S.K. Ghose, J.
1. The petitioner in this Rule is a Subdivisional Officer of the Public Works Department and he is accused in a complaint filed by a P.W.D. road mohurir. The complaint is to the effect that the accused went to supervise the work which was done by the complainant on a road. On seeing: the accused the complainant was proceeding from one bank to the other by boat. When the boat reached the bank the accused got into the boat and finding that the western bank had collapsed in spite of its having been repaired he became enraged and without seeking any explanation he remarked Can't you maintain the dhip of the western bank' and then he gave to the complainant two blows on the left knee causing injury to the knee. The Magistrate held that the accused was not covered by the provisions of Section 197, Criminal P. C, and directed summons to issue under Section 323, I.P.C. Against that order the present Rule was obtained. It is contended that the petitioner being a public servant is covered by Section 197, Criminal P.C. Mr. Basu on behalf of the petitioner has pointed out that Section 197 of the present Code is wider in its terms than the corresponding section of the old Code and it is contended that, whatever be the offence committed by a public servant, so long as he is acting in official capacity he is entitled to be protected by this section. In his petition of complaint the petitioner has given his own version of the occurrence. But the question must be determined with reference to the allegations in the complaint and the further question is whether at the time of the committing of the offence alleged against him the petitioner was acting or purporting to act in the discharge of his official duty.
2. It is strongly contended that all the time the petitioner was a Subdivisional Officer of the Public Works Department But we think it is going too far to say that, although the petitioner had gone to discharge some official duty in connexion with earth works, he was still purporting to act in the discharge of that duty when he got on the boat, lost his temper and assaulted the complainant. In the cases upon which Mr. Basu has relied, for instance in Gangarju v. Venki 1929 Mad 659 and Sasadhar Acharjya v. Charles Tegart 1931 Cal 646, the accused were no doubt purporting to act in the discharge of their official duty and the act complained of might be said to have been committed in excess of their duty. But in the present case it was no part of the official duty of the petitioner to beat the complainant. It was not merely an abuse of an official act, it was a differact altogether, and I am in agreement with the view taken in Amanat Ali v. Emperor 1929 Cal 724, that the act itself must be done in pursuance of the public office. The result is that the Rule must be discharged.