P L D 1971 Karachi 642 (PLP)

"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 per formance 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 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 considera tion of the acts alleged against the appellant. He is said to have used foul words of the abuse towards the complainant, but the latter has not complained of this. There is complaint of violence by slapping, pushing, and dragging by the shirt‑front so that his spectacles fell off. The accusations founded on these allegations fell under sections 323, 352 and 353 of the P. P. C. The aspect of the complainant being a public servant himself may be ignored." It was further observed at page 33 of the report:‑ "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, sectlon 197 of the Criminal P. C., would apply." Again it was further held:‑ "Our view is that the assault and hurt which are alleged are of a minor nature, and are connected directly, and inseparably with the discharge of the accused's duty which was that of supervising the performance of his duties by the complainant Muhammad Yaqub." In conclusion, out of the number of charges preferred against the accused in this case only those which satisfied the tests were held to be immune from prosecution without sanction under section 197, Cr. P. C. while the prosecution was allowed to proceed on the other charges which were not protected, such as, under sections 341 and 342, P. P. C.

5. The learned counsel for the petitioner further elaborated his stand by emphasising that the assault upon the petitioner could not be in the context of the performance of any duty, for even if the petitioner had refused either to incriminate himself or others, he could not be compelled to do so and upon his refusal he could not be assaulted with a view to compel him to make an incriminating statement, implicating himself and the others. Under the circumstances, the learned Additional District Magistrate could not defer taking cognizance upon the com plaint in view of section 197, Cr. P. C. Apart from the allegations in the complaint there is no other material on record at this stage to lead to a conclusion that assault would have been committed in accordance with the test laid down in the case of Syed Ahmad.

6. Mr. Naimuddin, the learned counsel for respondent No. 3, urged that in terms of section 197, Cr. P. C. this res pondent is not removable from his office save by or with the sanction of the Central Government and in the absence of such ‑a sanction he could not be prosecuted. He also took the stand that even according to the allegations in the complaint sanction is necessary because hurt was caused in the performance of his duty and at the most it can only be said to be in excess of the exact duty in question. Mr. Naimuddin was unable to contend, apart from the allegations made in the complaint, how the petitioner was beaten in the performance of his duty. All that he urged was that respondent No. 3 along with the other respondents had performed the duty cast on them under the provisions of the Sea Customs Act and this was not even disputed by the petitioner. Accordingly, the learned Additional Distrlct Magistrate was correct in not proceeding with the complaint without a proper sanction. What Mr. Naimuddin overlooked was whether hurt was connected directly and in separably with the discharge of this respondent's duty as was held in the case of Syed Ahmed. Prima facie from the allegations in the complaint it does not appear that hurt was connected with the performance of the duty and accordingly it is not possible to accept the contention of Mr. Naimuddin. He, however cited before me a number of authorities to support the above proposition. They are as follows:‑ (1) Sakuntala Bai v. Venkatakrishna Reddi A I R 1952 Mad. 667. (2) R. C. Pollard v. Satya Gopal Mazumdar A I R 1943 Cal. 594. (3) S. M. H. Rizvi v. Abdus Salam and another P L D 1960 S C 358. (4) Shree Kantiah Ramayya Munipalli and another v. State of Bombay A I R 1955 S C 287. (5) Dr. Hori Ram Singh v. Emperor A I R 1939 F C 43. (6) MatajoR Dobev and others v. H. C. Bhari and others P L D 1957 S C (Ind.) 160.

7. In the Madras case (Sakuntala Bai v. Venkatakrishna Reddi), the complainant was assaulted by a Custom Inspector in the alleged performance of his duty as she had refused to part with her gold bangles which she was wearing. She filed a complaint against the Custom Officer before the Stationary Sub- Magistrate, who took cognizance and issued summons under section 355, I. P. C. This case was subsequently transferred to the file of the District Magistrate who, upon a preliminary objection under section 197, Cr. P. C., dismissed the complaint. It was held in this case as under :‑ "So on the mere contention of the accused that even if he is assumed to have assaulted the complainant he would be protected under section 197, Cr. P. C., is meaningless. It is not a pure question of law but a mixed question of fact and law and has to be decided after investigation and cannot be short circuited by summarily throwing out the complaint." The contention of Mr. Naimuddin that in view of the allegations in the complaint, sanction was a prerequisite, loses merit upon the observations made in the above case. This case is not helpful to his stand.

8. In the Calcutta case (R. C. Pollard v. Satya Gopal Mazumdar) this contention was also repelled and it was held that it is not correct to say that whether section 197, Cr. P. C. is applicable or not must be decided by reference only to the statement made in the complaint. Emphasis was laid upon the phrase `take cognizance' in section 197, Cr. P. C. as meaning "to hear and determine" and it is only when the Court is satisfied upon the evidence recorded as a whole that the offence alleged was committed in the performance of the duty that it can drop the proceedings. This case also considered by the Supreme Court in Syed Ahmad's case anti it was held at page 32 of the report:‑ `'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 stave of the case that in resp:ct 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."

9. In the case of S. M. H. Rizvi v. Abdus Salam it was left open to the Magistrate to call for proof of such facts as would enable him to be satisfied that he could not proceed without sanction. In other words, sanction was not a prerequisite invariably and the Magistrate could proceed to take cognizance of the offence with a view to determine whether the offence was committed in the performance of duty. This decision also does not advance the contention of the learned counsel.

10. In the case of Shree Kantiah Ramayya Munipalli and another v. State of Bombay it was held that the offence of misappropriation was an act done in the discharge of duty and as such sanction was necessary before cognizance could be taken. The reasoning, upon which this view was taken, is the same as adopted in the case of Dr. Horl Ram Singh v. Emperor in which the question of sanction was considered in terms of section 270 of the Government of India Act, as a prerequisite before the accusation: against a public servant for falsification of accounts could be tried. The view in these cases is against that expressed by our Supreme Court in the case of Syed Ahmad and has, therefore, no efficacy. Even in a later case of the Supreme Court of India cited as Matajog Dobey and others v, H. C. Bhar' and others the view in these cases was not accepted in that form and it was held :‑ "It is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

11. The applicability of section 197, Cr. P. C. was again con sidered by the Supreme Court in the case of Iqbal Husain Siddiqui and 2 others v. State (1970 S C M R 726) and the view was taken as was expressed in the two earlier cases namely, Syed Ahmad v. The State and Matiur Rahman Diwan v. State (P L D 1958 S C (Pak.) 27) and the case was remanded to the trial Court for determining whether at the relevant time the appellants were engaged in the discharge of their official duties.

12. In conclusion, as a result of the above discussion it becomes clear that the necessity of sanction arses at a stage as indicated in Syed Ahmad's case. In the above light, it is premature to contend upon the allegations in the complaint alone that hurt was caused in the discharge of the official duties. As to the allegations of illegal arrest and wrongful confinement, it will be open to the A. D. M. to view these offences also in the light of the material placed before him.

13. Respondent No. 2 is dead. The prosecution against him has abated. The learned counsel for the parties have stated that it is only respondent No. 3 who is not removable from his office save by or with the sanction of the Government. As regards the remaining respondents 1 and 4 to 7, the learned counsel for the parties were not clear whether they are also removable by the Central Government. Mr. Naimuddin stated before me that this question could be determined by the A. D. M. if the orders were set aside. I may also observe here that the learned State counsel has fairly conceded to the view that I have taken above.

14. I would accordingly set aside the two orders of 3rd and 5th October 1968. In this view, the consequential request for sanction in the letter of 7th October 1968, becomes futile. I would further direct the trial Court to determine, in the first instance, whether the offences, if any, were committed by res pondents 1 and 3 to 7 whilst they were engaged at the relevant time in the discharge of their official duties and whether all or anyone of them are not removable from office save by or with the sanction of the Central Government. It is only when the trial Court is able to reach an affirmative conclusion on the above points that the question of sanction would arise. The revision is thus disposed of. S. A. H. Order accordingly.