Madan Singh vs P.K. Basuk and Others

Vishwanath Mishra, J.—The petitioner has filed this revision application against the order passed by the Additional Chief Judicial Magistrate, Barb, in Case No. 424 C/78 of 2-6-1979. By this order, the Magistrate has directed the complainant of the case to being an order of sanction from the State Government u/s 197 of the Code Criminal Procedure 1973 (hereinafter referred to as the ''Code'') for the prosecution of the accused persons of the case, who are opposite party here.

The petitioner is a resident of village Achhuara, within Barh Police Station, in the district of Patna. Opposite Party Nos. 1, 2 and 3 were at the relevant time, Sub-Divisional Officer, A.S.P. and Circle Officer at Barh. Opposite Party No. 4 was the driver of the A.S.P. and Opposite Party No. 5 was a constable.

The case as made out in the petition of complaint, which is Annexure "1" to the petition, is out and out a case of dacoity against the members of the Opposite Party. It has been stated that the petitioner, who is a Brahmin, is a member of the forward class and the members of the opposite party wanted to take some revenge from him, and so they all came to his house on the date of the occurrence and started assaulting him and other members of his family and committed dacoity in respect of a good number of articles. It is unnecessary to go into these details. It may only be mentioned that there is absolutely nothing in the complaint to give even an indication that the accused persons (Opposite Party Nos. 1 to 3) had gone there to perform any official act.

When the complaint was filed, the complainant namely, the petitioner was examined on solemn affirmation and inquiry u/s 202 of the Code was embarked upon before issuing processes. In course of the inquiry, the officers appeared through their Advocate and filed an application to say that they could not be prosecuted unless sanction of the State Government u/s 197 of the Code was obtained. They also in their application gave details of the burning of the bus and other incidents that had taken place, with which the complainant was closely associated and was also perhaps being prosecuted. It was submitted that just to save his skin and to pressurise the officials a false case had been filed. The learned Additional Chief Judicial, Magistrate, after hearing the parties, passed a long and reasoned order directing the complainant to obtain the necessary sanction of the State Government. Against this order the present revision application has been preferred by the petitioner.

The Learned Counsel for the petitioner has placed reliance on the ease of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , for the proposition that during an inquiry the accused is entitled to be present there and to watch the proceedings only. It has been made clear in that authority that it would not be open to the Magistrate to put any question to the witness at the instance of the person named as accused. Thus the limits of an Enquiring Magistrate have been circumscribed by the said authority.

The learned Counsel for the opposite party has, however, tried to draw distinction between a case where accused claims the benefit of Section 197 of the Code and other cases. His contention is that the question whether the sanction of the Government u/s 197 of the Code is required OF not can be raised at any stage whatsoever, be it before the processes have been issued, or be it after the issuance of the processes. This position has first to be examined with reference to certain provisions of the Code.

In the instant case, the complainant had lodged the complaint in accordance with the provisions contained in Chapter XV of the Code. Section 200 is the first section in this Chapter under which the Magistrate proceeds when a complaint is filed. The opening sentences of the said Section 200 reads as follows:

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall represent in writing and shall be signed by the complainants and the witnesses, and also by the Magistrate....

It appears from this that the moment the Magistrate has taken the complaint in his hand and has called the complainant in the witness box, he has applied his mind to the complaint and has taken cognizance of it. The opening words "Magistrate taking cognizance of an offence" are clearly indicative of it. The inquiry that is held in the case u/s 202 of the Code is not for taking cognizance, but it is for taking decision as to whether processes should be issued or not. Keeping this in view, I would now turn to Section 197 of the Code.

Sub-section (1) of Section 197 of the Code reads as follows:

When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the 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 cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government:

(b) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

This section debars a Magistrate from taking cognizance of an offence against the prosecution of Judges or Magistrates or public servants acting in the word of office without the necessary sanction spoken of in the section. As has been shown, the moment the Magistrate applies his mind to the complaint petition and proceeds to examine the complainant, he has taken cognizance. In this view of the matter, if the accused be a Judge or a public servant acting in colour of office, the cognizance cannot be taken u/s 197 of the Code unless previous sanction is obtained. I am conscious of the fact that the previous sanction would be necessary only in cases in which the public servant concerned has done something in the exercise of his powers or in the colour of his office. But at the same time it must be remembered that it is a matter which should be decided, and as the learned Counsel for the opposite party has pointed out, there are authorities which show that at any stage this question can be raised in contradistinction with other matters which cannot be raised during the inquiry. The authorities on which he has relied are based merely on the reading of Sections 197 and 200 of the Code.

With this background, I may now refer to the case of B. Saha and Others Vs. M.S. Kochar, . There the public servant had appeared after processes had been issued, but their Lordships have laid down the law in paragraph 14 of the judgment as hereunder:

We have no quarrel with the proposition that the question of sanction u/s 197, Cr. P. C. can be raised and considered at any stage of the proceedings. We will further concede that in considering the question whether or not sanction for prosecution was required. It is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration.

The words "at any stage of the proceedings" are very relevant. In the instant case, it is only at a particular stage of the proceeding that the members of the opposite party have raised this plea. In view of this authority itself, it is clear that the opposite party could not be prevented from raising the plea. Similar is the ratio in a single Judge decision of the Rajasthan High Court in the case of Mangharam Vs. State and Others, . It has been mentioned therein that the inquiry u/s 202 of the Code can be held only when the Magistrate has authority to take cognizance of the offence and sanction u/s 197 of the Code of requisite authority being a condition precedent for taking cognizance of the offence, it would always be open to the accused at any stage to take objection to the maintainability of the prosecution,

It is thus clear that even during an inquiry u/s 202 of the Code, the plea of sanction u/s 197 of the Code can be raised by an accused person. On this proposition the learned Counsel for the petitioner also agreed towards the end of the argument.

The learned Counsel for the petitioner, however, argued that even if the public servant be allowed to raise this question in an inquiry u/s 202 of the Code, he cannot be allowed to bring in extraneous matter, This argument is not at all attractive. If a public servant will come to raise objection, he cannot do it without disclosing his own defence or making certain statements in support of his case. It is quite possible that in certain cases the complaint itself may give the clue, but in certain cases, the complaint may be so artistically drafted so as to exclude any clue whatsoever. It will, therefore, always be a question of fact as to how and in what manner to raise the objection. The argument of the learned Counsel for the petitioner is also met by the observations of their Lordships of the Supreme Court in the case of S. B. Saha from which a portion has been quoted above. It has been specifically mentioned in that quotation that in considering the question whether or no sanction for prosecution is required, it is not necessary for the Court to confine itself to the allegations in the complaint and it can take into account all the material on the record at the time when the question is raised and falls for consideration. It implies that when the question is raised the materials should also be placed before the Magistrate and the Magistrate will, therefore, be perfectly entitled to consider all those matters of course for the limited purpose of examining of sanction for prosecution will be required.

In the impugned order, the Magistrate has referred to the pleas raised and has written a long reasoned order. No infirmity has been shown to me. The application is, therefore dismissed.