PHANINDRA CHANDRA NEOGY Vs. KING

JUDGEMENT

(1.) IN January, 1948, this Hoard heard, and in February, 1948, delivered judgment in Gill v. The King L.R. 75 I.A. 41. In the course of that judgment their Lordships thought it proper to express their view on the scope of Section 197 of the Criminal Procedure Code. Having observed that they found it impossible for any relevant purpose to differentiate between Section 270 of the Government of India Act and Section 197 of the Criminal Procedure Code, they proceeded as follows: "A public servant can only be said to "act or purport to act in the discharge of his official duty, if "the act is such as to lie within the scope of his official duty. "Thus, a judge neither acts nor purports to act as a judge in "receiving a bribe, though the judgment which he delivers "may be such an act: nor does a Government medical officer "act or purport to act as a public servant in picking the "pocket of a, patient whom he is examining, though the "examination itself may be such an act. The test may well "be, whether the public servant, if challenged, can reasonably "claim that what he does, he does in virtue of his office" (2). Applying this reasoning to the case of Gill, a public servant, who had been charged together with one Lahiri, with being a party to a. criminal conspiracy to cheat the Government, whereby offences under Section 120B read with Section 420 of the Indian Penal Code were alleged to have been committed, and had also been charged with offences under Section 161 of the Code, their Lordships held that no sanction under Section 197 of the Criminal Procedure Code was necessary.

(2.) IN face of this judgment the present appeal appeared to have little chance of success. It was nevertheless argued fully by counsel, and their Lordships have had the opportunity of reconsidering the whole question. They cannot accede to the suggestion of counsel that that part of the judgment which has been cited is to be regarded as obiter dictum. The scope of Section 197 and its applicability to Gill's case were put in the forefront of the written case he presented to the Board, and it was the first of his formal reasons that the sanction, for which that section provides, ought to have been, but was not, given. The question was argued at length by the respondent's, if not by the appellant's, counsel, and their Lordships treated it as a matter which required their deliberation and decision. In such circumstances it is irrelevant that a judgment on other points raised in the case might have rendered such a decision unnecessary.