1. This application in revision, is directed against an order of the learned Deputy Commissioner of Manbhum, dated the 20th of February 1951, by which order the learned Deputy Commissioner dismissed a petition of complaint, which had been filed by the present petitioner against the Sub-divisional Magistrate of Purulia, on the ground that no cognizance could be taken of the offence except with the previous sanction of the State Government. The principal question for consideration and decision on the present petition for whether the courts below were right in holding that the previous sanction of the State Government was necessary under the provisions of Section 197 of the Cr PC, before cognizance could be taken on the petition of complaint filed by the petitioner. The short facts out of which the present petition arises are these. On the 31st October, 1950 one Satya Kinker Banerji, a Mukhtear, filed a petition in the court of the Sub-divisional Magistrate of Purulia in which he alleged that an order had been passed by the Magistrate on a previous application of his for the irrigation of his paddy lands from certain private tanks in village Nadiha, police station Para. Satya Kinker Banerji said in his application that he was in great difficulties and the paddy crops would be destroyed if he were not allowed to take water from certain tanks in the village. One of the tanks in question was called Bhubirsair. The petitioner before me is another mukhtear practising in the courts at Purulia. It appears that at the time when the aforesaid application of Satya Kinker Banerji was moved, the present petitioner was present in court. He was a co-sharer owner of the said tank.

2. The learned Sub-divisional Magistrate asked the petitioner to allow Satya Kinker Banerji to irrigate his paddy crop from the said tank. There was some discussion or conversation between the present petitioner and the Sub-divisional Magistrate about the matter. Apparently, there is a divergence of opinion as to what transpired at the discussion or conversation. As the courts below did not consider the petition of complaint on merits and gave no finding as to what transpired at the discussion or conversation, I am not in a position to express any opinion on that matter. The petition of complaint was dismissed on a legal ground only, and I shall confine myself to that legal ground. The allegation of the petitioner was that the Sub-divisional Magistrate asked the petitioner to give his permission in writing so that Satya Kinker Banerji might irrigate his paddy crop from the tank in question. The petitioner said that he could not do so without consulting his co-sharers.

3. On this, it is said, the learned Sub-divisional Magistrate became furious, and in the presence of several persons threatened the petitioner in the following words:

“I shall give orders for shooting if you do not allow water. You are taking a dog-in-the-manger policy. I shall not give you a single grain at the time of Government help, and I know that you will be in need of food-grains surely. I shall send armed force; I shall ruin your family, though I know my order is legal.”

4. The contention of the petitioner is that the words were defamatory and amounted to criminal intimidation. It appears that the petitioner first moved the Bar Associations of Purulia and then made an application to the Chief Secretary to the Government of Bihar for sanction to prosecute the Sub-divisional Magistrate. The petitioner did not however, get a satisfactory reply from the Chief Secretary, and on the 13th of February 1951, the petitioner filed a written complaint to the Deputy Commissioner of Manbhum.

5. In this complaint, the petitioner stated that the words used by the Sub-divisional Magistrate against him amounted to offences under Sections 506, 504, and 500. Indian Penal Code, and that he was advised that no sanction under Section 197 of the Cr PC was necessary. The learned Deputy Commissioner did not examine the petitioner on oath, as he wished to examine the question whether the previous sanction of the State Government under the provisions of Section 197 of the Cr PC, was necessary or not. The learned Deputy Commissioner heard the petitioner's advocate and the Assistant Public Prosecutor on the 14th of February 1951, and on the 20th February, 1951, he dismissed the petition of complaint under Section 203 of the Cr PC, on the ground that the previous sanction of the State Government was necessary. The petitioner then moved the learned Sessions Judge of Purulia, who also held that the previous sanction of the State Government was necessary under the provisions of Section 197 of the Cr PC. The petitioner has now moved this Court for setting aside the orders of the courts below.

6. Mr. Basanta Chandra Ghose, appearing for the petitioner, has contended that the courts below were wrong in holding that the, previous sanction of the State Government was necessary before cognizance could be taken of the offences alleged by the petitioner against the Sub-divisional Magistrate of Purulia. Mr. K.P Verma, appearing for the State of Bihar, has contended that the Courts below were right in their view of the provisions of Section 197 of the Cr PC. Section 197 of the Cr PC, so far as it is relevant for our purpose, is in these terms:

“197. (1)—When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, 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 with the previous sanction—

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government.”

7. The Courts below principally relied on a decision of the Allahabad High Court in ‘Sukhdeo v. Rai Kishanji*’, A.I.R 1934 All. 978, where the test laid down was whether the officer at that particular moment was actually engaged in or purported to be engaged in the discharge of his official duty. In my opinion, the test laid down in the aforesaid decision has not been accepted as correct by the Privy Council, the Federal Court of India and our Supreme Court. The provisions of Section 197 of the Cr PC with particular reference to the expression occurring therein. “While acting or purporting to act in the discharge of his official duty”, have been the subject-matter of examination in several decisions of the Privy Council, the Federal Court of India and the Supreme Court of India. In view of these decisions, it is unnecessary to examine the decisions of the various High Courts in India.

8. The test that has been laid down by the Privy Council and accepted as correct by the Federal court of India and the Supreme Court of India, can best be expressed in the words of their Lordships of the Privy Council in ‘Gill v. King’, 75 Ind App 41 (PC). Their Lordships said:

“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. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”

9. In the case of ‘Chun Chun Pathak v. State of Bihar’, decided on the 4th October, 1951 (SC), his Lordship Mahajan J. of the Supreme Court of India quoted with approval the observations made above, and said:

“Unless there is something in the nature of the act complained of that attaches to it the official character of the person doing it, the case would not fall within the ambit of the provisions of Section 197 of the Cr PC”.

10. Therefore, the test is not merely the official character of the person doing the act, but the test is whether the nature of the act is such as to lie within the scope of the doer's official duty. There is a long line of decisions now affirming the above principle. I shall merely refer to those decisions, as I do not think it is necessary to examine each one of them separately.

11. The first in point of time is the classic case of ‘Hori Ram Singh v. The Crown’, 1939 F.C.R 159. That was a case which involved the interpretation of Section 270(1) of the Government of India Act, 1935, which was in terms somewhat similar to the terms of Section 197 of the Cr PC. Their Lordships noticed the decisions of the various High Courts given under Section 197 of the Cr PC, and his Lordship Varadachariar, J. said that those decisions might be roughly classified as falling into three groups: in one group of cases, it was insisted that there must be something in the nature of the act complained of that attached it to the official character of the person doing it. In another group, more stress was laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. In the third group of cases, stress was laid almost) exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed.

12. His Lordship accepted the test in the first group of cases as the correct view of the provisions of Section 197 of the Cr PC. His Lordship said:

“While I do not wish to ignore the significance of the time factor, it does not seem to me right to make it the test.”

13. The same view was again affirmed in ‘H.T Huntley v. Emperor’, 1944 F.C.R 262 (FC), and ‘Sarjoo Prasad v. Emperor’, 1945 F.C.R 227 (FC). The case of ‘Sarjoo Prasad’, 1945 F.C.R 227 (FC) is important in the sense that there a Station master resisted and abused the complainant. Then come the decisions in ‘Gill v. Emperor’, 1946 F.C.R 123 (FC) which went up to the Privy Council in ‘Gill v. The King’, 1948 F.C.R 19 (PC). I have already quoted an extract from the observations of their Lordships in that decision. There is another decision of the Privy Council in ‘Phanindra Chandra v. King’, A.I.R 1949 P.C 117, where their Lordships again affirmed the principle that the test is if the act is such as to the within the scope of the official duty of the person doing it. I have summarised above the recent decisions of the Privy Council, the Federal Court and the Supreme Court of India, and it seems clear to me that the act of the Sub-divisional Magistrate of Purulia as alleged by the petitioner does not fulfil the test laid down by their Lordships of the Privy Council & affirmed by their Lordships of the Federal Court and the Supreme Court of India. Firstly, I find it difficult to understand how it was part

“of the official duty of the Sub-divisional Magistrate of Purulia to pass any order for the irrigation of the paddy crop of a private person from a tank which belonged to a private person. Secondly, even if the learned Sub-divisional Magistrate had authority to pass an order for irrigation of the paddy crop of Satya Kinker Banerji from the tank of the petitioner, it was no part of the official duty of the learned Sub-divisional Magistrate to use the words which, it is alleged, he used against the petitioner. In my opinion, the Courts below were wrong in holding that Section 197 of the Cr PC, stood in the way of taking cognizance of the offences alleged by the petitioner.

14. For the reasons given above, I must allow the application & set aside the order of the learned Deputy Commissioner, dated the 20th February, 1951. The learned Deputy Commissioner must now examine the petitioner on oath, and then proceed to deal with the petition of complaint in accordance with law. I have already stated that the learned Deouty Commissioner did not deal with the petition of complaint on merits. He threw it out on the legal ground that Section 197 of the Cr PC, applied. It will be open now to the learned Deputy Commissioner to consider the petition of complaint on merits, and to find out whether there is any prima facie evidence in support of the allegations made by the petitioner. It must be clearly understood that I have advisedly refrained from making any observations on the merits of the petition of complaint. The Rule is accordingly made absolute.

C/D.H

15. Application allowed.