1. Varadachariar, J. — These appeals have been preferred by two police officers (a Sub-Inspector and an Assistant Sub-Inspector) and an Excise Sub-Inspector of the Province of Bihar, against a judgment of the High Court at Patna which dismissed their appeal against a judgment of the Sessions Judge of Darbhanga convicting them of an offence under S. 161, I.P.C. The Excise Sub-Inspector was also convicted of an offence under S. 220 I.P.C., and sentenced to a term of imprisonment which was identical with that awarded on the charge under S. 161, I.P.C., and was directed to run concurrently with it. His appeal against this conviction was also dismissed by the High Court. The cases come be fore this Court on a certificate of the High Court that they involve a substantial question of law as to the interpretation of S. 241 (1) (b) of the Constitution Act. The principal question of law pressed before us on behalf of the appellants relates to the necessity for sanction under S. 197 of the Criminal Procedure Code before the appellants could be prosecuted for the alleged offences; and the point as to interpretation of S. 241 of the Constitution Act has been raised as in some degree bearing upon the question whether the appellants are “removable from office save by or with the sanction of the Provincial Government”. On behalf of the Excise Sub-Inspector, a similar objection has also been taken under S. 96 of the Bihar and Orissa Excise Act, 1915.

2. We deal first with the objection under S. 197 of the Criminal Procedure Code. Taking it that the appellants have been accused of an offence alleged to have been committed by them while acting or purporting to act in the discharge of their official duty, the question for determination is whether they are persons not removable from office save by or with the sanction of the Provincial Government. It is not disputed that according to the statutory rules and notifications set out in the judgment of the High Court, the police officers before us can be dismissed by the Deputy Inspector-General of Police and the Excise Sub-Inspector by the Excise Commissioner. But the appellants contend that such dismissal by a subordinate officer like the Deputy Inspector-General or the Excise Commissioner must be treated as an act of the Provincial Government itself, because the Deputy Inspector-General in the one case and the Excise Commissioner in the other case only act on behalf of the Provincial Government under powers delegated to them. In this view, they invoke the principle embodied in the maxim qui facit per alium facit per se and contend that as the subordinate authorities can dismiss them only as agents of the Provincial Government, they must be deemed to be removable only by or with the sanction of the Provincial Government within the meaning of S. 197 of the Criminal Procedure Code. They lay stress upon the use of the very term “delegate” in paragraph (e) of sub-section (2) of S. 7 of the Bihar and Orissa Excise Act, when it provides for the Local Government delegating to the Excise Commissioner all or any of the powers conferred upon the Local Government by or under that Act. It was recognised that the language of S. 7 of the Police Act (V of 1861) would not fit in with this argument, as under S. 7 of that Act, the power of dismissal is conferred by the Act itself upon the Inspector-General, Deputy Inspector-General, etc. But it was argued that whatever the position might have been before 1937, the matter now rests upon S. 341 (1) (b) of the Constitution Act, which vests the power of appointment in the Governor “or such person as he may direct”. Reading this paragraph of S. 241 with sub-section (2) of S. 240, it was sought to maintain that the power of dismissal (like the power of appointment) must also be deemed to vest in the Governor and that whenever it was exercised by a subordinate authority, it must be held to have been exercised by such authority under the direction and therefore only as the agent of the Governor. Authority was found in support of the above line of argument in a judgment of Coutts-Trotter J. (as he then was) in In re Abdul Kadir Sahel  which was followed by a single Judge of the Rangoon High Court in Kyaw Hlin v. Ah Yoo.

3. With great respect to the learned Judges with whom this line of argument has found favour, we are of opinion that the argument is fallacious. This provision which, in one form or another, has appeared in successive codes of criminal procedure for more than 70 years now, must be interpreted in the light of certain well-known features of the administrative system prevailing in India. Otherwise, as pointed out in Pichai Pillai v. Balasundara Mudaly 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 available to all public officers. As early as in the Government of India Act, 1858, it was recognised that the power of making appointments to offices in India was divided and distributed amongst several authorities in India and existing usage and regulations relating thereto were continued, subject to the reservation of power to the Secretary of State in Council to make regulations, (See Ss. 30 and 37). In exercise of this power, rules and regulations have been framed from time to time, dividing the superior and the subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. S. 96-B (2) of the Government of India Act, 1919, recognised the rules of this kind then in force and provided for the Secretary of State making rules in that behalf and also for delegation by him of the rule-making power to the Governor General in Council or to a Local Government. As enactments both of the Indian Legislature and of local legislatures had sometimes provided (e.g., the provisions of the Indian Police Act, 1861, and the Bihar and Orissa Excise Act, 1914, referred to above) for appointments to and dismissals from various offices, that system also was recognised in the same section of the Government of India Act, 1919. The provisions of S. 241 and S. 240 (2) of the Constitution Act of 1935 should also be understood in the light of this long-standing practice. The provisions relating to appeals, contained in paragraphs (b) and (c) of sub-section (3) of S. 241, clearly contemplate that in some cases the dismissal may be by an authority subordinate to the Governor, if that had been the pre-existing practice. Rules of the kind above referred to have all along provided that certain class of officers can be dismissed only by or with the sanction of the Local Government and it is to this class of officers that the Legislature must have intended to limit the protection given by S. 197 of the Criminal Procedure Code. In this view, it is unnecessary to consider, (i) whether and how far the maxim qui facit per atium facit per se, which belongs to the ordinary law of principal and agent, can be imported into the determination of questions relating to the position of public officers inter se, when both officers are acting only in their official capacity, and (ii) whether even the application of this maxim will help the appellants in this case. It has always been recognised that even in determining questions involving the relationship of a public servant to the Crown and the liability of the State for acts of public officers, the principles of the ordinary law of agency cannot be applied except with considerable qualifications. As to the state of judicial authority bearing upon S. 197 of the Criminal Procedure Code, we may mention that the decision of Coutts-Trotter J. has been dissented from in the Madras High Court itself by a Division Bench in Pichai Pillai v. Balasundara Mudaly and by a Division Bench of the Allahabad High Court in Emperor v. Jalal-ud-Din. The decision of Coutts-Trotter J, as well as the single Judge's judgment in Kyaw Win v. Ah Yoo, have in effect, though not in terms, been disregarded by a Full Bench of the Rangoon High Court in King Emperor v. Maung Bo Maun. We are of opinion that there is no force in the objection based on S. 197 of the Criminal Procedure Code.

4. The objection based on S. 96 of the Bihar and Orissa Excise Act may be briefly disposed of. It is true that the prosecution was not instituted within six months after the date of the act complained of. But the previous sanction of the Local Government in such a case would be necessary under that section, only in respect of charges made against an excise officer, “under this Act or any other law relating to the excise revenue.” Exception was taken to the observation of Agarwala, J. that this restrictive provision is made applicable by the section only to proceedings before a Magistrate and will not therefore prevent a sessions court from dealing with the case once it is before the court. We do not think it necessary to examine the correctness of that statement, because we are of the opinion that the section has no application to the present case, as the charge against the Excise Sub-Inspector is not one under the Excise Act or under any other law relating to the excise revenue. In the High Court, one learned Judge has made observations which might imply that even if one and the same act or set of acts would constitute an offence both under a special law and under the general criminal law, it would be open to the complainant to make the charge under the general criminal law and thus escape restrictions imposed upon a prosecution under the special law. It may be a question whether such a view is open to criticism as permitting an evasion of the provisions of the special law and depriving the officer concerned of the protection which the Legislature intended to afford to him. But even that question does not arise for consideration in this case, because the offence under S. 220, I.P.C. is not identical with that under S. 61 of the Bihar and Orissa Excise Act. The illegal act dealt with by the Excise Act is only “unnecessary or vexatious” arrest or detention and the Act prescribes a penalty of only three months' imprisonment therefor, whereas . 220, I.P.C., provides for a more serious offence, namely when the officer acts corruptly or maliciously, and prescribes a more severe penalty. This offence not being one under the Excise Act or under any other law relating to the excise revenue, the objection based on S. 96 of the Excise Act is untenable.

5. It has also been contended that the facts found do not establish the charges under Ss. 161 and 220, I.P.C.; it is therefore necessary to recapitulate the material facts found concurrently by both the courts below. With a view to make a raid on “some houses in your jurisdiction,” the Excise Sub-Inspector applied to the officer in charge of the station at Phulparas for police help and the Sub-Inspector and the Assistant Sub-Inspector who are the appellants in these cases were accordingly deputed to assist the Excise Sub-Inspector. On February 3rd, 1941, the three officers, accompanied by some subordinates, first proceeded to the house of one Jeswa Amat in village Chatrapatti Narahia where they found some ganja. When it was stated by Jeswa Amat that the ganja had been given to him by one Achhey Lal (complainant in the present cases) who was another resident of the village Achhey Lal was sent for. On arrival, he protested that he had nothing to do with the ganja found in Jeswa Amat's house and that Jeswa Amat must have brought in his name because of some private enmity between them. Achhey Lal was nevertheless placed under arrest and, under the instructions of the Excise Sub-Inspector, he was tied up with ropes by some excise peons. The officers had to proceed to another village Sakhua, to make a raid there and it appears that during the interval Achhey Lal was given to understand that if he paid Rs. 50 or Rs. 60 he would be left off. Achhey Lal's brother Phagu, who had been sent for, met the party at Sakhua and after some bargaining, a sum of Rs. 25 was paid. On this payment being made, the ropes were untied, but Achhey was not allowed to go away. He was informed that he must accompany the party to the police thana at P to get something written. It is said they did go to P and Achhey Lal signed some paper which he thought was a bail bond; but as no such paper is forthcoming and as the appellants deny that any such signature was taken, it is not possible to say what paper, if any, the complainant signed. When, after reaching P, Achhey Lal asked for permission to go away, the police officers informed him that it was thereafter a matter between him and the Excise Sub Inspector and the Excise Sub Inspector told him that some further payment should be made to himself, as the Rs. 25 already paid had been appropriated by the police officers. After some higgling, a further sum of Rs. 12 was paid to the Excise Sub-Inspector and the complainant was allowed to go away. Admittedly, proceedings under the Excise Act were taken only against Jeswa Amat and not against Achhey Lal; and even Jeswa Amat was ultimately acquitted.

6. It was contended that on these findings, the charge under S. 161 I.P.C. could not be held to have been established so far as the police officers were concerned and that the charge under S. 220. I.P.C. could not be held to have been established against the Excise Sub Inspector. In this connection, great stress was laid on the language of the charge under S. 161 which, referring to the three accused together, charged “that you on or about the 3rd day of February, at Chatrapath, being public servants in the excise and police departments, obtained from Phagn Lal (brother of Achhey Lal) a gratification of Rs. 37, in all, other than legal remuneration, as the motive for forbearing to send up Achhey Lal under arrest whom one of you, Nasim (Excise Sub-Inspector), had arrested, on an allegation of giving ganja to Jaswa Amat and thereby committed an offence punishable under S. 161, I.P.C.” As pointed out by one of the learned Judges of the High Court, the form of the charge is no doubt open to criticism, but as the High Court also observed, it is not possible to hold that the accused have been prejudiced thereby. The main argument on their behalf however was that in respect of excise offences, the police officers were under no official duty to send up an arrested man for trial, when the arrest had been made by the Excise Sub-Inspector and that therefore the alleged receipt of gratification by them cannot be said to have been as a motive or reward for doing or forbearing to do any official act or for showing favour in the exercise of official functions. This contention has been dealt with only in one of the judgments in the High Court, that of Agarwala J. The learned Judge was of opinion that under S. 23 of the Police Act, 1861, and S. 75 of the Bihar and Orissa Excise Act, 1915, it was as much the duty of the police officers as of the excise officers to bring offenders to justice and that in letting Achhey Lal go on payment of an illegal gratification, the police officers forebore to do an official act and showed him a favour in the exercise of their official function. He further stated that when the police officers became aware of the intention of the excise officer to act unlawfully, it was their duty as police officers to prevent it and to bring the excise officer to justice. With reference to this last statement, it was contended on behalf of the appellants that even if it lay on the police officers to prevent or complain against the commission of a crime by the excise officer, that was not the offence that the police officers had been charged with, in the present case. As we read the judgment of the learned Judge, he made this observation only in the course of the reasoning which led him to the conclusion that the police officers “acted in agreement with the excise officer.” We do not think it necessary to consider the argument urged with reference to S. 23 of the Police Act, because we think that according to the scheme of the Bihar and Orissa Excise Act, the police officers continued to exercise their official functions even after the raid at C was over and during the time that they were proceeding to and remained at the second village S. The fact that the Excise Sub-Inspector was also present on the spot did not take away the official character of the connection of the police officers with the incident. It is unnecessary to decide specifically whose duty it was in such circumstances, whether of the excise officer or of the police officer or of both, to send up an offender for trial. We are not prepared to lay undue stress upon the words of the charge and hold that unless it could be said that it was the duty of the police officer in such a case to send up an offender for trial, the charge under S. 161 must fail as against them. The expression “send up” was after all a non-technical expression and when the three officers were acting in concert and the charge was framed as a common charge against all the three, it seems to us sufficient, in order to sustain the charge, if it is established that all the three were at the time acting in their official capacity, that they jointly bargained for and received the illegal gratification and that as a result of such payment all further action against Achhey Lal was dropped.

7. We may add that under the concluding words of S. 161, I.P.C., a public servant may be guilty under that section even independently of the exercise of his official function, that is, if he obtains a reward for rendering or attempting to render any service to a person with another public servant. On the facts of this case, it might be possible to hold that even if in the particular act, the police officers were not acting in the discharge of their official duty, they received a bribe in consideration of rendering a service to Achhey Lal by persuading another public servant, the Excise Sub-Inspector, to let him off. As against this view, it was urged that that was not the charge and reliance was also placed on the observations of a learned Judge of the Madras High Court in Re Pulipati Venkiah to the effect that in a charge under S. 161 it must be shown that the accused took the bribe as a motive for doing an official act. This statement cannot be taken as an exhaustive statement of the law, because it fails to give effect to the last part of the section. Another observation of the same learned Judge gives some support to the argument based upon the form of the charge, because he gave it as a ground for quashing the conviction that “it was not made clear to the petitioner what criminal offence he had committed”. While there can be no doubt as to the soundness of the general principle that the accused must be clearly informed of the offence with which he is charged, we cannot ignore the principles underlying Ss. 225 232 and 237 of the Criminal Procedure Code. The accused had been given notice of all the material facts and the offence in either view falls under the same section of the Penal Code. It is however unnecessary to pursue this argument, as we are of opinion that the police officers must be regarded as having been present in their official capacity, not only when they helped the excise officer to make the raid but also during all the time that he kept the suspected persons under custody, in their presence and with their co-operation. When the three officers were acting together, the mere fact that the direction to tie up Achhey Lal with a rope was given only by the Excise Sub-Inspector and that the actual tying up was done by the excise peons cannot materially affect the legal position above stated. There could be little doubt that except with the concurrence of the police officers, the excise officer would not have released Achhey Lal from custody.

8. The contention that the charge under S. 220, I.P.C., against the excise officer had not been established was argued on the footing that as the excise officer was authorised to arrest and detain persons suspected of excise offences, it could not be said that the motive or purpose that actuated the officer in doing what he was legally entitled to do would make it an offence. In support of this contention, reliance was placed upon certain observations of a Division Bench of the Bombay High Court in Queen-Empress v. Amarsang Jetha. It is not clear to us how exactly this contention was viewed by one of the learned Judges (Varma, J.) in the High Court, in the present case. Referring to a statement in the search list prepared in Jeswa Amat's house, the learned Judge observes: “It is difficult to understand if the ganja belonged to Jeswa Amat, why he said that it was Achhey Lal who gave it to him for keeping”. This observation seems to throw doubt on the veracity of Jeswa Amat, in one interpretation; but it may also be understood as implying that the ganja must in all probability have belonged to Achhey Lal and that this statement might well have led the officers to suspect Achhey Lal. The point is however dealt with more fully in the judgment of Agarwala J. As pointed out by him, the excise officer can arrest without a warrant only a person “found committing”, an offence punishable under certain sections of the Excise Act and he can detain and search any person upon whom he may have reasonable cause to suspect any article liable to confiscation to be. In the present case, it cannot be said that Achhey Lal was “found committing” an offence and the learned Judge rightly observes that Achhey Lal was so little suspected that he was not even searched. The assumption on which this line of argument has been urged, namely, that the arrest was lawful, accordingly fails. In the Bombay case above referred to, the learned Judges have pointed out that on the terms of the provision which they had to interpret, it was sufficient that the accused had “credible information” to entitle him to make the arrest. We may add that, apart from the legality of the arrest, the keeping of Achhey Lal in confinement even by a person who had legal authority to do so would be an offence under S. 220, I.P.C. if in the exercise of that authority a person kept another in confinement knowing that in so doing he was acting contrary to law. Between the time when the excise officer arrested Achhey Lal at village C and the time he released him, he had no further information about his innocence beyond what was stated by him at the time of the arrest itself to the effect that he (Achhey Lal) had nothing to do with the ganja found in Jeswa Amat's house. He nevertheless seeks to justify the detention on the ground that, as he had no time to think over the matter at C itself in view of the preoccupation of his mind with the further raid to be made in village S, he could not immediately decide whether Achhey Lal's statement as to his innocence was to be accepted or not. This is no doubt a possibility and the explanation might have been accepted, if the story of the illegal gratification had not complicated the situation. When, however, it was found that the release was obtained by payment of illegal gratification, the court was entitled to infer that the explanation put forward by the Excise sub-inspector was not true, that he must have known from the beginning .that there was no justification in law or fact for arresting or for detaining Achhey Lal and that he must have done so only with a view to make a pecuniary profit out of the transaction.

9. On behalf of the appellants, we were asked to examine the correctness of the above findings of fact, but we declined to do so. It was recognised by the learned counsel for the appellants that this Court was not a court of criminal appeal, but he nevertheless made the request on the ground that his clients had been seriously prejudiced by the way in which the courts below approached the consideration of the evidence, under a misapprehension as to the case put forward on behalf of the accused. The learned counsel failed to persuade us that there had been any such misapprehension in the minds of the learned Sessions Judge or of the learned Judges of the High Court.

10.  The appeals accordingly fail and are dismissed.