P L D 1969 Peshawar 286 (PLP)

Section 197, Cr. P. C. covers the case of those Government servants who are removable from service either by the Central Government or by the Provincial Government. In case from service by any other authority under the control of such Governments, this protection would not apply ..The appointing authority for the Deputy Superintendent, Inspector and Sepoy of Land Customs is the Collector of Customs and not the Central Government itself. As such the permission of the President of Pakistan would not be necessary for the prosecution of such Government servants. The order of discharge was, in the opinion of the learned District Magistrate, legally not tenable, and it was therefore set aside. 3. The material facts are that a case against the petitioners was registered on the report of Akhtar Muhammad, driver of private Car No. 3326 PRA on 13th August 1967. He furnished the following facts : on the night of 13th August 1967, Muzaflar Khan deceased with his driver Akhtar Muhammad was going in the private Car No. 3326 PRA from Nowshera to Nawan Killi Mardan. On reaching the Railway Bridge Kabul River, they found the gate closed. Muzaffar Khan deceased got down from his car in order to urinate. In the meanwhile firing started from the gate side hitting Muzaffar Khan deceased who expired there and then. The driver of the car went to Peshawar and informed the relations of the deceased who accompanied him to the spot and then the report was lodged by the driver and no one was charged by name in the report, but it was deposed that the Customs Officers had fired at the deceased. During the investigation, it transpired that the petitioners were on duty at Kabul River Bridge, Nowshera at that particular time and they opened fire at the deceased taking him to be a smuggler. The Customs. Officers alleged that they were fired from the opposite side and a cross‑case under section 307, P. P. C. was registered against the occupants of the car, which is also pending in the Court of the Magistrate 1st Class, Nowshera. 4. On above facts the simple question that falls for determination in this case is whether sanction under section 197, Criminal Procedure Code was necessary for the prosecution of the petitioners. It is an admitted fact that the petitioners are public servants who are removable from their offices by officer subordinate to the Central Government, or in other words, they are 'not public servants who are removable from their office with the sanction of the Central Government. On behalf of the petitioners, however, reliance was placed on a reported case of this Court in Zaheer All v. The State (P L D 1965 Kar. 180). In this case, the petitioner held a post of peon in the office of the Election Commissioner. The material facts of that case were these: The petitioner Zaheer Ali is a peon in the Chief Election Commissioner's Office at Karachi. He bad gone to serve a notice to the office of one Rehanul Hasan Faruqi Advocate and he complained that the said Advocate tore off the notice and gave him a beating. This information having been given by the peon to the Section Officer, the latter sent a written complaint about it to the police station concerned and a case under section 332, P. P. C. was registered. The police found the case to be false and submitted a final report on 15‑7‑62 and on 20‑7‑62 after obtaining the sanction of the S. D. M. of the area concerned challaned the accused under section 182, P. P. C. The accused appeared before the Magistrate and pleaded not guilty and wished to be tried. On the next date he was represented by Mr. Shakir Ali Advocate who took the plea that in the absence of a sanction under section 197, Cr. P. C. the prosecution of the accused was not valid and that he was entitled to be discharged. The learned Magistrate Mr. Azizuddin Ahmad wrote a reasoned order and held that the petitioner was entitled to the protection under section 197, Cr. P. C. and in the absence of a sanction he could not be prosecuted. He accordingly discharged him. A revision application was taken by the prosecuting Sub‑Inspector to the Court of the Additional District Magistrate, Karachi and the learned A. D. M. held that Zaheer Ali peon being a Class IV servant was removable from his office by the head of the department and as such lie was not entitled to the protection afforded by section 197, Cr. P. C." On these facts it was remarked by his Lordship Mr. Justice A. S. Faruqui : "It appears to me to be plain that the order of the learned City and Additional District Magistrate cannot be sustained. Under Article 178 of the Constitution appointments to a civil post in connection with the affairs of the Center are to be made by the President of a person authorised by the President in that behalf. The Chief Election Commissioner is appointed by the President under Article 147 of the Constitution. Under Article 154 the Commissioner may make rules providing for the appointment of officers and servants and for the terms and conditions of employment but this is to be done with the approval of the President. Rule 14 of the cavil Services (Classification, Control and Appeal) Rules gives seven classifications of the public service and a 1V grade post comes within the seventh class." His Lordship Mr. Justice‑ A. S. Faruqui proceeded to observe:‑ "The petitioner holds a post in the office of the Election Commissioner which is a civil post in connection with the affairs of the center. The mere fact that he can be removed from his office by the head of the department does not disentitle him from the protection of section 197, Cr. P. C. The head of the department is merely a delegate of the Central Government. The act of the delegate is to be considered an act of the delegator. It follows that when an order of removal of a Class IV servant is made by the head of the department that act of the department is in consequence of the delegation made to him by the Central Government. The act, therefore, becomes that of the Central Government. If any authority is needed reference may be made to the case of Newbould v. Emperor A I R 1936 Lah. 781:" Reliance was placed in this case as just noticed on H. A. M. Newbould v. Emperor (A I R 1936 Lab. 781). It will be instructive to note that H. A. M. Newbould v. Emperor was in turn based on In re: Abdul Khadir Saheb (A I R 1917 Mad. 334) and Kyaw Htin v. Ah Yoo (A I R 1934 Rang. 238). The Madras authority of 1917 was later examined in Pichai Pillai and others v. Balasundara Mudaly (A I R 1935 Mad. 442) wherein at page 444 it was ruled‑ "Now, if we adopt the construction accepted by Coutts 7rotter, J., the result would be that all servants of Government as that expression is commonly understood, will come within the section, because the power to remove them is in every case derived from the local Government or from some higher authority, the Government of India or the Secretary of State. It is true that if the expression `public servant' had been used without any qualification it would have had to bear the meaning attached to it by section 21, I. P. C. and extended to the Criminal Procedure Code by section 4 of the latter Code, and it would thus have included such persons as jurors, arbitrators and others not ordinarily comprehended within the term. It may then be argued that it was the purpose of the framers of the section to exclude `public servants' of this kind and that the section does so. We do not think that this accounts for the particularity of the language used. If the action of delega tion was present to the minds of the drafter of the section, there was nothing to prevent them from indicating this. Even so, to frame a section on such lines would have been a very unnatural and a very misleading way of expressing the intention that all Government servants, in the usual acceptation of that phrase, were to be included. How misleading it would be is shown by the cases we have cited in which the alternative view has been taken for granted. We think that the section clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Local Government to their prosecution be necessary. This intention appears to be so clear from the terms of the section that, while we agree that a protective provision of this nature should be construed as widely as possible, we do not feel called upon to enter into the merits of a policy which thus distinguishes between public servants who may be prosecuted and those who may not be prosecuted without the sanction prescribed. Nor do we think that any valid ground of distinction is to be found in the means adopted to empower the officer beneath the rank of the Local Government to pass an order of removal. Mr. Jayarama Ayyar has endeavoured to distinguish between an act of delegation and an act of empowerment, and between statutory provisions and executive orders. It may be conceded that all such means to achieve the end proposed are nothing more nor less than acts of delegation, and that while so delegating its power the delegating authority does not divest itself of a corresponding power. It is not reasonable to suppose that in framing the section it was intended that any such fine‑drawn distinctions should be observed, and we conclude accordingly that the expression‑ any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority', will not include public servants whom some lower authority has by law or rule or order been empowered to remove." 5. The same question came up for consideration in Afzalur Rehman and others v. Emperor (A 1 R 1943 F C 18). It is an admitted fact that before the Federal Court decision noted above there was a conflict of decision as to whether section 197, Cr. P. C. applied to public servants who are removable from office by an authority to whom the Government has delegated the powers of dismissal. On the one, hand, it was, as stated earlier, held by the High Courts of Madras, Lahore and Rangoon that the section applied in such cases, but the contrary view was taken later in a Madras decision by a Division Bench in Pichai Pillai and others v. Balasundara Mudaly and the matter was finally clinched in the Federal Court and the decisions in In re: Abdul Khadir Saheb and Kyaw Hitin v. Ah Yoo were overruled. In the present case, reliance was placed on Zaheer Ali v. The State which was based on H. A. M. Newbould v. Emperor which in turn was based on In re : Abdul Khadir Saheb and since the basic authority has been overruled, H. A. M. Newbould v. Emperor cannot also be considered as lying down good law. In Zaheer Ali v. The State the Federal Court authority reported as Afzalur Rahman and others v. Emperor overruling In re : Abdul Khadir Saheb and Kyaw Htin v. Ah Yoo was not brought to the notice of A. S. Faruqui, J. as he then was. It will be necessary to quote extensively from the Federal Court authority. Dealing with this question, their Lordships of the Federal Court observed‑ "We deal first with the objection under section 197, Criminal P. C. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector‑General of Police and the Excise Sub‑Inspector by the Excise Com missioner. But the appellants contend that such dismissal by a subordinate officer like the Deputy Inspector‑General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspec tor‑General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government, within the meaning of section 193, Criminal P. C. They lay stress upon the use of the very term 'delgate' in para. (e) of subsection (2) of section 7, Bihar and Orissa Excise Act when it provides for the Local Government delegating to the Excise Commissioner all or any of the powers conferred upon the local Government by or under that Act. It was recognized that the language of section 7, Police Act (V of 1861) would not fit in with this argument, as under section 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector‑General, Deputy Inspector -General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon section 241 (1) (b), Constitution Act, which vests the power of appointment in the Governor or such person as be may direct'. Reading this paragraph of section 241 with sub section (2) of section 240, it was sought to maintain that the power of dismissal (like the power of appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have been exercised by such authority under the direction and therefore only as the agent of the Governor. Authority was found in support of the above line of argument in a judgment of Courts Trotter, J. (as he then was) in A I R 1917 Mad. 344 (In re : Abdul Khadir Saheb) which was followed by a Single Judge of the Rangoon High Court in 12 Rang. 530‑A I R 1934 Rang 238 (Kyaw Htin v. Ah Yoo). With great respect to the learned Judges with whom this line of argument has found favour, we are of opinion that the argument is fallacious. This provision which in one form or another, has appeared in successive Codes of Crimi nal Procedure for more than 70 years new, must be inter preted in the light of certain well‑known features of the administrative system prevailing in India. Otherwise, as pointed out in 58 Mad. 787 (Pichai Pillai v. Balasundara Mudaly), there is the danger of our ignoring the policy of the Legislature in limiting the class of officers entitled to this protection and of making section 197 available to all public officers. As early as in the Government of India Act, 1919, it was recognized that the power of making appointments of officers in Indian was divided and distri buted amongst several authorities in India and existing usage and regulations relating thereto were continued, subject to the reservation of power to the Secretary of State‑in‑Council to make regulations: see sections 30 and 37. In exercise of this power, rues and regulations have been framed from time to time, divid ing the superior and the subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. Section 96‑B (2), Govern ment of India Act, 1919, recognized the rules of this kind then in force and provided for the Secretary of State making rules in that behalf and also for delegation by him of the rule‑making power to the Governor‑General‑in‑Council or to a local Government. As enactments both of the Indian Legislature and of local Legislatures had sometimes provided (e.g., the provisions of the Police Act, 1861, and the Bihar and Orissa Excise Act, 1915, referred to above) for appoint ments to and dismissals from various offices, that system also was recognized in the same section of the Government of India Act, 1919. The provisions of section 241 and section 240 (2), Constitution Act of 1935, should also be understood in the light of the long‑standing practice. The provisions relating to appeals, contained in paras. (b) and (c) of subsection (3) of section 241, clearly contemplate that in some cases the dismissal may be by an authority subordinate to the Governor, if that had been the pre‑existing practice. Rules of the kind above referred to have all along provided that certain class of officers can be dismissed only by or with the sanction of the local Government and it is to this class of officers that the Legislature must have intended to limit the protection given by section 197, Criminal P. C. In this view, it is unnecessary to consider (i) whether and how far the maxim: qui facit per alium facit per se, which be longs to the ordinary law of principal and agent, can be imported into the, determination of questions relating to the position of public officers inter se when both officers are acting only in their official capacity and (ii) whether even the application of this maxim will help the appellants in this case. It has always been recognized that even in determining questions involving the relationship of a public servant to the Crown and the liability of the State for acts of public Officers, the principles of the ordinary law of agency cannot be applied except with considerable qualifi cations. As to the state of judicial authority bearing upon section 197, Criminal P. C., we may mention that the decision of Courts‑Trotter, J., has b en dissented from in the Madras High Court itself by a Division Bench in 58 Mad. 787 Pichai Pillai v. Balasundara Mudaly) and by a Division Bench of the Allahabad High Court in 48 All. 264 (Emperor v. Jalal -ud‑Din). The decision of Coutts‑Trotter, J., as well as the Single Judge's judgment in A I R 1934 Rang. 238 (Kyaw Han v. Ah Yoo) have in effect, though not in terms, been disregarded by a Full Bench of the Rangoon High Court in 13 Rang. 540 (Emperor v. Maung Bo Maung), we are of opinion that there is no force in the objection based on section 197, Criminal P. C." 6. After having extensively quoted from the Federal Court .judgment and earlier from the D. B. judgment of the Madras High Court in Pichai Pillai v. Balasundara Mudaly, it must be plain that reliance on Article 178 of the Constitu tion by A. S. Faruqui, J. as he then was, in Zaheer Ali v. The State and the observation of his Lordship that the act of the delegate is to be considered as an act of the delegator in relation to Zaheer Ali's case "who held a post in the office of the Election Commissioner which is a civil post in connection with the affairs of the centre. The mere fact that he can be removed from his office by the head of the Department does not disentitle him from the protection of section 197, Cr. P. C. The head of the Department is a mere delegate of the Central Government . . . . ." can be of no avail and assistance, because the provisions corresponding to Article 178 of the Constitution also existed both in the Government of India Act, 1919 section 96‑B (2) and the Government of India Act, 1935 (sections 240 and 241), which provisions were duly noticed and examined by their Lordships of the Federal Court. The judgments of the Federal Court and the Division Bench of the Madras High Court on the interpretation of section 197, Cr. P. C. had, therefore, proceded, notwithstanding the existence of the provisions corres ponding to Article 178 of the Constitution ; and the Division Bench of the Madras High Court had clearly ruled after discussing all the legal aspects that "section 197, Cr. P. C. clearly intended to draw a line between public servants to provide that only in the case of higher ranks should the sanction of the local Government to their prosecution be necessary". The two authorities on which the case of H. A. M. Newbould v. Emperor was based and upon which A. S. Faruqui, J. as he then was, had relied (all the three judgments ‑ were by Single Benches, vin. Curris, Coutts‑ Trotter and Mosley, JJ. were latter either expressly overruled' or dissented from by the larger Benchps. 7. In the above view of the law on the interpretation of section 197, Criminal Procedure Code, it can now be very safely concluded that the expression "any public servant who is not removable from his office save by or with the sanction of the Central Government or of the Provincial Government, will not include public servants whom some lower authority has by law or rule or order been empowered to remove. The petitioners, it conceded, were removable from their office without the sanction of the Central Government and, as such no sanction under section 197, Cr. P. C. was necessary for their, prosecution. The revision petition is, therefore, rejected. S. G. D. Petition rejected.