The petitioner has applied to this Court under section 439, Cr. P. C. for setting aside the orders dated 3rd, 5th and 7th October 1968, of the learned Additional District Magistrate, Karachi.
In brief the facts are that the petitioner was taken from his house by respondents 1 and 2 on 11th July 1968 at 10 a. m. to the Customs House, Karachi, in connection with the case registered on the same day under section 167 (81) of the Sea Customs Act. Soon after he was brought to the Customs House, his house was searched. His younger brother was also arrested and two cars, one belonging to his younger brother and the other to his wife, were also seized. On 12th July 1968, the petitioner was produced before the A. D. M. who remanded him to custody till 25th July 1968. What happened on the nights intervening between 11 th and 12 and 12th and 13 of July is disclosed in paras. 8, 9 and 10 of the complaint:-- "8. That after securing a remand uptil 25-7-1968, the accused thought that they have free hands, therefore, on 12-7-1968 all the accused in this case assaulted this complainant with threats, kicks, cane and with butt of gun with the intention of extorting confession or any information which might lead to the detection of the offence of smuggling and the accused wanted that the complainant should involve certain personal of Thai Embassy.
9. That the above said act was also repeated by the accused persons on 13-7-1963 throughout the night in presence of the witnesses.
10.That on 13-7-1968 the accused in this case did not allow the complainant's brother's friend Muhammad Hussain Khan to deliver breakfast and the lunch. It was at the lunch hour, when Muhammad Hussain came to the Customs Office to hand over the lunch to the complainant when at that time, the accused in this case got the complainant hung and kept him under the sun for extorting confession and that scene was seen by a number of persons."
On the morning of 13th July 1968, an application for bail of the petitioner and his brother was filed in the Court of A. D. M. which was fixed for hearing on 17th July 1968. The petitioner and his brother were also ordered to be produced on that day. Pursuant to this order the petitioner and his brother were brought before the Court and the petitioner complained of the maltreatment at the hands of the respondents. He was referred to the Civil Surgeon for examination and report but the Civil Surgeon expressed his inability to examine him before 18th July 1968, whereupon on a subsequent application, he was referred to the Police Surgeon who examined the petitioner and found 10 injuries, of the nature of bruises and contusions, on the person of the petitioner. However, upon the application of respondent No, 6, the Court again referred the petitioner for examination to a Medical Board as this respondent doubted the veracity of the examination by the Police Surgeon.
The petitioner was referred for examination on 23rd July 1968 and according to the opinion of the Board, there were still 7 injuries which had become faint and were about 15 days old. The complaint against respondents 1 to 8 was filed after the petitioner was enlarged on bail in the Court of the A.
D. M. on 2nd October 1968, in respect of the allegations set out in paras. 8 to 10 of the complaint constituting offences under sections 220 and 330 read with section 120-B, P. P. C. The learned A. D.
M. on 3rd October 1968, passed the following order :- "Notice to Customs for order on 5th October 1968."
3. Again on 4th October 1968, the counsel for the petitioner filed an application, in which it was requested that the earlier order be rescinded and cognizance of the offences be taken under section 190 (1) (a), Cr. P. C. This application was disposed of in the following terms:-- "These provisions 220 read with 330 are not relevant to the application dated nil as the persons against whom allegations are made are Government servants and are protected under section 197, Cr. P. C. Further section 120-B would be irrelevant. Put up with other papers on Saturday."
On 7th October 1968, a letter was sent to the Collector of Customs requesting him to accord sanction for the trial of respondents 1 to 7.
It reads:- " A complaint under sections 220, 330 read with section 120-B, P. P. C. has been submitted in my Court by one Muhammad Umar Khan against Messrs Nazir Azhar, Assistant Collector of Customs (Investigation), Yousuf Arab, Senior Preventive Officer, Himayat Siddiqi, Customs Officer, Rahim Bux Baloch, Custom Officer, Khurshid Ali Khan, Preventive Officer, Islam Ahmed Khan, Custom Officer and A. G. Pathan, Customs Officer, Customs House, Karachi.
Since recording the statement of the complainant would amount to leading of evidence and that the persons complained against are Government servants, it is requested that sanction from the appointing authority may be accorded and, if possible, report in this matter may also be submitted."
The petitioner has assailed the orders dated 3rd and 5th October 1968 and legality of the action in asking for sanction in the letter dated 7-10-68.
4. On behalf of the petitioners it is urged that no sanction is necessary under section 197, Cr. P. C. for the prosecution of respondents 1 to 7 as the offences were not committed in the course of the discharge of their duties. The allegations in the complaint relate to the commission of offences, viz., sections 220 and 330 read with section 120-B, P. P. C. The petitioner has alleged his arrest and confinement out of motive other than a bona fide one and it is in this strain that the commission of an offence under section 220, P. P. C. is alleged. However, at the hearing of the petition it came to light that a case was registered against the petitioner on 11th July 1968, under section 167 (81) of the Sea Customs Act, hereinafter referred to as the Act, and it is in that connection that he was arrested. The learned counsel for the petitioner did not dispute the power of the respondents to arrest the petitioner or search his house under sections 172-A and 173 of the Act. It is also not disputed that there is power to interrogate the suspected person under arrest by the virtue of section 173(5) of the Act read with section 161, Cr. P. C. Section 161, Cr. P. C. compels the person to answer all questions relating to the case put to him other than questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
Tentatively I may say so that in view of the report having been lodged it cannot be said that the arrest and confinement of the petitioner, upon the accusation against him in the report, was not lawful and under the circumstances respondents 1 to 7 could reasonably claim protection so far as the commission of the offence under section 220, P. P. C. is concerned, under section 197, Cr. P. C. but this will again be a matter for consideration by the A. D. M. However, the accusation of hurt with a view to extort information or confession would not be immune from this protection unless it is covered by the following test laid down by Cornelius, J., as he then was, in the case of Syed Ahrnad v. The State of the report:-- "Since it is clear that the commission of offences can never be part of the duties of any official, the scope of such duties must be interpreted, for the purposes of the protection afforded by section 197, Criminal P. C. in a sense wider than that covered by the precise acts which the official is authorised by the law or other instrument governing the matter, to perform. The act must, therefore, be one connected with the performance of those duties, and in order that the question should at all arise whether this act should be allowed to be made the subject of a criminal charge, it must be in excess of the exact duties in question. Yet, it must be also an act reasonably connected with those duties in the sense that when the official is discharging or professing to discharge those duties, a reasonable person might assume that he could or might act in that way.
That in our view is the sense in which the statement of the Privy Council in Gill's case viz., that the official should be able to claim reasonably that what he did, he did in virtue of his office, should be understood.
Bearing these principles in mind, we turn to the consideration of the acts alleged against the appellant. He is said to have used foul words of the abuse towards the complainant, but the latter has not complained of this. There is complaint of violence by slapping, pushing, and dragging by the shirt-front so that his spectacles fell off. The accusations founded on these allegations fell under sections 323, 352 and 353 of the P. P. C. The aspect of the complainant being a public servant himself may be ignored."
It was further observed at page 33 of the report:-- "Every such case must of course be decided upon its own facts, but the consensus of opinion seems to be that where the assault is of a minor nature, and therefore the exceeding of the authority which corresponds to the duty in question is slight, section 197 of the Criminal P. C,, would apply."
Again it was further held :- "Our view is that the assault and hurt which are alleged are of a minor nature, and are connected directly, and inseparably with the discharge of the accused's duty which was that of supervising the performance of his duties by the complainant Muhammad Yaqub."
In conclusion, out of the number of charges preferred against the accused in this case only those which satisfied the tests were held to be immune from prosecution without sanction under section 197, Cr. P. C. while the prosecution was allowed to proceed on the other charges which were not protected, such as, under sections 341 and 342, P. P. C.
5. The learned counsel for the petitioner further elaborated his stand by emphasising that the assault upon the petitioner could not be in the context of the performance of any duty, for even if the petitioner had refused either to incriminate himself or others, he could not be compelled to do so and upon his refusal he could not be assaulted with a view to compel him to make an1 incriminating statement, implicating himself and the others. Under the circumstances, the learned Additional District Magistrate could not defer taking cognizance upon the complaint in view of section 197, Cr. P. C. Apart from the allegations in the complaint there is no other material on record at this stage to lead to a conclusion that assault would have been committed in accordance with the test laid down in the case of Syed Ahmad.
6. Mr. Naimuddin, the learned counsel for respondent No, 3, urged the it in terms of section 197, Cr. P.
C. this respondent is not removable from his office save by or with the sanction of the Central Government and in the absence of such a sanction he could not be prosecuted. He also took the stand that even according to the allegations in the complaint sanction is necessary because hurt was caused in the performance of his duty and at the most it can only be said to be in excess of the exact duty in question. Mr. Naimuddin was unable to contend, apart from the allegations made in the complaint, how the petitioner was beaten in the performance of his duty. All that he urged was that respondent No, 3 along with the other respondents had performed the duty cast on them under the provisions of the Sea Customs Act and this was not even disputed by the petitioner.
Accordingly, the learned Additional District Magistrate was correct in not proceeding with the complaint without a proper sanction. What Mr. Naimuddin overlooked was whether hurt was connected directly and inseparably with the discharge of this respondent's duty as was held in the case of Syed Ahmed. Prima facie from the allegations in the complaint it does not appear that hurt was connected with the performance of the duty and accordingly it is not possible to accept the contention of Mr. Naimuddin. He, however cited before me a number of authorities to support the above proposition. They are as follows:-- (1)Sakuntala Bai v. Venkatakrishna Reddi AIR 1952 Mad. 667.
(2)R. C. Pollard v. Satya Gopal Mazumdar AIR 1943 Cal. 594.
(3)S. M. H. Rizvi v. Abdus Salam and another PLD 1960 SC 358.
(4)Shree Kantiah Ramayya Munipalli and another v. State of Bombay AIR 1955 SC 287.
(5)Dr. Hori Ram Singh v. Emperor AIR 1939 FC 43.
(6)Matalog Dobev and others v. H. C. Bhari and others PLD 1957 SC (Ind.) 160.
7. In the Madras case (Sakuntala Bai v. Venkatakrishna Reddi), the complainant was assaulted by a Custom Inspector in the alleged performance of his duty as she had refused to part with her gold bangles which she was wearing. She filed a complaint against the Custom Officer before the Stationary Sub-Magistrate, who took cognizance and issued summons under section 355, I. P. C.
This case was subsequently transferred to the file of the District Magistrate who, upon a preliminary objection under section 197, Cr. P. C., dismissed the complaint. It was held in this case as under:- "So on the mere contention of the accused that even if he is assumed to have assaulted the complainant he would be protected under section 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."
The contention of Mr. Naimuddin that in view of the allegations in the complaint, sanction was a prerequisite, loses merit upon the observations made in the above case. This case is not helpful to his stand.
8. In the Calcutta case (R. C. Pollard v. Satya Gopal Mazumdar) this contention was also repelled and it was held that it is not correct to say that whether section 197, Cr. P. C. is applicable or not must be decided by reference only to the statement made in the complaint. Emphasis was laid upon the phrase 'take cognizance' in section 197, Cr. P. C. as meaning "to hear and determine" and it is only when the Court is satisfied upon the evidence recorded as a whole that the offence alleged was committed in the performance of the duty that it can drop the proceedings. This case was also considered by the Supreme Court in Syed Ahmad's case and it was held at page 32 of the report:-- "On the view which we take, it is open to a Magistrate when trying a case of the relevant kind, to come to a conclusion at any stage of the case that in respect of some or, it may be all, the offences alleged, the sanction of the appropriate Government would be necessary under section 197 of the Criminal P. C."
9. In the case of S. 41. H. Rizvi v. Abdus Salam it was left open to the Magistrate to call for proof of such facts as would enable him to be satisfied that he could not proceed without sanction. In other words, sanction was not a prerequisite invariably and the Magistrate could proceed to take cognizance of the offence with a view to determine whether the offence was committed in the performance of duty. This decision also does not advance the contention of the learned counsel.
10.In the case of Shree Kantiah Ramayya Munipalli and another v. State of Bombay it was held that the offence of misappropriation was an act done in the discharge of duty and as such sanction was necessary before cognizance could be taken. The reasoning, upon which this view was taken, is the same as adopted in the case of Dr. Hon Ram Singh v. Emperor in which the question of sanction was considered in terms of section 270 of the Government of India Act, as a prerequisite before the accusation against a public servant for falsification of accounts could be tried. The view in these cases is against that expressed by our Supreme Court in the ca se of Syed Ahmad and has, therefore, no efficacy. Even in a later case of the Supreme Court of India cited as Matajog Dobey and others v. H. C. Bhari and others the view in these two cases was not accepted in that form and it was held :- "It is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
11.The applicability of section 197, Cr. P. C. was again considered by the Supreme Court in the case of Iqbal Husain Siddiqui and 2 others v. State and the view was taken as was expressed in the two earlier cases namely, Syed Ahmad v. The State and Matiur Rahman Diwan v. State and the case was remanded to the trial Court for determining whether at the relevant time the appellants were engaged in the discharge of their official duties.
12. In conclusion, as a result of the above discussion it becomes clear that the necessity of sanction arises at a stage as indicated in Syed Ahmad's case. In the above light, it is premature to contend upon the allegations in the complaint alone that hurt was caused in the discharge of the official duties. As to the allegations of illegal arrest and wrongful confinement, it will be open to the A. D. M. to view these offences also in the light of the material placed before him.
13.Respondent No, 2 is dead. The prosecution against him has abated. The learned counsel for the parties have stated that it is only respondent No, 3 who is not removable from his office save by or with the sanction of the Government. As regards the remaining respondents 1 and 4 to 7, the learned counsel for the parties were not clear whether they are also removable by the Central Government. Mr. Naimuddin stated before me that this question could be determined by the A. D.
M. if the orders were set aside. I may also observe here that the learned State counsel has fairly conceded to the view that I have taken above.
14.I would accordingly set aside the two orders of 3rd and 5th October 1968. In this view, the consequential request for sanction in the letter of 7th October 1968, becomes futile. I would further direct the trial Court to determine, in the first instance, whether the offences, if any, were committed by respondents 1 and 3 to 7 whilst they were engaged at the relevant time in the discharge of their official duties and whether all or anyone of them are not removable from office save by or with the sanction of the Central Government. It is only when the trial Court is able to reach an affirmative conclusion on the above points that the question of sanction would arise. The revision is thus disposed of.2 3