1. This is a rule obtained by the Superintendent and Remembrancer of Legal Affairs, Bengal, calling upon the opposite party, Jadu Nath Roy, to show cause why the order of discharge made in his favour by the Additional District Magistrate of Tippera should not be set aside. Jadu Nath Roy is a Government officer serving under the Communication and. Works Department of the Government of Bengal. A commission was appointed under Act 37 of 1850 to investigate certain charges against an officer in the department. Jadu Nath Roy was summoned to give evidence. The commissioners were satisfied that he gave deliberately false evidence in various matters and made a complaint. The District Magistrate took cognizance of the case on the complaint and made it over to the Additional District Magistrate for disposal. The Additional District Magistrate discharged the accused on the ground that the sanction of the Local Government was necessary under Section 197, Criminal P.C. The Public Prosecutor then moved the Court of Session without success. The petitioner then obtained this rule.
2. The conclusion reached by the learned Magistrate was that in giving evidence before the commissioners, Jadu Nath Roy was purporting to act in the discharge of his official duty. If the Magistrate was right in his conclusion then in the case of Government officers who commit perjury two bars will have to be removed before they can be prosecuted. In the first place, there must be a complaint by a Court. In the second place, there must be a sanction by the Local Government. The learned Deputy Legal Remembrancer pointed out to us that the proviso to Section 196A of the Code suggests that it is not the policy of the Legislature to have more than one sanction.
3. The objection of the opposite party can, in our judgment, only prevail if it can be said that any public servant giving evidence in any Court is thereby purporting to act in the discharge of his official duty. This extreme proposition was not put forward. The test suggested was that the evidence which the man gave was to be examined in order that it might be ascertained whether he was deposing to facts which he had1 acquired in connexion with the discharge-of his duties, or whether he was giving evidence with regard to other matters. From this point of view, a most curious distinction was drawn in the lower Court. It was apparently suggested that sanction would be required to prosecute the opposite party with respect to some matters only. If this test were applied, we would certainly say that it could not possibly be said that any of the statements of which a complaint has been made had anything to do with, the public duty of the opposite party. The result would be that if we were to adopt the test proposed in order to determine whether the evidence was given with regard to official matters, so far as this complaint is concerned, we could only say that it was not. We are however not prepared to place such an interpretation upon the Section. In our judgment, to say that a public officer when giving evidence in a Court purports to be acting in the discharge of his official duty, would be straining the language used. The opposite party in giving this evidence was not performing any official duty in connexion with the Department of Communication and Works. He was giving evidence because he had received a summons to do so and he was obliged to obey that summons, even though such obedience entailed actual neglect of his official duties. We accordingly make the rule absolute, set aside the order of discharge and direct the Magistrate to hear and dispose of the case n accordance with law.
Mohamed Akram, J.
4. I agree.