This is a criminal revision petition filed against the order of discharge made by the learned District Magistrate (Judicial) of South Arcot at Cuddalore in C. C. No. 399 of 1950.

The facts are: One Sakunthala Bai travelled in a bus from Pondicherry to Cuddalore on 17-4-1950. It is stated that she was on her way to her husband's houses. The bus was stopped at Reddichavadi Customs Chouki for inspection by the customs authorities. This Sakunthala Bai states that she was examined by the woman customs guard and was sent out and that while she was about to get back into the bus she was called by the accused Venkatakrishna Reddi, the inspector of the Reddichavadi Customs Chouki and asked her to remove the gold bangles and the gold golusu worn by her and that she refused to do so. Thereupon the accused is said to have abused her and also assaulted her by giving a slap on her face and a few blows on her back with his leather belt and that he forcibly removed the gold bangles and golusu from her hands and detained her in the Chouki till 8-15 P.M untill she paid a fine of Rs. 1,000. On the foot of that she filed a complaint against the accused on 26-4-1950. This case was filed before the Stationary Sub Magistrate of Cuddalore under Ss. 355 and 342, Indian Penal Code, in C. C. No. 1414 of 1950 and the learned Sub Magistrate after examining the complainant on oath took the complaint on file under S. 355 Indian Penal Code, and issued summons to the accused.

Then on a petition (C. M. P. No. 24 of 1950) filed by the accused the case was transferred to the file of the District Magistrate and numbered as C. C. No. 399 of 1950. I may point out here that the complainant sought to corroborate her case by a medical certificate also.

The accused took a preliminary objection under s. 197, Cr. P. C., and also under s. 198, Sea Customs Act. His case was that as Inspector of Customs attached to the Central Government appointed under s. 3 of the Sea Customs and Land Customs Act, he was a public servant not removable from office even by the Local Government and that to prosecute such an officer for an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties sanction will have to be obtained from the Central Government and that under S. 197, Cr. P. C the court could not take cognizance of the offence against him except with the previous sanction of the Central Government. The contention under S. 198 of the Sea Customs Act is that “no proceeding other than a suit shall be commenced against any person for anything purporting to be done in pursuance of the said Act without giving to such person a month's previous notice in writing of the intended proceeding and of the cause thereof; or after the expiration of three months from the accrual of such cause.” There is no dispute in this case that this procedure was not followed in the sense that notice was not given though the complaint was filed within three months of the accrual of such cause. These contentions found favour with the learned District Magistrate (Judicial) of Cuddalore and the complaint was dismissed and the accused was discharged.

The two points which fall for consideration before me are whether s. 198. Sea Customs Act, and s. 197, Criminal Procedure Code, apply to this case.

Point 1: —So far as s. 198, Sea Customs Act, is concerned the learned District Magistrate was not at all justified in holding that that section applied to the facts of this case. The reasoning of the learned Judicial District Magistrate is that the accused got wild and assaulted the lady as she refused to remove the jewels from her hands and surrender them and that therefore that even if the accused had assaulted the complainant it was an act done or purporting to be done by the accused in the discharge of his official duties I am astonished that such an argument should have found countenance with a Judicial District Magistrate as nowhere does the Sea Customs Act permit the customs authorities to beat a respectable lady not only with hands but also with a belt as part of their official duty. Chapter XVII of the Sea Customs Act lays down the procedure in regard to such cases. It was open to the Inspector to arrest this lady on his suspecting that she was trying to smuggle dutiable goods and then produce her before the nearest Magistrate or Customs Collector and seize the articles liable to confiscation etc. It is no part of the duly of a customs inspector to lose his temper and do any of the acts attributed to him in the complaint and if he does so it will certainly be an act not done or purporting to be done in the discharge of his official duties. This point has been elaborately dealt with in two leading judgments of the Privy Council and the Federal Court. In Hori Ram Singh v. Emperor 1939 M.W.N 497; Cr. 69 the phrase “act done or purporting to be done in execution of the duty as servant of the Crown” was fully discussed. Their Lordships of the Federal Court laid down that “the test is not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. …The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time……Moreover, an act is not less one done or purporting to be done in execution of a duty because the officer concerned does it negligently.” This has not been the case here. If for instance the complainant woman tried to run away or resist the removal of the ornaments by the female guard, who should naturally be employed in seizing the articles, one can understand if force is used to prevent the woman running away or overcome her resistance. That application of force could be an act done or purporting to be done in execution of his duty though negligence might have been displayed and more force than was necessary was used. But when the Sea Customs Act itself prescribes the procedure to be followed in such cases this Customs Inspector could not administer summary condign punishment and assault a respectable woman with hands and belt and cause injuries to her. Therefore applying the principles laid down in this Federal Court decision this is certainly not an instance of “an act done or purporting to be done in execution of duty as a servant of the Crown”. Then turning to the decision of the Privy Council in Gill v. King Emperor 1948 M.W.N 477 their Lordships have held that “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 lie 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.” In other words, their Lordships of the Privy Council while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may by necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. Therefore, as I have stated, it is an astonishing fact that the learned judicial District Magistrate should have thought that beating a would be smuggler not for the purpose of seizure but for ventilating his outburst of temper is an act done in the course of official duty or purporting to be done in the course of official duty by a servant of the State. The less we protect such public servants the better and the more we allow citizens to ventilate their just grievances the better. On this construction there is no question of failure to follow the procedure prescribed under s. 198, Sea Customs Act.

Point 2.—Then turning to s. 197, Cr. P.C, as I have pointed out above two contentions are advanced viz., that first of all this is an offence for which sanction is required and secondly that the sanction should be given by the Central Government. In my opinion both these contentions are devoid of any substance.

In order to make out the pre-requisite of sanction it must be established that the act which was done was an act done by the official while acting or purporting to act in the discharge of his official duties. To some extent this point has been discussed while dealing with s. 198, Sea Customs Act. The test to be applied in such cases has been well laid in two decisions of this court. In Sheik Abdul Kadir Saheb v. Emperor 1916 1 M.W.N 384 Coutts Trotter, J. pointed out that s. 197, Cr. P. C. is intended to apply to those cases in which the offence is an offence which can be committed by a public servant only, that is, cases in which his being a public servant is a necessary element in the offence. Thus, where a judge commits an offence from the Bench which could be committed by anybody and which entails consequences neither in the way of penalty nor anything in the least different because a judge committed it from what it would entail if committed by anybody else, sanction is not required for his prosecution under S. 197, Cr P. C. In Rajah Rao v. Ramaswamy 1927 M.W.N 423 Jackson J. pointed out as follows:

“ Section 197. Criminal Procedure Code, presents no difficulty if the obvious intention of the legislature is borne in mind. It is no part of British policy to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction for the obvious reason that otherwise official action would be beset by private prosecution. Judges would be charged with defamation, policemen with wrongful restraint and distrainers with theft. This privilege of immunity from prosecution without sanction only extend to acts which can be shown to be in discharge of official duty, or purporting to be in such discharge.”

In other words, a prosecution for an offence arising out of the abuse of official position by an act not purporting to be official, does not require sanction under s. 197 Cr.P.C In this case two points are involved viz., first of all whether the customs Inspector did assault this Sakunthala Bai as alleged by her and which she was prepared to prove by means of medical certificate and otherwise and secondly, whether in the event of her affirmatively and satisfactorily proving that the accused did assault her then whether it was for one of the purposes which would have made out that it was a case of use of reasonable force for discharging an official duty and then the question of sanction would arise. So on the mere contention of the accused that even if he is assumed to have assaulted the complainant he would be protected under s. 197, Cr. P. C., is meaningless. It is not a pure question of law but a mixed question of fact and law and has to be decided after investigation and cannot be short-circuited by summarily throwing out the complaint.

Then in regard to this acccused being a servant of the Central Government, it is of academical importance in view of the fact that I have held that prima facie at the present stage no sanction is necessary. But assuming that such a sanction is necessary, the sanction of the Central Government is not necessary because the Customs Inspector is removable by a delegated authority. It is admitted that the Customs Inspector can be dismissed by a person other than the Central Government. There is a Bench decision of this court on this point; Pichai Pillai v. Balasundara Mudaly 1935 M.W.N 457. It was held there as follows:

“The expression ‘any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority’ in S. 197 (1), Cr.P.C will not include public servants whom some lower authority has by law or rule or order been empowered to remove. The section clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Local Government to their prosecution be necessary.”

In this decision Sheik Abdul Kadir Saheb v. Emperor and Narayana v. Emperor 1934 M.W.N 370 were dissented from. See also Afzalur Rahman v. Emperor 1943 M.W.N 315.

The order of the lower court therefore cannot be supported and the dismissal and discharge are set aside and the present learned District Magistrate is directed to take the case on file and dispose of it according to law in the light of the observations made above.

N.T.R