JUDGMENT - Patel, J.

(1) This application arises out of the unfortunate floods in the City of Poona due to the bursting of Panshet and Khadakwasla Dams. The complainant is one Burjor D. Engineer, who filed a complaint in the Court of the Judicial Magistrate, First class, Poona against the four petitioners, the first of whom is the Commissioner, Poona Division, the second is Collector and District Magistrate, Poona, third is a District Superintendent of Police, Pona, and the fourth is the Commissioner, Poona City Municipal Corporation. The complaint is a very long document and extends over several pages but the sum and substance of it is that in law certain duties were cast on all these officers for the safety of populace but in wanton disregard of these rules of duty they did not perform those functions which they were expected to perform. For example, in paragraph 16 the complainant says that

"by reasons of the exalted position which all the accused occupied they were responsible for the safety of the inhabitants and their property in areas under their respective control. They were by law enjoined to the best of their ability to prevent the commission of a public nuisance and to use their best endevaours to avert any accident or damage to the public, their lives and property."

In subsequent paragraphs there is amplification of this statement explaining how they failed to act in the discharge of their duties. He, therefore, prayed that offences under Ss. 166 and 290 of the Indian Penal Code were made out against all these four officers and therefore they should be proceeded with in accordance with law.

(2) The petitioners in answer to the notice raised a contention that the prosecution was incompetent in the absence of a sanction from an appropriate authority under S. 197 of the Criminal Procedure Code. The learned Magistrate heard arguments on this point and decided that no sanction was necessary. It is this judgment that is sought to be challenged in this revisional application.

(3) In order to decide the question as to whether sanction is necessary or not, it is well-settled that we must proceed on the allegations contained in the complaint as being true. If an offence under S. 166 is to be made out, the requirements which are necessary to be provided would be (1) that the accused was a public servant, (2) that he conducted himself in the particular manner charged, (3) that such conduct was in the exercise of his public duties as such servant, (4) that such conduct was in disobedience of a direction of law, (5) that when the accused disobeyed such direction of law he did so knowingly, and (6) that when the accused was guilty of such disobedience he thereby intended or knew that he was likely to cause an injury. An offence under S. 290 of the Penal Code is in respect of a public nuisance which has been denied in S. 268. Now, this offence could no doubt be committed by a private citizen but when public nuisance is alleged against the officers like the petitioners, it must be only on the footing that when they committed this offence they were acting in the discharge of their official duties and in no other manner.

(4) Section 197 so far as is relevant reads

"when any public servant . . . .is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his duty, no Court shall take cognizance of such offence except. . . . .etc."

It is clear that the act constituting the offence cannot be the actual duty that he is performing, but something independent of that duty for the doing the act of duty cannot both be legal and illegal. Yet it must arise out of the performance of duty; Moreover it can never mean that a single act of duty must be regarded as the performance of duty out of which the offence must arise. Duty must be taken as the general duty which an officer has to perform such as, as in the present case of taking care of the polulance in time of danger. If in the course of suc

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