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S.M.Ar.M. Arunachalam Chettiar Alias Veerappa Chettiar Vs. M.S.T. Thanneermalayan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad335; (1947)1MLJ176
AppellantS.M.Ar.M. Arunachalam Chettiar Alias Veerappa Chettiar
RespondentM.S.T. Thanneermalayan Chettiar
Cases ReferredDr. Hori Ram Singh v. The Crown
Excerpt:
.....,namely that there should be something in the nature of the act complained of that attaches it to the official character of the person doing it. 4. on a scrutiny of all the decisions bearing upon the point the correst test to be applicable would in my opinion be whether the act complained of was done while acting or purporting to act in the discharge of official duty and whether the said act can reasonably be related to the official character of the person who did the act or in other words there was anything in the nature of the act complained of that attaches it to the official character of the person doing it......or the executive authority is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the provincial government.it will be noticed that the corresponding section 227-a of the madras local boards act is in identical language. section 197 of the code of criminal procedure which also requires the sanction of the provincial government in certain cases contains the phrase 'while acting or purporting to act in the discharge of his official duty ' which occurs in the two acts referred to above. section 270(1) of the government of india act has also been referred to and there the consent of the governor of the province is.....
Judgment:
ORDER

Yahya Ali, J.

1. On 2nd January, 1946, the respondent, who is a member of the Municipal Council, Karaikudi filed a complaint before the Additional Sub-Magistrate, Tiruppattur against the petitioner who is another member of the Council complaining of certain offences committed by the petitioner during and after a meeting of the Municipal Council held on the evening of the 27th December, 1945. At that meeting a resolution was moved with reference to the improvements to be effected to a market in Karaikudi. The petitioner and the respondent expressed opposite views on the resolution and when the sense of the house was taken six members voted for the complainant's view while four were against it. One other councillor remained neutral. The chairman started recording the result of the poll and in doing so he noted first the fact of one of the Councillors remaining neutral and thereafter the result of the division with regard to the resolution. The petitioner (accused) objected to this method of recording the minutes and said that the division should be noted first and thereafter the neutral vote. He suggested that what had been already recorded should be scored out from the minutes book. According to the complaint, the complainant also supported this suggestion but the accused was not pleased with the complainant's support since he felt chargrined by the defeat his resolution had suffered. An altercation ensued between the petitioner and the respondent and in the course of the altercation the petitioner is said to have abused the respondent and threatened to 'knock out his teeth. The respondent accepted the challenge and asked him to try. This is the first stage of the incident. When the challenge was so accepted the petitioner is said to have left his seat and proceeded to the place where the respondent was sitting and called him out so that he may knock out his teeth and show him what he could do. He scratched the complainant's right hand, pulled the right lappel of his coat and tore it. One of the councillors intervened and separated them. Immediately the petitioner is said to have taken up his shoe and rushed towards the respondent to strike him. Again some of the councillors intervened and separated them. At that stage the meeting was adjourried. This may be regarded as the second stage of the incident. After the adjournment of the meeting the petitioner went out of the meeting hall and stood in the outside verandah and threw out a challenge in abusive language to the respondent to come out of the hall, saying that he was prepared to shoe him and even go to prison, When he said this he had his shoe in his hand and was brandishing it. The petitioner was, according to the complainant, caught hold of, and pushed and taken away from the place.

2. Upon these averments a complaint was filed alleging the commission by the petitioner of offences under Sections 323, 352, 355 and 504 of the Indian Penal Code. The Additional Sub-Magistrate dropped further proceedings with regard to the complaint and discharged the accused, taking the view that under Section 353-A of the District Municipalities Act sanction of the Provincial Government was necessary to enable the Court to take cognizance of these offences in view of the circumstances that all the acts complained of were done by the accused white acting or purporting to act in the discharge of his duties as a Municipal Councillor. An application to revise that order was made before the Sessions Judge of Ramnad, who, however, took a different view and held that sanction of the Provincial Government was not required for the prosecution of the petitioner and set aside the Order of the Sub-Magistrate and directed enquiry into the complaint. The present application by the accused in that case is to revise the order of the Sessions Judge.

3. Section 353-A of the District Municipalities Act provides:

When the chairman, any councillor or the executive authority is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Provincial Government.

It will be noticed that the corresponding Section 227-A of the Madras Local Boards Act is in identical language. Section 197 of the Code of Criminal Procedure which also requires the sanction of the Provincial Government in certain cases contains the phrase 'while acting or purporting to act in the discharge of his official duty ' which occurs in the two Acts referred to above. Section 270(1) of the Government of India Act has also been referred to and there the consent of the Governor of the Province is required in the case of a person employed in connection with the affairs of the Province with regard to any act done or purporting to be done in the execution of his official duty as a servant of the Crown. Literally speaking, Section 270 of the Government of India Act is not concerned with acts or things done' while acting or purporting to act in the discharge of his official duty ' but with acts done or purporting to be done in the execution of a duty as a servant of the Crown. A distinction has been drawn between the language of this section, and Section 197 of the Code of Criminal Procedure by Varadachariar, J., in Dr. Hori Ram Singh v. The Crown : (1939)2MLJ23 , where the learned Judge at page 43, points out that Section 197 of the Code of Criminal Procedure cannot be treated as bearing a true analogy to Section 270(1) of the Constitution Act. It is unnecessary to go into that aspect of the matter although I may while on this decision of the Federal Court usefully advert to the test that Varadachariar, J., laid down with reference to Section 197 of the Code of Criminal Procedure, as the correct test applicable to a case arising under that section. After examining the various decisions bearing upon the question the learned Judge pointed out that there are three groups of cases which have laid down three different tests. In the first group 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 the second group more stress is laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence, 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. Varadachariar, J., was of the opinion that the first was the correct test; and referring to the time test, namely, that mentioned in the third group of cases the learned Judge said:

The use of the expression ' while acting, etc' in Section 197 of the Criminal Procedure Code (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 an 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.

There seems to be no reported case decided directly under Section 353-A of the District Municipalities Act; at any rate none has been cited before me. On behalf of the petitioner my attention has been drawn however to some decisions of this Court given under Section 227-A of the Local Boards Act and Section 197 of the Code of Criminal Procedure. I must first advert to the Bench decision reported in Gangaraju v. Venki : AIR1929Mad659 , which was a case under Section 197 of the Code of Criminal Procedure. It was held in that case that the question in such cases is not as to the nature of the offence but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official duty. Any discussion, therefore, as to the nature of the offence is of remote relevance on the question whether sanction is necessary under any of these special protective provisions. The test laid down by Waller, J., in the Bench decision cited above is whether it was committed by a public functionary acting or purporting to act as such in the discharge of his official duty. The three other decisions, all decided by Pandrang Row, J., bearing upon this question are Karuppiah Thevan v. Krishna Pillai : AIR1939Mad437 , Subbiah v. Ramacharlu : AIR1939Mad604 and In re Subramania Mudaliar : AIR1940Mad297 . In all these cases the learned Judge took the view that the act need not be an authorised or official act, the reasoning being that if it was an authorised or official act, it would not be an offence. The protection is given only with reference to acts which transgress the limits of one's official competence. But in Karuppiah Thevan v. Krishna Pillai : AIR1939Mad437 , the learned Judge took care to point out that the question for decision was not whether the particular act alleged was within the jurisdiction or competence of the Board but whether the act was done while the accused purported to act in discharge of his duties and whether the act can be reasonably related to the official character t f the person who did it. By laying down this test namely, that the act should be reasonably related to the official character of the person who did it, the learned Judge was virtually adopting the criterion laid down by Varadachariar, J., in Dr. Hori Ram Singh v. The Crown : (1939)2MLJ23 , namely that there should 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 necessary to refer to the other cases cited as they do not carry the discussion further.

4. On a scrutiny of all the decisions bearing upon the point the correst test to be applicable would in my opinion be whether the act complained of was done while acting or purporting to act in the discharge of official duty and whether the said act can reasonably be related to the official character of the person who did the act or in other words there was anything in the nature of the act complained of that attaches it to the official character of the person doing it.

5. Applying this criterion to the present case there can be little doubt that the first stage ending with the throwing of the challenge and the acceptance of the challenge was done while acting or purporting to act in the discharge of official duty. The precise language employed by the offending councillor may not be justified as ' Parliamentary ' but it was allegedly uttered while exercising his right of objecting to his colleague intruding when he was making his protest to the chair about the method adopted at recording the proceedings in the minute book. If therefore any offence is alleged to have been committed at that stage, sanction would be required under Section 353-A of the District Municipalities Act. With reference to acts said to have been committed during the second and third stages, there can be no doubt that they were not done while acting or purporting to act in the discharge of official duty as they did not in any manner whatsoever relate to the official character of the person at that time. Any offence committed during those stages therefore does not require the previous sanction of the Provincial Government under Section 353-A of the District Municipalities Act.

6. The order of the Sessions Judge is accordingly modified and the Stationary Sub-Magistrate of Tiruppattur is directed to proceed with the case according to law in the light of the observations made in this judgment.


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