NATUBHAI MANILAL DESAI Vs. FAKRUDDIN KALUMIYA SAYED

JUDGEMENT

(1.) Natubhai Manilal Desai applicant in this revision application is the original complainant He filed a complaint against opponents Nos. 1 and four others on 25th April 1968 alleging that opponent No. 1 and four others committed criminal trespass in his house on 11 February 1968 and present opponent No. 1 who was original accused No. 1 assaulted him or used criminal force against him. The applicant was at the relevant time the Chairman of Karmabad Nutan Vasahat Co-operative Society Limited Opponent No. 1 was the District Registrar of Co-operative Societies in charge of Banaskantha District at Palanpur. He made an order under sec. 83 of the Gujarat Co-operative Societies Act authorising the auditor who was original accused No. 2 to seize the books of accounts of the said society from the complainant. Pursuant to this order original accused No. 1 the auditor original accused No. 2 Mahendrakumar Joshi and two peons of the department along with the present opponent No. 1 went to the house of the complainant committed criminal trespass into it and it is alleged that the present opponent No. 1 assaulted the complainant. In respect of this incident the complainant filed a complaint. In para 13 of the complaint it was stated that the present opponent No. 1 had not entered into the house of the complainant in discharge of his duty by virtue of the office he held and the act alleged to have been done was not done in discharge of his duty and that it was not a bona fide act and therefore it is not necessary to obtain sanction before filing a complaint against him. It was stated that as the present opponent No. 1 is a gazetted officer of the Government of Gujarat and therefore no process should be issued against him at this stage till the sanction to prosecute him is obtained. The learned Magistrate recorded the statement of the complainant on oath and issued process against original accused Nos. 1 to 4 for having committed offences under secs. 448 and 352 of the Indian Penal Code. Subsequently on 2-11-1968 the complainant gave an application Exh. 11 requesting the learned Magistrate to issue process against the present opponent No. 1 as the opponent No. 1 in a cognate case admitted that he had not entered the house of the complainant by virtue of his office or in discharge of his official duty and therefore it is not necessary to obtain sanction to prosecute him as required by sec. 197 of the Criminal Procedure Code. This application was rejected by the learned Magistrate observing that the act alleged to have been committed by opponent No. 1 appears to have been committed by him while acting or purporting to act in discharge of his official duty and therefore the Court cannot take cognizance of such offence without the previous sanction of the State Government. The complainant preferred Criminal Revision Application No. 1 of 1969 in the Court of Sessions Banaskantha at Palanpur. The learned Additional Sessions Judge was of the opinion that looking to the facts and circumstances emerging from the complaint and circumstances attendant upon the incident a sanction to prosecute opponent No. 1 as envisaged by sec. 197 is necessary. He accordingly dismissed the revision Application The complaisant has challenged this order in this Revision Application.

(2.) The narrow question that falls to be determined in this Revision Application is whether on the facts and circumstances as disclosed in the complaint filed by the complainant and his statement on oath could it be said that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty ? If it appears that the acts alleged to have been committed by opponent No. 1 were committed by him while acting or purporting to act in the discharge of his official duty the Court cannot take cognizance of such offences except with the previous sanction of the State Government as required by sec. 197 because opponent No. 1 is an officer who is not removable from his office save by or with the sanction of the State Government. At one stage Mr. Zaveri attempted to urge that there is nothing to show that opponent No. 1 who is the District Registrar is an officer removable from his office save by or with the sanction of the State Government and therefore sec. 197 will have no application to the case in which opponent No. 1 is prosecuted for having committed offences. Mr. J. U. Mehta learned Assistant Government Pleader pointed out to me a notification of the Government of Gujarat General Administration Department dated 4th September 1964 which shows that the opponent No. 1 who was then officiating Lecturer in Gram Sevak Training Centre was promoted and appointed to officiate as District Registrar Co-operative Societies Bhuj. This order appears to have been issued under the signature of one G. N. Dike Deputy Secretary to the Government of Gujarat by order and in the name of the Governor of Gujarat. Prima facie it appears to be an appointment made by the Government of Gujarat and if opponent No. 1 is appointed by the Government of Gujarat necessarily he could not be removed by any authority lower than the appointing authority. Therefore on the materials placed it would prima facie appear that he is an officer who is not removable from his office save by or with the sanction of the State Government. However it would be open to the complainant to establish by leading evidence that the case is otherwise.

(3.) Sanction of the State Government as envisaged by sec. 197 would be necessary if such officer 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. The protection of sec. 197 will be available to the officer if and only if the offence alleged to have been committed by him was committed while acting or purporting to act in the discharge of his official duty. The words; acting or purporting to act in the discharge of his official duty came up for consideration by the Supreme Court in Matajog Dobey v. H. C. Bhari A.I.R. 1956 S.C. 44. After referring to the earlier decisions of the Federal Court and Privy Council the Supreme Court interpreted the words acting or purporting to act is the discharge of his official duty as under:-