S B HOSSAIN Vs. EMPEROR

JUDGEMENT

(1.) These are two Rules against convictions of 2 members of the Civic Guard by a Magistrate of Alipore which have been upheld on appeal by the Additional Sessions Judge, 24 Parganas. The petitioner S.B. Hossain has been convicted under Section 213/109, Indian Penal Code and under Section 217, Indian Penal Code and sentenced to 6 months rigorous imprisonment under each section, the sentences to run concurrently. Hafiz Khan has been convicted under Section 213, Indian Penal Code and also sentenced to 6 months rigorous imprisonment. Briefly, the prosecution case is that one Hiralal was arrested on the night of 19 August 1944 carrying two bags of atta and flour weighing about 3 maunds which act prima facie appeared to be an offence as the carriage was within a rationed area. Two of the Civic Guards approached him and demanded a bribe of 8 rupees. They were then interfered with by other Civic Guards and eventually Hiralal was sent by the Group Commander Makhan Lal Ghosh (P.W. 5) to the District Commandant one Mr. Unsud Dowla who lived at a house called Barakuthi. A note Ex. 6 was sent along with Hiralal which was brought by the accused Hafiz Khan. The District Commandant was asleep and the case was dealt with in his absence by the accused S.B. Hossain. After a talk between Hafiz and Hossain, Hiralal was allowed to go, the atta being kept in the Civic Guards barracks. His story is that he was told by Hafiz that if he paid Rs. 30 in all he would be let go completely.... The next morning he came back after borrowing the balance of Rs. 22 and paid it to Hafiz Khan and he was duly released and received his atta.

(2.) The proceeding started on 13-10-1944 as against S.B. Hossain by a letter written by the officer in charge of Watgunge thana to the Police Magistrate, Alipore, alleging commission1 of an offence under Section 217, Indian Penal Code; and as regards Hafiz Khan by an ordinary police challan being presented on the same date to the same Magistrate alleging an offence under Section 213, Indian Penal Code. The Magistrate treated the letter regarding Hossain as a complaint under Section 217, Indian Penal Code, and noting that he was present in Court passed an order for bail. Similarly in the case of Hafiz Khan the Magistrate noted that a charge-sheet had been received against him under Section 213, Indian Penal Code, and passed an order for bail in default to jail custody. The witnesses were at first examined in the case on 25-11-1944. The two cases were tried together. On 23 November the Additional District Magistrate sanctioned under Section 5(2), of the Civic Guards Ordinance prosecution of the Civic Guard officers, S.B. Hossain and Hafiz Khan under Secs.217,213/109, Indian Penal Code. Subsequently on 4-1-1945 application was made to the Commissioner of Police pointing out that the Magistrate's sanction was not valid and he made an order sanctioning prosecution of the two accused under the sections named. By that time witnesses had been examined and charges had been framed in the case.

(3.) Before us Mr. Santosh Kumar Basu appearing for the accused S.B. Hossain challenges the validity of the proceedings on the ground that sanction was necessary for the prosecution, and that the sanction given after the institution of the proceedings was not sufficient to validate them; Basdeo Agarwalla V/s. Emperor . The trial Court took the view that the Magistrate's sanction was good and was in time. The lower appellate Court has held that no sanction at all was necessary. In our opinion, sanction was required for the proceedings under Section 217, Indian Penal Code, and was not required for the proceedings under Section 213, Indian Penal Code. The very nature of the offence denned in Section 217, Indian Penal Code, makes it clear in our opinion having regard to the ratio decidendi in Hori Ram Singh V/s. Emperor that sanction for prosecution for this offence is clearly required. In that case a distinction is drawn between an offence under Section 477A, Indian Penal Code when committed by a public servant and one under Section 409, Indian Penal Code. The distinction between an offence under Section 217 and that under Section 213 or we may add under Section 161 or Section 162, Indian Penal Code, appears to us to be precisely of the same nature as the distinction drawn in the case cited. Section 217, Penal Code, makes punishable a certain dereliction of duty quite apart from the question as to whether any bribe is paid to induce such dereliction. The dereliction must clearly from the nature of the definition of the offence be committed in the discharge of the functions of the person charged. So far as the requirement for sanction in the case of a charge under Section 161, Indian Penal Code is concerned we refer to the case in H.T. Huntley V/s. Emperor and the same will apply equally with regard to an offence under Section 213, Indian Penal Code, in our opinion. These cases were decided on the wording of Section 270, Government of India Act. Section 5 (2), Civic Guards Ordinance, requiring sanction by the District Magistrate or the Commissioner of Police is almost identical in terms.