31 October 1955
Supreme Court


Case number: Appeal (crl.) 67 of 1954






DATE OF JUDGMENT: 31/10/1955


CITATION:  1956 AIR   44            1955 SCR  (2) 925

ACT: Constitution of India, Art. 14-Criminal Procedure Code  (Act V  of  1898), s. 197-Whether ultra vires  the  Constitution- Sanction under 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.

HEADNOTE: In pursuance of a search - warrant issued under s. 6 of  the Taxation  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 circumstances  sanction  was necessary under s. 197  of  the Code of Criminal Procedure. Held that sanction 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 of official duty; the  act must bear such relation to the duty that the 926 accused could lay a reasonable claim, but not a pretended or fanciful  claim,  that  he  did it in  the  course  of  this 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 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. 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, 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. 76 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-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, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal 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  in  Case  No. C/2867 of 1950. S.   C.  Isaacs (C.  P. Lal with him) for the  appellant  in both appeals. C.  K. Daphtary, Solicitor-General of India (Porus A.  Mehta and  P.  G. Gokhale with him) for the  respondents  in  both appeals. 927 1955.  October 31.  The Judgment of the Court was  delivered by CHANDRASEKHARA  AIYAR  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 Kasbiram 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, 928 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 to be seized and removed. Thereupon, two 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  as- saulted  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 lodged  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 of 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 1st accused Bhari filed a petition, taking the objection  of want of sanction under section 197, Criminal Procedure Code.



The objection was upheld and all the accused disc barged  on 31-5-1951.   Nandram Agarwala went up to the High  Court  in revision,  but  the order of the Presidency  Magistrate  was affirmed. In Matajog Dobey’s complaint, after the termina- 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 raising the  same  objection. The magistrate on whose file 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 (1)  [1948] L.R. 75 I.A. 41. 930 constitutional  point that section 5(1) of the  Taxation  on Income  (Investigation  Commission)  Act XXX  of  1947)  and section  197, Criminal Procedure Code were ultra  vires,  as they  were  discriminatory  in their  nature,  and  offended article 14 of 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 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 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 118 932 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 government  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 govern- ment  and not in 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.   The  absolute 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 made an 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 933 decided oases to ascertain 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  as  are 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(1)  "A public servant can only be said to act or purport to act  in the discharge of his official duty, if his act is such as to (1) [1939] F.C.R. 159,178. (2) [1948] L.R. 75 I.A. 41. 934 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 ease of Lieutenant Hector Thomas Huntley v. The King-Emperor(1)  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(1) does not  carry  us  any further; it adopts the reasoning in Gill’s case(1).  There are two cases of this Court to which reference may be made  here.  In Shreekantiah Ramayya Munipalli v. The  State of  Bombay(1),  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 discharge 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(6).  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(1) 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 (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. (6)  [1955] 1 S.C.R. 1302, 1307, 1308. 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 discussion  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 against 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. We are not prepared to concede in favour of the (1)  [1945] F.C.R. 227, 936 appellants   the  correctness  of  the  extreme   proportion 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 of 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 inquiry during the  proceedings;  it would not make the act of removal improper or unlawful.   It is a matter for doubt if Chapters 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 "go 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(2)  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 (K.B.) 139; 2 D. & R. 600.



(2)  [1897] L.R.2 Q.B.D. 452. 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 commonsense 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 complainants  or  removing  them from  the  place  might  be mistaken,  but, surely, it could not be said that their  act was  necessarily  mala fide and entirely  divorced  from  or unconnected  with the dig’ charge 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 ecohymosis 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 com- 938 plaint  took  the view that theme 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.