1968 P Cr (PLP)

Shah Jamil A lam for Applicant. Murtuza Hussain for A. A: G. for the State. Date of hearing : 9th October 1964. This is an application under section 439, Cr. P. C. praying that the order of the City and Additional District Magistrate, Karachi dated 29-2-63 setting aside the order of discharge passed in favour of the present petitioner by Mr. Azizuddin Ahmad, Magistrate First Class, Karachi, be quashed and the order of discharge be restored.

2. The material facts are these: The petitioner Zaheer Ali is a peon in the Chief Election Commissioner's office at Karachi. He had gone to serve a notice to the office of one Rehanul Hassan Faruqui Advocate and bye 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 stud 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 Magis trate and pleaded not guilty and wished to be tried. On the next date be 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 applica tion 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 he was not entitled to the protection afforded by section 197, Cr. P. C. Upon this view he accepted the revision of the P. S. I. and set aside the order of discharge and sent the case back for further inquiry.

3. 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 Centre are to be made by the President or 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 Civil Services (Classification, Control and Appeal) Rules gives seven classifications of the public services and a IV" grade post comes within the seventh class.

4. The petitioner holds 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 merely a delegate of the Central Government. The act of the delegatee 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. Mr. Murtaza Husain, the learned counsel for the State, conceded that this was the correct position in law.

5. In this view of the matter which I have taken' set aside the order of the learned A. D. M. and restore the order of discharge made by the learned Magistrate First Class. Petition accepted.