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Emperor Vs. A.G.K. Pathan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 100 of 1945
Judge
Reported inAIR1946Bom86; (1945)47BOMLR990
AppellantEmperor
RespondentA.G.K. Pathan
Excerpt:
.....officer, who is appointed and is liable to be removed by a district magistrate under the authority delegated to him by the provincial government, for an offence committed by such subordinate officer in the discharge of his duty.;king-emperor v. maung bo maung (1935) i.l.r. 13 ran. 540 f.b., pichai pillai v. balasundara mudaly (1935) i.l.r. 58 mad. 787 and emperor v. jalal-ud-din (1925) i.l.r. 48 all. 264, followed. kyaw htin v. ah yoo (1934) i.l.r. 12 ran. 530 and in re abdul khadir saheb (1916) 17 cr. l.j. 168, dissented from. - - it is, however, contended that, when the district magistrate acts under such delegated authority, the appointment as well as removal of any person appointed under such delegated authority must be deemed to have been made by the original authority,..........such delegated authority must be deemed to have been made by the original authority, viz. the local government, and reliance was placed for that contention on the decision of the rangoon high court in kyaw htin v. ah yoo i.l.r (1934) ran. 530. in that case the sub-inspector of, excise in burma was appointed by the local government under the rules framed by the secretary of state for india in council. one of the rules empowered the local government to remove or dismiss the officer. it was held that, if it was sought to prosecute the officer appointed by the commissioner for an offence alleged to have been committed by him in the discharge of his duty, he was entitled to the protection of section 197(1), namely, the sanction of the provincial government for such prosecution. the.....
Judgment:

Divatia, J.

1. Mr. Ghaswala has addressed us on a point of law, that the prosecution of accused No. 1, in absence of sanction under Section 197 of the Criminal Procedure Code, is illegal. That section lays down that, when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority 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 of the Governor of that Province. Now in the present case, as I said before, accused No. 1 was appointed as Assistant Price Inspector by the District Magistrate of Nasik in his capacity as Price Controller under the Defence of India Rules. Under Section 2, Sub-section (5), of the Defence of India Act, a Provincial Government may delegate any of the powers conferred on it to any officer or authority. By virtue of that section the power to make appointment of Assistant Price Inspector was delegated to the District Magistrate. That fact is conceded. It is, however, contended that, when the District Magistrate acts under such delegated authority, the appointment as well as removal of any person appointed under such delegated authority must be deemed to have been made by the original authority, viz. the Local Government, and reliance was placed for that contention on the decision of the Rangoon High Court in Kyaw Htin v. Ah Yoo I.L.R (1934) Ran. 530. In that case the Sub-Inspector of, Excise in Burma was appointed by the Local Government under the rules framed by the Secretary of State for India in Council. One of the rules empowered the Local Government to remove or dismiss the officer. It was held that, if it was sought to prosecute the officer appointed by the Commissioner for an offence alleged to have been committed by him in the discharge of his duty, he was entitled to the protection of Section 197(1), namely, the sanction of the Provincial Government for such prosecution. The decision in that case proceeded under the special provisions of the Burma Excise Act, and it was, on that ground, distinguished in a later full bench decision of the same High Court in King-Emperor v. Maung Bo Maung I.L.R (1935) Ran. 540. The facts of that case resemble those of the present case. It was there held that, where the Local Government had delegated power to make appointment and removal to a subordinate authority, the sanction of the Local Government was not necessary under Section 197 of the Criminal Procedure Code. It was observed [by Dunkley J.] (p. 551):

If the Local Government under statutory powers granted to an authority subordinate to itself power to appoint and remove, which power can be exercised independently of the Local Government, then obviously the appointment is made, not by the Local Government, but by the subordinate authority.

It may be noted that the learned Judge, who decided the previous case of Kyaw Htin v. Ah Yoo, relied upon a decision of the Madras High Court in In re Abdul Khadir Saheb (1916) 17 C.L.J. 168 where it was held that where a servant has been appointed under a delegated authority, the sanction of the original authority, which delegated power, was required under Section 197. But that case has been dissented from by the Madras High Court itself in Pichai Pillai v. Balasundara Mudaly I.L.R (1935) Mad. 787. There it was held that Section 197 clearly draws a line between public servants, and provides that only in the case of the higher ranks the sanction of the Provincial Government is necessary, and that Sub-section (1) did not include public servants whom some lower authority has by law or rule or order been empowered to remove. The learned Judges expressly dissented from the previous decision in In re Abdul Khadir Saheb, and held that even though the power of authority may be delegated, it does not necessarily follow that the sanction of the delegating power was required. To the same effect is also the decision of the Allahabad High Court in Emperor v. Jalal-Ud-Din I.L.R (1925) All. 264. In our opinion, these later decisions are correct on the wording of Sub-section (1) of Section 197. The section applies only to public servants who are not removeable except with the sanction of the Provincial Government. In the present case, even though the District Magistrate had a delegated authority to appoint as well as remove the Assistant Price Inspector, it was not necessary for him to take the sanction of the Provincial Government for the appointment or for the removal of such officers under him, It must, therefore, follow that, if it is within the competence of the officer, even though the authority to him is delegated, to remove a subordinate officer appointed by him, it is not necessary that the sanction of the delegating authority must be obtained before the subordinate officer can be prosecuted for any offence committed in the discharge of his duty. We think, therefore, that no sanction was necessary in the present case.

2. The order of the lower Court is confirmed, and the rule is discharged.


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