P L D 1956 (W (PLP)

S. A. RAHMAN, C. J.

A criminal complaint filed by Dilbar Hussain against Chaudhary Khurshid Ahmad, Magistrate 1st class with section 30 Powers Gujranwala, under sections 500 and 504, Pakistan P. C., was summarily dismissed by the learned A. D. M., Gujranwala, on the ground that previous sanction for the prosecution of the accused was necessary under section 197 of the Criminal Procedure Code. A revision petition presented to the learned Sessions judge failed. Dilbar Hussain has come up in revision against that order to this Court. The complainant‑petitioner was an accused in a case under sections 366 and 376, Pakistan P. C., which was being tried by the respondent, Chaudhary Khurshid Ahmad. On one of the date of hearing in the course of the trial, the complainant petitioner intimated to the respondent that he wanted an adjournment of the case so that he might move for the transfer of the case from his Court. On hearing this, according to the allegations made in the complaint, the respondent flared up and filthily abused the petitioner. The complainant went on to recite that the petitioner controlled himself with great difficulty and claimed that the use of abusive language by the respondent had harmed the reputation of the complainant in addition. The question, therefore, that falls for determina tion is whether the act attributed to the respondent was committed by him while "acting or purporting to act in the discharge of his official duty", within the meaning of section 197, Criminal P. C. The incident in question took place on the 3rd of May 1955, before the new Constitution of Pakistan was promulgated. Undoubtedly at that time, if the act complained of was covered by section 197, Criminal P. C., no complaint with regard to it could be entertained without the requisite sanction from competent authority. It was, however, sought to be argued on behalf of the petitioner by Mr. M. A. Zaidi, that the provisions of section 197, Criminal P. C., were repugnant to those of Article 5 of our Constitution and, consequently, could no longer be invoked in bar of the complaint, by virtue of Article 4 of ‑the Constitution. Article 5 declares that all citizens are equal before the law A and are entitled to equal protection. This provision occurs in Part II of the Constitution which deals with Fundamental Rights, and Article 4 thereof provides that any existing law or any custom or usage having force of law, so far as it is inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void. Whatever the future position of section 197, Criminal P. C. be, in the face of Article 5 of the Constitution, I am of the opinion that the argument raised is of no avail in respect of an incident which happened before the Constitu tion was enforced. It is a cardinal principle of interpretation of statutes that, except in matter of pure procedure a statute will not be regarded as operating retrospectively, unless it is so expressly provided therein or the inference follows by necessary implication or intendment. The fundamental rights incorporated in the Constitution are to operate prospectively only, with effect from the date of the promulgation of the Constitution, and the Constituent assembly has evinced no intention of making them operative retrospectively, for obvious reasons. It was claimed, however, that the provisions of section 197, Criminal P. C., were purely procedural and, therefore, should no longer be regarded as part of the law. This contention is without force. A right of immunity from prosecution, except with the requisite sanction, was conferred on certain public servants under that section, and this is a substantive right which cannot be taken away by a statute which is to operate prospectively. I derive support for this view from a decision of the Federal Court, reported as Mahboob Khan v. Crown (PLD 1954 FC 242). It has been made clear in that ruling that the question involved in such cases is not merely one of procedure but the substantial question of jurisdiction of the trial Magistrate. In my opinion, therefore, the bar raised by section 197, Criminal P. C., to certain prosecutions, has not been removed in respect of incidents that happened before the enforcement of the new Constitution. The main question, however as I have observed above, is whether the act attributed to the respondent could be said to be covered by the expression "acting or purporting to act, in the discharge of his official duty". There appears to have been some conflict of opinion as to how far a presiding officer of a Court, would be protected from prosecution by virtue of section 197, Criminal P. C, 1 do no propose to refer to all the case‑law on the subject. Sufficient guidance in this matter can be obtained by reference to two rulings of the Federal Court of united India ‑given prior to the Partition and one of the Privy Council, reported as Dr. Hori Ram Singh v. Emperor (AIR1939 FC43), Sarjoo Parshad v. Emperor (A I R 1946 F C 25) and H. H. B. Gill v. The King (A I R 1948 P C 128). In the case of Dr. Hori Ram Singh it was pointed out that the immunity conferred by section 197, Criminal P. C., may be available even where the act complained of had not been done in good faith so long as it was an act purporting to be done in the execution of public duty. The question of good or bad faith did not arise in such cases. It was held per Sulaiman J., that the reference in the section is obviously to an offence committed in the course of an action which is taken or purports to be taken in compliance with an official duty and is, in fact, connected with it. The learned Judge pointed out that the section cannot be confined to only such Act as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor was it necessary to go to the length of saying that the act constitu ting the offence, should be so inseparably connected with the official duty as to form part and parcel of the same transac tion. But for the protection to be available the learned judge went on to say, the act must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensible official act, though the offence would really amount to a breach of duty. For instance, if a public servant accepts as a reward, a bribe, in his office, while actually engaged in some official work he is not accepting it even in his official capacity much less in the execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he were the official in charge of some official work. He does not in that case even pretend to the person who offers the bribe, that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification. Varadachariar J. in his separate judgment in that case held that the necessity for the consent of the appropriate authority for the prosecution could not be made to depend upon the case which the accused or the defendant may put forward after the proceedings had been instituted, but must be determined with reference to the nature of the allegations made against the public servant in the suit for criminal proceeding. If these allegations cannot be held to relate to any act done or purporting to be done in the execution of his duty by the defendant or the accused as a servant of the Crown, the consent of the appropriate authority would prima facie not be necessary for the institu tion of the proceedings. Doctor Hari Ram Singh in that case was accused of having committed offences falling within section 409 and 477‑A, I. P. C. So far as the former offence was concerned, the decision of the Federal Court was that the acts in question, on which the prosecution was based could not be regarded as act done or purported to be done in execution of the accused's duty. In respect of the second offence under section 477‑A, Indian P. C., however, it was held that sanction of the appropriate authority would be necessary inasmuch as the false entries in the books of account had been made by the accused while purporting to discharge his official duty. He was required to maintain accounts as a part of that duty. In Sarjoo Parshad's case the facts were that the complai nant accompanied by his wife and certain others had proceeded to a steamer station, but not being able to purchase the tickets, wanted to go on the steamer which was about to start, to bring back his wife and other people who had already boarded the steamer in the meantime. He was resisted by the accused, the station master, who showed unsympathetic attitude and furious temper and went to the length of abusing the complainant, calling bad names. The complainant having resented this conduct and protested against the in civil behaviour of the accused, the latter called out certain people and ordered them to beat the complainant, and they complied with his direction. It was held that the act complained of could not be regarded as one purporting to be done by the accused in the execution of his duty. It was added that the mere fact that the accused proposes to raise a defence of the act having purported to be done in the execution of his duty, would not itself be sufficient to justify the case being thrown out for want of sanction under section 270 (1) of the Govern ment of India 1935. The previous judgment of the Federal Court in Dr. Hori Ram Singh's case was the main basis of decision in this case. In Gill's case the Privy Council ruled that the words "In respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown", occurring in section 270, Government of India Act, 1935, have precisely the same connotation as the words in section 197, Criminal P C.," any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" It was expressly held that no temporal meaning should be given to the words in section 197, Criminal P. C. The criterion for determining whether the act was covered by the protective section, was whether the act complained of was such as lay within the scope of the official duty of the person concerned. It was pointed out that a judge, for instance, neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. In the words of the Privy Council, the test may well be whether the public servant, if challenged can reasonably claim that what he does, he does in virtue of his office. In that particular case, the charge against the public servant was with regard to an offence under section 120‑B read with section 161, Penal Code, and it was found that no sanction under section 197, Criminal P. C., was necessary for his prosecution on these offences. Applying the tests laid down in the above rulings, I am unable to agree with the learned A. D. M. that the act attributed to the respondent was prima facie covered by section 197, Criminal Procedure Code. Undoubtedly, when the offending words are alleged to have been uttered by the respondent, he was sitting as a Magistrate in Court and the words were spoken in the course of the trial in which the petitioner figured as an accused. That is clearly not enough for the application of section 197, Criminal P. C., as it would involve a merely temporal interpretation of the section against the dictum of the Privy Council. On the face of it, it does not appear that the alleged abusive utterance fell within the scope of the official duty of the respondent, or that the respondent could reasonably claim that what he did, he did in virtue of his office. Whether the language of section 197, Criminal P. C:, can be invoked in a particular case would depend of course upon the facts and circumstances of that case. In the circumstances brought out in the complaint of the peti tioner in the case under consideration, I do not think that prima facie the bar of section 197, Criminal P, C., could be raised against the prosecution, for want of sanction by the appropriate authority. As a result of the above discussion I set aside the order passed by the learned A. D. M. Guiranwala. I do not think that the case should be sent back to Gujranwala where the respondent is himself posted as a Magistrate. I, therefore, send the complaint to the A. D. M. Lahore who will either proceed with it himself or make it over for being dealt with, in accordance with lave to a competent Magistrate at ‑Lahore. K. B. A/A. H. Petition accepted.