# MATAJOG DOBEY v. H. C. BHARI

- **Citation:** [1955] 2 S.C.R. 925
- **Court:** Supreme Court of India
- **Decided:** 1952-07-04
- **Bench:** S. R. DAs, AcT!NG C.J, VIVIAN BosE, Jagannadhadas, Jafer Imam, Chandrasekhara A1Yar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/matajog-dobey-v-h-c-bhari-1270
- **Pages:** 14

## Headnote

Constitution of India, Art. 14--Criminal Procedure Code (Act
V of 1898), s. 197-Whether ultra vires the Constitution-Sanction
undr:r s. 197-Reasonable connection between the act and discharge of
Official duty-Need for sanction-When to be considered-Power conferred or duty imposed-Implies power of employing all means for
execution thereof.
1n pursuance of a search warrant issued under s. 6 of the Taxa-
'tion on Income (Investigation Commission)
Act,
1947 authorising
four Officials to search two premises in Calcutta,
they went there
and forcibly broke open the entrance door of a flat in one case and
the lock of the door of a room in the other case.
On being challenged by the darwan and the proprietor of the respective premises
they were alleged to have tied the darwan with a rope, causing him
injuries and to have
assaulted
the
proprietor mercilessly with the
help of two policemen and kept him in a lock up for some hours.
Two separate complaints-one by the darwan and the other by the
proprietor-under ss. 323, 342, etc., of the Indian Penal Code were
instituted before two different Magistrates.
The common question
for determination in both the complaints was whether under the
circumst:rnces sanction was necessary
under s. 197 of the
Code of
Criminal Procedure.
Held that sa.nction was necessary as the assault and the use of
criminal force related to the performance of the official duties of the
accused within the meaning of s. 197 of the Code of Criminal Procedure.
Art. 14 does not render s. 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against
another is based on a rational classification.
A discretionary power is not necessarily a discriminatory power
and abuse of power is not easily to be assumed where the discretion
is vested in the Government and not in a minor official.
In the matter of grant of sanction under s. 197 of the Code of
Criminal Procedure, the offence alleged to have
been committed by
the accused must have something to do, or must be related in some
manner, with the discharge
of official duty.
In other words there
must be a reasonable connection between the act and the discharge
-0f official duty ; the act must bear such relation to the duty that the
1955
Octohr 31
1955
MoJajoz Dobey
v.
H.C. Bhari
926
SUPREME COURT REPORTS
[1955}
accuserl could lay a reasonable claim, but not a pretended or fanciful
claim, that he did it in the course of the performance of his duty.
The need for sanction under s. 197 of the Code of Criminal
Procedure is
not
necessarily
to be
considered
as soon as the
complaint is lodged and on the allegations therein contained. The
question may arise at any stage of the proceedings. The complaint
may not disclose that the act constituting the offence was done orpurported to be done in the discharge of official
duty ;
but facts
subsequently coming to light on a police or judicial inquiry, or even
in the course of the prosecution evidence at the trial, may establish
the necessity for sanction.
Whether sanction is necessary or not
may have to be determined from stage to stage. The necessity may
reveal itself in the course of the progress of .the case.
Where a power i!;
conferred or a duty imposed by statute or
otherwise, and there is nothing said expressly inhibiting the exercise
of the power or the performance of the duty by any limitations or
restrictions, it is reasonable to hold that it carries with it the power
of doing all such acts or employing such means as arc reasonably
necessary for such execution, because 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 .
. Gill and another v. The King, (1948) L.R. 75 I.A. 41, Hori Ram
Singh v. The Crown, (1939) F.C.R. 159, 178, Albert West Meads v.
The King, (1948) L.R. 75 I.A.
185, Lieutenant Hector Thomas
Huntley v. The King-Empero1·,
(1944)
F.C.R. 2

## Text

2S.C.R.
SUPREME COURT REPORTS
MATAJOG DOBEY
v.
H. C. BHARI
(WITH CONNECTED APPEAL)
925
[S. R. DAs, AcT!NG C.J., VIVIAN BosE, JAGANNADHADAS, JAFER IMAM and CHANDRASEKHARA A1YAR JJ.]
Constitution of India, Art. 14--Criminal Procedure Code (Act
V of 1898), s. 197-Whether ultra vires the Constitution-Sanction
undr:r s. 197-Reasonable connection between the act and discharge of
Official duty-Need for sanction-When to be considered-Power conferred or duty imposed-Implies power of employing all means for
execution thereof.
1n pursuance of a search warrant issued under s. 6 of the Taxa-
'tion on Income (Investigation Commission)
Act,
1947 authorising
four Officials to search two premises in Calcutta,
they went there
and forcibly broke open the entrance door of a flat in one case and
the lock of the door of a room in the other case.
On being challenged by the darwan and the proprietor of the respective premises
they were alleged to have tied the darwan with a rope, causing him
injuries and to have
assaulted
the
proprietor mercilessly with the
help of two policemen and kept him in a lock up for some hours.
Two separate complaints-one by the darwan and the other by the
proprietor-under ss. 323, 342, etc., of the Indian Penal Code were
instituted before two different Magistrates.
The common question
for determination in both the complaints was whether under the
circumst:rnces sanction was necessary
under s. 197 of the
Code of
Criminal Procedure.
Held that sa.nction was necessary as the assault and the use of
criminal force related to the performance of the official duties of the
accused within the meaning of s. 197 of the Code of Criminal Procedure.
Art. 14 does not render s. 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against
another is based on a rational classification.
A discretionary power is not necessarily a discriminatory power
and abuse of power is not easily to be assumed where the discretion
is vested in the Government and not in a minor official.
In the matter of grant of sanction under s. 197 of the Code of
Criminal Procedure, the offence alleged to have
been committed by
the accused must have something to do, or must be related in some
manner, with the discharge
of official duty.
In other words there
must be a reasonable connection between the act and the discharge
-0f official duty ; the act must bear such relation to the duty that the
1955
Octohr 31
1955
MoJajoz Dobey
v.
H.C. Bhari
926
SUPREME COURT REPORTS
[1955}
accuserl could lay a reasonable claim, but not a pretended or fanciful
claim, that he did it in the course of the performance of his duty.
The need for sanction under s. 197 of the Code of Criminal
Procedure is
not
necessarily
to be
considered
as soon as the
complaint is lodged and on the allegations therein contained. The
question may arise at any stage of the proceedings. The complaint
may not disclose that the act constituting the offence was done orpurported to be done in the discharge of official
duty ;
but facts
subsequently coming to light on a police or judicial inquiry, or even
in the course of the prosecution evidence at the trial, may establish
the necessity for sanction.
Whether sanction is necessary or not
may have to be determined from stage to stage. The necessity may
reveal itself in the course of the progress of .the case.
Where a power i!;
conferred or a duty imposed by statute or
otherwise, and there is nothing said expressly inhibiting the exercise
of the power or the performance of the duty by any limitations or
restrictions, it is reasonable to hold that it carries with it the power
of doing all such acts or employing such means as arc reasonably
necessary for such execution, because 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 .
. Gill and another v. The King, (1948) L.R. 75 I.A. 41, Hori Ram
Singh v. The Crown, (1939) F.C.R. 159, 178, Albert West Meads v.
The King, (1948) L.R. 75 I.A.
185, Lieutenant Hector Thomas
Huntley v. The King-Empero1·,
(1944)
F.C.R. 262, Shreekantiah
Ramayya 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,
/ones v. Owen,
(1823) L.J. Reports (K.B.) 139 and Hatton v. Truby. (1897) L.R. 2
Q.B.D. 452, referred to.
CRIMIN AL
APPELLATE
f URISDICTION :
Criminal
Appeals Nos. 67 and 68 of 1954.
Appeal by Special Leave from the Judgment and
Order dated the 4th July 1952 of the Calcutta High
Court in Criminal Revision No. 312 of 1952 arising
out of the Order dated the 12th March
1952 of
the
Court of Presidency Magistrate at Calcutta m Case
No. C/2867 of 1950.
S. C. Isaacs ( C. P. Lal with him) for the
!ant in both appeals.
C. K. Daphtary,
Solicitor-General ofi India
A. Mehta and P. G. Gokhale with him) for the
dents in both appeals.
appel-
(Porus
respon-
1S.C.R.
SUPREME COURT REPORTS
927
1955. October 31. The Judgment of the Court
was delivered by
CttANDRASEKHARA
A1YAR J .-These
appeals
come
before us on special leave to appeal granted under
article 136 of the Constitution against two orders of
the Calcutta High Court dismissing Criminal Revision
Petitions Nos. 559 of 1951
and 312- of 1952 preferred
by the appellants respectively.
In Criminal Revision Petition No. 559 of 1951, the
High Court (Harries, C.J. and Banerjee, J.) confirmed
.an order made by a Presidency Magistrate discharging
the accused on the ground of want of sanction under
·section 197, Criminal Procedure Code.
In Criminal Revision Petition No. 312 of 1952, Lahiri
;and Guha, JJ. set aside an order made by another
Presidency Magistrate that no sanction was required
and they quashed the proceedings against the accused.
The incidents which gave rise to the two complaints
are closely
inter-related
and
can be
set out briefly.
In connection with certain proceedings pending before the Income Tax Investigation Commission it was
found
necessary
to search
two premises-17, Kalakar Street and 36,
Armenian
Street to inspect,
take
copies and secure possession of certain books, papers
and documents believed
to be in them. A warrant was
issued
by the Commission for this purpose in favour
of four persons, namely, H. C. Bhari, A. D. De, A. K.
Bose and P. Mukherjee, to carry out the search.
The authorised officials went to the Kalakar Street
premises, third floor on the morning of December
1950.
Matajog Dobey,
(Appellant in
Criminal Appeal No. 67), the darwan of Kashiram Agarwala, says
that when he found
them forcibly breaking open the
entrance door of the flat he challenged them and requested them to desist. They paid no heed to him,
broke open the door, went inside and interfered with
some boxes and drawers of tables. They tied
him
with a rope and assaulted him causing injuries. On
these facts, he filed a complaint on 27-12-1950 against
H.C. Bhari and three others (names unknown) under
sections 323, 341, 342 and 109, Indian Penal Code.
1955
Matajog Do61.1
v.
H.C. Bhari
1955
Molqjog Dobf!!
v.
H.C. Bhari
Clumdraukhara
.diJ'M J.
928
SUPREME COURT REPORTS
[1955}
The four officials and some policemen raided the
Armenian
Street
premises
on
the
evening
of
26-12-1950.
Nandram Agarwala
(father of Kashiram
Agarwala) came to the place and found that they had
forcibly opened the lock of the door of the room in
which there were several books and papers, which
they were collecting and packing into bundles for removal. He protested, pointed out that their actions
were illegal and oppressive,
and he wanted a proper
search list to be prepared and proper receipts to be
given to him for the books and documents sought te>
be seized
and removed.
Thereupon,
rwo
policemen
held
him down and he
was
assaulted
mercilessly,
kicked, dragged downstairs, put in a police van, and
taken to the Burra Bazar thana, where he was assaulted again before being sent to the hospital. He
was brought back and kept in
the lock up till midnight when he was released on bail. Setting out these
facts,
he looged a complaint against the four officials,
other subordinates and police officers whose names he
did not
then know but could supply later. The
offences
mentioned
in the complaint are sections 323,
342 and 504, Indian Penal Code. Later, the names e>f
two police
officers
were
given-Bibhuti Chakravarti
and Nageswar Tiwari.
The two complaints were sent over for judicial inquiry to two
different magistrates.
On 21-2-1951,
the
magistrate held on Agarwala's complaint that a prima
facie case
had . been
made out under section
323
against all the four accused and under section 342
against the two policemen. On this report, summonses
were directed to issue under section 323 against all the
accused.
On 1-5-1951, two prosecution witnesses were
examined in chief and the case stood adjourned to
22-5-1951.
It was
on this
latter
date
that the
!st
accused Bhari filed a petition, taking the objection of
want of sanction under section 197, Criminal Procedure Code. The objection was uphdd and all the
accused discharged on 31-5-1951.
Nandram
Agarwala
went up to the High Court in revmon, but the order
of the Presidency Magistarte was affirmed.
In Matajog Dobey's complaint, after the termina-
2S.C.R.
SUPREME COURT REPORTS
929
tion of the inquiry, process was issued .only against
Bhari under sections
323 and 342, Indian Penal Code
for
22-12-1951.
After
some
adjournments, accused
filed on 26-2-1952 a petition as in the other case rais.-
ing the same objection. The magistrate on whose
fiie the case was pending overruled the objection and
directed that the ,case should proceed. Accused
Bhari
took the matter on revision to the High Court and
succeeded.
In Nandram Agarwala's case
(Criminal Revision
Petition No. 559 of 1951)
Chief Justice Harries and
Banerjee, J. held that the test formulated by the Privy
Council in Gill's case(1) applied and that on a fair
reading of the complaint, bereft of exaggerations
and
falsehoods,
the
officers could reasonably
claim that
what they did was done by them in the exercise of
their official duty. In Matajog Dobey's case (Criminal
Revision Petition No. 312 of 1952), the learned Judges
(Lahiri and Guha, JJ.) came to the same conclusion
in these words : "From the nature of the allegations
therefore
against
the
petitioner, it is
abundantly
clear that there was · something in the acts alleged
against
him
which
attached
them
to
the official
character of the petitioner, that is, which attached
them to his official
character in holding the search".
Mr. Isaacs, learned counsel for the appellants in the
two appeals,
challenged the soundness of
these
conclusions
and advanced
three
categorical
contentions.
on their behalf. Firstly, an
act
of
criminal assault
or wrongful confinement can never be regarded as an
act done while acting or purporting to act in the discharge of official duty ; secondly, that in a case where
the duty is clearly defined by statute and warrant of
authority, such acts could never come within the scope
of employment ; and thirdly, that in any case it was
the duty of the court to allow the prosecution to
proceed and not stifle it in limine. He also urged
that as the entry on the 23rd December was into a
wrong place, P-17, Kalakar Street, and not 17, Kalakar
Street which was the authorised
premises,
the search
was illegal from the commencement. He raised the
(l) [1948) L.R. 75 I.A. 41.
1955
Motsjot Dobt'.;
v.
H.C. IJMri
1955
Matajog Dobey
v.
H. C. Bhari
C!iandra.rtkhara
.A.iJar ].
930
SUPREME COURT REPORTS
[ 1955]
constitutiona:. point that
on Income (!Pvestigation
1947)
and section
197,
ultra vires, as they were
and offenJed article 14 of
section 5 ( 1) of . the Taxation
Commission)
Act (XXX of
Criminal ProceJure Code were
discriminatory in their nature,
the Constitution .
In the course of his arguments, he referred to section 6 sub-sections (7) and (9) of the Taxation on Income (Investigation Commission)
Act
(XXX of 1947)
and rule 10 and the search warrant that was issued
under them. His main argument was that there was
no power conferred by statute or under common law
on the authorised officials
to assault or use force in
the execution of their duty and any
such
acts
must
therefore
be deemed to be entirely outside
the scope
of their employment.
He drew our attention
to
the
sections of the Criminal Procedure Code relating to
searches and quoted
two old English cases to reinforce
this position.
The search warrant is in these terms :
"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
relc\'ant
to procce<lings under the above Act in the cases compendiously known
as
the
S. Jhabbarmull group
(R.
C. No. 313)
and connecteJ cases
have
been kept dnJ
are
to be foun<l
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
tG authorise and require you,
Sri H. C. Bhari,
AuthoriseJ Official,
Income-tax Investigation Commission,
(a) to enter anJ search
with
such agsistance of
police officers as may
be required, the
said premises
-0r any other place or places where you may
have
2S.C.R.
SUPREME COURT REPORTS
931
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".
Straightaway, it may be conceded that the warrant
set out
above
specifies precisely the scope of the
.duties entrusted to the authorised officials. Whether
they took any policemen with them even at the commencement or whether they were only sent for when
resistance
was
offered
is
not clear.
This, however,
.does not matter as the warrant authorises
police
assistance at the search.
The version of the complainants as to what happened
at the search
is set out in the two complaints. The
story of the accused is found in the petitions filed by
Bhari urging the objection under section 197, Criminal
Procedure
Code. Details about the
occurrences
were also elicited at the two judicial enquiries. There
are
two
medical
certificates
specifying
the
injuries
found on Nandram Agarwala and Matajog Dobey.
The minor contentions may be disposed of at the
outset. Even if there was anything sound and substantial
in the constitutional
point about
the
vires
of section 5 ( 1) of the Act, we declined to go into it
as it was· not raised before the High Court or in the
grounds
of
the petition for special
leave to
appeal.
Article 14 does not render section 197, Criminal Procedure Code
ultra vires as the discrimination is based
upon a
rational
classification.
Public servants
have
to be protected from harassment in the discharge
of official duties while ordinary citizens not so engaged
do not require this safeguard. It was argued that
1955
Matajog Dobe_,
y.
H.C. Bhari
Chnndrasekhara
Ajyar J.
19M
Mot<Jo11 Dob,,
v.
H, G. B/ul.ri
CllM4tWtk!orro
Aiyar :J.
932
SUPREME COURT REPORTS
[1955}
section 197, Criminal Procedure Code vested an absolutely arbitrary power . in the government to grant
or withhold sanction at their sweet will and pleasure,
and the legislature did not lay down or even indicate
any guiding principles to control the exercise of the
discretion. There is no question of any discrimination.
between one person and another in the matter of
taking proceedings
against
a public servant for
an
act done or purporting to be done by the public servant in the discharge of his official duties. No one
can take such proceedings without such sanction. If
the Govern,ment gives sanction against one public servant but declines to do so against another, then the
government servant against
whom sanction
is
given
may possibly
complain of discrimination.
But the
petitioners who are complainants cannot be heard to
say so for there is no discrimination as against any
complainant. It has to be borne in mind that a discretionary power
is
not necessarily
a discriminatory
power and that abuse of power is not to be easily
assumed where the discretion
is vested
in the government a!1d not i'1 a minor official. Further, we are not
now concerned with any such question. We have
merely to see whether the court could take cognisance
of the case without
previous sanction and for this
purpose the court has to find out if the act complained against
was committed by the accused
while
acting or purporting to act in the discharge of official
duty. Once this is settled, the case
proceeds or is
thrown out. Whether sanction is to be accorded or
not is a matter for the government to consider.
Theabsolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to
the duty cast on the court, which is the ascertainment of the true nature of the act.
The objection based on entry into the wrong premises is of no substance ; it is quite probable that the
warrant specified 17 instead of P. 17 by a bona fide
mistake or error ; or it may be that the party madean honest mistake.
As a matter of fact,
the account
books, etc., were found in P. 17, the premises raided.
Slightly differing tests have been laid down in the-
2 S.C.R.
SUPREME COURT REPORTS
933
decided cases to aseertain the scope and the meaning
of the relevant words occurring in section 197 of the
Code ; "any offence alleged to have been committed
by him while acting or purporting to act in the discharge of his official duty". But the difference is only
in language and not in substance. The offence alleged
to have been committed must have something to do,
or must be related in some manner, with the discharge of official duty. No question of sanction can
arise
under section 197, unless the act complained of
is an offence ; the only point to determine is whether
it was committed in the discharge of official duty.
There must be a reasonable connection between the
act and the official duty. It does not matter even if
the act exceeds
what is strictly necessary for
the discharge of the duty, as this question will arise
only at
a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the
official
duty are so inter-related that one can
postulate reasonably that it was done by the accused in the
performance
of the official
duty, though possibly in
excess of the needs and requirements of the situation.
In Hori Ram Singh v. The Crown(1), Sulaiman, J.
observes:
"The section cannot be confined to only such acts
a5 arc done by a public servant directly in pursuance
of his public office, though in excess of the duty or
under a mistaken belief as to the existence of such
duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so
inseparably connected with the official
duty as to
form part and parcel of the same transaction".
The interpretation that
found
favour with Varadachariar, J. in the same case is stated by him in these
terms at page 187 : "There must be something in the
nature of the act complained of that attaches it to
the
official
character of
the person doing it".
In
affirming this
view, the Judicial Committee of the
Privy Council observe in Gill's case(s) "A public servant can only be said to act or purport to act in the
discharg~ of his official duty, if l.lis
act
is such as to
(l) f1939] F.G,R. 159, 178.
(2) tl948] L.tl. 7~ I.A. H.
1955
Mattljog Doi#
v
H.C. Bfiari
Chandrasekfttwc
A!Yat' J.
1955
-MtJtajog Dobty
v.
H.C. Bhari
l C Jumdras1khara
A!Jar ].
934
SUPREME COURT REPORTS
[1955]
lie within the scope of his official duty .... 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". Hori Ram's case( 1)
is referred to with
approval in the later case of Lieutenant Hector Thomas
Huntley v. The King-Emperor(') but the test laid down
that it must be established that the act complained
of was an official act appears to us unduly to narrow
down the scope of the protection afforded by section
197 of the Criminal Procedure Code as defined and
understood in the earlier case. The decision in Meads
v. The King(') does not carry us any further ; it adopts
the reasoning in Gill's case(').
There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya
Munipalli v. The State of Bombay('), Bose, J. observes
as follows : "Now it is obvious that if section 197 of
the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no
part of an official's duty to commit an offence and
never can be. But it is not the duty we have to examine so much as the act, because an official act can
be performed in the discharged of official duty as well
as in dereliction
of it. The section has
content and
its language must be given meaning". The question
of previous sanction also arose in Amrik Singh v. The
State of PEPSU('). A fairly lengthy discussion of the
authorities
is followed up with this summary : "If the
acts complained of are so integrally connected with
the duties attaching
to the office
as to be inseparable
from them, then sanction under section 197 (I) would
be necessary ; but if there was
no necessary
connection between
them
and
the
performance
of
those
duties, the official status furnishing only the occasion
·or opportunity for the acts, then no sanction would be
required".
The result of the foregoing discussion is this : There
must be a reasonable
connection between the act
and
the discharge of official duty ; the act must bear such
(I) [1939) F.C.R. 159, 178.
(2) [1944) F.C.R. 262.
(3) [1948] L.R. 75 I.A. 185.
\4! [1948) L.R. 751.A. 41.
(5) [1955] I S.C.R. 1177, 1186.
(6J [1955] l S.C.R. 1302, 1307, 1308.
2S.C.R.
SUPREME COURT REPORTS
935
relation to the duty that the accused could lay a
reasonable,
but not a pretended
or fanciful
claim,
that he did it in the course of the performance of his
duty.
Is the need for sanction to be considered as soon as
the complaint is lodged and on the allegations therein
contained ? At first sight, it seems as though there is
some support for this view in Hori Ram's case and
also in Sarjoo Prasad v. The King-Emperor( 1 ). Sulaiman,
J. says
that as
the
prohibition is against the
institution itself,
its applicability
must be judged
in
the first instance at the earliest stage of institution.
Varadachariar, J. also states that the question must
be determined with reference to the nature of the
allegations made against the public servant in the
criminal proceeding. But a careful perusal of the later
parts of their judgments shows that they did not
intend to lay down any such proposition. Sulaiman, J.
refers
(at page
179)
to the prosecution case
as
disclosed by the complaint or the
police
report and he
winds up the discussions in these words : "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 states
at page 185, "At this
stage we have only to see whether the case alleged
ag:iinst the appellant or sought. to be proved against
him relates to acts done or purporting to be done by
him in the execution of his duty". It must be so. The
question may arise at any
stage
of the proceedings.
The complaint may not
disclose
that
the
act constituting the offence was
done or purported to be done
in the discharge of official duty ; but facts subsequently
coming to light on a police or judicial inquiry or even
in the course of the
prosecution evidence at the
trial,
may
establish
the
necessity
for
sanction.
Whether
sanction is necessary or not may have to be determined from
stage
to stage.
The necessity may reveal
itself in the course of the progress of the case.
\Ve are not prepared to concede in favour of the
(I) [1945] F.C.R. 227.
1955
Matajog Doh.,
v.
H.C. Bhari
Chandrasekhara;
Aryar].
1955
Matajog Dobey
v.
H. C. Bhari
Chandrasekhar a
Ajyar J.
936
SUPREME COURT REPORTS
[1955.]
appellants
the correctness
of the extreme
proposition
advanced by
Mr. Isaacs on their behalf that when
obstruction
is
laid or resistance offered against an
authorised and
therefore
lawful search,
the officials
conducting
the
search
have
no
right
to
remove
or cause to be removed
the
obstruction
or
resistance by the employment of reasonable force, and
their remedy
is only to resort to the police or the
magistracy with a complaint. · Such a view would
frustrate
the
due discharge to the official duty and
defeat the very object of the search, as the books, etc.
might be secreted or destroyed in the interval ; and it
would encourage
obstruction
or
resistance
even
to
lawful acts. It may be that more than reasonable force
is used to clear the obstruction or remove the resistance, but that would be a fit subject-matter for inqmry during the proceedings ; it would not make the
act of removal improper or unlawful. It is a matter for
doubt if
Chapter V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration
of all the powers of a search party. Anyhow, section 6,
sub-section (9) of the Investigation Commission Act
makes
the
provisions relating
to searches
applicable
only "so far as they can be made applicable".
The two English cases relied on are scarcely of any
help. In Jones v. Owen('), a rather startling view was
taken that a power to apprehend a person for a statutory offence did not include a power to move that
person gently aside. Hatton v. Treeby(') was a case
where the Act of Parliament which created a new
offence did not in itself provide for a power of detention of the offender.
Where a power is conferred or a duty imposed by
statute or otherwise, and there
is
nothing said expressly inhibiting the exercise of the power or the
performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with
it the power of doing all such acts or employing such
means as are reasonably necessary for such execution .
. If in the exercise of the power or the performance
(1) (1823) L.J. Reports (KB) 139; 2 D. & R. 600.
(2) (1897] L.R. 2 Q.B.D. 452.
2S.C.R.
SUPREME COURT REPORTS
937
of the official duty, improper or unlawful obstruction
or resistance is encountered, .. there must be the right
to use reasonable means to remove the obstruction or
overcome
the resistance.
This
accords
with
~om
monsense and does not seem contrary to any principle
of law. The true position is neatly stated thus in
Broom's Legal Maxims, 10th Ed., at page 312 : "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".
Let us however assume that Mr. Isaacs is right in
his contention. Still, it can be urged that the accused
could claim that what they did was in the discharge
of their official duty. The belief that they had a right
to get rid of the obstruction then and there by binding down the complaints
or removing them from
the place might be mistaken, but, surely, it could not
be said that their act was necessarily ma/a fide and so
entirely divor.ced from or unconnected with the discharge of their duty that it was an independent
act
maliciously done or perpetrated.
They could reasonably claim that what they did was in virtue of their
official duty, whether the claim is found ultimately
to be well-founded or not.
Reading the complaints alone in these two cases,
even without the details of facts as narrated by the
witnesses at the judicial inquiries, it is fairly clear
that the assault and use of criminal force, etc. alleged
against the accused are definitely related to the performance of their official
duties.
But taken along
with them, it seems to us to be an obvious case for
sanction. The injuries-a couple of abrasions and a
swelling on Nandram Agarwala and two ecchymosis
on Matajog-indicate nothing more
than a
scuffle
which is likely to have ensued when there were angry
protests against the search and a pushing aside of the
protestors so that the search may go on unimpeded.
Mr. Isaacs finally pointed out that the fourth
accused Nageswar Tewari was a constable and the
case should have been allowed to proceed against him
at least. This question arises only in Nandram Agarwala's case. The Magistrate who dismissed the cori1955
Maiqjo6 Dsbf.1
v.
H. C. Bluzri
Clrmldrasiklwa
Ajy"' ].
1955
Matajog Dobey
v.
H. C. B/UJri
Chandrast/chara
Ai1ar ].
1955
938
SUPREME COURT REPORTS
[1955J
plaint took the view that there was no use in proceeding against him alone, as
the main attack was
directed
against
the
Income-Tax
Officials.
No such
grievance was urged, before the High Court and it is.
not raised in the grounds for special leave.
We hold that the orders of the High Court are correct and dismiss these two appeals.
MERLA RAMANNA
fl.
NALLAPARAJU AND OTHERS.
[BHAGWATI,
VENKATARAMA
AYYAR and
B. P. SINHA JJ.1
Court, Pou1er of-Suit to set aside sale held in excessive execution·
of the decree-Afaintainability-Plaint, if may be treated as an execution application-Lin1itation-lnherent jurisdiction of court to whose
jurisdiction the subject-matter of the
decree is
transferred-Failure
to raise objection at the earliest stage-Waiver-Code of Civil Procedure (Act V of 1908), s. 47-lndian Limitation Act (IX of 1908),
Art;. 165, 166, 181.
The appellant \Vas the assignee of a mortgage dated 14-12-1911~
cxec.itcd by A, \.vhich con1prised lands belonging to the mortgagor
and also a mortgage executed by the respondents in
his favour on
19-7-1909.
1"he app..:llant
instituted a suit in the court of the Subordinate Judge of l(akina<la, for the recovery of the arpount due on
the mortgage, dated 14-l~-1911, and prayed for sale of the hypotheca.
1"he respondents were impfcaded as defendants but did not appear.
The s1_1!t \Vas <lccreed ex parte, an<l in execution of the decree, the
propcrtie'> of
th~ respondents, 1nortgage<l to A on 19-7-1909, were
brought t0 saie, an<l pun.:haseJ !:y
the
decree-hol<ler.
The respondents then instituted the present suit in the District Court of East
(~odavari \vhich then had jurisdiction O\'Lr the properties in suit, for
a
declar~uion that the decree obtained by the appellant \Vas fraudulent and inupcrative and could not affect their title. The plaint was
later on a1nended and a prayer added that the properties might be
partitioned and the respondents put in separate possession of their
sb~re. The trial Judge dis1nisscd the suit and the District Court in
appeal affirn1ed his decision. Before the High Court in second appeal
it \Va.s contendL·:l for the first
time that the decree in question did
not di~ect a sale of the mortgaged properties but a sale of the mortgagee's rights under the mortgage deed dated 19~7-1909 and as such
the sale of the properties v.'a::; void.
The High Court having called
for a finding from the
District Court as to what was sold, it was