SHANKARRAO MOHITE Vs. BURJOR D ENGINEER

JUDGEMENT

(1.) THIS application arises out of the unfortunate floods in the City of Poona due to the bursting of Panshet and Khadakwasla Dams. The complainant is one Burjor D. Engineer, who filed a complaint in the Court of the Judicial Magistrate, First class, Poona against the four petitioners, the first of whom is the Commissioner, Poona Division, the second is Collector and District Magistrate, Poona, third is a District Superintendent of Police, Pona, and the fourth is the Commissioner, Poona City Municipal Corporation. The complaint is a very long document and extends over several pages but the sum and substance of it is that in law certain duties were cast on all these officers for the safety of populace but in wanton disregard of these rules of duty they did not perform those functions which they were expected to perform. For example, in paragraph 16 the complainant says that

(2.) THE petitioners in answer to the notice raised a contention that the prosecution was incompetent in the absence of a sanction from an appropriate authority under S. 197 of the Criminal Procedure Code. The learned Magistrate heard arguments on this point and decided that no sanction was necessary. It is this judgment that is sought to be challenged in this revisional application.

(3.) IN order to decide the question as to whether sanction is necessary or not, it is well-settled that we must proceed on the allegations contained in the complaint as being true. If an offence under S. 166 is to be made out, the requirements which are necessary to be provided would be (1) that the accused was a public servant, (2) that he conducted himself in the particular manner charged, (3) that such conduct was in the exercise of his public duties as such servant, (4) that such conduct was in disobedience of a direction of law, (5) that when the accused disobeyed such direction of law he did so knowingly, and (6) that when the accused was guilty of such disobedience he thereby intended or knew that he was likely to cause an injury. An offence under S. 290 of the Penal Code is in respect of a public nuisance which has been denied in S. 268. Now, this offence could no doubt be committed by a private citizen but when public nuisance is alleged against the officers like the petitioners, it must be only on the footing that when they committed this offence they were acting in the discharge of their official duties and in no other manner.