Negligent performance can still purport to be the performance of duty, as established by interpretations of the Government of India Act, 1935 and previous case law.

Hemeon, J,—The applicant Shamrao, telegraph messenger, was convicted and sentenced to pay a fine of Rs. 51 under Section 279, Penal Code, by the Honorary Magistrate, First Class, Raipur, and in appeal the sentence was upheld but the conviction was altered to one under Section 337 ibid by the Additional Sessions Judge, Raipur. He has now come up in revision.

2. The prosecution case was briefly stated as follows. On the afternoon of 18-11-1946 Hari (P.W. 2) saw the applicant, who was riding his bicycle quickly, knocked down a three years old girl without having sounded his bell or reduced his speed. As a result of the collision he also fell down and Hari took the bicycle to the Court of Mr. S.N. Hadole (P.W. 1), father of the child, and reported to him that it was the machine by which the child had been hurt. Mr. Hadole inspected the bicycle and found that it had no bell or front brake and that the back wheel brake was out of order. Mr. Hadole then went to his house where he found his daughter weeping and noticed that she had injuries on the left foot and a swelling on the left leg. He accordingly took her to Dr. T.M. Dabke (P.W. 4) who examined her injuries and dressed them. The matter was in due course reported to the police and the bicycle seized.

3. The applicant in examination claimed that at the relevant time he had been cycling at an ordinary speed to the post office for returning telegrams, that he was travelling on the left side of the road and that the small girl who was playing in the middle of the road dashed against the wheel of the bicycle in spite of his shouts to her. He admitted that the machine had no bell but claimed that the hind brake was in order. This connoted that the front brake was out of order and it was shown from the evidence of Hari and Rajabali (P.W. 5), a respectable witness, that there was no front brake and that the hind brake was out of order. In spite of these defects in the machine, the applicant had not ridden it with caution but, as the evidence showed, swiftly and so rashly or negligently that he knocked down and injured the little girl who was playing on the side of the road.

4. The applicant was on duty at the time and the only contention pressed before me was that the proceedings against him were ultra vires, as the consent of the Governor-General had not been obtained to their institution under Section 270(1), Government of India Act, 1935. The proceedings referred to in that sub-section are those contemplated in respect of any act done or purporting to be done in the execution of a person's duty as a servant of the Crown in India or Burma, and the learned Additional Sessions Judge held that the act of the applicant did not take place in the execution of his duties.

5. In so finding, he relied on the following observations of Sulaiman, J. in Hori Ram Singh v.Emperor It (i.e. the act) must have been ostensibly done by him (i.e. a public servant) in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time.

6. In H.T. Huntley v. Emperor and Sarjoo Prasad v. Emperor that rule was applied. The case in Sarjoo Prasad v. Emperor was one in which the facts were as follows. The complainant with his wife and others had proceeded to a steamer station and as he was unable to purchase tickets he wanted to go on the steamer in order to bring back his wife and other people who had boarded it in the interim. In this he was resisted by the accused, station master, who abused him; and when the complainant protested, the station master called out certain people and ordered them to beat him. The complainant was then attacked by them and also by the station, master. Their Lordships of the Federal Court held that the station master's act could not be regarded as one purporting to be done by him in the execution of his duty.

7. The app