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Criminal Appeal No. 3/D of 1957, decided on 3rd December 1957.
(On Appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 13th March 1957, in Refer ence No. 233 of 1956).
S. 197‑Acts done "in virtue of office" though not within "precise powers" vested in public servant‑Sanction required.
Held, that even though some of the acts of a public servant may appear not to be within the precise powers vested in him, yet if he did them in virtue of his office, having no private axe to grind, such acts would have the protection of section 197, Criminal P. C.
To say that an Inspector of Prices and Supplies under the Essential Commodities Distribution Order, 1953, had acted in excess of the powers specified in section 20 of the Order, in the circumstances of the case, is not sufficient for holding that everything which the Inspector did was outside the scope of his duties, for his duties were multifarious, extending as they presumably did to the enforcement of the provisions of the Order.
Gill's case 75 I A 41 ref.
Ganapati Goundan's case A I R 1932 Mad. 214 explained.
The seizure by the Inspector of the currency notes, (being the price paid in a black‑marketing transaction) which appeared naturally enough to have been accompanied by slight use of force in this case, was clearly to be regarded as an act performed in the course of the detection of the offence, and in the attempt to collect all the evidence necessary for bringing the offender to justice.
Sanction therefore was necessary in respect of the charge of assault against the public servant concerned.
S. 197--‑Evidence recorded in case admissible for purpose of considering whether case falls under S. 197. ''
Evidence recorded in a case is admissible for the ancillary purpose of considering whether the case falls under section 197, Criminal Procedure Code.
Syed Ahmad's case P L D 1958 S C (Pak.) 27 ref.
offence‑Recognised 'mode of detecting offence.
The detention of offences under the Essential Supplies (Temporary Power) Act, 1946 and the bringing of the offenders to justice is a proper function of any officer entrusted with the duty of enforcement of the provisions of the Essential Commodities Distribution Order, 1953. One very well‑recognised and very widely practised mode in which offences of black‑marketing are detected and the offenders brought to Court is that adopted by the appellant in the present case, namely, upon receiving a complaint that a particular dealer engages in the practice of selling above control prices, to send a person to his shop to make a purchase, and to pay for it with marked currency notes in proof of the completion of the purchase, and the price actually paid. A trap is usually laid in the sense that responsible officials are detailed to witness his transaction unbeknown to the dealer, and upon the completion of the transaction, such persons disclose their identity and by taking in possession the article sold as well as the money received by the dealer in payment of the price, material evidence is secured without which the evidence in the case would be incomplete.
D. C. Roy Senior Advocate Supreme Court (S. K. Basu and A. K. M. Nurul Islam Advocates Supreme Court with him) instructed by Dharani Nath Dutta Attorney for Appellant.
B. A. Siddiky Advocate‑General of East Pakistan (A. T. M. Mustafa Advocate Supreme Court with him) instructed by Shahabuddin Ahmad Attorney for Respondent.
Faiyaz Ali Attorney‑General of Pakistan, under Order XLV, S. C. R., 1956.
Date of hearing : 27th November 1957.
This appeal, by special leave, is brought before the Court by one Matiar Rahman Dewan, an Inspector of Prices and Supplies, and arises out of certain action taken by him in that capacity on the 18th April 1956 in Dacca. It will be convenient to take the facts of the case as they are stated in the judgment under appeal, which is by a learned single Judge of the Dacca High Court. The statement is as fallows :‑---
"The said accused Matiar Rahman Dewan is an Inspector of Prices and Supplies under the Government of Pakistan who claims to be holding the said office as a public servant removable by or with the sanction of the Central Govern ment. It appears that on the 18th of April 1956, he together with some local police constables went to the shop of the complainant, claiming in his official capacity to have arranged a test purchase, and seized three Hercules bicycles and seven currency notes of the denomination of Rs. 100 each from the possession of the complainant, in the presence' of search witnesses; and thereafter commenced a prosecution of the said complainant for a black‑marketing offence which is now being investigated by the Special Police Branch of the Central Government.
The said complainant on the other hand on the 27th of April 1956, filed a complaint before the said Magistrate Mr. A. I. Chowdhury alleging that the said Matiar Rahman Dewan assaulted him, broke his spectacles as also stole a hundred rupee note. On the said complaint, the com plainant was examined on oath and the accused was summoned by the said Magistrate to answer a charge under section 323 of the P. P. C.
The question which has been raised in this appeal is as to the maintainability of the case filed against Matiar Rahman Dewan, without the sanction of the Central Government under section 197, Criminal P. C. It appears that the Assistant Controller‑General of Prices, as the superior officer of Matiar Rahman Dewan, reported to the Magistrate that sanction under section 197, Criminal P. C., was requisite for the purpose of taking cognizance of this case. Upon this the Magistrate made an order of which we have been provided with a certified copy, in the following terms :‑---
"The process had been issued after judicial enquiry, where a public servant commits an offence which could be committed by any body and which entails consequences neither in the way of penalty nor anything else in the least different from what it would entail if committed .by any body else, sanction is not required for his prosecution.
Moreover, there is a category of Government servant who cannot be removed but by the sanction of local Government or some higher authority, there only sanction is required (sic) required.
Sanction is not required in this case in any way."
Thereupon Matiar Rahman Dewan moved the Sessions Court on the revision side, and an Additional Sessions Judge referred the case to the High Court with a recommendation that the proceedings before the Magistrate be quashed on the view that without previous sanction of the Central Government under section 197, Criminal P. C., cognizance could not be taken of the offence alleged. As appears from the extract reproduced above from the judgment of the High Court, the learned Magistrate issued summons to Matiar Rahman Dewan to answer a charge under section 323 of the P. P. C. only. In the complaint, however, there was mentioned also an assault and damage to spectacles, besides which there was an allegation of theft of a hundred rupee note. Although in issuing the summons to Matiar Rahman Dewan, the learned Magistrate made no mention of these other offences alleged, yet, it would be open to him to frame charges of these offences if creditable evidence were produced before him to sustain them. Consequently, in considering the question of cognizance, in relation to section 197, Criminal P. C. it is proper that all the matters contained in the complaint should 'be considered.
The learned single Judge of the High Court rejected the reference made by the Additional Sessions Judge, after a consideration of the facts and the law, including a number of relevant authorities. It was contended before him on behalf of Matiar Rahman Dewan that whatever he did, he did in an attempt to seize the marked currency notes which had been passed to Gopinath Pal, in the course of the test purchase. For this action, power was sought to be derived from section 20 of the Essential Commodities Distri bution Order, 1953, which enables a duly authorised officer to enter and search premises and seize any scheduled articles in respect to which there is reason to believe that a contra vention of the Order has been committed. It was conceded that Matiar Rahman Dewan may have exceeded his authority in assaulting the complainant, but it was pleaded that he had no personal animus towards Gopinath Pal, and therefore the claim could reasonably be made by him that whatever he did, he did in virtue of his office.
It should be mentioned here that while in the complaint it had been alleged by Gopinath Pal that Matiar Rahman Dewan "hurled blows on his nose and face and broke away the spectacles in his eyes", the evidence produced in the prelimi nary enquiry tended to show that the assault was by no means so severe. Even Gopinath Pal himself when deposing prior to the issue of summons was only able to allege a single blow, but two of his witnesses Ali Ahmad and Dr. M. A. Hussain did not support him even to that extent. Ali Ahmad merely said that Gopinath Pal was assaulted and his spectacles were broken, while Dr. M. A. Hussain said that Matiar Rahman Dewan and a constable gave pushes to Gopinath Pal and his spectacles fell down. The evidence was also discrepant as to the allegation of theft. While Gopinath Pal said he handed over eight Rs. 100 notes, and only seven were entered in the memorandum prepared on the spot, one of his witnesses said he counted up to six notes only. As we have held in the case of Syed Ahmad (P L D 1958 S C (Pak.) 27) decided to‑day, this evidence is admissible for the ancillary purpose of considering whether the case falls under section 197, Criminal P. C. We conclude that the violence offered by Matiar Rahman Dewan to Gopinath was of a com paratively minor type, and that the accusation of theft was left in a state of doubt.
On behalf of the complainant, however, it was contended in the High Court that;
"It was no part of the duty of the officer concerned to either make a test purchase or to seize marked notes because the only authority that he had under the provi sions of the law referred to by Mr. Roy was to enter and search any premises or seize or authorise any, person to seize, a scheduled article. A currency note was not a scheduled article within the meaning of the said Order, nor could he have any authority or power to do any act whatsoever in connection= with any alleged offence con cerning a currency not, because that did not come within R' the ambit of the Essential Commodities Distribution Order, 1953."
This contention found favour with the learned single Judge whose judgment concludes as follows :‑---
"In the facts of the present case therefore since, as pointed out by Mr. Talukdar, the seizure of the marked notes was not within the scope of the functions of the officer concerned, he could, by no stretch of imagination, be held to be acting in the purported discharge of his official duties which could only extend to searching for and seizing scheduled commodities under the said Essential Commodities Distribu tion Order of 1953."
It seems to us that in so holding, the learned Judge has taken too narrow a view of the scope of the duties of an inspector of Prices and Supplies. Under the Essential Commodities Distribution Order, maximum prices of scheduled articles may be fixed, and it is clear that cycles are among the scheduled articles. By section 4 of the Order, it is provided that no dealer shall sell a scheduled article at a price higher than that fixed by the Controller‑General. The Essential Commodities Order, 1953, was promulgated in exercise of the powers conferred by section 3 of the Essential Supplies (Temporary Powers) Act, 1946 by section 7 of which penalties are provided for all persons who are found to contra vene an Order made under section 3 of the Act.
The detection of offences under the Act and the bringing of the offenders to justice is a proper function of any officer entrusted with the duty of enforcement of the provisions of the Order. One very well‑recognised and very widely practised mode in which offences of black‑marketing are detected and the offenders brought to Court is that adopted by Matiar Rahman Dewan in the present case, namely, upon receiving a complaint that a particular dealer engages in the practice of selling above control prices, to send a person to his shop to make a purchase, and to pay for it with marked currency notes in proof of the completion of the purchase, and the price actually paid. A trap is usually laid in the sense that responsible officials are detailed to witness his transaction unbeknown to the dealer, and upon the completion of the transaction, such persons disclose their identity and by taking in possession the article sold as well as the money received by the dealer in payment of the price, material evidence is secured without which the evidence in the case would be incomplete. Seizure of the marked notes in the present case was an act of Matiar Rahman Dewan performed for the purpose of securing the due administration of justice in relation to the offence of black‑marketing which he had been able to detect. It appears that through settling the scope of the duties of Matiar Rahman Dewan by reference only to section 20 of the Essential Commodities Distribution Order, 1953, a misconception arose which led to the conclusion that Matiar Rahman Dewan had acted in excess of his duties. To say that he had acted in excess of the powers specified in section 20 aforesaid was not, in the circumstances of the case, sufficient for holding that every thing which he did was outside the scope of his duties, for his duties were multifarious, extending as they presumably did to', the enforcement of the provisions of the Order.
The learned single Judge has cited in his judgment the well known dictum of the Privy Council in the case of Gill reported as (75 I A 41). It was said in that case that "a public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty", and that a proper test might be "whether the public servant, if challenged, can reasonably claim that what he does he does in virtue of his office". It is to be noted that the expressions used by the Judicial Committee do not relate to the specific powers vested in the officer. If they did, the dictum would certainly have had the effect of restricting within the words of the instrument conferring those powers, the limits within which the' public servant could claim to enjoy liberty of action. The expressions used are "official duty" and "office", both of which carry a much wider connotation than that which the learned single Judge was prepared to allow in respect of Matiar Rahman Dewan. Earlier in his judgment the learned Judge referred to the case of Ganapati Goundan (A I R 1932 Mad, 214), from which he has reproduced two extracts bearing upon the interpretation of the expression "acting or purporting to act in the discharge of his official duty". It was held in the Madras case that this phrase meant that the officer must be doing or purporting to do "the sort of act which the law or rules framed under the law allow him to do by virtue of his office" which was latter made even more specific by the use of the following words "the sort of act which he is empowered to do by virtue of his office". These words are certainly capable of being interpreted in the narrow sense i.e., that the officer must act within the four corners of the powers specified in law as being exercisable by him. Both passages, however, expressly mention "office" and therefore they are also capable of being understood in the wider sense for which Mr. D. C. Roy has contended before us. In the present case, however, it appears that the learned Judge has understood these passages in the narrow sense, which the dictum in the later judgment of the Privy Council has the effect of excluding.
The seizure of the notes, which appears naturally enough to have been accompanied by slight use of force, is clearly to be regarded as an act performed in the course of the detection of the offence, and in the attempt to collect all the evidence necessary for bringing the offender to justice. It becomes obvious that Matiar Rahman Dewan can reasonably claim that whatever he did‑ was within the scope of his official duty, and even though some of his acts may appear not to be within the precise-powers vested in him, yet he did them in virtue of his office, having no private axe to grind against Gopinath Pal. The case, therefore, appears to fall clearly within the mischief of section 197 of the Criminal P. C.
We accordingly allow this appeal and direct that the proceed ings before the learned Magistrate be quashed. No proceedings shall be held in the case until and unless proper sanction of the Government under section 197 of the Criminal P. C. has been obtained.
A. H. Appeal allowed.
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