LAXMAN MORESHWAR MAHURKAR Vs. BALKRISHNA JAGANNATH KINIKAR

JUDGEMENT

(1.) THIS is an application by a sales tax practitioner praying for the issue of a writ against the State of Bombay prohibiting it from expending public funds for the defence of the respondents Nos. 1 and 2 who are Assistant Commissioners of Sales Tax in the State of Bombay. This petition was preferred before the reorganization of the State of Bombay.

(2.) THE petitioner's contention is that the State of Bombay is not justified in expending public monies for the defence of the respondents Nos. 1 and 2 who are being prosecuted at the petitioner's instance before a Magistrate in Nagpur for an offence under Section 500 read with Section 109 of the Indian Penal Code. The petitioner concedes that the grant or assistance to Government servants who have to institute or defend civil or criminal proceedings in respect of acts done by them in the discharge of their official duties is permissible under rule 189 of the Law Officers (Conditions of Service) Rules and Rules for the Conduct of the Legal Affairs of Government. But according to him, the respondents Nos. 1 and 2 are not entitled to the grant of assistance because it has been judicially held in this case that they are not being prosecuted for an act done by them in the discharge of their official duties. The rule in question therefore does not cover their case.

(3.) WHAT happened was that an objection was raised on behalf of the respondents Nos. 1 and 2 before the trying Magistrate to the effect that the acts complained of could be said to have been committed by them in the course of their official duties and that therefore the sanction of their superior officer for their prosecution was necessary under Section 197 of the Code of Criminal Procedure. Their objection was upheld by the trying Magistrate, but a different view was taken by the Additional Sessions Judge, Nagpur, in the revision preferred before him by the petitioner. The learned Additional Sessions Judge held that the acts could not be said to have been committed by them while acting or purporting to act in the discharge of their official duties and therefore no sanction as contemplated by Section 197 of the Indian Penal Code was necessary. Mr. Phadke who appears for the petitioner argued that this being the view of the Court, we must look at the action of the Government in the light of that view. The Government must be considered to be bound by this view and therefore is not entitled to give the benefit of rule 189 to the respondents Nos. 1 and 2.