RAJESHWAR RAO Vs. BANSIDHAR RAO

JUDGEMENT

(1.) THIS is a revision against the order of District Judge, Asifabad. The brief facts relating to this case are that the petitioner before us filed a complaint against an employee of the Forest Department charging him with (a) criminal trespass, (b) insult, (c) theft, and (d) assault. The complainant alleged that the forest employee entered his house without permission and asked him to stop some wood work that was going on in his house and when he refused to do so forcibly carried away all the timber that was there and also some 'kadvi' meant for the cattle in his house. The accused pleaded that he was a Government servant and the offences said to have been committed by him happened to be in the discharge of his official duties and therefore the case could not go on unless the requisite sanction required by Section 201, Hyderabad Criminal Procedure Code: Section 197, Indian Criminal Procedure Code was obtained. The lower Court dismissed the complaints holding that the pre-requisite of a sanction by the competent authority for the complaint had not been obtained in this case and that therefore the case could not proceed. He, therefore, discharged the accused. It is against this order that the complainant has come up in revision before us. Notice was issued to the accused and as he was not present and nobody represented him we appointed Mr. Syed Akbar Mehdi, Vakil, as 'amicus-curiae' to argue the case on behalf of the accused. We heard the arguments of the Vakil for the complainant and that of the 'amicus-curiae. '

(2.) IT has to be mentioned that the Indian Criminal Procedure Code has been applied to Hyderabad. The question arises as to whether the provisions of the Indian Criminal P. C. which is the Code now applicable would apply or whether the Hyderabad Criminal P. C. which was in force at the time when the complaint was filed would govern this case. So far as any law relating to procedure is concerned it is only that procedural law which is extant at the time when the case is decided that would apply. Can the right to pet the complaint thrown out for want of sanction be regarded as a right vested in the accused or is it only a procedural law. So far as this point is concerned I am of opinion that this is only a procedural law because the non-obtaining of the sanction at the time when the complaint is filed would not debar the complainant from renewing his complaint after obtaining the requisite sanction, as such this provision is only in the nature of a procedural law and there fore Section 197 of the Indian Criminal P. C. would apply.

(3.) SECTION 197 says, that when any public servant who is not removable from his office except with the sanction of some higher authority 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 Court would not take cognizance of such offence unless the previous sanction of the person who is authorised to remove him from the office is obtained. There is no dispute about this that the previous sanction of the competent authority had not been obtained in this case. The object of this section is primarily to guard against fictitious proceedings against public servants and before ever such criminal proceedings are launched against public servants it has been considered proper that the well considered opinion of a superior authority is obtained. It is not in all cases of offences committed by public servants that such a sanction is necessary. Emphasis is on the words in the section "while acting or purporting to act in the discharge of his duty". Therefore in so far as the offences mentioned in this case are concerned two of the offences would certainly go out of the purview of this section. They can not be regarded as offences committed in the discharge of one's duty. They are (i) insult and (ii) assault. The allegation of the complainant is that he used foul language and thus insulted him. As regards this an insult could not be said to have been committed in the discharge of one's duty. That certainly is excluded. Similarly a person cannot be said to have assaulted another person while in the discharge of his duty or purporting to act as a Government servant. Just as it was observed by Varadachariar J. in the case of Horiram Singh v. Emperor 1939 FCR 159: