1948 JTR(SC) 76
1949 AIR(PC) 117 ; 1949 51 BomLR 440 ; 1949 MWN(Cri) 114
Privy Council At Calcutta
Reid, Morton of Henryton, Justice Lords Simonds, JJ.
Phanindra Chandra Neogy -Appellant
Versus
The King. -Resopndent
Privy Council Appeal No. 27 of 1948; Bengal Appeal No. 13 of 1947
Decided On : 21-10-1948
Sanction for prosecuting a public servant under Section 197 of the Criminal Procedure Code is not required for acts like bribery, as such acts fall outside the scope of official duty and cannot be reasonably claimed as being performed in virtue of the office.
Act
Referred
:CRIMINAL PROCEDURE CODE
: S.197
(A) Penal Code - Section 161 - Criminal Procedure Code - Section 197 - Government of India Act, 1935 - Section 270 - Public servant - Sanction for prosecution - Scope of "acting or purporting to act in the discharge of official duty" - A public servant can only be said to act or purport to act in the discharge of his official duty if the act lies within the scope of his official duty - Receiving a bribe is not an act in the discharge of official duty, even if the official position is utilized - The test is whether the public servant, if challenged, can reasonably claim that the act was done in virtue of his office. (Para 4)
(B) Sanction for prosecution - Offences specific to public servants - Section 197 does not require sanction merely because the offence charged is one that can only be committed by a public servant - The requirement for sanction depends on whether the offence was committed while acting or purporting to act in the discharge of official duty. (Para 6)
Facts of the case:
A public servant, employed as a railway servant and inspector, was convicted under Section 161 of the Penal Code for accepting a gratification of Rs. 500 as a reward for showing favor in the exercise of official functions relating to applications for wagons. The conviction was challenged on the ground that the trial was conducted without the necessary sanction for prosecution required under the Government of India Act, 1935, or the Criminal Procedure Code.
Findings of Court:
The court held that no sanction was necessary for the prosecution as the act of accepting a bribe does not fall within the scope of official duty.
Issues: Whether the requirement of sanction for the prosecution of a public servant under Section 197 of the Criminal Procedure Code or Section 270 of the Government of India Act, 1935, applies to a charge of accepting a bribe.
Ratio Decidendi: The court reasoned that the protection of sanction is available only when the public servant is acting or purporting to act in the discharge of official duty. Since receiving a bribe is not an act that lies within the scope of official duty, the public servant cannot reasonably claim to be acting in virtue of his office. Consequently, the nature of the offence (whether it can only be committed by a public servant) is irrelevant; the determining factor is the nature of the act. (Paras 4, 6)
Result: Appeal dismissed.
(B) Sanction for prosecution - Offences specific to public servants - Section 197 does not require sanction merely because the offence charged is one that can only be committed by a public servant - The requirement for sanction depends on whether the offence was committed while acting or purporting to act in the discharge of official duty. (Para 6)
Facts of the case:
A public servant, employed as a railway servant and inspector, was convicted under Section 161 of the Penal Code for accepting a gratification of Rs. 500 as a reward for showing favor in the exercise of official functions relating to applications for wagons. The conviction was challenged on the ground that the trial was conducted without the necessary sanction for prosecution required under the Government of India Act, 1935, or the Criminal Procedure Code.
Findings of Court:
The court held that no sanction was necessary for the prosecution as the act of accepting a bribe does not fall within the scope of official duty.
Issues: Whether the requirement of sanction for the prosecution of a public servant under Section 197 of the Criminal Procedure Code or Section 270 of the Government of India Act, 1935, applies to a charge of accepting a bribe.
Ratio Decidendi: The court reasoned that the protection of sanction is available only when the public servant is acting or purporting to act in the discharge of official duty. Since receiving a bribe is not an act that lies within the scope of official duty, the public servant cannot reasonably claim to be acting in virtue of his office. Consequently, the nature of the offence (whether it can only be committed by a public servant) is irrelevant; the determining factor is the nature of the act. (Paras 4, 6)
Result: Appeal dismissed.
Sanction - Established that sanction under S. 197, Criminal PC is not necessary for acts like bribery as they do not fall within the scope of official duty.
Precedent - Cited to illustrate that the Board may provide advice inconsistent with a previous decision in exceptional circumstances.
High Commissioner for India, T.L. Wilson and Co., J. Megaw, A.G.P. Pullan
Lord Simonds.-
This appeal is brought by special leave from a judgment of the High Court of Judicature at Fort William in Bengal dismissing the appeal of the appellant, Phanindra. Chandra Neogy, from the conviction and sentence passed on him by the Chief Magistrate, Calcutta, on 10th April 1946.
[2] The conviction was for an offence under S. 161, Penal Code and the sentence was one of twelve months rigorous imprisonment. It is convenient to set out the charge which was in these terms :
"That you Phanindra Chandra Neogy, on or about 10th day of September 1945, in the Town of Calcutta being a public servant to wit, a Railway servant and an inspector in the office of the Regional Controller of Priorities accepted from one Sohanlal a gratification other than your legal remuneration to wit, the sum of Rs. 500 only as a motive or reward for showing favour to the said Sohanlal in the exercise of your official functions relating to an application by the said Sohanlal for being allowed two wagons, one from Allahabad and another from Benares and thereby you the said Phanindra Chandra Neogy committed an offence punishable under S. 161, Penal Code and within my cognizance."
[3] The single ground upon which the petition for special leave to appeal was based was that, no sanction for the prosecution of the appellant having been obtained either under S. 270, Government of India Act, 1935, or under S. 197, Criminal PC the Chief Magistrate had no jurisdiction to try or convict him, and it was upon this ground that special leave to appeal was granted, for similar leave had been given in Gill v. The King , a case then pending, in which the same question (together with other questions) was raised.
4 In January 1948, this Board beard, and in February 1948, delivered judgment in Gill v. The King , now reported in LR 75 IA at p. 41 : (AIR (35) 1948 PC 128). In the course of that judgment their Lordships thought it proper to
express their view upon the scope of S. 197, Criminal PC. Having observed that they found it impossible for any relevant purpose to differentiate between S. 270, Government of India Act and S. 197, Criminal PC they proceeded as follows:
"A public servant can only be said to act or purport to act in the discharge of his official duty, if the act is such as to lie within the scope of his official duty. Thus a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be, whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office."
Applying this reasoning to the case of Gill, a public servant, who had been charged together with one, Lahiri, with being a party to a criminal conspiracy to cheat the Government, whereby offences under S. 120B read with S. 420, Penal Code were alleged to have been committed and had also been charged with offences under S. 161 of the Code, their Lordships held that no sanction under S. 197, Criminal PC was necessary.
[5] In face of this judgment the present appeal appeared to have little chance of success. It was nevertheless argued fully by counsel and their Lordships have had the opportunity of reconsidering the whole question. They cannot accede to the suggestion of counsel that that part of the judgment which has been cited is to be regarded as obiter dictum. The scope of S. 197 and its applicability to Gill's case, (75 IA 41 : AIR (35) 1948 PC 128) were put in the forefront of the written case he presented to the Board and it was the first of his formal reasons that the sanction, for which that section provides, ought to have been, but was not, given. The question was argued at length by the respondent's if not by the appellant's counsel and their Lordships treated it as a matter which required their deliberation and decision. In such circumstances it is irrelevant that a judgment upon other points raised in the case might have rendered such a decision unnecessary.
6 Their Lordships then have before them a decision upon facts which in no material respect differ from those of the present case. Even so, it is, as they recognise, competent for them humbly to tender advice to His Majesty inconsistent with the previous decision, though it can only be in the most exceptional circumstances that such a course should be taken; see Re: Payment of Compensation to Civil Servants under. Art. 10 of Agreement for a Treaty between Great Britain and Ireland, reported in 1929 A. C. at p. 242, and the cases there cited. Recognising the possibility, they have heard full argument and, having done so, see no reason to doubt the validity of the reasoning or the correctness of the conclusion in Gill's case, (75 IA 41 : AIR (36) 1948 PC 128) and they do not think it necessary to repeat what was said there. Learned counsel for the appellant in the present case laid stress upon what he described as a long line of authority in favour of the view that, where the offence charged is an act which would not be an offence unless committed by a public servant, sanction under S. 197 is necessary. Their Lordships without scrutinising the authorities, which do not appear entirely to support this view, would observe that it is the words of a 197 as amended in 1928 and nothing else that must be considered, and that they can see no justification for reading the section as if the words "which under the Criminal Procedure Code is an offence only if committed by a public servant" were inserted in the appropriate place. It is neither with all such offences nor only with such offences that S. 197 deals. On the contrary according to its plain words it deals with offences alleged to have been committed by a public servant "while acting or purporting to act in the discharge of his official duty." To these words a meaning was ascribed in Gill's case, (75 IA 41 : A. I. B. (35) 1948 PC 128) to which their Lordships after reconsideration adhere. It has not been disputed that if S. 197 is so construed, no sanction was necessary for the prosecution of the appellant. Their Lordships have therefore humbly advised His Majesty that this appeal must be dismissed.
Appeal dismissed.