MATAJOG DOBEY v. H. C. BHARI

In Criminal Revision Petition No. 559 of 1951, High Court (Harries, C.J. and Banerjee, J.) confirmed .an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under ·section 197, Criminal Procedure Code. 1955 Matajog Do61.1 v. H.C. Bhari that no sanction was inter-related and can be In Criminal Revision Petition No. 312 of 1952, Lahiri ;and Guha, JJ. set aside an order made by another Presidency Magistrate required the proceedings against the accused. and they quashed The incidents which gave rise to the two complaints are closely set out briefly. In connection with certain proceedings pending be it was two premises-17, Kala found necessary kar Street and 36, Armenian Street to inspect, copies and secure possession of certain books, papers to be in them. A warrant was and documents believed issued by the Commission in favour of four persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search. Income Tax Investigation Commission for this purpose to search floor on (Appellant The authorised officials went to the Kalakar Street the morning of December premises, in Criminal Ap 1950. Matajog Dobey, the darwan of Kashiram Agarwala, says peal No. 67), forcibly breaking open the that when he found entrance door of the flat he challenged them and re to him, quested inside and interfered with broke open tied him some boxes and drawers of tables. They injuries. On with a rope and assaulted him causing facts, he filed a complaint on 27-12-1950 against H.C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Indian Penal Code. to desist. They paid no heed the door, went 1955 Molqjog Dobf!! v. H.C. Bhari Clumdraukhara .diJ'M J. 928 SUPREME COURT REPORTS [1955} evening premises to be prepared and proper receipts The four officials and some policemen raided the Armenian Street 26-12-1950. Nandram Agarwala (father of Kashiram Agarwala) came to the place and found that they had forcibly opened the lock of the door of the room in there were several books and papers, which into bundles for re they were collecting and packing moval. He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search to be given to him for the books and documents sought te> be seized and removed. Thereupon, rwo policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and thana, where he was as taken to the Burra Bazar the hospital. He saulted again before being sent till mid was brought back and kept night when he was released on bail. Setting out these facts, he looged a complaint against the four officials, other subordinates and police officers whose names he did not later. The then know but could supply in the complaint are sections 323, offences mentioned 342 and 504, the names e>f Indian Penal Code. Later, two police officers were given-Bibhuti Chakravarti and Nageswar Tiwari. the lock up The two complaints were sent over for judicial in quiry to two different magistrates. On 21-2-1951, magistrate held on Agarwala's complaint that a prima facie case had . been made out under section 323 four accused and under section 342 against all against two policemen. On this report, summonses were directed to issue under section 323 against all the accused. On 1-5-1951, two prosecution witnesses were examined in chief and the case stood adjourned 22-5-1951. !st It was on this accused Bhari filed a petition, the objection of want of sanction under section 197, Criminal Proce dure Code. The objection was uphdd and all accused discharged on 31-5-1951. Nandram Agarwala went up to the High Court in revmon, but the order of the Presidency Magistarte was affirmed. In Matajog Dobey's complaint, after latter date taking termina- 2S.C.R. SUPREME COURT REPORTS 929 tion of the inquiry, process was issued .only against Bhari under sections 323 and 342, Indian Penal Code for 22-12-1951. After adjournments, accused filed on 26-2-1952 a petition as in the other case rais. the same objection. The magistrate on whose the objection and the case was pending overruled directed that the ,case should proceed. Accused Bhari the High Court and took the matter on succeeded. revision 1955 Motsjot Dobt'.; v. H.C. IJMri In Nandram Agarwala's case reasonably claim the nature of petitioner, against there was · something the officers could they did was done by (Criminal Revision Petition No. 559 of 1951) Chief Justice Harries and formulated by the Privy Banerjee, J. held that the test that on a fair Council in Gill's case(1) applied and reading of the complaint, bereft of exaggerations and falsehoods, in the exercise of In Matajog Dobey's case (Criminal their official duty. learned Judges Revision Petition No. 312 of 1952), the (Lahiri and Guha, JJ.) came the same conclusion the allegations in these words : "From is abundantly therefore the acts alleged the official against him which attached is, which attached character of the petitioner, them to his official character the search". the appellants in the these con two appeals, challenged the soundness of categorical contentions. clusions and advanced their behalf. Firstly, an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act the dis charge of official duty ; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope it was of employment ; and the duty of the court limine. He also urged proceed and not stifle it that as the entry on into a wrong place, P-17, Kalakar Street, and not 17, Kalakar the search Street which was the authorised premises, the commencement. He raised the 23rd December was in holding to allow learned counsel for that in any case the prosecution Mr. Isaacs, thirdly, illegal from (l) [1948) L.R. 75 I.A. 41. 1955 Matajog Dobey v. H. C. Bhari C!iandra.rtkhara .A.iJar ]. 930 SUPREME COURT REPORTS [ 1955] constitutiona:. point that on Income (!Pvestigation 1947) and section 197, ultra vires, as they were and offenJed article 14 of section 5 ( 1) of . the Taxation Commission) Act (XXX of Criminal ProceJure Code were discriminatory in their nature, the Constitution . that was In the course of his arguments, he referred to sec In (XXX of 1947) issued there was force in such acts must the scope two old English cases to reinforce tion 6 sub-sections (7) and (9) of the Taxation on come (Investigation Commission) Act and rule 10 and the search warrant under them. His main argument was no power conferred by statute or under common on the authorised officials the execution of their duty and any therefore be deemed to be entirely outside of their employment. He drew our attention sections of the Criminal Procedure Code searches and quoted this position. to assault or use relating The search warrant is in these terms : "Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8. Taxation on Income Act, 1947. (Investigation Commission) to believe laid before thereof Whereas . information has Commission and on the consideration mission has been led documents and papers, which are or may be to procce<lings under pendiously known as C. No. 313) Street, Calcutta-7, and (iii) the rooms, 36, Armenian Street, Calcutta, offices and out-houses or other places the Com certain books, relc\'ant the above Act in the cases com (R. the S. Jhabbarmull group and connecteJ cases have been kept dnJ floor, 17, Kalakar Street, Khengraputty and adjoining compound, in that locality. 47, second foun<l Calcutta (ii) to be (i) tG authorise and require you, This Sri H. C. Bhari, AuthoriseJ Official, Income-tax Investigation Commission, (a) to enter anJ search with police officers as may be required, -0r any other place or places where you may such agsistance of said premises 2S.C.R. SUPREME COURT REPORTS 931 reason to believe may be found ; that such books, documents or papers (b) to identification marks on such books, documents and papers as may be found and the proceedings as you may consider aforesaid and to make a list together with particulars of the identification marks ; thereof relevant ( c) to make copies or extracts from such books, documents and papers ; ( d) to seize such books, documents and papers and take possession thereof ; and 1955 Matajog Dobe_, y. H.C. Bhari Chnndrasekhara Ajyar J. ( e) to exercise · all other powers and duties relating sections and Rules thereto". Straightaway, it may be conceded specifies precisely set out above .duties entrusted they took any policemen with mencement or whether resistance was offered .does not matter as the warrant authorises sistance at the search. that the warrant the authorised officials. Whether them even at the com they were only sent for when is not clear. This, however, police as the scope of is set out The version of the complainants as to what happened in the two complaints. The in the petitions filed by the objection under section 197, Crimi the occurrences judicial enquiries. There injuries at the search story of the accused Bhari urging nal Procedure Code. Details about were also elicited at the two found on Nandram Agarwala and Matajog Dobey. two medical certificates specifying is found the Act, we declined it was· not raised before The minor contentions may be disposed of at the outset. Even if there was anything sound and sub the vires stantial in the constitutional point about to go into it of section 5 ( 1) of the High Court or in the grounds of leave to appeal. Article 14 does not render section 197, Criminal Pro cedure Code ultra vires as the discrimination is based upon a servants have to be protected the discharge from harassment of official duties while ordinary citizens not so engaged do not rational classification. Public the petition for special It was argued this safeguard. require 19M Mot<Jo11 Dob,, v. H, G. B/ul.ri CllM4tWtk!orro Aiyar :J. 932 SUPREME COURT REPORTS [1955} to control the government lay down or even that abuse of power to be borne not necessarily section 197, Criminal Procedure Code vested an ab solutely arbitrary power . in to grant or withhold sanction at their sweet will and pleasure, and the legislature did not indicate the exercise of the any guiding principles discretion. There is no question of any discrimination. the matter of between one person and another taking proceedings against a public servant for an to be done by the public ser act done or purporting in the discharge of his official duties. No one can take such proceedings without such sanction. If the Govern, ment gives sanction against one public ser to do so against another, vant but declines government servant against whom sanction is given may possibly complain of discrimination. But petitioners who are complainants cannot be heard to is no discrimination as against any say so for complainant. It has in mind that a discre a discriminatory tionary power power and to be easily assumed where the discretion in the govern ment a!1d not i'1 a minor official. Further, we are not now concerned with any such question. We have to see whether the court could take cognisance merely of the case without purpose if the act com plained against was committed by the accused while in the discharge of official acting or purporting to act the case proceeds or is duty. Once is settled, thrown out. Whether sanction to be accorded or not is a matter for the government to consider. The to accord or withhold sanction con absolute power the government is irrelevant and foreign to ferred on the duty cast on is the ascertain ment of the true nature of the act. The objection based on entry warrant specified 17 mistake or error ; or it may be that an honest mistake. As a matter of fact, books, etc., were found in P. 17, into the wrong pre instead of P. 17 by a bona fide the party made the account raided. tests have been laid down in the- is of no substance ; it is quite probable that previous sanction and the court, which Slightly differing the court has the premises to find out is vested is not 1955 Mattljog Doi# v H.C. Bfiari Chandrasekfttwc A!Yat' J. 2 S.C.R. SUPREME COURT REPORTS 933 in some manner, with decided cases the meaning to aseertain the scope and of the relevant words occurring in section 197 of the to have been committed Code ; "any offence alleged in the dis by him while acting or purporting to act charge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related the dis charge of official duty. No question of sanction can arise under section 197, unless the act complained of the only point to determine is whether is an offence ; in the discharge of official duty. it was committed There must be a reasonable connection between act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the dis charge of the duty, as this question will arise only at the merits. a What we must find out the act and the official duty are so inter-related that one can postu that it was done by the accused in the performance of the official duty, excess of the needs and requirements of the situation. In Hori Ram Singh v. The Crown(1), Sulaiman, J. observes: later stage when the trial proceeds on though possibly is whether reasonably though is it necessary to only such acts "The section cannot be confined in pursuance a5 arc done by a public servant directly of his public office, in excess of the duty or under a mistaken belief as to the existence of such to go to the length of say duty. Nor the offence should be so ing that the act constituting the official duty as inseparably connected with form part and parcel of the same transaction". favour with Varada The interpretation J. in the same case is stated by him in chariar, terms at page 187 : "There must be something in the nature of the act complained of In the official character of affirming this view, in Gill's case(s) "A public ser Privy Council observe to act vant can only be said in the to act or purport is such as to discharg~ of his official duty, if l.lis act the person doing it". the Judicial Committee of that attaches (l) f1939] F.G,R. 159, 178. (2) tl948] L.tl. 7~ I.A. H. 1955 -MtJtajog Dobty v. H.C. Bhari l C Jumdras1khara A!Jar ]. 934 SUPREME COURT REPORTS [1955] lie within the scope of his official duty .... The test may if challenged, can well be whether the public servant, in virtue reasonably claim that, what he does, he does of his office". Hori Ram's case( 1 to with is referred ) the later case of Lieutenant Hector Thomas approval in Huntley v. The King-Emperor(') but the test laid down the act complained it must be established of was an official act appears to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and in Meads in the earlier case. The decision understood v. The King(') does not carry us any further ; it adopts the reasoning in Gill's case('). to us unduly is not There are it is obvious for of course, it can never be applied, two cases of this Court to which ref In Shreekantiah Ramayya erence may be made here. Munipalli v. The State of Bombay('), Bose, J. observes that if section 197 of as follows : "Now is construed too nar the Code of Criminal Procedure it is no rowly, to commit an offence and part of an official's duty never can be. But the duty we have to exa the act, because an official act can mine so much as in the discharged of official duty as well be performed as in dereliction of it. The section has content and its language must be given meaning". The question in Amrik Singh v. The of previous sanction also arose State of PEPSU('). A fairly lengthy discussion of the this summary : "If the authorities so integrally connected with acts complained of are to the office as to be inseparable the duties attaching then sanction under section 197 (I) would be necessary ; but if there was no necessary connec tion between the official status furnishing only the occasion duties, then no sanction would be ·or opportunity for the acts, required". the performance of is followed up with them and them, The result of the foregoing discussion is this : There must be a reasonable connection between the act and the act must bear such the discharge of official duty ; (I) [1939) F.C.R. 159, 178. (3) [1948] L.R. 75 I.A. 185. (5) [1955] I S.C.R. 1177, 1186. (2) [1944) F.C.R. 262. \4! [1948) L.R. 751.A. 41. (6J [1955] l S.C.R. 1302, 1307, 1308. 1955 Matajog Doh., v. H.C. Bhari Chandrasekhara; Aryar]. 2S.C.R. SUPREME COURT REPORTS 935 the duty relation reasonable, but not a pretended or fanciful that he did duty. the accused could lay a claim, in the course of the performance of his that as J. says this view (at page 179) it seems as though the public servant the earliest the prohibition is against its applicability must be judged Is the need for sanction to be considered as soon as is lodged and on the allegations therein the complaint contained ? At first sight, in Hori Ram's case and some support for also in Sarjoo Prasad v. The King-Emperor( 1 ). Sulai man, institution itself, stage of institution. the first instance at Varadachariar, J. also states the question must the nature of be determined with reference allegations made against criminal proceeding. But a careful perusal of the parts of their they did not judgments shows intend to lay down any such proposition. Sulaiman, J. to the prosecution case as dis refers report and he closed by the complaint or the police winds up the discussions the defence estab the case as put forward fails or lishes that is in execu the proceedings will have to be dropped tion of duty, and the complaint dismissed on that ground". The Judge also states at page 185, "At this other learned stage we have only to see whether the case alleged the appellant or sought. to be proved against ag:iinst him relates to be done by It must be so. The him in the execution of his duty". of the proceedings. question may arise at any The complaint may not disclose the act con stituting the offence was done or purported to be done in the discharge of official duty ; but facts subsequently light on a police or judicial inquiry or even coming in the course of the prosecution evidence at the trial, sanction. Whether may establish sanction is necessary or not may have to be deter to stage. The necessity may reveal mined from itself in the course of the progress of the case. the act purported to be done in these words : "Of course, to acts done or purporting the necessity \Ve are not prepared to concede in favour of the (I) [1945] F.C.R. 227. 1955 Matajog Dobey v. H. C. Bhari Chandrasekhar a Ajyar J. 936 SUPREME COURT REPORTS [1955.] is only their behalf to be to the police or laid or therefore the correctness of the extreme proposition appellants advanced by Mr. Isaacs on that when obstruction resistance offered against an the officials lawful search, authorised and remove search have no conducting or cause obstruction removed force, and sistance by the employment of reasonable their remedy to resort magistracy with a complaint. · Such a view would frustrate the due discharge to the official duty and the very object of the search, as the books, etc. defeat in the interval ; and it might be secreted or destroyed resistance even would encourage obstruction lawful acts. is used tance, but that would be a qmry during the proceedings ; improper or unlawful. It is a matter for act of removal if Chapter V and VII of the Criminal Proce dure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, Investigation Commission Act sub-section (9) of to searches applicable only "so far as they can be made applicable". It may be that more than reasonable fit subject-matter for it would not make to clear the obstruction or remove the provisions relating The two English cases relied on are scarcely of any In Jones v. Owen('), a rather startling view was help. to apprehend a person for a statu taken that a power tory offence did not to move that person gently aside. Hatton v. Treeby(') was a case where the Act of Parliament which created a new offence did not in itself provide for a power of deten tion of the offender. include a power inhibiting Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said ex pressly performance of the duty by any trictions, it carries with to hold it is reasonable it the power of doing all such acts or employing such means as are reasonably necessary for such execution . . If in the exercise of the power or the performance the exercise of the power or limitations or (1) (1823) L.J. Reports (KB) 139; 2 D. & R. 600. (2) (1897] L.R. 2 Q.B.D. 452. 1955 Maiqjo6 Dsbf.1 v. H. C. Bluzri Clrmldrasiklwa Ajy"' ]. 2S.C.R. SUPREME COURT REPORTS 937 to remove the resistance. This is encountered, .. there must be of the official duty, improper or unlawful obstruction or resistance the obstruction or to use reasonable means overcome ~om­ monsense and does not seem contrary to any principle of law. The Broom's Legal Maxims, 10th Ed., at page 312 : "It is a rule that when the law commands a thing to be done, the performance of whatever may be it authorises necessary for executing its command". is neatly stated accords with true position that what they did was that Mr. Isaacs Let us however assume is right in it can be urged that the accused his contention. Still, in the discharge could claim that they had a right of their official duty. The belief to get rid of the obstruction then and there by bind ing down removing the complaints or the place might be mistaken, but, surely, it could not be said that their act was necessarily ma/a fide and so entirely divor.ced the dis charge of their duty that it was an independent act maliciously done or perpetrated. They could reason they did was in virtue of their that what ably claim official duty, whether found ultimately the claim to be well-founded or not. from or unconnected with in these the complaints alone the details of facts as narrated by the judicial two cases, Reading even without fairly clear inquiries, witnesses at the assault and use of criminal force, etc. alleged to the per against the accused are definitely related duties. But formance of taken along their official to be an obvious case for with them, it seems to us injuries-a couple of abrasions and a sanction. The two ecchymosis swelling on Nandram Agarwala and scuffle on Matajog-indicate nothing more to have ensued when there were angry which is likely protests against protestors so that the search and a pushing aside of the search may go on unimpeded. than a Mr. Isaacs finally pointed out fourth accused Nageswar Tewari was a constable and case should have been allowed to proceed against him at least. This question arises only in Nandram Agar the cori- wala's case. The Magistrate who dismissed 938 SUPREME COURT REPORTS [1955J 1955 Matajog Dobey v. H. C. B/UJri Chandrast/chara Ai1ar ]. the view plaint ceeding against him alone, as directed against grievance was urged, before not raised in the grounds for special leave. in pro the main attack was Income-Tax Officials. No such the High Court and it is. there was no use We hold that the orders of the High Court are cor rect and dismiss these two appeals. 1955 MERLA RAMANNA fl. NALLAPARAJU AND OTHERS. [BHAGWATI, VENKATARAMA AYYAR and B. P. SINHA JJ.1 Court, Pou1er of-Suit to set aside sale held in excessive execution· of the decree-Afaintainability-Plaint, if may be treated as an execu tion application-Lin1itation-lnherent jurisdiction of court to whose jurisdiction the subject-matter of the decree is transferred-Failure to raise objection at the earliest stage-Waiver-Code of Civil Proce dure (Act V of 1908), s. 47-lndian Limitation Act (IX of 1908), Art;. 165, 166, 181. respondents were The appellant \Vas the assignee of a mortgage dated 14-12-1911~ cxec.itcd by A, \.vhich con1prised lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on instituted a suit in the court of the Sub 19-7-1909. 1"he app..:llant ordinate Judge of l(akina<la, for the recovery of the arpount due on the mortgage, dated 14-l~-1911, and prayed for sale of the hypotheca. impfcaded as defendants but did not appear. 1"he The s1_1!t \Vas <lccreed ex parte, an<l in execution of the decree, the propcrtie'> of th~ respondents, 1nortgage<l to A on 19-7-1909, were brought t0 saie, an<l pun.:haseJ !:y the decree-hol<ler. The respon the present suit in the District Court of East instituted (~odavari \vhich then had jurisdiction O\'Lr the properties in suit, for a declar~uion that the decree obtained by the appellant \Vas fraud their title. The plaint was ulent and inupcrative and could not affect later on a1nended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their sb~re. The trial Judge dis1nisscd the suit and the District Court in appeal affirn1ed his decision. Before the High Court in second appeal the decree in question did it \Va.s contendL·:l for the first not di~ect a sale of the mortgaged properties but a sale of the mort gagee's rights under the mortgage deed dated 19~7-1909 and as such the sale of the properties v.'a::; void. The High Court having called the District Court as to what was sold, it was for a finding from time that