STATE OF KERALA Vs. BALAGANGADHARAN NAIR

JUDGEMENT

(1.) These appeals and connected revisions by the State, arise out of five cases where motor drivers in Government employ (four in the State Transport Department and the fifth, the accused person concerned in Criminal Appeal 101 of 1957, in the Excise Department) were separately tried for offences resulting from rash or negligent driving. At different stages of the proceedings the accused persons concerned raised the question of sanction under S.197 Criminal Procedure Code, & the Trial Courts have thrown out the cases deciding this question in favour of the accused. In four of the cases, orders of acquittal have been pronounced. In the fifth, namely the case concerned in Crl. Appeal 85 of 1957, there is only a bare dismissal. It is apparent that the so-called acquittals are not acquittals properly speaking and are mere refusals to take cognizance of the offences for want of the requisite sanction, the cases being consequently struck off the file. The proper remedy against this striking off lies in revision rather than in appeal, and by way of abundant caution the State has filed appeals as well as revisions in four of the cases although in the one case, where there was not even a purported acquittal but only a bare dismissal, it has filed only an appeal. That appeal, namely, Crl. Appeal 85 of 1957, will be treated as a revision and the appeals in the remaining four cases will be struck off as superfluities.

(2.) The accused persons are admittedly public servants, and the case against them being that they committed the offences alleged in driving vehicles which it was their official duty to drive, it is not disputed that two of the three conditions necessary for attracting S.197(1) Crl. Procedure Code, namely, that the person concerned must be a public servant and that he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, are present. But it is contended on behalf of the State that the third requisite, namely, that the accused person is not removable from his office save by or with the sanction of the State Government does not obtain, and the learned Public Prosecutor has produced certain Government orders which go to show that persons in the position of the accused are removable by the heads of the concerned departments.

(3.) In four of the cases the learned magistrates who tried them threw them out on the strength of the decision in State v. K. Neelakanta Panicker 1956 KLT 764 . In the fifth case also, the so-called acquittal seems to be based on the same decision although it is not expressly referred to. In the 1956 KLT case, the accused person concerned was a mechanic in the State Transport Department and all that was decided there was that, when he was driving a State Transport vehicle on the public road for a test (which he was expected to make) he was acting in the discharge of his official duties. The question whether the accused there was not removable from his office save by or with the sanction of the Government was not considered; and this seems to have been taken for granted. That question is a question which has to be decided with reference to the particular accused person concerned in each case, and the decision referred to is certainly not authority for the position that drivers of the State Transport and Excise Departments are not removable save by or with the sanction of the Government and that therefore the previous sanction of Government is necessary for their prosecution for offences committed in the discharge of their official duties. We might also remark that the learned magistrates seem to have thought that it was enough for an accused person to plead the bar under S.197 Criminal Procedure Code and that, when once that was done, it became incumbent on the prosecution to show that the bar did not exist. That is not so. It is really the other way about, and it is for an accused person who pleads want of sanction as a bar to establish the facts, necessary to attract the bar.