- (1.) The Petitioner-Prabhakar V. Sinari-is a Deputy Superintendent of Police, Margao. A private complaint was filed against him and four other persons by Shankar Anant Verlekar, a resident of Margao, under Sec. 34 (acts done by several persons in furtherance of common intention), 109 (abetment), 149 (offence by any member of an unlawful assembly), 341 (wrongful restraint), 342 (wrongful confinement), 352 (assault), 500 (defamation) and 504 (intentional insult with intent to provoke breach of the peace) of the Penal Code, on 15th of March, 1966. The complaint is that on 5th of March, 1966 at about 4 p. m. accused 2 to 5, hawkers by profession, and some other persons, attempted to trespass on the land of the complainant, in Margao town, with a view to installing stalls. The complainant was threatend by them when he tried to prevent their entry. The complainant sent his brother to the Police Station. "The Police asked the accused and other hawkers to keep their hand-carts at the places where they were kept before. At about 5.30 p. m. same day the petitioner came to the land and, in an arrogant tone, spoke to the complainant. The petitioner enquired of the complainant whether he knew him. The complainant said he knew him. The petitioner informed the complainant that he was Dy. Supt. of Police. The petitioner then told the complainant that there were documents to prove that the land belonged to one Atmaram. The conplainant was asked by the petitioner to show him documents of title. The complainant replied that, they were in the Civil Court. The petitioner threatened the complainant that he would lock him up in case the complainant interfered with the hawkers. The petitioner asked accused 2 to 5 and other hawkers to enter upon the land. The complainant was wrongfully restrained and confined by these accused and other hawkers at the instance of the petitioner. The complainant protested when he was warned by the petitioner that if he talked much the petitioner would slap him. The complainant was also assaulted by the petitioner. The petitioner thereafter left the land saying that he would deal with the case. The possession of the land was taken over by the hawkers. The complainant felt that the action of the petitioner was illegal. He then complained to the Magistrate. The learned Magistrate after examining the complainant under Sec. 200 of the Criminal Procedure Code issued summons against the petitioner, requiring him to appear before him on 19th April. 1966. The allegations made in the complaint were '"confirmed" on oath. The petitioner felt aggrieved and he accordingly moved the Court of Session in revision. According to the petitioner, the learned Magistrate, could not take cognizance of the complaint against him for want of sanction under Sec. 197 of the Criminal Procedure Code. The learned Sessions Judge expressed the view that the facts disclosed in the complaint and also the examination of the complainant show that the petitioner is accused of the offences alleged to have been committed by him while acting or purporting to act in the discharge of his official duty and, therefore, the Magistrate had no jurisdiction to take cognizance of these offences without sanction in terms of this Section. In support of the view taken by him. he relied on Prabhu Dayal v Milap Chand , 1959 AIR(Raj) 12 and Rajagopala Iyer V/s. Palaniswami Goundan ,1935 AIR(Mad) 319 The Sessions Judge then made a report \o this Court under section 438 of the Criminal Procedure Code. In that report he recommended that the Magistrate be directed to require the complainant to obtain sanction from the Government before proceeding with the complaint. This, in broad, is the substance of the complaint.
(2.) We are called upon to consider the recommendation made in the report in exercise of the revisional jurisdiction vested in the High Court under Sections 435 and 439 of the Criminal Procedure Code. The High Court does not ordinarily interfere at an interlocutory stage but where, as in this case, a question of law involving jurisdiction arises whether the Magistrate could take cognizance of the offences alleged to have been committed by the petitioner in absence of sanction as required by Section 197 (1) Criminal Procedure Code, the High Court would be justified in exercising the jurisdiction vested in it. We propose to deal with this question at some length so that the law on the subject is correctly understood and applied in the territory of Goa Daman and Diu. liberated from the Portuguese rule in December, 1961.
(3.) Section 197 (1) of the Criminal Procedure Code (hereinafter referred to as 'The Code'), to the extent it is material for the present purpose, reads as under - (S. 197 (1) reproduced). X X X X X The Code does not define "public servant", but by virtue of Section 4 (2) of the Code, the definition of "public servant" in Section 21 of the Penal Code would apply. Shri Verlekar, learned counsel for the complainant, does not dispute the fact that the petitioner is a public servant within the meaning of S. 21. Penal Code. According to the petitioner, he is not removable from his office save by, or with the sanction of, the State Government. The Code was extended to the Union Territory of Goa, Daman and Diu by Section 3 (1) of (he Goa, Daman and Diu (Laws) Regulation No. 12 of 1962. It was brought into force on 1st November, 1963, under Section 3 (2). Section 6 (1) (b) provides that in any Act etc., extended to the Union territory of Goa, Daman and Diu. any reference to the State Government shall be construed as a reference to the Central Government and also as including a reference to the Lieutenant-Governor. "Act" under the definition Section 2 (a) means an Act specified in the Schedule. The Code is specified in the Schedule appended to the Regulation. Section 2 (c) defines "Lieutenant Governor" as meaning the Administrator of the territory of Goa, Daman and Diu. The Constitution in Article 239 provides that every Union territory shall be administered by the President acting through an Administrator appointed by him. Apart from express provision in Section 6 (1) (b) of the Regulation, under Section 3 (58) (b) of the General Clauses Act, 1897 in force in the Union territory of Goa, Daman and Diu with effect from 30th January, 1963. "State" as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a State as specified in the First Schedule to the Constitution and shall include a Union Territory. The object of the General Clauses Act is to place in a single statute different provisions as regards interpretation of words and principles. This has to be read into every Central statute unless there is anything repugnant in the subject or the context. It will appear from these provisions that the petitioner cannot be removed from his office save by, or with the sanction of, the Lieutenant-Governor. It is common ground that the cognizance of the offences of which the petitioner is accused was taken by the Magistrate in absence of sanction. Did the petitioner commit the offences of which he is accused while acting or purporting to act in the discharge of his official duties This is an important question for our consideration. If he did then he cannot be prosecuted for want of sanction. This is so because the bar imposed is absolute as will appear from negative words "no Court shall take cognizance etc." The bar will not operate when sanction is given.;