B.C. Chakrabarti, J.
1. petitioner Narayan Chandra Pramanik is a Sub-Inspector of Police attached to the office of the District Enforcement Officer, Beldanga, District-Murshidabad. The Opposite Party No. 1, Ananda Mondal filed a complaint against the petitioner alleging commission of offences under Sections 149/323/326/307 I.P.C. In brief the allegation was that on Oct. 20, 1980 while the complainant was washing his mouth at the tank near his house in Dakshin Bachhra, some muslims of the village were attempting to sacrifice a cow on the northern bank of the tank. Some Police personnel were presenter the spot. The complainant and others while passing by the southern bank of the tank were attacked with brick bats. At that time some police personnel came on the southern bank of the tank and suddenly fired on him without provocation. S.I., Narayan Chandra Pramanik fired from his revolver, as a result of which the complainant, Paltu and Patal Ghosh were injured.
2. After the complaint was filed the complainant and some of the witnesses were examined and the accused (the petitioner before us) was summoned. On 12.1.1982 the petitioner filed an application praying for dropping the proceedings for want of sanction under Sections 132 and 197 Cr.P.C. He alleged that a police party including himself was posted at the village to maintain law and order, and that the complainant and the witnesses tried to snatch away the Government property including his revolver for which Beldanga P.S. Case No. 20 Dt. Oct. 20, 1980 (G.R. Case No. 1302/80) had been started. The petitioner alleged that the complainant and his witnesses formed themselves into an unlawful assembly endangering public security, tranquillity and peace and to meet the situation he had acted in exercise of his duties as a Police Officer.
3. The learned Chief Judicial Magistrate, Murshidabad by his order dt. 24.11.1982 observed that the petitioner is not entitled to claim the benefit of the provision of Section 197 Cr.P.C. As regards the other plea that no prosecution could be instituted without prior sanction as provided under Section 132 Cr.P.C. the learned Judge observed as follows:
After careful consideration of the facts and circumstances of the case and materials on record I am of the view that so far as the matter stands at present provisions of Section 197 Cr.P.C. or 132 Cr.P.C. are not attracted in the present case and the application filed by the petitioner Narayan Chandra Pramanik is without any 1 merit and may be rejected.
4. After disposing of the application in the manner aforesaid the learned Magistrate fixed a date for further hearing.
5. Being aggrieved the petitioner filed the present application for quashing the proceeding being C.R. Case No. 22 of 1980.
6. Mr. Ray appearing on behalf of the petitioner fairly conceded at the outset that Section 197 Cr.P.C. could have no application to this case. He also conceded that the petitioner could not perhaps legitimately claim that the entire proceedings be quashed. But he contended that the learned Chief Judicial Magistrate, even if he was not satisfied at that stage that Section 132 Cr.P.C. could be attracted, ought not to have rejected the application in limine.
7. Before coming to the main question involved in this revisional application it may be pertinent to refer to a certain peculiar circumstance appearing on the record of the case. Order dt. 29.4.1981 shows that the S.D.J.M., Murshidabad examined the complainant and some witnesses. Thereafter the S.D.J.M. found that a prima facie case under Section 326/307 I.P.C. was well established and accordingly directed issue of warrant of arrest against the petitioner. On 27.11.1981 the accused (petitioner) surrendered and was later enlarged on bail. The subsequent order dt. 12.1.1982 shows that a page of the complaint and the deposition of 9 witnesses were missing from the record. The petitioner filed the petition for quashing the proceeding which was kept with the record for hearing on a subsequent date. In the meantime an explanation from the Bench Clerk was called for to explain how the complaint and the depositions disappeared from the record. Subsequently the case was withdrawn and transferred to the file of the learned Chief Judicial Magistrate, Murshidabad. How the papers disappeared from the record is a mystery and who was responsible for it is anybody's guess. However, the explanation given by the Bench Clerk was accepted by the learned Sessions Judge. On 22.2.1982 the complainant filed a fresh copy of the complaint and examined himself and 5 witnesses. A date was fixed for examination of remaining witnesses. Before the remaining witnesses were examined the learned Chief Judicial Magistrate disposed of the application of the petitioners filed on 12.1.1982 by the order impugned in this revisional application.
8. The only point that falls for our consideration at the moment is whether the order rejecting the petitioner's application dt. 12.1.1982 in limine should or should not be set aside. In other words the question is, whether the accused-petitioner would have the liberty to agitate the point at any subsequent stage of the proceeding.
9. Section 132 Cr.P.C. inter alia, provides:
132. (1) No prosecution against any person for any act purporting to be done under Section 129, Section 130 or Section 131 shall be instituted in any Criminal Court except-
(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;
(b) with the sanction of the State Government in any other case.
10. It is clear that whenever a complaint is filed against any such officer the court would be entitled to throw it out if the sanction of the appropriate Government is not appended. Where the complaint itself indicates that the accused officer committed the alleged offence while acting or purporting to act under the provisions of Sections 129 to 131, the court shall not entertain the complaint unless it is shown that the appropriate Government had sanctioned the prosecution. Different considerations however, arise if the complaint merely alleges the commission of the offence and there is nothing to indicate that while committing the offence the latter was acting or purporting to act under the foregoing section. In such a case the question of sanction may arise only at a subsequent stage, if it appears, from the plea of the accused, the evidence and circumstances or other enquiry, to the court that the action of the accused officer would prima facie come under Sections 129 to 131 as the case may be. The case of Nagraj v. State of Mysore : 1964CriLJ161 is an authority on the point. In the case of Matajog Dubey v. H.C. Bhari, reported in : 28ITR941(SC) the question was whether the need for sanction was to be considered as soon as the complaint was lodged and on the allegations therein contained. It was held that 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 enquiry 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. Such being the legal position, the petitioner is right in contending that his application ought not to have been rejected straightway at that stage of the proceeding but that he should be given the liberty to agitate the point and place materials in support thereof even at subsequent stages.
11. Mr. Bose appearing on behalf of the opposite party No. 1 contended that this being a complaint case disclosing an offence exclusively triable by the court of Session the petitioner can have no right to intervene before the case is committed to the court of session.
12. We are, however, unable to subscribe to this view. Section 132 provides that no prosecution against any person for any act coming within the meaning of that Section shall be instituted except without a sanction. It is obvious therefore, that the question whether or not sanction is necessary has to be determined as far as practicable at the earliest possible time. If the accused has a genuine case requiring sanction of the prosecution he ought not to be subjected to suffer the harassment till the last stage of the proceedings if it is possible to avoid such a contingency. Therefore, when the accused is before the court he may be entitled even before the commitment of the case to bring out facts justifying the necessity of a sanction. It is not correct to say that the committing magistrate has no option but to commit the case if the complaint discloses an offence triable by the court of Session. At the stage of issuing process under Section 204 Cr.P.C. the Magistrate has to form an opinion that there is sufficient ground for proceeding. Section 208 Cr.P.C. also provides that where in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session the Magistrate shall act as provided under the Section. Section 209 Cr.P.C. also provides that when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit the case. Therefore, it is clear that the Magistrate has to be satisfied at different stages that an offence is prima facie disclosed and that it is triable exclusively by the Court of Session. Mr. Bose in his usual fairness drew our attention to the case of Rajendra Kumar v. State : 1980CriLJ1084 where it has been observed that it may not be accurate to say that the committing Magistrate has no judicial function to perform under the 1973 Cri PC. If no offence is disclosed the Magistrate may refuse to take cognizance or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under other provisions of the Code. To that extent the court of the committing Magistrate does discharge a judicial function. Consequently it follows that the Magistrate is competent to go into the question as to whether or not the complaint was entertainable without a sanction. The accused petitioner ordinarily may not have a right to intervene at the stage of commitment proceeding but in the peculiar facts and circumstances of the case where the accused is factually before the court and the commitment proceeding has not yet been concluded we see no reason why he would not be entitled to raise a point which goes to the very root of the matter and even affects the jurisdiction of the court to entertain the complaint without a sanction if there was really any necessity for it. To that extent the petitioner is entitled to intervene and show that sanction was in fact necessary.
13. For the reasons that have gone forward and in view of the principles laid down by the Supreme Court that the question whether sanction is or is not necessary may have to be gone into from stage to stage, the learned Chief Judicial Magistrate should not have concluded the question by the order impugned. We may however, indicate that the learned Chief Judicial Magistrate perhaps did not intend to do so for he has said that at the presently moment there was nothing to indicate that the provisions of Section 132 were attracted. In our view he did not really reject the defence plea in limine but merely expressed that at that stage of the proceedings there was nothing to invoke Section 132 Cr.P.C. However, to avoid future controversy we make it clear that the petitioner should be entitled to and should have the liberty to re-agitate the point before the learned Chief Judicial Magistrate or before the Court of Session if the case is eventually committed. We also make it clear that the petitioner who is in fact present before the court shall not be a mere mute spectator but shall be entitled to place materials to show that sanction was necessary in the facts of the case after examination of all witnesses for the complainant under Section 202 Cr.P.C. is over.
14. Such materials may be in the shape of documents such as Government orders, notifications, instructions from superior officers etc. But it will not be open to the petitioner to adduce oral evidence at this stage. Such a course will not offend against any express provision of the Code. On the contrary it shall be in harmony with the intention of the legislature which provides that the want of sanction where it is necessary will bar the institution of the case itself.
15. The prayer for quashing the proceedings was not pressed before us and we see no reason' at this stage why it should be quashed. Subject to the observations made above and the liberty given to the petitioner to re-agitate the point at any subsequent stage of the proceeding the revisional application is rejected. The records be sent down at once. All interim orders are vacated.
Sankari Prasad Das Ghosh J.: