1. This is a criminal revision case which has been filed against the order made by the learned Sub-Divisional Magistrate, Tirupathur, in C.C. No. 326 of 1951 which was confirmed by the District Magistrate of North Arcot in G.R.P. No. 15 of 1952.
2. The facts are : A complaint was filed in the Court of the Sub-Divisional Magistrate of Tirupathur by one Dowlath against the District Forest Officer, Tirupathur Mr. Dey and seven others. The complaint was that at about 11 a.m. on 6th August, 1951, when the complainant was grazing his goats in the private land of one Abdul Rahim Sahib, the District Forest Officer, who was accused 1 in the complaint directed the other accused, viz., accused 2 to 7 who were forest subordinates and the eighth accused, being a non-official, to take the animals to the pound and that some of the other accused accordingly drove away these animals and impounded them and that the District Forest Officer slapped the complianant on his cheek and kicked him resulting in injuries and directed some of the other accused to arrest the complainant and that the complainant was locked up in the Police station at Alangayam. The sworn statement of this complainant was substantially to this effect.
3. The learned Sub-Divisional Magistrate held that this complaint could not be entertained against A.-I for want of necessary sanction and therefore deleted the, name of the first accused from the complaint and directed the case being proceeded against the other accused, viz., accused 2 to 8.
4. The learned District Magistrate before whom a revision petition was preferred found that the respondent, District Forest Officer, was obviously acting in his public capacity and not in his private capacity when he ordered the removal of the comjplainant's animals from the land where they were grazing and their being impounded, that while clearly acting as District Forest Officer, Tirupathur, the respondent might have exceeded his powers in slapping and kicking the complainant but those acts were done by him not in his private capacity but in his public capacity as District Forest Officer, Tirupathur.
Obviously the alleged assault by the respondent on the petitioner is no part of his official duties. As held in In re S.Y. Patil and in Subbaredti v. Swami Reddi 1937 M.Crl. C. 243 sanction under Section 197, Criminal Procedure Code, is essential before a Court can take cognizance of a complaint for an offence against a public officer, as the public officer was acting throughout till the time of the commission of the alleged offence in his official capacity, though the act constituting the alleged offence is not a part of his official duty.
5. Therefore he dismissed the revision petition and hence this revision case.
6. In this case two points are involved, viz., first of all, whether the District Forest Officer did these acts attributed to him, while the grazing of the animals was on private land over which he had no jurisdiction, and secondly, whether he did assault this complainant as alleged by him and which the complainant was prepared to prove by means of a medical certificate and otherwise and whether in the event of the complainant affirmatively and satisfactorily proving that the animals were being grazed in the private land and that he was assaulted, it will have to be shown by the accused respondent whether the acts committed by him were in the discharge of his official duties or when purporting to discharge his official duties and then the question of sanction would arise. So on the mere contention of the respondent that even if he is assumed to have taken action when the grazing was upon a private land and he had assaulted the complainant, he would be protected under Section 197, Criminal Procedure Code, is meaningless. It is not a pure question of law but a mixed question of fact and law and has to be decided after investigation and cannot be short-circuited by summarily throwing out the complaint. This has been made clear by me in Sakunlala Bai v. Venkatakrishna Reddi : AIR1952Mad667 The learned District Magistrate to whose attention this decision was brought at a stage when it had been reported in the short notes section, would have done well to have applied to the High Court for a copy of the decision instead of relying upon the decisions of other High Courts and decisions which are totally irrelevant. Every Magistrate is bound to follow the authority of his High Court and it is his duty to keep himself informed of the current decisions of atleast his own High Court and omission to do so is as much dereliction of duty as omission to refer to sections of the statute : Raghava Mannadiar v. Theyyunni Mannadiar : AIR1947Mad106 .
7. This High Court has laid down in a series of decisions as early as from 1916, that it is no part of the duty of an officer to lose his temper and abuse and assault or decother things far removed from his capacity as a public servant and then claim, protection. In Kadir Sahib v. Emperor (1916) 1 M.W.N. 384. Coutts Trotter, J. as he then was, pointed out that Section 197, Criminal Procedure Code, is intended to apply to those cases in which the offence is an offence which can be committed by a public servant only, that is, cases in which his being a public servant is a necessary element in the offence. Thus, where a Judge commits an offence from the Bench which could be committed by anybody and which entails consequences neither in the way of penalty nor anything in the least different because a Judge committed it from what it would entail if committed by anybody else, sanction is not required for his prosecution under Section 197, Criminal Procedure Code. In Rajarao v. Ramaswami (1937) 52 M.L.J. 647 : I.L.R. 50 Mad. 754. Jackson, J. pointed out as follows:
Section 197, Criminal Procedure Code, presents no difficulty if the obvious intention of the Legislature is borne in mind. It is no part of British policy to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged 1.0 be an offence the State will not allow him to be prosecuted without its sanction, for the obvious reason that otherwise official action would be beset by private prosecution. Judges would be charged with defamation, policeman with wrongful restraint, and distrainers with theft. This 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.
8. In Nune Panakalu v. Ravula Subbarao I.L.R. (1927) Mad. 695. Madhavan Nair and Reilly, JJ., held that an offence arising out of an abuse of an official position does not necessitate sanction under Section 197, Criminal Procedure Code. In Pichai Pillai v. Balasundara Mudali : AIR1935Mad442 . Curgenven and King, JJ., held that the privilege of immunity from prosecution without sanction only extends to acts which can be shown to be in discharge of his official duty. So in the case of a karham acting as a village magistrate charged for receiving stolen property, no sanction under Section 197, Criminal Procedure Code, is necessary. In Doraiswami Iyer, In re : (1948)2MLJ116 . Govinda Menon, J., held that where a public servant commits a breach of trust in respect of some property entrusted to him, he is not doing an act not even properly deemed to do an act in the execution of his duty. When he commits the act he does not pretend to act in the' official discharge of his duty and no sanction is necessary for his prosecution. The decision of Rajamannar, J. as he then was in C.R.C. No. 1091 of 1946 was cited with approval. I have held in similar terms in Sakuntala Bai v. Venkatakrishna Reddi : AIR1952Mad667 .
9. The other High Courts have also held similarly. In Nagwant Sahay v. D.W. If : AIR1946Pat432 . Agarwala, J., on a difference of opinion between Shearer and Pande, JJ., held that Section 197, Criminal Procedure Code, applies and requires sanction only when the accused public servant, viz., police officer does an act for the purpose of preventing the commission of an offence or in the discharge of his duty to bring any one for trial for an offence alleged to have been committed by such person. It is no part of the duty of a Police officer to chastise persons who have committed or alleged to have committed offences, even though they have admitted the fact. His duty is to apprehend the offenders and produce them before a Court. Hence where a Police officer is accused of chastising persons who are alleged to have committed offerices, Section 197, Criminal Procedure Code, does not apply and no sanction is required for prosecution in respect of such an act and the Police officer does not act or purport to act in the discharge of his official duty and is not entitled to rely on Section 197, Criminal Procedure Code. In Devidas Kavalram v. Emperor A.I.R. 1947 Sind 30. Davies, C.J. and Thadani, J., held that Section 197, Criminal Procedure Code, will not apply and will afford no protection where the acts complained of plainly fall outside of duty or purported duty of a public servant. In Prafulla Kumar v. Dhodha Saham : AIR1948Pat409 Sinha and Mukherji, JJ. held that in order to attract the provisions of Section 197, Criminal Procedure Code, the person proceeded against must be a public servant at the time the act complained of is committed and the act complained of must be an official act. The real test is not that the offence is capable of being committed by a public servant in an act done or purporting to be done in the execution of his duty. The latest decision of Siddique and Srinivasachari, JJ. in Rajeswar Rao v. Bansidar Rao A.I.R. 1952 Hyd. 135 is to the same effect.
10. Then come the Privy Council and Federal Court decisions, viz., in Horiram Singh v. The Crown (1939) 2 M.L.J. Supp. 23 : (1939) F.C.R. 158 : (1939) F.L.J. 153 Gill v. King Emperor (1948) 2 M.L.J. 6 : L.R. 75 IndAp 41 : (1948) F.L.J. 13 Meads v. King (1948) 2 M.L.J. 120 : L.R. 75 IndAp 185 : (1948) F.L.J. 37 Neogy v. King (1949) 1 M.L.J. 177 : 1949 L.R. 76 IndAp 10 and Zulshi v. King (1950) 1 M.L.J. 302 : 1950 L.R. 77 IndAp 62. In Horiram Singh v. Emperor 8, Varadachariar, J., pithily points out by illustration how a distinction should be made between acts done in the course of official duties or purporting to be in the course of official duties and otherwise.
To take an illustration suggested in the course of the arguments 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, the jewels 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 an offence except with the previous sanction of the, Local Government.
11. The Privy Council followed it up in Gill v. King Emperor (1948) 2 M.L.J. 6 :L.R. 75 IndAp 41 : (1948) F.L.J. 13 and gave the following illustration : 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. In Meads v. King (1948) 2 M.L.J. 120 : L.R. 75 IndAp 185 : (1948) F.L.J. 37 it was pointed out that acts of a public servant of fraudulently misapplying, money entrusted to his care as a public servant, cannot be said to be acts done by him by virtue of the office that he held and as such sanction under Section 2 70 (1) of the Government of India Act is not necessary for his prosecution for the offences committed by him. In Neogy v. King 6, it was laid down by their Lordships of the Privy Council that according to its plain words, Section 197, Criminal Procedure Code, deals with offences alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty and that these words have the same meaning as that ascribed to them in Gill v. King Emperor (1948) 2 M.L.J. 6 : 1948 L.R. 75 IndAp 41 : (1948) F.L.J. 13.
12. Therefore, the order of the lower court cannot be supported and the dismissal and discharge against this District Forest Officer (accused 1) are set aside and the present Sub-Divisional Magistrate, Tirupathur, is directed to take the case on file against him and dispose of it according to law in the light of the observations made above.