HUSSAIN ALI Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) THE question to be adjudicated in this revision petition is:

(2.) THE facts of the case can be briefly stated: The revision petitioner is a lorry driver employed by the Government, and is being prosecuted for offences under Sections 220 and 245 of the Hyderabad Penal Code, which correspond to Sections 279 and 304 A of the Indian Penal Code, i. e. , for rash driving and causing death by negligent act. It is stated in the challan that on Thir 10, 1358 Fasli (May 10, 1949), a touring lorry driven by the petitioner was carrying twelve policemen from Hyderabad; on the road near Narkadpalli, the driver owing to being drunk and negligent, lost its control, consequently it hit a cattle breaking one of the horns, and all the policemen in it were thrown down; most of the occupants received minor injuries; but a policeman called Bhagwandas fell under one of the wheels and was killed. On Mehir 3, 1358 Fasli (August 3, 1949) the petitioner objected that being a public servant and the offences having been committed while he was acting as a public servant sanction for the prosecution was necessary. The Magistrate rejected the application holding that the acts cannot be said to have been committed by a public servant as such. Against this order, this revision petition has been filed.

(3.) THE Privy Council authorities, which I am going to refer, have interpreted the words 'while acting or purporting to act in discharge of official duty' to have no temporal meaning. When this is so as regards these words, which were introduced in order to widen the scope of the Section 197, it is equally true of the less wide words in Section 201 of the Hyderabad Code. I am referring to these Privy Council authorities from this point of view. The leading case is H. H. B. Gill v. The King 75 Ind App 41. The appellant Gill had joined the Indian Army Ordinance Corps and was later given the temporary rank of Major; he was responsible for the issue and acceptance of tenders for purchase of materials in compliance with indents made by proper authorities; as a result of secret enquiries it was found that he had obtained from Lahiri, another accused in the case some cheque and the consent of the Governor General was obtained for the prosecution of offences under Section 161 and Section 120-B, read with Section 420 of the Inidan Penal Code. They were acquitted by the trial Court; but on an appeal the acquittal was set aside and the case remanded for trial, when Section 420 was dropped; a new charge was framed whereby the appellant was charged having accepted gratification other than legal remuneration; then he was convicted of offence under Section 165 of the Penal Code without the charge being formally amended; he applied to the High Court where the conviction on the charge of conspiracy was maintained, and this decision was affirmed by the Federal Court. When the case came to the Privy Council, Lord Simonds delivered the opinion of the Board that the words of Section 270 of the Government of India Act appeared to have precisely the same connotation as the words in Sub-section (1) of Section 197 and then at p. 59, he observes: