AMANAT ALI Vs. EMPEROR

JUDGEMENT

(1.) The facts which have given rise to the present rule were these. The petitioner Amanat Ali preferred a complaint under Section 406, I.P.C. before Mr. K.L. Banerji, a Magistrate, 1st Class, Noakhali, charging Moulvi Azizar Rahaman, Sub-Deputy Collector of San-dip, with having misappropriated a sum of Rs. 400 paid to him by the petitioner as selami for certain khas mahal lands. Mr. Banerji examined Amanat Ali and sent the matter to one Mr. Ahmed Ali for an enquiry and report. On the next day the District Magistrate withdrew the complaint to his own file and directed Mr. Khan, Sub-Divisional Magistrate, Sadar, to enquire into the complaint and report. Mr. Khan held an enquiry and submitted a report to the District Magistrate declaring the complaint of Amanat Ali to be maliciously false. Thereupon the District Magistrate on a consideration of that report dismissed the complaint under Section 203, Criminal P.C., and under the provisions of Section 476 of the the Code made a complaint against Amanat Ali under Section 211, I.P.C. Against this order of the District Magistrate the petitioner moved the Sessions Judge but without any success. Thereupon the petitioner came up to this Court and obtained the present rule.

(2.) The rule was issued on two grounds: namely, (1) that no Court being entitled to take cognizance of Amanat Ali's complaint against the Sub-Deputy Collector without sanction of the Local Government the complaint under Section 211, I.P.C., in respect thereof was not sustainable; (2) that the District Magistrate not having taken part in any judicial proceeding connected with the petitioner's complaint was not competent to make the complaint against the petitioner under the provisions of Section 476, Criminal P.C.

(3.) As regards the first ground it was urged that the charge under Section 211, I.P.C., was not sustainable, the contention being that Section 211 requires that a false charge must be made to an officer who has power to investigate and send it up for trial and that in the present case Mr. Banerji or any other Magistrate had no power to send up the matter for trial, Section 197, Criminal P.C., operating as a bar to it, inasmuch as admittedly no sanction had been obtained from the Local Government. So far as the proposition that a false charge must be made to an officer who has power to investigate and send it up for trial goes it is perfectly sound finding support as it does from the decision in the case of the Empress V/s. Jamoona [1881] Cal. 620. But the contention that Section 197 operates as a bar to taking cognizance in the present case does not appear to be sustainable. Under Section 197 a previous sanction of the Local Government is made necessary in a case where a public servant is accused of an offence, alleged to have been committed by him " while acting or purporting to act in the discharge of his official duty." The present wording has been somewhat altered from that of the former Code, where the question was whether the person was accused as such Judge or public servant of any offence." The trend of the cases was that the section extended only to acts which would have no special signification except as acts done in the capacity of public servant. Leaving aside authority, however, the proper method of approaching the matter is to take the language of section as it now stands, without reference to changes in the wording or comparison with corresponding sections in previous Statutes, and thus to see what the application of it would be in the present case, taking the language in its ordinary and natural meaning. The question is whether in the present case the offence is alleged to have been committed by the public servant, namely the Sub-Deputy Collector, while acting or purporting to act in the discharge of his official duty. That would seem to imply that something in the nature of an official character attached to the act itself, that act either being in fact done or purporting to be done as an official act in pursuance of the public office held by the public servant. In the case of a criminal breach of trust by a public servant, it would, therefore, be essential to shew, before Section 197 would be applicable that misappropriation had taken place as an official act or at least under the cloak of what purported to be an official act. In the present case Amanat Ali never alleged that the Sub-Deputy Collector had misappropriated the money while acting in the capacity of a public servant. All that he said on the point was that when he asked for settlement the Sub-Deputy Collector made no settlement of the land with him and when he asked for a refund of the money the Sub-Deputy Collector denied having received any.