1. This Rule was issued at the instance of the complainant Pradip Choudhury who filed a complaint against the Superintendent of Police, Cachar, and seven other constables whose names were not disclosed, on the allegation that he was roughly handled and assaulted by the accused persons. The complaint was filed on the 20th August 1956, before the Magistrate at Karimganj which was dismissed by the presiding officer with (he remark 'Seen the complaint petition. Heard the lawyer for the complainant. Complaint petition is filed, as there is no sanction under Section 197, Criminal Procedure Code, which covers the accused.'
The petitioner-complainant, however, was not satisfied with the order of dismissal of this complaint and filed a fresh complaint on the same allegations on 28th August 1956. The only addition made in the second complaint petition was that the case is not barred under Section 197, Criminal Procedure Code, and that the Magistrate should proceed with the trial. On a further hearing which was confined, as it appears, to the arguments on the point of law, the learned Magistrate passed an elaborate order on 1-9-56 whereby he dismissed the complaint on the ground that the allegations made in the petition of complaint were such us would protect the accused person, namely, the Superintendent of Police, from trial without a sanction as contemplated under Section 197, Criminal Procedure Code.
Against this order m dismissal of the complaint, the complainant moved the Session : ; Judge at Cachar who by his order dated 3rd October 1956, confirmed the order of dismissal of the complaint passed by the learned Magistrate and held that under the circumstances of the case it was necessary that sanction of the appropriate Government should have been obtained before proceeding against the accused, Mr. Menon, Superintendent of Police, who was removable from his office only by the Central Government Against this order of the learned Sessions Judge, the complainant-petitioner moved this Court and obtained the rule as mentioned above.
2. Mr. H. Goswami appearing for the petitioner has contended before us that in the circumstances of the. case, there were no materials before the Court to hold that any sanction was necessary under Section 197 of the Code of Criminal Procedure and even if it be assumed that the accused persons were protected - particularly the Superintendent of Police, - the learned Magistrate ought to have allowed the complainant to lead evidence on, the point without dismissing the complaint.
3. We have heard the learned Advocates for the parties and have read the complaint petition or the two complaint petitions on which the impeached order of the learned Magistrate was passed. The complaint petition discloses that prior to the date of occurrence an order under Section 144, Criminal Procedure Code, was promulgated in the town of Karimganj prohibiting processions, etc., and the police, both armed and unarmed, patrolled in the streets of Karimganj to keep peace.
On the date of occurrence, the petitioner was sitting in a book-stall when the police party passed that way and on seeing the complainant settled with a black badge stuck on the breast pocket of his shirt, which indicated a protest against promulgation of the order under Section 144, Criminal Procedure Code, the police party stopped their car and the Superintendent of Police getting down from the ear with a stick about a cubit long, accompanied by armed policemen, dragged away the petitioner from the place where he was sitting and he was then pushed into the police van after being knocked with the butts of their guns.
The complainant's case was that he along with few other persons were picked up from the streets by the police party from different places of the town and were shoved on to Police Hajat wherefrom they were subsequently released. This occurrence took place on 18th August 1956, and the first complaint as I have already indicated, was filed on 20th August 1958, and the second on 28th of that month. The complainant further alleged that he was assaulted by the police including the Superintendent of Police and he received several injuries on his person. The nature of the injuries, however, was not disclosed in the complaint petition, except that we are left with an impression that there was nothing serious.
4. It appears from the judgments of the learned Magistrate as well as of the learned Sessions Judge that they were of the opinion that the Superintendent of Police was acting in the circumstances of the case or at least purported to net in the discharge of the official duties in the matter of commission of the offence as alleged and as such, he could not be prosecuted without a Sanction under Section 197, Criminal Procedure Code.
5. The material portion of Section 197, Criminal Procedure Code, runs as follows:
197. Prosecution of Judges and public servants - (1) When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 cognisance of such offence except with the previous sanction -
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and
(b) in the case of a person employed in connection with the affairs of a State, of the State Government.
6. Here in this case the public servant, namely, the Police Superintendent, was removable from his office only with the sanction of the Central Government and if therefore other circumstances permitted, he could avail of the bar under Section 197, Criminal Procedure Code. The main point for decision is whether he was acting or he was purporting to act in the discharge of his official duty in the matter of arrest or even of assault of the complainant.
Mr. Goswami has contended for the petitioner that commission of an offence, namely, that of assault, on the complainant is no part of an official duty and the accused could not plead that he was purporting to act in the discharge of his official duty while he was actually assaulting the complainant. Mr. Goswami in support of this contention relied on the decision of the Allahabad High Court in Mukand Singh v. Vishnu Prasad : AIR1956All396 and some other decisions of other High Courts. The decisions almost in all these cases were arrived at in consideration of tile facts of each particular case.
7. The latest judgment of the Supreme Court on the point was given by Chnndrasekhara Aiyar, J., in Matajog Dohey v. H. C. Bhari : 28ITR941(SC) . Not only the position as arose in this ease was considered in connection with that case but also the relevant decisions of the Supreme Court and Privy Council were considered in connection therewith.
There the allegation was against some of the Income-tax Officers who were alleged to have assaulted and bound down the complainants while the officers were purporting to carry on a search for finding out certain documents in the possession of the complainant or complainants. Their Lordships were of the view that the Income-tax Officers were protected in their actions and sanction under Section 197, Criminal Procedure Code, was necessary to proceed against those persons. Their Lordships expressed themselves in the following words:
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. 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 duly, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
Their Lordships in connection with this case considered the judgment of the Federal Court, reported in Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43 (C), and cited with approval the observation made by Varadachariar, J., in that connection as follows:
There must be something in the nature of the act complained of that attaches it to the official character of the person doing it.
And tile self-same observation found favour with the Judicial Committee of the Privy Council as is expressed in the case of H. H. B. Gill v. The King AIR 1948 PC 128 (D).
8. The earlier decisions of the Supreme Court considered in this connection were Shreokantiah Ramayya Munipalli v. State of Bombay : 1955CriLJ857 and Amrik Singh v. State of Pepsu : 1955CriLJ865 . In the case of Amrik Singh in which the judgment was delivered by Venkatarama Ayyar, J., it was observed after consideration of the several rulings placed before their Lordships, as follows:
The result of the authorities may thus be summed up. It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1), Criminal P.C.; nor even every act done by him while he is actually (sic) 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 siumi of the grant of sanction, which must precede the institution of the prosecution.
Taking this passage as it stands, it goes against the contention of Mr. Goswami that this objection as to the bar under Section 197, Criminal Procedure Code, cannot be taken at the beginning of the trial. In support of this contention Mr. Goswami further relied on a Single Bench decision of the Calcutta High Court reported in Chung Ping Yung v. Amiya Chakravartti : AIR1956Cal109 .
With due deference to the learned Judge we can only comment at this stage that the procedure as envisaged by his Lordship in that particular case does not find much favour with us since in his own view the Criminal Procedure Code itself does not so prescribe, namely, that investigation should be made at the start to see whether Section 197, Criminal Procedure Code, is applicable to circumstances of the case. In my opinion the decision of the Supreme Court, as expressed in : 28ITR941(SC) , would provide adequate answer to the contention. Paragraph 20 of (he judgment of the Supreme Court begins with the following words:
Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in - Hori Ram's case (C). and also in - Rarjoo Prasad v. Emperor AIR 1940 FC 25 (H) Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earlier stage of institution, Varadachariar, J., also states that the question must be determined with reference to the nature of die allegations made against the public servant in the criminal proceedings.
But a careful perusal of the later parts of their Lordships' judgment shows that they did not intend to lay down any such proposition.''
9. In the opinion of their Lordships '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.'
10. Therefore taking the section as it stands along with the judicial opinion as expressed by then-Lordships in the cases referred to above, it will only! come to this that if the materials are sufficient for objection to be taken under Section 197, Criminal Procedure Code, at the institution of the proceeding that is quite competent; but even at a later stage the same objection may be agitated. We find nothing either in the section or in any other decision except the one that Mr. Goswami placed before us that it is obligatory for the Court to direct any enquiry into the matter as to the scope of applicability of Section 197, Criminal Procedure Code.
11. We accordingly decide that in the facts of the case as they stand, and reading the complaint petitions - where the offence alleged is described, there is a prima facie case to show that the accused could have taken the plea in defence that they were purporting to act in the discharge of the official duties even if the alienations as made against them or against the Superintendent of Police are true.
What the section itself implies is that there is scope for holding that an offence might have been committed but whether that offence could have beer pleaded to have been committed in the course of the discharge of the official duties or that the alleged commission of the offence was so inter-connected that it might be pleaded in good faith to have been committed in the course of the official duty as prescribed for the public servant concerned. The act should not be independent of the duty as for instance riving of a bribe while discharging an official function.
The decision of the Allahabad High Court : AIR1956All396 , relied on by Mr. Goswami may be good so far as the facts of that case are concerned - but it has no bearing on the set of facts as disclosed in the instant case,
12. The result therefore is that we do not find any substance in the contention raised by the learned Counsel on behalf of the petitioner and the Rule therefore stands discharged.
Sarjoo Prosad, C.J.
13. I agree.