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Syed Jaferuklah Jaferi Vs. Abdul Aziz and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 903 of 1967 and Criminal Revn. Petn. No. 786 of 1967
Judge
Reported inAIR1970AP13; 1970CriLJ26
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 197; Wakfs Act, 1954 - Sections 65; Indian Penal Code (IPC), 1860 - Sections 295A, 341, 426, 448 and 454
AppellantSyed Jaferuklah Jaferi
RespondentAbdul Aziz and ors.
Appellant AdvocatePeri Subbarao, Adv.;Public Prosecutor
Respondent AdvocateMohammed Rasheed Ahmed, Adv.
Excerpt:
criminal - maintainability of complaint - sections 159 and 197 of criminal procedure code, 1898, section 65 of wakfs act, 1954 and sections 295a, 341, 426, 448 and 454 of indian penal code, 1860 - complaint against respondents for offences under sections 295-a, 341, 426, 448 and 454 - whether respondents protected by section 65 and prior sanction of state government necessary - there should be nexus between acts and duties enjoined by statue - held, neither section 65 puts bar on prosecution of respondents nor prior sanction under section 197 necessary. - - - 65. no suit or other legal proceeding shall lie against the board or the commissioner or any other person duly appointed under this at in respect of anything which is in good faith done or intended to be done under this act. in.....chinnappa reddy, j. 1. this case has been placed before us to consider whether crl. r. c. no. 441 of 1964 (ap) was rightly decided by a learned single judge of this court.2. the facts of the present case are as follows:the petitioner filed a complaint before the 8th city magistrate against respondents 2 to 8 for alleged offences under sections 448, 454, 341, 295-a and 426, i. p. c. and against respondent no. 1 for abetment of those offences. the first respondent is the secretary of the wakf board, appointed by the state government under the provisions of section 21 of the wakfs act , 1954. the wakf board is a body corporate having perpetual succession and a common seal, established by the state government under section 9 of the wakfs act. respondents 2 to 5 are stated to be employees of.....
Judgment:

Chinnappa Reddy, J.

1. This case has been placed before us to consider whether Crl. R. C. No. 441 of 1964 (AP) was rightly decided by a learned Single Judge of this Court.

2. The facts of the present case are as follows:

The petitioner filed a complaint before the 8th City Magistrate against respondents 2 to 8 for alleged offences under Sections 448, 454, 341, 295-A and 426, I. P. C. and against respondent No. 1 for abetment of those offences. The first respondent is the Secretary of the Wakf Board, appointed by the State Government under the provisions of Section 21 of the Wakfs Act , 1954. The Wakf Board is a body corporate having perpetual succession and a common seal, established by the State Government under Section 9 of the Wakfs Act. Respondents 2 to 5 are stated to be employees of the Wakf Board while respondents 6 to 8 are not stated to have any official status. it is alleged in the complaint that under the instruction of respondent 1, respondents 2 to 8 invaded premises No. 17-2-940, Rain Bazar Hyderabad in the possession of the complainant and belonging to this ward M. Zaman Mohammed. The premises houses the private library of late Hanamuz Zaman Mohamed ancestor of M. Zaman Mohamad in one of its rooms. The library contains many ancient and valuable manuscripts and books. It is the property of M. Zaman Mohammed.

On 30-7-1966, when the complainant was absent from the premises, respondents 2 to 8 despite the protests and in violation of the privacy of the pardanashin women folk in the premises, entered the premises, broke open the locks on the doors of the library, put their own locks and departed. The complainant arrived on the scene towards the lend but was helpless.

He reported to the police but without avail. It is stated in the complaint that the Wakf Board has no executive powers and cannot evict persons from any premises without the due process of law. it is also alleged in the complaint that the Wakf Board is inimically disposed towards the complainant because he has filed a suit O. P. No. 97/1966 in the Court of the 1st Additional chief Judge, City Civil Court, Hyderabad, in respect of this very property against the first respondent and others. It is further alleged in the complaint that the actions of the first respondent are actuated by malice against the complainant.

3. The respondents after appearing before the learned magistrate raised a preliminary objection that the complaint was not maintainable for want of requisite sanction under Section 197 Crl. P. C. and also because Section 65 of the wakfs Act, 1954 barred the prosecution. Upholding the objection, the learned Magistrate purported to dismiss the complaint and on revision petition filed by the complainant, the Principal Sessions Judge confirmed the order. Both the learned Magistrate and learned Sessions Judge followed an unreported judgment of a learned single Judge of this Court in Crl. R. C. No. 441 of 1964 decided on 12-8-1964. The complainant has filed the present revision against the orders of the learned Magistrate and the learned Sessions Judge and it is contended on his behalf that Crl. R. C. 441 of 1964 was wrongly decided.

4. Section 197(1) Criminal Procedure Code is as follows:-

'197(1) when any person who is judge within the meaning of Section 19 of the Indian Penal Code (45 of 1860) 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 cognizance of such offence except with the previous sanction:-

(a) in the case of a person employed in connection with 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.'

5. Section 65 of the Wakfs Act is as follows:-

'65. No suit or other legal proceeding shall lie against the Board or the commissioner or any other person duly appointed under this At in respect of anything which is in good faith done or intended to be done under this Act.'

6. it may be mentioned at the outset that, respondents 6 to 8 are not public servants or persons appointed under the Wakfs Aft and they cannot therefore, claim the protection of either Section 197 Cr. P. C. or Section 65 of the Wakfs Act. Again respondents 2 to 5 are not public servants not removable from office save with the sanction of the Government and hence Section 197 Cr. P. C. is not applicable to them. The question therefore, is whether respondents 1 to 5 are protected by Section 65 of the Wakfs Act and whether in the case of respondent 1, sanction of the State Government is necessary.

7. The object of Section 197 Cr. P. C. and similar provisions in other statues is to protect public servants and persons acting under statutory powers against unnecessary harassment. A reference to the provisions of various enactment's such as Section 197 of the Criminal Procedure Code, Section 293 of the Indian Income Tax Act, 1961, Section 34 of the Drugs Act 1940, Section 117 of the Factories Act, Section 82(I) of the Indian Railways Act, Section 14 of the Mines and Minerals (Regulation and Development) Act 1948, Section 15 of the Preventive Detention Act 1950, Section 37 of the Industrial Disputes Act, 1947, Section 198 of the Sea Customs Act of 1878, Section 33 of the Arms Act, Section 42 of the Police Act, Section 53 of the Madras District Police Act, Section 22 of the Prevention of Feed Adulteration Act etc., shows that these provisions offers two kinds of protection to persons exercising statutory or official powers, absolute or limited.

In the case of some enactment's the protection is absolute, that is to say, no proceeding can at all be instituted against person exercising powers under some statues, but in such cases the Legislature has invariable taken care to insist that the protected act should have been done in good faith. The protection given by Section 65 of the Wakfs Act is of this category. In some statutes the protection is not absolute but limited; in some it is limited in the sense that a short period of limitation is prescribed so that no officer need be in perpetual dread of some ghost rising from the distant past; in koshers it is limited by making the sanction of a prescribed authority a condition precedent to the launching of a prosecution. The protection given by Section 197 of Cr. P. C. is of the category.

8. It may be noticed that the phraseology used in Section 197 of the Cr. P. C. and Section 65 of the Wakfs Act is different. under Section 197 of the Cr. P. C. sanction of the Government is necessary if a public servant nor removable from office save by the 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. under Section 65 of the Wakfs Act a person appointed under the Act is protected in respect of anything which is in good faith done or intended to be done under the Act. The difference in phraseology of the expressions 'any offence alleged to have been committed while acting or purporting to act in the discharge of his official duty' and 'anything done or intended to be done under the Act' is not of any great significance. As pointed out by the privy Council in H. H. B. Gill v. the King AIR 1948 PC 128 a temporal meaning should not be given to such expressions and if such a meaning is not given the expressions have precisely the same connotation at least in so far as acts done by persons appointed under the provisions of the Wakfs Act.

9. Cases under Section 197 of the Criminal procedure Code are legion. To mention a few leading cases they are: Hori Ram Singh v. Emperor, AIR 1939 FC 43, AIR 1948 PC 128 S. Ramayya Munipalli v. State of Bombay, : 1955CriLJ857 , Amrik Singh v. State of Pepsu, : 1955CriLJ865 and Matajog Dobey v. H. C. Bhari, : [1955]28ITR941(SC) .

10. In Hori Ram Singh's case, Air 1939 FC 43 Varadachariar, J. with whom Sir Morris Gwyer C. J, observed as follows:-

' It does not seem to me necessary to review in detail the decision given under Section 197 Cr. P. C. which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases, it is insisted that 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 another group, more stress has been laid on the circumstance that, the official character or status of the accused gave him the opportunity to commit the offense. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at time when the accused was engaged in his official duty that the alleged offence was said to have been committed. The use of the expression 'while acting' in Section 197 Cr. P. C. has been held to lend some support to this view. While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test.'

Referring to Hori Ram Singh's case, AIR 1939 FC 43 the Privy Council in, Air 1948 PC 128 observed:

'In the consideration of Section 197 much assistance is to be derived from the Judgment of the Federal Court in 1939 FCR 159: AIR 1939 FC 43, and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measures of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to 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 my be such an act. The test may well be whether the public servant, if challenged, can reasonable claim that what he does he does in virtue of his office.'

In the case of : 1955CriLJ857 their Lordships of the Supreme Court did not lay down any principle though Section 197 was discussed at length with reference to the facts of that case, Bose j., finally observing:

'There are cases and cases and each must be decided on its own facts.'

In : 1955CriLJ865 Venkatarama Ayyar J. summed up the authorities in the following words:-

'It is knot every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Cr. P. C. nor even every act done by him while he is actually engaged 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 matter of defence of the merits, which would have to be investigated at the trial, and could not arise at the state of the grant of sanction, which must precede the institution of the prosecution.'

Later he again observed:-

'If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable form them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required'.

In : [1955]28ITR941(SC) , Chandrasekhara Aiyar J. laid down the following test:

'There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds that is strictly necessary for the discharge of the duty, 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 interrelated that one can postulate reasonable that it was done by the accused in the performance of the official duty, though possible in excess of the needs and requirements of the situation. There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but no a pretended or fanciful claim, that he did it in the course of the performance of his duty.'

In order, therefore, to insist upon sanction under Section 197 of the Criminal Procedure Code in the word of Vardachariar J. 'there must be something in the nature of the act complained of that attaches it to official character of the person doing it,' in the words of Lords Simonds, 'the act must be such as to lie within the scope of his official duty'' in the words of Venkatarama Ayyar J., :the act complained of must be integrally concerned with his official duties'' and in the words of Chandrasekhara Aiyar, J., there must be a reasonable connection between the act and the official duty.

11. In Virupaxappa Veerappa v. State of Mysore, : AIR1963SC849 the Supreme Court considered Section 161 o the Bombay Police Act which prescribed a period of six months as the period within which a prosecution may be launched against a Police Officer for an act done under colour or in excess of his duty or authority. Construing the words 'colour of office'' their Lordships observed as follows:

'the expression 'under colour of something' or 'under colour of duty'' or 'under colour of office' is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under colour of making collection for a charity. Whether or not when the act bears the true colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right. It is reasonable to think that the Legislature used the colour' in Section 161(1) to include this sense.

It appears to us that the words 'under colour of duty' have been used in Section 16(1) to include acts done under the cloak of duty, even though not by virtue of the duty.'

12. In State of Andhra Pradesh v. Venugopal, : [1964]3SCR742 the Supreme Court had occasion to consider Section 53 of the Madras District police Act which provided that all actions and prosecutions against any persons, which any be lawfully brought for having done or intended to be done under the provisions of that Act or under the provision of any other law conferring powers on the police should be brought within three months of the act complained of. They observed:

'It is easy to see that if the act complained of is wholly justified by law, it would not amount to an offence at all in view of the provisions of Section 79 of the Indian Penal Code. Many cases may however arise where in acting under the provisions of the Police Act or other law conferring powers on the Police, the police officer or some other persons may go beyond what is strictly justified in law. Though Section 79 of the Indian Penal Code will have no application to such cases, Section 53 of the Police Act, will apply. But Section 53 applies to only a limited class of persons. So, it becomes the task of the Court, whenever any question whether this section applies or not arises to bestow particular care on its decision. In doing this it has to ascertain first what act is complained of and then to examine if there is any provision of the Police Act or other law conferring powers on the Police under which it may be said to have been done or intended to be done. The Court has to remember in this connection that an act is not 'under' a provision of law merely because the point of time at which it is done coincides with the point of time when some act is done in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to any that an act is done 'under' a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done 'under the particular provision of law.'

13. In addition to these cases there is one other decision of the Privy Council to which I would like to refer though it is not in point. Construing the words 'assessment made under the Act' occurring in Section 67 of the Indian Income Tax Act 1922 in Raleigh Investment Co. Ltd. v. governor-General in Council, (1947) 2 Mad LJ 16 = (AIR 1947 PC 78) their Lordships observed:-

'The obvious meaning, and in their Lordships' opinion the correct meaning, of the phrase 'assessment finding its origin in an activity of the assessing Officer acting as such. ................. the phrase describes the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test.'

14. A study of decided cases shows that Sec. 197 of the Criminal procedure Code and Provisions like Section 65 of the Wakfs Act protect two classes of acts: (1) Where the act complained of is the very act which he is expected or authorised to do under the statute or the law but which becomes reprehensible because it is alleged to be done fraudulently or dishonestly, i.e., where the machinery of the Act is employed to do an authorised act in an unauthorised manner or for an unauthorised purposes, (2)where the act complained of though not itself sanctioned by statue or enjoined by his official duty is, however, so intimately and integrally connected with his official or statutory duty that it can be said to have been done in furtherance of the duty prescribed by statue or for achieving the object enjoined by his duty. There must be a reasonable nexus between the act and the duty.

15. A few illustration will help to understand the position clearly. The delivery of an alleged dishonest judgment by a Judge, the making of alleged false entries in accounts by an accountant are instances of the first category of acts because the writing of a judgment is itself the official duty of a judge and the writing of accounts if the official duty of an accountant. The use of reasonable force by a police officer effecting an arrest, the removal of an obstruction to a lawful search etc., are illustration of the second category of acts because the use of reasonable force is reasonable connected with the effecting of an arrest and the removal of an obstruction with a lawful search. The receipt of a bribe by a Judge for delivering a dishonest judgment does not come within either of the categories because, while writing a judgment is his official duty, receipt of a bribe is not; nor is there any reasonable connection between the receipt of the bribe and the writing of the judgment. his position as a judge and his official duty to write a judgment merely provide him with the opportunity to commit the offence of receiving a bribe.

Again, a police officer causing injuries to an accused person with a view to extort a confession from him does not come within either of the categories. While it is the duty of a police officer to investigate into an offence it is not part of his duty to extort a confession; nor can it be said that the extortion of a confession is reasonable connected with the duty of a police officer to investigate. Similarly, while an Income-tax officer has the right to make orders of assessment, issue demand notices, and to initiate recovery proceedings by issuing certificates under Section 222 of the Income-Tax Act of 1961, he cannot claim the protection of Section 197 if he trespasses into the premises of an assessee and seizes the cash from the till in order to appropriate it towards arrears of tax due from the assessee. he cannot claim protection notwithstanding the fact that the act is done by him in his official capacity only. That is because his act is neither authorised by the Income-Tax Act nor is there any nexus between his act and his statutory duties.

15A. In the light of the foregoing discussion we will now proceed to examine whether the acts of the respondents are protected by Section 65 of the Wakfs Act and whether sanction under Section 197 of the Criminal Procedure Code is necessary in the case of the 1st respondent. The wakfs Act is an Act intended to provide for the better administration and supervision of Wakfs. Section 4 casts a duty on the Commissioner of Wakfs to make a survey of wakf properties in the State and to submit a report to the government and to the Wakf Board. The Board after examining the report is authorised to publish a list of Wakfs existing in the State. Section 6 provides for the institution of a suit on a Civil Court by the Board, a mutawallil of a wakf or any person interested in the Wakf, if any question arises whether particular property is Wakf property or not. Section 15 enumerates the functions of the Wakf Board among which clauses (h) and (I) relate to taking measures for the recovery of lost properties of any wakf and institution and defence of suits and proceedings in a court of law relating to Wakfs.

Section 27 authorises the Wakf Board to collect information regarding any property which it has reason to believe to be Wakf property and if any question arises whether it is wakf property or not to decide such question after making enquiry. The decision of the Board is subject to the decision of a Civil Court of competent jurisdiction. Section 36 prescribes the duties of a mutawallli and Section 36-A prohibits transfer of immoveable property of a Wakf without the previous sanction of the Board. Where Wakf property is transferred without the sanction of the Board, Sec. 36-B enables the Board to send a to the Collector to obtain and deliver possession of the property to the Board. The Collector may do so by making an order calling upon the party in possession to deliver possession. Such a party is given a right to prefer an appeal to the District Court against the order of the Collector directing delivery of possession.

16. Apart from Section 36-B which deals with wakf property alienated by a mutawallli without sanction of the Board, there is no provision in the Wakfs Act which enables the Walf Board to recover possession of alleged wakf property in some other's possession without recourse to legal process. Even Section 36-B does not enable the Board to get such possession itself but enables it to move the Collector to obtain and deliver possession to it. Section 36-B prescribes how the Collector may obtain possession and deliver it to the Board. What is of importance is that the party in possession given a right to appeal to the District Court against the order of the Collector directing delivery of possession. In the case of properties not covered by Section 36-B, the Board, like all other persons must seek the aid of legal process to recover possession. The learned counsel for respondents urges that clause (h) of Section 15 enables the Board to recover possession of Wakf properties directly without recourse to legal process.

The function of the Board under clause (h) is to take measures for the recovery of lost properties of a wakf that is, by legal process and not by taking the law into its hands. We are unable to conceive of any statutory body-corporate being vested with a power directly to take possession of property in the possession of strangers on the bare allegation that the property is one which ought to be in the custody of that body, without even the issue of a prior notice. Such a power would be a drastic curtailment of a citizen's rights. Even under the Land Encroachment Act and Public Premises (Eviction of Unauthorised Occupants) Act, persons in unlawful possession cannot be ejected summarily. Notice has to be given and the prescribed procedure has to be followed. We have no hesitation to hold that the Wakf Board is knot invested under the Wakfs Act with power to take possession of property in the possession of another by direct action without recourse to legal process. We are further unable to hold that there is any reasonable nexus between the duty to take measures to recover lost properties and the alleged acts of the respondents of which complaint is made.

17. Both the lower Courts have followed the Judgment of a learned single Judge of this Court in Criminal Revn. Case No. 441 of 1964 (AP). In that case the allegation was that the accused, the Secretary and Inspector of the Wakf Board conspired to have the hut of the complainant dismantled with the help of the Municipality. They were alleged to have done that because the complainant who had taken the plot on which the jut stood on lease from the Wakf Board, failed to vacate the land when asked to do so by the Wakf Board. The learned single Judge held:

'Having regard to the nature of the complaint and the allegations continued therein, it is obvious that the petitioners had committed the offence, if any, while acting or purporting to act in the discharge of their official duties.'

We think the learned Judge was not right in his conclusion. the learned Judge appears to have thought the fact that the accused were acting in their official capacity when they were alleged to have committed the offences was sufficient to attract Section 197 of the Criminal Procedure Code. We have explained that it is not so. The acts complained of should themselves be authorised by statute or there should be a reasonable nexus between the acts and the duties enjoined by statute. This aspect was not considered by the learned Judge. We think that Criminal Revn. Case No. 441 of 1964 (AP) was wrongly decided. We therefore hold that in the present case Section 65 of the Wakfs Act is not a bar to the prosecution of any of the respondents; nor is sanction under Section 197 of the Criminal Procedure Code necessary for the prosecution of any of the respondents.

18. Before parting with the case we would like to emphasise that Courts should not be too ready to throw out complaints in limine and without any enquiry on the ground of want of sanction etc. Often times the question whether sanction is necessary or not, dependent as it is on the nature of the act and the nature of the accused's official duty, is knot a pure question of law but a mixed question of law and fact which can only be decided after the adduction of some evidence. Further, we do not see how questions of 'good faith' can possible be decided without evidence being adduced.

19. In the result the orders of the learned Magistrate and the Sessions Judge are set aside. the Magistrate is directed to entertain the complaint against all the accused and proceed in accordance with law.

20. Petition allowed.


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