BEHARI RAI Vs. STATE

JUDGEMENT

(1.) Criminal Revision No. 1063 of 1951 arises out of an order of the Subdivisional Magistrate of Dinapore "dropping" a complaint of assault filed by the petitioner against a Deputy Superintendent of Police on the ground that sanction under Section 197 (1) of the Code of Criminal Procedure is necessary and has not been obtained. The facts are that, in the night of the 8th of August 1951, at about 11 O'clock, a dacoity was committed in the house of one Pati Lall Sahu of village Manpura. Soon after the dacoity, the Deputy Superintendent of Police with some other police officers arrived. A first information report of dacoity was lodged before the Sub-Inspector, who was in the police party, and, among other persons, the petitioner was named as one of the dacoits. The case of the petitioner is that, after the arrival of the police party, the petitioner along with other villagers, on the request of the police, searched for the dacoits unsuccessfully and that later the petitioner from his house in village Tarachak was called to the Deputy Superintendent of Police; that on his arrival there he was abused and slapped by the Deputy Superintendent of Police and on his protest was beaten by the Deputy Superintendent of Police with a 'lathi.' A complaint to this effect was filed by the petitioner before the Sub-divisional Magistrate on the 10th of August 1951. The Sub-divisional Magistrate postponed passing orders thereon for the purpose of holding a preliminary enquiry. In the meantime, an objection was filed on behalf of the accused regarding the maintainability of the petition of complaint. This objection was taken up on the 3rd of September 1951 with the result which I have noted above.

(2.) The provisions of Section 197 (1) are very clear and have been explained in several reported rulings. Under this section, protection is given, among others, to a public servant not removable from his office save by or with the sanction of a State Government or some higher authority, who 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." I find it difficult to understand how it can be said in the present case that this provision has any application. My attention has been drawn to Sections 54 (1) and 46 (2) of the Code of Criminal Procedure, and it has been urged that the Deputy Superintendent of Police, by virtue of his being a police officer, was entitled to arrest the petitioner and, if necessary, to use force for the purpose, there being against him a credible information of his being concerned in the offence of dacoity. This, however, is taking an incorrect view of the effect of Section 197. The words "accused" and "alleged" which I have placed in italics (here in inverted commas) above make it clear that, in deciding whether Section 197 has any application, the test is the prosecution story and not the defence of the accused. This has been authoritatively laid down by the Federal Court in the case of 'HORI RAM SINGH v. EMPEROR', AIR (26) 1939 FC 43, with reference to Section 270 (1) of the Government of India Act which was identical with the terms of Section 197. Taking the complaint as it stands, there is nothing to indicate that the accused was acting or purporting to act in the discharge of his official duty. At the utmost, the act complained of was committed (I am for the purpose of the argument accepting the story as alleged), during the investigation of a cognizable offence. The words 'while acting etc." cannot, however, be read in a temporal sense 'H.H.B. GILL v. THE KING', AIR (35) 1948 P C 128. A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.

(3.) For these reasons the order of the Sub-divisional Magistrate cannot be supported. It is set aside and the Magistrate is directed to proceed according to law. In order to avoid any misapprehension in the matter. I make it clear that the proper action to be taken on the complaint is a matter within the powers of the Sub-divisional Magistrate and my present order must not be understood as giving him any direction as to how that power should be exercised by him.