Prafulla Kumar Chakravarti vs Dhodha Sahani

Mukharji, J.—This application in revision is on behalf of one Prafulla Kumar Chakravarty who was an Honorary Magistrate when the alleged occurrence took place.

A few facts may be stated here for a proper appreciation of the points that have, been raised. The petitioner as an Honorary Magistrate had before him a case u/s 323 and 879, Penal Code. One Dhodha Sahani figured as one of the accused in this case. On 4th January 1947 this Dhodha Sahani filed a petition of complaint in the Court of the Sub-Divisional Magistrate making certain serious allegations against the petitioner. Dhodha Sahani''s case was that the petitioner took from him a sum of Rs. 400/- on 22nd December 1946 promising to acquit him in the case pending against him. The case against the petitioner further was that the petitioner delivered judgment in the case on 23rd December 1946 convicting Dhodha Sahani and the other co-accused and sentencing each of them to pay a fine of Rs. 20/-. The learned Sub-Divisional Magistrate examined Dhodha Sahani on solemn affirmation and directed the Second Officer to make anenquiry and submit his report. As the Second Officer was under the orders of transfer and it was thought that his successor in office might not be free for sometime, the enquiry was directed to be made by another Magistrate Mr. Sukhdeo Singh. The Magistrate who was asked to make the enquiry on the suggestion of the Second Officer, held an enquiry, examined witnesses and submitted his report. Among the witnesses examined by him were two persons one named Harnandan and the other Mukhlal. The enquiring Magistrate forwarded the statements of the witnesses to the Sub-Divisional Magistrate, but the statements of Harnandan and Mukhlal were not to be found in the record of the case. On 3rd Febuary 1947 the learned Sub-Divisional Magistrate ordered summons to be issued against the petitioner u/s 161, Penal Code. These are all the relevant facts of the case.

It has been contended on behalf of the petitioner that the initiation of proceedings u/s 161, Penal Code, was bad in law inasmuch as no sanction, as required by Section 197, Criminal P.C. was obtained. Reliance has been placed on a number of rulings in support of the contention that the sanction contemplated u/s 197, Criminal P.C., is necessary in a case like this. The question of sanction "tinder Section 197, Criminal P.C., has been discussed in a series of rulings of different High Courts. I must say that there is no unanimity of opinion in the matter. Even the same High Court has adopted different views at different times. Before I discuss the rulings I should like to refer to Section 197, Criminal P.C. itself. This section like many other sections of the same Code was amended in the year 1923. Before the amendment no Court could take cognizance of an offence committed by any Judge or any public servant if the Judge or public servant was accused as such Judge or public servant, without the sanction of appropriate authorities. The words "is accused as such Judge or public servant of any offence" gave rise to considerable difficulty in the matter of interpretation of the section in question. The section was recast by the amending Act of 1923. According to the provisions of the Code, as it stands at present, such sanction will be necessary where a Judge or a public servant "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." In the case with which we are concerned, it is contended that as the petitioner could not have committed the alleged offence if he was not an Honorary Magistrate, Section 197, Criminal P.C., has application and sanction is necessary.

The scope of Section 197, Criminal P.C., was considered in Ram Singh v. S.A. Rizivi AIR 1935 Pat. 316. Their Lordships in this case observed that the obvious effect of the amendment of 1923 is that the scope of the protection intended for public servants has been widened. There is also an observation that the offence alleged, in order to attract the operation of Section 197 must be so connected with the official act as to form part of the same transaction. In Ram Singh v. S.A. Rizivi AIR 1935 Pat 52 the case was against a Deputy Magistrate who had been deputed to a certain place in connection with an official duty. He was to tackle the ''inhabitants of a village in the district of Monshyr. An additional police force had been stationed in the village and the Magistrate visited the village on this occasion to realise arrears of tax. Ram Singh who was one of the inhabitants of the village, apparently not one of the defaulters, happen-ed to be present at the place where the Deputy Magistrate was. After finishing with the defaulters when the Magistrate turned round he noticed Ram Singh standing with his arms crossed on his chest. The Deputy Magistrate did not like the posture, and being irritated by the reply given by Bam Singh to firs question as to why he was standing like that the Deputy Magistrate ordered his constables to make a lathi charge and the result was that Bam Singh received certain injuries. It was clear in that case that when the alleged assault on Ram Singh took place the Deputy Magistrate was not acting or even purporting to act in the discharge of his official duty. His official duty was already over. Khaja Muhammad Noor and Luby JJ. held in this case that as hardly any time had elapsed between the performance of official duty and the alleged assault the two could be treated as forming part of the same transaction and sanction was necessary. The test laid down in Ram Singh v. S.A. Rizivi AIR 1935 Pat 52 as to when it can be said that the offence complained of was committed by a Judge or a public servant while acting or purporting to act in the discharge of his official duty may not apply with equal force to all cases. In fact, their Lordships who decided the case have observed at page 311 that each case must be decided on its own facts.

The applicability or otherwise of the provisions of Section 197, Criminal P.C., also fell to be considered in another case of this Court. It is the ease in Angelo v. Kandan Manjhi AIR 1940 Pat 316 . The facts of this case are quite simple. Capt. Angelo was the Manager of a certain estate which was under the Court of Wards about the time of the alleged occurrence. It was said that in his capacity as the Manager he demanded among other things rice, fowls and one goat from one of the tenants of the estate of which he was the Manager. Such a demand has been made punishable u/s 68, Chota Nagpur Tenancy Act. A Division Bench of this Court held that sanction of the Provincial Government was necessary before Capt. Angelo could be prosecuted. The learned Chief Justice, who was a party to the decision, referred to the case in AIR 1939 43 (Federal Court) and quoted the following few lines from the judgment of Varadachariar J.:

In one group of oases, it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it.

Varadachariar J. also referred to another group of cases where much stress had been laid upon the circumstances that the official character or status of the accused gave him the opportunity to commit the offence and then remarked that it seemed to him that the first group of cases laid down the correct principle. After referring to the judgments the Federal Court the learned Chief Justice at p. 1093 observed as follows with reference to the case under consideration:

In the present case, it is alleged, capt. Angelo committed the act complained o� in his official capacity, that is as agent of the landlord, and that being so, he committed an offence u/s 63, Chota Nagpur Tenancy Act. In my view the accusation in the present case is precisely the one contemplated in Section 197(1), Criminal P.C.

The question of sanction was considered by this Court in a more recent case. This is the case in Province of Bihar v. Rameshwar Prasad Singh AIR 1945 Pat. 136 . Rameshwar Prasad Singh, the accused in that case was an Assistant Price Control Officer. A chaprasi named Abdul Rauf complained to him that a certain shopkeeper had charged more than controlled price in respect of a certain commodity. The Assistant Price Control Officer went to the shopkeeper and threatened him and to have him to another place bound with a rope. The allegation further was that the officer promised to take no steps against the shop-keeper if a sum of Rs. 500 was paid to him. According to the prosecution, the Assistant Price Control Officer was paid a certain sum of money and this was recovered from the person of the particular officer. It was held by a Bench of this Court that no sanction was necessary. Their Lordships referred to Section 270, Government of India Act, 1935, which also affords protection to public servant against launching of prosecution for acts done or purporting to be done in execution of his duty as a servant of the Crown. The language of Section 197, Criminal P.C, and that of Section 270, Government f India Act, are not dissimilar from each other. Their Lordships in Province of Bihar Vs. Rameshwar Prasad Singh, referred to certain observations made by Sulaiman J. in AIR 1939 43 (Federal Court) . The real test in his Lord ships opinion is not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.

The question of sanction u/s 197, Criminal P.C., was considered by a Full Bench of the Rangoon High Court in Emperor v. Maung Bo Maung AIR 1935 Rang 263. Maung Bo Maung was an Assistant Accountant at a certain Sub-treasury in Burma. The case against him was that he committed criminal breach of trust and was liable u/s 409, Penal Code. The first Additional Special Magistrate of Prome before whom Maung Bo Maung was prosecuted was of opinion that it was a case in which sanction u/s 197 of the Code was necessary. In this view of the matter, he passed an order that Maung Bo Maung "be released as far as this case is conearned." It would appear that it was argued before their Lordships of the Full Bench that sanction was necessary as Maung Bo Maung could not have committed the offence if he had not been a Government official, Their Lordships pointed out that although it is true that Maung Bo Maung could not have committed the offence but for his official position, in committing the alleged offence he was neither acting nor purporting to act in the discharge of his official duty. The Judgment further goes on to say that in committing the alleged offence he was acting not as an official but as a thief. Dunkley J. in the same case explaining the words "purporting to act" observed that they connote that the public servant means or intends or purports, to act as such, or that his action conveys to the mind of another that he is acting as such.

Much stress has been laid on behalf of the petitioner on a very recent decision of the Calcutta High Court in Harendra Chandra Barori Vs. Emperor, . The facts of the case are briefly these: Harendra Chandra Barori was a Sub-Deputy Magistrate vested with powers of a Special Magistrate under Ordinance No. II of 1942. There was case in his Court against Rai Bahadur Satyendra Kumar Das and Harendra Kumar Das. The case was one under the Defence of India Rules. In pursuance of a previous arrangement a sum of Rs. 10,000 was paid to the Special Magistrate to secure the acquittal of the two accused before him. The police party was lying in wait and it recovered the money soon after it had passed. The case against the Magistrate was u/s 161, Penal Code, and it ended in his conviction.

In Harendra Chandra Barori Vs. Emperor, referred to in the preceding paragraph, a Division Bench of the Calcutta High Court held that prosecution for an offence u/s 161, Penal Code, does require the sanction of the Provincial Government u/s 197, Or. P.C. Their Lordships observed that before the amendment of 1923, sanction wa3 necessary in such a case and that the same is the law even after the amendment. In taking this view, their Lordships dissented from an earlier case of the same High Court reported in Khurshed Ahmed and Others Vs. Amanulla, . A careful perusal of the. judgment of their Lordships of the Calcutta High Court in Harendra Chandra Barori Vs. Emperor, , creates the impresssion that, according to their Lordships an offence u/s 161, Penal Code, must require sanction because--(1) such a case required sanction prior to the amendment of 1923 and (2) there are indications that the intention of the Legislature in amending Section 197 was to increase the number of offences requiring sanction rather than to cut down their number. With great respect, I must say that I cannot entirely agree with their Lordships in the view that they have expressed. The intention behind the amendment of 1923 of Section 197, Criminal P.C., is no doubt clear; it was to afford greater protection to Judges and public servants. This, however, can be no reason for a conclusion that a particular offence which required sanction before the amendment must also require it now. In interpreting any particular section we are to look to the actual words used. The words used in Section 197, Criminal P.C., as it stands after the amenment are not ambiguous. Therefore, in interpreting them we should not try to find out what the intention of the legislature was in introducing the amendment. The principle that is to be followed in a case like the present one has been explained in AIR 1944 66 (Federal Court) . No doubt their Lordships of the Federal Court in this case were considering the effect of Section 270, Constitution Act, but this will hardly make any difference because, as observed by Agarwala J. (as he then was) in Province of Bihar v. Rameshwar Prasad Singh AIR 1945 Pat. 136, the language of Section 197 so far as the crucial words "while acting or purporting to act in the discharge of official duty" are concerned is not dissimilar from the language of Section 270, Clause. (2), Government of India Act, 1935. Referring to the case in Hori Ram Singh v. Emperor AIR 1939 P.C. 43 , Zafrulla Khan J. in AIR 1944 66 (Federal Court) observed that the Federal Court had already laid down in AIR 1939 43 (Federal Court) that to attract the provisions of Section 270, Constitution Act, it was not sufficient merely to establish that the person proceeded against was a public servant and that while acting as a public servant or taking advantage of his position as a public servant he did certain acts. The observations of his Lordship further are to the effect that to attract the provisions of the said section it must be established that the act complained of was an official act. Referring to the facts of the case before, him his Lordship then made the following remarks:

In this ease, the act complained of was the act of receiving illegal gratification. That surely could not be an act done or purporting to be ''done in the execution of duty.

In the light of the rulings discussed above, I would once more refer to the facts of the present case. As already indicated above, the main allegation against the petitioner who was an Honorary Magistrate at the time of the occurrence is that one day prior to the date of delivery of judgment in the case in which the complainant was one of the accused, he (the petitioner) took Rs. 400 on the understanding that the complainant will be acquitted. In these circumstances, can it be said that when the petitioner took the money (if he took it at all) he was" acting in the discharge of his official duty or was purporting to act in the discharge of such duty? As an Honorary Magistrate the official duty of the petitioner so far as the particular case against the complainant was concerned was to try the ease and either acquit or convict as might be warranted by the evidence adduced by the prosecution. According to the complainant the initiative came from the petitioner and the complainant went to the petitioner''s house at his invitation. When the money passed hands (if it passed at all) the petitioner must have known that the act was a wrong one and that it had nothing to do with his official duty. In my opinion, it is absurd to say that when the alleged bribe was taken the petitioner was acting in discharge of his official duty. Then it is to be seen whether it is possible to say that the petitioner was purporting to act in discharge 61 his official duty. The words "purporting to act" in such a case may imply one of two things: that the person who purports to act was under a mistaken but honest belief, or that he pretended to act in a particular manner knowing full well that it was a mere pretence. In the present case it is impossible to say that when the alleged bribe was taken the petitioner was under an honest belief that while taking the bribe he was acting in discharge of his official duty. There can, however, be little doubt that when the petitioner, as alleged by the complainant, sent for the complainant and told him that he would give a judgment of acquittal if a sum of Rs. 600 was paid, he pretended to act in discharge of his official duty. If the case is a true one, there can be little doubt that this pretence was a successful one. Could the complainant have paid any money to the petitioner unless he felt certain about his acquittal at petitioner''s hand? No one is such a fool that he will part with good money unless he knows or believes that he will get something in return. In my opinion, the circumstances of the case make it sufficiently clear that the petitioner was purporting to act in discharge of his duty when the alleged occurrence took place. Therefore, sanction u/s 197, Criminal P.C., was necessary. As no such sanction was obtained, the proceedings against the petitioner must be quashed.

It was also contended that although this is a criminal revision, the case is of such an extraordinary nature that the High Court should interfere on facts and quash the proceedings even if it is held in law that no sanction is necessary. In support of this contention a reference has been made to an unreported case of this Court, Sheokaran Lal v. Harihar Prasad Cri. Revn. No. 193 of 1944 (Pat.). Imam J. in the concluding portion of the judgment observed as follows:

It is difficult to say that there was actually no material before the learned Sub-Divisional Officer for summoning the petitioner. But I am satisfied that the material was so hopeless that "o reasonable Court would or could eye convict the petitions for the offence alleged to have been committed by him.

His Lordship next observed that it would be a denial of justice to the petitioner to subject him to the harassment, and possibly, degradation of a trial. The application was. accordingly allowed and the proceedings were quashed. We have been asked to do the same thing in the present case. In the first place, attention has been drawn to the fact that the complaint was filed about a fortnight after the alleged occurrence and that the complainant is no other person than one of the accused whom the petitioner had convicted only a few days previously. The delay in filing the petition of complaint has been sought to be explained by the complainant. The explanation offered by him in his petition of complaint is that he paid several visits to the house of the petitioner to get the money back. From paragraph 8 of the petition of complaint it would appear that when the complainant asked for a refund of the money the petitioner told him that he had already shown the complainant favour inasmuch as instead of sending him to jail he had imposed only a fine. If one reads the statement made by the complainant on solemn affirmation before the Sub-Divisional Magistrate, one will find that according to the initial deposition of the complainant the petitioner gave no reply when he was asked to refund the money. There is yet one more vital discrepancy between the petition of complaint and the initial deposition. According to the petition of complaint (vide paragraph 3) when the petitioner demanded Rs. 600 as the price for a judgment of acquittal the complainant left his house saying that he would consult his men and approach the petitioner afterwards if money could be arranged. In his initial deposition the complainant made the statement that when a sum of Rs. 600 was demanded he (the complainant) agreed to pay Rs. 400 and promised to give on the following day.

A grievance was also made on behalf of the petitioner that the petitioner did not have a fair deal at the hands of the Sub-Deputy Magistrate who made the enquiry in this case and recommended that the petitioner should be placed on trial. I think, this grievance is not an imaginary one. In the petition of complaint, the names of four witnesses have been mentioned. The witnesses are Mukhlal Singh, Jokhan Rout, Munga Rout and Harnandan Sah. The report of the enquiring Magistrate creates?. the impression on one''s mine1 that before him Hamandan Sah and Mukhlal Singh were examined on behalf of the complainant. The record shows that on 2lst January 1947, a petition was filed before the enquiring Magistrate on behalf of the complainant alleging that while the complainant was coming to Court with his witnesses, two of the witnesses, named Mukhlal Singh and Jokhan Rout, fled away under the influence of the petitioner. If Mukhlal Singh was not prepared to make a statement before the enquiring Magistrate and he bolted in the manner alleged in the petition above ''referred to, one fails to understand how the enquiring Magistrate could observe in his enquiry report that two witnesses including Mukhlal Singh were examined and that their statements went to support the case of the complainant. The enquiring Magistrate forwarded to the Court certain statements recorded by him. It may be mentioned that no statement of any of the eye witnesses is to be found with the record. The learned Second Officer, who held the enquiry in this case, has referred to an incident which he calls "a little episode." The incident is this: During the enquiry some witnesses including two Mukhtars, who had worked for the complainant in the case in which the complainant was an accused, came forward to say that a certain sum of money was deposited with one of the Mukhtars by a man called Bhajan Singh of village Harpur, P.S. Majorganj. It was made to appear that the money was deposited on the understanding that the complainant would withdraw his case. Who this Bhajan Singh is, one does not know. The enquiring Magistrate used the statements alleged to have been made by this man, but he did not think it necessary to examine him. Upon a perusal of the statements recorded by the enquiring Magistrate one finds that while according to one set of witnesses a sum of Rs. 400 was deposited with the Mukhtar, according to another set of witnesses the amount deposited was Rs. 357. There can be no doubt that the mind of the enquiring Magistrate was considerably influenced by what he calls a "a little episode." The whole thing, for all one knows, might have been a got up affair only to create prejudice against the petitioner and to lend indirect support to the complainant''s case which was apparently weak in view of the fact out of four witnesses mentioned in the petition of complaint two were not willing to come forward to support his case. The enquiring Magistrate examined the complainant on solemn affirmation, and, in his statement, the complainant offered an explanation as to why the compromise fell through. According to him a sum of Rs. 400 was deposited, but he demanded Rs. 192 more for costs and for the fines paid by him and six others who were accused with him and who were also convicted. This explanation entirely runs counter to the statement contained in paragraph 8 of the petition of complaint. In paragraph 8 of the complaint petition it is said that the complainant approached the petitioner and wanted a refund of the amount of bribe taken by him. This will mean nothing more than a sum of Rs. 400. If exactly this amount was deposited by Bhajan Singh on behalf of the petitioner, it is difficult to understand why the complainant should have demanded Rs. 192 more.

From the above discussion, though short, it will be seen that the case of the complainant was never consistent. This is what one expects if false allegations are made and a complainant acts as a mere tool in the hands of designing persons. It is true, this Court rarely goes into facts in criminal revisions, but regard being had to the circumstances of the case, I am clearly of the opinion that it is a fit case in which the Court should consider the facts as well. The petitioner is apparently a man of social position and respectability. It is true, the law is no respecter of persons, but before a criminal prosecution is launched against a person who, a part from his respectability, was also an Honarary Magistrate at the time of the alleged occurrence, the allegations should be subjected to careful scrutiny. I have examined the relevant materials on the record and from what I have stated above it will be seen that upon a consideration of the facts and circumstances of the case one is left with the impression that the case is in all probability false. There can, therefore, be no justification for a trial in this case.

The application in revision, thus, succeeds. The rule is made absolute and the proceedings against the petitioner are quashed.

Sinha, J.

I agree to the order proposed.