1. The petitioner, who is a Mukhtiar, laid a criminal complaint alleging that he had been wrongfully confined by an Honorary Magistrate. The Magistrate to whom the complaint was made dismissed it under Section 203 of the Code of Criminal Procedure, on the ground that the case was covered by Section 77, Indian Penal Code. An application was made to the Sessions Judge to direst a farther enquiry and he refused that application on the ground that Section 197, Criminal Procedure Code, applied and that, in the absence of any sanction under that section, no further enquiry could be ordered. I think that the learned Sessions Judge was right. The allegations against the Honorary Magistrate are clearly in respect of acts committed by him in the exercise of his judicial capacity. Whether the Honorary Magistrate acted illegally or not is not a matter on which we need express an opinion. But it is obvious that he acted solely as a Judge in the matter. Our attention has been drawn to the decision in the case of Nando Lal Basack v. N.N. Mitter 26 C. 852 : 3 C.W.N. 539 : 13 Ind. Dec. (N.S.) 1146. But that is a very different case from the present. A Magistrate or a Judicial Officer who is holding a trial cannot be said to be acting in a judicial capacity if he abuses or defames a witness or a legal practitioner appearing before him; but, if, in order to examine a witness, he detains him until the time of his examination comes or until he makes enquiries as to the failure of the witness to appear before him, his acts are purely judicial aits, and, if any offence is committed by the Magistrate exceeding his powers in doing those acts, it is necessary that there should be sanction under Section 197, Code of Criminal Procedure. We have not been asked to consider whether sanction under this section should be given or not. Therefore, I would hold that the order of the Sessions Judge refusing to direst a further inquiry was justified on the ground which was given, and that this Rule should be discharged.
2. I concur with my learned brother in discharging this Rule. We have been invited in this case to hold that the abused may be prosecuted under Section 342, Indian Penal Code, without a sanction under Section 197, Criminal Procedure Code. A large number of authorities have been cited before us with reference to the point in question. To me it seems that the result of those authorities is that if a Judicial Officer or a public Servant does anything in the exercise of the powers vested in him by law, and abuses such powers, sanction under Section 197, Criminal Procedure Code, is necessary. If, on the other hand, he does something which the law does not empower him to do, though he is occupying for the time being the position of a Judge or public servant, sanction would not be necessary. In this view of the law, I think, in this case all the acts that the accused is alleged to have done were done in the exercise of the powers vested in him by law, though such powers might have been abused. I am, therefore, of opinion that in this case whether the accused is prosecuted under Section 219 or Section 342, Indian Penal Code, sanction under Section 197, Criminal Procedure Code is necessary, I do not think that on the merits of the case, we ought to interfere with the order under Section 203, Criminal Procedure Code, and direct a further enquiry.