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PETITIONER: SURESH KUMAR BHIKAMOHAND JAIN

       Vs.

RESPONDENT: PANDEY AJAY BHUSHAN & ORS.

DATE OF JUDGMENT:       27/11/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 27TH DAY OF NOVEMBER, 1997 Present:                 Hon’ble Mr. Justice G.N.Ray                 Hon’ble Mr. Justice G.B.Pattanaik Kapil Sibal,  Sr. Adv.,  A.M.Khanwilkar, A.P.Maye, Advs. for Ms.V.D.Khanna, Adv. with him for the appellant Ashok  Desai,   Attorney  General,  S.G.Page,  D.V.Mirzakar, N.M.Snkhanande,  D.M.Nargolkar,  Advs.,  with  him  for  the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: G.N.RAY,J.      Leave granted. Heard learned counsel for the parties.      The order  of the  Bombay High Court (Aurangabad Bench) dated September  10, 1996  passed in  Criminal Writ Petition No. 414  of 1993 and Criminal Revision Application No. 16 of 1994, is  impugned in  these appeals. It will be appropriate at this stage to indicate in brief the background facts:-      (a) the  appellant, at  material point of time, was the President of  the Jalgaon  Municipality.  The  said  Jalgaon Municipality took  a decision  to demolish  to  unauthorised encroachment (tapri).  On the  basis of such decision of the Municipality, the  unit of  anti Encroachment  Department of Municipality  had   gone  to   demolish   the   unauthorised encroached construction  on July 3, 1993. On Shri Sita Ram @ Baban Baheti  was also  one of  the Councillors  of  Jalgaon Municipality. The  said councillor however, remained present at  the   site  and   tried  to  stop  the  attempt  of  the Municipality  to   demolish  the   unauthorised  tapri.  The respondent No.1, Shri Pandey Ajay Bhushan, was Collector and District Magistrate  of Jalgaon  and  respondent  No.2  Shri Dilip G.Shrirao,  was Additional  Superintendent of  Police, Jalgon,  respondent   3,  Shri  Prakash  Mahajan,  was  Sub- Divisional Magistrate,  Jalgaon, and  respondent No.4,  Shri D.S. Jog  was Superintendent  of  Police,  Jalgaon,  at  the relevant  time.   The  said   respondents  No.1  to  4  were personally present  at the  site and  prevented the staff of the Municipality to demolish the tapri.      (b)   The appellant  was away  from Jalgaon  and having returned to  Jalgaon in  the evening,  came to know that the

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respondent  were   not  allowing   the  demolition   of  the unauthorised tapri.  The appellant  went  to  the  spot  and protested against  the said  action of  the  respondents  in preventing the  Municipality staff  from  discharging  their statutory obligation  to demolish unauthorised construction. The respondents,  however, did not accede to the protest and persuasion  of   the  appellant.   On  the   contrary,   the respondents physically  assaulted the  appellant, his driver and some other including the councillors present a the spot. It has  been alleged  by the  appellant that  the respondent No.4 put  a stick  on the  chest of the appellant and gave a violent push. The respondent No.2 caught hold of the neck of the appellant  and threatened  him with  his  revolver.  The respondent No.3  had given a stick blow on the person of the appellant. The  respondent No.2  also kicked and abused him. The appellant  and his  supporters including  the driver and some of the councillors sustained injuries on account of the said high handed action of the respondents.      (c) On  the next  day i.e. on July 1993, the respondent No.3 issued prohibitory orders under Section 144 of Criminal Procedure Code by declaring that no demolition work could be done till  July 20, 1993. On July 6, 1993 respondents issued an order  suspending  the  action  of  the  Municipality  in removing the encroachment. On the say day, another order was issued by  the respondents to the effect that no force would be used by the Municipality.      (d)     The   Jalgaon   Municipality   challenged   the prohibitory orders  issued under  Section 144  of Cr.P.C. by filing a  Writ Petition  before Aurangabad  Bench of  Bombay High Court  being Writ  Petition No.  261 of 1993 on July 7, 1993. Such  Writ Petition was, however, withdrawn on July 8, 1993. On  July 18,  1993, the  appellant  filed  three  writ petitions being  Writ Petition  Nos. 2149,  2150 and 2151 of 1993 seeking  various reliefs against certain actions of the State Government.  Writ Petition  No. 2149 of 1993 was filed by the  appellant  challenging  the  order  restraining  the Municipality  from   using  any   force  in   removing   the unauthorised construction.  Writ Petition  No. 2151  of 1993 was filed  for prohibiting the State Government from issuing any order  of supercession of the Jalgaon Municipality. Such Writ Petition  was filed  because the  appellant  and  other councillors had  apprehended that  on account  of  political vendatta, the  persons  in  power  would  invoke  action  of superseding the Jalgaon Municipality.      (e) The  appellant lodged  a criminal complaint on July 19, 1993  being Regular C.C. No. 194 of 1993 in the Court of Chief  Judicial   Magistrate,  Jalgaon   against  the   said respondents under  Sections 353,  332, 323, 307, 504 and 506 read with  Section Indian Penal Code. The appellant examined himself as  complaint on  July 31,  1993.  The  trial  court directed the appellant to produce his witnesses on August 4, 1993. On August 4, 1993 the State Government issued a letter in view  of which  the Writ Petition No. 2149, 2150 and 2151 of 1993  became infructuous  and the  High Court disposed of the said Writ Petitions by order dated Au gust 3, 1993.      (f) The  appellant examined  7 witnesses  in support of his complaint.  The deposition  of  the  witnesses  examined expressly disclosed cognizable offence committed by the said respondents.  The   trial  court,  however,  discharged  the respondent No.  4 on  the ground  of lack  of  sanction  but issued processes  against respondents Nos. 1 to 3. The trial court also dropped the charge under Section 307 IPC.      The respondent  Nos. 1,  2 and  3 moved a Criminal Writ Petition No.  414 of  1993 before  the Aurangabad  Bench  of Bombay High  Court challenging  the  order  issuing  process

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against them,  but without  disposing of such writ petition, by the  order dated  February 10,  1994, the High Court gave liberty to  the said respondents to move applications before the trial  court for  recalling the  order  issuing  issuing process process against them.      (g)   The respondents  Nos. 1  to 3 thereafter moved an application before  the trial  court for  recalling  of  the order of issuance of process. Such application was, however, dismissed by  the learned Chief Judicial Magistrate by order dated April  12, 1994. The appellant also preferred Criminal Revision Application  No. 16  of 1994  before the High Court challenging the  order of the trial court dated September 8, 1993 by  which the  complaint against  respondent  No.4  was dismissed on  the ground  of  lack  of  sanction.  The  said Criminal Revisional  Application No.  16 of  1994 was tagged with the  Criminal Writ  Petition No.  414 of  1993. By  the impugned order  dated September  19, 1996, the Writ Petition filed by  the respondent  Nos. 1  to 3  was allowed  and the Criminal Revisional  Application filed  by the appellant was dismissed.      Mr. Kapil  Sibal, the  learned Senior Counsel appearing for the  appellant, has contended that the impugned order of the High  Court  dated  September  10,  1996  has  not  only resulted in  manifest injustice  meted out  to the appellant but the  same is patently illegal, improper and unjustified. Mr. Sibal  has contended  that the law is well settled about the scope  of supervisory  jurisdiction of  the  High  Court Article 227  of  the  Constitution  of  India  and  inherent jurisdiction under  Section 482  of Criminal  Procedure Code and this  Court has clearly indicated that such jurisdiction is extremely circumscribed.      Mr. Sibal has also submitted that the High Court failed to  appreciate   that  in   exercise  of   its   supervisory jurisdiction under  Article 227  and  inherent  jurisdiction under Section  482 Cr.P.C.  the High Court was not to embark upon full  fledge  and  full  dressed  appreciation  of  the evidences  like  a  regular  appellate  court  and  on  such appreciation to  quash the complaint on the score of absence of requisite sanction. Mr. Sibal has also contended that the law is  now well  settled that  if the complaint prima facie discloses cognizable offence, that trial court ought to take cognizance and  issue process. The trial court can discharge the accused  only when  the  complaint  ex  facie  does  not disclose any  offence. The  aforesaid principle applies with greater  vigour   in  case  of  High  Court  exercising  its jurisdiction under Section 482 Cr.P.C. The order or issuance of process is basically a matter of discretion vested in the concerned magistrate  and the  only exception  is that  such discretion should  not be  exercised arbitrarily and without application of mind to the facts alleged in the complaint.      Mr. Sibal has contended that the learned Chief Judicial Magistrate, Jalgaon  had taken more than abundant caution in exercising the  discretion which is clearly reflected in the initial order of Chief Judicial Magistrate when he postponed the issuance  of process  and also  in the  subsequent order issuing process  to respondents  Nos.1 to  3 and discharging respondent  No.1   after  taking   into  consideration   the deposition  of   the  complainant  and  the  number  of  eye witnesses examined  and also the medical certificates issued to the complainant and the injured witnesses.      Mr. Sibal  has submitted  that it  was improper  on the part of the High Court is not disposing of the writ petition but granting liberty to the said respondents to approach the trial court  for recalling  the order of issuance of summons by way  of an  interring direction  even though such summons

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were issued  on consideration  of the complaint and evidence adduced in support of the complaint. In the application made by the  said respondents  before the  learned Chief Judicial Magistrate,  Jalgaon   for  recalling  the  process  certain documents were  annexed in an attempt to destroy evidence of the complaint even though at that stage the accused were not entitled to  brig in documents in their defence. The learned Chief Judicial  Magistrate Jalgaon after hearing the parties rejected the  said application  by confirming  the order  of issuance of the process.      Mr. Sibal  has submitted  that  question  of  issue  of process is  to be determined by the considering the contents of the  complaint and  deciding as  to whether, prima facie, such complaint  makes out  a case within the four corners of the offences  alleged by  the complaint  and  in  case,  the complaint  makes   out  a   case,  which  would  indicate  a cognizable offence, then the process is to be issued and the question of probable defence is not to be considered at that stage. Mr.  Sibal has submitted that the complaint lodged by the appellant  clearly makes  out various offences committed by the  respondent and  in   support of  such complaint, got himself examined and had also examined a number of witnesses including the  injured witnesses.  On consideration  of such materials and  record, the  learned.  Chief  Magistrate  had issued the  process against  respondent Nos.  1 and  3.  The applications made by the said respondents later on, pursuant to the  liberty granted  by the  High Court,  to recall  the processes was  also dismissed  by indicating cogent reasons. Such orders  of the learned Chief Judicial Magistrate should not have  been interfered  with by the High Court improperly exercising the revisional jurisdiction under Article 226 and 227 of  the Constitution  and also  Section 482  of Criminal Procedure Code.      Referring to  Section  202  and  204  of  the  Code  of Criminal Procedure,  Mr. Sibal  has contended  that till the process is  issued by the Magistrate on consideration of the complaint and  evidences adduced in support of the complaint by the  complainant and  his witnesses, the accused does not come in  the picture.  The accused is also not authorised to lead any  evidence to  destroy the  complaint case  at  that stage. In support of such contention, Mr. Sibal has referred to the  decision of  this Court in Smt. Nagawwa Vs. Veeranna S. Konjalgi & Ors. (1976 (3) SCC 736). It has been helped in the said  decision that  the scope  of enquiry under Section 202 of  the Code  of Criminal  Procedure 1898  (pari materia same as  Section 202  of Cr. P.C.1973) is extremely limited- limited only  to the ascertainment of the truth or falsehood of  the  allegations  made  in  the  complaint  (1)  on  the materials placed by the complainant before the court (2) for the limited  purpose of  finding out  whether a  prima facie case for  issue of  process has  been made  out and  (3) for deciding the  question purely  from the point of view of the complaint without  at all  adverting to any defence that the accused may  have. It  is not the province of the Magistrate to enter  into detailed discussion of the merits or demerits of the  case nor  can the  High Court go into this matter in its revisional  jurisdiction which  is very  limited one. In proceedings  under   Section  202,   the  accused   has  got absolutely no  locus standi  and is not entitled to be heard on the question whether the process should be issued against him or  not. In  the decision  in Nagawwa’s case, this Court has also  held that  the  Magistrate,  for  the  purpose  of considering as to whether a process should be issued or not, can take  into consideration  the  inherent  improbabilities appearing on the face of complaint or in the evidence led by

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the complaint  in support of the allegations. The Magistrate has been  given an  undoubted discretion  in the  matter  of deciding whether  a process should be issued or not but such discretion  has   to  be   judicially  exercised.  Once  the discretion has  been exercised  by the Magistrate, it is not open for the High Court or even this court to substitute its own discretion  with a  view to  find out whether or not the allegations in the complaint if proved, would ultimately end in conviction against the accused.      Mr. Sibal  has  submitted  that  on  two  occasion  the learned  Magistrate   had  taken   into  consideration   the complaint case  and the evidences adduced by the complainant in support  of allegations in complaint and having exercised his discretion  judicially upon  objective consideration  of the  complaint   and  complainant’s  evidence  directed  for issuing the  process. In  such circumstances,  there was  no occasion for  the High  Court to quash the process issued by the learned Magistrate.      Mr. Sibal  has also  submitted that  scope and ambit of the writ petitions moved before the High Court were entirely different. The statements made in such writ petitions cannot be taken  into consideration  either by the High Court or by the learned  Magistrate for deciding whether the complainant has prima  facie made out a case for issuance of summons and consequential trial on the basis of complaint.      Coming to  the question  of requirement of sanction for inifiating a  criminal case  against the  senior  government servants against  whom the  complaint had  been lodged,  Mr. Sibal has contented that unless the complaint on the face of its discloses  official action,  no sanction can be insisted at the  initial stage.  In the  absence of ex facie official action alleged  in  the  complaint,  the  accused  would  be proceeded against  in the  criminal trial like other accused without any  requirement for  sanction. In  support of  such contention, Mr.  Sibal has  referred to the decision of this Court in  Nagaraj Vs. State of Mysore (1964 (3) SCR 671). Mr Sibal has  also referred  to the  decision of  this Court in Chandra Deo  Singh Vs.  Prakash Chandra  Bose (1964  (1) SCR 639). In  Chandra Deo’s case, it has been held that if court on consideration of the complainant’s case issues process to the accused, the accused has no locus standi to take part in the criminal  proceedings and  the Magistrate  has  also  no jurisdiction to  allow the  accused to  take  part  in  such proceedings. Mr. Sibal has also referred to the decisions of this Court  in Matatajog  Dubey Vs. H.C. Bhari (1955 (2) SCR 925). Mr  Sibal has  submitted that in Matajog Dubey’s case, this Court  has indicated  to be  considered as  soon as the complaint is lodged and on the allegation contained therein. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty  but facts  subsequently coming  to light on a police  or  judicial  enquiry  or  even  in  the  course  of prosecution evidence at the trial may establish necessity of sanction. Whether  sanction is  necessary or not may have to be determined  from stage to stage. The necessity may reveal itself in the course of progress of the case.      Mr. Sibal  has submitted  that  the  correct  principle consistent with  the scheme  of criminal  trial  at  various stages  under  the  code  of  Criminal  Procedure  has  been indicated in  the case  of Matajog  Dubey.  This  Court  has indicated in the said decision that it was not necessary for the Court  to find  out whether  a sanction was necessary or not at  the time  of taking congizance of the complaint. The accused, where  sanction is necessary, is not without remedy even if  cognizance is  taken and  process is issued because

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the  question   of  sanction   may  still   be  taken   into consideration at  different stages  of trial on the basis of further materials revealed at such stages.      According to  Mr. Sibal  simply because  an accused  is government servant and is clothed with duties to enforce law and order,  he  cannot  claim  sanction  under  Section  197 Cr.P.C. as  a matter of course. The acts alleged against him must prima  facie appear  to be in the purported exercise of official  duties   and  functions.   In  support   of   such contention, reference  has been made to the decision of this Court in  Pukhraj Vs. State of Rajasthan (1973 (2) SCC 701). In the  said decision  the purpose and import of Section 173 Cr.P.C. have been taken into consideration. It has been held that intention  behind Section  197 Cr.P.C.  is  to  prevent public  servants  from  being  unnecessarily  harassed.  The Section is  not restricted to cases of anything purported to be done  in good  faith for  a person who ostensibly acts in execution of  his duty still purports so to act, although he may have  a dishonest intention. Nor is it confined to cases where the act, which constitute the offence, is the official duty of  the concerned  office. The  test appears to be that the offence  is capable  being committed  only by  a  public servant and not by any body else but that it is committed by a public  servant in an act done or purporting to be done in the execution  of his  duty. Section  197 is not confined to only such  acts as  are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. What is  necessary is that the offence must be in respect of an act  done or  purported to  be done  in the  discharge of official duty.  It does  not apply  to acts  done purely  in private capacity by a public servant. In Pukhraj’s case, the Post Master  General had  kicked a  clerk  when  such  clerk requested to  cancel his  transfer order.  Such act  had  no semblance of  discharging any public duty by the Post Master General. hence,  it was  held that no sanction under Section 197 Cr.P.C., was necessary.      Mr. Sibal  has contended  that in the instant case, the Municipal Officials  had been  discharging their  duties  in removing  unauthorised   obstruction  on  public  road.  For executing  such   act,  the   local  executive   and  police authorities were  required to  give necessary  assistance by preventing. persons  opposing execution.  by  the  municipal staff. But  unfortunately, the  respondents despite  holding reasonable positions  in the  Government Service, obstructed municipal staff  from carrying on their duties and function. When the  complainant being the Chairman of the Municipality protested against  such improper  act on  the  part  of  the accused, he  and other  persons were  assaulted, abused  and manhandled. Such  acts prima  facie cannot  be held  to have been done  on purporting to be done in discharge of official duties. Hence,  on the  face of the allegations, no sanction was warranted. If, however at a later stage when the accused within the  scheme of  trial under  the  Criminal  Procedure Code, will  have occasions  to lead evidence in defence they may do  so. If on defence evidence, or on materials produced in support  of defence  case, it  transpires that  a case of sanction under  Section 197  Cr.P.C. has  been made out, the court will be justified to stop further proceedings for want of sanction.  But it will be illegal if the defence evidence is allowed  to be introduced dehors the scheme of trial at a stage when  defence evidence could not have been introduced. Mr. Sibal  has submitted  that  the  High  Court  failed  to appreciate the  legal import  of Section 200 Cr.P.C. and not only  allowed   the  accused   to  introduce  evidences  and

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materials in  defence but  relying on  such materials passed the impugned  judgment holding  inter alia  that a  case  of sanction under  Section 197 Cr.P.C. has been made out. Since such order  is wholly  unjustified, the same should be aside by allowing this appeal.      Mr Ashok  Desai learned  Attorney General appearing for the respondents has submitted that question of sanction as a bar of a criminal trial and defence against the merit of the prosecution case stand on different footing. The question of sanction goes  at the root because without the sanction even if a  complaint discloses  a case  for criminal  trial  such trial cannot  be commenced  or  proceeded  with  where  such sanction is  necessary. The  learned  Attorney  General  has submitted that  writ petitions  were filed  before the  High Court by  the complainant  and  other  persons  for  various reliefs. The  facts disclosed  in such  writ petitions  were relevant for  the consideration  as to  the  requirement  of sanction under  Section 197  Criminal Procedure Code in view of the  fact that  the accused had been acting or purporting to act  in discharge  of their  official duties and a s such they were  entitled to  claim protection by way of requisite sanction  under   Section  197   of  the  Code  of  Criminal Procedure. Therefore, it was not improper on the part of the High Court  to consider  the averments  in the writ petition for the  purpose of  deciding whether  a case  for  sanction exists or not.      Mr. Attorney  has also submitted that even on the basis of  the   evidences  adduced   by  the   witnesses  of   the complainant, a  case of  sanction has been clearly made out. The learned Attorney has drawn the attention of the Court to the statement of PW 1 Vasant Baburao Suryavanshi who deposed to the effect that:      "When  we   started  removing   the      tapari, Sri Baban Baheti came there      and  stopped   me  to   remove  the      stall...  That   time  Sri  Prakash      Mahajan, S.D.M. came there and told      me "the  situation is under his had      and leave  the spot  along with you      staff." At theat time lot of people      had gathered  there.  There  was  a      crowed of spectators there. I tried      to remove  the stall  but could not      succeed. At  4’O Clock accused Nos.      1 to  3 came  there with 100 to 150      policemen.. the  complainant,  told      the accused No.1 (DM) that they are      authorised to remove the tapari and      further told  not be  obstruct.  As      accused  No.1  did  not  listen,  I      along   with    the    complainant,      councillor and  our  staff  started      removing      the      stall.......      Complainant    got    flared    up.      Thereafter,   lathi   charge   took      place....Police brought  us to  the      police station."      The learned  Attorney has  also drawn  attention to the statement of PW 2 Pandurang Rathunath Kale. The said witness deposed to the following effect.      "Then he  (SDM) told me that he had      taken charge  of the  place and  he      will not  allow  the  stall  to  be      removed. I  again told  SDM not  to      cause obstruction  and allow  us to

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    do our work. Then he told me not to      wait here.  At that time S: Sri Jog      and Rao  and also  came. They  also      told me to go away."      Our attention  has also  been drawn to the statement of PW 6 Babu Gangaram Suryavanshi. The said witness has stated:      "I am working as Municipal Engineer      in Jalgaon  Municipal  Council.  On      3.7. 1993 at 7.30 A.M. as usual our      Encroachment Squad  went to removed      in  the   encroachment.  Shri  V.V.      Suryavanshi, Assistant Engineer and      Shri S.L.  Patil,  Junior  Engineer      also went  to the  spot. At  around      10.30 A.M.,  I got the message that      Baban Baheti have opposed the squad      in removing  the  encroachment  and      SDM and police had come to the spot      and  they   are   obstructing   the      removal of  the  encroachment.  SDM      has said  that he  had taken charge      of the place and will not allow the      encroachment to be removed. He told      him  to   go  away  from  the  spot      alongwith  his  staff.  Complainant      also asked the Collector why he was      not allowing the encroachment to be      removed.  The  Collector  told  him      that  he   would  not   allow   the      encroachment   to    be    removed.      Complainant  asked  all  of  us  to      remove  the  encroachment.  We  all      staff  and   Municipal  Councillors      started removing  the encroachment.      Then the  complainant  exhorted  to      remove the  stall but the Collector      did  not  allow  the  stall  to  be      removed. A  very  large  crowd  had      gathered there.  The Collector said      "do not  bother  about  anyone  put      everyone in the van."      The learned  Attorney has  submitted that  it is  quite apparent from  the  said  statements  of  witnesses  of  the complainant that  a tension  had developed  at the  place of occurrence because  the Municipal Staff wanted to remove the tapari and Baban Baheti and a number of persons accompanying him opposed removal. A large number of persons also gathered at the  place of  occurrence. It  was  at  that  stage,  the accused respondents  with police  force came. The Collector, Superintendent of  Police and  the sub-Divisional Magistrate warned the  Councillors, Municipal staff and the complainant that they  had taken charge of the said place and they would not allow  anybody to  remove the  tapari. When such warning was  not  heeded  to  and  the  complainant  and  the  other councillors and the Municipal staff took steps to remove the tapari, the  police had to use force against the accused and others who  did not  listen to  such warning  and they  were arrested and  brought to  the police  station.  The  learned Attorney  has   submitted  that   even  if  there  had  been encroachment on the municipal road without any authority for which such  encroachment was required to be removed, if over the proposed  action of  removal, a  tension develops in the locality  which   is  likely  to  create  a  law  and  other situation, the  District Magistrate,  the Superintendent  of Police  and  other  government  officers  against  whom  the

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complaint had  been made  were justified  to take a decision not allow  anyone to  precipitate the trouble any further at that time.  As a matter of fact the tapari was removed later on when  the tension  subsided. It was clearly made known to the complainant  and other  councillors and  municipal staff that the  police had  taken charge  of the  place and no one would be  permitted to  remove the  tapari at  that point of item. In  inspite of  that the  complaint,  councillors  and other municipal  staff wanted to remove the tapari by force, the respondents  had enough  justification to  prevent  them from  doing   so  by  exercising  force.  Mr.  Attorney  has submitted that the action on the part of the respondents was clearly in  the exercise  of the  official duties  and it is immaterial  whether  in  discharging  the  duties  they  had exceeded the  jurisdiction. Once  the acts  alleged  by  the complainant had  been done  in exercise or even in purported exercise of  official duties,  requirement of sanction under Section 197 Criminal Procedure Code is fulfilled.      The learned  Attorney had  submitted  that  in  Matajog Dubey’s case  (supra) even  though it  was  alleged  by  the complainant  that   the  police  officials  and  Income  Tax Officers used  force and  assaulted, since  such action  was made in  the purported  exercise of the official duties, the Court held  that a  case of  sanction had  been made out. In Pukhraj’s (supra),  it has  been clearly indicated that even if in  discharge of  official duties  some excesses had been made by  the concerned officer, the case of sanction must be held to  be made  out. As  the Post Master General cannot be permitted to contend that kicking the clerks was resorted to even in  the purported  exercise of  his official duties, it was held  that in  facts  of  the  case,  sanction  was  not necessary.      The learned Attorney has also referred to the decisions of various  High Court where the question of sanction in the context of  excesses committed  by the police in discharging official duties  have been taken into consideration. In this connection,  the   learned  Attorney  has  referred  to  the decisions reported in AIR 1957 Madras 555, 1979 Criminal Law Journal 1018  (Patna), 1989 Criminal Law Journal 191 (Madhya Pradesh), 1996  (1) Criminal  Law Journal  836 (Orissa). The learned Attorney  has submitted  that since  the question of sanction goes at the roof of the jurisdiction of the learned Magistrate to take cognizance or to proceed further with the trial of  the criminal  case  in  the  absence  of  required sanction,  the  accused  must  be  permitted  to  raise  the question  of  sanction  at  the  threshold  and  it  is  not necessary for  the accused  to wait  upto the  stage when an accused, within  the scheme  of  trial  under  the  Code  of Criminal Procedure,  can lead  evidence by way of defence as contended by  Mr.Sibal. Mr.  Attorney has  submitted that if really a  case of  sanction was  there, it  will  be  wholly unjustified for  the Magistrate  to take abortive and futile exercise either  in taking  cognizance of  the complaint and proceeding further  with the criminal trial. Therefore, plea of bar  against cognizance  and consequential  for  want  of sanction must be permitted to taken at the threshold and the usual procedure  of leading  evidence against  the merits of the prosecution  case by  way of  defence  evidence  is  not required to be followed for bringing materials in support of plea of  bar for  want of sanction. The learned Attorney has submitted that  the impugned  order passed by the High Court is legal  and fully  justified and no interference is called for against the impugned decision.      After giving our careful consideration to the facts and circumstances of  the case  and the respective submission of

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the learned  counsel for  the parties  it appears to us that the question  of requirement  of sanction  under Section 197 Criminal Procedure  Code should  not be  confused  with  the scheme of trial under the Code of Criminal Procedure and the stage at  which an  accused against  whom the  cognisance of offence has  been taken  by the  learned Magistrate can lead evidence  in  support  of  his  defence.  The  question  for consideration is  when  a  Magistrate  on  the  basis  of  a complaint issued  process for  appearance of  the accused on being  satisfied   that  there   is  sufficient  ground  for proceeding and the accused appears before the Magistrate and takes the  plea  that  the  offence  alleged  to  have  been committed by  him was  in the discharge of his official duty and further  he was not removable from his office save by or with the  sanction of  the Government  and consequently  the court has  no power  to  take  cognisance  except  with  the previous sanction  of the  Government as required under sub- section (1) of Section 197 of the Code of Criminal Procedure than the  Magistrate would be required to decide the plea on the materials  on record  then existed  or the  accused  can produce  relevant   material  to   establish  the  necessary ingredients  for   invoking  Section  197(1)  of  the  Code? According to Mr. Sibal, the Magistrate can examined the plea only with reference to the materials available on record and at that  stage accused  cannot have any right to produce any evidence to  support his  plea.  According  to  the  learned Attorney General,  if the accused is debarred from producing the relevant  materials to indicate that the acts complained of were in fact committed by the accused in discharge of his official duty and he can only produce the materials when the criminal proceeding  reaches the stage under sub-section (4) of Section 246 in any warrant case instituted otherwise than on police  report, then  the very  object and purpose of the provisions of Section 197 will get frustrated and the public servants  will  have  to  face  irresponsible  or  vexatious proceeding even  in respect of acts done by him in discharge of  official    duty.  According  to  the  learned  Attorney General, therefore,  though at  that stage  it  may  not  be permissible for  an accused  to lead  any oral  evidence but there cannot  be  any  bar  for  him  to  produce  necessary documents including official records for the limited purpose of consideration  as to  whether Section  197 can be said to attracted and whether there exists a valid sanction.      Mr. Sibal’s  contention is  based upon the observations made by  this Court  in Mathew’s  case (1992  (1) SCC  217), wherein this  Court had observed that even after issuance of process under Section 204 of the Code if the accused appears before the  Magistrate and  establishes that the allegations in the  Complaint Petition  do not  make out any offence for which process  has been  issued then  the Magistrate will be fully within  his powers  to drop  the proceeding or rescind the process  and it  is in  that connection  the  Court  had observed "if  the complaint  on the very face of it does not disclose any  offence against  the accused."  The  aforesaid observation made  in the  context of  a case made out by the accused either  for recall  of process already issued or for quashing of  the proceedings  may not  apply fully to a case where the  sanction under  Section 197(1)  of the Cr.P.C. is pleaded as  a bar  for taking  cognisance.  The  legislative mandate  engrafted   in  sub-section   (1)  of  Section  197 debarring a  court from  taking  cognizance  of  an  offence except with  a previous sanction of the concerned Government in a  case where  the acts complained of are alleged to have been  committed  by  public  servant  in  discharge  of  his official duty  or purporting  to be  in the discharge of his

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official duty  and such public servant is not removable from his office  save by  or with  the sanction of the Government touches the  jurisdiction of  the  Court  itself.  It  is  a prohibition imposed  by the  statute from taking cognizance, the accused  after appearing  before the  court  on  process being issued,  by an  application  indicating  that  Section 197(1) is  attracted merely assists the court to rectify its error where  jurisdiction has  been exercised  which it does not possess.  In such a case there should not be any bar for the accused  producing the  relevant documents and materials which will be ipso facto admissible, for adjudication of the question  as   to  whether  in  fact  Section  197  has  any application in  the case in hand. It is no longer in dispute and has  been indicated  by this Court in several cases that the question  of sanction  can be considered at any stage of the proceedings.      In Matajog’s  case, 1995  (2) SCR  925 the Constitution Bench held that the complaint may not disclose all the facts to decide  the question of applicability of Section 197, but facts subsequently  coming  either  on  police  or  judicial inquiry or  even in  the course  of prosecution evidence may establish the  necessity for  sanction. In  S.B. Saha’s case (1979 (4)  SCC 177,  the  court  observed  that  instead  of confining itself  to the  allegations in  the complaint  the Magistrate can  take into  account all  the materials on the record at the time when the question is raised and falls for consideration.  In   Pukhraj’s  case,   (supra)  this  court observed that  whether sanction  is  necessary  or  not  may depend  from   stage  to   stage.  In   Matajog’s  case  the Constitution Bench  had further  observed that the necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place the material on  record during  the course  of trial for showing what his  duty was  and also  the acts complained of were so inter related  with his  official duty  so as to attract the protection afforded  by Section  197 of the Code of Criminal Procedure. This  being the position it would be unreasonable to hold  that accused even though might have really acted in discharge of his official duty for which the complaints have been lodged  yet he  will have  to wait till the stage under sub section  (4) Section 246 of the Code reaches or at least till he  will be  able to  bring in relevant materials while cross examining  the prosecution witnesses. On the other had it would  be logical  to hold  that  the  matter  being  one dealing  with   the  jurisdiction   of  the  court  to  take cognisance, the  accused would  be entitled  to produce  the relevant and  material documents  which can be admitted into evidence without formal proof, for the limited consideration of the  court whether  the necessary  ingredients to attract Section 197  of the  Code have  been established or not. The question of applicability of Section 197 of the Code and the consequential ouster  of jurisdiction  of the  court to take cognisance without a valid sanction is genetically different from the  plea of  the accused  that the  averments  in  the complaint do  not make  out an offence and as such the order of cognisance and/or the criminal proceedings be quashed. In the aforesaid  premises were  are of  the considered opinion that in  accused is not debarred from producing the relevant documentary materials  which  can  be  legally  looked  into without any  formal proof,  in support of the stand that the acts  complained  of  were  committed  in  exercise  of  his jurisdiction or  purported jurisdiction  as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.      Considering the facts and circumstances of the case, it

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prima facie  appears to us that the alleged acts on the part of the  respondents were  purported to be in the exercise of official duties. Therefore, a case of sanction under Section 197 Criminal  Procedure Code  has been prima facie made out. Whether is was unjustified on the part of the respondents to take recourse to the actions alleged in the complaint or the respondents were  guilty of  excesses committed by them will be gone  into the  trial  after  the  required  sanction  is obtained on the basis of evidence adduced by the parties. At this stage, such questions are not required to be considered because the  accused have not yet led evidence in support of their case on merits.      We, therefore,  do  not  think  that  any  interference against the  impugned  order  is  called  for.  The  appeals therefore fail  and are  dismissed. By  abundant caution, we make it  clear that  on the  merits of  the case we have not expressed any opinion.