Afzalur Rahman and Others vs Emperor

Varma, J.—Afzalur Rahman had been convicted u/s 161, Penal Code, and sentenced to six months'' rigorous imprisonment and a fine of Rs. 100, in default further rigorous imprisonment for four months. Jubraj Prasad has been convicted u/s 161, Penal Code, and sentenced to 18 months'' rigorous imprisonment with a fine of Rs. 50, in default to further rigorous imprisonment for two months. S.A.M. Nasim has been convicted u/s 161, Penal Code, and sentenced to two years'' rigorous imprisonment and a fine of Rs. 50, in default further rigorous imprisonment for two months. He has also been convicted u/s 220, Penal Code, and sentenced to two years'' rigorous imprisonment. The substantive sentences of imprisonment passed on him are to run concurrently.

The case for the prosecution is that on 2nd February 1941, Excise Sub-Inspector Nasim asked for assistance from the senior Sub-Inspector of Phulparas police station to search the houses of people dealing with excisable substance. The junior Sub-Inspector Afzalur Rahman and the Assistat Sub-Inspector Jubraj with a constable were deputed for the purpose. On 3rd February the police party left for village Chatrapatti Narahia. They searched the house of Jeswa Amat and recovered some Nepali ganja. As to what Jeswa Amat said was noted on the search-list and it amounted to this that the ganja belonged to Achhe Lal Sahu of Narahia who had given to him to keep. Achhe Lal Sahu was arrested by one of the constables but he denied the charge. The Excise Sub-Inspector ordered both Achhe Lal Sahu and Jeswa Amat to be tied with ropes. They were then taken to a village called Sakhua which is about a mile towards the east. At Sakhua Nandlal''s house was searched. Achhe Lal''s statement is that while at Sakhua he had sent for his brother Phagu Lal (P.W. 2) for assistance, but before Phagu''s arrival Uchit Mandal (P.W. 9) of Raghunathpur happened to reach there on his way to a village called Nirmal. Uchit inquired about the cause of Achhe''s arrest but Jubraj took Uchit aside and had some conversation. According to Uchit, Jubraj demanded Rs. 60 for the release of Achhe Lal. Uchit gave out that he did not think that Achhe Lal would be able to pay so much. By this time Phagu arrived and he made inquiries from the Excise Sub-Inspector. The Excise Sub-Inspector demanded Rs. 50. Even that amount was not agreed to by Phagu Lal. The Excise Sub-Inspector then said that he would agree to any amount fixed by Jubraj. Jubraj demanded Rs. 25 and this was paid by Phagu at Sakhua. Achhe Lal was then untied, but when he wanted to go away Afzalur Rahman said, according to the prosecution, that they should first go to the thana for some writing (likha parhi) and then they would be let off. From Sakhua they came to Phulparas police station and first reached the quarters of the junior Sub-Inspector Afzalur Rahman. The junior Sub-Inspector and Jubraj went away to the thana buildings, and when Phagu and Achhe Lal wanted to go Excise Sub-Inspector Nasim wanted another sum of Rs. 25 for he said the first sum of Rs. 25 was taken by the police. This led to a certain amount of bargaining and ultimately a sum of Rs. 12 was paid and then they were allowed to go away.

A case was instituted against Jaswa Amat which ended in his acquittal on 2nd April 1941 although according to the judgment we find the case had finished on 16th April 1941. An application for a certified copy of the judgment was made by Phagu on 10th May 1941 and the copy was ready for delivery on 20th May 1941. After this the next date of importance is the 26th May 1941 when a petition was drafted which was filed on 3rd June 1941 before the Sub-divisional Magistrate of Madhubani. This petition is Ex. B and is in the nature of an application for sanction u/s 197, Criminal P.C., to prosecute the three appellants as well as the staff of the excise under Sections 342, 384 and 500, Penal Code. The complainant however intimated to the Sub-Divisional Magistrate that he had applied for sanction to the Chief Secretary. From a letter of the District Magistrate to the complainant, dated 22nd July 1941 it appears that he was asked to file a complaint in the ordinary course and that the question of sanctioning the prosecution of the public servants would be considered later on. The petition of complaint was then drafted on 1st August 1941 and filed on 4th August 1941. There was a preliminary inquiry by a Magistrate and then the three appellants and the Assistant Sub-Inspector of Excise were summoned to take trial. After the inquiry before commitment the accused were committed to the Court of Session on 15th January 1942 and the trial was held with the aid of assessors as noted above.

The case for the defence can be gathered from the written statements filed by the various accused. Afzalur Rahman pleaded not guilty, denied having said that he would agree to whatever Jubraj did or that he asked the complainant to go to the thana for likha parhi. He says that he had nothing to do with the arrest of Achhe Lal and that he was there only to assist the Excise Sub-Inspector in his raids according to the request made by the latter. He denies having demanded any illegal gratification and says he was not in a position to show any favour to Achhe Lal. He says that after the house search of Nandlal at Sakhua, he and Jubraj were asked by the Assistant Sub-Inspector of Excise to leave Sakhua as their assistance was no longer required, and they did so leaving the arrested persons at Sakhua in charge of the excise staff. He further says that Achhe Lal and his brother were annoyed, with him on account of certain steps that he had taken against Achhe Lal and some of his relatives and he refers to Ex. D dated 29th January 1941 and Exs. H and G dated 18th April 1941. Jubraj also denies the allegations made against him, and says that the case was due to the hostile attitude of the complainant and some people of the neigh, bourhood for certain steps that he had taken in his official capacity. He raised the question of the legality of the trial u/s 161, Penal Code, and submitted that the prosecution witnesses were creatures of the complainant wholly untrustworthy and unreliable. The defence of Excise Sub-Inspector Nasim was that the case was entirely false, that he had never demanded directly or indirectly any illegal gratification, that the complainant was not proceeded against under the Excise Act because he proved to the satisfaction of the accused that he was implicated on account of litigations with Jeswa Amat. He also denied that the complainant was untied at Sakhua or that he was taken to the thana or that any money was taken from him there. He raised the question of sanction u/s 197, Criminal P.C., and also that the witnesses Uchit, Kallar and Faudi were friends and creatures of the complainant and were unreliable.

Before entering into the merits of the case, I should like to dispose of the question of jurisdiction raised on behalf of the appellants. The learned advocate for the Excise Inspector, Nasim has urged that the trial was vitiated by the absence of sanction u/s 197, Criminal P.C. In this Court this argument has been adopted by the learned advocates for the other two appellants, the Police Sub-Inspector and the Assistant Sub-Inspector of Police, although in the trial Court this point does not seem to have been pressed on their behalf. Clause (1) of Section 197 runs as follows:

(1) When any person who is a Judge within the meaning of Section 19, Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction: (a) in the case of a person employed in connexion with the affairs of the Federation of the Governor-General exercising his individual judgment; and (b) in the case of a person employed in connexion with the affairs of Province, of the Governor of that Province exercising his individual judgment.

In order to attract the provisions of the section, two conditions must be satisfied, namely, (1) the accused must be a public servant of the kind mentioned, i.e., he must be a Judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the Local Government or of some higher authority; and (2) the offence must be committed by the accused while acting or purporting to act in the discharge of his official duty. In this case the accused belonged to two branches of the provincial ad-ministration, the police department and the excise department. Under Rule 639 of the Bihar and Orissa Police Manual police officers are ranked as (1) superior officers and (2) other officers. A Sub-Inspector of Police and also an Assistant Sub-Inspector of Police fall in the category of "other officers." Rules 658 and 654 tell us how after inviting applications for direct appointments the candidates pass through the Range Selection Board and the Central Selection Board. Then, on the advice of the Central Selection Board, the Deputy Inspector-General makes the appointments. Under Rule 657 the proceedings of the Central Selection Board and the list of candidates appointed is sent to the Inspector-General of Police for information. Under Rule 660 Assistant Sub-Inspectors are appointed by promotion from the ranks. Twenty-five per cent, of the vacancies may, however, be reserved for outsiders who have passed the matriculation test or an equivalent examination provided they fulfil the standard for constables prescribed by Rule 663. Direct appointments are made by the Deputy Inspectors-General on the advice of the Central Selection Board, and promotion of constables to the rank of Assistant Sub-Inspectors is made by the Superintendent. Under Rule 825 the Inspector-General may award to any Police Officer below the rank of Deputy Superintendent any one or more of the punishments enumerated in Rule 824, viz., dismissal, removal etc. By Clause (b) of the same rule a Deputy Inspector-General may impose on any Police Officer subordinate to him and below the rank of Deputy Superintendent any one or more of the punishments in Rule 824 except dismissal and removal in the case of a Sergeant-Major or an Inspector; and by Clause (c) a Superintendent may likewise act with regard to officers below the rank of Inspector subject to certain conditions in particular. Rule 828 lays down that, a major punishment like dismissal, or removal from service of a Police Officer shall be inflicted by an officer not below the rank of Superintendent. Appeals against punishments are provided in Rule 851. Against an order of dismissal, removal etc., passed by a Superintendent the appeal, lies to the Deputy Inspector-General against an order passed by the Deputy Inspector-General to the Inspector-General, and against that passed by the Inspector. General to the Local Government. These rules have to be read along with Sections 7 and 8, Police Act.

On behalf of the Excise Sub-Inspector the argument is that the power of appointment and dismissal exercised by the Commissioner of Excise is power "delegated" by the Local Government and "delegated" powers should be deemed to be exercised by the authority delegating the power (in this case the Local Government) and therefore an Excise Sub-Inspector is removable by the Local Government. Reference has been made to Section 7(2)(a), Excise Act. It runs as follows:

(2) The Local Government may, by notification applicable to the whole of the Province of Bihar and Orissa or to any specified local area�(a) appoint an officer who shall, subject to such control as the Local Government may direct, have the control of the administration of the Excise Department and the collection of the excise-revenue.

Section 7 (2)(e) runs as follows:

Delegate to the Board, the Commissioner of a Division, or the Excise Commissioner all or any of the powers conferred upon the Local Government by or under this Act, except the power conferred by Section 89 to make rules.

In the course of argument emphasis was laid upon the word "delegate" and, in support of the contention, our attention has been drawn to the use of the word "delegation" in Section 7(2)(g) as well as in Section 89(2)(b). Reference has also been made to Notification No. 470F, dated 15th January 1919 where u/s 7(2)(a) the following rule was introduced that there shall be an Excise Commissioner who shall, subject to the general control of the Board have throughout the Province of Bihar and Orissa the control of the administration of the excise department and the collection of excise revenue. With regard to this it is said that "control of the administration" does not amount to power to dismiss, but we know that according to Section 92, Excise Act, all rules made and notifications issued under this Act shall be published in the Bihar and Orissa Gazette and such publication shall have effect as if enacted in this Act. We know that under the General Clauses Act power to appoint means power to dismiss.

In support of this contention reliance has been placed upon a case reported in Kyaw Htin v. Ah Yoo AIR 1934 Rang. 238 where relying upon In re Abdul Khader Sahab AIR 1917 Mad. 344 it was held that the delegation by the Local Government of its power to a special officer only means that the Local Government, performs that act itself through the medium of a particular officer as the channel through which it is done; and it is an ordinary case of qui facit per alium facit per se. It is no doubt done in accordance with that delegation, but nevertheless it remains the act of the Local Government. Therefore, even though the power to appoint a Sub-Inspector of Excise is delegated by the Local Government to Divisional Commissioner, yet such a Sub-Inspector is protected by the provisions of Section 197(1), Criminal P.C., and hence the sanction of the Local Government is necessary for his prosecution for an offence u/s 342, Penal Code. This is a Single Judge decision and the observations were made in the case of a complaint made by a liquor shop licensee against a Sub-Inspector of Excise and his peon of illegal arrest and confinement.

In Tun Ya v. The King AIR 1938 Rang. 181 the same learned Judge while dealing with a case u/s 384, Penal Code, against a Sub-Inspector of Police acted upon the dictum upon which he relied in the earlier case. In Emperor v. Maung Bo Maung AIR 1935 Rang. 263 a Full Bench decision, the case in Kyaw Htin v. Ah Yoo AIR 1934 Rang. 238 was distinguished. In that case their Lordships held that it was not necessary to consider whether the decision in that case was correct or not because that case turned upon the provisions of law other than that with which their Lordships were concerned in the case before them. But this case came up for consideration before a Division Bench of the Allahabad High Court in Jalaluddin Vs. Emperor, in which the question arose whether sanction u/s 197, Criminal P. C, was necessary for prosecuting an Excise Sub-Inspector u/s 161. In the United Provinces also, the Local Government had delegated to the Excise Commissioner the power to appoint Assistant Excise Commissioners and also power to dismiss. One of the arguments before the Court was that as it was a delegated power the dismissal should be deemed to be by the Local Government. They did not rely upon the decision in In re Abdul Khader Sahab AIR 1917 Mad. 344 nor upon a decision of the Lahore High Court. Before expressing their opinion they observed as follows:

Coming to the question of delegation, once the Local Government has been delegated its power the authority which actually removes the public servant from office is not the authority of the Local Government but the authority to whom the power is delegated, (After giving an illustration). There is no mention made in Section 197(1), Criminal P.C., of any delegated authority. Obviously, the intention was to simplify the law regarding sanction in the new Criminal Procedure Code, and the circle of public servants for whose prosecution for bribery sanction was necessary under the previous Code has been narrowed. Under the former Code sanction of some authority (other than the Local Government) to whom the power was delegated by the Local Government to grant sanction was necessary for the prosecution of certain public servants. Any sanction for prosecution in their cases is no longer necessary.

I may observe that in this case by implication their Lordships have differed from the decision in Kyaw Htin v. Ah Yoo AIR 1934 Rang. 238 because they differed from the authority upon which that decision was based. Here the decision in In re Abdul Khader Sahab AIR 1917 Mad. 344 came directly for consideration, and after quoting the observations made in that decision they observed as follows:

We do not think that the general principle expressed by the phrase qui facit per alius facit per se should necessarily be acted upon if it appears that its application would involve the breach of another legal principle more specifically applying to the case in point. It is a elementary rule in construing a statute to give due meaning to every part of the language which it employs and a construction which fails to do this prima facie fails to give effect to the intention with which the provision was drafted.

In another part of the judgment they observed:

It may be conceded that all such means to achieve the end proposed are nothing more nor less than acts of delegation, and that while so delegating its power the delegating authority does not divest itself of a corresponding power. It is not reasonable to suppose that in framing the section it was intended that any such fine-drawn distinctions should be observed, and we conclude accordingly that the expression "any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority" will not include public servants whom some lower authority has by law or rule or order been empowered to remove.

Agreeing with the view taken in Jalaluddin Vs. Emperor, and in Pitchai Pillai v. Balasundara Mudali AIR 1935 Mad. 442 I am of opinion that the dismissal of an Excise Sub-Inspector can be made by the Commissioner of Excise. Reference has been made to Sections 240 and 241, Government of India Act, 1935. After reading Section 240 it was pointed out that if the appointment is by the Local Government the dismissal could not be by a subordinate authority. Sub-sections (1) and (2) of Section 240 run as follows:

(1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty''s pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

Section 241 of the Act says:

(1) Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in India, shall, after the commencement of Part 3 of this Act, be made.... (b) in the case of service of a Province, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct.

These sections occur in Part 3, Government of India Act, which came into force from 1st April 1937 by the Notification published in the Bihar Gazette Part 3 p. 192 on 19th August 1936. It may be noticed that in Section 241(b) the expression is "as he may direct." Reference to these sections of the Government of India Act does not help much because now we have got a Notification No. 1933A, dated 23rd April 1937, published in part 2 of the Bihar Gazette dated 28th April 1937. It runs as follows:

In exercise of the powers conferred by Sub-section (1) of Section 241, Government of India Act, 1935, the Governor of Bihar is hereby pleased to direct that, except as expressly provided by the said Act and subject to any direction to the contrary that may hereafter be made in exercise of the said powers, any officer subordinate to the Governor, who was authorised by any law in force immediately before the first day of April 1937, to make appointments to the civil services of, or civil posts under, the Crown in connection with affairs which are now the affairs of Province of Bihar, is authorised to make the said appointments in the like manner as, and, subject to the like control by the Governor of Bihar as was exercisable by the Central or Provincial Government before the said date.

In view of the above observations, I am of opinion that the first part of the condition required by Section 197, Criminal P.C., has not been satisfied in this case inasmuch as all these officers were removable not only by the Local Government or by any higher authority. It is therefore not necessary to deal with the second part of Section 197, Criminal P.C. [After disposing the general criticisms about delay and the witnesses being accomplices, the judgment concluded.] I think it is incredible that when the other people were negotiating in the matter the junior Sub-Inspector remained inactive. I agree with the trial Court that the complicity of this appellant in the offence has been proved. Two witnesses were examined on behalf of the defence for this appellant D.W. 1 and D.W. 2. D.W. 1 proves some of the entries on which the appellant relied but he could not speak about the entries being true or false. D.W. 2 was the officer in charge of the thana. He speaks as to how he deputed Afzalur Rahman to attend the search in the house of Jeswa Amat. He also says that the relation between the family of Kapileshwar Jha and the thana officers was not good. I have gone through his evidence, but I do not see how it throws any light on the incident of the date of occurrence, except that it speaks of some sort of bad feeling between the police and some persons in the locality.

The evidence against Jubraj is consistent that at Sakhua although he demanded a larger sum, he accepted the sum of Rs. 25. Uchit says he demanded Rs. 60. Phagu says he demanded Rs. 50. Achhe says the same thing, and Kallar supports the two brothers. The sum of Rs. 60 is, of course, not mentioned by any other witness; but we must remember that this was a conversation which took place before Phagu arrived and Uchit took a friendly interest in Achhe''s condition when he saw him at Sakhua. The special defence of this appellant is that he also had nothing to do with the arrest nor could he possibly reach the arrested persons even if he wanted to do so as he was entirely in the hands of the Excise Officers. But if the evidence is believed, which the learned Sessions Judge has believed and I have no reason to doubt, he was the person who was selected by the other officers to carry on the negotiations. The evidence against him also is satisfactory. Against the Excise Sub-Inspector, Nasim, there is the evidence of Achhe who says that he got him tied with a rope, he took him from Chatrapatti to Sakhua, he demanded Rs. 50 and ultimately said he would agree to whatever terms were settled by Jubraj, and that at the thana he again demanded RS. 25 but accepted Rs. 12, and after that Achhe was allowed to go when he had to execute a document which he thought was a bail bond. Phagu corroborates his brother, and Kallar speaks of the occurrence at Sakhua that the Excise Sub-Inspector agreed to take what Jubraj fixed. This Kallar was present at the time when the sum of Rs. 25 was paid to Jubraj. Uchit speaks of the demand by the Excise Sub-Inspector of the sum of Rs. 25 at Phulparas and accepting Rs. 12 ultimately. He also supports Achhe in the statement that they signed a document which they thought was a bail bond. The evidence against this appellant also, as held by the learned Sessions Judge, is quite satisfactory.

A special appeal was made on behalf of the appellants that their sentences should be reduced inasmuch as they are likely to lose their services. Cases of this nature against officers of this kind, who wield extensive powers in the mufassil, seldom see the light of day. It is very rarely that individuals take it upon themselves to launch a prosecution under these sections, and when the appellants have misused the powers vested in them there is no room for sympathy being shown to them by the Courts. I am of opinion that the learned Sessions Judge has not erred on the side of severity in this case. I would, therefore, dismiss the appeals.

Agarwala, J.

The evidence for the prosecution establishes the following facts, viz., on information given by Jaswa the arrest of Achhylal was made at Chatra in spite of his protest that Jaswa had falsely implicated him on account of enmity, that a rope was tied round his waist and he was taken from Chatra to Sakhua; that at Sakhua negotiations took place between the officers and Fagu which resulted in Fagu paying Rs. 25 which was appropriated by the police officers and Achhylal being untied; that Achhylal and Fagu were thon told to proceed to the thana at Phulparas "for likhaparhi" and that they accordingly went to the quarters of the junior Sub-Inspector, the appellant Afzalur Rahman, where a further Rs. 12 changed hands, the recipient being the Excise Sub-Inspector, the appellant Nasim; that a paper was then signed by Achhylal and Uchit; that Achhylal was then permitted to leave the thana and was not sent up on any charge whatever. The defence is that the arrest and detention of Achhylal were bona fide, that he was released at Sakhua and that the reason for his release was that the Excise Officers were convinced that his allegation that he had been falsely implicated by Jaswa on account of enmity was true. It will be remembered that Achhylal made this allegation at the time of his arrest at Chatra but was nevertheless arrested and taken to Sakhua. The only reason suggested for the officers to have accepted as true, at Sakhua, a story which they disbelieved at Chatra is that at Sakhua Aehhylal''s brother supported it. I do not believe that this was the reason why Achhylal was released or, indeed, that he was released at Sakhua although the rope round his waist was untied there.

The first question for consideration is whether the facts found constitute the offences in respect of which the appellants have been convicted. All the appellants have been convicted of the offence defined in Section 161, Penal Code, and Nasim, the Excise Sub-Inspector, has also been convicted of an offence u/s 220. The gravamen of this latter offence is maliciously keeping Achhylal in confinement knowing that this was contrary to law. Section 70(i) empowers an excise officer to arrest without warrant any person found committing an offence punish, able under certain sections of the Act and Clause (iii) empowers him to detain any person upon whom he may have reasonable cause to suspect any article liable to confiscation under the Act, or any other law relating to the excise-revenue, to be. As Achhylal was not "found committing" any offence mentioned in Clause (i) there was no justification for his arrest by the Excise Officers without a warrant. Nor was there any reason to suspect that any excisable article would be found on his person so as to justify his detention under Clause (iii). Indeed, so little was it suspected that any such article would be found on his person, that he was not even searched. There is no doubt, therefore, that there was no justification for the arrest of Achhylal without a warrant, or for his detention, and, in my opinion, his detention was malicious. This view is supported by the fact that he was quite unnecessarily tied with a rope from the time of his arrest at Chatra until he was untied at Sukhwa. So far as the police officers are concerned they challenge their convictions u/s 161. That section, in so far as it is material, provides:

Whoever, being a public servant, accepts or obtains, from any person, any gratification as a motive or reward for forbearing to do any official act, shall be punished, etc.

It is contended that it was not the duty of the police officers in this case to detain Achhylal and, therefore, if they forbore to do so their forbearance was not forbearance to do an official act within the meaning of the section. I am unable to accept this contention. Section 23, Police Act 1861, requires police officers to prevent the commission of offences and to detect and bring offenders to justice. There is no justification for excluding offences against the excise laws from the operation of this section. Secondly, Section 75(2), Excise Act, itself requires every police officer to give reasonable aid to any excise officer in carrying out the provisions of the Act when called upon to do so. In the present case the assistance of the police officers was requisitioned under this section and, therefore, it was as much their duty as that of the excise officers to carry out the provisions of the Act. I am satisfied that in forbearing to send Achhylal for trial they forbore, in concert with the excise officers, to do an official act within the meaning of Section 161. That they were acting in agreement with the excise officers is shown by the following circumstances: (1) although it was their statutory duty to aid the excise officers in carrying out the provisions of the Excise Act, it was no part of their duty to assist them in performing an illegal act, but they did not dissociate themselves from the unlawful acts of the excise officers in unlawfully detaining Achhylal and subsequently releasing him in consideration of the payment of a gratification; (2) as soon as they became aware of the intention of the excise officers to act unlawfully it was their duty u/s 23, Police Act, to prevent the unlawful act and to bring the excise officers to justice. They did nothing to prevent the commission of an offence by the excise officers and made no effort to bring them to justice. The inference from their conduct is that they acted in agreement with the excise officers. The next contention is that Section 197, Criminal P.C., is a bar to the prosecution. So far as it is material that section provides:

When any public servant, who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction, in the case of a person employed in connexion with the affairs of a province, of the Governor of that province exercising his individual judgment.

All the appellants are public servants employed in connexion with the affairs of this province. The two questions which arise are, first, whether the offences charged were committed by them, while acting or purporting to act in the discharge of their official duties and, secondly, whether they were not removable from their offices save by or with the sanction of the Provincial Government. With regard to the conviction of the Excise Sub-Inspector u/s 220 it was contended that even if the detention of of Achhylal was malicious it was nevertheless an act done by this appellant while purporting to act in the discharge of his official duty; and, with regard to the convictions of all the appellants u/s 161, that the obtaining of the gratifications for Achhylal''s release was, similarly, an act done by them while purporting to act in the discharge of their official duties. Strange as these contentions may appear to be judicial decisions were cited which, it was argued, support them. I do not propose to refer to these decisions. It is sufficient to state that if they lead to the conclusion contended for, namely, that the acceptance of a bribe by a public servant for forbearing to do his duty is an act which he does while acting or purporting to act in the discharge of his official duty, I respectfully disagree with them. For myself, I should have thought that an act which is the very contrary of the duties of a public servant could not be said to be done while acting or purporting to be done in the discharge of his official duties. It may be observed that in order to attract the operation of Section 197 it is not necessary that the act complained of should actually have been done while the public servant was acting or purporting to act in the discharge of his official duty. What the section requires is that the act shall be alleged to have been so done. If it is so alleged the section applies even though the act be of such a nature that it is entirely outside the scope of the duty of the public servant concerned. A strict adherence to the language of this section would have avoided the strained construction put upon it in some of the decisions which were cited before us.

In my opinion, when the prosecution alleges, as in the present case, that an offence has been committed by a public servant while acting or purporting to act in the discharge of his official duties, Section 197 applies, and it is necessary to obtain the sanction of the Governor for his prosecution provided that he is a public servant of the class mentioned in the section. However, it remains to consider whether the accused are public servants "not removable from their office save by or with the sanction of the Provincial Government." Section 241(1)(b), Government of India Act, 1935, is relied on. That section is as follows:

Except as expressly provided by this Act, appointments to the civil services and civil posts under the Crown in India shall, after the commencement of Part III of this Act, be made, in the case of services to a province and posts in connexion with the affairs of a province, by the Governor or such other person as he may direct.

So far as the police officers in this case are concerned, in this province, the present method of appointing sub-inspectors appears to be as follows: Under Rule 669A of the Police Manual 25 per cent, of the vacancies in the rank of sub-inspector are filled by selection from the rank of assistant sub-inspector. This percentage may at the discretion of the Inspector. General be increased to 50. The remainder are filled by direct recruitment. In both cases the selection is made by Selection Boards. Section 656B requires the Deputy Inspector-General to appoint the selected candidates on the advice of the Central Selection Board. So far as assistant sub-inspectors are concerned Rule 668 provides that they shall be appointed by promotion from the ranks; but 25 per cent, of the vacancies may be reserved for outsiders who have passed certain tests. The appointments are made by the Deputy Inspector-General on the advice of the Central Selection Board. In the case of Excise Officers it is necessary to consider the provisions of the Bihar and Orissa Excise Act of 1915. The following provisions of Section 7 are relevant. Sub-section (2)-

The Local Government may, by notification applicable to the whole of the province or to any specified local area, (a) appoint an officer who shall, subject to such control as the Local Government may direct, have the control of the excise department and the collection of the excise revenue; (c) appoint officers of the excise department of such classes and with such designations, powers and duties as the Local Government may think fit; (e) delegate to the.... Excise Commissioner all or any of the powers conferred upon the Local Government under this Act except the powers conferred by Section 89 to, make rules.

Under the General Clauses Act, the power to appoint imports also the power to dismiss. It is clear, therefore, that under clause. (c) the Local Government has power to appoint and dismiss officers of the excise department and that under Clause (e) it is empowered to delegate these powers to the Excise Commissioner. By Notification No. 470 dated 15th January 1919, the Local Government, in exercise of the powers conferred by Section 7(2)(a) appointed an Excise Commissioner to control the administration of the excise department throughout the province, "subject to the general control of the board,� that is to say, of the board of revenue. By Notification No. 471 of the same date, the Excise Commissioner was empowered to dismiss all officers of the department below the rank of Inspector. By Notification No. 1747 dated 7th May 1921, the Governor, in exercise of the powers conferred by Section 7(2)(e), delegated to the Excise Commissioner the power to appoint by promotion Inspectors of Excise, and to appoint all other officers of the excise department below the rank of Inspector of Excise. By Notification No. 1933, dated 23rd April 1937 (Bihar Gazette, 1987, Part II,, page 297), issued by the Governor of Bihar u/s 241(1), Government of India Act, the Governor has directed that any officer subordinate to him who was authorised by any law in force immediately before 1st April 1937 to make appointments to the civil services of, or civil posts under the Crown in connexion with the affairs which are now the affairs of Bihar, is authorised to make the said appointments in the like manner as, and, subject to the like control of the Governor of Bihar as was exercisable by the Central or Provincial Government before the said date. It is clear therefore that even after the Government of India Act came into operation the appointing authority for the police and excise officers, respectively, are the Deputy Inspector-General and the Excise Commissioner.

Section 240(2), Government of India Act, provides that no person who is a member of a civil service of the Crown in India or who holds a post under the Crown in India shall be dismissed from service by any authority subordinate to that by which he was appointed. The appointments in the present case were made not by the Governor but in the language of Section 241(1)(b) by such other persons as he has directed. Prima facie, the officers concerned may be dismissed by the same persons, and therefore are not "public officers who are not removable from their offices save by or with the sanction of the Local Government," and therefore are not entitled to the protection of Section 197, Criminal P.C. We were referred however to cases decided by Single Judges of the Rangoon, Lahore and Madras High Courts in which it has been held that when the Governor has delegated his power to make particular appointments and appointments have been made by the person to whom the power has been delegated, the appointment must still be regarded as having been made by the Governor himself on the principle of qui facit per alium facit per se. This view was not accepted by a Division Bench of the Allahabad High Court in Jalaluddin Vs. Emperor, or by a Division Bench of the Madras High Court in Pitchai Pillai v. Balasundara Mudali AIR 1935 Mad. 442.

With great respect to the learned Judges who decided the single judge case, I agree with the view taken by the Division Benches of Allahabad and Madras. There is nothing in Section 240(2) to suggest that any other view was intended by the framers of the Government of India Act, 1935. Had they so intended one would have found in Section 240 references to the Governor. General and the Governor, as the case might be, as in Section 241. Reference was made to the decision of the Federal Court in Suraj Narain Anand v. North-West Frontier Provinces AIR 1942 F.C. 3 That was a case in which a Sub-Inspector of Police who had been appointed by the Inspector-General, was dismissed by the Deputy Inspector-General, and all that was held in that case was that sub-Section (2) of Section 240, Government of India Act, was a statutory bar to the dismissal of the Sub-Inspector by the Deputy Inspector-General. It was not suggested in that case that the only authority having power to dismiss the Sub-Inspector was the Governor. It follows that in my view neither the police officers in this case, nor the excise officers, are public servants who are "not removable from their office save by or with the sanction of the Provincial Government," and that consequently they are not persons protected by Section 197, Criminal P.C.

Mr. Yunus, who appeared for the Excise Inspector, also urged that Section 96, Excise Act, 1915, is a bar to the prosecution in this ease. So far as it is relevant, that section provides that, except with the previous sanction of the Local Government, no Magistrate shall take cognizance of any charge made against any excise officer "under this Act or any other law relating to the excise revenue," or made against any other person under this Act, unless the prosecution is instituted within six months after the date of the act complained of. It was pointed out that the act complained of in this Case took place on 2nd February and that the complaint was made on 4th August. It will be observed, however, that the section merely imposes a bar to a Magistrate taking cognizance of any charge without the sanction of the Local Government unless the complaint is made within six months of the act complained of. It imposes, no bar on a Court of Session. The language of this section in this respect may be compared with the language of Sections 195,196 and 197, Criminal P.C., which bar the jurisdiction of Courts generally and not merely of Magistrates in certain cases. Furthermore, the charge against the Sub-Inspector of Excise in this case is not one under the Excise Act or any other law relating to the excise revenue. It is true that u/s 61(c), Excise Act, an Excise Officer who vexatiously and unnecessarily detains and searches or arrests any person is liable to imprisonment to a term which may extend to three months on conviction before a Magistrate; but the liability imposed by this section does not affect his liability under the general law and in particular his liability under Sections 161 or 220, Penal Code, which are the sections under which the Excise Sub-Inspector has been prosecuted in the present case. The objection founded on Section 96, Excise Act, therefore, has no substance in it.

It was next contended that the accused were prejudiced by defects in the charge framed against them. That there are defects in the charge cannot be denied. The charge framed by the committing magistrate was u/s 220 only and alleged that the accused had maliciously confined Achhylal at Chatra where his arrest originally took place. The Sessions Judge added a charge u/s 161 alleging that the accused persons had obtained at Chatra, from Fagulal, a gratification of Rs. 37 as the motive for forbearing to send up Achhylal under arrest. It is astounding that the Judge should have framed the charge in this way. No part of the sum of Rs. 37 was received at Chatra. Rupees 25 is alleged to have been paid at Sukhwa and Rs. 12 at Phulparas. This is clear both from the evidence given in the committing Court and that given at the trial in the Sessions Court. The mistake in the charge, however, does not afford a ground for setting aside the conviction as no prejudice has been caused to the accused by reason of it. It was well-understood by everyone concerned in this case that the allegation of the prosecution was that the money had been paid at Sukhwa and Phulparas and not at Chatra.

It was, however, urged that there has been a misjoinder of charges by reason of the fact that while the charge u/s 220 alleged the commission of an offence at Chatra the offence u/s 161 took place at Sukhwa and Phulparas and, so far as the police officers are concerned, they took no part in the commission of the offence alleged in the charge u/s 220 to have taken place at Chatra. I am unable to accept this view. The facts proved and the conduct of the appellants leave no room for doubt that they were all acting in concert in obtaining as much as they could as a consideration for releasing Achhylal. In pursuance of this object the arrest was made at Chatra, some of the consideration was paid for his release at Sukhwa and some at Phulparas. The various acts were all part of the same transaction.

There is, therefore, no substance in this point. I agree that the sentences do not err on the side of severity and that the appeals be dismissed.