M L SIVARAMAKRISHNA AIYAR Vs. SESHAPPA NAIDU

JUDGEMENT

(1.) The petitioner is a Village Munsif, and he applies for the revision of an order passed by the Stationary Sub-Magistrate of Kulitalai in P. R. No. 3 of 1927 on his file. That case was instituted by the complainant against the petitioner and two others under Secs.466 and 474, Indian Penal Code, and the question which arose was whether cognizance of the offences complained of could be taken without the sanction of the Local Government under Section 197, Criminal Procedure Code. The subject-matter of the complaint was a record of a civil suit in which the complainant figured as a defendant and which purported to have been tried and decreed by the petitioner under the Village Courts Act (I of 1889). The complaint alleged that the whole proceeding from start to finish was fictitious, and that the entire record was a forgery. The point for decision is whether sanction under Section 197, Criminal Procedure Code, is necessary before a Court can take cognizance of an alleged offence of this character.

(2.) Section 197 provides (to extract so much of it as is relevant here) that when any person who is a Judge within the meaning of Section 19 of the Indian Penal Code 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, no Court shall take cognizance of such offence except with the previous sanction of the Local Government. It is not disputed that a Village Munsif, when he tries suits under the Village Courts Act, is a Judge. But it is contended that the alleged offence was not "committed by him while acting or purporting to act in the discharge of his official duty".

(3.) The passage just quoted represents the latest of several legislative endeavours to define the kind of offences in respect of which sanction is required. In the 1872 Code (section 466) the phrase was "an offence committed by a public servant in his capacity as such public servant"; and in the Codes of 1882 and 1888 "is accused as such judge or public servant of any offence". But though the present wording is perhaps more explicit, there is no reason to suppose that it marks any change in the intention or the principle underlying the provision. The cases which have been decided under the successive Codes show that much difficulty has been experienced in discovering any general tests by the application of which it may be found whether sanction is or is not necessary. Before examining those cases, one fairly obvious fallacy, commonly urged and indeed to some extent countenanced by the words of the section, may be disposed of. It is said, to take an example, that a Judge who fabricates a record is not "acting or purporting to act in the discharge of his official duty," because it is no part of his official duty to commit such an act. But it is evident that no act can be at once part of his official duty and an offence, so that, were this construction accepted, the provision would involve a contradiction in terms. Clearly what is meant is that the offence must be committed in dereliction of the duty cast upon him as a Judge.