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Criminal Appeal No. 30 of 1957, decided on 3rd December 1957,

(On appeal from the judgment and order of the High Court of Judicature at Dacca in East Pakistan, dated the 3rd July 1956, in Criminal Revision No. 80 of 1956).

S. 197‑Public servant acting in the discharge of official duty‑Acts reasonably connected with such duty regarding which a reasonable person might assume that the public servant could or might act in that way‑‑Covered by section‑Assault of a minor nature by public servant on a sub ordinate‑Section 197 applies‑"Previous sanction"‑Scope of phrase‑Prosecution not to be necessarily stifled at the outset for want of sanction.

Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the purposes of the protection afforded by section 197, Criminal P. C., in a sense wider than that covered by the precise acts which the official is authorised by the law or other instrument governing the matter, to perform. The act must therefore be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, a reasonable person might assume that he could or might act in that way. That is the sense in which the statement of the Privy Council in Gill's case,'(75 I A 41) viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be under stood.

Gill's case 75 ‑I A 41 ref.

Every such case must of course be decided upon its own acts, but the consensus of opinion, is that where the assault is of a minor nature, and therefore the exceeding of the authority which corresponds to the duty in question is slight, section 197 of the Criminal P. C., would apply.

Ram Chandra Rao' s case A I R 1942 Mad. 664 and Pollard's case A I R 1943 Cal. 594 ref.

Where allegations by a subordinate, in railway employ, against his superior, a District Traffic Superintendent, were referable to use of violence by "slapping, pushing and dragging by the shirt front" while both were discharging their duties with a passenger train, and further there was also the complaint that the accused thereafter ordered the Station Master to keep the com plainant under "lock and key" whereupon the complainant was detained for some time by the Station Master though not placed under lock and key;

Held, that no sanction was required in respect of the charges of wrongful confinement, though sanction was necessary in respect of the charge of assault.

Held further, that a Court trying or inquiring into an alleged offence of the relevant kind should drop the proceedings as soon as it is satisfied that the offence was committed (if at all) while the officer was acting or purporting to act in the discharge of his duties. In order to come to a conclusion on this point, the evidence recorded in the case is available, as for an ancillary or collateral purpose, notwithstanding that the Court could not take cognizance of the offence without prior sanction of the prescribed authority.

It is open to a Magistrate when trying a case of the relevant kind, to come to a conclusion at any stage of the case that in respect of some or, it may be all, the offences alleged, the sanction of the appropriate Government would be necessary under section 197 of the Criminal P. C.

The result might be that after such period of time as is necessary for obtaining the orders of the Government, 'the Magistrate could proceed to try the accused on all the charges, or alternatively on such of the charges as may be tried without the sanction of Government as well as those charges in respect of which the sanction of the Government may have been accorded. By following such a procedure, the risk of a prosecu tion being stifled at the outset would be avoided.

Pollard's case A I R 1943 Cal. 594 ref.

D. C. Roy, Senior Advocate, Supreme Court (S. R. Pal Advocate Supreme Court with him) instructed by Dharani Nath Dutta Attorney for Appellant.

A. Hakim, Advocate Supreme, Court instructed by Md. Fazlul Karim Attorney for Respondent.

Date of hearing: 20th May 1957.

This appeal, by special leave, is brought before the Court by one Syed Ahmad who is the accused person in a complaint by one Muhammad Yakub of offences under sections 341 (wrongful restraint), 342 (wrongful confinement), 352 (assault) and 353 (assaulting a public servant in the discharge of his duty), as well as of simple hurt under section 323, theft under section 379 and criminal misappropriation under section 403, P. P. C. All these offences are alleged to have been committed on the night of 26th June 1954. Syed Ahmad was an officer of the Pakistan Railways, serving as District Traffic Superintendent on the East Bengal Railway. .. The complainant Muhammad Yaqub is a subordinate official described as Crew in‑charge, on the same Railway. The accused and the complainant were travelling on duty on a train which left Lalmonirhat Station at 7‑45 p.m. and was to go to Burimari Railway Station. The duties of Muhammad Yaqub which are relevant for the purposes of this case appear to be to deal with passengers found to be travelling without ticket or those who wished to have their tickets extended beyond the printed designation. At an intermediate station called Kakina, a passenger who had no ticket was made over to Muhammad Yaqub by a ticket collector in the presence of .Mr. Syed Ahmad, who asked Muhammad Yaqub to hand the man over to the Station Master, Muhammad Yakub complained that while he was making out the necessary documents, Syed Ahmad lost his temper, gave him a slap, pulled him by the arm so that his spectacles "broke away", and snatched away his papers, which he returned a little later. Both then proceeded on the same train and at Tushbandar Railway Station a passenger asked Muhammad Yaqub to extend his ticket up to a certain station. The train had started in the meantime, and in order to make out the necessary document, Muhammad Yaqub sat down on a seat. Syed Ahmad who was standing took offence at this and lost his temper, but quietened down when Muhammad Yaqub explained that he had to sit in order to write. When another passenger in the same compartment was being dealt with in the same way, and Muhammad Yaqub again sat down prepare the document while Syed Ahmad was still stand ing, the latter is alleged to have become furious, to have called Muhammad Yaqub "bloody fool" and to have declare that when the train reached Burimari he would suspend Muhammad Yaqub. It is note worthy, however, that no complaint under section 504, of the P. P. C. is made by Muhammad Yaqub regarding either these words of abuse, or certain others which were used at Bara khata Station during an incident which is described as follows. At Barakhata Syed Ahmad brought a passenger to Muhammad Yaqub to be dealt with. Muhammad Yaqub could not prepare the document on the Platform which was unlighted, so he entered a compartment of the train intending to deal with the passenger there. At this it is said that Syed Ahmad again be came furious, snatched away Muhammad Yaqub' s paper as well as his purse containing Rs. 9‑13‑0 apparently collected, from passengers en route, and dragged him by his shirt to the Station Master. Syed Ahmad then used the following words:‑--

"Put this bugger under lock and key."

The Station Master appears to have kept Muhammad Yaqub under detention, although apparently not "under lock and key", until the following day when he was released from detention through the intervention of higher authorities. Muhammad Yaqub made reports at the Railway Police Station as well as to the Railway Officials of Barakhata on the 27th June 1954. On the 12th July 1954, he filed a complaint in the Court of the Sub- Divisional Officer, Sadar at Rangpur, containing the allegations detailed above.

The accused Syed Ahmad on the 15th July 1955, filed a written objection in the Court of the 1st Class Magistrate at Rangpur to whom the case had been sent praying that the petition "itself clearly shows the alleged offences to have been allegedly committed by the accused petitioner in the discharge of his official duties", and therefore cognizance could not be taken "without prior sanction from my employing authority, the Governor‑General of Pakistan, under section 197, Criminal P. C." By an order dated the 2nd August 1955, the objection was over ruled on the ground that it was not one of the duties of the accused as D. T. S., to assault the complainant when seizing his papers since it was not necessary for the purpose of such seizure to slap or assault him. Nothing was said about the other allega tions of offences contained in the complaint.

Thereupon Syed Ahmad moved the Sessions Judge by way of a petition in revision, for the same relief, and on the 20th January 1956, this petition was dismissed. The learned Sessions Judge also emphasized only the aspect of personal violence. He observed that it could not be said "that the accused petitioner was discharging his duties' by slapping an old Crew‑in‑charge like the complainant while the latter was discharging his duties also in his official capacity", and that it had not been shown that under the rules of the Railway Administration, a D. T. S., was authorised to "administer summary condign punishment to and assault one of his subordinates while the latter was discharging his duties for the purpose of seizure of the official books and official money from the hand of the complainant." The learned Sessions Judge was of the view that evidently, the accused had slapped the complainant "for ventilating outburst of temper." In examining whether the case was covered by section 197, Criminal P. C., the learned Sessions Judge laid before himself the following principles, namely :‑---

(1) that the act complained of should be so connected with the official duty as to become inseparable from it ;

(2) that the act must be shown to be done' or purport to be done in the discharge of official duty, and therefore must lie within the scope of official duty ; and

(3) that the test may very well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office as x public servant.

He held that these conditions had not been satisfied. The peti tion of Syed Ahmad was dismissed, and he thereupon moved the High Court on the revision side.

The case was heard by a learned single Judge who found that it was no part of Syed Ahmad's duty to assault Muhammad Yaqub and that it could not be said that it was "a part of Syed Ahmad's duties or that he was acting in discharge of his official duty when he slapped the complainant and committed the other offences as alleged." Accordingly, the rule was discharged. On the 15th November 1956, special leave was given to Syed Ahmad to appeal to this Court upon the representation that the acts of Syed Ahmad were due to his annoyance at Muhammad Yaqub' s inefficiency in the performance of his duties, which annoyance was magnified into a state of indignation by Muhammad Yaqub' s continued stupidity. On this view it was urged that Syed Ahmad's‑ actions might be in excess of power and even of functions, but it would be questionable whether the petitioner's behaviour could be described as being wholly divorced from the discharge of duty.

We have heard Mr. D. C. Roy for the appellant, and on the other side, the learned counsel for the Provincial Government and for Muhammad Yaqub have strenuously urged that the case does not fall within the provisions of section 197, Criminal P. C., in any aspect.

In every case which is represented as falling within section 197, Criminal P. C., it becomes necessary for the Court to examine, in the light of the relevant facts, what might be regarded as the reasonable limits applying to the freedom of action of the public servant when he is required to exercise the relevant duties. It has been said in certain cases that the question whether section 197, Criminal P. C., is attracted in a given case must be decided by reference only to the statements made in the petition of complaint. It seems to us that such a view might have the effect of destroying a substantial right which is vested in the Government of protecting its servants from harassment and persecution by misrepresentation of their actions so as to give them the appearance of offences. The view which appears to us to be the best adapted to carry out the intention as well as the express requirement of section 197, Criminal P. C., is that expressed by Lodge, J., in Pollard's case (A I R 1943 Cal. 594) with which opinion Khundkar, J., was in agreement. That view is to the effect that a Court trying or inquiring into an alleged offence of the relevant kind should drop the proceedings as soon as it is satisfied that the offence was committed (if at all) while the officer was acting or purporting to act in the dis charge of his duties. In order to come to a conclusion on this point, the evidence recorded in the case is available, as for an ancillary or collateral purpose, notwithstanding that the Court could not take cognizance of the offence without prior sanction of the prescribed authority. The record does not show whether the relevant authority has been approached to exercise its power under section 197, Criminal P. C., or whether it hag done so. Yet, that does not necessarily entail evasion of the provisions of that section. On the view which we take, it is open to a Magistrate; when trying a case of the relevant kind, to come to a conclusion at any stage of the case that in respect of some or, it may be all, the offences alleged, the sanction of the appropriate Government would be necessary under section 197 of the Criminal P. C.

The result might be that after such period of time as is necessary for obtaining the orders of the Government, the F Magistrate could proceed to try the accused on all the charges or alternatively on such of the charges as may be tried without the sanction of Government as well as those charges in respect of which the sanction of the Government may have been accorded. By following such a procedure, the risk of a pro secution being stifled at the cutest would be avoided.

But what the appellant through Mr. D. C. Roy contends for is that in the present case, everything which he is alleged to have done will be found, when the allegations are shorn of exaggera tion, to be acts done or purporting to be done in the discharge of official duty, so that this Court should hold that the case falls within section 197, Criminal P. C., and it is not open to the Magistrate to proceed further without obtaining the sanction of the appropriate Government. The Courts below have con currently held to the contrary effect, although it is only in the judgment of the High Court that any mention is made of any charge other than that of assault.

The principles which are applicable to the decision of the question before us are plain. Several of them have been correctly stated in the judgment of the learned Sessions Judge. The rule that for the application of section 197, Criminal P. C., a valid test might be that the act alleged against the public servant should lie within the scope of his official duty, and that he should be able to claim reasonably that what he did, he did in virtue of his office, was laid down by the Privy Council in Gill's case (75 I A 41) This principle has been cited with approval in a number of important cases decided subsequently. Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the pur pose of the protection afforded by section 197; Criminal P. C., in a sense wider than that covered by the precise acts which the official is authorised by the law or other instrument governing the A matter, to perform. The act must therefore be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, reasonable person might assume that he could or might act in that way. That in our view is the sense in which the statement of the Privy Council in Gill's case, viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood.

Bearing these principles in mind, we turn to the consideration of the acts alleged against the appellant. He is said to have used foul words of abuse towards the complainant, but the latter has not complained of this. There is a complaint of violence by slapping, pushing and dragging by the shirt‑from, so that his spectacles fell off. The accusations founded on these allegations fall under sections 323, 352 and 353 of the P. P. C .The aspect of the complainant being a public servant himself may be ignored. We have had cited to us a number of authori ties dealing with the question whether an assault by a public servant upon a member of the public who comes within the scope of his corrective jurisdiction through some act or default, falls within section 197, Criminal P. C. Every such case must of course be decided upon its own facts, but the consensus of opinion seems to be that where the assault is of a minor nature; and therefore the exceeding of the authority which corresponds to the duty in question is slight, section 197 of the Criminal P. C., would apply. In the case of Ram Chandra Rao (A I R 1942 Mad. 664), a Health Officer, there was such an assault upon the person of a man who, apparently contrary to regulations, had tied his cow to a tree thereby creating in sanitary conditions. A learned single Judge of the Madras High Court held that it was of course true that it was no part of the duty of the Health Officer to strike the complainant. Nothing that the Health Officer bore no enmity towards the complainant, the learned Judge came to the conclu sion that the Health Officer was undoubtedly acting as a public servant when he interfered with the complainant and struck him. The case of Pollard (A I R 1943 Cal. 594) which has already been cited is one where, while engaged in dealing with a restive crowd during a period of intense anti‑Government agitation, a Superintendent of Police was pestered with questions by a lawyer, who was related to one of the arrested agitators. He ordered the lawyer to be turned out of his compound and eventually pushed him bodily. It was held by the Full Bench of the Calcutta High Court that the case fell under section 197, Criminal P. C. We consider that there is no material difference between the assault and simple hurt attributed to the appellant, and the actions of the Health Officer and the Superintendent of Police in the cases just cited, so far as is relevant to the application of section 197, Criminal P. C. We observe that the Courts below have consistently emphasized the assault as ' being no part of the duty of the accused person in the case, and therefore they have held that section 197 of the Criminal P. C., does not apply to the case. Our view is that the assault and hurt which are alleged are of a minor nature, and are connected directly, and insepar ably with the discharge of the accused' s duty, which was that of supervising the performance of his duties by the complainant Muhammad Yaqub. The facts in the complaint seem clearly to show that the accused was greatly displeased and provoked by the slowness and inefficiency which Muhammad Yaqub was displaying in dealing with the several passengers who were brought to him by, or in the presence of, the accused. There is no indication that the accused bore any enmity towards the complainant.

In holding to this effect, we must not be understood to approve, in any way, of the conduct of officers who, while correcting their subordinates in regard to their duties, add force to the lesson by a slap or other form of slight personal violence. The practice is cruel and, at the same time, degrad ing, but we have no reason to think that it is widespread. Should it ever become so, a ready check is available in the power of sanctioning prosecutions conferred by section 197 of the Criminal P. C.

But it seems to us to be difficult to say in respect of the charges of wrongful restraint and confinement, which prima facie do not appear to be wholly false or grossly exaggerated, that the accused could reasonably claim that he acted in the discharge of his official duty when he ordered the Station Master to put Muhammad Yaqub under lock and key. The Station Master obeyed the direction by keeping Muhammad Yaqub under detention though apparently he was not locked up. We do not see how the appellant can claim that he gave this order in virtue of his office. Consequently, we consider that the charges under sections 341 and 342 of the P. P. C., are not such as require the sanction of the appropriate Government before they can be proceeded with.

Such sanction is of course necessary in relation to the allegations of offences under sections 379 and 403, P. P. C., as the books and the money seized by the accused were the property of Government, and the seizure was plainly effected in virtue of the appellant's office.

We accordingly allow this appeal in part, and direct as follows, namely, that the trial Court may proceed with the trial upon the charges under sections 341 and 342 of the P. P. C., but with respect to the remaining charges under sections 323, 352, 353 and 403, it shall not proceed until and unless the C sanction of the appropriate Government under section 197, Criminal P. C., has been accorded.

A. H. Order accordingly.

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