State vs Neelakanta Panicker

Nandana Menon, J.—This appeal is by the. State and is directed against the acquittal of the accused in C. C. No. 3281 of 1954 on the file of the 2nd Class Magistrate of Kanayannur. The accused was charged for offences under Sections 279 and 338, Indian Penal Code, and u/s 3(1) (iv) of Motor Vehicles Act, IV of 1939 and R. 319(1) framed under the same read with Section 112 of that Act. It was alleged; that the accused drove a heavy transport vehicle'' without holding a license for the same on; 18-11-1954 at about 10 P.M. in a rash and negligent manner and caused hurt to one George. The learned Magistrate found that offenceunder Sections 279 and 338 I. P. C. had not been mad out by the prosecution. As regards the offer under the Motor Vehicles Act in driving a traaih| port vehicle without a proper license for"" same, while finding that the accused had not! license as required held that as the accused public servant employed in the Transport partment of the State the prosecution launche without the necessary sanction u/s 197 of the Code of Criminal Procedure was Vitiated

Hence the accused was acquitted. ''On-'' half of the State it is. contended that the lease court went wrong in holding that Section 197 oft.th Code of Criminal Procedure was applicable to the case as the accused who was only a mecnaidcl in the Transport Department was found driving a public service vehicle on the public rood With out the requisite license and as the same did n form part of his official duties. The appeal only with regard to this. So the only que "'' that arises for consideration here is as to whether sanction u/s 197 of the Criminal Pro-cedure Code was necessary in the present case. What is stated in Section 197(1) is that:

When any public servant who is not removable from his office save by or with the sanction of a ''State Government'' or the ''Central Government'' is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognisance of such offence except with the previous sanction etc.

What is contended on behalf of the State is that here as the accused was not a driver of the Transport Bus when he drove it he was not acting in the discharge of his official duty as contemplated under the section. As pointed out by the Magistrate the evidence here is to the effect that the duty of the accused who was a mechanic in the State. Transport Department was to repair, refit and see that defective buses are made roadworthy and for that purpose he was to carry out tests of the vehicles by driving them along the road. In the face of that evidence it is idle to contend that when he was driving the particular bus at the time of occurrence he was not acting in discharge of his official duty as contemplated u/s 197. Here we are concerned only with the question of sanction. So there is no need to consider as to how the Transport Department was allowing employees without proper licenses as required under the Motor Vehicles Act to drive their vehicles through public roads. Ittyavira Appran Vs. Mohammad Kunju and Others, deals exhaustively with the question of sanction u/s 197 of the Code of Criminal Procedure and refers to the principles laid down in AIR 1948 128 (Privy Council) As pointed cut there, in all these cases "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.

When such a test is applied here it is clear that sanction is necessary. The accused was an employee of the Transport Department find it is found that he was expected to test the vehicles by driving them along the roads as he was doing at the time of the incident. So he can rightly contend that he was acting in discharge of his official duties at that time. In Ittyavira Appran Vs. Mohammad Kunju and Others, it is observed as follows:

While these form the main procedural facts "the point of substance insisted upon by these -decisions is that there must be something in the nature ,of the act complained that attached it to "the official character of the person doing it.

In the present case it is seen that the act of the accused in driving the transport bus at the relevant time was connected with his official duties. So the learned Magistrate was quite right in holding that the prosecution was vitiated for want of sanction as contemplated u/s 197 of the Code of Criminal Procedure. Hence there is no merit in this appeal.

In the result, the appeal is dismissed.