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TMI Blog1961 (10) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty they did not perform those functions which they were expected to perform. For example, in paragraph 16 the complainant says that by reasons of the exalted position which all the accused occupied they were responsible for the safety of the inhabitants and their property in areas under their respective control. They were by law enjoined to the best of their ability to prevent the commission of a public nuisance and to use their best endeavours to avert any accident or damage to the public, their lives and property. In subsequent paragraphs there is amplification of this statement explaining how they failed to act in the discharge of their duties. He, therefore, prayed that offences under Ss. 166 and 290 of the Indian Penal Code were made out against all these four officers and therefore they should be proceeded with in accordance with law. (2) The petitioners in answer to the notice raised a contention that the prosecution was incompetent in the absence of a sanction from an appropriate authority under S. 197 of the Criminal Procedure Code. The learned Magistrate heard arguments on this point and decided that no sanction was necessary. It is this judgment that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must apply. If the question were res integra there may have some scope for the argument canvassed on behalf of the opponent. The question, however, has been decided by the Federal Court in Hori Ram Singh v. Emperor. In that case the appellant before the Federal Court was accused of two offences, one under S. 409 and another under S. 477A of the Penal Code. He was a sub-Assistant Surgeon in the Punjab Provincial Subordinate Medical Service. When he was about to be transferred, a consignment of medicines was received in the Hospital. He did not make the necessary entries which were to be made in the register of stock and diverted the goods to his house and packed them along with his baggage for being transported to his new place of destination. An investigation was set up on the report of the compounder of the hospital. In respect of the misappropriation of medicines, he was charged under S. 409 for committing criminal breach of trust, and in respect of the default in making the entries in the stock register he was charged under Section 477A. A question arose as to whether he could successfully be prosecuted without sanction required by S. 270 of the Government of India Act. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their mind and decided not to do anything in the matter fort safety of the people. But says he, they had not applied their mind and therefore they failed to discharge their duty of taking precautions for the safety of the people and therefore, they are not protected. We find it difficult to appreciate arguments. As we have said, since the decision of the Federal Court referred to above co-includes the point, it is not open to be canvassed before us. (7) Even if, however, the question were open for decision, in the light of the test laid down by the Supreme Court in later cases we should have been obliged to hold that S. 197 of the Criminal Procedure Code is attracted by the facts of this case. It is necessary to refer only to two cases decided by the Supreme Court. In Shreekantiah Ramayya Munipalli v. State of Bombay 1955CriLJ857 the court was dealing with an offence under S. 409 of the Penal Code. Mr. Justice Bose speaking for the Court cited the observations of Mr. Justice Varadachariar in Hori Ram Singh's case and observed: Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est here formulated in one of close connection between the acts and the duty. In the present case, the omissions complained of are very closely and inseparably connected with the duties that the petitioners have to perform. The test formulated in Amrik Singh's case, 1955CriLJ865 is therefore satisfied and the section must apply. (9) The learned Advocate tried to distinguish these cases by saying that in all these cases their Lordships were concerned with positive acts of officers which constituted the offence while here we are concerned with non-action which amounts to an offence. Primarily we are concerned with the principles of the decision and not with the facts of any particular case. If we apply the principles of these cases the result must be what we have stated above. (10) The learned Advocate, while arguing that to acts of non-commission, the section cannot apply, has emphasized, as has been done by the learned Magistrate, the words while acting or purporting to act. . . . . appearing in S. 197 of the Code of Criminal Procedure, particularly the word while . Whatever could have been said in emphasis on that word, it would not seem to be open now, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the offence under S. 420 read wit Section 109 was an official act and therefore attracted the application of S. 197. While answering this argument, Mr. Justice Imam observed: It is, however, to be remembered that Henderson was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the appellant to cheat. They therefore held that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty. (12) It is lastly argued that in any case even if S. 197 is attached in respect of offence under S. 166, the allegations made in the complaint clearly make out an offence under S. 145 of the Bombay Police Act, 1951. He contends that this Act is a self-contained Act and it must be governed by its own provisions, at least so far as petitioners 1, 2 and 3 are concerned. We have carefully considered the arguments made and we have no hesitation in saying that there is no substance in the contention. The learned Advocate had not been able to cite any provision contained in this Act, by which petitioner No. 1 or petitioner No. 2 could be said to be police officers and since S. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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