Matajog Dobey vs H. C. Bhari (With Connected Appeal)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 31 October 1955

Coram: Vivian Bose, B. Jagannadhadas, Syed Jaffer Imam, Chandrasekhar Aiyar

In the case of Matajog Dobey versus H. C. Bhari, decided on 31 October 1955, the Supreme Court of India recorded a judgment authored by a bench composed of Justice Vivian Bose, Justice B. Jagannadhadas, Justice Syed Jaffer Imam, Justice AIyar, Justice N. Chandrasekhara, Justice Das, Justice Sudhi Ranjan Bose, Justice B. Imam and Justice Syed Jaffer. The parties were identified as petitioner Matajog Dobey and respondent H. C. Bhari, and the judgment was cited as 1956 AIR 44 and 1955 SCR (2) 925. The Court examined the constitutional validity of section 197 of the Criminal Procedure Code (Act V of 1898) in light of Article 14 of the Constitution of India, focusing on whether a sanction under that provision was required, whether the provision was ultra vires, and what constituted a reasonable connection between an accused’s act and the performance of official duty.

The factual backdrop involved a search warrant issued under section 6 of the Taxation on Income (Investigation Commission) Act, 1947, which authorized four officials to search two premises in Calcutta. The officials entered the first premises by forcibly breaking the entrance door of a flat and entered the second premises by breaking the lock of a room’s door. The door-man (darwan) and the proprietors of each premises challenged the officials’ actions. The officials were alleged to have tied the darwan with a rope, causing injuries, and to have brutally assaulted the proprietors with the assistance of two policemen, subsequently detaining the proprietors in a lock-up for several hours. Two separate complaints—one by the darwan and another by a proprietor—were lodged under sections 323, 342 and related provisions of the Indian Penal Code before two different magistrates. The central issue in both complaints was whether the circumstances warranted a sanction under section 197 of the Code of Criminal Procedure. The Court held that sanction was indeed necessary because the alleged assault and use of criminal force were connected to the performance of the officials’ duties within the meaning of section 197. The Court further observed that Article 14 did not render section 197 unconstitutional, as the governmental decision to grant sanction to one public servant and not to another was based on a rational classification. The Court explained that discretionary power is not automatically discriminatory, and that an abuse of power cannot be presumed where the discretion rests with the Government rather than a subordinate official. In determining the need for sanction under section 197, the Court articulated that the alleged offence must have a direct or related nexus to the discharge of official duty; there must exist a reasonable connection such that the accused could plausibly claim, not merely feign, that the act was performed in the course of official responsibilities.

In this case, the Court explained that the requirement for sanction under section 197 of the Code of Criminal Procedure does not have to be decided at the moment the complaint is filed or based solely on the allegations contained in that complaint. The issue of whether sanction is required may arise at any point during the proceeding. A complaint might not initially disclose that the act alleged to constitute the offence was performed, or claimed to be performed, in the discharge of official duty; however, facts that emerge later—whether through a police inquiry, a judicial inquiry, or even during the presentation of evidence at trial—may demonstrate that sanction is indeed necessary. Accordingly, the necessity for sanction may have to be assessed at successive stages, and it may become apparent only as the case progresses.

The Court further held that when a power is granted or a duty imposed by statute—or by any other source—without any express limitation or restriction on its exercise, it is reasonable to presume that the authority includes the power to take all actions or employ all means that are reasonably necessary to accomplish the purpose of that duty. This follows the general rule that when the law commands a particular act, it also authorises whatever measures are necessary to execute that command. The Court cited several authorities in support of this principle, including Gill and another v. The King (1948) L.R. 76 I.A. 41, Hori Ram Singh v. The Crown (1939) F.C.R. 159, Albert West Meads v. The King (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley v. The King-Emperor (1944) F.C.R. 262, Shreekontiah Bamayya Munipalli v. The State of Bombay (1955) 1 S.C.R. 1177, Amrik Singh v. The State of PEPSU (1955) 1 S.C.R. 1302, Sarjoo Prasad v. The King Emperor (1945) F.C.R. 227, Jones v. Owen (1823) L.J. Reports (K.B.) 139 and Hatton v. Treeby (1897) L.R. 2 Q.B.D. 452.

The judgment concerned a criminal appellate jurisdiction arising from a special leave petition under article 136 of the Constitution. The petition challenged two orders of the Calcutta High Court that had dismissed criminal revision petitions numbered 559 of 1951 and 312 of 1952, both filed by the appellants. In revision petition 559 of 1951, the High Court, comprising Chief Justice Harries and Justice Banerjee, affirmed an order of a Presidency Magistrate that discharged the accused on the ground that sanction under section 197 of the Criminal Procedure Code was lacking. In revision petition 312 of 1952, Justices Lahiri and Guha set aside an order of another Presidency Magistrate that had held no sanction was required and consequently quashed the proceedings against the accused.

For the appellant in both appeals, counsel appeared on behalf of the appellant. For the respondents, counsel representing the Government of India appeared, including the Solicitor-General of India and counsel assisting. The judgment was dated 31 October 1955 and was delivered by Justice Chandrasekhara Aiyar. The Court noted that these appeals were before it on special leave to appeal, seeking review of the High Court’s decisions dismissing the two criminal revision petitions.

In Petition No. 312 of 1952 the High Court bench comprising Lahiri and Guha, JJ., set aside an order made by another Presidency Magistrate which had held that no sanction was required and had consequently quashed the proceedings against the accused. The two complaints that gave rise to these proceedings were closely inter-related. In connection with certain proceedings before the Income Tax Investigation Commission it became necessary to search two premises, namely 17 Kalakar Street and 36 Armenian Street, in order to inspect, copy and take possession of books, papers and documents that were believed to be present. The Commission issued a search warrant authorising four persons – H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee – to effect the search. The authorised officials arrived at the Kalakar Street premises, third floor, on the morning of December 1950. Matajog Dobey, who was the darwan of Kasbiram Agarwala, reported that when he saw the officials forcibly breaking open the entrance door of the flat he challenged them and asked them to desist. The officials ignored his protest, broke the door, entered the premises and interfered with some boxes and drawers of tables. They bound him with a rope and assaulted him, causing injuries. On the basis of these facts he lodged a complaint on 27-12-1950 against H. C. Bhari and three other persons, whose names he did not know, charging them under sections 323, 341, 342 and 109 of the Indian Penal Code. A similar incident occurred at the Armenian Street premises on the evening of 26-12-1950. Nandram Agarwala, father of Kashiram Agarwala, arrived at the scene and observed that the officials had forcibly opened the lock of a room containing several books and papers, which they were collecting and packing into bundles for removal. He protested, asserted that their actions were illegal and oppressive, and demanded a proper search list and receipts for the seized books and documents. In response, two policemen held him down, assaulted him mercilessly, kicked him, dragged him downstairs, placed him in a police van and conveyed him to the Burra Bazar police station, where he was assaulted again before being sent to the hospital. He was later returned, kept in lock-up until midnight and released on bail. Setting out these facts, he filed a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later, alleging offences under sections 323, 342 and 504 of the Indian Penal Code. Subsequently he identified two police officers, Bibhuti Chakravarti and Nageswar Tiwari. The two complaints were transmitted for judicial inquiry to two different magistrates. On 21-2-1951 the magistrate handling Agarwala’s complaint held that a prima facie case existed under section 323 against all four accused and under section 342 against the two policemen, and accordingly directed summonses to be issued.

In the proceeding, the magistrate initially issued a process under section 323 of the Indian Penal Code against all the accused. On 1 May 1951, two prosecution witnesses were examined in chief, after which the case was adjourned to 22 May 1951. On that date, the first accused, Bhari, filed a petition objecting on the ground that sanction under section 197 of the Criminal Procedure Code was lacking. The magistrate upheld this objection, and consequently all the accused were discharged on 31 May 1951. Nandram Agarwala appealed this discharge by filing a revision before the High Court, but the High Court affirmed the magistrate’s order. In the complaint filed by Matajog Dobey, after the termination of the inquiry, process was issued only against Bhari under sections 323 and 342 of the Indian Penal Code on 22 December 1951. Following several adjournments, the accused filed a petition on 26 February 1952 raising the same objection of lack of sanction. The magistrate who was handling that file overruled the objection and ordered that the prosecution should proceed. Bhari again sought revision before the High Court, and this time the High Court allowed the prosecution to continue. In the revision petition filed by Nandram Agarwala (Criminal Revision Petition No. 559 of 1951), Chief Justice Harries and Justice Banerjee held that the test laid down by the Privy Council in Gill’s case applied. They further reasoned that, reading the complaint fairly and without exaggeration, the officers could reasonably contend that their acts were performed in the discharge of official duty. In the revision petition filed by Matajog Dobey (Criminal Revision Petition No. 312 of 1952), Justices Lahiri and Guha reached the same conclusion. They observed that the nature of the allegations clearly linked the acts to the official character of the petitioner in conducting the search. Counsel for the appellants, Mr Isaacs, contested these conclusions and advanced three categorical arguments. First, he argued that an act of criminal assault or wrongful confinement could never be regarded as an act done while performing official duty. Second, he contended that where a duty is expressly defined by statute and a warrant of authority, such acts could not fall within the scope of employment. Third, he maintained that the court’s duty was to permit the prosecution to proceed rather than to dismiss it at the outset. He also argued that the entry recorded on 23 December referred to an incorrect address, P-17 Kalakar Street, instead of the authorised premises at 17 Kalakar Street, rendering the search illegal from its inception. Further, he raised the constitutional issue that section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947, and section 197 of the Criminal Procedure Code were ultra vires, discriminatory, and violative of Article 14 of the Constitution. During his arguments, he also referred to section

The petitioners relied upon sub-sections (7) and (9) of section 6 of the Taxation on Income (Investigation Commission) Act, 1947, together with rule 10, which together authorised the issuance of a search warrant. Their principal contention was that neither the statute nor the common law conferred upon the authorised officials any power to assault or to use physical force while performing their duties, and that any such use of force must therefore lie entirely outside the scope of their employment. To support this position they referred to the provisions of the Criminal Procedure Code that regulate searches, and they quoted two earlier English decisions in an effort to reinforce the argument that the law did not permit coercive physical conduct by officials executing a search.

The warrant that was produced by the respondents was worded as follows: “Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8, Taxation on Income (Investigation Commission) Act, 1947. Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the S. Jhabbarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17, Kalakar Street, Calcutta; (ii) 47 Khengraputty Street, Calcutta-7; and (iii) the second floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and out-houses or other places in that locality. This is to authorise and require you, Sri H. C. Bhari, Authorised Official, Income-tax Investigation Commission, (a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found; (b) to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (c) to make copies or extracts from such books, documents and papers; (d) to seize such books, documents and papers and take possession thereof; and (e) to exercise all other powers and duties under the said sections and the Rules relating thereto.”

From the wording of the warrant it is clear that it precisely delineates the duties that were assigned to the authorised officials, namely to enter the specified premises, to search for the identified materials, to mark, list, copy, extract and seize them, and to do so with the assistance of police officers if necessary. The warrant does not indicate whether police officers accompanied the officials from the outset of the operation or were called in only after resistance was encountered; that factual detail remains uncertain. However, the uncertainty does not affect the analysis because the warrant itself expressly authorises the use of police assistance during the search.

The factual narrative presented by the complainants regarding the conduct of the search is set out in two separate complaints they filed. In contrast, the version advanced by the accused is contained in the petitions filed by Sri H. C. Bhari, in which he invoked the objection provided under section 197 of the Criminal Procedure Code. Further factual material concerning the incidents was elicited during two judicial inquiries that were conducted in connection with the matter. In addition, two medical certificates were produced, each documenting the injuries sustained by Nandram Agarwala and Matajog Dobey as a result of the alleged assault. These various pieces of evidence, together with the minor procedural contentions raised, were slated for consideration at the outset of the Court’s deliberations.

At the outset the Court observed that even if there were a valid constitutional argument concerning the validity of section 5(1) of the Act, it chose not to examine that issue because it had not been raised before the High Court nor included in the grounds of the petition for special leave to appeal. The Court further held that Article 14 of the Constitution does not make section 197 of the Criminal Procedure Code void, because the classification it creates is rational. The Court explained that public servants require protection from harassment while performing their official duties, a protection that is not extended to ordinary citizens who are not engaged in such duties. An argument had been advanced that section 197 vested the Government with an entirely arbitrary power to grant or withhold sanction at its whim, and that the legislature had failed to provide any guiding principles to constrain the exercise of that discretion. The Court rejected this contention, observing that there is no discrimination between individuals in the matter of instituting proceedings against a public servant for an act done or purported to be done in the discharge of official duties, since such proceedings cannot be instituted without prior sanction. The Court noted that if the Government were to sanction one public servant and refuse sanction to another, the sanctioned servant might claim discrimination, but the petitioners, who are the complainants, could not claim discrimination because the law does not discriminate against any complainant. The Court cautioned that a discretionary power is not automatically a discriminatory one, and that abuse of power should not be presumed simply because the discretion rests with the Government rather than with a lower official. The Court clarified that it was not concerned with the broader question of abuse of discretion; its sole task was to determine whether the court could take cognizance of the case without a prior sanction. To that end, the court must ascertain whether the act alleged was committed by the accused while acting, or purporting to act, in the discharge of official duty. Once that factual question is resolved, the case will either proceed or be dismissed. The decision on whether to grant sanction remains a matter for the Government, and the Government’s absolute power to grant or withhold sanction is irrelevant to the court’s function of determining the true nature of the act. The Court also dismissed the objection that the search had been conducted at the wrong premises, finding that it was plausible that the warrant mistakenly recorded “17” instead of “P. 17,” either through a bona-fide clerical error or an honest mistake by the party. In fact, the account books and other documents were discovered at P. 17, the premises that were raided. The Court observed that slightly different tests have been laid down in previous cases to interpret the scope and meaning of the words used in section 197 of the Code.

In this matter, the Court explained that the expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” differs only in wording and not in substance. The offence charged must have some connection or relationship with the performance of official duties. The Court emphasized that a question of sanction under section 197 arises only if the act complained of constitutes an offence; the sole issue to be decided at this stage is whether the act was carried out in the discharge of official duty. Accordingly, there must be a reasonable link between the act and the official duty, even if the act goes beyond what is strictly required for that duty, because questions of excess will be dealt with later during the merits of the trial. The enquiry, therefore, is whether the act and the official duty are so inter-related that it is reasonably possible to suppose that the accused performed the act while executing his official functions, although perhaps exceeding the needs of the situation. The Court quoted the judgment in Hori Ram Singh v. The Crown, where Sulaiman, J. observed that the provision cannot be limited to acts performed directly in pursuance of public office, even if they exceed the duty or are based on a mistaken belief about the existence of such duty, and that it is unnecessary to require the offence to be inseparably connected with the official duty as a part of the same transaction. The Court also cited Varadachariar, J.’s interpretation in the same case, which states that the nature of the complained-of act must attach it to the official character of the person performing it. Supporting this view, the Judicial Committee of the Privy Council, in Gill’s case, held that a public servant may be said to act or purport to act in the discharge of his official duty only if his act lies within the scope of his official duty, and the test may be whether the servant, if challenged, can reasonably claim that he acted in virtue of his office. The Court noted that Hori Ram’s case was later approved in Lieutenant Hector Thomas Huntley v. The King-Emperor, but warned that limiting the test to an act that must be an official act would unduly narrow the protection afforded by section 197 of the Criminal Procedure Code as understood in earlier decisions. The Court further observed that the decision in Meads v. The King does not advance the analysis because it simply adopts the reasoning in Gill’s case. The discussion then turned to two additional authorities, which the Court would consider subsequently.

In this case, the Court referred to the decision in Shreekantiah Ramayya Munipalli v. The State of Bombay, where Justice Bose observed that if section 197 of the Code of Criminal Procedure were interpreted too narrowly, the provision could never be applied, because it was never the duty of an official to commit an offence. He explained that the focus should be on the act rather than the duty, because an official act could be performed either while discharging official duties or in dereliction of them. He further stated that the section possessed substantive content and that its language required a proper meaning. The Court also considered the question of prior sanction as discussed in Amrik Singh v. The State of PEPSU. After a lengthy discussion of the authorities, the Court summarised that sanction under section 197(1) was required only when the acts complained of were so closely linked to the duties of the office that they were inseparable from those duties; however, if the acts had no necessary connection to the performance of those duties and the official status merely provided the occasion or opportunity for the acts, then no sanction was needed. From this discussion, the Court concluded that a reasonable connection must exist between the act and the discharge of official duty, and that the act must bear such a relation to the duty that the accused could make a reasonable, though not pretended or fanciful, claim that it was performed in the course of his duty. The relevant authorities cited included (1) [1939] F.C.R. 159,178, (2) [1944] F.C.R. 262, (3) [1948] L.R. 75 I.A. 185, (4) [1948] L.R. 75 I.A. 41, (5) [1955] 1 S.C.R. 1177, 1186, and (6) [1955] 1 S.C.R. 1302, 1307, 1308.

The Court then examined whether the need for sanction should be considered as soon as a complaint was lodged and based on the allegations contained therein. At first glance, it appeared that some support for an early view existed in Hori Ram’s case and in Sarjoo Prasad v. The King-Emperor, where Justice Sulaiman had remarked that because the prohibition was directed against the institution itself, its applicability must be judged at the earliest stage of the institution. Justice Varadachariar likewise stated that the question had to be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. However, a careful reading of the later portions of their judgments showed that they did not intend to lay down such a proposition. Justice Sulaiman, at page 179, referred to the prosecution case as disclosed by the complaint or police report and concluded with the observation: “Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground.” The other learned judge also stated at page 185, “At this stage we”

In this case the Court observed that the only issue to be examined was whether the allegations made against the appellant, or the facts that the prosecution intended to prove, concerned acts that were performed or claimed to be performed by him while carrying out his official duties. The Court affirmed that this inquiry was mandatory. It noted that the question of relevance could arise at any point during the proceedings. The original complaint might fail to state that the alleged offence was committed in the discharge of official duty, yet later discoveries—whether arising from a police investigation, a judicial inquiry, or evidence presented at trial—could reveal that a sanction was required. Consequently, the necessity for sanction might have to be assessed at various stages, and the need for such sanction could become apparent as the case advanced.

The Court further declined to accept the argument advanced by the appellants, cited in (1) [1945] F.C.R. 227, which relied on counsel Mr Isaacs’s extreme position that when a lawful and authorized search encountered obstruction or resistance, the officers conducting the search possessed no authority to remove the obstruction by reasonable force, and that their only recourse was to call the police or approach a magistrate with a complaint. The Court found that such a view would obstruct the proper performance of official duties and would defeat the purpose of the search, for books or other items could be concealed or destroyed during any delay, and it would encourage resistance to lawful actions. The Court acknowledged that, on occasion, more than reasonable force might be employed to clear an obstruction, but such excess would be a matter for inquiry during the trial and would not render the act of removal illegal. The Court expressed doubt that Chapters V and VII of the Criminal Procedure Code exhaustively listed all powers of a search party. Moreover, it observed that section 6, sub-section (9) of the Investigation Commission Act limited the application of search provisions to the extent they could be applied. The Court considered the two English authorities cited—Jones v. Owen, which held that the power to apprehend a person for a statutory offence did not include a power to move that person aside, and Hatton v. Treeby, which dealt with an Act that created a new offence without granting a power of detention—to be of little assistance. The Court concluded that when a statute confers a power or imposes a duty and does not expressly restrict the manner of exercising that power, it is reasonable to infer that the power includes the authority to take all acts or employ all means that are reasonably necessary to execute the duty. This principle would apply in the exercise of official powers, even if obstruction or resistance is encountered.

The Court held that whenever a person exercising a statutory power encounters improper or unlawful obstruction or resistance, the law authorises the use of reasonable means to remove that obstruction, a principle supported by the authorities cited in (1) [1823] L.J. Reports (K.B.) 139; 2 D. R. 600 and (2) [1897] L.R.2 Q.B.D. 452. This position aligns with common sense and does not contravene any established principle of law. The Court further quoted Broom’s Legal Maxims, 10th Ed., page 312, stating: “It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command.” Assuming, for the sake of argument, that the counsel’s contention was correct, the Court noted that the accused could still argue that their actions were performed in the discharge of their official duty. Although the belief that they had a right to eliminate the obstruction on the spot, by restraining or removing the complainants, might be mistaken, it could not be said that their conduct was necessarily malicious or wholly detached from the execution of their duty. The accused could reasonably claim that their conduct was undertaken in virtue of their official responsibilities, irrespective of whether that claim would ultimately be upheld. The Court observed that, even when reading the complaints alone, without the detailed testimony presented at the judicial inquiries, the alleged assault and use of criminal force appeared directly linked to the performance of the officials’ duties. Consequently, the Court regarded the matter as an obvious case for sanction. The injuries recorded—a few abrasions and a swelling on Nandram Agarwala and two bruises on Matajog—were described as the result of a scuffle that likely arose during angry protests against a search, when protestors were pushed aside to allow the search to continue unimpeded. The counsel also pointed out that the fourth accused, Nageswar Tewari, a constable, should at least have faced prosecution. This issue arose only in Nandram Agarwala’s case. The magistrate who dismissed the complaint had held that proceeding against him alone would be futile, as the principal attack was directed at the Income-Tax officials. No such grievance was raised before the High Court, nor was it included in the special leave petition. Accordingly, the Court affirmed that the High Court’s orders were correct and dismissed the two appeals.