Mohamed Ahmed Ansari, J.
1. The question to be adjudicated in this revision petition is: When sanction for the prosecution of a public servant is necessary under Section 201 of the Hyderabad Criminal P.C.? The section provided that when any public servant was accused as such of any offence, no Court should take cognizance of it except with the previous sanction of the Government. This Hyderabad section was similar to the old Section 197 of the Indian Criminal Procedure Code, for there was nothing in it corresponding to the words 'while acting or purporting to act in discharge of his official duty', which were introduced in the newly drafted Section 197 of the Indian Code by the Amending Act No. XVIII of 1923. These new words in Section 197 have been interpreted by the Privy Council in several recent cases and we thought it advisable, when hearing the petition in the Division Bench, to refer the case to the Full Bench in order that some of the authorities of our Court may be examined in view of these observations of their Lordships of the Privy Council.
2. The facts of the case can be briefly stated: The revision petitioner is a lorry driver employed by the Government, and is being prosecuted for offences under Sections 220 and 245 of the Hyderabad Penal Code, which correspond to Sections 279 & 304A of the Indian Penal Code, i.e., for rash driving and causing death by negligent act. It is stated in the challan that on Thir 10, 1358 Fasli (May 10, 1949), a touring lorry driven by the petitioner was carrying twelve policemen from Hyderabad; on the road near Narkadpalli, the driver owing to being drunk and negligent, lost its control, consequently it hit a cattle breaking one of the horns, and all the policemen in it were thrown down; most of the occupants received minor injuries; but a policeman called Bhagwandas fell under one of the wheels and was killed. On Mehir 3, 1358 Fasli (August 3, 1949) the petitioner objected that being a public servant and the offences having been committed while he was acting as a public servant sanction for the prosecution was necessary. The Magistrate rejected the application holding that the acts cannot be said to have been committed by a public servant as such. Against this order, this revision petition has been filed.
3. The Privy Council authorities, which I am going to refer, have interpreted the words 'while acting or purporting to act in discharge of official duty' to have no temporal meaning. When this is so as regards these words, which were introduced in order to widen the scope of the Section 197, it is equally true of the less wide words in Section 201 of the Hyderabad Code. I am referring to these Privy Council authorities from this point of view. The leading case is H.H.B. Gill v. The King 75 Ind App 41. The appellant Gill had joined the Indian Army Ordinance Corps and was later given the temporary rank of Major; he was responsible for the issue and acceptance of tenders for purchase of materials in compliance with indents made by proper authorities; as a result of secret enquiries it was found that he had obtained from Lahiri, another accused in the case some cheque and the consent of the Governor General was obtained for the prosecution of offences under Section 161 and Section 120B, read with Section 420 of the Inidan Penal Code. They were acquitted by the trial Court; but on an appeal the acquittal was set aside and the case remanded for trial, when Section 420 was dropped; a new charge was framed whereby the appellant was charged having accepted gratification other than legal remuneration; then he was convicted of offence under Section 165 of the Penal Code without the charge being formally amended; he applied to the High Court where the conviction on the charge of conspiracy was maintained, and this decision was affirmed by the Federal Court. When the case came to the Privy Council, Lord Simonds delivered the opinion of the Board that the words of Section 270 of the Government of India Act appeared to have precisely the same connotation as the words in Sub-section (1) of Section 197 and then at p. 59, he observes:
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. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a, Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. 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. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held.
4. The above observation was quoted with approval in the later case of Phanindra Chandra v. The King 76 Ind App 10, where' their Lordships held that the sanction of the Governor General under Sub-section (1) of Section 197 of the Indian Criminal Procedure Code was not necessary for the prosecution of a public servant charged under Section 161 of the Indian Penal Code for accepting a bribe. At page 17, it is observed:
To these words a meaning was ascribed in 'GILL'S CASE' to which their Lordships after reconsideration, adhere.
Again, the 'GILL'S CASE' 75 Ind App 41 PC, was followed in Lumbhardad Zurshi v. The King AIR (37) 1950 PC 26, where it has been held that no sanction for the prosecution under Section 161 of the Indian Penal Code was required. Having regard to the general language used in 'GILL'S CASE', I do not think it can be argued that their Lordships' observation is to be confined only to cases where an official is charged of accepting bribe. On the contrary, a general test has been deliberately laid down for all cases namely that the public, servant, if challenged, can reasonably claim that what he was doing he was doing in virtue of his office. This test, therefore, should be applied to the facts of any particular case in order to ascertain whether sanction is necessary. When the words in Sub-section (1) of Section 197 of the Indian Criminal Procedure Code do not refer to the time when the act was being committed but to the nature of the act which is the subject-matter of the prosecution, the words 'as such' in Section 201 of the Hyderabad Code should much less refer to the time and more to the scope of the official duty. I am, therefore, of opinion that the test for determining whether the sanction under the Hyderabad Code is necessary is also whether the public servant if challenged, can reasonably claim that what he does, he does in virtue of his office.
5. I shall now refer to some of the authorities cited by the revision petitioner in support' of his contention that sanction is necessary. The earliest of them is the Full Bench case of Maq-Doom Patel v. Shah Ali Hussain 27 Dec. LR 148. In this case, it was held that sanction was necessary if the act was committed during the discharge of the official duty and it was not necessary to enquire about the nature of the act. I do not take this authority to mean that the words 'in such capacity' in Section 201 mean that the act must be at the time he was discharging his official duty and not within its scope; for that would require sanction for prosecution for defamation which their Lordships held was not covered by the language of the Section. The next case is the State v. Mohamed Jamal Uddin 28 Deccan LR 229, where a Division Bench has held that sanction for the prosecution of a motor driver for negligently causing hurt to a person was necessary. I respectfully beg to differ from the learned Judges for they appear to import 'time' into the meaning of the words which the legislature certainly did not intend to import when it used 'as such' in the Section. Then the case of Feda Ali v. Syed Abdur Rahim 28 Deccan Law Report 224, is another Division Bench authority which follows the Full Bench case I have already referred. I do not think it requires any separate comment, for I have already held that '27 Dec-can 1 R 148, does not decide the words 'as such' to cover any act done beyond the scope of official duty. The case of Prabhu v. Mohd. Sherrif 28 Deccan LR 292, uses the word 'occasion' as the test for ascertaining the necessity for the sanction. This is also a Division Bench case and it appears to me that the test laid down by the Privy Council of whether the accused could say that he was doing it as a public officer is a more correct one than the one applied by the learned Judges, for 'occasion' may mean the time when the act complained of was committed and that is not the meaning of the words used in the Section. I, therefore*, think that these cases do not lay down the correct law. The case of Mohd. Ibrahim v. Jala Venkatrama Rao 39 Deccan LR 63, contains no new principle but it does hold that some evidence can be taken to find out whether the act was committed as a public servant. I do not agree with the latter proposition. The necessity of having the sanction or otherwise should be decided on the complaint or the charge-sheet as it is filed before the Magistrate and not on taking of some evidence in support of the accuser's plea that it is required. I am supported in this view by the authority of the Federal Court reported in Sarjoo Prasad v. Emperor AIR (33) 1946 FC 25. There the complainant had with his wife and certain others proceeded to a steamer station and not being able to purchase the tickets wanted to go on the steamer to bring back his wife and other people who had already boarded the steamer; he was resisted by the accused, the station master, who showed unsympathetic attitude and furious temper, went to the length of abusing the complainant who having protested was beaten by the order of the accused. His Lordship the Chief Justice while holding that under Section 270 of the Government of India Act no sanction was necessary at page 27 approves the following test laid by Sulaiman, J. in an earlier case:
If the prosecution case as disclosed by the complaint or the police report, as the case may be, shows that the act purported to be done in execution of duty, the proceedings must be dropped. But if the prosecution case does not involve this, the case cannot be thrown out on the preliminary ground of want of consent.
6. These authorities are also relevant in cases of sanction under Section 197 of the Indian Criminal Procedure Code, because their Lordships of the Privy Council in 'GILL'S CASE' 75 Ind App 41 PC, have held that Section 270 of the Government of India Act, 1935 is not substantially different to Sub-section (1) of Section 197 of the Indian Criminal Procedure Code. I think these authorities of the Federal Court 'equally apply to questions of sanction under the Hyderabad Section and, therefore, the authority in '30 Deccan LR 63', so far as it lays down that some evidence can be taken for purposes of ascertaining necessity of sanction is not correct, I differ from that authority on this point.
7. I have dealt with most of the authorities relied upon by the revision petitioner and I am of opinion that those who hold any test other than the one laid down by the Privy Council can no longer be considered as correct. I have now to see how far the allegations in the challan disclose the necessity of the sanction. It is stated therein that the revision petitioner was drunk and negligent when the incident happened. He could not have answered, if challenged, that his being drunk and negligent were within the scope of his duty as a public officer. As he cannot reasonably claim that, no sanction for his prosecution is necessary the decision of the lower Court in these circumstances in rejecting his application and proceeding with the case without the sanction is correct and the revision should, therefore, be dismissed.
8. I have had the advantage of perusing the judgment of my learned colleague Mr. M. A. Ansari J. I agree with him that the test laid down by the Privy Council in Gill v. The King 75 Ind App 41, and in the two subsequent cases of the Privy Council is the correct test. In Section 201 of the Hyderabad Criminal Procedure Code, it is laid down that when any Government servant is charged with the commission of an offence in his capacity as Government servant, sanction of the authority empowered to dismiss such public servant is necessary. Though the language is somewhat different from the wording of Section 197, Criminal P. C., the substance of the two sections is the same.
9. What we have to decide in this case is whether the accused committed the offence alleged while acting or purporting to act in the discharge of his official duty. As I thought that 'prima facie', the act of driving the R.T.D. lorry of which the accused was the Government driver was in the discharge of his official duty as a driver, sanction in this case was accessory. But as my learned brother has come to the conclusion that sanction is not necessary, I took my own time in considering and reconsidering the question over and over again. After full consideration I am of the opinion that in this case sanction is necessary. The charge alleged against the accused is that while driving the R.T.D. lorry from Hyderabad to Nalgonda, the accused lost control of the lorry and dashed against a bullock whose horns were broken and the occupants of the lorry fell down some of whom received injuries while one Bhagwandas fell down in such a manner that the wheel of the motor lorry passed over him, as a result of which he died. These allegations have been made still further clear in the First Information Report dated 10th Thir 1358 F., which states that while the said lorry was passing Narkadpalli it had to turn leftward to avoid a dog; while doing this it struck against a bullock which came in front of it. The driver applied the brakes to the lorry as a result of which the lorry bumped. In the First Information Report it is stated that it was a case of causing death by rash and negligent driving while in the charge-sheet one more fact is added. viz., that the accused was drunk and that he took the drink while passing Batasangaram and Chotapur. In the light of these facts what we have to decide is whether it was in the discharge of his official duty that the driver was driving the lorry when the incident alleged happened. The test as laid down by the Privy Council by His Lordship Simonds is that a public servant can only be said to act or purport to act in the discharge of his official capacity, if his act is such as to lie within the scope of his official duty. Can it not be said by the accused in this case that the act or incident alleged against him took place while he was driving the lorry, and the act of driving, no doubt was such as to lie within the scope of his official duty? In my judgment, the accused can very well maintain that he was discharging his official duty, viz., the driving of the lorry and if the incident alleged occurred it was while he was acting or purporting to act in the discharge of his official duty. The allegation that he discharged his official duty rashly or while he was drunk has got to be examined in connection with the act of the official duty of the accused, viz., driving the lorry. It is not unlikely, though highly undesirable, that a public servant may some times discharge his official duty in a rash or negligent manner or while he had taken alcoholic drink. What we have to consider is how far such an act will cast penal liability upon a public servant though no doubt, from an administrative as also from a moral point of view, acting in the discharge of his official duty by a public servant while under the effect of a drink or in a rash or negligent manner is certainly objectionable. We have to find out what is the legislative intent and purpose of enacting the said section of the Criminal Procedure Code, and requiring the necessity of sanction for prosecution. The object is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of a superior authority before a prosecution is launched against them. In Ramchander Rao v. Chinnaya AIR (29) 1942 Mad 664 (1), it was held that the section is intended to protect public servants from frivolous complaints made while they are doing their duties as public servants. That is also the view of the Bombay High Court See Hanumanth Srinivas v. Emperor AIR (16) 1929 Bom 375. Doing an act of driving as a public servant was the duty of the accused. It can often he said that while so driving the accused acted rashly and negligently. This may be with an intention to start vexatious proceedings against such drivers. Often times it is very difficult to say whether the act of driving was rash or negligent, and in such cases, the superior authority having power to dismiss or appoint the public servant should have an opportunity to form an opinion as to how far the allegation of rash and negligent driving is vexatious or 'bona fide'. Otherwise, no driver driving the Road Transport Department lorries will be protected against vexatious charges. The same considerations apply to the allegations of driving after taking a drink. The question there will be whether the accused was sober in spite of drink which he had taken or that may perhaps depend upon the quantum of drink which he might have taken, and it will have to be decided by the Superior authority whether he was sober and fit to drive the lorry, assuming that he had taken some drink. If the intention of the section is to protect vexatious allegations against public servants by requiring sanction, I do not see how we can dispense with the sanction while holding that it was the official duty of the accused to drive the lorry and the allegation is while discharging such duty, he was rash or negligent or was drunk. We cannot say at this stage how the incident occurred, whether it was in a careful and honest effort to avoid the dog that had crossed that the lorry dashed against a bullock which sprang into the centre of the road, as a result of which the accused had to apply brakes to the lorry, and the occupants were thrown out. Such an act it is possible may happen while driving a lorry very carefully and without having taken any drink. I think the superior officer granting the sanction is empowered and entitled to hold a preliminary enquiry and form his opinion as to whether the incident alleged against the accused was an accident or was a criminal act. If it is held that he is so empowered, there seems to be no doubt whatsoever that sanction is necessary in this case. On the face of it, the charge of driving while drunk seems to be very objectionable, but we have to consider that such an allegation may have been made with a view to start vexatious proceedings against the accused.
10. In the case before their Lordships of the Privy Council H.H.B. Gill v. The King 75 Ind App 41, the facts were different, and the illustrations given in the said ruling are intended to find out what is meant by a person acting in the discharge of his official duty. Thus, the illustration, viz., that a Judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he delivers may be such an act, it indicates that receiving a bribe is not an act which a Judge has to do while discharging his official duty. Receiving a bribe is an offence by itself under the Penal Code and it can be separated from the official duty of a Judge while driving a Government lorry has been done by the accused, in the case before me, in the discharge of his official duty. If he did that official duty rashly, could rashness be separated from his public duty as a driver just as the delivering of a judgment by a Judge? Even supposing that it can be; separated 'rashness' or 'negligence' is not an Independent offence under the Penal Code. So also drinking has not yet been made an independent offence in the State. 'Rashness' or 'negligence' is a mental act and if a Judge is permitted 'to decide a case rightly or wrongly' and we know that a Judge is permitted to decide a case rightly or wrongly so long as he has jurisdiction. Again the case of a Medical Officer picking the pocket of a patient whom he Is examining is different from the facts of the case before me. If while examining the patient say spoon or spinier is wrongly inserted in the throat of a patient for the purpose of examining & injury is caused to the throat of the patient, will it be possible to say that he did not act in the discharge of his official duty as a Government Medical Officer? The criterion as laid down by the Privy Council is to see whether the public servant, if challenged, can reasonably claim that what he did he did in virtue of his office. In the case before me, the accused, when challenged, has claimed and I think can reasonably claim that what has happened, and what he did was while he was driving as a public driver. All this incident would not have taken place, the accused alleged, or can allege, had it not been necessary for him to drive the Government lorry in his capacity as a public driver.
11. In my opinion, it is not necessary to examine in detail the various rulings reported in the Deccan Law Reports and cited by the learned Advocate on behalf of the revision petitioner. It would not be difficult if it is really a case of rash or negligent or driving while being drunk to obtain the sanction from his superior officers for prosecuting the accused. In conclusion, I am of the opinion that sanction is necessary in this case, and the revision petition is allowed. The prosecution is not tenable for want of sanction and further proceedings before the lower Court should therefore be closed.
NAIK C. J.
12. I have read the judgments of my learned colleagues the Hon'ble Justices Shripat Rao and Mohammad Ahmed Ansari. I agree with the reasoning and the conclusions arrived at by Justice Shripat Rao. The revision petition is, therefore, allowed and the order of the Magistrate rejecting the application of the petition is set aside.