TMI Blog1955 (10) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate who dismissed the complaint took the view that there was no use in proceeding against him alone, as the main attack was directed against the Income-Tax Officials. No such grievance was urged before the High Court and it is not raised in the grounds for special leave. We hold that the orders of the High Court are correct and dismiss these two appeals. - CRL.A. 67 OF 1954 - - - Dated:- 31-10-1955 - Judge(s) : CHANDRASEKHARA AIYAR., JAGANNADHADAS., S. R. DAS., SYED JAFER IMAM., VIVIAN BOSE JUDGMENT The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR, J.--These appeals come before us on special leave to appeal granted under article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petitions Nos. 559/51 and 312/52 preferred by the appellants respectively. In Criminal Revision Petition No. 559/5, the High Court (Harries, C.J., and Banerjee, J.) confirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal Procedure Code. In Criminal Revision Petition No. 312/52, Lahiri and Guha, JJ., set aside an order made by anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but could supply later. The offences mentioned in the complaint are sections 323, 342 and 504, Indian Penal Code. Later the names of two police officers were given--Bibhuti Chakravarti and Nageswar Tiwari. The two complaints were sent over for judicial inquiry to two different magistrates. On 21st February, 1951, the magistrate held on Agarwala's complaint that a prima facie case had been made out under section 323 against all the four accused and under section 342 against the two policemen. On this report, summonses were directed to issue under section 323 against all the accused. On 1st May, 1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22nd May, 1951. It was on this latter date that the 1st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal Procedure Code. The objection was upheld and all the accused discharged on 31st May, 1951. Nandram Agarwala went up to the High Court in revision, but the order of the Presidency Magistrate was affirmed. In Matajog Dobey's complaint, after the termination of the inquiry, process was issued only against Bhari under sections 323 and 342, Indian Pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Commission) Act (XXX of 1947) and Rule 10 and the search warrant that was issued under them. His main argument was that there was no power conferred by statute or under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment. He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position. The search warrant is in these terms : "Warrant of Authorisation under Sections 6(7) and 6(9) and Rule 8, Taxation on Income (Investigation Commission) Act, 1947. Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the S. Jhabbarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17 Kalakar Street, Calcutta, (ii) 47, Khengraputty Street, Calcutta-7, and (iii) the second floor and adjoining rooms, 36, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so, for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the government and not in a minor official. Further, we are not now concerned with any such question. We have merely to see whether the Court could take cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction." The interpretation that found favour with Varadachariar, J., in the same case is stated by him in these terms at page 187 : "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In affirming this view, the Judicial Committee of the Privy Council observe in, Gill's case "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty...... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." Hori Ram's case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. The King Emperor but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase as disclosed by the complaint or the Police report and he winds up the discussion in these words : "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground." The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty." It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty, but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. We are not prepared to concede in favour of the appellants the correctness of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command." Let us however assume that Mr. Isaacs is right in his contention. Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated. They could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be wellfounded or not. Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force etc. alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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