P L D 1960 Supreme Court (Pak (PLP)

Date of hearing: 19th May 1960. CORNELIUS, C. J.‑This is an appeal by special leave granted to the appellant S. M. H. Rizvi to call in question an order of the High Court whereby, rejecting a recommendation made by the Additional Sessions Judge, a direction was given to a Magistrate in Chittagong to proceed with the trial of a complaint‑case brought against the appellant by a subordinate of his named Abdus Salam. The appellant at the time of the occurrence was employed as an Executive Engineer in the East Bengal Railway at Chittagong. He took over charge of his post on the 5th December 1953, and on the evening of the 11th December, six days later at 6‑30 p.m. Abdus Salam complainant who was Establishment Clerk in Mr. Rizvi's office, submitted to him the pay sheets of about 800 workers, for orders of payment. Mr. Rizvi was dissatisfied with the manner of presentation of these bills. The complaint furnishes a few details on the point, viz. that Mr. Rizvi "picked up unnecessary loopholes regarding the taking of signatures of Head Clerk and to point out the different signatures of respective officer and clerk." A general condemnation of Mr. Rizvi as a man was added in the complaint in three paragraphs, stating inter alia that he is unmethodical in his working, very hot tempered, and "uses filthy languages of most vulgar nature towards the staff serving under him." From the report of an enquiry made by the Sub‑Inspector, Railway Police, Chittagong, the faults which Mr. Rizvi found appear more clearly, viz. that the bills did not bear the signatures either of Abdus Salam or of the Head Clerk, and Mr. Rizvi's point of view was that unless the Establishment Clerk and the Head Clerk had first checked the bills, in which several thousands rupees were involved, and had signed in token of correctness, it was impossible for him to pass them. From this report as well as from the complaint of Abdus Salam, it appears with sufficient clearness that Mr. Rizvi lost his temper as a result of the answers he received to his questions upon these points. The complainant's allegation was that in consequence of this loss of temper Mr. Rizvi employed abusive language towards him calling him "ruffian, idiot, nonsense etc." and gave him a blow on the eye with a file which was followed by a heavy blow with his fist on the right side of his face. It was added that even after Abdus Salam had left the room, Mr. Rizvi went out and chased him, whereupon other members of the staff came to his rescue, and Mr. Rizvi went back, uttering threats of murder. Upon these allegations, a complaint was presented in the Court by Abdus Salam against Mr. Rizvi citing sections 323 and 504 of Pakistan Penal Code, as well as a Martial Law Regulation. Along with the complaint a medical certificate by a private doctor was filed which showed that Abdus Salam had been examined at 8‑30 p.m. the same evening and besides congestion of blood in both eyes and "sub‑ conjunctival haemorrhage," there was a swelling on the right cheek. The Magistrate who received the complaint examined Abdus Salam and recorded his statement in which the actions of Mr. Rizvi were described as follows :‑ "At this the accused threw the file at my face and gave me slaps and fists. He also abused me in filthy languages. I wanted to leave the room but he chased me." When summoned by the Magistrate, Mr. Rizvi submitted, by peti tion, that the proceedings against him could not continue without the prior sanction of the Central Government, he being a Class I Officer of the Railway, citing in support two recent decisions of this Court, namely, the cases of Syed Ahmad (P L D 1958 S C (Pak.) 27) and Matior Rahman (P L D 1958 S C (Pak.) 21). It was added that Abdus Salam had committed serious irregularities in his work as a clerk, rendering him liable to be removed from service, and he had rushed to the Court with the complaint in order to save himself. The Magistrate after hearing the arguments decided that he would proceed with the case, observing as follows :‑ "Without going into the merits of the case all that can be said at this stage taking the case as it stands, is that the alleged assault cannot be an inseparable part of an official act done in the discharge of official duty." Thereupon, Mr. Rizvi moved the Sessions Judge for a reference to the High Court, and such a reference was made. The Additional Sessions Judge expressed the opinion that it was obvious that there had been exchange of words between the parties, that it was natural for Mr. Rizvi who had newly joined the office "to make enquiries regarding the system and also the signature of the Head Clerk on the pay bills, and other things from the complainant" and that Mr. Rizvi had no animosity towards Abdus Salam. From this the conclusion was drawn that :‑ "there is no manner of doubt that the occurrence took place while the petitioner was in his office in the discharge of his official duties and as such it is connected directly and inseparably with his official duty." Reference was then made to the case of Syed Ahmad which has been mentioned above. The case was heard by a learned Single Judge whose view was that upon the record as it stood "neither the nature of the offence nor the claim of the accused that he did it in course of his official duties can be or should be ascertained at this stage" and that evidence would be required for the purpose of determining these two questions, in particular, the ,evidence of the doctor. The trial Court was accordingly directed to proceed with the case and "to take into consideration accused and determine the said ingredients at a suitable state in accordance with law." It was against this order that Mr. Rizvi was granted special leave to appeal, to consider "whether on the principles laid down by this Court in Syed Ahmad v. The State the prosecution can proceed without sanction." Mr. K. Hossain appearing for the appellant has invited our attention to the published cases of Syed Ahmad and Matior Rahman and has pointed out that in each of these cases, there was some slight use of force by the officer involved, causing visible injury, and that in each case it was held that the excess of behaviour by the officer in question, while engaged in the performance of his official duty was not such as to take the action outside the scope of his official functions. He has argued that the facts here are precisely the same, and contends that the learned Judge in the High Court was not right in thinking that the record does not contain all things necessary for determination of the question whether the case can proceed without sanction of the Government. On the other hand, Mr. A. Sobhan appearing for Abdus Salam states that since this occurrence his client has been dismissed from service by order of the Deputy Chief Engineer on charges of misconduct, and it is not expected of them that Government's attitude in the matter can be at all sympathetic towards Abdus Salam who has suffered injury at the hands of Mr. Rizvi. He contends that the Magistrate was within his rights in holding that evidence should be led before he could be called upon to decide whether the acts lay within the scope of Mr. Rizvi's official func tions in the circumstances of the case. We are conscious of the importance of allowing to each Court how‑low‑soever full scope to exercise its powers within the law in the discharge of its functions. In a case where the initial complaint or report is of such a nature that it is doubtful whether a prima facie case of the offences alleged is made out, a Magistrate would be fully within his rights in calling for evidence before deciding that the complaint or report should be rejected. Equally, if he feels the necessity or otherwise of a sanction, as a pre‑requisite to the competency of the case, the Magistrate would he justified it calling for proof of such facts as would enable him to be satisfied A that he could not proceed without sanction. l:~t cases are conceivable in which the facts alleged in a complaint or report do not constitute a prima facie case of the offences alleged, and in such a case, if a Magistrate were to call for evidence, the duty of the Courts of correction would be to reverse that order and to dismiss the complaint or report. The case is similar where upon a correct view of the law, the complaint before a Magistrate cannot be proceeded with in the absence of sanction by reason of the facts alleged. In the present case, speaking with respect to the view taken in the High Court, we consider that the recommendation made by the Additional Sessions Judge should have been accepted. The facts alleged in the complaint are so closely similar in relevant respects to those in the earlier cases of Syed Ahmad and Matior Rahman that there need have been no doubt upon the question. The degree of force employed was slight, as is clearly shown by the minor nature of the injuries caused. Abdus Salam s oral statement makes clear also that these injuries were not the result of deliberately aimed blows, for he said that the accused "threw the file at his face," and followed this with "slaps and fists" not the "heavy blow on the right cheek" alleged in the complaint. The language attri buted to him and quoted in the complaint can hardly be described as filthy, and as for the alleged chase, it does not appear to be anything more than a forceful order to get out of the room. It does not take much reading between the lines then to make out that what happened was that when Abdus Salam failed to satisfy Mr. Rizvi that the bills which he was presenting for signa tures, involving several thousands of rupees had been properly scrutinized and checked in the office by the proper officials, namely, the Establishment Clerk and the dead Clerk, and gave unsatis factory replies to his questions, probably suggesting that Mr. Rizvi was being unmethodical, the officer lost his temper. If in that situation he threw the file at ttic clerk or even at his face, it would be difficult to hold that this action, though in excess of what another officer might have done, was not performed in the direct line of the official duties which he was discharging at the time, The further allegations in the complaint amount to nothing more than this, that after throwing the file at Abdus Salam, Mr. Rizvi pushed him out of the room, at the same time ordering him to get out. It appears from the report of the Railway Police Sub Inspector, that later the same evening, after the Head Clerk had signed the bills, they were passed by Mr. Rizvi, and from this it follows that the actions of which Abdus Salam complained were actions performed in the course of the official duty of examining, scrutinizing and passing the bills in question. It needs no emphasis that in attempting to obtain the signatures of Mr. Rizvi, on these bills, without themselves verifying the bills as correct, the clerks were actively leading him into error of which the consequences to him might have been serious. As this Court observed in its judgment in the case of Syed Ahmad, it must not be thought that thereby judicial approval is being given to any practice of superior officers assaulting their subordinates on every occasion that they find them guilty of inefficiency. That is a degrading form of behaviour, and is calcu lated to destroy rather than to preserve discipline. Should the practice begin to be wide‑spread, the Government, which has the over‑all control in almost all respects, over the behaviour of its servants in any Department, have ample power to check it either by departmental action, or by the method of sanctioning prose cution. The purpose of section 197, Criminal Procedure Code has often been declared in judicial pronouncements to be to protect public servants against vexatious prosecutions by members of the public. That may possibly be one object, but a more correct view would appear to be that the Government which has complete c control over its officials while engaged in the performance of their official functions, is by that section, also empowered to deal at its option with matters of excess in the discharge of those functions, provided that the excess is within the scope of those functions, and the behaviour cannot be thought to constitute an independents injury or offence falling within the ordinary law and wholly outside the departmental authority of the Government. Thus, if a member of the public suffers an injury at the hands of a public servant, and this need not necessarily be by violence, but is much more fre quently the result of faulty judgment or even defective outlook in the exercise of powers, it is always possible for the Government to visit the offence of the public servant within its disciplinary power, and at the same time to compensate the member of the public for his loss or damage. The case is even simpler where the parties are both employees in the same Department of the Government. There, unless the excess of behaviour be entirely outside the scope of the functions of the offending party, whether he be the superior or the subordinate, the Government has complete authority to deal with the matter within its disciplinary power. The purpose of section 197, Criminal Procedure Code appears to be to define a sphere in which departmental or administrative law should be, applicable at the option of Government to the conduct of public servants. The limits of the applicability of such administrative law are to be set in each case by the ordinary Criminal Courts, on the basis of their opinion as to whether the action in question was performed by the offending official "while acting or purporting to act in the discharge of his official duty." On this view, the question in the present case is not whether Mr. Rizvi should receive protection at the hands of the Central Government, but whether his alleged action lies within the scope of official functions, so as to be covered by the plenary disciplinary control of his employer, the Central Government, who may yet prefer to grant sanction for the offence to be tried by the ordinary Courts. Where this is the case, the duty of the ordinary Courts is plain and we consider that in the present case upon the facts, the actions attributed to Mr. Rizvi are such as lie within the scope of his official functions, even though they involved certain excesses of behaviour which have allegedly resulted in injury to the com plainant. The absence of animosity is plain. The behaviour complained of was intended to act as a corrective for clerks who were working unmethodically, and it produced the desired result. The injury caused was slight. In these circumstances, the duty of the Magistrate was to leave it to the Central Government to decide) whether they would deal with the matter in their own independent jurisdiction, or would allow it to be investigated and visited by the Criminal Courts. We accordingly allow this appeal and setting aside the order of the High Court we direct that the proceedings before the trial Court be stayed until there should be sanction by the Central Government for the prosecution. The complainant may, if so advised, make an application to the Central Government either directly or through the Magistrate for the purpose. A. H. Appeal allowed.