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Criminal Revision No. 286 of 1953, decided on 6th August 1953.

S. 197‑Application.

For the application of section 197, Criminal P. C., in prosecuting a public servant the test to be applied in deciding its application is to see whether the public servant, if challenged could reasonably claim that what he did, he did in virtue of his office. A Sub‑Inspector of Police charged with abetment of dacoity and arson cannot claim that he did this in virtue of his office.

H. H. B. Gill and another v. The King Emperor 52 C W N 567 ref.

Hamid‑ul‑Haq Choudhury and Abdul Hayee for Petitioner.

D. C. Roy for Opposite Parties No. 1‑9.

Seyed Abdul Ghani for Opposite Parties No. 10‑14.

‑The petitioner in this case is one Aminul Haque. He lodged a complaint in the Court of the Sub-divi sional Magistrate (B), Chittagong on the 27th of November 1952, accusing the opposite parties Abdul Motaleb, Ahmed Meah. Karim Bux, Badsha Meah, Nazir Ahmed and others of committing dacoity, arson, wrongful confinement and other offences in his house on the 26th of November 1952. The Sub-divisional Magistrate examined Aminul Hague on solemn affirmation and then recorded that the complaint revealed an alleged offence under section 393 of the P. P. C., against the large number of persons, including the Officer‑in‑charge of Patiya Police Station. The Magistrate was not inclined to issue processes without a thorough enquiry by a Magistrate of the 1st Class and so he sent the complaint to Mr. S. B. Das for an enquiry under section 202 of the Criminal P. C.

Mr. S. B. Das held an exhaustive enquiry and wrote out a report on the 26th of December 1952. The substance of his report was that the complaint against the other persons was substantially true. With regard to the Officer‑in‑charge of Patiya Police Station the enquiring officer found that he first protested against the action which was being taken by the co‑accused but to no effect. After his unavailing protest he pursued a policy of masterly inactivity and took no steps whatever to prevent the commission of the offences. Accord ingly, the enquiring officer thought that he had intentionally aided the Commission of these offences by his illegal omission to prevent the same.

When the Sub-divisional Magistrate received Mr. S. B. Das's report he was faced with responsibility of making up his mind whether to issue process against the Sub‑Inspector as well as the other accused or whether to dismiss the complaint. He solved his difficulty by sending the matter up to the District Magistrate because in his opinion, if the Sub‑Inspector was placed on trial he would be likely to raise the question as to whether a sanction under section 197 of the Criminal P. C., was necessary for his prosecution. The material portion of the Magistrate's order is as follows:

"The Sub‑Inspector is said to be O/C, Patiya P. S., named Wahab Mia (or Abdul Wahab ) As he is alleged to have aided the commission of this offence in the course of a so‑called investigation of a murder case and also of a theft case he will surely claim to have been on duty. So he is likely to raise the question of a sanction under section 197, Criminal P. C. for his trial for an offence punishable under sections 114/395/342/346, P. P. C., along with others.

" Move D. M. furnishing a copy of enquiring Magistrate's report for favour of necessary action and put up on 14th January 1953, for further orders."

The matter then went before the Magistrate of Chittagong, but it was not until the 2nd of April 1953, that he passed an order in the case. We observe from his order‑sheet that he is supposed to have been "otherwise busy" on the 11th of February, 22nd of February and on the 16th of March. It is unfortunate that he could not find time to attend to this matter for three months; particularly when the order which he ultimately passed was of the character of the one we find on the record.

The District Magistrate passed the following order on the 2nd of April 1953:

" I have considered all the connected papers. It appears there have been some omissions committed by the enquiring Magistrate.

" Let the case against the remaining accd. proceed. After final disposal of the case against the remaining accd the case against the O/C. Patiya Mv. Abdul Wahab will be taken up."

The learned Sub-divisional Magistrate avoided the responsibility of making any decision by sending the case up to the District Magistrate. The District Magistrate shirked the respon sibility of making any decision by directing that the case against the other accused should proceed and after its final disposal the case against the Sub‑Inspector would be taken up.

The matter was then taken before the Sessions Judge of Chittagong and on the 22nd of May 1953, he recorded that the order of the District Magistrate was not a proper order ; that the remedy of the party was to move the Hon'ble High Court and not to move the Sessions Judge. The petitioner Aminul Haque has now moved this Court and obtained the present Rule.

Mr. Abdul Hye has appeared for the petitioner while Mr. Hamidul Huq appeared for the opposite party.

Mr. Hye advances the argument that no sanction was necessary for the prosecution of the Sub‑Inspector in this case. It is quite clear that no sanction was necessary. In this connection we would refer the Sub-divisional Magistrate to tile case of H. H. B. Gill and another v. The King Emperor (52 C W N 567). There their Lordships of the Judicial Committee of the Privy Council held that no sanction under section 197 of tire Criminal P. C., would be necessary in such cases. In the body of the: reported judgment their Lordships laid down that the test to be considered is whether the public servant, if challenged, could reasonably claim that what he did he did in virtue of his office. Tested by this touchstone it is clear that the Sub‑Inspector who is charged with the abetment of dacoity and arson cannot possibly claim that he did this in virtue of his office.

Mr. Hye claims that the Sub-divisional Officer when he received the report of Mr. S. B. Das could either have summoned the accused or could have dismissed complaint. We are in agreement with him on this point. He also claims that the Court Inspector had no locus standi to move the District Magistrate in the matter even if he claimed to be acting in the interest of the Sub‑Inspector because the Sub- Inspector was not an accused in this case and had no locus standi himself. This being so Mr. Hye argues that the order of the District Magistrate was without jurisdiction. We are inclined to agree with him on this point. Even if it was an order passed with jurisdiction it was clearly an improper order and cannot possibly be supported. He as well as the Sub-divisional Magistrate shirked the responsibility of deciding whether or not a summons should be issued against the Officer‑in‑charge of Patiya Police Station.

Mr. Hamidul Haq appearing on behalf of the opposite parties has advised us that the Sub‑Inspector joined the Police Station as Officer‑in‑charge only on the 2nd of November 1952, and thereafter T was busy investigating successive cases in which the petitioner was implicated. There was a case under section 302 of the Code, another one under sections 143/379 of the Code. These two were prior to the occurrence of the 26th of November 1952, and there was a subsequent case under section 353 on the 29th of November 1952. These are of course relevant facts which will have to be taken into consideration at the proper time and place.

In our opinion, it is quite clear that the order of the District Magistrate, dated the 2nd of April 1953, cannot be supported and neither can the order of the Sub-divisional Magistrate dated the 5th of January 1953.

In these circumstances, the Rule is made absolute. The two offending orders are set aside and the case is sent back again to the Sub-divisional Magistrate (B) of Chittagong with the direction that he shall now make up his mind on the report submitted by Mr. S. B. Das whether to issue process against the accused or not. He has the alternative before him either to summon the accused or to dismiss the complaint and the responsibility is his to make that decision.

‑I agree.

K. B. A. Rule made absolute.

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