Ganga Prasad Sinha Accused v. Brindaban Chandra Das Complainant Opposite Party.

S.K Ghose, J.:— The petitioner in this Rule is a Sub-divisional Officer of the Public Works Department and he is accused in a complaint filed by a P.W.D road mohurir. The complaint is to the effect that the accused went to supervise the work which was done by the complainant on a road. On seeing the accused the complainant was proceeding from one bank to the other by boat. When the boat reached the bank the accused got into the boat and finding that the western bank had collapsed in spite of its having been repaired he became enraged and without seeking any explanation he remarked “Can” you maintain the dhip of the wester bank” and then he gave to the complainant two blows on the left knew causing injury to the knee. The Magistrate held that the accused was not covered by the provisions of Section 197 of the Cr PC, and directed summons to issue under S. 323, I.P.C Against that order the present Rule was obtained. It is contended that the petitioner being a public servant is covered be Section 197 of the Cr PC. Mr. Basu on be half of the petitioner has pointed out that S. 197 of the present Code is wide in its terms than the corresponding section of the old Code and it is contender that, whatever be the offence committed by a public servant, so long as he is acting in official capacity he is entitled to be protected by this section. It his petition of complaint the petitioner has given his own version of the occurrence. But the question must be determined with reference to the allegations in the complaint and the further question is whether at the time of the committing of the offence alleger against him the petitioner was acting purporting to act in the discharge of his official duty.

2. It is strongly contended that all the time the petitioner was a Sub-divisional Officer of the Public Works Department But we think it is going too far to say that, although the petitioner had gone to discharge some official duty in connexion with earth works, he was still purporting to act in the discharge that duty when he got on the boat lost his temper and assaulted the complainant.

3. In the cases upon which Mr. Basu has relied, for instance in 192 Mad. 6591 and 1931 Cal 6462 the accused were no doubt purporting to act in the discharge of their official duty and the act complained of might be said to have been committee in excess of their duty. But in the present case it was no part of the official duty of the petitioner to beat the (Complainant. It was not merely an abuse of an official act, it was a differact altogether, and I am in agreement with the view taken in 1929 Cal 7243, that the act itself must be done in pursuance of the public office. The result is that the Rule must be discharged.

Henderson, J.:— I agree.

K.S

4. Rule discharged.