ITTIAVIRAH APPREN Vs. STATE

JUDGEMENT

(1.) I agree with the learned Chief Justice that the dismissal of the complaint against accused 2 and 4 was wrong. I am also of the view that for the acts of violence alleged to have been committed by the Inspector on the complainant at night in the Police lock up on the date of arrest, no sanction of Government is necessary to prosecute him. But for what the Inspector was stated to have done i. e. for the assault on the complainant on the public road after his arrest and while he was being taken to the Police Station in the motor vehicle, I am for holding that sanction of Government is necessary to prosecute him. The present complainant was the accused in a cognizable case and in the course of investigation he was arrested and taken to the Police lock up. In this the Inspector was only acting or purporting to act in the discharge of his official duty. In case of resistance on the part of the person arrested or if he refuses to accompany the Inspector to the Police Station after arrest, the Inspector would be entitled to use reasonable force on him to secure his custody and to put him in a safe place in the lock up. It might be that the force used under the circumstances was more than what actually required. The test in such cases whether sanction is required or not, as pointed in H.H.B. Gill v. The King (A.1.R. 1948 P. C 128), is whether the public officer, if challenged, can reasonably claim, that what he does, he does in virtue of his office.

(2.) Assuming that all that the complainant mentioned in this case are true, the Inspector could say that while taking the arrested person to the Police Station, he (complainant) refused to accompany him to the station or that he attempted to escape, and that he had to use some physical force on the person of the arrested person to enable him to take the former to the Police Station That is a very reasonable claim, the Inspector can adduce and if so, he cannot be prosecuted without Government sanction. The allegations in the complaint may be false. The claim that can be advanced by the Inspector may also be false. But that does not give the criminal Court jurisdiction to take cognizance of the case and try it. The aggrieved party can move the Government for sanction. The Government will institute an enquiry through their officers, and as the result of the enquiry the sanction may or may not be given. The party will have however to take the consequence. Otherwise no Government can get on and no officer under Government will be safe.

(3.) The imperative provision in the section is that no court is to take cognizance of offences said to have been committed by a Judge or Magistrate or public servant not removable from office save by or with the sanction of the Government while acting or purporting to act in the discharge of his official duty. When the criminal Court which has already accepted a complaint and issued process, is apprised by the officer accused, of the provisions of this section, that court has to apply the test mentioned in AIR 1948 PC128 , and then drop the proceedings to the extent to which the test can be made to apply. It is not to hold an enquiry and take evidence to ascertain whether the claim advanced by the accused officer is true or not. It will also be against the injunction laid down in S. 197 that no court was to take cognizance of cases of the nature mentioned therein. The formal enquiry will be held by the Government and not by the court. The allegations in the complaint and the claims put forward by the accused are alone to be considered by the court to ascertain whether the acts alleged can be said to be done by the accused officer in his official and not in private capacity (See Hori Ram Singh v. Emperor AIR 1939 F. C. 43). The mere fact that an offence is committed by the public servant when he is in office is not enough to attract the provisions of this section (Vide Superintendent and Remembrancer of Legal affairs, Bengal v. Jadu Nath AIR 1940 Cal. 274 ). For example if while taking the arrested person to the police lock up, the Inspector assaults a passer by for no reason, then he is not protected by this section though he was at that time engaged in discharging his official duty in taking the arrested person to the Police Station. If on the other hand, that passer by had attempted to rescue the arrested person, then the Inspector would be justified in using physical force against him.