Mehan Ram vs Shri M. P. Mitra and another

H.R. Sodhi, J.—This is a revision application filed by Mehan Ram a brick-kiln contractor of Patiala,praying that the order dismissing his complaint against Shri M P. Mitra District Excise and Taxation Officer, Patiala, now Chief Enforcement Officer, passed by the Judicial Magistrate 1st Class Patiala, on 2nd July, 1966, be set aside. The complaint was dismissed on the ground that s0anction u/s 497, Criminal Procedure Code, was necessary and in the absence of that the Court could not take cognisance of the alleged offences The Petitioner is an Assessee under the East Punjab General Sales Tax Act, 1948 (hereinafter called the Act), and some arrears of tax were due from him. He was arrested by Vidya Sagar, Taxation Inspector, Iqbal Singh T.S.I, and Kishan Chand, Peon of the Staff of the District Excise and Taxation Officer, under warrant of arrest issued by the Respondent. On arrest, the Petitioner was immediately sent to the civil prison Patiala on the same day where he was detained till 5.00 p.m. but later released on his having paid a part of the arrears due from him. He claimed that certain appeals against the assessement orders were pending before the appellate authority, but this is not a point which is material for the disposal of the present petition.

The grievance of the Petitioner is that he could not be detained in civil prison at Patiala and could only be kept under personal restraint by the Respondent. A complaint was filed by the Petitioner against Vidya Sagar, Iqbal Singh and Kishan Chand u/s 342, Indian Penal Code, and it ended in the conviction of Iqbal Singh and Kishan Chand, whereas Vidya Sagar was acquitted by an order of the Magistrate passed on 8th April, 1965. The Magistrate in his judgment observed that Shri M. P. Mitra Respondent acted with undue haste in directing the arrest of the Petitioner without giving him reasonable time to pay the amount due from him. Another irregularity pointed out was that Shri M P. Mitra should not have committed the Petitioner to civil prison and he could keep him only under a personal restraint. He went to the extent of saying that Shri Mitra acted with biased mind and the blame for the arrest of the Petitioner lay at his door. A reference in this connection was made to the abortive attempt of the Petitioner to obtain sanction of the State Government for prosecuting Shri Mitra for a similar offence u/s 342, Indian Penal Code. Since no sanction could be had. the Petitioner then filed the present complaint on 18th January, 1966.

The Respondent was summoned as an accused person by an order of the Court dated 13th May, 1966 A question was raised before the trial Magistrate that the latter could not take cognisance of the offence, if any, as no sanction contemplated u/s 197, Criminal Procedure Code, had been obtained by the complainant. Section 197 of the Code is in the following terms:

(1) When any person who is a Judge within the meaning of Section 19 of the Indian 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 the State Government or the Central Government, 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 cognisance of such offence except with the previous sanction

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government ; and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government.

(2) The Central Government or the State Government as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such judge Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

The trial Magistrate came to the conclusion that sanction was necessary and the complaint was accordingly dismissed.

The Petitioner then filed a revision petition before the Additional Sessions Judge, Patiala, who concurred with the conclusion of the Magistrate and refused to recommend the case to this Court. Hence the present revision petition.

6 The sole question for determination in this case is, whether the Respondent who is admittedly a public servant not removable from his office save by or with the sanction of a State Government could be proceeded against for a criminal offence u/s 342, Indian Penal Code, in the circumstances of the present case without sanction of the said Government. Section 11-B has been inserted in the Act by Section 9 of Punjab Act No. 18 of 1960, with effect from 1st April 1960, as a result whereof the amount of any tax and penalty imposed under the Act, which remains unpaid after the due date, is made recoverable as arrears of land revenue. In order to facilitate the recovery of any such unpaid tax as arrears of land revenue, the State Government, in the exercise of its powers vested u/s 27 of the Punjab Revenue Act, 1887, has conferred the powers of revenue officers on departmental officers. The Respondent, as Excise and Taxation Officer enjoyed the powers of Assistant Collector First Grade. Section 67 of the Punjab Land Revenue Act prescribes the processes which can be issued for recovery of arrears of land revenue and one of them is by arrest and detention of the defaulter By virtue of Section 69 of the same Act, a defaulter when produced before the revenue officer may either be taken to the Collector or kept under his personal restraint for a period not exceeding 10 days and if during this period the arrears still remains unpaid, the defaulter may be taken to the Collector. In other words, it is open to a revenue officer, other than the Collector, to have recourse to either of the two alternatives, namely, to keep the defaulter under his personal restraint for a period not exceeding 10 days or to immediately produce him before the Collector. It is the Collector alone who can order a defaulter to be committed to a civil jail of the district for such period not exceeding one month from the date of the order as the Collector might think fit.

In the instant case, the Respondent, exercising the powers of Assistant Collector First Grade, instead of producing the Petitioner be fore the Collector, if he wanted him to be committed to civil prison, himself ordered the same, thereby exercising the powers of the Coll ector. This was undoubtedly irregular on the part of the Respondent and he could not legally do so. There can, however be no manner of doubt that the act of sending the Petitioner to civil prison was connected with the discharge of his duties as a public servant though the Respondent exceeded his authority. It cannot be said that this act is completely isolated from his office and not done in pursuance of his official duties. The Respondent could have chosen to keep the Petitioner under a personal restraint for a period of 10 days and the latter could make no grievance of it.

It is also not urged before me that the Respondent was not competent to issue the warrant of arrest. The protection is afforded u/s 197 of the Code, to a public servant against prosecution in respect of offences alleged to have been committed by him when he is acting in the discharge of his official duties or purports to be so acting. It is for the Court to determine on the facts and circumstances of each case as to whether the nature of the act is such that it can be said to have been done or purported to have been done in the discharge of official duties of the public servant concerned. As observed by their Lordships of the Supreme Court in Matajog Dobey v. H. C. Bhari AIR 1966 SC 44.

The offence alleged to have been committed must have something to do or must be related in some manner, with the discharge of official duty, * * * *

There must be a reasonable connection between the act and the official duty.

It has also been observed in the same case that what the Court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possible in excess of the needs and the requirements of the situation. Applying this test, it cannot be said that in the circumstances of the present case, the act of the Respondent in sending the Petitioner to civil prison was not connected with the discharge of his duty. The officer had the power to keep the Petitioner under personal restraint for 10 days though for committing him to prison he should have referred the matter to the Collector. He undoubtedly exceeded his authority by doing what the Collector alone could do but it cannot be held that the act done by him was wholly unconnected with the discharge of his duty so as to deprive him of the protection given by Section 197 of the Code.

It has been observed by the Supreme Court in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, that Section 197, Criminal Procedure Code, if construed too narrowly it can never be applied, for of course it is no part of an official''s duty to commit an offence. My attention has also been invited to a Division Bench judgment of this Court reported as Giani Ajmer Singh v. Ranjit Singh Grewal (1964) 66 P L E 1152, where too it is reiterated that the protection given by Section 197 will be available only where the act bears a reasonable connection with the discharge of official duty of the public servant.

In the instate case the Respondent no doubt exceeded his authority by doing what the Collector alone could do, but certainly the act done by him was connected with the discharge of his duty, namely, recovery of the arrears of tax for which warrant of arrest could legally issue and the Petitioner could be kept under personal restraint.

For the foregoing reasons, there is no merit in the revision petition which stands dismissed.