K.N.Shukla Vs. Navnit Lal Manilal Bhat
& ANR  INSC 265 (15 December 1966)
15/12/1966 RAMASWAMI, V.
RAO, K. SUBBA (CJ) SHAH, J.C.
CITATION: 1967 AIR 1331 1967 SCR (2) 290
Code of Criminal Procedure (Act 5 of 1898),
s. 197--Class II railway officer officiating as Class I officer--Private
complaint against him under ss. 166 and 167 I.P.C.--Sanction of Central
Government, if necessary.
Railway Board, if different from Central
Government--Maxim, qui facit per alium facit per se, scope of.
The appellant was holding a substantive post
as a Class II officer of the Western Railway. He was promoted to an officiating
position as a Class I officer by the General Manager, with the approval of the
Railway Board, as per r. 134 of the Indian Railway Establishment Code. While he
was officiating in that post, a private complaint was filed against him for
offences under ss. 166 and 167, I.P.C.
On the question whether sanction of the
President of India was necessary under s. 197, Criminal Procedure Code, for
HELD : The appellant was not a public servant
who was "not removable from his office save by or with the sanction of the
Central Government" within the meaning of the section and, therefore, such
sanction was not necessary. [292 C; 296 G-H] (1) A Railway officer who merely
officiates in Class I cannot be said to belong to that Class within the meaning
of Item I of Schedule 11, referred to in r. 1729 of the Discipline and Appeal Rules
for Gazetted ,Officers (Indian Railway Establishment Code). He continues to be
a Class II officer who could. be removed from his office with the sanction of
the Railway Board. [294 F-G] (2) Section 2 of the Railway Board Act, 1905,
indicates that the Railway Board is an entity separate from the Central
Government and that the powers of the Board are derived by delegation, either
absolutely ,or subject to conditions, by the Central Government. Therefore, the
Railway Board is not a part of the Central Government. [296 E-F] (3) The
appellant could not be deemed to be removable only by or with the sanction of
the Central Government on the basis of the maxim qui facit per alium facit per
se. For, once the Central Government has delegated its power to the Railway
Board with regard to the appointment and removal of a public servant, then, for
the purpose of s. 197, Cr.P.C., the public servant concerned will not be
treated as one "not removable from his office except by or with the
sanction of the Central Government." [297 A-C] Afzalur Rahman v. The King.
 F.C.R. 7, applied.
(4) The Note to r. 1704, and r. 1705, would
not apply to the appellant, as the first applies only to non-gazetted officers,
and the second came into force on 1st August 1961, after the complaint against
him was filed. [295 B, D] 291
CRIMINAL APPELLATE JURISDICTION : Criminal
44 of 1965.
Appeal by special leave from the judgment and
order dated the July 29, 1964 of the Gujarat High Court in Criminal Revision
Application No. 386 of 1963.
B. Sen R. Ganapathy Iyer and R. H. Dhebar,
M. K. Ramamurthi, for respondent No. 1.
R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from the judgment of
the High Court of Gujarat dated July 29, 1964 in Criminal Revision No. 385 of
On March 14, 1961 respondent No. 1 filed a
complaint against the appellant who was officiating in the post of Divisional
Operating Superintendent, Western Railway, Rajkot. It was alleged in the
complaint that the appellant had committed offences under ss. 166, 167 and 182,
Indian Penal Code. The appellant objected before the trying Magistrate that the
complaint under s. 182, Indian Penal Code by a private person was barred under
s. 195(1)(a) of the Code of Criminal Procedure and that as the alleged acts of
the appellants were said to be done in his official capacity and in discharge
of his official duty and as the appellant was a public servant not removable
from his office save with the sanction of the Central Government, the complaint
was not maintainable in the absence of sanction of Central Government under s.
197 of the Criminal Procedure Code and the Magistrate was not competent to take
cognizance of the offences under ss. 166 and 167, Indian Penal Code. The
objections were overruled by the Judicial Magistrate, First Class, Mehsana by
his order dated October 14, 1961. The appellant took the matter in revision to
the Sessions Judge of Mehsana who referred the matter to the High Court on
January 31, 1962. In Criminal Reference No. 14 of 1962 the High Court ordered
that the complaint under s. 182, Indian Penal Code was bad being in
contravention of the provisions of s. 195, Criminal Procedure Code, but the High
Court directed the trial court to decide in the first instance whether the
appellant was not removable from his office save with the sanction. of the
Central Government. Thereafter the Judicial Magistrate, First Class, Mehsana,
by his order dated February 28, 1963, held that the appellant was not removable
from his office save with the sanction of the Central Government and the
complaint should be rejected because there was no sanction granted under s. 197
of the Criminal Procedure Code. The first respondent preferred a revision
petition 292 before the Sessions Judge of Mehsana who dismissed it and
confirmed the order of the Judicial Magistrate, First Class, Mehsana. The first
respondent took the matter in revision to the High Court in Criminal Revision No.
385 of 1963. By its order dated July 29, 1964 the High Court held that the
appellant being an officiating Class I Officer was removable by the Railway
Board and no sanction of Central Government was necessary to prosecute the
appellant as contemplated by s. 197 of the Criminal Procedure Code. The High
Court accordingly directed that the case under ss. 166 and 167, Indian Penal
Code should proceed against the appellant.
The question presented for determination in
this appeal is whether the appellant was, at the date of the complaint i.e.,
March 14, 1961, a public servant "who was not removable from his office
save by or with the sanction of the Central Government" within the meaning
of s. 197 of the Criminal Procedure Code and, therefore, whether sanction of
Central Government was necessary for prosecuting the appellant of the offences
under ss. 166 and 167 of the Indian Penal Code.
It is not disputed that on the material date
the appellant was, officiating in the senior scale as Class I Officer in the Transportation
(Traffic & Commercial) Department of the Western Railway. It is also not in
dispute that the appellant was holding a substantive post as Class 11 Officer,
though he was officiating as Class I Officer on March 14, 1961. The question to
be considered is whether, on the material date, the appellant was not removable
from his office save by the sanction of Central Government within the meaning
of s. 197 of the Criminal Procedure Code. Under s.
3(8)(b) of the General Clauses Act
"Central Government" shall in relation to anything done or to be done
after the commencement of the Constitution, mean the President. Rule 1728 of
Discipline and Appeal Rules for Gazetted Officers (Indian Railway Establishment
Code Vol.I) reads as follows "1728. The following penalties may, for good
and sufficient reasons and as hereinafter provided, be imposed upon members of
the Railway Services, Classes I and II, namely (i) Censure.
(ii) Withholding of increments or promotion,
including stoppage at any efficiency bar.
(iii) Reduction to a lower post or timescale
or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part
of any pecuniary loss caused to Government by negligence or breach of orders.
293 (v) Suspension.
(vi) Removal from the civil service of the
Government which does not disqualify from future employment.
(vii) Dismissal from the civil service of the
Government which ordinarily disqualifies from future employment.
Rule 1729 states "Subject to the
provisions of the rules in this Section the President may impose any of the
penalties specified in Rule 1728 on any person belonging to a Railway Service,
Class I or II, and the authorities specified in column 3 of Schedule II
appended to the rules in this chapter may impose the penalties specified in
column 4 on the classes of railway servants shown in the column 2 of that
Schedule." The relevant part of Schedule II provides as follows :
"Item Name of service Punishing
Penalties No.. of post authority (1) (2) (3) (4)
1. Railway Services, The Railway In the case
of persons Class I. Board appointed to a Railway service class I Railway
Service, before 1st April,1937, the penalty specified in clauses Class 1,
before clause (i)and in the case of others the penalities specified in clause
(i) to (v) of Rule 1728 penalties specified in clause (i), to (vii) of Rule
2. Railway service Class II Rules 124 to 130
of the Indian Railway Establishment Code, Vol. 1 deal with Recruitment and
Promotion to Gazetted posts. Rule 124 provides that all first appointments to a
Railway Service, Class 1, shall be made by the President.
Rule 132 provides that all first appointments
to the Railway Services, Class II, shall be 294 made by the Railway Board. The
relevant part of Rule 134 which deals with promotions is to the following
"Promotions to gazetted posts.-(I) All
substantive promotions to Railway Services, Class 1, shall be made by the
(2) Substantive promotions to the Lower
Gazetted Service and to the Assistant Accounts Officers' grade shall be made by
the Railway Board.
(3) The General Manager may appoint(a) (b) an
officer of the Class II Service to officiate in the District Grade or as Senior
Accounts Officer for a continuous period not exceeding one year on each
occasion, when circumstances warrant such a course (e) except for the first
time, an officer of a Railway Service, Class 1, to officiate as a Divisional
Superintendent (or Divisional Trans portation Superintendent on the Great
Indian Peninsula Railway), if the vacancy is not likely to exceed eight months;
It is apparent from these Rules that if a
substantive promotion is made from Class II to Class I it is done by the
President, but officiating appointments are to be made by 'the General Manager,
and in some cases with the approval of the Railway Board. Exhibits 22, 23 and
24 which are the copies of the appointment orders of the appellant also show
that he was promoted to Class I by the General Manager with the approval of the
Railway Board. It is also apparent that a Railway Officer who merely officiates
in Class I cannot be said to belong to Class I within the meaning of item I of
Sch. II. It follows therefore that the appellant was removable from his office
with the sanction of the Railway Board and the sanction of the President is not
necessary for taking such action against the appellant.
On behalf of the appellant Mr. Sen relied
upon the Note to Rule 1704 which deals with 'Authorities Competent to impose
Penalties' on non-gazetted staff. The note states :
"The authority empowered to impose
penalties on a railway servant officiating in a higher post shall be determined
by the post held by the railway servant at the time when the penalty is imposed
and a non-gazetted railway servant officiating in a gazetted post at the time
of imposition 295 of a penalty shall be treated in accordance with the rules
applicable to a railway servant holding the gazetted post in a substantive
capacity." But this note applies to the cases of non-gazetted officers and
is of no assistance to the appellant. If the authorities framing the rules
intended that the same provision should apply in the case of' gazetted officers
also there was no reason why a similar explanation. was not provided to Rule
1729. Mr. Sen also referred to Rule: 1705 of the New Rules which came intoforce
on August 1, 1961.
and which provided as follows :
"The competent authority in the case of
a railway servant officiating in a higher post, shall be determined with
reference to the officiating post held by him at the time of taking
action." It is obvious that this Rule cannot apply to the appellant as it
came into force much later than March 14, 1961 which is the material date in
determining the question regarding the need for sanction.
We proceed to consider the next contention of
the appellant that even if the Railway Board was the authority competent to
remove the appellant from service, the Railway Board was part and parcel of the
Ministry of Railways of the Central Government and therefore in the eye of law
the Railway Board must be deemed to be the "Central Government" for
the purpose of s. 197 of the Criminal Procedure Code. In support of this
argument Mr. Sen referred to the Allocation of Business Rules, 1961 made by the
President under cl. (3) of Art. 77 of the Constitution. Item 15 of the First
Schedule is 'Ministry of Railways (Railway Board).' Mr. Sen also referred to
para 201 of the Indian Railway General Code which states "The existing
enactments regulating the construction and operation of railways in India are
the Indian Tramways Act of 1886 and the Indian Railways Act of 1890 as amended
from time to time. Subject to the provisions of these enactments, the executive
authority in connection with the administration of railways, vests in the
Central Govt. In virtue of the delegation made under section 2 of the Indian
Railway Board Act of 1905, all the functions and powers of the Central
Government, under certain sections of the Indian Railways Act of 1890, are
exercised by the Railway Board." Para 205 reads as follows "The
Railway Board is to function as a corporate body, and as a corporate body is
responsible to advise the Minister on all major questions of Railway policy.
296 Major and policy issues are, therefore,
to be submitted to the Minister with the recommendations of the Board. Other
questions may be submitted to the Minister for his information or orders by
individual members." Reference was also made to s. 2 of the Indian Railway
Board Act, 1905 (Act No. IV of 1905) which states :
"2. Investment of Railway Board with
powers under Indian Railways Act, 1890.-The Central Government may, by
notification in the official Gazette, invest the Railway Board, either
absolutely or subject to conditions,(a) with all or any of the powers or
function of the Central Government under the Indian Railways Act, 1890, with
respect to all or any railways,and (b) with the power of the officer referred
to in section 47 of the said Act to make general rules for railways
administered by the Government." It was argued by Mr. Sen that the Railway
Board is vested with the powers of Central Government in respect of
administration of Railways and therefore it must be taken that the Railway
Board itself is a part of Central Government. We are unable to accept this
argument as correct. It is true that many important powers and functions of the
Central Government in respect of administration of the Railways are exercised
by the Railway Board, but it does not follow that the Railway Board is
exercising those powers in their own right as part of the Central Government.
On the other hand, s. 2 of the Railway Board Act, 1905 itself indicates that
the Railway Board is an entity which is separate from the Central Government
and the powers of the Railway Board are derived as a matter of delegation
either absolutely or subject to conditions by notification by the Central
Government. In other words, the Railway Board is a separate body which derives
its powers and authority however wide they may be only because of delegation of
powers from the Central Government in respect of the administration of the
Railways. The result therefore is that the appellant was appointed in an
officiating position as Class I Officer by the Railway Board and therefore he
was removable by the Railway Board and not by the Central Government. It cannot
be said in the circumstances that the appellant was one of those public
officers who could be removed only by or with the sanction of t he Central
Government within the meaning of s. 197, Criminal Procedure Code.
It was suggested on behalf of the appellant
that even if the Railway Board had power to remove the appellant from his
office 297 and even if it was acting under the powers delegated to it, the
principle of the maxim qui facit per alium facit per se applies to the case and
the appellant must be deemed to be removable only by or with the sanction of
the Central Government within the meaning of s. 197 of the Criminal Procedure
Code. We do not think there is any substance in this argument. If once the
Central Government has delegated its power to another authority with regard to
appointment and removal of a public servant, then for the purpose of s. 197,
Criminal Procedure Code the public servant concerned will not be treated to be
a public servant "not removable from his office except by or with the
sanction of the Central Government". within the meaning of that section. A
similar argument was advanced in Afzalur Rahman v. The King Emperor etc.(1) in
which it was held that a police officer who could be dismissed by the Deputy
Inspector-General of Police under the statutory rules and regulations was not a
person in "not removable from office except by or with the sanction of the
Provincial Government" within the meaning of s. 197 of the Criminal
Procedure Code and that sanction under that section was not, therefore,
necessary for prosecuting such an officer for an offence alleged to have been
committed by him. Varadachariar, J. speaking for the Federal Court in that case
observed that the provisions of s. 24 1 (1)(b) and s. 240(2) of the Government
of India Act must also be understood in the light of the practice prevailing in
India under which the power to appoint and dismiss particular classes of
officers is vested in particular authorities. Otherwise there is the danger of
our ignoring the policy of the Legislature in limiting the class of officers
entitled to this protection and of making s. 197, Criminal Procedure Code
available to all public officers. We accordingly reject the argument of the
appellant on this aspect of the case.
For the reasons already expressed we hold
that the decision of the Gujarat High Court is correct and this appeal must be
dismissed Appeal dismissed.
(1)  F.C.R.7.