LexK. N. SHUKLA versus NAVNIT LAL MANILAL BHAT AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
K. N.SHUKLA
A
I'.
NAVNIT LAL MANILAL BHAT AND A:\R.
December 15. 1966
[K. SunBA RAO, c. J., J. c. SHAH, S. M. SiKRI, v. RA,fASWA,11
n
A~D C. A. VAIOIAI.l~GAM JJ.j
Code of Criminal Procedure (Act 5 o/ 1898), .r. 191-<.'/ass I/ rai/>rny
,Jflicer olfic;nting as Class I officer-Private conaplaint again.rt l1in1 under
Y\'. 166 and 167 l.P.C.-Sanc1io11 uf Central Govenunent, if necessary.
Rai/u·ay Board, if different fro111 Cerr1ral Gover111nent-Maxin1, qui facit
per alium facit per se, scope of.
c
The appellao1 was holding a subslanlive post as a Class II officer of
the Western Railway.
He \\'3S promoted to an officiating rosition as a
Class I officer by the General Manager, with the ap.Proval o the Railway
lloard, as per r. 134 of the Indian Railway Eslabhshmenl Code.
While
he "-'3S officiating in that post. a private complaint was filed ag3inst him
for offences under ss. 166 and 167, l.P.C.
On the question whether ~anction of the President of India v.·as ncce .. -
sary under s. 197, Criminal Procedure Code, for prosecuting him,
HEl ... D : The appellant \\·as not a public servant who was "not rcmov-
;1ble from his office s01vc by or ".-irh the sanction of the Central Govern·
n1ent" v.•ithin the meaning of the section and, therefore, such sanction
was n»l necessary. [292 C; ~96 G.H]
( 1) A Railway officer who merely officiates in Class I cannot be S3id
lo belong to lhal Class within the meaning of llem I of Schedule IJ.
referred lo in r. 1729 of the Discipline and Appeal Rules for Gazcl!ed
Officers (Indian Railway Es1ahlishmen1 Code). He continues to he a Class
11 officer who could be remo\'cd from his office with the sanction of the
Railway Board. [294 F-GJ
(2) Section 2 of the Railway Board Acl. 1905, indicates 1ha1 1he
Railway Board is an entity separate from the Central Government and
thal the powers of the Board are derived by delegation, either absolutely
or subject IC' conditions, by the Central Government.
Therefore. the
Railway Board is not a pan ot' 1hc Ccntr;1l Govcrn1ncnt. (~96 E-1:]
(3) The appellant could not he deemed lo be removable only by or
with the s.i.nctton of the Central Government on the basi! of the maxim
qui faclL per aliunr facit P('r .\·e. For, once the Central Government ha~
delegated ii. power to the Railway Board with regard to the appointment
and removal of a public servanl. then, for the purpose of s. 197, Cr.P.C ..
the public servant concerned
,~·ill not be treated as one .. not removable
f:om his office except by or \\·i1h the sanction of the Central Govern~
1. •nl. .. [297 A-CJ
Af;.c/11r Rahman v. The King. [1943] F.C.R. 7. applied.
( 4) The Nole lo r. 1704.
:on<l r. 1705, would nol apply lo lhe
appellant, as the firs! applies only to non-gazelled officers. and the
~..:cond came into force on Isl Augu~t 1961, after the complaint against
"hini was filed. [295 B. DJ
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K. N. SHUKLA .v. NAVNIT LAL (Ramaswami, J.)
291
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
44 of 1965.
Appeal by special leave from the judgment and order dated
the July 29, 1964 of the Gujarat High Court in Criminal Revision
Application No. 386 of 1963.
B
B. Sen, R. Ganapathy Iyer and R. H. Dhebar, for appellant.
D
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M. K. Ramamurthi, for respondent No. I.
R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from
the judgment of the· High Court of Gujarat dated July 29, 1964 in
Criminal Revision No. 385 of 1963.
On March 14, 1961 respondent No. 1 filed a complaint against
the appellant who was officiating in the post of Divisional Operat-
ing Superintendent,
Western Railway, Rajkot. It was alleged
in the complaint that the appellant had committed offences under
ss. 166, 167 and 182, Indian Penal Code. The appellant objected
before the trying Magistrate that the complaint under s. 182, Indian
Penal Code by a private person was barred under s. 195(l)(a) of
the Code of Criminal Procedure and that as the alleged acts of t?1e
appeJ!ants were said to be done in ;lis official capacity and in dis-
charge of his official duty and as the appellant was a public servant
not removable from his office save with the sanction of the Central
Government, the complaint was not maintainable in the absence
of sanction of Central Government under s. 197 of the Criminal
Procedure Code and the Magistrate was not competent to .take
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