In Re: K. S. Doraiswamy Iyer

Govinda Menon, J.—This is an application to quash the four charges framed against the petitioner, by the Additional First Class Magistrate

of Banipet in c. C. No. 231 of 1947 on his file, The first of these charges relates to an offence u/s 120B, Penal Code, in that the petitioner,

between 1st May 1946 and 1st June 1946 at Arkonam, with a person who is accused 2 in the Court below, agreed to do an illegal act, viz., fairing

out the military vehicles entrusted to the petitioner for allotting to the Sub-Divisional Officers for military works, to p. w. 2, a civilian building

contractor, and that the same act, viz., the hiring out of the military lorries to the private contractor, having been done in pursuance to an illegal

agreement the petitioner hereby committed an offence of criminal conspiracy. The next three charges relate to cases of criminal breach of trust by a

public servant, viz., the petitioner, in that he as Sub-Divisionl Officer, M. E. S., Arkonam, being entrusted with military lorries for allotment to other

Sub-Divisional Officers for military work, used those military lorries dishonestly in contravention of such entrustment and thereby committed

criminal breach of trust on three occasions.

The contention raised in this application is that the charges should be quashed for the reason that the Magistrate bad no jurisdiction to entertain

the proceedings before him on the ground that there was no sanction as contem plated by Section 270 (l), Government of India Act, 19SS, and

also that the petitioner being a public servant under a contract of service with the Governor-General in Council and not removable from his office

save by or with the sanction of the said authority, and the offences alleged against him being said to have been committed by him while acting or

purporting to act in the discharge of his official duty, the Court should not have taken cognizance of the said offences without the previous sanction

of the Governor .General in Council u/s 197, Criminal P. C. Both these objections converge to the same point, viz. whether the petitioner in

committing the alleged acts which form the subject of the charges was doing an act or purporting to do an act in execution of his duty as a servant

of the Crown is India.

According to the prosecution, the petitioner who was employed as a Sub Divisional Officer in the Transport Garrison Engineering Office at

Arkonam was entrusted with the duty of allotting trucks to the various military departments for their use. These trucks belong to a company known

as the General Provisions Transport Company and were at the disposal of of the military authorities to be used for military purposes. According to

the evidence now let in, it is seen that the driver of each vehicle takes it to the petitioner every day for the purpose of getting the work allotted and

when it is so taken, it is the duty of the petitioner to indicate in the duty slip of the driver which place he was to go, Such allotment should be only

for military purposes and not for anything else. The prosecution case is to the effect that instead of allotting certain lorries on the dates mentioned in

the charge for military purpose, the petitioner entered falsely in the duty slips some bogus military work and hired out the lorries to private

contractors for their own work after receiving illegal gratification in each case for so hiring out. It is said that the offence of criminal breach of trust

arises from the fact that the lorries entrusted to him in his official capacity for the purpose of using them for military work alone were diverted for

private use after he received consideration for such diversion. This was done as a result of a conspiracy between the petitioner and accused 2 in

the lower Court. Such being the case, the two accused have been arraigned firstly for the offence of criminal conspiracy and secondly for the

various instances of criminal breach of trust on specific dates.

The question that falls for decision is whether on the prosecution evidence as it stands (I do not wish to express any opinion about the credibility

or otherwise of the evidence) the petitioner was acting or purporting to act in the discharge of his official duty. There are certain essential

circumstances to be kept in view according to the learned advocate for the petitioner. They are as follows ; But for the fact that the petitioner was

the Sub Divisional Officer and was empowered to direct the lorries entrusted to his charge for particular or specific military purposes, he would not

have had the opportunity of doing what he is alleged to have done. Therefore Mr. Bamaseshan urges that there is an element of the official duty

being done by the petitioner when he directed the driver to take the lorry to private contractors like P. w. 2 and others. Secondly, according to him

drivers like p. w. 6 would not hare obeyed the direction given by the petitioner unless it were that the petitioner''s act would amount to one

purporting to be done in the discharge of his official duties. The evidence of P. Ws. 6 and 2 is clearly to the effect that they would not have acted

as they did but for the belief instilled in them by the petitioner that he was acting in the discharge of his official duties.

On the strength of the above circumstances, Mr. Bamaseshan contends that the prosecution cannot stand in the absence of the previous sanction

of the Governor-General in Council u/s 270, Government of India Act, or u/s 197, Criminal P. C. For this argument he relies upon the

observations of the Federal Court in The Secretary of State for India in Council Vs. M.A.C. Arunachala Mudaliar and Others, . In particular,

reliance is placed on the observations of Sulaiman J. at pp. 88, 36 and 87 of the report where the learned Judge was discussing the question as

regards the applicability of Section 270, Government of India Act, to the facts of that case, as well as to the contention raised therein regarding the

breach of trust. There are other passages in the judgment also to which reference is to be made especially to the judgment of Varadachariar J. at

pp. 88 to 41. What the Federal Court decided in that case was that for an offence of breach of trust u/s 409, Penal Code, committed by a public

servant, no sanction u/s 270, Government of India Act, or u/s 197, Criminal P. 0, is necessary. I need not refer to the various other cases where

the question has been discussed at some length. Suffice it for the present case to rely upon recent decision of Rajamannar J. as he then was in Cri.

E. c. No. 1091 of 1946 dated the 2nd April 1947. That was a case where the accused were charged with criminal conspiracy to commit various

offences. The lower Court in that case held that for the initiating of proceedings under Sections 409 and 420, Penal Code, the consent of the

Governor-General was necessary but that no such consent was necessary in respect of the charge u/s 120B, Penal Gode, The application to revise

the order of the lower Court therefore was concerned only with the point regarding the necessity of the previous sanction of the Governor-General

in Council for an offence u/s 120-E, Penal Code. The learned Judge after a very exhaustive discussion, if I may say so, came to the conclusion that

the offence of conspiracy could not have been committed by the accused by acting or purporting to act in the discharge of his duty. The following

observations of the learned Judge are pertinent to be considered for the present case:

Applying the test so laid down by the Federal Court, to my mind, it is clear that the offence of criminal conspiracy cannot fall within the .category

of ''an act done or purporting to be done in the execution of his duty of a public servant,'' As I have already said the gist of the offence consists in

the agreement to commit certain illegal acts, No doubt the agreement was arrived at at a time when the petitioner held an official capacity. It may

also be because he was holding a particular official position that he became a party to that agreement. But for the fact that he was a servant in

charge of certain official work, this would not have been a party to the conspiracy. But it cannot be said that the agreement was an act done In his

official capacity. It was not an act which the offender professed to do in pursuanoe of his official duty and meaning ''to convey to the mind of

another the impression that he is so acting.'' The act complained of, viz., that ho agreed to do, or cause to be done, certain illegal acts was not an

official act just as it was pointed out in AIR 1944 66 (Federal Court) that the act of receiving illegal .gratification could not be an act done or

purporting to be done in the execution of duty. In my opinion the contention on behalf of the petitioner based on S 270, Sub-section (1),

Government of India Act, should be rejected.

These observations apply directly to the present case. When the petitioner agreed, according to the prosecution, with accused 2 to commit an

illegal act, i, e. to hire out a vehicle entrusted to him for military use for private use, neither he nor accused 2 was doing anything which was in the

discharge of their official duties. Both of them knew that it was against the official duty to hire out a military vehicle for a private purpose. Neither of

them had any intention that the act which they were doing in pursuance of that agreement was in any way connected with their official duties. It may

be, that but for the opportunity which presented to these persons on account of their official position, they would not have been in a position to

enter into this illegal agreement. But that does not matter. The question has to be considered from this aspect, viz., whether the persons according

to their knowledge were doing or not doing an official act. I have no doubt that when�if the prosecution story is true�the petitioner and the

second accused agreed to hire out the lorries to private individuals, they were not to their knowledge, doing or purporting to do any official act.

This disposes of the first charge regarding the offence under B. 120B, Penal Code.

Even as regards the three charges u/s 409, Penal Code, it cannot be said that the petitioner was acting or purporting to act in the discharge of

any official duty. Sulaiman J, in Dr. Bori Bam Singh v. The Crown, 1989 2 M, L. J. 23; A.I.R.. 1939 P. C. 43: 1939 Cri, L. J. 468 observes at p,

36 of the report as follows:

The question whether a criminal breach of trust can be committed while purporting to act in execution of duty is not capable of being answered

hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalised way had

been responsible for loose language used in some of the cases cited before us. It is possible to conceive of a case where a criminal breach of trust

may be committed in conspiracy with other servants and payment of money is dishonestly ordered ostensibly in execution on duty. The question

whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case.

Further on, the learned Judge observes that:

When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under B. 409, he is not

doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge

of his duty.

The contingency envisaged by the learned Judge of the possibility of a case where a criminal breach of trust is committed in conspiracy by one

public servant with other public servants and payment of money is dishonestly ordered ostensibly in execution of duty, floes not arise here, for it is

not pretended that there is any payment of the public funds by the petitioner in pursuance of a conspiracy with any other public servant dishonestly.

What the petitioner is charged with is, that by using a vehicle entrusted to him in his capacity as a public servant in derogation and utter violation of

the entrustment, he thereby caused wrongful gain to himself. To such a state of things the observations of Sulaiman J. cannot apply. Varadachariar

J. also at p. 41 of the report came to the same conclusion and observed that in so far as the charge u/s 409 was concerned, the acts in respect of

which the appellant therein was prosecuted could not be regarded as acts done or purporting to be done in the discharge of his duty. The above

decision of the Federal Court has been followed in a number of other oases to which it is unnecessary to make any detailed reference. All these

cases have been considered by Bajamannar J. as he then was before coming to the conclusion that for an offence of criminal conspiracy u/s 120B

it is not necessary to have the previous sanction of the Governor-General u/s 270, Govern. ment of India Act.

On principle, it is difficult to see how a person in doing an act in utter contravention and entire violation of his official duties can be deemed to do

the same in discharge or execution of his official duty or purporting to do in the discharge or execution of his official duty. It is not pretended or

even remotely suggested that a public servant like the petitioner can use the property entrusted to him for his own purposes. If he does any act in

violation of the terms of the entrustment, it is a negation of the execution of public duty. I am therefore satisfied that the arguments advanced by the

petitioner''s counsel are unacceptable, and that the provisions of Section 270, Government of India Act or Section 197, Criminal P. 0., are not

applicable to the facts of the present case. I wish it to be distinctly understood that I do not intend to express any opinion whatever about the

merits of the Case and whether the prosecution evidence as it stands is sufficient or not to prove the offences with which the petitioner is charged.

The petition is therefore dismissed.