LexMATAJOG DOBEY versus H. C. BHARI
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
2S.C.R. SUPREME COURT REPORTS MATAJOG DOBEY v. H. C. BHARI (WITH CONNECTED APPEAL) 925 [S. R. DAs, AcT!NG C.J., VIVIAN BosE, JAGANNADHA- DAS, JAFER IMAM and CHANDRASEKHARA A1YAR JJ.] Constitution of India, Art. 14--Criminal Procedure Code (Act V of 1898), s. 197-Whether ultra vires the Constitution-Sanction undr:r s. 197-Reasonable connection between the act and discharge of Official duty-Need for sanction-When to be considered-Power con- ferred or duty imposed-Implies power of employing all means for execution thereof. 1n pursuance of a search warrant issued under s. 6 of the Taxa- 'tion on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case. On being chal- lenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours. Two separate complaints-one by the darwan and the other by the proprietor-under ss. 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates. The common question for determination in both the complaints was whether under the circumst:rnces sanction was necessary under s. 197 of the Code of Criminal Procedure. Held that sa.nction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of s. 197 of the Code of Criminal Pro- cedure. Art. 14 does not render s. 197 of the Code of Criminal Proce- dure ultra vires as the discrimination on the part of the Govern- ment to grant sanction against one public servant and not against another is based on a rational classification. A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official. In the matter of grant of sanction under s. 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In other words there must be a reasonable connection between the act and the discharge -0f official duty ; the act must bear such relation to the duty that the 1955 Octohr 31 1955 MoJajoz Dobey v. H.C. Bhari 926 SUPREME COURT REPORTS [1955} accuserl could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. The need for sanction under s. 197 of the Code of Criminal Procedure is not necessarily 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. The complaint may not disclose that the act constituting the offence was done or- purported to be done in the discharge of official duty ; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. 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. Where a power i!; conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as arc reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command . . Gill and another v. The King, (1948) L.R. 75 I.A. 41, Hori Ram Singh v. The Crown, (1939) F.C.R. 159, 178, Albert West Meads v. The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley v. The King-Empero1·, (1944) F.C.R. 262, Shreekantiah Ramayya Munipalli v. The State of Bombay. (1955) 1 S.C.R. 1177, Amrik Singh v. The State of PEPSU, (1955) 1 S.C.R. 1302, Sarjoo Prasad v. The King-Emperor, (1945) F.C.R. 227, /ones v. Owe
Excerpt shown. Read the full judgment & AI analysis in Lexace.