Khaja Muhamad Noor, J.:— This is a reference by the Sessions Judge of Monghyr. He has recommended that an order of the Sub-divisional Officer of that place quashing the proceedings of a criminal case, against Mr. Rizwi, a Deputy Magistrate at Monghyr, be set aside. The facts are these:

Taxes were imposed upon the inhabitants of Barbiya village in the district of Monghyr for maintaining an additional police force there. One Dhanukhdhari Singh had defaulted in the payment of that tax, and on the 15th of December, 1933, the Deputy Magistrate, Mr. Rizwi, went to that village to execute the distress warrant issued against him. He was accompanied by clerks, constables, peons, dafadars and chaukidars. It is alleged that one Ram Singh, an inhabitant of the village and Head Clerk in the office of the Deputy Inspector of Schools in Kishanganj, who was then on leave, was standing amongst the spectators behind the Deputy Magistrate when the latter was engaged with the defaulters, pressing them for payment of the taxes. Ram Singh's case is that he was standing with his hands crossed on his chest. The Deputy Magistrate, after he had finished with the defaulters Kare Lal Singh, son of Dhanukhdhari Singh, and Tooka Singh from whom the tax had to be realised, turned round and asked him (Ram Singh) angrily what the matter was. Ram Singh replied “nothing”. On this the Deputy Magistrate asked him to lower down his hands and himself pulled them down. On this Ram Singh asked the Deputy Magistrate what the harm was in standing in the manner in which he was standing. This irritated the Deputy Magistrate, who used abusive language towards him and gave a hard blow on his cheek and under his orders constables charged him with lathis and one of them hit him on his right elbow. On the next day (16th December, 1933) Ram Singh filed a complaint before the Sub-divisional Officer of Monghyr, accusing the Deputy Magistrate and the constable of offences under sections 323, 352 and 504 of the Indian Penal Code. As it transpired that Ram Singh had also sent a telegram of the incident to the District Magistrate, the passing of order was postponed and the telegram was sent for. Nothing seems to have been done till the 4th of January when the Sub-divisional Magistrate having been apprised that a counter case was started against Ram Singh by the police ordered the complaint case of Ram Singh to wait till the counter case was disposed of. In the counter case Ram Singh was sent up for trial. He then moved this Court for the transfer of the two cases to another district on the ground that they could not be fairly tried at Monghyr, inasmuch as a Deputy Magistrate of that place was a party to both of them. His Lordship the Chief Justice rejected it, but referring to the order of the 4th of January in Ram Singh's complaint case, which I have referred to above, said:—

“There is no need for the complete disposal by judgment of the counter case before the petitioner's (Ram Singh's) complaint is tried. The orders in both cases should be postponed until both cases have been heard and this will enable both sides to put their versions of the incident before the Court and to give evidence.”

Further on his Lordship said:

“Both sides in this case should be heard on their respective complaints and a single judgment should be delivered disposing of the entire matter.”

The Sub-divisional Magistrate proceeded with the counter case and having finished it directed on 13th June, 1934, in compliance with the order of this Court, issue of summons against Mr. Rizwi so that he might complete the hearing of Ram Singh's complaint case also. Mr. Rizwi appeared on 21st June, 1934, through the Court Inspector who took a preliminary objection that Mr. Rizwi could not be prosecuted without the sanction of the local Government under section 197 of the Code of Criminal Procedure. On 28th June, 1934, the Sub-divisional Officer upheld the objection and quashed the proceedings against Mr. Rizwi and afterwards pronounced judgment in the police case against Ram Singh and convicted him. Ram Singh has preferred an appeal which is pending before the Sessions Judge of Monghyr. He also moved the learned Sessions Judge against the order of the Sub-divisional Officer upholding the contention of the Court Inspector that sanction of the local Government was necessary for the prosecution of Mr. Rizwi. The learned Sessions Judge has referred it to this Court, recommending that the order quashing the proceedings against Mr. Rizwi be set aside. He is of opinion that the offence, if any, as disclosed by the complainant could be tried without the sanction of the local Government.

I have to point out at the outset that it was not necessary for the learned Sessions Judge to refer the case to this Court. He himself was competent to deal with it. The order of the learned Sub-divisional Officer, dated the 28th June, 1934, quashing the proceedings against Mr. Rizwi after he had been summoned amounted to an order of discharge, and it was open to the learned Sessions Judge, if he was of that opinion, to order further inquiry into that complaint. However, as the matter has been referred to us and the question is of some public importance we proceed to give our decision on the points raised.

The only question is whether or not in the present case the prosecution can proceed without the sanction of the local Government. Before I come to the facts disclosed by the complainant, it is necessary to examine the provisions of section 197 of the Code of Criminal Procedure as it stood before its amendment in 1923 and the effect of the amendment made in that year. The section as it stood before the amendment ran thus:

“When any judge or any public servant not removable from his office without the sanction of the Government of India or the local Government is accused as such judge or public servant of any offence, no Court shall take cognizance, etc., etc.”

The words “as such judge or public servant” were the subject-matter of judicial interpretation in more cases than one. It is unnecessary for me to refer to them in detail. It, was held by the Calcutta High Court in Baisnab Charan Taran v. Sukhomoy Chowdhury that a Magistrate or a judicial officer who was holding a trial could not be said to be acting in a judicial capacity if he abuses or defames a witness or a legal practitioner appearing before him. A different view was taken by the Madras High Court in the case of Gulam Muhammad Sharif-ud-daulah. The trend of the decisions, however, was that the offence for the trial of which sanction was necessary should be one which can be committed by a judge or a public servant in his capacity as such judge or public servant. In the section as it now stands the words

“is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty”

replaced the words

“is accused as such judge or public servant of any offence.”

The obvious effect of this amendment, in my opinion, is that the scope of the protection has been widened, and some of the earlier decisions are no longer good law. Sir John Woodroffe in his edition of the Code of Criminal Procedure remarks as follows and I endorse it:—

“The amended section, however, substitutes for the words ‘as such judge or public servant of any offence’ the following: ‘of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.’ Thus defamatory language used by a judge to a person out of Court when not sitting as a judge would not be within the section; but the case would be different if the same words were used by the judge in the trial of a suit as he would then be acting in the discharge of his official duties.”

The nice question whether the judge or public servant was accused as such will no longer arise. The only question will be—was he accused of committing an offence while acting or purporting to act in the discharge of his official duty. The learned Sessions Judge has referred to several decisions, but in my opinion none of them is of any assistance to us in the disposal of this case. I propose to examine them in detail.

The first is Amanat Ali v. Emperor. There a Sub-Deputy Collector had misappropriated a sum of money paid to him as salami for settling certain khas mahal lands. The learned Judges while construing the section as it stands now observed as follows:—

“The question is whether in the present case the offence is alleged to have been committed by the public servant, namely, the Sub-Deputy Collector, while acting or purporting to act in the discharge of his official duty. That would seem to imply that something in the nature of an official character attached to the act itself, that act either being in fact done or purporting to be done as an official act in pursuance of the public office held by the public servant.”

It may on the one hand be said that when the Sub-Deputy Collector received the money he was not acting or purporting to act in the discharge of his public duty; but, on the other hand, it is clear that the money was entrusted to him as Sub-Deputy Collector and he received it as such. The misappropriation was no doubt committed by him in his private capacity, but that may be said of every criminal act done by a public servant in the course of discharging public duty. At the time of committing the offence the public servant cannot be said to be discharging a public duty. With all respect to the learned Judges I am unable to agree with the construction which they put upon the plain meaning of the section. As was pointed out by Waller, J. in the case of Jujjavarapu Gangaraju v. Kandiboyini Venki the policy of the Legislature to afford a reasonable protection to public servants against vexatious charges arising out of the performance by them of their official functions, will become conspicuously unsuccessful. His Lordship said that “By a series of judicial decisions that protection has been refined down to the vanishing point,” and referred to an observation of Seshagiri Ayyar, J. in Sankaralinga Tevan v. Avudai Ammal which ran thus—

“If this argument is pushed to its logical conclusion, no public servant or Judge can have the safeguard of a sanction, as it is not within the powers of such an officer to commit an offence. Any offence committed by such a person must prima facie be beyond his official rights and duties.”

However, so far as the case of Amanat Ali v. Emperor is concerned, it may be said in support of the decision that when the Sub-Deputy Collector; received the money he was not acting as a public servant.

The next case referred to by the learned Sessions Judge is In re Narayan Janu Mahajan. There intimidation and force was caused by officers of a village for the purpose of collecting subscription for an association which was encouraged by Government. It was held that it could not be said to be an act purporting to be or falling in the discharge of their official duties. The learned Sessions Judge thinks the case to be on all fours with the present one. I am not of that opinion. In the Bombay case the officers were engaged in collecting subscriptions which was encouraged by Government. It is no part of the official duty of a public servant to collect voluntary subscriptions. In the present case Mr. Kizwi was engaged, at any rate a few seconds before the incident, in realising taxes. This was certainly a part of his public duty.

Two more cases have been referred to by the learned Sessions Judge: Gulabmiya Dagumiya v. Emperor and Kamisetty Raja Rao v. T. Ramaswamy. In the former an organizer of Co-operative Credit Societies was appointed liquidator of a Society. He misappropriated certain sums of money. It was held that the money having come to his custody as liquidator, no sanction under section 197 of the Code of Criminal Procedure was necessary. The decision rested upon the question whether the liquidator was a judge. It was held that he was not. It was further contended that as an organizer he was not removable except by orders of the local Government. It was held that the two offices were distinct, and the misappropriation committed as liquidator did not require sanction for prosecution in spite of the fact that the incumbent was also an organizer of Co-operative Credit Societies. In the second case the fact was that a President of the Municipal Council was charged of threatening a voter with injury to his property with intent to induce him to vote for a candidate or to abstain from voting. It was held that the offence did not require sanction of the local Government. It is clear that in this case the offender while threatening the voter was in no way engaged in the performance of any public duty, nor was the canvassing for a vote in any way connected with the performance of public duty.

The learned Sessions Judge has also referred to B.B Mitra's commentary on the Code of Criminal Procedure, 8th edition, pages 539 and 540. I have not been able to find anything there, which supports the view taken by the learned Sessions Judge. On the other hand, there is a passage which has been endorsed by Waller, J. in the case of Jujjavarapu Gangaraju v. Kandiboyini Venki which I have referred to above. Referring to the cases decided under the old section, the learned commentator says:—

“These cases, though correctly decided under the old Codes, would be of no authority now, as the language of the present section materially differs from the language of the old law. Under the present section it will not be necessary to decide whether the fact of the accused being a Judge or public servant was a necessary element in the offence or whether the offence was one which could not have been equally committed by a private person. These nice questions would not arise; if it is found that the Judge, Magistrate or public servant has committed an act at a time when he was doing (or purporting to do) an official duty, this will be sufficient to attract the provisions of this section. In other words, the Legislature has now given a greater protection to the officers concerned than it did under the old section.”

The decided cases not being quite in point, we have to fall back upon the wording of the section itself and apply them to the facts of the present case.

Ram Singh's petition of complaint places the assault and insult immediately after the Deputy Magistrate had threatened the defaulters. In his petition of complaint he says:

“They (meaning thereby the clerks, constables, etc.) were making demands from Karelal Singh and Tooka Singh of Tarafshrikant and on their promising to pay in course of January and February and on their expressing inability to pay then and there the two persons were subjected to harsh treatment. A number of spectators were there. Out of curiosity I also stopped there and took my stand three or four cubits behind Mr. Rizwi. Having finished with them, Mr. Rizwi turned back. Finding me standing there with my hands crossing each other on my chest he asked me what was the matter—‘keya hai’.”

In his statement on oath he says:—

“The Deputy Magistrate after holding out threats to them (meaning the defaulters) looked back and enquired of me if I wanted anything.”

The question is, when the Deputy Magistrate engaged himself with the complainant was he acting, or purporting to act, in the discharge of his official duty? Mr. Baldeo Sahai, who appears on behalf of Ram Singh, contends that the performance of the official duty was finished as soon as the Deputy Magistrate turned round towards the complainant and engaged himself with him. I am, however, unable to accept this contention, because as I have said and as was pointed out in the Madras case just referred to, as soon as a public servant engages himself in the commission of an offence he momentarily withdraws himself from the public function. I cannot conceive of any case in which a judge or public servant can be said to be committing an offence and at the same time acting or purporting to act as judge or public servant, because when he engages himself in the commission of an offence he is not acting, or purporting to act, as a public servant. If we accept this contention we will have to confine the sanction to cases in which the judge or public servant commits the offence as such, that is, offences peculiar to his office and that will nullify the effect of the amendment deliberately made by the legislature.

In the case of M.L Sivaramakrishna Ayyar v. Seshappa Naidu Curgenven, J. said that the offence contemplated must contain an element necessarily dependent upon the offender being a public servant. Waller, J. said, commenting upon this observation in the case of Jujjavarapu Gangaraju:—

“We are of opinion that is too limited a construction of the section. The question is not as to the nature of the offence, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official duty. We hold that, if the offence alleged was committed by the public servant, while he was actually engaged in or purported to be engaged in the discharge of his official duty, sanction is required. Assuming that In re Gulam Muhammad Sharif-ud-danlah was wrongly decided, as the law then stood—the decision would certainly be correct—in our judgment—as the law now sands.”

In my opinion, each case must be decided on its own facts. The offence in order to attract section 197 of the Code of Criminal Procedure must be so connected with the official act as to form part of the same transaction. It will be perhaps quite a different thing if for the time being the public officer stops the official work, engages himself in private work and in that connection commits an offence. But in the case before us it is not so. The Deputy Magistrate was engaged in realising the taxes. According to the complainant he had threatened the defaulters and at the next moment he turned round and engaged himself with the complainant and took him to task for being near him in a particular manner. The alleged offence was so connected with the performance of his official duty that it is impossible to say that it was an independent act in no way connected with the realisation of taxes. The learned Sessions Judge has stated that the Deputy Magistrate had absolutely no jurisdiction over the complainant. This is true. But it may be that a judge or public servant may commit an offence as against a stranger while acting or purporting to act in the discharge of his official duty. For instance, if a Magistrate is holding a Court in the open where there are number of sight-seers and bystanders he thinks, though wrongly that a certain bystander is hindering or obstructing his work. He deals with that stranger roughly. I am clearly of opinion that the act will come within the words “while acting or purporting to act in the discharge of his official duty.” Sir Sultan Ahmed argued that even an offence committed purely on private account unconcerned with the official act would come under, section 197 of the Code of Criminal Procedure if, when the offence was committed, the Judge or public servant was engaged in the performance of official duty. I am, however, as at present advised not prepared to accept this contention. I think, as I have said, the act in order to bring it within section 197 of the Code of Criminal Procedure must be so connected with the official duty as to become inseparable from it. In my opinion, therefore, this is a case in which sanction of the local Government is necessary.

I cannot close this judgment without referring to a certain passage in the letter of reference of the learned Sessions Judge. In connection with the appeal pending before him he has referred to the order of this Court passed by his Lordship the Chief Justice and says as follows:—

“The instructions given in the aforesaid order have not been followed by the lower Court on account of which the order of conviction of the petitioner appealed against cannot stand, if sanction in the petitioner's case is not necessary. For this reason I propose to keep the appeal pending till the disposal of this reference.”

Here the learned Sessions Judge is obviously in error. I am perfectly certain that the learned Chief Justice did not mean and could not have meant that both the cases must be carried to all the stages even if both or either of them collapsed on account of some legal or other defect. What his Lordship meant was this, that the decision of both the cases on merits should be pronounced at one and the same time, so that no question of pre-judging the one or the other may arise. If, however, the learned Sub-divisional Magistrate thought that the case brought by Ram Singh could not proceed, he was perfectly justified in dropping it; and then he had no option left but to pronounce judgment in the other case. Even if the view taken by the learned Sub-divisional Magistrate had been wrong and we would have come to a different conclusion, our decision would have had no effect whatsoever upon the decision in the counter case. The learned Sessions Judge should now dispose of the appeal on its own merits irrespective of what has happened in the complaint of Ram Singh.

With these remarks I would discharge the, reference.

Luby, J.:— I agree

Reference discharged.