1. The Municipal Commissioners for the City of Madras made a complaint before the Chief Presidency Magistrate against Major Bell, the Superintendent of the Gun Carriage Factory, alleging that he had, on certain occasions, specified in the written complaint, brought or caused to be brought from the Salt Cotaurs Station of the Madras Railway Company within the City of Madras certain logs of wood which had been consigned to him as Superintendent without obtaining a license on payment of the fees due thereon, and had thereby committed 'an offence punishable under Section 341 of the City of Madras Municipal Act. The Chief Presidency Magistrate rejected the complaint on the ground that before cognizance could be taken of the offence with which Major Bell was charged, the sanction of Government should be obtained under Section 197 of the Criminal Procedure Code. This is an application put in on behalf of the Municipal Commissioners praying the High Court to revise the proceedings of the Chief Presidency Magistrate, and direct him to proceed with an enquiry into the complaint preferred to him.
2. The question for consideration is whether Major Bell, the Superintendent of the Gun Carriage Factory, is accused of having committed the offence laid to his charge as such Superintendent. A number of decisions of the various High Courts have been referred to at the hearing of this matter, but owing to the manner in which the section of the Criminal Procedure Code now under consideration has been altered from time to time from 1861 to 1898, these decisions do not go far to help us in interpreting the section as it now stands. For example, Section 167 of the first Criminal Procedure Code (Act XXV of 1861) related to charges of offences punishable under the Indian Penal Code only and the Circular of the Calcutta High Court issued in 1864 and the decision of the Bombay High Court in Beg. v. Parshram Keshav 7 Bom. H.C.R. 61 must be read in the light of that fact. If Section 197 of the present Criminal Procedure Code referred to cases under the Penal Code only there can be no question that it must be decided that no sanction is necessary for Major Bell's prosecution. In Section 4 (o), however, of the Criminal Procedure Code now in force 'offence' is defined as meaning 'any act or omission made punishable by any law for the time being in force.'
3. Further, Section 466 of the Criminal Procedure Code of 1872 (Act No. X) which corresponds with Section 167 of the Act of 1861, provides that no complaint of an offence committed by a public servant in his capacity as such servant should be entertained without sanction, and there is also in this section the following most important paragraph. 'No such Judge or public servant shall be prosecuted for any act purporting to be done by him in the discharge of his duty unless with the sanction of Government.' If this paragraph were to be found in the present Criminal Procedure Code, I can entertain no doubt that we should be obliged to hold that Major Bell could not be proceeded against without sanction. The unreported case of Sreemanto Chatterjee decided in 1881 and alluded to (vide page 860 in the judgment in Nundo Lal Basak v. Mitter I.L.R. 26 Calc. 862 was decided under this section and it was there held by Mr. Justice Pontifex that, by virtue of the paragraph now under consideration, sanction was necessary in the case of the public servant whom it was then proposed to prosecute. Mr. Justice Field, however, expressed the opinion that the first paragraph of Section 466 was intended to apply to those cases in which the offence charged is an offence which can be committed by a public servant only, cases, that is, in which being a public servant is a necessary element in the offence. This expression of opinion is of importance in view of the fact that the first paragraph of Section 197 of the Criminal Procedure Code of 1898 differs but little from the first paragraph of Section 466 of the Act of 1872, and that the second paragraph of this latter section has not been reproduced in either the Criminal Procedure Code of 1882 or that of 1898.
4. There is one slight alteration in the first paragraph of Section 197, as found in the Acts of 1882 and 1898, as compared with the corresponding Section (466) in the Act of 1872, to which considerable importance has been attached at the hearing of this petition. This is as follows:-In the older Act the section opens, 'A complaint of an offence committed by a public servant in his capacity as such public servant, &c.;' While in the two later Acts the words 'in his capacity as such public servant' have been omitted. It does not appear to me that much importance' can be attached to this alteration. I cannot see any real distinction between an offance committed by a public servant in his capacity as such public servant, of which a public servant is accused as such public servant (Section 466 of Act X of 1872) and 'an offence of which a public servant is accused as such public servant' (vide Section 197 of the Criminal Procedure Code of 1898). The wording of the revised paragraph has been made simpler and less involved than it was previously, but the meaning, I think, remains the same.
5. On the other hand, great importance must, in my opinion, be attached to the exclusion from the Acts of 1882 and 1898 of the paragraph in the Act of 1872 providing that no public servant can be prosecuted for any act purporting to be done by him in the discharge of his duty unless with the sanction of Government. I agree with Mr. Justice Field in the interpretation that I have already quoted put by him on the section as it stands after the omission of this paragraph, an interpretation which has been followed by the Calcutta High Court in a recent case where the learned Judges, after reviewing all the decisions hold that 'the language of the section is accused as such Judge must involve, as one of its elements, that it was committed by a person filling that character.' Accepting as correct the interpretation put in these two decisions on this section by the Calcutta High Court it follows that the sanction of Government was not necessary in the present case. It cannot be held that the offence of bringing wood into the City of Madras without a license is one which could be committed by a public servant only or that such an offence involves as one of its elements that it was committed by (e.g.) the Superintendent of the Gun Carriage Factory. It would, in my opinion, be unreasonable to assume that the most important paragraph to which I have already alluded, protecting public servants not removeable from office except by Government from prosecution without sanction or all acts done by them in the discharge of their duty, was not dropped out of the Code of Criminal Procedure deliberately and for some cogent reason. Such reason was, I think it may be fairly presumed, a consideration of the grave inconveniences which would result if it were to be held that all public servants who are not removeable from office without the sanction of the Government of India or the Local Government were to be exempted from criminal liability for all acts amounting to offences done by them while acting in their official capacity unless sanction could be obtained for their prosecution under Section 197 of the Criminal Procedure Code vide Nando Lal Basak v. Mitter I.L.R.. 26 Calc. 852.
6. I am, for the foregoing reasons, of opinion that in the present case sanction was not necessary and that the Chief Presidency Magistrate should therefore be directed to take the complaint against Major Bell on his file and dispose of it according to law.
7. I concur.