Patna High Court
Bhola Prasad Chaudhary And Ors. vs Guru Prasad Sah on 13 April, 1964
Equivalent citations: 1965CRILJ299
JUDGMENT Ramratna Singh, J.
1. The petitioners were convicted by a Magistrate of Sahibganj under Section 342 of the Penal Code; petitioner No. 1 was sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 200/-, or in default to undergo further rigorous imprisonment for three months; petitioner No. 2 was sentenced to undergo rigorous imprisonment for three months and petitioner No. 3 was sentenced to undergo rigorous imprisonment for one month only. On appeal by the petitioners, their convictions and sentences were upheld by the Sessions Judge of the Santal Parganas.
2. The facts as found by the courts below are these. Petitioner Bhola Prasad Chaudhary is the Sarpanch and petitioner Charan Napit is the Chief Officer of the village volunteer force of Rakshi Gram Panchayat constituted under the Bihar Panchayat Raj Act, 1947. Petitioner Abdul Jabbar is the chaukidar of village Raksi. On Wednesday the 22nd October 1958 at about 8 a.m. petitioners Bhola Chaudhary and Jabbar went to the house of opposite party Guru Prasad Sah and asked him to go to the house of the Mukhiya of the Gram Panchayat. As Guru Prasad was taking meal then he promised to go to the Mukhiya's house later. After some time Guru Prasad went to the Mukhiya's house, but there his waist was tied by the Chaukidar with a gamchha under the order of the Sarpanch and they took Guru Prasad to village Barhait, a distance of two miles, to the house of Tribeni Prasad (P. W. 1), a Samdhi of the Sarpanch. Guru Prasad was kept confined by them in the house of Tribeni from 10 a.m. to 10 P. M. Then he was brought to the house of Sarpanch and the Chief Officer Charan Napit handcuffed him and then he was detained in the house of the Sarpanch for the whole night.
On the 23rd October 1958 the Sarpanch forwarded Guru Prasad to Sahibganj Sub Jail from where he was released on ball the next day under the orders of the Subdivisional Magistrate. There was no written order by the Sarpanch or the Mukhiya under which the chief Officer or the Chaukidar acted before Guru Prasad was sent to the Sahibganj sub-jail. After Guru Prasad was released on ball, he filed a petition of complaint against the three petitioners for wrongful confinement and the present case arises out of that complaint case.
3. The petitioners pleaded innocense and said that the chief officer and the chaukidar acted in good faith under the orders of the Sarpanch and the Sarpanch himself acted in discharge of his duties under Section 64 of the Bihar Panchayat Raj Act. Hence, a question arose whether cognizance could toe taken on receipt of a complaint without previous sanction of the State Government.
4. Mrs. Lall who appeared for the petitioners did not challenge the concurrent findings of fact and she could not challenge the same in revision. Regarding the question of sanction, reliance was placed in the courts below on behalf of the petitioners on Sections 84.A and 28(d) of the Bihar Panchayat Raj Act and Section 197, Criminal Procedure Code and certain other provisions of the Code. The learned Sessions Judge discussed the question in detail with reference to these provisions and decided that no sanction was necessary for taking cognizance of the offence under Section 342 of the Penal Code against the petitioners. Mrs. Lall, however, relied only on Section 197, Criminal Procedure Code and Sections 52 and 64 of the Panchayat Raj Act. The relevant portion of Section 197 on which Mrs. Lall relied reads thus:
(1) When any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, 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 State Government.
There is no doubt that the three petitioners were public servants on the relevant date. Mrs. Lall conceded that the chief officer or the chaukidar could be removed by the authorities subordinate to the State Government, and, therefore, Section 197 would not apply to petitioners Nos. 2 and 3. Section 52 of the Panchayat Raj Act, however, lays down that a Sarpanch may be removed by the Government on the recommendation of the prescribed authority for certain sufficient cause, and, therefore Section 197 would apply to the Sarpanch, provided that he acted or purported to act in the discharge of his duty. It appears from the record that, according to the Sarpanch, D. W. 2 had made a complaint regarding a dispute in respect, of a house, and the Sarpanch after visiting the house served a notice on the complainant Guru Prasad under Section 64 of the Bihar Panchayat Raj Act which as it stood on the relevant date reads as follows:
64(1) Whenever the Sarpanch has reason to believe that a breach of the peace or disturbance of the public tranquility is imminent and immediate prevention or speedy remedy is desirable, he may call upon the parties to the dispute to show cause why they should not be bound with or with. out sureties for keeping the peace for a period not exceeding fifteen days.
(2) As soon as the Sarpanch has issued notice under Sub-section (1), he shall submit the proceeding's of the case to the Subdivisional Magistrate who may either confirm the order or discharge the notice after hearing the parties to the dispute, if they so desire.
The complainant opposite party denied that any notice under Section 64 had been served on him. The petitioners did not produce any document to show that any action had been taken by the Sarpanch under Section 64 against Guru Prasad, though admittedly the papers of the Gram Panchayat were kept at the house of Sarpanch Bhola Prasad Chaudhary. The petitioners made an attempt to file some documents before the learned Sessions Judge and requested the Court to admit the same as additional evidence; but the learned Sessions Judge rejected their prayer. Assuming, however, for the sake of argument that some complaint had been made by P, W. 2 Before the Sarpanch and the latter issued notice to opposite party Guru Prasad under Section 64, there is nothing in that section which empowered the Sarpanch to get Guru Prasad tied by the chaukidar or handcuffed by the chief officer or to detain him either at his own house or at the house of his Samdhi. Hence, there is no provision of law under which the Sarpanch can be said to have acted or purported to act in the discharge of his official duties.
5. Mrs. Lall submitted that, in the absence of a specific provision, the Sarpanch may not be said to have acted in the discharge of his official duties, but he should be deemed to have purported to act in the discharge of such duties, in view of the fact that he issued notice under Section 64 (1). But after the service of notice the duty of the Sarpanch was to submit under Section 64(2) the proceedings of the case to the Subdivisional Magistrate, and, therefore, the act of the Sarpanch in keeping Guru Prasad in wrongful confinement can. not be deemed to be in the purported discharge of his duties.
The handcuffing of Guru Prasad, the act of tying with the samchha or the act of keeping him in wrongful confinement can by no stretch of the imagination be connected in any manner with the powers of the Sarpanch to Issue notice under Bee. 64(1). Mrs. Lall relied on two decisions of the Supreme Court. She relied on the following passage in Placitum (C) of Shreekantiah Ramayya Munipalli v. State of Bombay (S) :
It is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done In any other way. If it was innocent, it was an official act; if dishonest it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained tin-altered, so if it was official in the one case, 3t was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.
But it will be noticed that that was a case under Section 409 of the Penal Code, and the accused had also the power to dispose of the materials kept in the Government stores. That is why their Lordships said that if he disposed of the articles dishonesty, the act of the accused was in the purported discharge of his official duties. In the instant case, however, the Sarpanch had no power at, all to do anything in the matter except sub. mission of the proceedings of the case to the Subdivisional Magistrate after notice had been served under Section 64(1). There was, therefore, no question of dishonest performance of his duty under Section 64 by the Sarpanch.
6. The other case Amrit Singh v. State of Pepsu was in respect of Sections 465 and 409 of the Penal Code. A large number of decisions beginning from the case of Hori Ram Singh v. Emperor AIR 1939 FC 43 were discussed by their Lordships and the result of the authorities discussed were summed up thus:
It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Criminal Procedure Code, nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
It will be noticed, therefore, that sanction will be necessary under Section 197 only if the act complain-ed of is directly concerned with the official duty of the accused; but in the instant case the act of the Sarpanch is not at all connected with the duty of the Sarpanch. In this decision their Lordships quoted with approval the observation of Varadachariar, J. in the aforesaid Federal Court case : AIR 1939 FC 43. In that case, Varadachariar, J. said that the question whether or rot the act complained of is one purporting to be done in execution of his duty as a public servant is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests.
His Lordship then placed the earlier decisions in three groups. In the first group, he placed those cases In which "it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it"; and this was stated by his Lordship to be the correct view. In this connection, his Lordship referred particularly to a decision of the Madras High Court In Ganapathy Goundan v. Emperor AIR 1932 Mad 214 as instructive sines, though two acts were complained of, the Court held that one of the acts was an official act, but not the other, notwithstanding the apparent connection between the acts in the sense of relation in time or opportunity. In that case, a village Magistrate held in confinement certain persons who were suspected to have committed a murder, and also tortured them in order to extort a confession from them. He was charged for committing offences under Sections 330, 343 and 348 of the Indian Penal Code. Wallace, J. held that sanction to prosecute him under Sections 343 and 348 was required under Section 197 of the Code of Criminal Procedure, but not for prosecuting him under Section 330. The reason for the view taken in respect of Section 330 was stated by Wallace J. thus:
It cannot be contended that his official duty permits him to do anything of the nature of causing hurt or applying torture to persons confined by him lawfully or under pretext of law. I would therefore be prepared to hold that in the matter of the alleged offence under Section 330 no sanction is required.
This observation of Wallace, J. goes directly against the contention of Mrs. Lall.
6a. In Gill v. The King 75 Ind App 41 : AIR 1948 PC 128, the Judicial Committee approved the view of Varadachariar, J. and observed:
A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to He 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.
7. Again the question of sanction under Section 197 of the Code of Criminal Procedure came before the Supreme Court in the case in Matajog Dobey v. H. C. Bhari (S) . After referring to the earlier decisions their Lordships said:
There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
From the facts of the instant case, it is evident that there was no connection at all, not to speak of any reasonable connection, between the act of the Sarpanch and the discharge of his Official duty.
8. Then Mrs. Lall relied on a Special Bench decision of the Calcutta High Court in R. C. Pollard v. Satya Gopal Mazumdar AIR 1943 Cal 594 (SB). The relevant facts of that case were these. The accused was the Superintendent of Police, Berhampore, in the district of Murshidabad. On 9th September 1942, there were disturbances in the civil court buildings at Barhampore as a result of which the District Judge sent for the Superintendent of Police, namely, the accused who arrived with several policemen and arrested four youths who were concerned in the disturbances. Their Lordships were not told of the precise nature of the disturbances, but it had been alleged during the proceedings that they involved an attempt to set fire to the Court building. There were many disturbances at that time. The accused with his posse of police took the youths from the Court in the direction of the thana. He, however, did not proceed to the thana but instead went with his prisoners to his bungalow which was on the road to the thana. In the compound of hie bungalow was an office used by the Intelligence Branch of the Police. The accused left the youths in the charge of some of his subordinate Police Officers in his compound and went into his bungalow.
A little while after the complainant who was a pleader in the local court, arrived and entered the compound. At the time there was a crowd of people, estimated by some witnesses at thirty and by others at eighty, outside the bungalow on the road. The complainant who was dressed in pleader's garb - black coat with trousers - proceeded towards the prisoners. One of them was his nephew. The complainant spoke to the police officers and, according to them also to his nephew. The complainant said that his purpose was to ascertain under what provision of law the youths had been arrested and, if possible, to get bail for his nephew. The police officers told the complainant that they did not know under what provision of law the boys were arrested and according to them the complainant spoke to the boys, although the complainant denied this. There was no evidence to show that the complainant Intended to do anything else other than what he said he came for. Shortly afterwards, the accused came out from his bungalow dressed not in police uniform but in a jersey and short trousers and asked what the complainant was doing there. One of the subordinate police officers told him about the complainant who thereupon walked towards the accused, either spoke to him or had the intention of speaking to him.
The accused thereupon waived his hand in the direction of the gate and said "get out". The complainant continued to approach the accused and the accused thereupon laid hands on him. The complainant said the accused fisted and kicked him, turned him round and pushed him roughly in the direction towards the gate. The accused said that he merely seized the complainant by the shoulder with one hand and put the other on his face and turned him round and pushed him towards the gate. At the same time the crowed shouted slogans such as "Bande Mataram" and "Inquilab Zindabad" and the accused ordered the police to clear them away from the gate. The complainant went out of the compound and reported the matter to the District Magistrate as well as to the Local Bar Association. Thereafter these proceedings were started. The Special Bench held that sanction under Section 197, Criminal Procedure Code, was necessary to prosecute Mr. R. C. Pollard. Their Lordships took this view on account of the peculiar facts of that case as is evident from the following observations of Lodge, J. with whom Khundkar, J. agreed:
In short, it seems to me that the learned Sessions Judge applied entirely different standards to the two sides and his findings of fact are therefore in my opinion unconvincing.
If, however this was the only defect I should De reluctant to hold that this Court would be justified in Interfering in revision. But there is the additional fact that the learned Sessions Judge shut his eyes to notorious facts which were relevant in determining whether Section 197, Criminal Procedure Code, was applicable. The learned Sessions Judge treated the matter as though times were normal, and ordinary prisoners were being detained, and as though the mob outside was a mere crowd of sightseers shouting comparatively harmless slogans.... The undoubted facts are that in September 1942 there was open rebellion in parts of the country, that Government buildings were being attacked and Government Officers murdered not many miles distant from Berhampore. In many places where Government Officers hesitated to take firm action, gruesome tragedies occurred.
This decision cannot therefore apply to the facts of the instant case.
9. In view of the above observations, I am definitely of opinion that no Sanction under Section 197, I Criminal Procedure Code, was required in the instant case for the prosecution of Sarpanch Bhola Prasad Chaudhary.
10. Regarding petitioners Nos. 2 and 3, Mrs. Lall faintly submitted that they were protected by Section 78 of the Penal Code, as they merely carried out the orders of the Sarpanch. But the Sarpanch is not a "Court of Justice" as defined in Section 20 of the Code. Mrs. Lall ultimately conceded that if the Sarpanch is not protected under Section 197, Criminal Procedure Code, there is no provision of law for the protection of the other two petitioners.
11. The last argument of Mrs. Lall was that the sentences passed on the petitioners are severe; but the manner in which the Sarpanch abused his position, the sentence of nine months' rigorous imprisonment passed on him does not seem to be severe. The chaukldar and the chief officer have already been lightly dealt with by the courts below. They were not justified at all in blindly following the dictates of the Sarpaneh humiliating Guru Prasad by their unjustified acts.
12. In the result, the application is dismissed.
S.P. Singh, J.
13. I agree.