N.C. Talukdar, J.
1. This Rule is at the instance of the complainant petitioner, Benoy Chakraborty against an order dated the 27th February. 1971, passed by Sri H. S. Barari. Additional Chief Presidency Magistrate, Calcutta refusing to issue process against the accused opposite-parties Nos. 2 and 3. in the absence of a sanction under Section 197(1) of the Code of Criminal Procedure, in case No. G/783 of 1970 under Section 302/34 I. P. C.
2. The facts can be put in a short compass. On the 22nd December. 1970, the complainant-petitioner filed a petition of complaint in the court of the Additional Chief Presidency Magistrate, Calcutta under Sections 302/34. 201 and 379 I. P. C. against six named accused persons including the opposite-parties Nos. 2 and 3, and some others, whose names were not known but could be identified. The Additional Chief Presidency Magistrate examined the complainant and sent the matter to Sri R. P. Roy Chowdhury, Presidency Magistrate, 11th Court. Calcutta for a judicial enquiry and report. Several witnesses were examined by the learned enquiring magistrate and some documents were produced at the judicial enquiry and the enquiring magistrate, in his report dated the 18th February, 1970 held that a prima facie case under section 302/34 I. P. C. was made out against all the six accused persons and further held that no sanction under Section 197 (1) of the Code of Criminal Procedure was required for prosecuting the accused Nos. 1 and 6 who are the opposite parties Nos. 2 and 3 in the present Rule. After certain dates the Additional Chief Presidency Magistrate. Calcutta upon hearing the learned lawyer for the prosecution on certain points of law and on perusing the report of the judicial enquiry ultimately by his order dated -the 27th February, 1971, issued process under Section 302/34 I. P. C. against the accused Nos 2 to 5 but refused to issue process against the accused Nos. 1 and 6 in the absence of a requisite sanction under Section 197 (1) of the Code of Criminal Procedure. The order refusing to issue process against the opposite parties Nos. 2 and 3 has been impugned and forms the subject matter of the present Rule.
3. Mr. Arun Prokash Chatterjee, Advocate (with Mr. Samar Kumar Dutt, Advocate) appearing in support of the Rule on behalf of the complainant-petitioner made a two-fold submission. one of law and the other a mixed question of law and fact. He contended in the first instance that the learned Advocate-General, appearing on behalf of the opposite-Parties Nos. 2 and 3. who were accused Nos. 1 and 6 in the court below, has indeed no locus standi to appear on their behalf in a Criminal proceeding instituted at the instance of a private complainant, wherein the State is also a party. He referred to Article 165(2) of the Constitution of India Sections 492 and 495 of the Code of Criminal Procedure and also relied on the observations made in D. Basu's 'Commentary on the Constitution of India' (5th Edition). Volume 3 at page 273 relating to the Statutory functions as well as the disabilites of the Advocate-General. Mr, Chatterjee next contended that no sanction under Section 197 (1) of the Code of Criminal Procedure is necessary to proceed against the opposite-parties Nos. 2 and 3 who, according to him, were not at the material time acting in the discharge of their official duties in an incident involving two murders. In this connection Mr. Chatterjee' referred to some decisions which will be considered in their proper context. With the permission of the learned Advocate-General appearing on behalf of the opposite parties Nos. 2 and 3, Mr. Dilip Kumar Dutt. Advocate, argued their case Mr. Dutt submitted that there is no legal bar to the learned Advocate-General's appearance on behalf of the two opposite-parties, who are officers of the State, on being engaged by the State Government in that behalf-more so, when there is no adverse interest. He next contended that the prosecution of the two opposite parties is clearly barred in the absence of a sanction under Section 197 (1) of the Code of Criminal Procedure inasmuch as they are public servants not removable from their offices, save by or with the sanction, of the Central Government and the State Government respectively and at the time, were acting or purporting to act in the discharge of their official duties. In support of his contention he referred to several cases which would be considered in their proper context. Mr. Deba Prosad Chowdhury, Advocate appearing on behalf of the State, opposite party No. 1 also joined issue. Mr. Chowdhury supported the submissions of Mr. Dutt relating to the locus standi of the learned Advocate-General and as to the second contention raised on behalf of the petitioner regarding sanction, he submitted that the same is unwarranted and untenable as the point at issue is now well-settled in a series of judicial decisions.
4. The first point raised by Mr. Chatterjee is an intriguing one relating to the locus standi of the Advocate-General to appear on behalf of the opposite-parties Nos. 2 and 3 in a criminal case wherein the State is also appearing as the opposite-party No. 1. The first prong of his submission in this context is based on the provisions of sections 492. 494 and 495 of the Code of Criminal Procedure but it is difficult to understand as to how the same supports his proposition. Section 492 (1) relates to the powers of the State Government to appoint Public Prosecutor generally or for a specific case and under Sub-section (2). the District Magistrate or subject to his control the S. D. M. may in the absence of such an 'appointment or in the absence of the appointed Public Prosecutor, appoint any other person, as enjoined therein, to be the Public Prosecutor for a particular case. Section 495 of the Code refers to permission granted by the trying or enquiring magistrate to conduct prosecutions by any person other than an officer of police below the rank to be prescribed by the Government on this behalf. The Advocate-General however has been exempted under, this provision Section 494 also does not apply to the Advocate-General who has the right to enter Nolle Prosequi under Section 333 of the Code without the consent of the court - a right which belongs to the Attorney-General in England. In India the administration of justice is a state subject and so the power is not conferred on the Attorney-General. The second prong of Mr. Chatterjee's submissions is based on Clause (2) of Article 165 of the Constitution of India, whereby the duties of the Advocate-General are laid down. Nothing is contained in those provisions as such, to prevent the Advocate-General's appearance in such cases. The next prong of his contention is based on the observations made in D. Basu's 'Commentary on the Constitution of India' (5th Edn) Volume 3 at page 273 relating to the disabilities of the Advocate-General. The disabilities have been stated therein as follows : 'By reason of his office, the Advocate-General is (according to the Rules in force in West Bengali debarred from-
(a) Advising or holding briefs against the State; (b) defending accused persons in criminal prosecution; (c) Advising private parties in cases in which he is likely to be called on to advise Government, (d) accepting appointment as Director in any company, without sanction of the Government.' Mr. Chatterjee pinpointed the provisions contained in Clause (b) and contended that an appearance on behalf of the opposite-parties Nos. 2 and 3 in this Rule is tantamount to 'defending accused persons in criminal prosecution', more so when the State is also a party and has put in appearance. Mr. Dilip Kumar Dutt joined issue and submitted that (a) the two opposite parties are no longer accused having not been summoned at all and (b) they are officers of the State involved in a case while discharging their official duty and as such they are entitled to be defended at the cost of the State and by counsel appointed by the government. The interest according to Mr. Dutt is not therefore adverse. Mr. Dutt next submitted that the aforesaid observations made in D. Basu's 'Commentary on the Constitution of India' are apparently based on the old provisions of the legal Remembrancers Manual since amended materially. He referred to Section 2, Sub-section (7) in Chapter I of the amended Legal Remembrancer's Manual, 1930 (Vol. 1) wherein the old provisions in Clause (ii) of Sub-section (8) of the Manual have been considerably extended by amendment as follows; 'Defending accused persons in criminal prosecutions; unless specially authorized by the Governor.
(e. g. in a private prosecution in which government is not interested).
Mr. Dutt finally submitted that the Government has specifically authorised the learned Advocate-General to appear for the two opposite-parties as would be borne out by the sanction of the Legal Remembrancer, West Bengal, recorded in the requisite file and if called upon to do so. undertook to produce it before the court.
5. For a proper consideration of this point, it is necessary to refer to the relevant provisions in the Constitution as also in the Rules, laying down the rights of the Advocate-General for a State who has the same position in relation to that State as the Attorney-General for India has in relation to the Union. Under Article 165(1) of the Constitution he is 'a person who is qualified to be appointed a Judge of a High Court' and under Section 23 of the Advocate's Act, 1961 he has 'a right of pre-audience over all other advocates'. Clause (2) to Article 165 of the Constitution of India, refers to the discharge by the Advocate-General of 'functions conferred on him by or under this Constitution or any other law for the time being in force'. The provisions of sections 91 and 92 of the Code of Civil Procedure 1908. Sections 194 (2), 333. 495 (1) and 526A of the Criminal Procedure Code; and section 39 of the Lunacy Act, constitute inter alia such 'other law for the time being in force'. The disabilities of the Advocate-General are again catalogued in Section 2 Chapter 1 of the Legal Remembrancer's Manual. 1930 (Volume 1). The reference to such Rules as contained in page 273 of the Basu's 'Commentary on the Constitution of India' (5th Edition), Vol. 3, is apparently based on the old Rules, before amendment. Clause 'b' as referred to therein is equivalent to Clause (ii) of Sub-section (8) to Section 2 in Chapter I of the Legal Remembrancer's Manual. 1930 (Vol. 1). The said clause however after amendment, as contained in Clause (ii) of Sub-section (7) to section 2 in chapter I of the Legal Remembrancer's Manual. 1930 (Vol. 1) is as follows : 'Defending accused persons in criminal prosecutions unless specially authorized by the Governor.
(e.g. in a private prosecution in which Government is not interested'
The provisions are now appreciably wider ruling out the objection of Mr. Chatterjee, based on the older Rules referred to in Basu's 'Commentary on the Constitution of India'. It cannot also be overlooked that the learned Advocate-General has been specifically authorized by Government to appear for the two opposite-parties as borne out by the sanction of the Legal Remembrancer, West Bengal. In any event the two opposite-parties who have not been summoned by the Additional Chief Presidency Magistrate, Calcutta are responsible officers of the State involved in a case while discharging or purporting to discharge their duties, as such entitled to be defended by counsel at the cost of the State or appointed by the Government. There is also no adverse interest. The Advocate-General is the Chief Legal Adviser of the State and the Statutory powers and functions vested in him cannot be allowed to be circumscribed unreasonably, de hors the intention of the law-making authority and in contravention of the Constitution. Any such attempt is neither intended by the law making authority nor expedient in the interests of justice. The bounds are clearly divided, and to give effect to Mr. Chatterjee's submissions, one will have to go beyond the relevant provisions and embark on 'a voyage of discovery'. As was observed by Viscount Simonds in the case of Magor and St. Mellons Rural District Council v. New Port Borough Council reported in 1952 AC 189 at page 191 that 'the duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are the power and duty of the court to travel outside them on a voyage of discovery are strictly limited'. I hold therefore that the learned Advocate-General has locus standi to appear on behalf of the opposite-parties Nos. 2 and 3 in this Rule, having been specially authorized, in this behalf, by a requisite sanction by the Legal Remembrancer, West Bengal, on prayers specifically made by the parties concerned. Such appearance on behalf of the two officers employed by the State rules out also any adverse interest. To hold otherwise would be unwarranted and unconscionable, encroaching unreasonably on the fundamental rights of such accused as guaranteed under Article 22(1) of the Constitution of India viz., the right to be defended by 'a legal practitioner of his choice'. The first contention of Mr. Chatterjee accordingly fails,
6. The second contention of Mr, Chatterjee relates to the requirement of a sanction under Section 197 (1) of the Criminal Procedure Code. A sanction, as is some times overlooked is not a mere formality but a very much indispensable incident going to the root of the case and the absence thereof vitiates the proceeding. As Sir. John Beaumont observed in the well-known case of Gokul Chand Dwarkadas Morarka v. The King reported in AIR 1948 PC 82 at page 84 'The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution... The giving of sanction confers jurisdiction on the court to try the case' Chief Justice Chakraborty sitting with Mr. Justice Lahiri (as his Lordship then was) observed in, the case of Indu Bhusan Chatterjee v. The State reported in : AIR1955Cal430 that 'the sanctioning authority is placed somewhat in the position of a sentinel at the door of criminal court in order that no irresponsible or malicious prosecution can pass the portals of the court of justice'. The intention of the legislature is not to set an official above the common law. If he commits a common offence he has no peculiar privilege. But if one of his official acts is alleged to be an offence on prosecution will be allowed without sanction for the obvious reason that otherwise official action would be beset by private prosecution. As was observed by Sen and K, C. Chunder JJ. in the case of S. Banerjee v. The State reported in : AIR1951Cal388 that 'the section is not intended to put a wall round public servants so as to protect them from prosecution for criminal offences committed by them .... In our view the object of the section is to enable public servants to perform their duties fearlessly by protecting them from vexatious, mala fide . or false prosecutions for acts done in the performance of their duties.' It is in the light of the said principles that the provisions of section 197 (1) of the Code of Criminal Procedure should be interpreted.
7. To gather the 'intent and meaning' of the provisions, it is now necessary to refer to the statute. Sub-section (1) to Section 197 as substituted by Section 50 of the Criminal Procedure (Amendment) Act, 1923 (Act XVIII of 1923) for the old sub-section is as follows : 'When any person who is a judge within the meaning of section 19 of the Indian Penal Code, or when any magistrate or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 cognisance of such offence except with the previous sanction-
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and
(b) In the case of a person employed in connection with the affairs of a State, of the State Government.
The sine qua non therefore of a sanction under section 197 (1) of the Code is that the public servant concerned is (a) not removable from his office save by or with the sanction of a State Government or the Central Government; (b) 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; and (c) in the case of a person employed in connection with the affairs of the Union, such previous sanction is to be made by the Central Government arid in the case of a person employed in connection with the affairs of a State by the State Government. To ascertain the correct import of the provisions contained in Section 197 (1) of the Code of Criminal Procedure, it is necessary to consider the earlier law and the legislative changes. This section corresponds to section 466 of the Code of 1872, Section 132 of Act X of 1875 and Sections 39 and 46 of Act IV of 1877. In the 1872 Code, the relevant words were 'an offence committed by a public servant' and in the Codes of 1882 and 1898 the words were 'is accused as such judge or public servant of any offence'. Sub-section (1) was substituted by section 50 of the amending Act XVIII of 1923 and the present wording which is more explicit is 'while acting or purporting to act in the discharge of his official duty'. The amendment therefore has apparently widened the scope of the section. Some meaning and effect must be given to the words used by the legislature viz., 'while acting or purporting to act in the discharge of his official duty'. It is pertinent therefore to refer in this context to the golden rule of construction of Statute. It was observed by Viscount Simonds, L. C. in the case of Nokes v. Doncaster Amalgamated Collieries reported in (1940) A. C. 1014 at page 1022 that 'The golden rule is that the words of a statute must prima facie be given their ordinary meaning'. The further observations by the Lord Chancellor in the said case are significant viz., that 'At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.' Judges are not called upon ordinarily to apply their opinion of sound policy so as to modify the plain meaning of statutory words. It is again to be remembered that the principles of interpretation of Statute rule out redundancy. As Lord Sumner observed in the case of Qubec Railway, Light, Heat and Power Co. Ltd. v. Vandry reported in AIR 1920 PC 181 at page 186 that 'effect must be given, if possible, to all the words used, for the legislature is deemed, not to waste its words or to say anything in vain.' Considered in the light of the said principles it is abundantly clear that the substitution of the words 'while acting or purporting to act in the discharge of his official duty' in Sub-section (1) of the amended Act, in place of the old sub-section, has clearly extended the scope of the said sub-section.
8. It is pertinent now to turn to the doctrine of stare decisis for a determination of the point at issue. The cloud that centered round the interpretation of the words 'while acting or purporting to act in the discharge of his official duty'. at one stage has since been lifted by the imprimatur of judicial decisions. A reference may be made in the first instance to the wellknown case of Dr. Hori Ram Singh v. Emperor reported in AIR 1939 FC 43. It is a corner-stone in the line of such cases and has been referred to and approved of repeatedly in the subsequent decisions on the point. The point at issue in the aforesaid case had arisen against the backdrop of section 270(1) of the Government of India Act, 1935, the relevant words whereof are 'act done or purporting to be done in execution of duty as servant of Crown'. , Mr. Justice Vardachariar observed at page 56 that 'the question does not seem to have arisen for decision under Section 270(1), Constitution Act. We were accordingly referred by way of analogy to a number of rulings, under Section 197 Criminal P, C.. and one or two decisions under Section 80. Civil P. C.' He proceeded to observe that 'It does not seem to me necessary to review in detail the decisions given under Section 197 Criminal P. C. which may roughly be classified as falling into three groups, so far as they attempted to state something in the nature of a test. In one group of cases it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it; in another group more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems to me that the first is the correct view. In the third group of cases, stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed...The use of the expression 'while acting' etc. in Section 197 Criminal P. C. (Particularly its introduction by way of amendment in 1923) has been held to lend some support to this view'. The next important decision on the point is the case of H, H. B. Gill v. the King on appeal from the Federal Court of India reported in 75 Ind. APP 41 : AIR 1948 PC 128 Lord Simond delivering the judgment observed at page. 59 that 'the bounds in Section 270 'in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown' appear to have precisely the same connotation as the words in Section 197 Sub-section (1) 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' ' The Judicial Committee proceeded to observe as follows : 'But, if a temporal meaning is not given, as in Their Lordship's view it clearly should not be given to the words in Section 197 'while acting, etc.', it is in their opinion impossible to differentiate between the two sections. In the consideration of Section 197 much assistance is to be derived from the judgment of the Federal Court in AIR 1939 FG 43 and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar J.', Lord Simond ultimately laid down the test at page 60 that 'The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office'. The test laid down above was approved of and applied in the case of Phanindra Chandra Neogy v. The King reported in AIR 1949 PC 117. Lord Simond delivering the judgment observed at page 118 that 'They have heard full argument and, having done so, see no reason to doubt the validity of the reasoning or the correctness of the conclusion in Gill's case'. The same view was taken also in the case of Ronald Wood Mathams v. State of West Bengal reported in AIR 1954 SC 455. Mr. Justice Venkatarama Ayyar delivering the Judgment of the court observed at page 457 that 'The question whether sanction under Section 197 was necessary for instituting proceedings against the appellant on charges of conspiracy and of bribery is now concluded by the decisions of the Judicial Committee in 'H. H. B. Gill v. The King' AIR 1948 PC 128 : 75 Ind. App 41 and 'Phanindra Chandra Neogy v. The King' AIR 1949 PC 117'. The principles laid down in Hori Ram's case were approvingly referred to in several decisions of the Supreme Court subsequently. In the case of Shree Kantiah Ramayya Munipalli v. State of Bombay reported in : 1955CriLJ857 Mr. Justice Vivian Bose delivering the judgment of the Court referred to a decision of the Privy Council in Gokul Chand Dwarkadas's case (AIR 1948 PC 82) and also of the Federal Court in Dr. Hori Ram Singh!s case (AIR 1939 FC 43), and ultimately observed at pages 292-293 that 'Now it is obvious that if Section 197. Criminal P. C. is construed too narrowly it can never be applied for of course it is no part of an official duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it'. The conditions which necessitate sanction have also been discussed by the Supreme Court in the case of Amrik Singh v. State of Pepsu reported in : 1955CriLJ865 Mr. Justice Venkatarama Ayyar delivering the judgment of the court considered the principles laid down in the cases of Dr. Hori Ram Singh A. W. Meads H. H. B. Gill, Phanindra Chandra Neogy and R. W. Mathams and ultimately observed at page 312 that 'The result of the authorities may thus be summed up. It is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1) Criminal P. C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with the official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was. in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution'. The Supreme Court considered all the earlier cases and ultimately laid down the following test in the case of Matajog Dobey v. H.C. Bhari reported in : 28ITR941(SC) . Mr. Justice Chandrasekhara Aiyar delivering the judgment of the Court observed at page 49 that 'the result of the foregoing discussion is this : The act must bear such relation to the duty that the accused would lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty'. The Supreme Court further proceeded to observe that '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'. Two other decisions remain to be considered one of which was cited by Mr. A. P. Chatterjee and the other one by Mr. Dilip Kumar Dutt. Mr. Chatterjee referred to the case of Provakar V. Sirani v. Sankar Anant Verlekar reported in : 1969CriLJ1057 . In that case the accused was a Deputy Superintendent of Police and it was held by Mr Justice Grover delivering the judgment of the Court, that no sanction under Section 197 (1) Criminal Procedure Code was necessary to prosecute him under Sections 149, 341. 342. 352. 500, 503 and 504/34 I. P. C. The facts in the said case however are clearly distinguishable from those in the present case. In the facts of the said case the Supreme Court held that 'even if the accused who was the superior officer could come to prevent any ugly situation arising between the complainant and the hawkers, it was not established that the accused came in the capacity as a police officer. Until some more material was placed on the record it could not be held that it was any part of the duty of the accused to ensure that the hawkers were put in possession of the disputed land. The Supreme Court ultimately held that 'It would however be open to the accused to establish during the course of further proceedings that the requisite sanction under Section 197 must be obtained'. Mr. Dutt referred to the case of Somchand Sanghvi v. Bibhuti Bhusan Chakravarty reported in : 1965CriLJ499 in this context, in support ' of his submission that a sanction is necessary to prosecute the opposite parties Nos. 2 and 3. The steps of Mr. Dutt's reasoning are that the opposite party No. 2, Bibhuti Bhusan Chakraborty who was then an Assistant Commissioner of Police, Calcutta, was the party-respondent in the abovementioned decision; and that Mr. Justice Mudholkar ultimately held in that case that a sanction of the appropriate authority was necessary for the said respondent's prosecution. The facts again are clearly distinguishable and the observations made in the abovementioned decision will not as such determine the point at issue in the present case. It was found in the facts of the said case that whether a person charged with an offence should or should not be released on bail was matter within the discretion of the officer concerned and it while exercising a discretion, he acted illegally on saying that bail would not be granted unless the appellant did something which the appellant was not bound to do the officer concerned cannot be said to have acted otherwise than in his capacity as a public servant. Both the abovementioned cases therefore do not lay down principles which are binding, on ultimate analysis, in the present case. As was observed by the Earl of Halsbury, L. C. in the well-known case of Quinn v. Leatham reported in 1901 AC 495 at page 506 that 'A case is only an authority on what it actually decides and it cannot be quoted for a proposition that would seem to follow logically from it'. If the facts of the two cases are quite distinct any such analogy should not be drawn.
9. On a consideration of the aforesaid cases I ultimately hold that the tests for sanction under Section 197 (1) Criminal Procedure Code that has received the imprimatur of judicial decisions are that there must be a reasonable connection between the act and the discharge of official duty; that the two must be so inter-related that it can reasonably be postulated with the act so done by the accused in the performance of his official duties; and that even if such act appears to be in excess of what is strictly necessary for the discharge of such duty, the consideration of that question is to be deferred till a latter stage when the trial proceeds on merits. Anything beyond that would be de hors the intention of the legislature.
10. However, whether sanction is required in a particular case is ultimately a question of fact. As was observed by Mr. Justice Varadachariar in the case of Dr. Hori Ram Singh 'the question is substantially one of fact to be determined with reference to the act complained of and the attendant circumstances'. I will accordingly proceed to consider as to whether the materials on the record warrant, at this stage, a sanction to proceed against the opposite parties Nos. 2 and 3. A reference in the first instance should be made to the petition of complaint filed in the present case. It brings to light an incident taking place on the 11th November, 1970 at about 9-55/10 p. m. at Shampukur Street, Calcutta, wherein the six named accused persons, all belonging to the police, along with 15 to 20 other armed police men were involved resulting ultimately in firing, causing the death of two persons Ranjit and Samir. In the cause title the opposite party No. 2, Bibhuti Bhusan Chakravarty has been described as the D. C. of Police, North Division and the opposite party No. 3, P. Dey has been described as the A. C. (North Suburb). In paragraph 2 of the petition of complaint it has again been averred that the present opposite-party No. 2. who was accused No. 1 in the case is a Deputy Commissioner of Police attached to North Division of Calcutta Police and in paragraph 13 it has been stated that the accused persons knowingly and intentionally committed the coldblooded murder which was not a part of their duty. It is abundantly clear, however, from a reference to the averments made in the petition of complaint that the two opposite-parties who are police officers are public servants engaged in official duty removable respectively by the Central Government and the State Government. Whether the firing was in excess of the discharge of their official duty or not will be the subject-matter of determination at the trial. At this stage the only point to be determined is whether in view of the materials on the record any sanction under Section 197 (1) Criminal Procedure Code would be necessary and in deciding that the test to be applied is whether the acts complained of in the case are directly concerned with the official duty of the opposite-parties Nos. 2 and 3 and whether the said acts and the official duties are so inter-related that one can postulate reasonably that it was done in the performance of their official duty. Having regard to the nature of the duties imposed on the opposite-parties Nos. 2 and 3 by virtue of their office and also in view of the materials on the record it cannot be ruled out that the said opposite-parties were purporting to act at the material time in the discharge of their official duties, requiring a sanction under Section 197 (1) Criminal Procedure Code to prosecute them. The law of the land does not certainly rule out a prosecution of such officers but only enjoins a sanction if the case comes within the bounds of Section 197 (11 of the Code. Whether the accused are ultimately guilty or not would abide decision in the trial but for the purpose of sanction, it is only the prima facie test as referred to above, that requires to be satisfied. The second contention also of Mr. Chatterjee accordingly fails.
11. Before 1 part with the case, 1 must place on record my appreciation of the able manner in which the case was argued by Messrs. Arun Prokash Chatterjee. Dilip Kumar Dutt and Debaprosad Chowdhury, learned Advocates appearing on behalf of the respective parties, who have spared no pains to assist this Court to come to a proper decision. I would also make it clear that I have made no observations on the merits of the case and as to whether the accused persons had exceeded the bounds of their duties, would be the subject-matter for consideration by the court below in a prosecution based on a requisite sanction.
12. In the result, the Rule is discharged, and the order dated the 27th February. 1971 passed by Shri H. S. Barari, Additional Chief Presidency Magistrate. Calcutta refusing to issue process against the opposite-parties Nos. 2 and 3, in the absence of a sanction under Section 197 (1) Criminal Procedure Code in case No. C/783 of 1970 is hereby upheld.
13. The order will go down as early as possible.