MOHIT SENGUPTA Vs. S. JAYARAMAN AND OTHERS

JUDGEMENT

(1.) The petitioner Mohit Sengupta had filed a petition of complaint to the court of the learned Sub- Divisional Judicial Magistrate, Raiganj, West Dinajpur, alleging, inter alia, that on the 7th Nov., 1981 at about 11:30 in the afternoon he and one Pradesh Basak were arrested from a shop by police in plain dress and were taken to the room of the Officer-in-Charge of the local police station where they were beaten by the Sub-Divisional Police Officer, Raiganj and also by the Circle Inspector of Police, Raiganj Circle who happened to be the present opposite parties. It was further alleged that the complainant and Pradesh sustained injury as a result of the assault on them and they had to be treated in a hospital for 12 days. In such circumstances the complainant made a prayer for issuing process against the paid police officers under sections 323/325 Penal Code. The learned Magistrate, however, took the view that as none of the police officers were removable from office save by the Government and since the act complained of was done by them while acting in discharge of official duties they could not be prosecuted without previous sanction as laid down in Sec. 197 Criminal Procedure Code. It is against this order that the petitioner has come up in revision in this court.

(2.) The main contention raised in the revisional application is that the learned court below was not right in its finding that sanction was necessary for prosecution of the offenders in question as the act of beating could not be said to have been done by them in discharge of their official duties. Now the commission of an offence is not and indeed cannot be part of the official duty of any public servant and the true test to determine whether sanction necessary for prosecution is to find out whether the act constituting the offence is so connected with the official duty of the offender that it falls within the scope and range of such duties. This clearly follows from the language of Sec. 197 itself and indeed there is a chain of authorities in support of this view But this proposition even though very clear in itself may present difficulty in its application to the facts of a given case and hence reference may be made with advantage to a broad test laid down by the Federal Court in Hari Ram Singh's case 1939 FCR 159. In that case Varadachatiar laid down that there must be something in the nature of the act complained of that attaches it to the official character of the persons doing it. It was quoted with approval by the Judicial Committee of the Privy Council in H.B. Gill Vs. The King, AIR 1948 PC 128 wherein Lord Simonds observed that the test may well be whether the public servant if challenged can reasonably claim that what he does by virtue of office. This was again reiterated by the Supreme Court in S. B. Saha & ors. Vs. M S. Mochar, AM 1979 SC 1841 to which reference has also been made by the learned Magistrate. Therefore, it has got to be considered whether the act complained of in the instant case was so connected with the official duties of the opposite parties that if challenged they could reasonably claim that what they did in virtue of their office.

(3.) The learned Magistrate unfortunately has not applied this test but took the view that the act of beating should be considered as in excess of ill authority or an improper discharge of the duties Even this view of the learned Magistrate cannot be sustained because in the case of S. B. Saha ors. (supra), their Lordships had pointed out that it was the quality of the act which was important and if it fell within the scope and range of official duties then only the protection contemplated by section 197 of the Code Criminal Procedure would be attracted. The learned Magistrate has taken note of the observation but still he has surprisingly held that the act of beating was only in excess of the authority or an improper discharge of the duties of the police officer. This altogether overlooks the qualitative nature of the offending act which alone could be the criterion for determination whether the protection under section 197 of the Code Criminal Procedure would be available. There cannot also be any manner of doubt that the test laid down by the Judicial Committee, referred to previously is not fulfilled in the instant can because certainly the police officers in question cannot be heard to say that they have beaten the petitioner in virtue of their office therefore, there cannot be any shade of doubt that the offence complained of cannot be said to have been committed by the opposite parties while acting or purporting to act in the discharge of their official duty and as such the court cannot refuse to take cognizance of such offence on the ground that no sanction for prosecution under section 197 of the Code Criminal Procedure was obtained.