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PETITIONER: K.N.SHUKLA

       Vs.

RESPONDENT: NAVNIT LAL MANILAL BHAT AND ANR.

DATE OF JUDGMENT: 15/12/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. RAO, K. SUBBA (CJ) SHAH, J.C. SIKRI, S.M. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1331            1967 SCR  (2) 290

ACT:      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.

HEADNOTE:      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 prosecuting him, 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

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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. [1943] 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

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 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, for appellant. 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 1963. 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  dis- charge  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

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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  time-               scale 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

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             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 1728. 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 effect :                "Promotions   to  gazetted   posts.-(I)   All               substantive  promotions to  Railway  Services,               Class 1, shall be made by the President.                (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.

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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 into- force 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

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              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  administ- ration  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

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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 Goverment 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. V.P.S. (1) [1943] F.C.R.7. 298