ORDER Asthana, J.
1. This is an application In revision against the order of a first class Magistrate of Moradabad dismissing the complaint of the applicant Mukand Singh under Sections 331, 330 and 342, I. P. C. filed against the opposite parties, namely, Sri Vishnu Prasad, Deputy Superintendent of Police, and Zahir Ahmad, Head Constable, on the ground that the complaint was not entertain-able for want of sanction under Section 197, Criminal P. C., which order has been affirmed by the learned Sessions Judge, Moradabad.
2. It appears that the applicant Mukand Singh filed a complaint on 10-8-1953 against the opposite parties on the allegation that he was taken to the Police Station Chhajlet on 16-6-1953 maliciously by the opposite party 2 Zahir Ahmad and a Sub-Inspector, and while he was detained there he was tortured, beaten and kicked on account of which he received grievous hurt and was in much pain for several days and had to be treated in hospital.
It was also alleged in the complaint that the arrest of the applicant on 16-6-1953 was not shown by the opposite party in the Police Station and it was only after he had been beaten and received injuries that he was shown to have been arrested on 17-6-1953 in connection with some other charges and not on the charge for being In possession of illicit arms on which pretext he had been taken to the police station on 16-6-1953.
3. The learned Magistrate after a consideration of the evidence produced by the applicant and the various authorities cited on his behalf, came to the conclusion that the provisions of Section 197, Criminal P. C. were applicable to the case as the opposite parties were public servants and the acts alleged to have been committed by them were done by them in the discharge of their official duty. He, therefore, dismissed the complaint.
The learned Sessions Judge, in revision, after hearing the counsel for both the parties affirmed the decision of the learned Magistrate and agreed with him that the case was one covered by Section 197, Criminal P. C., and, as such, sanction of State Government was necessary before the prosecution of the opposite party.
4. It has been contended before me in revision that Section 197, Criminal P. C. was not applicable to the present case as the acts complained of could not be said to have been committed by the opposite parties in the discharge of their official duty. It was also contended that so far as the opposite party 2, namely, Zahir Ahmad, was concerned Section 197 was not applicable because he was removeable by the Superintendent of Police and not by the State Government. Section 197, Criminal P. C. runs as follows:
"When any person who is a judge within the meaning of Section 19, I. P. C., or when any Magistrate, or when any public servant who is not remove-able from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person employed in connection with the affairs of the Union, the Central Government; and
(b) in the case of a person employed in connection with the affairs of a State, the State Government."
5. It has not been disputed before me that opposite party No. 1, Sri Vishnu Prasad, was removeable from his office only by the State Government, and, as such, Section 197 will be applicable to his case if the other conditions laid down In that section were satisfied. So far as opposite party No. 2, namely, Zahir Ahmad, is concerned, Section 197 is obviously not applicable to his case as he is not removeable either by the State Government or by the Central Government but is removeable by the Superintendent of Police.
6. The question which, therefore, arises is whether the acts complained of were such as were committed by the opposite party while they were acting or purporting to act in the discharge of their official duty. In this connection it is necessary to refer to some of the cases for the applicants and also by the learned counsel for the State.
In 'H. H. B. Gill v. The King', AIR 1948 PC 128 (A) it was held that a public servant could only be said to act or purport to act In the discharge or his official duty if his act was such as to lie within the scope of his official duty; that a judge neither acted nor purported to act as a judge in receiving a bribe, though the Judgment which he delivered may be such an act, nor does a Government medical officer acted or purported to act as a public servant in picking the pocket of a patient whom he was examining, though the examination itself might be such an act.
It was further held that the test might well be whether the public servant, if challenged, could reasonably claim that what he did he did in virtue of his office; that a public servant charged with an offence under Section 120B read with Section 161, I. P. C. could not justify his act or receiving the bribe as an act done by him by virtue of the office that he held and that no sanction under Section 197 was, therefore, necessary for the institution of proceedings against a public servant for an offence under Section 120B read with Section 161, I. P. C.
7. In -- 'Phanindra Chandra v. The King', AIR 1949 PC 117 (B), It was held that a public servant could only be said to act or purport to act in the discharge of his official duty If the act was such as to lie within the scope of his official duty and the test whether he was so acting might very well be whether the public servant, if challenged in respect of the alleged act, could reasonably claim that what he did he did in virtue of his office.
In this case also the accused who was a public servant was charged under Section 161, I. P. C. for receiving bribe and the question which arose was whether the sanction under Section 197 was necessary for his prosecution. It was held that the taking of bribe was no part of the official duty of such public servant and, as such, no sanction under Section 197 was necessary for his prosecution.
8. In -- 'Bihari Rai v. The State', AIR 1952 Pat 253 (C), a complaint was filed against the Deputy Superintendent of Police that when he and other police officer had gone to the place of dacoity to investigate the dacoity the complainant, who along with them was also making a search for the dacoits, was called by the Deputy Superintendent of Police and on, his arrival, abused and slapped, and upon his protest beaten with a 'lathi'.
The complainant filed a complaint against him for the alleged wrongful act. It was contended on behalf of the accused that the complaint was not maintainable as no sanction under Section 197, Criminal P. C. had been taken before his prosecution.
It was held in this case that a public servant could only be said to act or purport to act in discharge of his official duty if his act was such as to lie within the scope of his official duty and there was nothing to indicate that the accused was acting or purporting to act in the discharge of his official duty and at the utmost the act complained of was committed during the investigation of a cognizable offence, and as such no sanction under Section 197, Criminal P. C. was necessary for his prosecution. The facts of this case are very similar to the case before me.
9. In -- 'Mahadeb Mukherjee v. Jagannath Prasad Sinha', AIR 1952 Pat 389 (D), it was held by the Patna High Court that for the application of Section 197, Criminal P. C. the test is not merely the official character of the person doing the act but the test is whether the nature of the act was such as to lie within the scope of the doer's official duty.
In this case one 'S' filed a petition in the Court of the Sub-Divisional Magistrate of Purulia in which he alleged that he was in great difficulties and the paddy crops would be destroyed if he was not allowed to take water from certain tanks in the village. At the time when the aforesaid application was moved the complainant was present in Court and he was a co-sharer in the tank from which irrigation was sought by the applicant.
The Sub-Divisional Magistrate asked the complainant to allow 'S' to irrigate his paddy crop from the said tank. The complainant said that he could not do so without consulting his co-sharers. Thereupon the Sub-Divisional Magistrate became furious and in the presence of several persons threatened the complainant. It was held that it could not be said that the Magistrate was acting in the discharge of his official duty and as such he was not entitled to the protection of Section 197, Criminal P. C.
10. In -- 'Nagwant Sahay v. D. W, Ife, AIR 1946 Pat 432 (E), it was held by the Patna High Court that the complaint could not be dismissed for want of sanction under Section 197, Criminal P. C. if it did not appear from the complaint that the act complained of was done by the accused in execution of their public duty. In this case the petitioners were students of a certain school. They were taken to the bungalow of the Deputy Commissioner where they were chastised by the Superintendent of Police and also by the Deputy Commissioner and the physical instructor.
The complaint was dismissed by the Magistrate on the ground that no sanction under Section 197, Criminal P. C. had been obtained by the complainant before he filed the complaint under Section 323, I. P. C. It was held that the accused could not be said to have acted in discharge of their official duty and as such no sanction was required before their prosecution.
11. In -- 'Hansraj Singh v. Rex', AIR 1949 All 632 (F), it was held by this Court that a public servant could only be said to act or purport to act in discharge of his official duty if his act was such as to lie within the scope of his official duty and where the accused who were public servants along with others cause grievous hurt to some persons those acts could not reasonably be considered acts done by them as public servants acting in the discharge of their duty, and as such no sanction under Section 197, Criminal P. C. was necessary for their prosecution in respect of such acts.
12. In -- 'Amrik Singh v. State of Pepsu', (S) AIR 1955 SC 309 (G), it was held by the Supreme Court that it was not every offence committed by a public servant which required sanction for prosecution under Section 197 (1), Criminal P. C., nor even every act done by him while he was actually engaged in the performance of his official duties; but if the act complained of was directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties, because that would really be a matter of defence on the merits which would have to be investigated at the trial, and could not arise at the state of the grant of sanction, which must have preceded the institution of the prosecution.
13. On behalf of opposite parties reliance has been placed on -- 'Sukhdeo v. Emperor', AIR 1934 All 978 (PI). It was held in this case by Bajpai, J. that where the allegation in the complaint was that insulting language was used by the Magistrate while he was holding his Court and while the complainant was in the witness-box, the absence of a sanction was a bar to the taking cognizance of the complaint, and the test was whether the officer at that particular moment was actually engaged or purporting to be engaged in the discharge of his official duty.
14. The next case is reported in -- 'Mata-jog Dobey v. H. C. Bhari', (S) AIR 1956 SC 44 (I). It was held in this case that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty, and no question of sanction could arise under Section 197 unless the act complained of was an offence; and the only point to determine was whether it was committed in the discharge of official duty.
The decisions in the above Privy Council cases and also in (S) AIR 1955 SC 309 (G), were approved in this case. It appears that in this case the accused who were officers of the Income-tax Department were authorised to make a search of the house of the complainant and seize certain documents which were required in connection with income-tax. The allegation made by the complainant was that during the course of the search they maltreated him and beat him.
The question which arose for consideration was whether the acts complained of were committed by the accused in the discharge of their official duty or they were entirely unconnected with it. Their Lordships have discussed this question at page 50 of the above report. The observation is in the following words :
"Let us, however, assume that Mr. Isaacs (counsel for the complainant) is right in his contention. Still it can be urged that the accused could claim that what they did was in the discharge of their official duty.
The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken but, surely, it could not be said that their act was necessarily mala fide and so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated. They could reasonably claim that what they did was in virtue of their official duty, whether the claim is ultimately found to be well-founded or not."
15. It will appear from the above observation itself that even in this case their Lordships were of the opinion that for the application of Section 197, Criminal P. C. it was necessary to be proved that the act complained of was connected with the discharge of the official duty and it must be within the scope of the duty of the accused. Where the act is not within the scope of the duty of the accused, even though the accused is a public servant, Section 197 could not apply.
16. Prom an examination of the above authorities it is clear that for the application of Section 197, Criminal P. C. it is necessary that the act complained of should be within the scope of the official duty of the accused and the mere fact that the accused is a public servant will not be sufficient to entitle him to the benefit of the provisions of this section if the act complained of does not come within the purview of his official duty.
With great respect to the learned Judge who decided the case reported in AIR 1934 All 978 (H), I regret to say that I am unable to agree with this decision. It is also against the trend of the other authorities which have been referred to above. According to this decision Section 197 is applicable irrespective of the fact whether the act complained of was part of the official duty of the public servant or not if at the time of the commission of the act the accused was engaged in the discharge of his official duty.
If this decision is accepted as correct it will amount to this that if a judge during the course of the evidence of a witness strikes him and causes him injuries assaults the counsel while he is arguing the case before him in case he is of the opinion that some of the arguments advanced by him are absurd, sanction will be necessary for his prosecution.
I do not think that it is any part of the duty of the judge to strike a witness while he is giving evidence before him or to abuse him. To take an-other case, if a police official who is interrogating a woman in connection with an offence of rape commits indecent assault on her it cannot be said that he will be protected under Section 197, Criminal P. C., though at the time of the commission of the indecent assault he was actually engaged in the discharge of his official duty in connection with the interrogation.
17. In the case before me the allegation against the accused was that they humiliated the complainant, maltreated him and beat him causing a number of injuries, while he was at the police station. I do not think that it was any part of the duty of the accused to assault the complainant while he was in their custody. In my opinion if the complainant is able to establish the allegation that the accused who as a Deputy Superintendent of Police assaulted and beat him while he was detained at the police station, it will not be any defence on the part of the accused that they did so in the exercise of their official duty.
It is only in those cases in case the allegations are proved, the accused could plead that he committed the acts in the discharge of his official duty that Section 197 would apply. In the circumstances. I am of opinion that the acts complained of by the complainant could not be said to have been committed by the accused in the discharge of their official duty and, as such, Section 197, Criminal P. C. is not applicable to the case.
18. I, therefore, allow this revision, set aside the order of the Courts below and send back the case to the District Magistrate with the direction that it shall be made over by him to some competent subordinate Magistrate for disposal according to law.
19. Learned Counsel for the opposite parties has made a request that the case may be certified as a fit one for appeal to the Supreme Court. In my opinion the question is well settled by the numerous authorities referred to above and I do not think that it is a case in which the necessary certificate should be granted. Accordingly, the certificate prayed for is refused.
20. I am informed by the learned counsel for the applicants that since this revision was filed in this Court the record of the case has been weeded out. He has filed certified copies of the relevant documents in this Court. They shall be sent down to the lower court for being put on the record.