1. This is a revision against the order of District Judge, Asifabad. The brief facts relating to this case are that the petitioner before us filed a complaint against an employee of the Forest Department charging him with (a) criminal trespass, (b) insult, (c) theft, and (d) assault. The complainant alleged that the forest employee entered his house without permission and asked him to stop some wood work that was going on in his house and when he refused to do so forcibly carried away all the timber that was there and also some 'Kadvi' meant for the cattle in his house. The accused pleaded that he was a Government servant and the offences said to have been committed by him happened to be in the discharge of his official duties and therefore the case could not go on unless the requisite sanction required by Section 201, Hyderabad Criminal Procedure Code: Section 197, Indian Criminal Procedure Code was obtained.
The lower Court dismissed the complaints holding that the pre-requisite of a sanction by the competent authority for the complaint had not been obtained in this case and that therefore the case could not proceed. He, therefore, discharged the accused. It is against this order that the complainant has come up in revision before us. Notice was issued to the accused and as he was not present and nobody represented him we appointed Mr. Syed Akbar Mehdi, Vakil, as 'Amicus-curiae' to argue the case on behalf of the accused. We heard the arguments of the Vakil for the complainant and that of the 'Amicus-curiae.'
2. It has to be mentioned that the Indian Criminal Procedure Code has been applied to Hyderabad. The question arises as to whether the provisions of the Indian Criminal P.C. which is the Code now applicable would apply or whether the Hyderabad Criminal P.C. which was in force at the time when the complaint was filed would govern this case. So far as any law relating to procedure is concerned it is only that procedural law which is extant at the time when the case is decided that would apply. Can the right to pet the complaint thrown out for want of sanction be regarded as a right vested in the accused or is it only a procedural law. So far as this point is concerned I am of opinion that this is only a procedural law because the non-obtaining of the sanction at the time when the complaint is filed would not debar the complainant from renewing his complaint after obtaining the requisite sanction, as such this provision is only in the nature of a procedural law and there fore Section 197 of the Indian Criminal P. C. would apply.
3. Section 197 says, that when any public servant who is not removable from his office except with the sanction of 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, the Court would not take cognizance of such offence unless the previous sanction of the person who is authorised to remove him from the office is obtained. There is no dispute about this that the previous sanction of the competent authority had not been obtained in this case. The object of this section is primarily to guard against fictitious proceedings against public servants and before ever such criminal proceedings are launched against public servants it has been considered proper that the well considered opinion of a superior authority is obtained.
It is not in all cases of offences committed by public servants that such a sanction is necessary. Emphasis is on the words in the section 'while acting or purporting to act in the discharge of his duty'. Therefore in so far as the offences mentioned in this case are concerned two of the offences would certainly go out of the purview of this section. They can not be regarded as offences committed in the discharge of one's duty. They are (i) insult and (ii) assault. The allegation of the complainant is that he used foul language and thus insulted him. As regards this an insult could not be said to have been committed in the discharge of one's duty. That certainly is excluded. Similarly a person cannot be said to have assaulted another person while in the discharge of his duty or purporting to act as a Government servant. Just as it was observed by Varadachariar J. in the case of Horiram Singh v. Emperor 1939 FCR 159:
If a medical officer while on duty in the hospital is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person it is difficult to believe that it was the intention of the Legislature that he could not be prosecuted for such offences except with the previous sanction of the local Government.
Likewise it would be preposterous to urge that the foul language that the accused used in trying to forcibly take away the timber, thereby insulting him required the sanction of the higher authority for prosecuting him for insult. This judgment of the Federal Court in the above case was approved by their Lordships of the Privy Council and these observations of Varadachariar J,. were referred to with approval by 7 their Lordships of the Privy Council in the case of H.H.B. Gill v. The King AIR 1948 PC 128. The test in such cases is that, the set should not be in derogation of official duties. It must He within the scope of his duty. Then alone could it be said that the act had been done when he was purporting to discharge his official duties. While discharging his official duties if he exceeds the authority vested in him, then also the provisions of Section 197 would come into operation because he would be deemed to be discharging his official duty and while so doing he overstepped the exact boundaries of his duty. Applying the above test to the two charges against the accused in this case, I am of opinion, that in so far as the charge relating to insult and the charge as regards the theft of 'Kadvi' and the charge relating to assault are concerned, no sanction is necessary.
4. It was argued by the learned advocate for the petitioner that the accused was not authorised to enter the precincts of a house to discharge his duties, therefore, the act could not be regarded as one done in the discharge of his duties. In this connection he invited our attention to the rules that had been framed under the Forest Act. The rules relating to the possession of timber, namely, produce of the Reserve Forest show that no person shall have in his possession without a permit any produce of the forest within 5 miles range of the Reserve Forest, It was urged by Mr. Akhar Mehdi that the Forest Officer was competent to enter the house if he had information that the complainant had in his possession timber without the requisite permit.
Even in a case where the Forest Officer has information to the fact that a particular person had in his possession timber without permit such officer cannot enter the house of the particular individual without a search warrant from the Magistrate. In all such cases before ever the Forest Officer could enter the house of any suspected person, it is essential that he should have with him a search warrant given to him by a Magistrate under the provisions of Section 96 of the Criminal P.C. It is not clear whether this Officer had such a warrant with him. It he did not then his entering the house of the complainant would be unlawful and would not be regarded as an act done in the discharge of his duty. If it was not an act done in the discharge of his duty the protection afforded to him by Section 197. Indian Criminal P.C., would not apply to him. The result of this discussion is that so far as the charges of insult, assault and theft of 'kadvi' are concerned for the reason that those acts cannot be regarded as having been committed in the discharge of his duty, do not require sanction and as regards the offence of criminal trespass and the theft of the timber from the house, I am of opinion that no sanction is necessary for these offences either because according to the Forest Act and the rules made thereunder the entering the house of a person and taking away timber on the ground that there was no permit for the timber is one beyond the scope of the authority of the Forest Officer; therefore, no sanction is necessary.
5. For the above reasons I am of opinion that, this revision should he allowed and the case sent back to the trial Court for trial on merits. Case is remanded to the trial Court.
Khaliluzzaman Siddiqui, J.
6. I am not in agreement with my learned brother that the Indian Criminal Procedure Code now in force applied to this case. In fact when this complaint was made before the Magistrate the Hyderabad Criminal Procedure Code was in force and in my opinion as the provisions of Section 201, Hyderabad Criminal Procedure Code affect the competence of the Court to hear a complaint, the law applicable to the case at the time will apply. Moreover, the question before us now is whether the order passed by the lower Court is to be confirmed or, it must be set aside. That order would certainly depend on the law in force at the time. As to what will or will not be the consequences of that order if another complaint is preferred now, cannot be considered to affect the applicability of particular provisions. For these reasons the Hyderabad Criminal Procedure Code is applicable to this case.
7. However, I agree in the result for this reason that so far as the provisions of both the laws are concerned (to the extent of the problem involved here) are identical. The reasoning of my learned brother with regard to the merits of the application are equally applicable whether the old law is applicable or the new one. I, therefore, agree with my learned brother in. the result.