharge
of his official duty, it was held that its offensive contents had no connection with the
discharge of such duty and the sanction was not attracted in any way. Section 197 Cr.P.C.
gives protection to the public servants and has laid down the conditions precedent for
taking cognizance of offence in the following words:

“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 office 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-
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.

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 ac acting or purporting to
act in the discharge of his official duty, except the previous sanction of the
Central Government.
3. The State Government may, by notification direct that 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.

(3A) 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.
(3B) 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.

In the case of Matajog Dobey v. H.C. Bhari1, it was contended that sanction was
necessary as the assault and the use of criminal force related to the performance of the
official duties of the accused within the meaning of Section 197 of the Code of Criminal
Procedure. Article 14 does not render Section 197 Cr.P.C. ultra vires as the
discrimination on the part of the Government to grant sanction against one public servant
and not against another is based on a rational classification. It was held by the Court that
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 to
determine is whether it was committed in the discharge of official duty.

In the case of Pukhraj vs. State of Rajasthan2, the second respondent raised the
contention that the court could not take cognizance of the offence without the sanction of
the Government under the Section 197 Cr.P.C. That contention was negatived and the
Court questioned that whether the act complained of were done by the second respondent
in purported exercise of his duties and applied the test laid down in Matajog Dobey's case
and held that kicking the complainant and abusing him could not be said to have been
done in the course of performance of the duty by the second respondent.

Constitutional Protection to Public Servants

1
Matajog Dubey v. H.C Bhari, SC 44 (1956)
2
Pukhraj v. State of Rajasthan, 2 SCC 701 (1973)
In order to satisfy the wants of civil servants regarding the protection of their services by
the Constitution, the protection was provided to them so that the services can remain
independent from various political agendas. Articles 308 to 323 of the Indian
Constitution provide protection to the civil servants. The Indian Constitution incorporates
the Common Law Doctrine of Pleasure. This doctrine is based on public policy.

Doctrine of Pleasure
The Doctrine of Pleasure is a common law rule and it is originated in England. The
Doctrine of Pleasure is a special prerogative of the British Crown. In England, a servant
of the Crown holds office during the pleasure of the Crown and he can be dismissed from
the service of Crown at pleasure. The tenure of office of a civil servant can be terminated
at any time without assigning any cause.  Though doctrine of pleasure is accepted in India
as it has developed in England, it has not been completely accepted in India. This
Doctrine of Pleasure is embodied in India in Article 310.

Article 310 of the Constitution has integrated this doctrine and provides that all persons
who are members of the Defense Services or the Civil Services of the Union or All India
Services hold office during the pleasure of the President. Similarly, members of State
Service hold their positions during the pleasure of the Governor. This is not exactly like
English law, as here; the servants may sue the Crown for arrears of salary as stated
in State of Bihar v. Abdul Majid3.

The Supreme Court of India has justified the Doctrine of Pleasure on the grounds of
Public Policy, public interest, and public good. A misconduct committed by a servant not
only while performing his official duties but also in his private lie may be punished under
the Government under Article 310.

 The Judicial Officers Protection Act, 1850

3
State of Bihar v. Abdul Majid, SC 425 (1954)
 The Judicial Officers Protection Act, 1850 provides protection to the judicial officers
acting in good faith in their judicial capacity. Further, the Parliament passed the Judges
(Protection) Act, 1985 to provide certain more protection to Judges and Magistrates in
addition to what was already available to them under the Judicial Officer Protection Act,
1850. In the first place, it covers all judicial officers, by enumerating them specifically.
Secondly, it protects the judicial officers from suits, not only for acts done or ordered to
be done by them in the discharge of their duties within the limits of their jurisdiction, but
also for acts done beyond the limits of their jurisdiction, provided that, in the latter case,
the officer, at the time of doing the act or ordering it to be done, in good faith believed
himself to have such jurisdiction. Thirdly, the Act also protects persons acting in
pursuance of the orders of a judicial officer, if acting in good faith, even if the judicial
officer had no jurisdiction to pass the particular order. Parliament passed The Judges
(Protection) Act, 1985 to provide certain more protections to Judges and Magistrates in
addition to what was already available to them under The Judicial Officers’ Protection
Act, 1850. 

Exceptions Provided to Public Servants Under Indian Penal Code, 1860

The Indian Penal Code (IPC) is the main criminal code of India. It explains how public
servants are protected by laws and statutes at the same time they misuse their powers and
certain punishments are also framed if they are proved to be guilty. Public servants work
for the welfare of the public; they are exempted from punishments if their act is in good
faith. Section 77 of the code says about the Act of judge when acting judicially. Any act
of a judge done when exercising any power given by law in good faith is not an offence.
Section 78 of IPC says that any Act done in pursuant to the judgment or order of court is
not an offence. These sections protect acts done by a judge. Section 19, of IPC defines
the word “judge” when section 19 and 77, 78 read together we come to know that judge
is also a public servant. In the case, Yaqui Ali v. State of Rajasthan4, the Court held that
the magistrate who initiated parallel criminal proceedings under Section 145 and 147 of

4
Yaqui Ali v. State of Rajasthan, 2 WLC 730 (1995)
the Corp. had no power to give that judgment and it was contempt of court. It was only an
error of judgment and this act of judge is protected under judicial officers Protection Act,
1850.

Public Order
Public order is derived from French designate order publique and it is something
more than ordinary maintenance of law and order. It lives not merely in the nature or
quality of the act, but in the degree and extent of its reach upon society. The act, similar
in nature, but committed in different context and circumstances, might cause different
reactions. Every infraction of law must necessarily affect order, but an act affecting law
and order may not necessarily also affect the public order.

The “public order” is distinguished from “law and order” because the latter undoubtedly
takes in all of them. Public order if disturbed, must lead to public disorder. The
contravention of law always affects order but before it can be said to affect public order,
it must affect the community or the public at large. The Court also distinct the Public
order and Law and order in its decisions. The case of Arun Ghosh v. State of West
Bengal5, was an occasion to deal with the question of “public order” and “law and order”.
In this judgment, by giving various illustrations, very serious effort has been made to
explain the basic distinction between “public order” and “law and order”.

Sanction Under Section 197 CrPC.

Under section 197 of Code of Criminal Procedure (Cr.P.C.), prior sanction from a
competent officer is needed to prosecute a government servant for alleged criminal act
done in discharge of his official duty and "no court shall take cognizance of such offence
except with the previous sanction". In the case of Ramgopal vs The State Of Madhya
Pradesh6, the prosecution did not get the sanction under Section 197 Cr.P.C., which is

5
Arun Ghosh v. State of West Bengal, 1 SC 98 (1970)

6
Ramgopal vs The State Of Madhya Pradesh, SC 740 (1966)
mandatory to prosecute the public servant. On careful reading of Section 197 of the
Cr.P.C., it appears that the intention behind the Section 197 of the Cr.P.C. is to
protect public servant from being unnecessarily harassed. The Section is restricted for
prosecution of government servant for the act while discharging their official
duties. Hence, it is stated that the offence committed shall be in accordance with the
act done while discharging the official duty.

No unreasonable Protection of Judges

The Supreme Court in Anwar Hussain vs. Ajay Kumar Mukherji and Ors 7. held that the
order of arrest and detention of the plaintiff was not made in bonafide belief in exercise of the
jurisdiction. The SDM was found to have been acted recklessly and maliciously, hence the
award of damages of Rs. 5,000 was upheld. The Allahabad High Court in State of UP vs.
Tulsi Ram and Ors.8 held that the magistrate by non-application of mind erroneously signed
a warrant of arrest against a person who has been acquitted by the Sessions Court in a civil
action brought against the magistrate. The High Court held that the magistrate was not
entitled to protection under Act 1850 although he was un-represented before the High Court.
The magistrate was directed to pay Rs 500 as compensation to the aggrieved.   

Global Initiative on Protection of Public Servants

G20 countries have undertaken varied approaches to the protection of whistleblowers

within their respective jurisdictions, and most are at different stages of development of
their laws. Recognising that there is no uniform legislative means for establishing and
implementing effective whistleblower protections, this Study focuses on the main
features of whistleblower protection laws, and provides examples throughout of certain
approaches and trends across most G20 countries in the scope and application of their
laws. Legal provisions for the protection of whistleblowers can be found in numerous

7
Anwar Hussain vs. Ajay Kumar Mukherji and Ors., SC 1651 (1965)
8
State of UP vs. Tulsi Ram and Ors, ALL. 162 (1971)
sources of law. These can include dedicated legislation on whistleblower protection, such
as Japan’s Whistleblower Protection Act (WPA) , South Africa’s Protected Disclosures
Act (PDA) , or the United Kingdom’s Public Interest Disclosure Act (UK PIDA).
Whistleblower protections may also be provided for in a country’s Criminal Code; for
example, the Canadian Criminal Code prohibits retaliation against an employee who
provides information about a crime. Similarly, the United States Federal Criminal Code
was amended by the Sarbanes-Oxley Act (SOX Act) to impose a fine and/or
imprisonment for retaliation against a whistleblower who provides truthful information
about the commission or possible commission of any Federal offence to law enforcement
authorities. There is no common legal definition of what constitutes whistleblowing. The
International Labour Organization (ILO) defines it as “the reporting by employees or
former employees of illegal, irregular, dangerous or unethical practices by employers.” In
the context of international anti-corruption standards, the 2009 OECD Recommendation
of the Council for Further Combating Bribery of Foreign Public Officials in International
Business Transactions (Anti-Bribery Recommendation) refers to protection from
“discriminatory or disciplinary action public and private sector employees who report in
good faith and on reasonable grounds to the competent authorities...” The UNCAC refers
to “any person who reports in good faith and on reasonable grounds to the competent
authorities any facts concerning offences established in accordance with this
Convention.” The Council of Europe Civil Law Convention on Corruption refers to
“employees who have reasonable grounds to suspect corruption and who report in good
faith their suspicion to responsible persons or authorities.” A principal requirement in
most whistleblower protection legislation is that the disclosures be made in “good faith”
and on “reasonable grounds.” Accordingly, protection is afforded to an individual who
makes a disclosure based upon his or her belief that the information disclosed evidenced
one of the identified conditions in the given statute, even if the individual’s belief is
incorrect.

Judgement in A Glance
  Section 499 of IPC is applicable because the remarks made by the appellant in the
letter were defamatory and it has injured the reputation of the respondent.
 Section 197 of Cr.P.C. was not attracted in any way because the act complained
of had no connection with the discharge of official duty by the appellant. 

Overview of The Judgement

The judgment maintained and safeguarded the assertion made by the precedents that no
public servant can take the unnecessary advantage of the sanction under Section 197, Cr.
P.C. and also stated under what circumstances can the sanction under Section 197 can be
reasonably imposed.

It was held that not every offence committed by a public servant requires sanction of
prosecution under Section 197(1) Cr.P.C., 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; and that would
be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that
would really be a matter of defence, on the merits, which would have to be, investigated
at the trial, and could not arise at the stage of the grant of sanction, which must precede
the institution of the prosecution. It was further held that if the acts complained of are so
integrally connected with the duties attaching to the office as to be separable from them,
then sanction under Section 197(1) would be necessary; but if there was no necessary
connection between them and the performance of those duties, the official status
furnishing only the occasion or opportunity for the acts, then no sanction would be
required.

The court relied on Matajog Dobey’s case and held that defamatory language used by a
Judge to an advocate does not attract the requirement of Section 197 Cr.P.C. The Learned
Judge on consideration of materials on record came to the finding that it is not a
pretended one and fanciful. So, the instant case does not help the petitioner. In this case,
the Lordships also referred to the decision in Pukhraj’s case with approval.
Current Scenario of Sanction of Section 197 CrPC.
Recently, in 2019, in the case of B.S.N.L. vs. Pramod V. Sawant9, the Supreme Court
dismissed the appeal of Bharat Sanchar Nigam Ltd (BSNL) against the High Court’s
order which had held that protection of sanction under Cr.P.C. was not available to the
officers of public sector undertakings like BSNL even if they fall within the definition of
‘state’ under Article 12 of the Constitution.
In the case of Shyam Bihari Tiwari v. State of U.P.10, the petitioner, one Shyam Bihari
Tiwari, a retired principal of a government school claimed that he was under the ambit of
public servant and thereby mandating a need for sanction prior to prosecuting him. The
petitioner was also charge-sheeted under provisions of the Indian Penal Code, it was
vehemently argued that a sanction would also be necessary under Section 197 of Code of
Criminal Procedure. Hence, it was held that no sanction needed to prosecute a retired
public servant.

The Court has amended the conditions of Section 197 Cr.P.C. with the application of all
the valid logic which is required to prevent the malpractices done by the public servants
in power.

Conclusion

This judgment and other judgments similar to this have been a great initiative by the
Court in order to put a full stop on the corrupt practices of the public servants. It ensures
that no public servant takes the undue advantage of his authoritative services and uses
that advantage in the form of promotion of malpractices. It ensures that everybody is
treated equal before the law like it is stated under Article 14 of the Constitution of India
and if a public servant has committed any offence, he will be treated no different from the
normal citizens of the country. The Court while giving judgment in these cases focuses
on whether the offence was committed while the public servant was acting in the
discharge of his official duty or not and there should be a reasonable connection of the

9
B.S.N.L. vs Pramod V. Sawant, (2019)
10
Shyam Bihari Tiwari v. State of U.P., (2019)
offence committed with the act done by the public servant while discharging his official
duty.

References

 B.S. Shambhu v. T.N. Krishnaswamy, 1983 1 SCC 11

 Matajog Dobey v. H.C Bihari, AIR 1956 SC 44

 Pukhraj v. State of Rajasthan, 1973 2 SCC 701

 State of Bihar v. Abdul Majid, AIR (1954) SC 425

 Yaqui Ali v. State of Rajasthan, 1995 (2) WLC 730

 Arun Ghosh v. State of West Bengal, (1970) 1 SC 98

 Ramgopal vs The State of Madhya Pradesh, AIR 1966 SC 740

 B.S.N.L. vs. Pramod V. Sawant, AIR 2019

 Shyam Bihari Tiwari v. State of U.P AIR 2019
 Anwar Hussain vs. Ajay Kumar Mukherji and Ors., AIR 1965 SC 1651 
 State of UP vs. Tulsi Ram and Ors. AIR 1971 ALL. 162

Brief about author

Snigdha Agarwal is pursuing B.Com. LL. B from IMS Law College, NOIDA. She is
currently working as an intern in ProBono India. She has an inherent interest in criminal
law which encourages her to take part in the mock trials and apply her analytical
thinking. Not only this, she also has interest in other fields of law, such as corporate law,
environment law, etc. and she loves to stand for the rights of people. She is an active
member of the moot court society, debate society and the RTI club of her college and
participates in all kinds of competitions, seminars and workshops affiliated to it. She also
holds keen interest in writing research papers and various legal articles.