Summary
In pursuance of a search - warrant issued under s. 6 of the Taxation on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case. On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours. Two separate complaints-one by the darwan and the other by the proprietor-under ss. 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates. The common question for determination in both the complaints was whether under the circumstances sanction was necessary under s. 197 of the Code of Criminal Procedure.
Held that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of s. 197 of the Code of Criminal Procedure.Art. 14 does not render s. 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against another is based on a rational classification.A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official.In the matter of grant of sanction under s. 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty. In other words 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 926accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of this performance of his duty.The need for sanction under s. 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish ,the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command.Gill and another v. The King, (1948) L.R. 76 I.A. 41, Hori Ram Singh v. The Crown, (1939) F.C.R. 159, 178, Albert West Meads v. The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley v. The King-Emperor, (1944) F.C.R.262, Shreekontiah Bamayya Munipalli v. The State of Bombay, (1955) 1 S.C.R. 1177, Amrik Singh v. The State of PEPSU, (1955) 1 S.C.R. 1302, Sarjoo Prasad v. The King Emperor, (1945) F.C.R. 227, Jones v. Owen, (1823) L.J. Reports (K.B.) 139 and Hatton v. Treeby, (1897) L.R. 2 Q.B.D. 452, referred to.See the full content of this document
Extract
Matajog Dobey VS. H. C. Bhari(With Connected Appeal)
PETITIONER: MATAJOG DOBEY Vs.RESPONDENT: H. C. BHARI(WITH CONNECTED APPEAL)DATE OF JUDGMENT: 31/10/1955BENCH: AIYAR, N. CHANDRASEKHARABENCH: AIYAR, N. CHANDRASEKHARADAS, SUDHI RANJANBOSE, VIVIANJAGANNADHADAS, B.IMAM, SYED JAFFERCITATION: 1956 AIR 44 1955 SCR (2) 925ACT: Constitution of India, Art. 14-Criminal Procedure Code (ActV of 1898), s. 197-Whether ultra vires the Constitution- Sanction under s. 197-Reasonable connection between the act and discharge of Official duty-Need for sanction-When to be considered-Power conferred or duty imposed-Implies power of employing all means for execution thereof.JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of the Calcutta High Court in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of the Court of Presidency Magistrate at Calcutta in Case No.C/2867 of 1950.S. C. Isaacs (C. P. Lal with him) for the appellant in both appeals.C. K. Daphtary, Solicitor-General of India (Porus A. Mehta and P. G. Gokhale with him) for the respondents in both appeals.927 1955. October 31. The Judgment of the Court was delivered byCHANDRASEKHARA AIYAR J.-...
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