S. Acharya, J.
1. On a police charge-sheet the S. D. M., Cuttack in G. R. Case No. 586 of 1964 took cognizance of an offence under Section 409, IPC against the petitioner, and summoned him to stand Ms trial in this case. The case thereafter 'was transferred to the Court of Sri D. Dalai, Magistrate, First Class, Cuttack. On 7-12-1971 the petitioner filed a petition in the Court of Mr. Dalai, inter alia, contending therein that the petitioner, being a public servant, could not be prosecuted in this case in the absence of a sanction under Section 197, Criminal P. C, and the same having not been obtained the prosecution was bad in law and was liable to be quashed. On the aforesaid petition the Magistrate passed the impugned order as follows:
Perused the case diary. In this case cognizance under Section 409 of the IPC has been taken by the learned S. D. M. on 27-6-1969 and the accused has been summoned to stand his trial.
In the case diary, I find there is sufficient material to frame a charge under Section 409 of the IPC against the accused. At this belated stage I am not to question the competency of the learned S. D. M. for taking cognizance under Section 409 of the IPC without prior approval.
Charge under Section 409, IPC will be framed against the accused. Put up at 2 p. m.
Immediately after the passing of the aforesaid order the petitioner moved the Magistrate not to frame the charge against him as he would prefer a revision against the said order in this Court. The framing of the charge was stayed as prayed for; and on the filing of this revision further proceedings in the case have been stayed by this Court.
2. Mr. Sahu, the learned Counsel for the petitioner, contends that in view of the fact that the above-mentioned question regarding sanction was raised before the Court below, it acted illegally in not deciding that question on merits and in dismissing the- said petition by the impugned order, deciding thereby to hold the trial by framing a charge against the petitioner.
3. Mr. Swamy, the learned Counsel for the State, concedes that the petitioner is a public servant coming within Section 21(12), IPC
The Court, in deciding and disposing of the question of sanction by the impugned order in the manner aforesaid, has completely lost sight of the well-settled law on the subject. In Matajog's case : 28ITR941(SC) their Lordships of the Supreme Court observe as follows:
The question may arise at any stage of the proceedings. 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 inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for 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 the progress of the case.
In the decision of this Court in Sri Prahallad Mallick's case (1970 Cut LT 1337) it has been held that the question of sanction should be taken up at the earliest possible stage, and as and when it arises and/or is raised. As per the provisions of Section 197, Criminal P. C. the Court has no jurisdiction to take cognizance of an offence without sanction, if sanction is lawfully required, and so the Court cannot legally proceed with the trial of the case as soon as the accused is able to satisfy the Magistrate that a sanction under Section 197, Criminal P. C, is required to prosecute him in the case. Accordingly the question of sanction has to be taken up for consideration at any stage of the trial, as and when it is raised, even though cognizance of the matter has already been taken on an earlier date.
In Prabhakar Sinari v. Shankar Verlekar, (AIR 1971 Goa 25) : (1971 Cri LJ 602) it has been held that the question relating to sanction under Section 197, Criminal P. C. can be decided at any stage of the case if there is sufficient material to decide that point.
4. The petitioner, as it appears from the impugned order, specifically alleged that sanction under Section 197, Criminal P, C, was required for his prosecution, and as the same had not been obtained, the prosecution instituted against him was bad in law and was liable to be quashed. The above question was raised at a time when the Magistrate had not framed the charge against the accused-petitioner. As the question of sanction under Section 197, Criminal P. C. was so raised it was the duty of the Magistrate to have decided that matter at that point of time. Merely because the S. D. M. on an earlier occasion took cognizance of the matter, the Magistrate was not justified in holding that he was not competent to consider the question of sanction raised before him at that stage. The S. D. M. took cognizance of the matter on the filing of the charge-sheet of the case before him. On the appearance of the accused before the Court below ha has taken' objection to his prosecution on the (ground of the absence of a sanction under Section 197, Criminal P. C. Accordingly it was the duty of the Magistrate at that stage to decide the merit of the said objection on ithe facts and materials then before him.
5. Mr. Swamy, the learned Counsel appearing for the State, submitted that sanction under Section 197, Criminal P. C. is not required for the prosecution of the petitioner since the offence alleged against him is one under Section 409, IPC which offence can on no account be said to be committed by a public servant in the discharge of his official duty. In my opinion the contention put in that broad and general manner-is not correct. It is of course true that in every case instituted against a public servant, a sanction is not necessary for his prosecution. It will depend on the facts of each case as to whether an offence was committed while acting or purporting to act in the discharge of the official duty. In cases where the act complained of is directly concerned with the official duties of a public servant so that, if questioned, it could be claimed to |have been done by virtue of his office, then sanction would be necessary, irrespective of the consideration as to whether the said act, in fact, was done in the proper discharge of his official duties or not. (Amrik Singh's case : 1955CriLJ865 . lit has been held in Baijnath's case : 1966CriLJ179 .
What is important is the quality of the act and the protection contemplated by Section 197, Criminal P. C. will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. If it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.
In Matajog's case it has been observed:
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
6. On the basis of the above observations of the Supreme Court an invariable proposition of law cannot be laid down that sanction under Section 197, Criminal P. C. is not necessary in any case in which a public servant is prosecuted of an offence under Section 409, I. P. C, as contended by Mr. Swamy. Such a proposition has been directly rejected by their Lordships of the Supreme Court in Amrik Singh's case, wherein it is observed:
The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.
Thus the facts of each case have to be carefully examined in order to see if the complained-of-act of the accused was committed by him 'while acting or purporting to act in the discharge of his official duty' as this phrase in Section 197, Criminal P. C. is understood in legal parlance.
7. The decision reported in : 1966CriLJ179 cited by Mr. Swamy in support of his above contention does not support the proposition as broadly put by him. Two of the three Hon'ble Judges, on a consideration of the evidence on record and the facts and materials before them, arrived at the finding that sanction was not required in this case. Hon'ble Sarkar, J. (the third Judge) has directly disagreed with the proposition in the above broad form. In Om Prakash v. State of U. P., : 1957CriLJ575 , another decision cited by Mr. Swamy, their Lordships accepted the view that 'a public servant committing a criminal breach of trust' does not normally act in his capacity as a public servant. This therefore does not squarely support the proposition urged by Mr. Swamy. In Satwant Singh v. State of Punjab, : 2SCR89 , the only other decision cited by Mr. Swamy, the offence involved was one under Section 420/109, IPC, and their Lordships on a consideration of the cts of that case held that for the prosecution of the particular public servant, involved in that case, for abetting the offence of cheating committed by another accused, the provisions of Section 197, Criminal P. C. are inapplicable. These decisions therefore do not support the proposition as urged by Mr. Swamy.
8. On the above considerations it is now for the Court below to examine the facts and materials before it in order to find out if the complained-of-act of the petitioner comes within the scope and ambit of the above-quoted phrase in Section 197 of the Criminal P. C.
9. Mr. Sahu also urged that the facts alleged against the petitioner, as stated in the charge-sheet, did not constitute an offence under Section 409, I. P. C, and so the prosecution against the petitioner should be quashed and nipped in the bud at this stage, even without deciding the question as to whether sanction was or was not necessary to prosecute the petitioner. In my opinion, this question should not be decided at this stage without at first deciding the question of sanction raised by the petitioner, for in case it is decided that sanction is required to prosecute the petitioner, this case, without a proper sanction, cannot proceed against the petitioner. Accordingly it is premature and inexpedient to decide the question raised above at this stage. Moreover excepting the brief statement of fact in the charge-sheet there is no other material before me at this stage on which this particular question can be properly examined and decided in the correct perspective. Therefore in any view of the matter it is not proper on my part to decide this question at this stage. In case prosecution is sanctioned by the proper authority or it is decided that sanction is not necessary in this case the court below will examine the above factual aspect of the matter, if agitated, in all its aspects on the materials available before it.
10. In the result, therefore, the revision is allowed, the impugned order is set aside and the court below is directed at first to examine and decide the question of sanction raised by the petitioner. In case it finds, on the materials before it, that sanction for the prosecution of the petitioner is necessary in this case, it will have no jurisdiction to proceed with the case so long sanction for the prosecution is not obtained from the proper authority. If sanction is not necessary, then the Magistrate can proceed with the case and dispose it of in accordance with law and the directions contained in this judgment.