1. This criminal revision petition was referred by me for decision by a Full Bench. The order o reference is as* follows:
The complainant in C.C. No. 2 of 1951 on the file of the First Class Magistrate, Ponkunnam has preferred this revision against the order dismissing the complaint. Four persons were sought to be proceeded against in that complaint, one a Sub-Inspector of Police, another a Head Constable, the third a Constable and the fourth a private individual on the ground that all the four be laboured the complainant while he, was being taken to the Police station after he was arrested in connection with a crime which was being investigated by accused 1, the Sub-Inspector. The complaint discloses commission of offences punishable under Sections 323 and 324, I.P.C. The ground mentioned for dismissing the complaint is that the complaint was bad in law in that the complainant had not obtained the sanction of the Government under Section 197(1), Criminal P.C. (Travancore Section 194(1)) to institute the complaint against accused 1 who was not removable from service save by or with the-sanction of the Government. The complainant moved a revision application against that order before the District Magistrate, Kottayam, but that was dismissed on the ground that the District Magistrate was incompetent to interfere; with an order dismissing a complaint. The District Magistrate was, however, of opinion that the Magistrate's order was unsustainable in law. As pointed out by the learned District Magistrate there is not even the show of a justification for dismissing the complaint as against accused 2 to 4. Further the question whether any sanction was needed under Section 197(1) is not free from doubt. There is divergence of judicial opinion on the point. Much will no doubt depend on the circumstances, but the document of complaint is their sole repository. Two recent orders of a learned single Judge of this Court - Appu Keshavan v. V.G. Parameswaran Nair Cri. R.P. No. 297 of 1950 (Trav) (A) and 'Cri. R. P. No. 149 of 1951 (Trav.) (B) held that sanction is a necessary pre-requisite. I consider it desirable that there should be an authoritative pronouncement on the question by this Court and accordingly direct this revision to be placed for decision by a Full Bench.
The above order indicates that the dismissal of the complaint as against accused 2 to 4 was clearly wrong. The learned Public Prosecutor appearing on behalf of the State did not dispute the proposition. He, however, maintained that the dismissal was right as against accused 1. To appreciate that argument reference has to be made to the full details of the complaint.
2. The referring order mentions only the causing of hurt to the complainant while ha was being taken to the Police station from the place where he was arrested. The complaint states that after the arrest and before he was made to get into the motor vehicle which took the complainant and the police party to the Police Station, all the four accused persons beat the complainant on the public road and that violence was used against him even while the vehicle was moving. It is further stated in the complaint that after the complainant was taken to the police station on the evening of that day at about 4-30 p.m. accused 2 and 3 Inflicted injuries on him. Yet another chapter of the occurrence complained of is that during the night that followed, accused 1 and 3 with the assistance of two police constables who are not sought to be proceeded against subjected the complainant to severe torture.
3. The Public Prosecutor contended that in case the original assault on the road by accused 1 could not be taken cognizance of by a court unless Government sanctioned the initiation of proceeding as required by Section 197(1), the privilege of immunity from prosecution without sanction will extend also to the acts accused 1 did against the complainant during the night. We are afraid there is absolutely no warrant for the contention. Assuming that the incident complained of as having taken place on the road after arrest could not be taken cognizance of by a criminal court without sanction it is impossible to bring the last chapter of the incident viz., what is alleged to have taken place during the night within the inhibition of the section. As the sequel will deal with or refer to decided cases directly dealing with that question, without more ado I straightway hold that accused 1 is liable to be proceeded against in respect of that part of the complaint without any sanction under Section 197, Criminal P.C.
4. The debatable point, therefore, is only whether the complaint against accused 1 for alleged violence caused by him to the complainant on the public road and during the motor journey to the police station could be entertained by a criminal court without the sanction mentioned in Section 197. Whatever view might be taken on this aspect the Magistrate's order dismissing the complaint as against accused 2 to 4 in respect of all the acts alleged against them and against accused regarding what he is alleged to have done during the night has to be vacated.
5. The material question for consideration, therefore, is whether the Magistrate was right in dismissing the complaint for want of sanction with respect to the acts alleged to have been done by accused 1 on the public road and during the journey. Section 194(1) of the Trav. Criminal P.C. is the relevant provision applicable to the case. It is substantially in the same terms as Section 197(1) of the Indian Criminal P.C. and reads:
When any person who is a Judge within the meaning of Section 13 of the Travancore Penal Code or when any Magistrate or public servant who is not removable from his office save by or with the sanction of our Government, is accused of any offences 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 Our Government.
It is common ground that accused 1 could not be removed from his office save by or with the sanction of the Government. Much legal subtlety has been expended by various High Courts in India about the true construction of Section 197(1), Criminal P.C. Before us opposing counsel vied with each other in inviting our attention to a large number of decided cases on the point. In view of certain very authoritative pronouncements on the subject by the Judicial Committee of the Privy Council and by the Federal Court of India I shall not however attempt to overburden this order by referring to all the cases cited at the Bar. As far as possible I shall try to content myself by referring to the decisions of the Privy Council and the Federal Court.
6. In the cases before the Federal Court it was mostly Section 270, Government of India Act, 1935 that came up for construction. The question whether the words 'any act done or purporting to be done in the execution of his duty as a servant of the Crown' occurring in Sub-section (1) of that section and the words 'while acting or purporting to act in the discharge of his official duty' occurring in Section 197(1) bore the same connotation was virtually left open in the decisions of the Federal Court. That doubt has however been set at rest by the pronouncement of the Judicial Committee in - H.H.B. Gill v. The King AIR 1948 P C 128 (C). What Lord Simonds, the present Lord High Chancellor of Great Britain, said in that case is, if I may say so with respect, well worth re-production here. The Lord Chancellor has also indicated in that case the test to be applied to judge whether a given act has been committed by a public servant while acting or purporting to act in the discharge of his official duty. The relevant portion of the judgment occurs in paragraph 30 at page 133 of the report and it is as follows:
In the first place their Lordships find it impossible at least in relation to an offence of this character (Criminal conspiracy and receipt of illegal gratification by a public servant) to distinguish between Section 270 and Section 197. The words in Section 270 'in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown' appear to them to have precisely the same connotation as the words in Section 197(1} 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.' It is idle to speculate why a change of language was made. But, if a temporal meaning is not given, as in their Lordships' view it clearly should not be given, to the words in Section 197 'while acting, etc.,' it is, in their opinion impossible to differentiate between the two sections. In the consideration of Section 197 much assistance is to be derived from the judgment of the Federal Court in - Hori Ram Singh v. Emperor AIR 1939 F C 43 (D) 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 measure 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 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 ft 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. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited think it sufficient to say that in their opinion no sanction under Section 197, Criminal P.C. was needed.
(Italics (here in '') mine).
This case no doubt related to charges of bribery, cheating, conspiracy etc. His Lordship's observations are however general and the test laid down must apply to all cases of crimes committed by public servants to whom Section 197, Cr.P.C. or Section 270, Government of India Act, 1935 applied.
7. The Judicial Committee followed this decision in two later cases. They are - 'Albert West Meads v. The King AIR 1948 P C 156 (E) and - Lumbhardar Zutshi v. The King AIR 1950 P C 26 (F). The members of the Board who gave the decision in 'Mead's case (E)' were the same as those that decided 'Gill's case (C)' and Lord Morton of Henryton who rendered the judgment of the Board has quoted in his judgment not only paragraph 30 which I have quoted here but also the preceding paragraph. In the latter case 'Gill's case (C)' was referred to and followed.
8. It is by the test laid down in these cases that the alleged conduct of accused 1 towards the complainant in the case on hand has to be judged to decide whether sanction under Section 197 is a necessary pre-requisite for the initiation of criminal proceedings against him. Can accused 1 in this case be heard to say that what violence he is alleged to have caused with his own hand or the alleged abetment by him of the causing of violence by others was done in. virtue of his office? To me it appears there is absolutely no warrant for the view that those acts were done in virtue of his office.
9. In applying the test certain preliminary facts may with advantage be borne in mind. If I may say so with respect we get the best elucidation of those facts in AIR 1939 F C 43 (D) referred to by Lord Simonds in His Lordship's judgment in 'Gill's case (C)' Varadachariar, J. with whose judgment Gwyer C.J. concurred has said as follows at page 55 of the report:
As the consent of the Governor, provided for in that Section (Section 270(1), Government of India Act, 1935) is a condition precedent to the institution of proceedings against a public servant, the necessity for such consent cannot be made to depend upon the case which the accused or the defendant may put forward after the proceedings had bee n instituted, but must be determined with reference to the nature of the allegations made against the public servant, in the suit or criminal proceeding. If these allegations cannot be held to relate to 'any act done or purporting to be done in the execution of his duty' by ' the defendant or the accused 'as a servant, of the Crown' the consent of the authorities would prima facie, not be necessary for the institution of the proceedings. If, in the course of the trial, all that could be proved should be found to relate only to what he did or purported to do 'in the execution of his duty', the proceedings would fail on the merits, unless the court was satisfied that the acts complained of were not done in good, faith; Section 270(2). Even otherwise, the proceedings would fail for want of the consent of the Governor, if the evidence established only official acts.
Again at page 56 of the report in dealing with the arguments urged on the one side or the other as to the test to be applied in determining whether or not the act complained of is one 'purporting to be done in the execution of his duty' as a public servant the learned Judge expressed himself thus:
I would observe at the outset that the question is substantially one of fact to be determined with reference to tile act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests. For instance it was said in - Abdul Hadi v. D.P. Mishra AIR 1935 Nag 52 (G) that 'we are not concerned with the act itself so much as the capacity in which the act is performed'. An observation of that kind does not seem to be very helpful and may even prove misleading. Again, expressions like 'cloak of office' and 'professed exercise of office' may correctly fit in with certain cases, but they may not always be appropriate to describe or delimit the scope of the section. The question does not seem to have arisen for decision under Section 270(1) Constitution Act; we were accordingly referred by way of analogy to a number of rulings under Section 197, Criminal P.C. and one or two decisions under Section 80, Civil P.C. The judgment in - Rai Mahal Panday v. Maung Po Sein AIR 1938 Rang 189 (H) dealt with a provision corresponding, to Sub-section (2) of Section 270 and throws no light on the present question.
The reported decisions on the application of section 197, Criminal P.C. are not by any means uniform. In most of them, the actual conclusion will probably be found to be unexceptionable, in view of the facts of each case; but, in some, the test has been laid down in terms which it is difficult to accept as exhaustive or correct. Much the same may be said even of decisions pronounced in England, on the language of similar statutory provisions; see observations in - Booth v. Clive (1851) 10 C B 827 (I). It does not seem to me necessary to review in detail the decisions given under Section 197, Criminal 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 re Abdul Khadir AIR 1917 Mad 344 (J); - Raja Rao v. Ramaswamy AIR 1927 Mad 566 (K); - Amanat Ali v. Emperor AIR 1929 Cal 724 (L); - Emperor v. Maung Bo Maung AIR 1935 Rang 263 (FB) (M); and - Gurushidayya Shantivirayya v. Emperor AIR 1939 Bom 63 (N). In another group more stress has been laid on the circumstances that the official character or status of the accused gave him the opportunity to commit the offence. It seems to be 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 a time when the accused was engaged in his official duty that the alleged offence was said to have been committed; see - Gangaraju v. Venki A.I.R. 1929 Mad. 659 at page 660 (O), quoting from Mitra's Commentary on the Criminal Procedure Code. The use of expression 'while acting' etc. in Section 197, Criminal P.C. (particularly its introduction by way of amendment in 1923) 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. To take one illustration suggested in the course of the argument, 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.
The discussion is continued on page 57 and it goes on to say:
Two reported decisions one in - Ganapathy Goundan v. Emperor AIR 1932 Mad 214 (P) under Section 197, Criminal P.C. and the other in - Dakshina Ranjan v. Omar Chand AIR 1924 Cal 145 (Q) under Section 80, Civil P.C. may be referred to as instructive, since in each of them two acts were complained of and, notwithstanding the apparent connection between the acts in the sense of relation in time or opportunity; the Court held that one of the acts was an official act but not the other. In the Madras Case, a Village Magistrate held in confinement certain persons who were suspected to have committed a murder, and also tortured them in order to extort a confession from them. He was charged for committing offences under Sections 330, 343 and 348, I.P.C. Wallace J. held that sanction to prosecute him under Section 343 and Section 348 was required under Section 197, Criminal P.C. but not for prosecuting him under Section 330. In the Calcutta case, a trader sued a police officer for recovery of two sums of money, namely Rs. 50 being damages for wrongful arrest and Rs. 75 being the amount alleged to have been extorted by the police officer from the plaintiff. As regards the second head of claim, the learned Judges were of opinion that no notice under Section 80, C.P.C. was necessary, as 'nobody could suppose that he was purporting to act in his official capacity in demanding and obtaining the sum of Rs. 75.
The cases referred to in the last paragraph quoted above clearly show that the learned Public Prosecutor's argument that assuming the first incident cannot be taken cognizance of by a Criminal Court without sanction the immunity should be extended to the last chapter of the incident also cannot stand for a moment. Assuming without deciding that the entire incident forms one and the same transaction to me it does not appear even arguable that the last chapter of the incident requires any sanction before a criminal court could take cognisance of the offence or offences committed thereat. Other cases dealing with the question will be referred to in due course.
10. The other learned Judge who took part in the decision - Hori Ram v. Emperor AIR 1939 F C 43 (D) was Sir Shah Sulaiman J. Very useful observations bearing on the question before us are to be found at p. 52 of the report and they may usefully be quoted here:
The section (Section 270, Government of India Act) is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution, of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged inv his official business at the time. For instance, if a public servant accepts as a reward a bribe in his office while actually engaged in same official work he is not accepting it even in his official capacity, much less in the execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification.
Procedure. Section 270(1) directs that no proceedings, civil or criminal shall be instituted, etc. The prohibition is against the institution itself and its applicability must, therefore, be judged in the first instance at the earliest stage of institution. 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 of the Governor in his discretion. The mere fact that the accused proposes to raise a defence of the act having purported to be, done in execution of duty would not in itself be sufficient, otherwise even a frivolous defence would prevent prosecution. The prosecution must be given a chance to prove its case. Of course, if the case as put forward fails, or the defence establishes that the act purported to be done in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground.
'Hori Ram Singh's case' (D) went up before the Privy Council in an application by the accused for leave to appeal against the decision of the Federal Court, but Their Hardships refused leave and thus set the seal of their approval to the views of the Federal Court eight years before - 'Gill's case', (C) went up before them and they expressly approved the decision. Hori Ram Singh v. Emperor AIR 1940 P C 54 (R).
11. In - H.T. Huntley v. Emperor AIR 1944 F C 66 (S) Zaffrulla Khan J. delivering the judgment of the court (Spens C.J. and Varadachariar J. were the other Judges) referred to the decision in - 'Hori Ram Singh's case' (D) with approval and said:
In - 'AIR 1939 F C 43' (D) this Court laid down that to attract the provisions of this section it was not sufficient merely to establish that the person proceeded against was a public servant and that while acting as a public servant, or taking advantage of his position as a public servant, he did certain acts; 'it must be established that the act complained of was an official act'.
The rule is then applied to the facts of that case and a portion of the judgment of Sulaiman J. quoted above is then reproduced by the learned Judge.
12. The next Federal Court decision I would refer to is - Sarjoo Pragad v. Emperor AIR 1946 F C 25 (T). Unlike the Privy Council and Federal Court decisions so far referred to which, all related to cases of bribery, breach of trust etc, this case related to a case of assault by a public servant, to wit, a Station Master at a steamer station on the O.T. Railway. The Judges who decided the case were the same as those that decided - 'Huntley's case' (S). Certain passages in the judgment of Spens C.J. delivered in that case may usefully be quoted here:
The materials with reference to which the applicability of Section 270(1) must be considered were indicated in the judgment of this Court in - 'AIR 1939 F C 43' (D). It was pointed out by Sulaiman J. that as the prohibition was against the institution itself the applicability of the section must be judged at the earliest stage of institution.
The learned Judge then proceeded to say:
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.
In the next paragraph the learned Judge applies the above test to the facts of the case before him and then concluded the discussion by Quoting the remaining passages of the judgment of Sulaiman J. quoted earlier in this order - 'that the accused proposes to raise a defence of the act having purported to be done in execution of his duty' would not in itself be sufficient to justify the case being thrown out for want of sanction.
13. The preliminary facts deducible from these decisions as having a bearing on the consideration of the question before us are that whether the acts complained of fall within the purview of Section 197 must be decided with reference to the allegation in the complaint or the police report or other information which the Magistrate may have before him as the case may be and that the Court is not expected or even entitled to anticipate the defence the public servant concerned might eventually raise that the act was done in the purported exercise of his duty. Further the prohibition being against initiation itself, its applicability must therefore be decided in the first instance at the earliest stage of the initiation. While these form the main procedural facts the point of substance insisted upon by these decisions is 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. It is not enough that the official status of the accused person gave him the opportunity to commit the offence. Nor is it enough that the act complained of happened to be committed while the accused person was engaged in his official duty. This is the pith and substance of the judgment of Varadachariar J. in - 'Hori Ram Singh's case' (D). In - 'Huntley's case' (S) Zaffrullai Khan J. made it clear that to attract the application of the section 'it must be established that the act complained of was an official act.' The learned Judge founded this opinion on the judgment of Sulaiman J. in - 'Hori Ram Singh's case' (D). The Privy Council said the same thing in - 'Gill's case' (C) when it stated that the test was whether the public servant could claim that he did the act complained of in virtue of his office.
14. If we apply these principles to the facts of the case in hand for my part I am unable to say that the alleged acts of accused 1 in belabouring the complainant on the road or causing others to belabour or inflict violence on him at that place or while they were transporting themselves to the police station in a motor vehicle could be claimed to have been done in virtue of his office. The man was in custody and the complaint does not show that self-defence or prevention of escape from custody demanded the infliction of any violence on the complainant. Much less could it be said that what is alleged to have been done at the police station in the darkness of the night was done in virtue of the office accused 1 was holding. These were rank abuses of that office and the privilege of immunity from prosecution without sanction could not be claimed in respect of them.
15. Like ideas have forcibly been given expression to by Krishnaswami Iyer C.J. and Nokes J. in the Full Bench decision in - Raghayan Pillai v. Kuriyan 34 Trav 1 J 270 (U) Krishna Pillai J. who was the other Judge who took part in the decision concurred with his colleagues. 'Hori Ram Singh's case' is referred to by the learned Chief Justice and by Nokes J. The learned Chief Justice quoted with approval the pithy words of Jackson J. in - 'AIR 1927 Mad 566' (K) that the privilege of immunity from prosecution without sanction only extends to acts which can be shown to be in discharge of official duty, or fairly purporting to be in such discharge. The learned Chief Justice observed that there was the high authority of Justice Sir Varadachariar for this view. Relevant extracts from the judgment of the learned Judge in - 'Hori Ram Singh's case' are then quoted. The case in - '34 Trav L J 270' (U) was one where a Sub-Inspector of Police caused hurt to the complainant and wrongly confined him to extort confession. The Full Bench held that while initiation of criminal proceeding with respect to the charge for wrongful confinement (Section 343, Penal Code) required sanction, offences of causing hurt to extort confession (Section 330) or wrongful confinement for purposes of extorting confession (S. 348) did not require sanction. The entire Travancore case law bearing on the subject is referred to in that case and the learned Judges say that but for the pronouncement of a Single Judge in - Karunakaran Kartha v. Krishna Pillai 31 Trav L J 467 (V) the Travancora High Court had more or less uniformly adopted the view laid down in - 'Hori Ram Singh's case' (D) and the cases Sir Varadachariar J. referred to with approval in his judgment in that case. Certain observations Krishnaswamy Iyer C.J. made in - Raghavan Pillai v. Kuriyan (V), would seem to be apposite here:
It is impossible to contend in the present case that when the complainant was suspected of having committed the offence and had been taken into custody there was any the slightest pretence of a justification by reason of alleged discharge of official duties to cause hurt of the kind and nature complained of in the present case. To resort to third degree methods even if it be to find out the truth, about an alleged offence is a thing which is prohibited for public servants and police officers. Such an act can never have anything like a relationship with the performance of the legitimate duties of a police officer. It cannot be regarded as an inadvertent or unavoidable trespass into the region of excess of justifiable authority by a police officer in the purported exercise of his functions. On the other hand the acts imputed if proved would amount to a contradiction of official duty involving the inevitable result of bringing police officers and administration into contempt. On the allegations in the complaint, which must be regarded as very serious, the charge of hurt to extort a confession or information is therefore one for which no sanction is required and the Magistrate was wrong in throwing out this complaint without any reference to this charge of hurt and confinement to extort confession.
No doubt the present complaint does not specifically state that hurt inflicted on the complainant was for extorting confession. Except for that additional circumstance, it is impossible to distinguish that case from the present one. Here the complainant does not seek to make a grievance of the fact that he was detained in custody for several days. While that is so the case falls within the rule of the decision.
16. At page 282 of the report - '34 Trav 1 J 270' (U) after stating that the essential question for consideration was whether the offences of which the police officer was accused were alleged to have been committed by him while acting or purporting to act in the discharge of his official duty Nokes J. classifies the actions of such an official into four groups. These groups are (1) legal action in the discharge of official duty, (2) Illegal actions while the accused was acting or purporting to act in the discharge of his official, duty, (3) Illegal actions while the accused was not acting or purporting to act in the discharge of his official duty, but having some connection therewith and (4) Illegal actions while the accused was not acting or purporting to act in the discharge of his official duty and having no connection therewith. The learned Judge then goes on to say that class (4) is as much outside the scope of the section as class (1). With respect to class (1) it is said that though such actions might otherwise be criminal, no prosecution will lie, and the question of sanction will not arise. As illustration of class (2) the learned Judge refers to an Inspector of Police who makes an arrest on a defective warrant, or as the result of a mistaken identity as to the person named in a valid warrant and states that unless the officer knew the true facts he was clearly purporting to act in the discharge of his official duties. Such a case would according to the learned Judge require sanction but not cases Jailing under class (3). It is further said that the fact that cases falling under class (2) may prove to be very limited is not a ground for applying the section to class (3). This view commends itself to me as indicating the true approach to the solution of the question before-us and to conform to the principles laid down by the Privy Council and Federal Court decisions.
17. Before leaving the case of - Raghavan Pillai v. Kuriyan (U) certain passages from the judgment of Nokes J. may also be quoted:.An allegation of assault on a person in custody, in the absence of any fact which might suggest that it was justifiable, as that it was committed in self-defence or to prevent the escape of the prisoner, could not appear to any reasonable man as falling within the duties of a police officer; and it is unnecessary to cite authority to show that such an assault is not within his duties. The allegation as to the purpose of the assault sought to negative in advance any possible justification therefor, to provide a motive therefor, and to aggravate the offence (sic). It was argued for the counter-petitioner that the inspector was performing his duty of investigating a cognizable offence, in pursuance of Chapter 14 of the old Code of Criminal Procedure. Such a contention, if accepted, would encourage the vilest brutality to persons in custody, and is palpably fallacious. It could not appear to any reasonable man that such actions were one of a police inspector's duties, for three reasons. First, even if the Inspector had a right to interrogate the present complainant as a witness under Section 143 of that Code, it is extremely doubtful if he had any right to ask the complainant any question tending to implicate him (compare the comment on the English 'Judges' Rules', in Archbold's Criminal Practice Ed. 13, pp. 393-401); and it is clear beyond doubt that there was no legal obligation to reply to any incriminating question, as this is expressly provided by that section; and if the complainant could be regarded as an accused person, any threat even was expressly prohibited by section 145. Secondly, if the complainant, whether regarded as a witness or an accused, or as that hybrid popularly known as a suspect, wished ' to make a confession, the inspector was impliedly prohibited by Section 146 from recording it, and a Magistrate was expressly prohibited unless it was voluntary. Thirdly, the extortion of a confession was expressly made an offence by section 330 of the Penal Code. No sanction was therefore necessary for the complaint under that section, either read alone or with Section 104, relating to abetment.
18. No later decision of the Travancore High Court was brought to our notice. As practically all the earlier decisions are reviewed them, it is unnecessary to refer to any of them. The learned Magistrate who dismissed the petitioner's complaint sought to distinguish this Full Bench decision on the ground that it related only to offences of voluntarily causing hurt to extort confession or wrongful confinement for that purpose. To say the least it is a very narrow view of the scope of the decision and to lose sight of the principles enunciated there. In - '31 Trav 1 J 467' (V) a learned Single Judge had said that if an Inspector off Police investigating a case against a person assaults him during the course of the investigation the officer was acting or purporting to act as a public servant and that a complaint for the assault could not be taken cognizance of without the requisite sanction. That decision was expressly dissented from by the Full Bench and it looks as if that decision was responsible for the case in - 'Raghavan Pillai v. Kuriyan', (U) being dealt with by a Full Bench.
19. What remains for me to do is to refer to the decisions in - 'Cri. R.P. No. 297 of 1050 (Trav)' (A) and - 'Crl. R.P. No. 149 of 1951 (Trav)' (B) mentioned in the referring order. Before that it may in passing be stated that the view of the erstwhile Cochin High Court (Chief) on the application of Section 197 (Cochin Section 174) accords with the view expressed in the cases I have followed here. See - Swaminatha Iyer v. Achutha Menon 9 Cochin L R 338 (W). Both the orders referred to in the referring order were rendered by my brother Govinda Pillai J. The order in the later case only states:
Sanction of Government appeared necessary to prosecute the Tahsildar for something said to have been done by him in his official capacity. No grounds for interference (with the Magistrate's order dismissing the complaint). Dismissed.
Without knowing more facts about the case it is not possible to comment upon that decision.
20. The earlier order is reported as - '1952 Ker L T 419' (A). There an Inspector of Police was accused of having voluntarily caused hurt to the complainants and wrongfully confined them in the verandah of the Police Station for about four hours. The complainants were 1 accused in a black marketing case. During the pendency of that case one of the principal witnesses complained to the accused Inspector of some misconduct of the complainants with reference to his ration card. The accused inspector sent for the complainants and Questioned them regarding the complaint made by the witness. The learned Judge has observed that in questioning the complainants the Inspector was only doing his duty and that the case of belabouring them during the course of the questioning was answered by the learned Public Prosecutor by stating that even if that be true it must be held to have been done in the discharge of his duty by the Police Inspector. The Public Prosecutor had cited before the learned Judge a Single Bench decision of the Madras High Court reported in - 'Ramachandra Rao v. Chinneyya AIR 1942 Mad 664 (1)(X) and following that decision the learned Judge confirmed the lower Court's order that the complaint could not be entertained without the sanction of Government under Section 197. With respect I cannot agree with the view that the case of voluntarily causing hurt under circumstances mentioned required sanction for its initiation. To my mind it goes against the trend of the line of the Privy Council and Federal Court decisions referred to in this order as also against a long line of cases in Travancore. The dissentient note struck in - 'Karunakaran Kartha v. Krishna Pillai' (V) was on the same lines as the view taken in - Appu Keshavan v. V.G. Parameswaran Nair 1952 Ker L T 419 (A). As noticed already the view expressed in - 'Karunakara Kartha v. Krishna Pillai', (V) was expressly dissented from in the Full Bench case and I should think it was not overruled as after expressing his views the learned Judge sitting alone felt bound by the Division Bench ruling in - Paul v. Govindan 26 Trav L J 680 (Y) and sought to apply the rule of that decision to the facts of the case before him. That the case of wrongful confinement required sanction admits of no doubt but the view that causing hurt in the circumstances mentioned there required sanction for the initiation of proceeding is a view with which I must respectfully dissent. Causing hurt in the circumstances mentioned there or in the present case cannot in my view be held to be within the scope of the official duty of a police officer nor could he be heard to say that such causing of hurt was in virtue of his office. There is no official act in such conduct; if anything there was only abuse of official position.
21. In the result, I would allow this revision petition and direct the learned Magistrate to readmit the complaint to his file, regarding all the allegations against all the accused persons and proceed with the trial of the case in the usual course. If the case put forward fails on the merits with respect to all or any of the accused persons or the defence establishes that all tha acts or some parts of the acts attributed to accused 1 were done in the purported exercise of official duty it is up to the Magistrate to pass appropriate orders.
Govinda Pillai, J.
22. I agree with the learned Chief Justice that the dismissal of the complaint against accused 2 and 4 was wrong. I am also of the view that for the acts of violence alleged to have been committed by the Inspector on the complainant at night in the Police-lock-up on the date of arrest, no sanction of Government is necessary to prosecute him. But for what the Inspector was stated to have done i.e., for the assault on the complainant on the public road after his arrest and while he was being taken to the Police Station in the Motor Vehicle, I am for holding that sanction of Government is necessary to prosecute him. The present complainant was the accused in a cognizable case and in the course of investigation he was arrested and taken to the Police lock-up. In this the Inspector was only acting or purporting to act in the discharge of his official duty. In case of resistance on the part of the person arrested or if he refuses to accompany the Inspector to the Police Station after arrest, the Inspector would be entitled to use reasonable force on him to secure his custody and to put him in a safe place in the lock-up. It might be that the force used under the circumstances was more than what actually required. The test in such cases whether sanction is required or not, as pointed in - 'AIR 1948 P C 128' (C), whether the public officer, if challenged, can reasonably claim, that what he does, he does in virtue of his office.
23. Assuming that all that the complainant mentioned in this case is true, the Inspector could say that while taking the arrested person to the Police Station, he (complainant) refused to accompany him to the station or that he attempted to escape, and that he had to use some physical force on the person of the arrested person to enable him to take the former to the Police Station. That is a very reasonable claim, the Inspector can adduce and if so, he cannot be prosecuted without Government sanction. The allegations in the complaint may be false. The claim that can be advanced by the Inspector may also be false. But that does not give the criminal Court jurisdiction to take cognizance of the case and try it. The aggrieved party can move the Government for sanction. The Government will institute an enquiry through their officers, and as the result of the enquiry the sanction may or may not be given. The party will have however to take the consequence. Otherwise no Government can get on and no officer under Government will be safe.
24. The imperative provision in the section is that no court is to take cognizance of offences said to have been committed by a Judge or Magistrate or public servant not removable from, office save by or with the sanction of the Government while acting or purporting to act in the discharge of his official duty. When the criminal Court which has already accepted a complaint and issued process, is apprised by the officer accused, of the provisions of this section, that Court has to apply the test mentioned in - 'AIR 1948 P C 128' (C), and then drop the proceedings to the extent to which the test can be made to apply. It is not to hold an enquiry and take, evidence to ascertain whether the claim advanced by the accused officer is true or not. It will also be against the injunction laid down in Section 197 that no court was to take cognizance, of cases of the nature mentioned therein. The formal enquiry will be held by the Government and not by the court. The allegations in the complaint and the claims put forward by the accused are alone to be considered by the court to ascertain whether the acts alleged can be said to be done by the accused officer in his official and not in private capacity. See - 'AIR 1939 F C 43' (D). The mere fact that an offence is committed by the public servant when he is in office is not enough to attract the provisions of this section (Vide - 'Superintendent and Remembrancer of Legal Affairs, Bengal v. Jadu Nath AIR 1940 Cal 274 (Z). For example if while taking the arrested person to the police lock-up, the Inspector assaults a passer-by for no reason, then he is not protected by this section though he was at that time engaged in discharging his official duty in taking the arrested person to the Police Station. If on the other hand, that passer-by had attempted to rescue the arrested person, then the Inspector would be justified in using physical force against him.
25. A Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers in favour of the party from whom bribe was taken will be such, an act. Similarly, a medical officer neither acts nor purports to act as such in picking the pocket of a patient whom he is examining, though the examination itself may be such an act So a public servant, as emphasised in - 'AIR 1948 P C 128' (C) 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. This principle had been followed in a later case - Phanindra Chandra v. The King AIR 1949 P C 117 (Za). Thus as held in - Kamla Patel v. Bhagawandas 37 Cri LJ 294 (Nag)(ZB), & several other cases a Judge or public servant passing certain orders or making certain communications in the course of official duty, or a Judge regulating the conduct of a case which he is trying, makes certain remarks which are objected to as defamatory or Insulting, he commits the offence, if any, while acting in the discharge of as official duty, the reason being that the passing, of the orders or making the communications-constitutes his official duty. Similarly if a Judge purporting to exercise the powers vested) in him as a Judge orders the arrest and detention in custody of a certain person, when the circumstances do not justify such action, the offence, if any, is committed by him while purporting to act in the discharge of his official duty (Vide - Baisnab Charan v. Sukhmoy AIR 1921 Cal 388 (ZC); - 'AIR 1932 Mad 214 (P); - 'AIR 1929 Mad 659' (O) and - Kyaw Htin v. Ah Yoo' AIR 1934 Rang 238 (ZD). If in all such cases, the Judge or the Public Officer is asked to stand a prosecution and to prove that their actions come under Section 197, Cr.P.C. no one will be safe in the discharge of his official duties. In all such cases sanction of Government is necessary and the aggrieved party has to obtain the same. The illustrations mentioned above answer the test laid down by the Privy Council in - 'AIR 1948 PC 128' (C).
In my view therefore, the Inspector in question cannot be prosecuted for anything that is said to have been done by him in using or abusing the powers vested in him as an Inspector of Police who was to arrest the accused and take him to a sale place of custody. The reasoning adopted would show that the view taken by me in - '1952 Ker L T 419' (A), is supportable. The learned Chief Justice hag conceded that for the offence of wrongful confinement sanction of Government to continue the case against the Inspector was necessary. If while he was in confinement, i.e. by asking him to remain on the verandah of the Police Station till he could be questioned, he attempted to make his escape, the Inspector would be justified in keeping him there by force. The decisions in - Ahmed Mohideen v. Yusuf All Syed AIR 1942 Mad 81 (1) (ZE) and - Ramachandra Rao v. Chinnayya Goundan AIR 1942 Mad 664 (1) (ZF) support this view. In these cases the officer concerned purported to act in the capacity with which he is clothed R.C. Pollard v. Satya Gopal AIR 1943 Cal 594 (SB) (ZG); - 'Sankaralinga Tevan v. Avudai Ammal AIR 1917 Mad 657 (ZH); - 'Sivaramakrishna Ayyar v. Seshappa Naidu AIR 1929 Mad 172 (ZI); - 'Lakshmi Narayana Ayyar v. Chinnappa Goundan AIR 1931 Mad 492 (ZJ); and - 'AIR 1935 Nag 52'. (G) also support the above view, This provision is introduced to protect public servants from frivolous and vexatious complaints made, while they are doing their duty as public servants. While courts are always anxious to protect public interest and maintain law and order, the benefits conferred on Government Officers from being frivolously molested should also be safeguarded. A practical view, so as to advance justice, has to be taken in matters of this nature. I am therefore for not leaving the case of the 1st accused, as regards the acts alleged to have been done by him after the arrest of the complainant till he was put in safe custody in the Police lock-up for trial by the Magistrate, before sanction from Government is produced1 for prosecuting him for the offences in relation to these acts. In other respects I agree with the learned Chief Justice.
Joseph Vithyathil, J.
26. I agree with the reasoning and conclusion of my Lord the Chief Justice. Since the case law bearing on the question has been exhaustively dealt with by his Lordship I do not think it necessary to discuss it with reference to decided cases. Two propositions of law are gatherable from, the decisions of the Privy Council and the Federal Court which are recognised as authoritative rulings on the point, namely, - 'AIR 1939 F C 43' (D); - 'AIR 1944 F C 66' (S); - 'AIR 1946 F C 25' (T) and - 'AIR 1943 PC 128' (C). One is that the question as to whether sanction is necessary under Section 197, Criminal P.C., for the initiation of criminal proceedings against a public servant will have to be determined with reference to the allegations in the complaint or the police report or other information on the basis of which action is taken by the court and that it cannot be made to depend upon the case which the accused may put forward after the proceedings having been started. The other is that in order to enable a public servant to claim the benefit of the section, it is not enough that the act complained of was committed by him at the time he was discharging or was purporting to discharge his official duty but there must be some perceptible connection between the act and the discharge of his official duty. It may bet a case of the public servant wrongfully and negligently discharging his official duty or a case of exceeding his authority. If these two propositions are accepted, I do not think that it is possible to hold in this case that sanction of Government is necessary for initiating proceedings against the first accused for the alleged offence of assaulting the complainant on the public road after he was arrested and while he was being taken in a motor vehicle to the police Station.
There is nothing in the complaint to show that the assault on the complainant was occasioned by any attempt on his part either to evade the arrest or to escape from the custody of the police. According to the allegations in the complaint, there was absolutely no connection between the assault on the complainant and the discharge of the official duty of the first accused which in this case was only to arrest the complainant and to keep him under lawful custody. If it was a case of the complainant offering resistance to the arrest or refusing to accompany the police to the station and the first accused using more force than what was necessary for effecting the arrest or for taking the complainant to the Police lock-up, the position would certainly be different. But the question for consideration is whether the allegations in the complaint justify such an assumption. It may be that upon taking evidence the Magistrate may find that the occurrence took place in the circumstances visualised by my learned brother Govinda Pillai J. and in that case it will be the duty of the Magistrate to drop the proceedings for want of sanction under the section. Even in the case of the alleged assault on the complainant at night in the police lock-up the first accused may be able to establish that it was occasioned by an attempt on the part of the complainant to escape from the lock-up. On the other hand, the evidence in the case may disclose that the assault on the complainant had 'nothing to do with the performance of the duty of the first accused to arrest him and to keep him under lawful custody. So far as the initiation of proceedings against the accused is concerned, we can only go by the allegations in the complaint and cannot anticipate the possible defence of the accused as laid down by the Federal Court in - 'Hori Ram's case' (D) and in - 'Sarjoo Prasad's case', (T). As for the opinion of my learned brother Govinda Pillai J. that the enquiry into the question, whether an offence was committed by a public servant while acting or purporting to act in the discharge of his official duty should be held, by the Government and not by the Court, I must say with great respect that I cannot persuade myself to agree to that view. I have no doubt that it is the function of the court to enquire into the question.
27. My learned brother has adverted to the necessity of taking 'a practical view' in matters of this kind and of protecting public servants against vexatious complaints in respect of acts committed by them in the discharge of their official duties and not to confer immunity from the consequences of their actions on those public servants who abuse their position as-public servants and commit acts which have no relation whatsoever with the discharge of their official duties. The considerations that should weigh with the court in the matter are well expressed, if I may say so with respect, by Nokes J. in '34 Trav L J 270 (U)'. This is what the learned Judge says:
On the one hand, the necessity for sanction is an assurance to executive officers that they will not be harassed by malicious or frivolous prosecutions, merely because they zealously perform their functions; and the necessity for such protection is generally recognised. On the other hand, the insistence on sanction to prosecute for the abuse of the opportunities provided by executive functions may encourage excesses among subordinate officials and may result in a denial of the right even to put a guilty man upon trial.
28. I agree to the order proposed by my Lord the Chief Justice allowing the revision petition.
29. Pursuant to the opinion of the majority the Magistrate's order dismissing the complaint is set aside and he is directed to readmit the complaint to his file and hold the trial with respect to all the charges levelled against the accused in the case and dispose of the case according to law.