{"id":178032,"date":"1961-10-21T00:00:00","date_gmt":"1961-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shankarrao-mohite-and-ors-vs-burjor-d-engineer-on-21-october-1961"},"modified":"2017-08-21T22:10:46","modified_gmt":"2017-08-21T16:40:46","slug":"shankarrao-mohite-and-ors-vs-burjor-d-engineer-on-21-october-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shankarrao-mohite-and-ors-vs-burjor-d-engineer-on-21-october-1961","title":{"rendered":"Shankarrao Mohite And Ors. vs Burjor D. Engineer on 21 October, 1961"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shankarrao Mohite And Ors. vs Burjor D. Engineer on 21 October, 1961<\/div>\n
Equivalent citations: AIR 1962 Bom 198, (1962) 64 BOMLR 130, ILR 1961 Bom 63<\/div>\n
Author: Patel<\/div>\n
Bench: Patel, Chandrachud<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Patel,  J. <\/p>\n
  (1)  This application arises  out of the unfortunate floods  in  the City of Poona due to the bursting  of  Panshet and Khadakwasla  Dams.  The complainant  is one  Burjor  D.  Engineer,  who  filed  a complaint  in the Court  of the Judicial  Magistrate,  First  class,  Poona  against  the  four  petitioners, the  first   of whom  is the  Commissioner,  Poona  Division,  the  second  is  Collector  and  District Magistrate,  Poona,  third  is  a District  Superintendent   of Police,  Pona,  and  the fourth is the  Commissioner,  Poona  City Municipal  Corporation.  The  complaint  is a very  long  document  and extends   over several  pages   but the  sum and substance  of it is  that in  law certain  duties  were cast  on all these officers  for  the safety  of  populace but  in  wanton  disregard of these rules  of  duty  they  did not  perform   those functions  which  they were  expected  to  perform.   For example,  in paragraph 16 the complainant  says that
\n   “by  reasons  of the exalted   position  which all the  accused  occupied they  were responsible for the safety  of the inhabitants  and their property in  areas under  their  respective control.  They were  by law  enjoined  to the  best of their  ability  to  prevent  the  commission of a public   nuisance  and to use their  best endevaours to avert any accident  or damage  to the public,  their  lives and    property.”\n<\/p>\n
In subsequent  paragraphs there is  amplification  of this  statement  explaining  how  they  failed to  act in  the discharge of their  duties. He,  therefore, prayed  that offences  under Ss.  166 and 290  of the Indian  Penal Code  were made out  against  all  these four  officers  and therefore  they  should be  proceeded with in  accordance  with  law.\n<\/p>\n
 (2) The petitioners  in  answer to the  notice  raised  a contention that the   prosecution was  incompetent  in  the absence of a sanction  from an   appropriate authority under S. 197  of the Criminal Procedure Code.  The learned Magistrate  heard  arguments on this point  and  decided that  no  sanction  was necessary. It  is  this judgment  that  is sought  to be challenged in  this revisional  application.\n<\/p>\n
 (3)  In  order to decide  the question as to whether  sanction is necessary or not, it is  well-settled  that  we must   proceed  on the allegations contained  in  the complaint  as being  true.  If an offence under S. 166 is to be  made out,  the  requirements  which are necessary  to  be provided  would  be (1)  that  the  accused  was   a public  servant, (2)   that he  conducted himself  in  the  particular  manner charged, (3)  that  such  conduct  was  in  the  exercise of his public  duties  as  such servant, (4)  that  such  conduct was in disobedience  of a direction  of law,  (5)   that  when   the  accused  disobeyed  such direction  of  law  he did  so knowingly,  and (6)  that  when  the  accused  was guilty   of such  disobedience  he  thereby  intended or  knew  that  he  was likely  to cause  an  injury.  An  offence    under S. 290  of the Penal  Code is in  respect of a public  nuisance  which  has  been  denied  in S. 268. Now,  this  offence  could no  doubt  be  committed by a private citizen  but when  public  nuisance  is alleged against  the  officers  like  the  petitioners,  it   must be only  on the footing   that  when they  committed  this offence  they were  acting  in  the  discharge of  their official  duties  and in  no  other manner.\n<\/p>\n
 (4) Section  197  so far as  is relevant reads
\n   “when  any public  servant . . . .is  accused of any  offence alleged to have been committed by  him while  acting  or purporting  to act  in  the discharge of his  duty,  no Court shall take cognizance of such  offence except. . . . .etc.”\n<\/p>\n
It is  clear  that the act  constituting  the  offence  cannot  be  the  actual duty that  he is performing, but something independent of that  duty  for the  doing  the  act of duty cannot both  be legal and  illegal.  Yet it must  arise  out of the  performance  of  duty; Moreover it  can   never  mean  that  a  single  act of duty  must  be  regarded  as the performance  of duty out  of  which  the offence   must  arise.  Duty  must be taken  as the  general  duty  which an officer  has to perform  such as,  as in the present  case of taking  care  of the  polulance  in time  of danger. If  in  the  course of such performance  of  duty  he does  something   which  is  an  offence  the  section must apply.  Section 4(1)  (o) and  Section 4(2) , make  it  clear that the   words  referring   to acts done  ncludes illegal  omissions.  In asmuch  as  the illegal  omissions  of the  petitioner must  necessarily  arise out  of the   official  duty  which  they were  performing  the  section must apply. If the  question were res integra there may have  some scope for the argument  canvassed on  behalf of the opponent.  The  question,  however,  has been  decided  by the Federal  Court in  Hori  Ram  Singh v. Emperor  .  In that  case the appellant  before the Federal Court  was   accused  of two  offences,  one under  S.  409   and  another under S. 477A of the Penal Code. He was a sub-Assistant  Surgeon  in  the Punjab Provincial  Subordinate  Medical  Service. When he was about to be  transferred, a consignment of medicines  was received   in the Hospital.  He  did not make the  necessary entries which  were to be made in the register  of stock and diverted the goods  to his house  and packed  them along with  his  baggage for being transported to his  new place of destination.  An  investigation    was set up  on  the report of the  compounder  of the hospital. In respect of the misappropriation  of  medicines, he was  charged under S.  409 for  committing  criminal breach of   trust, and in  respect of  the default in  making   the  entries  in  the stock  register  he was charged under Section  477A.  A  question  arose as to  whether   he could  successfully  be prosecuted without  sanction  required by S. 270  of the Government  of India  Act. The Court  here considered  several authorities and  formulated certain  tests.  While dealing with Section  477A,  Mr.  Justice  Varadachariar  observed:\n<\/p>\n
   “In  the charge under S. 477A,   the official  capacity is involved in  the very act  complained of as  amounting  to a crime,  because  the  gravamen  of the charge is that  the accused acted  fraudulently in the discharge of his  official  duty   . . . .The learned  Advocate-General of the Punjab sought  to found an  argument  on  the fact that the appellant  is in the present  case charged not with  an  act in  the sense of making a   fraudulent  entry in the course of his  official duty,  but with  an  omission to make  an  entry  which it  was his duty to make. I do  not think  that  anything  can be  made to  turn on  this distinction.  Apart from the  principle that,  for the  purposes  of the criminal law,  acts and  illegal  omissions  stand very  much on  the same  footing,  the  conduct   of the appellant  in maintaining  the  accounts, which it  was his  duty to keep,  has  to be  dealt  with as  a whole and the particular omission cannot  of itself  be treated as  an offence except  as  a step in the   appellant’s  conduct in relation  to the  maintenance  of the  register which  it  was his  duty   correctly  to maintain.”\n<\/p>\n
On the principle of this  decision  it  must be held that  the  petitioners  are  protected    by S.  197 of the Criminal  Procedure Code.\n<\/p>\n
 (5) It is  argued by the  learned  Counsel w ho  appears  for the  respondent  that Hori Ram  Singh’s  case 1939  FCR  159;  (AIR  1939  FC 43) has no application to the  facts of the  present  case.  We are  essentially concerned with  the  principle  of the decision  and not with the  facts   of a particular  case.  In order to prove  the offences  which the respondent  alleges  against  these officers,  he must  prove that  it  was  while discharging  their official  duties  that they  have  not  performed certain  acts  and it is  the  non-performance  of these acts  which  amounts  to an  offence.\n<\/p>\n
 (6) The learned Advocate  for the  respondent  advanced  a somewhat  strange argument.   According to him,  the section may  protect  an  officer  if  he commits  a positive act of  wrong  doing  but where he does not  do anything by way of discharging  his  duty  then he would not  be entitled  to protection.  He  argued  that  if the  officers had  considered  the position   obtaining   at the Dams  and thereafter decided  not  to do  anything  in the matter  deliberately  and  dishonestly, then they would  be  protected  because  they  had  applied their  mind  and  decided  not to do anything  in  the matter  fort safety  of the people.   But  says he,  they had not applied  their mind and therefore they failed  to discharge their  duty  of taking  precautions  for  the  safety  of the people and  therefore, they are not  protected.  We find  it difficult  to   appreciate arguments.  As  we have  said, since  the  decision of the Federal   Court referred to above   concludes the point, it is  not open to  be  canvassed   before us.\n<\/p>\n
 (7) Even  if, however,  the  question were  open  for  decision,  in the light of the test  laid  down by the Supreme  Court in   later  cases  we should have been obliged  to hold that  S.  197 of the Criminal  Procedure Code  is  attracted by the facts of  this  case.  It is necessary  to  refer only to two  cases decided  by the  Supreme Court. In   Shreekantiah  Ramayya  Munipalli  v.   State of  Bombay   the<\/a>  court was  dealing  with an offence under  S. 409  of  the Penal  Code. Mr.  Justice  Bose speaking  for the Court  cited   the   observations  of Mr.  Justice   Varadachariar  in Hori  Ram Singh’s  case   and observed:\n<\/p>\n
 “Now  it is obvious that if  Section  197 of the  Code of Criminal  Procedure  is construed  too narrowly it can never  be applied, for of  course it is  no part  of an  official’s  duty  to commit  an offence  and  never  can  be.  But it is  not the duty we have to examine so much as the  act, because an  official  act can be performed in the  discharge of  official duty  as well as  in  dereliction  of it.  The section has content   and its language  must be given  meaning.  What  it says  is.\n<\/p>\n
 ‘When  any public  servant. . . . . . . .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. . . . .”\n<\/p>\n
We have therefore  first  to concentrate on  the  word ‘offence’.\n<\/p>\n
He then analyses  the offence in that   case and  observed:\n<\/p>\n
  “Now  it is evident  that  the entrustment and\/or   dominion  here was 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.”\n<\/p>\n
The test, therefore, that would emerge from this  decision is whether the act (or omission) could have been done otherwise  than in the  discharge of  duty  by such  officer. Applying   this   test we must  hold  that  S. 197 of the Code of  Criminal  Procedure  is applicable,  since  the  omissions   complained of could  not have  been  otherwise  than in the discharge of their  duty  by the petitioner.\n<\/p>\n
 (8)  The  question  arose in  the case of  Amrik  Singh  v.state of  Pepsu  .  The  question was in respect of  offences  under Ss. 465 and 409 of the Penal Code. Mr. Justice  Venkatarama Ayyar  after considering  the  effect of the   authorities  says-\n<\/p>\n
   “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.”\n<\/p>\n
Then dealing  with the  argument  based on  Hori  Ram’s case   and  Gill  v. The  King  he  says:\n<\/p>\n
 “If the acts complained of  are  so integrally  connected  with  the  duties attaching  to the   office  as  to   be  inseparable  from them,  then  sanction under S.  197 (1)  is necessary. . . .\n<\/p>\n
   x  x  x  x  x<\/p>\n
The result then is that  whether  sanction is   necessary to prosecute  a public  servant   on  a charge of criminal misappropriation , will  depend  on whether  the acts  complained of  hinge on his duties  as a public  servant.  If they do, then sanction is  requisite.”\n<\/p>\n
The test  here formulated in  one of close  connection between  the  acts and the  duty.  In the  present  case,  the omissions  complained  of  are very closely  and  inseparably  connected with the  duties  that the petitioners  have to perform.  The   test formulated in Amrik  Singh’s case,  is therefore  satisfied  and the section  must apply.\n<\/p>\n
 (9) The learned  Advocate  tried to  distinguish  these cases  by saying that  in  all these cases their  Lordships were  concerned with positive  acts of  officers which  constituted  the  offence  while  here we are concerned with non-action which  amounts  to an  offence.   Primarily  we are  concerned with the principles of  the  decision  and  not  with the facts of any  particular case.  If we  apply the principles of these  cases  the  result must be  what  we have stated above.\n<\/p>\n
 (10)  The learned Advocate, while   arguing  that  to acts of  non-commission,  the  section cannot   apply, has  emphasized, as has   been done  by the  learned  Magistrate,  the words “while  acting or  purporting  to act. . . . .”\n<\/p>\n
appearing  in  S.  197  of the Code of Criminal  Procedure, particularly  the  word “while”. Whatever could  have been said in emphasis  on that word, it would not  seem  to be  open  now,  after  the  decision of the Privy  Council in  .  While  comparing the language  employed  in S. 270 of the  Government  of  India  Act and  S.  197  of the  Code of  Criminal Procedure,  their  Lordships   observed that
\n   “the words  in  S. 270 in respect of  any act done or  purporting  to  be done  in the execution of his  duty  as a servant  of  the Crown,  appear to them  to have  precisely  the same  connotation   as the  words  in  S. 197  sub-section   (1), ‘any offence  alleged to have been committed  by  him  while  acting  or  purpoting  to act in the  discharge of his  official  duty.’ It is idle  to speculate why a  change   of language  was made.  But,  if  a temporal  meaning  is not  given,  as in their Lordships’ view  it  clearly   should not  be  given to the  words in  S. 197 ‘while acting,  etc.’ It is  in their opinion  impossible to differentiate  between the  two sections.”\n<\/p>\n
The observations  of Mr.  Justice Bose  that
\n   “But it is not  the duty, we have to examine so much as the  act, because  an  official act can  be  performed in  the discharge  of  official duty as well as in  dereliction of it”\n<\/p>\n
in    are apposite.  This argument  must  therefore fail.\n \n\n (11) The learned  Advocate  on behalf  of the respondent   has  relied  on the decision in the  case of  Satwant  Singh v. State of  Punjab  and argued  that the  view  expressed in  Hori  Ram Singh's case    has been  modified in  this  case. In this  case  the  Court was  dealing  with  two  persons,  one of  whom  was charged   under S. 420 of the Penal  Code and another, a Government  Officer, was charged for having  abetted  the  offence  under S. 420 read with S. 109  of the Penal  Code. The  abetment   consisted  in his issuing  a false  certificate which  enabled  the  other  to draw   moneys to which he was  not entitled  to.  In  this  case Both Mr.  Justice  Imam  and  Mr. Justice  Kapur  adopted  the  test laid down in  . Applying  the test  Mr.  Justice  Imam observes:\n   \"The act  of cheating  or  abetment thereof has no  reasonable  connection  with the   discharge of   official  duty. The act must bear  such  relation to the duty that the public servant  could lay a reasonable butnot  a pretended or  fanciful claim,  that  he did it in the course of the  performance of his  duty.\" \n \n\n<\/pre>\n
An  argument  was made by the learned  Advocate   there that  the act of  Jenderson in  certifying   the appellant’s  claim  as true  by which  he  abetted the  offence  under S. 420  read wit Section 109  was an  official  act   and therefore  attracted  the  application  of  S.  197. While  answering  this  argument, Mr.  Justice Imam  observed:\n<\/p>\n
   “It is,  however, to be  remembered that  Henderson was  not  prosecuted for  any  offence concerning  his act  of  certification.  He  was  prosecuted  for abetting  the appellant to cheat.”\n<\/p>\n
They  therefore  held that  Henderson’s offence  was not one  committed  by  him  while  acting  or  purporting  to act in  the discharge of his official duty.\n<\/p>\n
 (12) It is  lastly  argued  that in any case even if  S.  197 is attached in respect of  offence under S. 166, the allegations  made in the complaint  clearly  make out  an offence under S. 145 of the Bombay  Police Act,  1951.  He contends   that this Act is a self-contained  Act  and it  must  be governed by its own  provisions,  at  least  so  far as petitioners   1, 2 and  3 are concerned. We have  carefully  considered the arguments  made and  we have no hesitation in saying that  there is no  substance  in the contention. The learned Advocate had not been able to cite  any provision contained in this Act,  by which petitioner  No. 1 or petitioner  No.  2 could be  said to be “police  officers”  and since S.  145  in   terms applies  to “police  officers”  they a re clearly not within that section. Even so to  petitioner  No.  3, it is clear that S. 197  of the Criminal Procedure Code will apply.  Section 197  applies to all  prosecutions  before a Magistrate  for any offence. “Offence”  has been defined to mean  “any act or omission made  punishable   by any law for  the time  being  in force”. If,  therefore,  under  S. 145 of the Bombay  Police  Act, the  conduct  of  petitioner  No. 3 is  punishable  then clearly  it is an  offence, and if  it  is an offence, Section 197  must apply.  It is,  however, argued that  Section 159  of the  Police Act  clearly  negatives  the application of S.197. It is  merely a protection afforded  to a police  officer or a  Revenue  Commissioner or  Magistrate  who discharges  some functions  under the Police Act, against  their being  penalised or required  to pay  damages  if  they can justify whatever  they have done  as being  done  bona  fide  and legally. This  does  not in  any manner control the  application of  S. 197 of the Code of  Criminal Procedure.  This argument  must therefore  be repelled.\n<\/p>\n
 (13) In the result, we make  the rule absolute and dismiss the  complaint  filed by the  respondent.\n<\/p>\n
(14) DF\/D.H.Z.\n<\/p>\n
(15) Petition allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shankarrao Mohite And Ors. vs Burjor D. Engineer on 21 October, 1961 Equivalent citations: AIR 1962 Bom 198, (1962) 64 BOMLR 130, ILR 1961 Bom 63 Author: Patel Bench: Patel, Chandrachud JUDGMENT Patel, J. (1) This application arises out of the unfortunate floods in the City of Poona due to the bursting […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-178032","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShankarrao Mohite And Ors. vs Burjor D. 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