Debabrata Mookerjee, J.
1. This is a petition for revision of an order of the Chief Presidency Magistrate, Calcutta, dated 25-2-1955 by which the learned Magistrate discharged the opposite parties from certain proceedings on the ground that they were not maintainable by reason of absence of sanction under Section 197, Criminal P. C.
2. On 1-12-1954, the petitioner filed a complaint in the Court of the Chief Presidency Magistrate, Calcutta, charging the opposite parties with having committed offences under Sections 330/109 and 323, Penal Code. The allegations briefly were that the petitioner had been arrested on 29-11-1954 from a house at Wellesley Street in connection with an investigation relating to the seizure of a considerable quantity of opium in the Kiddierpore docks.
The petitioner was thereafter taken to the Customs House where he was detained and the opposite party No. 1, the Deputy Commissioner of Excise along with opposite party No. 2, Superintendent, Customs Preventive Service, came and pressed the petitioner to make a statement which might lead to further disclosures relating to the contraband opium that had been seized.
Threats were held out and the petitioner having declined to furnish any information, he was severely assaulted with fist, blows and in diverse other ways. A further threat was held out that he would be beaten to death in the event of his refusal to supply the information which the opposite parties thought the petitioner had been withholding. The assaults and the threats took place on more than one occasion and the details of the assault need not further be set out in the context of the present Rule.
On the 30th of November the petitioner was produced before the Chief Presidency Magistrate, Calcutta, when he was released on bail and it was then that the petitioner gave the details of the torture on him to the Magistrate who was shown the injuries that were said to have been sustained by the petitioner as a result of the assaults. Those injuries were examined at the Medical College Hospital and on 1-12-1954, the complaint was instituted against the opposite parties.
3. The learned Chief Presidency Magistrate examined the complainant and thought the complaint required to be tested and in that view directed a judicial enquiry which was held by another learned Magistrate.
On 20-12-1954 the report of the enquiry was received by the learned Chief Presidency Magistrate who directed the issue of process against the opposite parties under Section 323, Penal Code holding in effect that in the circumstances disclosed the opposite parties could not plead Section 197, Criminal P. C. as a bar to the present prosecution.
4. On 29-1-1955, the opposite parties appeared in obedience to the process issued when it was contended before the learned Magistrate that the proceedings were not maintainable by reason of the bar of Section 197, Cr P. C.
The preliminary objection thus raised on behalf of the opposite parties was heard on 19-2-1955 and the learned Magistrate made an order on 25-2-1955 which is now under challenge by which he directed the opposite parties to be discharged from the proceedings holding that they were not maintainable in view of the provisions contained in Section 197, Criminal P. C.
5. Mr. Dutt has argued in support of the Rule that the circumstances disclosed so far did not entitle the opposite party to the benefit of the protection given to public servants by the provisions of Section 197 of the Code. It has been argued that the assaults and torture alleged against the opposite parties clearly indicate that those acts could not be said to have been done or even purported to be done in discharge of official duties, and that being so, the order of discharge made by the learned Magistrate on the ground that Section 197, Cr. P. C. was a bar to the present prosecution was erroneous.
6. Mr. Kar appearing on behalf of the opposite parties has contended, on the other hand, that the order of the learned Magistrate is in substance a correct order and the present prosecution against the opposite parties having been started without proper sanction could not in law be allowed to proceed.
Section 197 merely gives protection against frivolous complaints and the petitioner would be perfectly entitled to prosecute the opposite parties after he has complied with the requisites mentioned in Section 197 of the Code.
7. It is to be observed that the arguments before me, and presumably also before' the learned Chief Presidency Magistrate, have proceeded on the footing that the opposite parties are public servants who according to the complainant were not acting or even purporting to act in the discharge of official duties but who in the view of the Department concerned were acting or at any rate purporting to act in discharge of such duties.
8. On reference to the record it appears however that there are no materials upon which either this Court or the Court of the Presidency Magistrate might properly be invited to consider the question whether Section 197 was a bar to the present prosecution. That section provides that when a public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of official duty, no Court shall take cognizance of such offence except with the previous sanction of the authority, named in the section.
The essential requirement is that there must be material before the Court on which to base a decision as to whether the person claiming the benefit of protection under Section 197 is or is not entitled to claim it. It seems reasonably clear, or at any rate, it may perhaps be assumed that these opposite parties are public servants; but in order to be able to determine whether the provisions of Section 197 could at all be invoked in aid of the contention that they cannot be prosecuted except upon sanction of the appropriate authority there must, I think, be some further material legally brought on the record to enable the Court, to give its decision.
In the present case, as I have indicated, there is no material whatever and it is somewhat surprising that it never struck anyone concerned with these proceedings that before a decision could be given or even asked for as to whether the plea of want of sanction was available or not, there must be material in support of it or in opposition to it.
9. In the course of the argument the learned counsel on both sides invited me to consider the effect of several decisions of this Court, of the Judicial Committee of the Privy Council and lastly of the Supreme Court. I think it cannot be fair to either side to seek to apply the principles emerging from those decisions or any of them, or even to interpret the section unless the necessary facts are placed upon which a decision could be invited.
Enquiries made of learned counsel only confirmed my suspicion that there was no material on the record upon which I could be Invited either to hold that the opposite parties were acting in execution or discharge of official duty or that they were purporting so to act. In this state of the record I consider it impossible to give any decision in the matter.
10. It is to be observed that nearly all the decisions that have been placed before me are decisions on the point in cases which were tried out; that being so there was no paucity or dearth of materials in any one of them. It was therefore quite possible for the Courts concerned to express definitively opinion about the question whether in the circumstances of those cases the plea of want of sanction was a valid plea or not; but in the present case there is no material whatever and that being so, the plea cannot possibly be pronounced upon just now.
11. The question then arises whether in a case of this kind when the plea of want of sanction is taken in order to throttle the prosecution in limine, what course the Court should take? Is it right that the Court will suspend its judgment in the matter and keep it an open question until the end of the trial; or is it when any such plea is taken and meant to be availed of initially the Court should give the party concerned an opportunity to bring before it materials upon which it could reasonably be expected to act?
To hold that the Court should not at the stage give the party concerned, opportunity to produce material which might help a decision of the question would be to compel the party to submit to a trial which might ultimately prove infructuous.
While the inconvenience remains of permitting a sort of preliminary enquiry before the actual trial commences, it will definitely be unfair to the complainant as much as to the accused persons to compel them to sit through a trial only to be told at its conclusion that the whole thing must end in nothing as the necessary initial sanction had not been obtained.
Even more deplorable will be the result, if the accused person after having been made to face a trial and to take the chance of a judgment against him, assails his conviction from Court to Court only to be told perhaps by the Court of final appeal that he has these months and years been unnecessarily subjected to harassment of an abortive trial. Nothing can be more unfortunate than such a result.
The Code of Criminal Procedure, it is true, does not contain any express provision for the taking of evidence for the purpose of enabling a Court to come to a decision as to whether such plea in limine bars a prosecution. But that does not, I think, prevent a Court from exercising its inherent power of doing justice between the State and party, or party and party by taking evidence in order to be able to decide whether the prosecution should at all be permitted to proceed.
There is nothing in the Code which prevents it, although it must be said that there is no positive sanction to such a course. I am, therefore, inclined to hold that where a preliminary objection is taken to the maintain-ability of a prosecution and Section 197 of the Code is pleaded in bar of it, the only course left open to the Court is to take some evidence for the purpose of enabling it to decide whether Section 197 does or does not constitute such a bar.
A contrary course would involve not only delay but is bound to produce a state of things which will induce want of confidence in the expeditious and effective administration of justice.
12. In the instant case, it has been argued that the opposite parties are public servants and they were acting or purporting to act in the discharge of their official duties. Assuming for a moment that they are public servants, there is no material whatever from which it could reasonably be said that they were acting or even purporting to act in the discharge of their official duties, in order that the Court might be able to judge whether the acts which are attributed to them by the complainant would be acts which they could claim to have done in the purported discharge of their duties.
It is essentially necessary to see what the duties of their officer were. If the opposite parties were persons entirely unconnected with the investigation of the crime which had been detected and in connection with which the complainant had presumably been arrested, then no question would arise of Section 197 being considered as a plea in bar.
It is only when there is reliable evidence on the record to indicate that the two opposite parties are public servants who were so placed that they could be said to have been doing or purporting to do their official duties that the question of Section 197 will, in fact arise.
It is, therefore, to investigate whether these two officers had as public servants been entrusted with the duty of investigation. If they had not been so entrusted, they would have no occasion to see the petitioner in the Customs House where he was being detained; they would in that event have no justification whatever even to question him and none whatever to assault him in case he refused to give satisfactory answers to their interrogatories.
If it transpires that as a result of their official position the two opposite parties had been Legally charged with the duty of investigating the crime then the question might arise whether the acts complained of, could be said to be acts purported to have been done in the discharge of official duties.
The mere fact that these opposite parties were connected either with Excise Department or with the preventive section of the Customs does not surely establish that they were acting or purporting to act in the discharge of their official duties. There is however nothing on the record which would entitle the Court to hold either way.
13. I think the matter has to be sent back with a direction to the learned Magistrate to take evidence in order to be able to determine whether the plea of want of sanction raised by the opposite parties is at all sustainable.
14. The Rule is accordingly made absolute and the order of the learned Magistrate isset aside and the matter is remanded to bedealt with by him in accordance with law andthe observations made above.