Patel, J.:— 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 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 the District Superintendent of Police, Poona, and the fourth is the Commissioner, Poona City Municipal Corporation. The complaint is a very long document and extends to 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 the 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 para. 16 the complainant says that

“by reason 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 endeavours to avert any accident or danger to the public, their lives and property”.

2. 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. 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.

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 proved 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 defined 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.

4. Section 197, so far as is relevant, reads

“…when any public servant A 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…”

5. 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 per formance 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 populace 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)(0) and s. 4(2), Criminal Procedure Code, make it clear that the words referring to acts done include illegal omissions. Inasmuch as the illegal omissions of the petitioners 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 been 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. The Crown . [1939] I F.C.R 159.. 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 s. 477A. A question arose as to whether he could successfully be prosecuted without sanction required by s. 270(1) of the Government of India Act. The Court there considered several authorities and formulated certain tests. While dealing with s. 477A, Mr. Justice Varadachariar observed (p. 186):

“…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.”

6. On the principle of this decision it must be held that the petitioners are protected by s. 197 of the Criminal Procedure Code.

7. It is argued by the learned counsel who appears for the respondent that Hori Ram Singh's case 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 ease. In order to prove the offences which the respondent alleged 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.

8. 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 for the 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 the argument. 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.

9. 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 . [1955] 1 S.C.R 1177, S.C 57 Bom. L.R 632., the 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 (p. 1186):

“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—

‘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…’

We have therefore first to concentrate on the word ‘offence’.”

10. He then analyses the offence in that case and observes (p. 1187):

“…Now 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.”

11. 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 omission complained of could not have been otherwise than in the discharge of their duty by the petitioners.

12. The question again arose in the case of Amrik Singh v. State Of Pepsu . [1955] 1 S.C.R 1302.. 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 (p. 1307):

“…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;…”

13. Then dealing with the argument based on Hori Ram's case and Gill v. The King . 1648 L.R 75 I.A 41, S.C 50 Bom. L.R 487. he says (pp. 1307 1310):

“…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 section 197(1) is necessary;…

…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.”

14. The test here formulated is 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.

15. 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. We are concerned with the principle of the decision and if we apply the principles of these eases the result must be what we have stated above.

16. 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…” 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 Gill v. The King. 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 (p. 59):

“…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-s. 1, ‘any offence alleged to have been committed by him while acting or purporting 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.”

17. The observations of Mr. Justice Bose that

“…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.”

18. in Shreekantiah Ramayya are apposite. This argument must, therefore, fail.

19. The learned advocate on behalf of the respondent has relied on the decision in the case of Salwant Singh v. The State of Punjab . [1960] 2 S.C.R 89., 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 Kapur adopted the test laid down in Amrit Singh v. The State of Pepsu. Applying the test Mr. Justice Imam observes (p. 101):

“…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 but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”

20. An argument was made by the learned advocate there that the act of Henderson in certifying the appellant's claims as true by which he abetted the offence under s. 420 read with s. 109 was an official act and, therefore, attracted the application of s. 197. While answering this argument, Mr. Justice Imam observed (p. 101):

“…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.”

21. 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.

22. It is lastly argued that in any case even if s. 197 is attracted 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 Nos. 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 has not been able to cite any provision contained in this Act by which petitioner No. 1 or petitioner No. 2 could be said to he “police officers” and since s. 145 in terms applies to “police officers” they are clearly not within that section. Even as 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 s. 197 must apply. It is, however, argued that s. 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. In the result, we make the rule absolute and dismiss the complaint filed by the respondent.

23. Rule made absolute.