P (PLP)

The case before me has been argued at some considerable length by counsel for both the complainant and the accused. It was, however, agreed by both learned counsel that the leading case on this difficult question is that appearing in A. I. R. 1939 Federal Court

43. This case, however, dealt with section 270 (1) of the Government of India Act and did not specifically take into consideration section 197 Criminal Procedure Code. The judgment of the learned judges of the Federal Court in this case has laid down certain valuable principles governing the general case of protection to Government servants. I respectfully agree with the views so expressed and propose to follow them in this order. Sulaiman, J., in discussing section 270 (1), made the following observations :‑ It must be conceded that the protection given to public servants under section 270, which applies both to Civil and Criminal Proceedings, is intended to be real and not merely illusory. The intention seems to be to prevent them from being unnecessarily harassed ...." Further in his judgment Sulaiman; J.; continuo'.... "The test appears to be not that the offence is capable of being committed only by a public servant and not by, anyone else, but that it is committed by a public servant in an ct done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts 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 it is necessary to go to the length of saying that the act constituting the offence should be so' inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but ' a dereliction of it. What is necessary is that the offence must lie in respect of an act done or purported to be done in. execution of duty that is in the discharge of an official duty. It 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 ostensibly official act though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting". The extent of the protection afforded to a Government servant under section 197 Criminal Procedure Code must be examined on the merits and circumstances of each particular case and it is, therefore, necessary for me to examine in some detail the evidence so far recorded to see whether the accused could be considered as acting or purporting to be acting in the execution of his official duties at the time he committed the alleged offence. The accused is a Government servant in his capacity as an Accounts Officer in the Food Directorate, and in that capacity, he was directly responsible for the Accounts Branch under him. The evidence indicates that the complainant entered the room of the Accounts Branch, and when the accused appeared he started abusing the complainant and turned him out of the office. These allegations, if they are true, are very naturally not official acts or part of the official duties of the accused. At the time shortly before the alleged offence took place the accused was undoubtedly on duty in his office and there is‑ no question but that he was' acting in the discharge of his official duty up to the time he, met the complainant in the office. The question is, did the accused immediately cease to act, or ceased to purport to act, in the official discharge of his duty at the moment he started to abuse the complainant ? In applying the test laid down I am not so much concerned with the nature of the offence or offences themselves as to see in what capacity the accused was acting at the time he is alleged to have committed the offences. In A. I. R. 1939 Mad. 604 it was held that when a Presi dent of a Panchayat Court starting abusing a party before him it could not be said that he immediately ceased to be acting in his official capacity as soon as he started being abusive. Analo gous cases in which officials have used abusive language and in which it was held that sanction to prosecution was necessary, will be found in A. I. R. 1934 All. 978 and A. I. R. 1933 Sind

165. On behalf of the complainant‑respondent, my attention has been drawn to A. L. R. 1947 Sind

30. In this case, however, the circumstances were different for it was held it was not open to a Magistrate to dismiss a whole complaint on the ground that section 197 Criminal Procedure Code barred his cognizance. It was further held that for acts falling outside the path of duty or purported duty section 197 afforded no protection. A. I. R. (33) 1946 F. C. 25 was also mentioned in support of the case for respondent, but again I observe on the merits of the case the learned Court came to the conclusion, for reasons stated, that the act complained of could not be regarded as one "purporting to be done" by the accused in the execution of his duty". Finally my attention was drawn, on behalf of respondent to A. I. R. (34) 1947 Sind

60. The circumstances of this case are by no means analogous to the case before: me for here the facts indicate that a Mukh tiarkar, was instructed by Government to encourage members of the public to invest in National Savings Certificates. When a certain member of the public refused to invest any money, the Mukhtiarkar assaulted him and threatened him. For obvious reasons, the learned judges held that the official concerned was not acting in the discharge of his official duties when he resorted to intimidation ‑or force for the purpose of encouraging invest ment. To advert to the case before me it is, as I have already stated, clear that the accused was acting in the discharge of his official duties up to the time he is alleged to have abused and assaulted the complainant. If the allegations of the complainant are correct, the accused has exceeded his duty. But since no reasons are forthcoming to indicate why the accused acted as he did it would not be beyond the bounds of reasonable possibility to assume that the accused was purporting to act in the discharge of his duty in attempting to evict the complainant from the office, or in other words to prevent him from interfering in the official functions of an office for which he was directly responsible. Moreover, it would be stretching the law almost to a point of absurdity if I were to hold that the accused had immediately ceased to‑ act in his official capacity as soon as he started to abuse the complainant. It follows therefore that I hold that the accused was acting in his official capacity, or was purporting to act, for the whole period of time during which the alleged offence took place. The circumstances of this case‑ are clearly governed by the learned exposition of Sulaiman, J., in A. I. R. 1939 F. C. 43 where he speaks of the test which should be applied to all such cases. I have no doubt in my mind that the accused professed to be acting in pursuance of his official duties and that he meant to convey to the mind of the complainant the impression that he was so acting. In the circumstances I accept the reference, made by the learned Sessions judge and direct that the proceedings in the Court of City Magistrate shall be quashed. K. M. A. Petition Accepted.