MUNICIPAL COMMISSIONERS FOR THE CITY OF MADRAS Vs. MAJOR BELL
MUNICIPAL COMMISSIONERS FOR THE CITY OF MADRAS
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Moore, J -
(1.) The Municipal Commissioners for the City of Madras made a complaint before the Chief Presidency Magistrate against Major Bell, the Superintendent of the Gun Carriage Factory, alleging that he had, on certain occasions, specified in the written complaint, brought or caused to be brought from the Salt Cotaurs Station of the Madras Railway Company within the City of Madras certain logs of wood which had been consigned to him as Superintendent without obtaining a license on payment of the fees due thereon, and had thereby committed an offence punishable under Section 341 of the City of Madras Municipal Act. The Chief Presidency Magistrate rejected the complaint on the ground that before cognizance could be taken of the offence with which Major Bell was charged, the sanction of Government should be obtained under Section 197 of the Criminal Procedure Code. This is an application put in on behalf of the Municipal Commissioners praying the High Court to revise the proceedings of the Chief Presidency Magistrate, and direct him to proceed with an enquiry into the complaint preferred to him.
(2.) The question for consideration is whether Major Bell, the Superintendent of the Gun Carriage Factory, is accused of having committed the offence laid to his charge as such Superintendent. A number of decisions of the various High Courts have been referred to at the hearing of this matter, but owing to the manner in which the section of the Criminal Procedure Code now under consideration has been altered from time to time from 1861 to 1898, these decisions do not go far to help us in interpreting the section as it now stands. For example, Section 167 of the first Criminal Procedure Code (Act XXV of 1861) related to charges of offences punishable under the Indian Penal Code only and the Circular of the Calcutta High Court issued in 1864 and the decision of the Bombay High Court in Beg. V/s. Parshram Keshav 7 Bom. H.C.R. (Cr.) 61, must be read in the light of that fact. If Section 197 of the present Criminal Procedure Code referred to cases under the Indian Penal Code only there can be no question that it must be decided that no sanction is necessary for Major Bell's prosecution. In Section 4 (o), however, of the Criminal Procedure Code now in force "offence" is defined as meaning "any act or omission made punishable by any law for the time being in force."
(3.) Further, Section 466 of the Criminal Procedure Code of 1872 (Act No. X) which corresponds with Sec. 167 of the Act of 1861, provides that no complaint of an offence committed by a public servant in his capacity as such servant should be entertained without sanction, and there is also in this section the following most important paragraph. "No such Judge or public servant shall be prosecuted for any act purporting to be done by him in the discharge of his duty unless with the sanction of Government." If this paragraph were to be found in the present Criminal Procedure Code, I can entertain no doubt that we should be obliged to hold that Major Bell could not be proceeded against without sanction. The unreported case of Sreemanto Chatterjee decided in 1881 and alluded to (vide page 860 in the judgment in Nundo Lal Basak V/s. Mitter I.L.R. 26 Calc. 862 at p. 860 was decided under this section and it was there held by Mr. Justice Pontifex that, by virtue of the paragraph now under consideration, sanction was necessary in the case of the public servant whom it was then proposed to prosecute. Mr. Justice Field, however, expressed the opinion that the first paragraph of Section 466 was intended to apply to those cases in which the offence charged is an offence which can be committed by a public servant only, cases, that is, in which being a public servant is a necessary element in the offence. This expression of opinion is of importance in view of the fact that the first paragraph of Section 197 of the Criminal Procedure Code of 1898 differs but little from the first paragraph of Section 466 of the Act of 1872, and that the second paragraph of this latter section has not been reproduced in either the Criminal Procedure Code of 1882 or that of 1898.;
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