Afzalur Rahman and Ors. vs Emperor

Varadachariar, J.—These appeal''s have been preferred by two police officers (a Sub-Inspector and an Assistant Sub-Inspector) and an

Excise Sub-Inspector of the Province of Bihar, against a judgment of the High Court at Patna which dismissed their appeals against a judgment of

the Sessions Judge of Darbhanga convicting them of an offence Under Section 161, Penal Code. The Excise Sub-Inspector was also convicted of

an offence Under Section 220, Penal Code, and sentenced to a term of imprisonment which was identical with that awarded on the charge Under

Section 161, Penal Code, and was directed to run concurrently with it. His appeal against this conviction was also dismissed by the High Court.

The cases come before this Court on a certificate of the High Court that they involve a substantial question of law as to the interpretation of Section

241(1)(b), Constitution Act. The principal question of law pressed before us on behalf of the appellants relates to the necessity for sanction Under

Section 197, Criminal P.C., before the appellants could be prosecuted for the alleged offences; and the point as to the interpretation of Section

241, Constitution Act, has been raised as in some degree bearing upon the question whether the appellants are ""removable from office save by or

with the sanction of the Provincial Government."" On behalf of the Excise Sub-Inspector, a similar objection has also been taken Under Section 96,

Bihar and Orissa Excise Act, 1915.

We deal first with the objection Under Section 197, Criminal P.C. Taking it that the appellants have been accused of an offence alleged to have

been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are

persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules

and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of

Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contend that such dismissal by a subordinate officer like the

Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy

Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers

delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate

authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the

Provincial Government, within the meaning of Section 197, Criminal P.C. They lay stress upon the use of the very term ""delegate"" in para. (e) of

Sub-section (2) of Section 7, Bihar and Orissa Excise Act, when it provides for the Local Government delegating to the Excise Commissioner all

or any of the powers conferred upon the Local Government by or under that Act It was recognized that the language of Section 7, Police Act (5 of

1861) would not fit in with this argument, as Under Section 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector-

General, Deputy Inspector-General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon

Section 241(1)(b), Constitution Act, which vests the power of appointment in the Governor ""or such person as he may direct."" Beading this

paragraph of Section 241 with Sub-section (2) of Section 240, it was sought to maintain that the power of dismissal (like the power of

appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have

been exercised by such authority under the direction and therefore only as the agent of the Governor. Authority was found in support of the above

line of argument in a judgment of Coutts-Trotter J. (as he then was) in In re Abdul Khadir Saheb (''17) 4 AIR 1917 Mad. 344, which was

followed by a Single Judge of the Rangoon High Court in Kyaw Htin v. Ah Yoo (''34) 21 AIR 1934 Rang. 238.

With great respect to the learned Judges with whom this line of argument has found favour, we are of opinion that the argument is fallacious. This

provision which, in one form or another, has appeared in successive Codes of Criminal Procedure for more than 70 years now, must be

interpreted in the light of certain well-known features of the administrative system prevailing in India. Otherwise, as pointed out in Pichai Piliai v.

Balasundara Mudaly (''35) 22 AIR 1935 Mad. 442, there is the danger of our ignoring the policy of the Legislature in limiting the class of officers

entitled to this protection and of making Section 197 available to all public officers. As early as in the Government of India Act, 1858, it was

recognized that the power of making appointments to offices in India was divided and distributed amongst several authorities in India and existing

usage and regulations relating thereto were continued, subject to the reservation of power to the Secretary of State in Council to make regulations:

see Sections 30 and 37. In exercise of this power, rules and regulations have been framed from time to time, dividing the superior and the

subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. Section

96B(2), Government of India Act, 1919, recognized the rules of this kind then in force and provided for the Secretary of State making rules in that

behalf and also for delegation by him of the rule-making power to the Governor-General in Council or to a Local Government. As enactments both

of the Indian Legislature and of Local Legislatures had sometimes provided (e. g., the provisions of the Police Act, 1861, and the Bihar and Orissa

Excise Act, 1915, referred to above) for appointments to and dismissals from various offices, that system also was recognized in the same section

of the Government of India Act, 1919. The provisions of Section 241 and Section 240(2), Constitution Act of 1935, should also be understood in

the light of this longstanding practice. The provisions relating to appeals, contained in paras. (b) and (c) of Sub-section (3) of Section 241, clearly

contemplate that in some cases the dismissal may be by an authority subordinate to the Governor, if that had been the pre-existing practice.

Rules of the kind above referred to have all along provided that certain class of officers can be dismissed only by or with the sanction of the

Local Government and it is to this class of officers that the Legislature must have intended to limit the protection given by Section 197, Criminal

P.C. In this view, it is unnecessary to consider (i) whether and how far the maxim qui facit per alium facit per se, which belongs to the ordinary law

of principal and agent, can be imported into the determination of questions relating to the position of public officers inter se, when both officers are

acting only in their official capacity and (ii) whether even the application of this maxim will help the appellants in this case. It has always been

recognized that even in determining questions involing the relationship of a public servant to the Crown and the liability of the State for acts of

public officers, the principles of the ordinary law of agency cannot be applied except with considerable qualifications. As to the state of judicial

authority bearing upon Section 197, Criminal P.C., we may mention that the decision of Coutts-Trotter J., has been dissented from in the Madras

High Court itself by a Division Bench in Pichai Piliai v. Balasundara Mudaly (''35) 22 AIR 1935 Mad. 442 and by a Division Bench of the

Allahabad High Court in Emperor v. Jalal-ud-Din (''26) 13 AIR 1926 All. 271. The decision of Courts-Trotter J., as well as the Single Judge''s

judgment in Kyaw Htin v. Ah Yoo (''34) 21 AIR 1934 Rang. 238 have in effect, though not in terms, been disregarded by a Full Bench of the

Rangoon High Court in Emperor v. Maung Bo Maung (''35) 22 AIR 1935 Rang. 263. We are of opinion that there is no force in the objection

based on Section 197, Criminal P.C.

The objection based on Section 96, Bihar and Orissa Excise Act, may be briefly disposed of. It is true that the prosecution was not instituted

within six months after the date of the act complained of. But the previous sanction of the Local Government in such a case would be necessary

under that section, only in respect of charges made against an excise officer, ""under this Act or any other law relating to the excise revenue.

Exception was taken to the observation of Agarwala J. that this restrictive provision is made applicable by the section only to proceedings before a

Magistrate and will not therefore prevent a Sessions Court from dealing with the case once it is before the Court. We do not think it necessary to

examine the correctness of that statement, because we are of the opinion that the section has no application to the present case, as the charge

against the Excise Sub-Inspector is not one under the Excise Act or under any other law relating to the excise revenue. In the High Court, one

learned Judge has made observations which might imply that even if one and the same act or set of acts would constitute an offence both under a

special law and under the general criminal law, it would be open to the complainant to make the charge under the general criminal law and thus

escape restrictions imposed upon a prosecution under the special law. It may be a question whether such a view is open to criticism as permitting

an evasion of the provisions of the special law and depriving the officer concerned of the protection which the Legislature intended to afford to him.

But even that question does not arise for consideration in this case, because the offence Under Section 220, Penal Code, is not identical with that

Under Section 61, Bihar and Orissa Excise Act. The illegal act dealt with by the Excise Act is only ""unnecessary or vexatious"" arrest or detention

and the Act prescribes a penalty of only three months'' imprisonment therefor, whereas Section 220, Penal Code, provides for a more serious

offence, namely when the officer acts corruptly or maliciously, and prescribes a more severe penalty. This offence not being one under the Excise

Act or under any other law relatling to the excise revenue, the objection based on Section 90, Excise Act, is untenable.

It has also been contended that the facts found do not establish the charges Under Sections 161 and 220, Penal Code, it is therefore necessary

to recapitulate the material facts found concurrently by both the Courts below. With a view to make a raid on ""some houses in your jurisdiction,

the Excise Sub-Inspector applied to the officer in charge of the police station at Phulparas for police help and the Sub-Inspector and the Assistant

Sub-Inspector who are the appellants in these cases were accordingly deputed to assist the Excise Sub-Inspector. On 3rd February 1941, the

three officers, accompanied by some subordinates, first proceeded to the house of one Jeswa Amat in village Chatrapatti Narahia where they

found some ganja. When it was stated by Jeswa Amat that the ganja had been given to him by one Achhey Lal (complainant in the present cases)

who was another resident of that village, Achhey Lal was sent for. On arrival, ho protested that he had nothing to do with the ganja found in Jeswa

Amat''s house and that Jeswa Amat must have brought in his name because of some private enmity between them. Achhey Lal was nevertheless

placed under arrest and under the instructions of the Excise Sub-Inspector, he was tied up with ropes by some excise peons. The officers had to

proceed to another village Sakhua, to make a raid there and it appears that during the interval Achhey Lal was given to understand that if he paid

Rs. 50 or Rs. 60, he would be let off. Achhey Lal''s brother Phagu, who had been sent for, met the party at Sakhua and after some bargaining, a

sum of Rs. 25 was paid. On this payment being made, the ropes were untied but Achhey Lal was not allowed to go away. He was informed that

he must accompany the party to the police thana at P to get something written. It is said that they did go to P and Achhey Lal signed some paper

which he thought was a bail bond; but as no such paper is forthcoming and as the appellants deny that any such signature was taken, it is not

possible to say what paper, if any, the complainant signed. When, after reaching P, Achhey Lal asked for permission to go away, the police

officers informed him that it was thereafter a matter between him and the Excise Sub-Inspector and the Excise Sub-Inspector told him that some

further payment should be made to himself, as the Rs. 25 already paid had been appropriated by the police officers. After some higgling, a further

sum of Rs. 12 was paid to the Excise Sub-Inspector and the complainant was allowed to go away. Admittedly, proceedings under the Excise Act

were taken only against Jeswa Amat and not against Achhey Lal, and even Jeswa Amat was ultimately acquitted. It was contended that on these

findings, the charge Under Section 161, Penal Code, could not be held to have been established so far as the police officers were concerned and

that the charge Under Section 220, Penal Code, could not be held to have been established against ''the Excise Sub-Inspector. In this connexion,

great stress was laid on the language of the charge Under Section 161 which, referring to the three accused together, charged

that you on or about the 3rd day of February, at Chatrapath, being public servants in the excise and police departments, obtained from Phagu Lal

(brother of Achhey Lal) a gratification of Rs. 37, in all, other than legal remuneration, as the motive for forbearing to send up Achhey Lal under

arrest whom one of you, Nasim (Excise Sub-Inspector), had arrested on an allegation of giving ganja to one Jeswa Amat and thereby committed

an offence punishable Under Section 161, Penal Code.

As pointed out by one of the learned Judges of the High Court, the form of the charge is no doubt open to criticism, but as the High Court also

observed, it is not possible to hold that the accused have been prejudiced thereby. The main argument on their behalf however was that in respect

of excise offences, the police officers were under no official duty to send up an arrested man for trial, when the arrest had been made by the Excise

Sub-Inspector and that therefore the alleged receipt of gratification by them cannot be said to have been as a motive or reward for doing or

forbearing to do any official act or for showing favour in the exercise of official functions. This contention has been dealt with only in one of the

judgments in the High Court, that of Agarwala J. The learned Judge was of opinion that Under Section 23, Police Act, 1861, and Section 75,

Bihar and Orissa Excise Act, 1915, it was as much the duty of the police officers as of the excise officers to bring offenders to justice and that in

letting Achhey Lal go on payment of an illegal gratification, the police officers forbore to do an official act and showed him a favour in the exercise

of their official function. He further stated that when the police officers became aware of the intention of the excise officer to act unlawfully, it was

their duty as police officers to prevent it and to bring the excise officer to justice. With reference to this last statement, it was contended on behalf

of the appellants that even if it lay on the police officers to prevent or complain against the commission of a crime by the excise officer, that was not

the offence that the police officers had been charged with, in the present case. As we read the judgment of the learned Judge, he made this

observation only in the course of the reasoning which led him to the conclusion that the police officers ""acted in agreement with the excise officer.

We do not think it necessary to consider the argument urged with reference to Section 23, Police Act, because we think that according to the

scheme of the Bihar and Orissa Excise Act, the police officers continued to exercise their official functions even after the raid at C was over and

during the time that they were proceeding to and remained at the second village Section The fact that the Excise Sub-Inspector was also present

on the spot did not take away the official character of the connexion of the police officers with the incident. It is unnecessary to decide specifically

whose duty it was in such circumstances, whether of the excise officer or of the police officers or of both, to send up an offender for trial. We are

not prepared to lay undue stress upon the words of the charge and hold that unless it could be said that it was the duty of the police officers in such

a case to send up an offender for trial, the charge Under Section 161 must fail as against them. The expression ""send up"" was after all a non-

technical expression and when the three officers were acting in concert and the charge was framed as a common charge against all the three, it

seems to us sufficient, in order to sustain the charge, if it is established that all the three were at the time acting in their official capacity, that they

jointly bargained for and received the illegal gratification and that as a result of such payment, all further action against Achhey Lal was dropped.

We may add that under the concluding words of Section 161, Penal Code, a public servant may be guilty under that section even independently

of the exercise of his official function, that is, if he obtains a reward for rendering or attempting to render any service to a person with another

public servant. On the facts of this case, it might be possible to hold that even if in the particular act, the police officers were not acting in the

discharge of their official duty, they received a bribe in consideration of rendering a service to Achhey Lal by persuading another public servant, the

Excise Sub-Inspector, to let him off. As against this view, it was urged that that was not the charge and reliance was also placed on the

observations of a learned Judge of the Madras High Court in In re Venkiah (''24) 11 AIR 1924 Mad. 851 to the effect that in a charge Under

Section 161 it must be shown that the accused took the bribe as a motive for doing an official act. This statement cannot be taken as an exhaustive

statement of the law, because it fails to give effect to the last part of the section. Another observation of the same learned Judge gives some

support to the argument based upon the form of the charge, because he gave it as a ground for quashing the conviction that ""it was not made clear

to the petitioner what criminal offence he had committed."" While there can be no doubt as to the soundness of the general principle that the

accused must be clearly informed of the offence with which he is charged, we cannot ignore the principles underlying Sections 225, 282 and 287,

Criminal P.C. The accused had been given notice of all the material facts and the offence in either view falls under the same section of the Penal

Code. It is however unnecessary to pursue this argument, as we are of opinion that the police officers must be regarded as having been present in

their official capacity, not only when they helped the excise officer to make the raid but also during all the time that he kept the suspected persons

under custody, in their presence and with their co-operation. When the three officers were acting together, the mere fact that the direction to tie up

Achhey Lal with a rope was given only by the Excise Sub-Inspector and that the actual tying up was done by the excise peons cannot materially

affect the legal position, above stated. There could be little doubt that except with the concurrence of the police officers, the excise officer would

not have released Achhey Lal from custody.

The contention that the charge Under Section 220, Penal Code, against the excise officer had not been established was urged on the footing that

as the excise officer was authorised to arrest and detain persons suspected of excise offences, it could not be said that the motive or purpose that

actuated the officer in doing what he was legally entitled to do would make it an offence. In support of this contention, reliance was placed upon

certain observations of a Division Bench of the Bombay High Court in Queen-Empress v. Amarsang Jetha (''86) 10 Bom. 506. It is not clear to us

how exactly this contention was viewed by one of the learned Judges (Varma J.) in the High Court, in the present case. Referring to a statement in

the search list prepared in Jeswa Amat''s house, the learned Judge observes:

It is difficult to understand if the ganja belonged to Jeswa Amat, why he said that it was Achhey Lal who gave it to him for keeping.

This observation seems to throw doubt on the veracity of Jeswa Amat, in one interpretation; but it may also be understood as implying that the

ganja must in all probability have belonged to Achhey Lal and that this statement might well have led the officers to suspect Achhey Lal. The point

is however dealt with more fully in the judgment of Agarwala J. As pointed out by him, the excise officer can arrest without a warrant only a person

found committing,"" an offence punishable under certain sections of the Excise Act and he can detain and search any person upon whom he may

have reasonable cause to suspect any article liable to confiscation to be. In the present case, it cannot be said that Achhey Lal was ""found

committing"" an offence and the learned Judge rightly observes that Achhey Lal was so little suspected that he was not even searched. The

assumption on which this line of argument has been urged, namely, that the arrest was lawful, accordingly fails. In the Bombay case above referred

to, the learned Judges have pointed out that on the terms of the provision which they had to interpret, it was sufficient that the accused had

credible information"" to entitle him to make the arrest. We may add that, apart from the legality of the arrest, the keeping of. Achhey Lal in

confinement even by a person who had legal authority to do so would be an offence Under Section 220, Penal Code, if in the exercise of that

authority a person kept another in confinement knowing that in so doing he was acting contrary to law. Between the time when the excise officer

arrested Achhey Lal at village C and the time he released him, he had no further information about his innocence beyond what was stated by him at

the time of the arrest itself to the effect that he (Achhey Lal) had nothing to do with the ganja found in Jeswa Amat''s house. He nevertheless seeks

to justify the detention on the ground that, as he had no time to think over the matter at C itself, in view of the preoccupation of his mind with the

further raid to be made in village S, he could not immediately decide whether Achhey Lal''s statement as to his innocence was to be accepted or

not. This is no doubt a possibility and the explanation might have been accepted, if the story of the illegal gratification had not complicated the

situation. When, however, it was found that the release was obtained by payment of illegal gratification, the Court was entitled to infer that the

explanation put forward by the Excise Sub-Inspector was not true, that he must have known from the beginning that there was no justification in

law or fact for arresting or for detaining Achhey Lal and that he must have done so only with a view to make a pecuniary profit out of the

transaction.

On behalf of the appellants, we were asked to examine the correctness of the above findings of fact, but we declined to do so. It was

recognised by the learned counsel for the appellants that this Court was not a Court of criminal appeal, but he nevertheless made the request on the

ground that his clients had been seriously prejudiced by the way in which the Courts below approached the consideration of the evidence, under a

misapprehension as to the case put forward on behalf of the accused. The learned counsel failed to persuade us that that there had been any such

misapprehension in the minds of the learned Sessions Judge or of the learned Judges of the High Court. The appeals accordingly fail and are

dismissed.