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TMI Blog1952 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... asked her to remove the gold bangles and the gold golusu worn by her and that she refused to do so. Thereupon the accused is said to have abused her and also assaulted her by giving a slap on her face and a few blows on her back with his leather belt and that he forcibly removed the gold bangles and golusu from her hands and detained her in the Chouki till 8-15 p.m. until she paid a fine of Rs. 1,000. On the foot of that she filed a complaint against the accused on 26th April 1950. This case was filed before the Stationary Sub-Magistrate of Cuddalore under Sections 355, 323 and 342, Indian Penal Code, in C. C. No. 1,414 of 1950 and the learned Sub-Magistrate after examining the complainant on oath took the complaint on file under S. 355, In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the sense that notice was not given though the complaint was filed within three months of the accrual of such cause. These contentions found favour with the learned District Magistrate (Judicial) of Cuddalore and the complaint was dismissed and the accused was discharged. 4.The two points which fall for consideration before me are whether S. 198, Sea Customs Act, and S. 197, Criminal Procedure Code, apply to this case. Point 1. - So far as S. 198, Sea Customs Act, is concerned the learned District Magistrate was not at all justified in holding that section applied to the facts of this case. The reasoning of the learned judicial District Magistrate is that the accused got wild and assaulted the lady as she refused to remove the jewels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.... The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, not even necessarily because he was engaged in his official business at the time.... Moreover, an act is not less one done or purporting to be done i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pocket of a patient whom he is examining, though the examination itself may be such an act". In other words, their Lordships of the Privy Council while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. Therefore, as I have stated, it is an astonishing fact that the learned Judicial District Magistrate should have thought that beating a would-be smuggler not for the purpose of seizure but for ventilating his outburst of temper is an act done in the course of official duty or purporting to be done in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use a judge committed it from what it would entail if committed by anybody else, sanction is not required for his prosecution under S. 197, Cr. P. C. In Rajah Rao v. Ramaswamy, Jackson L. J. pointed out as follows : "Section 197, Criminal Procedure Code, presents no difficulty if the obvious intention of the Legislature is borne in mind. It is no part of British policy to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction, for the obvious reason that otherwise official action would be set by private prosecution. Judges would be charged with defamation, policemen wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary. But assuming that such a sanction is necessary, the sanction of the Central Government is not necessary, because the Customs Inspector is removable by a delegated authority, it is admitted that the Customs Inspector can be dismissed by a person other than the Central Government. There is a Bench decision of this court on this point; Pichai Pillai v. Balasundara Mudaly. It was held there as follows : "The expression any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority, in S. 197 (1), Cr. P. C. will not include public servants whom some lower authority has by law or rule or order been empowered to remove. The section clearly intends to draw a line b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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